# Bradley B. Ware v. Texas Commission on Environmental Quality > Texas Court of Appeals, 3rd District (Austin) · January 15, 2015 URL: https://www.frixlaw.com/law-library/cases/4040688 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** January 15, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4040688 ## Opinion text ACCEPTED 03-14-00416-CV 3781001 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/15/2015 12:12:27 PM JEFFREY D. KYLE CLERK Case No. 03-14-00416-CV IN THE FILED IN 3rd COURT OF APPEALS THIRD COURT OF APPEALS AUSTIN, TEXAS AT AUSTIN, TEXAS 1/15/2015 12:12:27 PM JEFFREY D. KYLE Clerk BRADLEY B. WARE, Appel/ant, v. TEXAS COMMISSION ON ENVIROMENTAL QUALITY, Appellee. ON APPEAL FROM THE 53RD JUDICIAL DISTRICT COURT OF TRAVIS COUNTY, TEXAS APPELLANT'S BRIEF Stephen P. Webb BarNo. 21033800 s.p.webb@webbwebblaw.com Gwendolyn Hill Webb Bar No. 21026300 g.hill.webb@webbwebblaw.com Attorneys for Appellant Webb & Webb, Attorneys at Law 211 East Seventh Street Austin, Texas 78701 Phone: 512-472-9990 APPELLANT REQUESTS ORAL ARGUMENT Case No. 03-14-00416-CV BRADLEY B. WARE, Appellant, v. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY, Appellee. IDENTITY OF PARTIES AND COUNSEL Stephen P. Webb Linda Secord, Asst. Attorney General BarNo. 21033800 Bar No. 1797400 s.p.webb@webbwebblaw.com Office of the Attorney General Gwendolyn Hill Webb P.O. Box 12548-MC066 State Bar No. 21026300 Austin, Texas 78711-2548 g. hill.webb@webbwebblaw.com Phone: 512-475-4002 Webb & Webb, Attorneys at Law Fax: 512-320-0911 211 East Seventh Street, Suite 712 Linda.secord@texasattorneygenel'al.gov Austin, Texas 78701 ATTORNEY FOR APPELLEE, Phone: 512-472-9990 TEXAS COMISSION ON Fax: 512-472-3183 ENVIROMENTAL QUALITY ATTORNEY FOR APPELLANT, BRADLEY B. WARE Case No. 03-14-00416-CV BRADLEY B. WARE, Appellant, v. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY, Appellee. REQUEST FOR ORAL ARGUMENT Appellant, Bradley B. Ware, requests an oral argument in this case. ii TABLE OF CONTENTS Identify of Parties and Counsel .................................................................................. i Request for Oral Argument ....................................................................................... ii Index of Authorities ................................................................................................. vi Appellant's Brief ........................................................................................................ 1 Statement of the Case ................................................................................................. 2 Statement of Oral Argument ..................................................................................... .4 Points of Error Presented for Review ........................................................................ 4 Statelnent of the Facts ................................................................................................ 5 Background Legal and Factual Framework of Application No. 5594A .................... 7 Points of Error and Brief of Argument ................................................................... 13 Point of Error Number One: The District Court erred in failing to find that the Commission's April 20, 2010 Order unlawfully ignores the evidence of record regarding the water available for appropriation by Plaintiff; therefore, the Commission's action in adopting the April 20,2010 Order was arbitrary and capricious, and was characterized by an abuse of discretion ................................................................................................................ 13 Sumlnary of the ArgUlnent ............................................................................ 13 ArgUlnent.. ..................................................................................................... 13 Point of Error Number Two: The Commission's April 20, 2010 Order violates the directives and requirement of Texas Water Code, §11.134 (b), regarding Commission action on water rights applications .............................................................................................................. 18 Sumlnary of the Argument.. .......................................................................... 18 Argument. ...................................................................................................... 19 iii Point of Error Number Three: The District Court erred in failing to find that the Commission's April 20, 2010 Order is in violation of the requirements of Texas Water Code, §11.1381, regarding the consideration and granting of water rights permits for a term of years ........................................................................................................................ 21 Summary of the Argument ............................................................................ 21 Argument. ................................ :..................................................................... 21 Point of Error Number Four: The District Court in failing to find that the Commission's April 20, 2010 Order violates the fundamental doctrine of water rights law of "first in time, first in right," as set forth in the Texas Water Code, Section 11.027 ................................. 25 Sumtnary of the Argmnent ................................................................................... 26 Argument. ...................................................................................................... 26 Point of Error Number Five: The District Court erred in failing to find that the Commission acted arbitrarily and capriciously to deprive Plaintiff of any continued right to diveti and use any water at any time for Ware Farm under Permit No. 5594, an authorized appropriation, on the stated basis of no water available for appropriation, while at the same time granting water rights for new appropriations and issuing statements of water availability for other Plaintiffs, new permittees, and other water rights holders .... 32 Summary of the Argmnent ............................................................................ 32 Argmnent ....................................................................................................... 33 Point of Error Number Six: The District Comi erred in failing to find that the Commission's April 20, 2010 Order adopted Findings of Fact pertaining to a pending non-party applicant; moreover, the details of said Plaintiff's pending application and proposed iv appropriation were unlawfully used as a basis to deny Plaintiffs water right application ............................................................................................................... 38 SUmtllary of the Argument. ........................................................................... 38 Argument ....................................................................................................... 38 SUtlltllary ................................................................................................................. 42 Prayer for Relief...................................................................................................... 42 Cetiificate of Compliance ....................................................................................... 44 Certificate of Service ............................................................................................... 45 Glossary of Technical Terms .................................................................................. 45 Appendix ................................................................................................................. 46 v INDEX OF AUTHORITIES CASES Balla v. Texas State Board of Medical Examiners, 693 S.W.2d 715-717 (Tex. App. - Dallas 1985, ref.n.v.e) ...................................................................... 41 Berkley v. Railroad Commission of Texas, 282 S.W.3d 240, 242-244 (Tex. App- Amarillo 2009, no pet.h.) .............................................................................. 35 Chocolate Bayou Water Company and Sand Supply v. Texas Natural Resource Conservation Commission, et al., 124 S.W.3d 844, 853 (Tex. App-Austin 2003, pet. denied) .......................................................................................... 29 City of Waco v. Texas Comm'n on Envtl. Quality, 346 S.W.3d 781, 819 - 20 (Tex.App - Austin, pet. denied)] .................................................................. 31 City of El Paso v. Public Utility Com'n. of Texas, 883 S.W.2d 179, 184 (Tex. 1994) ........................................................................................................................ 35 Dodd v. Meno, 857 S.W.2d 575, 576 (Tex. App. - Austin 1993), aff'd on other grounds, 870 S.W.2d 4 (Tex. 1994) .................................................................. 34, 36 Entex v. Railroad Comm., Texas, 18 S.W.3d 858, 862 (Tex. App. - Austin 2000, pet. denied) ...................................................................................... 34, 36, 37 Heritage on San Gabriel Homeowners v. TCEQ, 393 S.W.3d 417, 423 (Tex.App.- Austin 20 12) ................................................................................................. 31 Hernandez v. Meno, 828 S.W.2d 491, 493-495 (Tex. App. - Austin 1992, den.). 40 House of Tobacco, Inc. v. Calvert, 394 S.W.2d 654, 656 - 657 (Tex. 1965) ........ 29 Langford v. Employees Retirement System of Texas, 73 S.W.3d 560, 564-565 (Tex. App. - Austin 2002, pet. denied) .................................................................. 35 Lower Colorado River Authority, et aI, v. Texas Department of Water Resources, 689 S.W. 2d 873 (Tex. 1984) ...................................................................... 24 Railroad Commission of Texas v. Home Transportation Company, 670 S.W.2d 319,325 (Tex. App-Austin 1984, no writ) ................................................... 29 vi Texas Citizens for a Safe Future and Clean Water v. Railroad Commission of Texas, 254 S.W.3d 492, 496-497 (Tex. App. - Austin 2007, pet. filed) ...... 40 Texas Department ofPublic Safety v. Chad Michael Henson (14-09-0001 O-CV) ... 2 Texas Department of Public Safety v. Guajardo, 970 S.W.2d 602 (Tex. App.- Hous. [14 th Dist.] 1998) ................................................................................... 2 Texas Farm Bureau, et al v. Texas Commission on Environmental Quality, Cause No. D-I-GN-12-003937 .......................................................................................... 31 Texas Water Com 'n v. Dellana, 849 S.W.2d 808, 810 (Tex. 1993) ....................... 29 TGS - NOPEC Geophysical Company v. Combs, 268 S.W.3d 637, 651-652 (Tex. App. - Austin 2008, pet. filed) ..................................................................... 35 TEXAS WATER CODE §11.021 .................................................................................................................... 11 §11.022 .................................................................................................................... 11 §11.025 ................................................................................................................... 11 § 11.026 .................................................................................................................... 11 §11.027 .................................................................................................... 4, 25, 26, 27 § 11.046 .................................................................................................................... 11 §11.046(c) ......................................................................................................... 18,33 §11.121 .................................................................................................................... 11 §11.134 ................................................................................................................. 8,11 §11.134(b) ..................................................................................................... 4,18,19 §11.1381 .................................................................................................. 4,11,21,23 §11.141 ............................................................................................ 11, 26, 27, 28, 41 § 11.172 .................................................................................................................... 23 TEXAS GOVERNMENT CODE §2001.005(a) ........................................................................................................... 39 §2001.081 ................................................................................................................ 39 §2001.087 ................................................................................................................ 40 §2001.174(2) ................................................................................................... 39,41 §2001.174(2)(a) ..................................................................................................... 28 §2001.174(2)(c) ..................................................................................................... 39 vii §2001.174(2)(e) ............................................................................................... 18,39 §2001.174(2)(f) ............................................................................................... 35,39 §2001.175 ............................................................................................................... 29 §2003.047(l)(ln) ...................................................................................................... 15 viii Case No. 03-14-00416-CV BRADLEY B. WARE, Appellant, v. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY, Appellee. APPELLANT'S BRIEF TO THE COURT OF APPEALS: Appellant, Bradley B. Ware, submits this Brief in appeal of the Order on administrative appeal affirming the decision of the Texas Quality on Environmental Quality ("TCEQ", "Commission" or "Agency"). This Appeal is from the District Court of Travis County, Texas, 53 rd Judicial District, the Honorable John Dietz presiding in which Appellant was the Plaintiff and Appellee was the Defendant. For clarity, Bradley B. Ware will be referred to as "Plaintiff' and the Texas Quality on Environmental Quality will be referred to as "Defendant." I. STATEMENT OF THE CASE Plaintiff, Bradley B. Ware appeals from the 53 rd Judicial District Court of Travis County, Texas in its failure to overturn the final order of the TCEQ which denied Plaintiff the right to divert and use water under Permit to Appropriate State Water No. 5594 ("Permit No. 5594"). Plaintiff asselis that the Commission's April 20, 2010 Final Order of the TCEQ ("Order") violates extant provisions of the Texas Water Code ("TWC"), and contains obviously reversible legal error. A May 11,2010 decision ofthe Texas Court of Appeals, FOUlieenth District, Houston, in Texas Department of Public Safety v. Chad Michael Henson (14-09-00010-CV) sets forth the standards of judicial review of decisions by an administrative agency. The text of the discussion is set forth in full below: When reviewing an administrative decision under the substantial evidence rule, the review court may affirm the decision in whole or in part. Tex. Gov't, Code Ann. §2001.174 (Vernon 2008). It [the reviewing cOUli] must reverse or remand the case if the Appellant's substantial rights have been prejudiced because the administrative findings, inferences, conclusions, or decision are: (1) in violation of a constitutional or statutory provision; (2) in excess of the agency's statutory authority; (3) made through an unlawful procedure; (4) affected by other error oflaw; (5) not reasonably suppOlied by substantial evidence when considering the record as a whole; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. APPELLANT'S BRIEF PAGE 2 [Citing and paraphrasing Tex. Gov't. Code §2001.l74 (Vernon 2008), and Texas Department ofPublic Safety v. Guajardo, 970 S.W.2d 602 (Tex.App-Hous. [14 th Dist.] 1998)] Generally, as shown below, the Commission's order is in violation of the fundamental precepts of the Constitution of the United States (5 th and 14th Amendments) and the Texas Constitution (Art. 1, Bill of Rights, Sections 3 and 19), the Texas Water Code and the Texas Government Code; is in excess of the Commission's statutory authority; is made through unlawful procedure; is affected by numerous other errors of law; is not reasonably supported by substantial evidence when considering the record as a whole; and is on its face arbitrary, capricious, and characterized by abuse of discretion, or clearly unwarranted exercise of discretion. The Commission's final order is not entitled to the deference that agency decisions are typically afforded in a simple substantial evidence revIew. Put simply, the Commission's April 20, 2010 Order is subject to reversal because it finds and concludes that there is water available for appropriation in the Brazos River Basin in the form of return flows, but reserves the available water to a pending Applicant-- not an existing appropriator-- and denies water availability in the current proceeding, against the substantial evidence of record. Th~ trial court el'l'ed in failing to recognize these deficiencies in the Commission's April 20, 2010 APPELLANT'S BRIEF PAGE 3 Order and erred in rendering its June 11, 2014 order which denied Plaintiffs appeal. II. STATEMENT OF ORAL ARGUEMENT Plaintiff requests oral argument due to the size and complexity of the record and the numerous factual and legal issues. Plaintiff requests oral arguments to property address the points of error. III. POINTS OF ERROR PRESENTED FOR REVIEW Point of Error One: The District Court erred in failing to find that the Commission's April 20, 2010 Order unlawfully ignores the evidence of record regarding the water available for appropriation by Plaintiff; therefore, the Commission's action in adopting the April 20,2010 Order was arbitrary and capricious, and was characterized by an abuse of discretion. Point of Error Two: The Commission's April 20, 2010 Order violates the directives and requirements of Texas Water Code, §11.l34(b), regarding Commission action on water rights applications. Point of Error Three: The District COUlt erred in failing to find that the Commission's April 20, 2010 Order is in violation of the requirements of Texas Water Code, §11.l381, regarding the consideration and granting of water rights permits for a term of years. Point of Error Four: The District COUlt in failing to find that the Commission's April 20, 2010 Order violates the fundamental doctrine of water rights law of "first in time, first in right," as set forth in the Texas Water Code, Section 11.027. APPELLANT'S BRIEF PAGE 4 Point of Error Five: The District Court erred in failing to find that the Commission acted arbitrarily and capriciously to deprive Plaintiff of any continued right to divelt and use any water at any time for Ware Farm under Permit No. 5594, an authorized appropriation, on the stated basis of no water available for appropriation, while at the same time granting water rights for new appropriations and issuing statements of water availability for other Plaintiffs, new permittees, and other water rights holders. Point of Error Six: The District Court erred in failing to find that the Commission's April 20, 2010 Order adopted Findings of Fact pertaining to a pending non-patty applicant; Moreover, the details of said Plaintiff's pending application and proposed appropriation were unlawfully used as a basis to deny Plaintiff's water right application. IV. STATEMENT OF FACTS 1. On November 15, 2005, Plaintiff filed Application for Amendment to a Water Right No. 5594A ("Application No. 5594A") with the Agency for authority to delete or extend the term of his current water rights Permit No. 5594, which authorized the appropriation of 130 acre-feet of water for agricultural purposes from the Lampasas River, so that Plaintiff could continue to operate a family farm that has been owned and operated by the Ware family in excess of 100 years. Mr. Ware's timely applications was to: (1) either extend his Permit for another 10-year period or convelt his Permit to a perpetual right, (2) withdraw 20 more acre-feet of water annually and (3) irrigate 31 more acres of his farm. Therefore, Plaintiff applied for a perpetual water right, and if that was not possible, the renewal of his term permit. A true copy of the Plaintiff's application is attached as Exhibit A and is fully incorporated into this brief by reference; Clerk's Record p. 63- 75. 2. On October 28 and 29, 2009, an adjudicative hearing was held on the Agency's case number 2008-0181-WR (SOAR Docket No. XXX-XX-XXXX), before the State Office of Administrative Hearings ("SOAH") on the Plaintiff's application. The Executive Director ("ED") of the TCEQ appeared in Application No. 5594A as a patty to the hearing, opposing the relief sought by the Plaintiff. In connection with the adjudicative hearing, a record was made consisting of all pleadings and evidence introduced before APPELLANT'S BRIEF PAGES SOAR. Thereafter, the TCEQ considered the Proposal for Decision of Administrative Law Judge ("ALJ") Paul Keeper on April 14, 2010. Subsequently, the Agency prepared a final decision, represented by its Final Order including its Findings of Fact and Conclusions of Law. 3. On April 20, 2010, the Agency rendered its decision in the form of AN ORDER Concerning the Application of Bradley B. Ware to amend water use Permit No. 5594: TCEQ Docket No. 2008-0181-WR; SOAH Docket No. 582- 08-1698 and denied Plaintiffs Application No. 5594A to delete or extend the term of the current permit and also to authorize the appropriation of an additional 20 acre-feet of water per annum. 4. The Plaintiff timely filed a Motion for Rehearing ("Motion") to the Agency's April 20, 2010 Order, and the Motion was overruled by operation of law by the Agency when the TCEQ failed to act on Plaintiffs Motion (See Exhibit B, Applicant Bradley B Ware's Motion for Rehearing, exhibits not attached; Clerk's Record p. 76-98). Notice of the Agency's inaction was provided to the Plaintiff on June 17, 2010. 5. The Plaintifftimely filed his appeal to the Travis County District Court on July 8, 2010. 6. All conditions precedent having been performed 01' having occurred, the Plaintiff was entitled to judicial review of the Agency's decision in accordance with Texas Water Code §11.134 and the Texas Government Code, §§2001.175 and 2001.176. 7. On June 11,2014, the District Court issued its order which denied Plaintiffs appeal ofthe Commission Order. 8. On June 30, 2014, Plaintiff filed his Notice of Appeal. APPELLANT'S BRIEF PAGE 6 V. BACKGROUND LEGAL AND FACTUAL FRAMEWORK OF APPLICATION NO. 5594A 1. Application No. 5594A This application, designated Application No. 5594A by the ED of the TCEQ and a party to the administrative hearing, is a water rights application by Plaintiff Bradley B. Ware on behalf of Ware Farms, seeking to renew 01' delete the 10 year term of his water rights Permit No. 5594. Plaintiff's existing water rights Permit No. 5594 was granted November 7, 1997 after no person protested the granting the of application (See, Exhibit A's attachment, Permit No. 5594; Clerk's Record p. 65-66), and authorizes the diversion and use of 130 acre-feet of water for agricultural purposes for the irrigation of 100 acres of farmland. Permit No. 5594 also contains the following SPECIAL CONDITIONS: b. The authorization to divert and use 130 acre-feet of water per year shall expire and become null and void on November 7, 2007 unless prior to such date permittee applies for an extension hereof and such application is subsequently granted for an additional term 01' in perpetuity. The priority date of this permit and all extensions hereof shall be July 1, 1997. Plaintiff filed Application No. 5594A on November 17, 2005, and the application was declared administratively complete on March 20, 2006. In Application No. 5594A, Plaintiff sought to add an additional 20 acre-feet of water per annum, and APPELLANT'S BRIEF PAGE 7 to extend the term of the permit. Notice of Application No. 5594A advised Brazos River Basin water rights holders: "Applicant seeks to amend Water Use Permit No. 5594', to extend or delete the expiration date of November 7, 2007; add an additional 31 acres for irrigation in Bell County, and to divert and use an additional 20 acre-feet of water." In reviewing the application, the Agency Executive Director's Water Availability staff informed Plaintiff repeatedly that the results from the Brazos River Basin Water Availability Model ("Brazos WAM" or "WAM") showed that water was not available for the proposed application at Plaintiffs diversion point on the Lampasas River in the Brazos River Basin. Plaintiff elected to go forward with a contested case hearing. 2. Background ofthe Water Availability Question Plaintiffs water rights application began as a simple question of water availability and protection of senior and superior water rights in the Brazos River Basin under Texas Water Code, §11.1342 . Plaintiff was the owner of a term pennit and applied for a renewal. The Executive Director used the Brazos WAM and determined that water was not available in sufficient quantities and with sufficient , Although the Notice prepared by the Executive Director and issued by the Chief Clerk refers to Plaintiffs water rights permit as a "Water Use Permit," Permit No. 5594, issued by the Commission is entitled, "PERMIT TO APPROPRIATE AND USE STATE WATER." 2 All section references in this brief are to the Texas Water Code, unless otherwise noted. APPELLANT'S BRIEF PAGES frequency to justify granting the application for an additional term. Brazos River Authority ("BRA"), holder of senior water rights in the Brazos River Basin protested the application at first, stating that it did not object to the issuance of the permit for an additional term and with an additional 20 acre-feet. BRA later withdrew its protest of the application, before the contested case hearing, See correspondence attached as Exhibit C; Clerk's Record p. 100. 3. The Doctrine of Prior Appropriation as the Cornerstone of Texas Water Code, Chapter 11 Texas water rights are issued pursuant to the principles of Western water law, including the doctrine of prior appropriation, which is codified in Texas Water Code, Chapter 11. The legal principles of Western water law, which grew out of the experience of the development of the American West, where water was a scarce and valuable resource. The doctrine of prior appropriation suppOlis the concepts of govermnent oversight of water resources, deemed essential to promoting the beneficial use of available water in accordance with the public welfare. Originally, water rights were given not only based on application to the State in the form of a certified filing, but also based on proximity of land to a watercourse. Unfortunately, this dual system was deemed to preclude efficient government regulation, and the existing riparian rights, certified filings and water rights permits were unified during the water rights adjudication. Claims under APPELLANT'S BRIEF PAGE 9 riparian rights, certified filings, and permits were replaced by certificates of adjudication, and subsequent water rights issued under the permitting system set forth in Chapter 11. Plaintiff testified at his hearing that, although water was used on his farm by his great grandfather since 1874 (See Exhibit D, Tr. Vol. 13, p. 19, line 6 through p. 20, line 4; Clerk's Record p. 102-103 and Tr. Vol. 1, p. 22, line 18 through p. 23, line 3; Clerk's Record p. 105-106.), his parents were involved in a bitter divorce which diverted their attention from paliicipation in water rights adjudication (See Exhibit D, Tl'. Vol. 14, p. 21, line 14 through p.22, line 17; Clerk's Record p. 104-105). After the completion of the Adjudication of Water Rights in all segments of the Brazos River Basin, Ware Farm was left without any adjudicated right to appropriate State water. Consequently, after Plaintiff became owner of Ware Farm, he sought the means to keep the farm operating as a going concern, including farming crops such as pumpkins and hay for grazing and raising cattle. In 1997, Plaintiff obtained a water right, Permit No. 5594, which authorized water use for a term often (10) years (See Exhibit D, Vol. 1, p. 45, line 3 through p. 47, line 8; Clerk's Record p. 107-109). Although Texas water rights permitting has evolved from a regulatory standpoint in the time period following Water Rights Adjudication, the 3In this brief, references to the transcript are designated: Tr. Vol. _, p. _, line _; and followed by the Clerk's Record page reference. APPELLANT'S BRIEF PAGE 10 fundamental doctrine of the prior appropriation system remains embedded in Texas water rights. Those principles are enunciated specifically in the following sections of Texas Water Code, Chapter 11: § 11.021, State Water - Asserts State sovereignty over the surface waters ofthe State in watercourses § 11.022, Acquisition of Right to Use State Water - Provides for the use of State water by authorized appropriators; § 11.025, Scope of Appropriative Right - Sets forth the limitations of the appropriative rights; § 11.026, Perfection of an Appropriation - Provides for perfection of an appropriation by beneficial use in accordance with the permit; § 11.027, Rights Between Appropriators - Provides for resolution of conflict between appropriators on the basis of "first in time is first in right;" § 11.046, Return Surplus Water - Provides that water authorized to be appropriated but not needed for the authorized use be returned to the watercourse for further appropriation and for other uses; § 11.121, Pennit Required - Requires the issuance of water rights permits to authorize appropriation § 11.134, Action on Application - Specifies the conditions under which the Commission may grant a water rights permit; § 11.1381, Term Permits - Establishes a means for issuance of term permits; and § 11.141, Date of Priority - Establishes the priority date for water rights permits as the date the application was filed. APPELLANT'S BRIEF PAGE 11 Taken as whole, the provisions of the Texas Water Code establish the regulatory framework for the administration of Texas water rights. 4. Permit No. 5594 Implements Prior Appropriation Doctrine Plaintiff's Permit No. 5594 embodies the principles of prior appropriation set forth in the Texas Water Code. Permit No. 5594 specifies the purpose of use (irrigation); the location ofland to be irrigated [100 acres ofland out of261 acres in the W. Brown Survey, Abstract No. 67, the D.G. Vicheton (Vecheton) Survey Abstract No. 851, and the C. Edwards Survey, Abstract 291 in Bell County, Texas; the water course which is the source of water (Lampasas River, tributary of the Little River, tributary of the Brazos River); the amount of water authorized to be used (130 acre-feet); and the diversion point and diversion rate (2.67 cubic feet per second ("cfs") or 1200 gallons per minute ("gpm")) from any point on the left or east bank of the Lampasas River]. And, the permit was issued in accordance with the provisions of § 11.1381 to allow Ware Farm to make beneficial use of State water in the Brazos River Basin which was stated to be present in the stream but appropriated to others and which would otherwise go unused until senior water rights are perfected 5• The priority date is specified as the date the application was 5 The Executive Director's August 28, 1997 Water Availability Analysis (Exhibit F; Clerk's Record p. 164-178), stated that downstream water rights in the vicinity of Ware Farm on the Lampasas River, the Little River, and the Brazos River had not been perfected, or "fully developed," and that, "Therefore, the hydrological analysis only suPPOtt issuance of a ten year term permit for the Plaintiff." (Exhibit F, more specifically Clerk's Record p. 165) APPELLANT'S BRIEF PAGE 12 accepted for filing. Finally, under the doctrine of "First in time is first in right," the Plaintiff's term permit states unequivocally that the priority date for the permit "and all extensions hereof shall be July 1,1997." VI. POINTS OF ERROR AND BRIEF OF ARGUMENT 1. POINT OF ERROR NUMBER ONE. THE DISTRlCT COURT ERRED IN FAILING TO FIND THAT THE COMMISSION'S APRlL 20, 2010 ORDER UNLAWFULLY IGNORES THE EVIDENCE OF RECORD REGARDING THE WATER AVAILABLE FOR APPROPRlATION BY PLAINTIFF; THEREFORE, THE COMMISSION'S ACTION IN ADOPTING THE APRlL 20, 2010 ORDER WAS ARBITRARY AND CAPRlCIOUS, AND WAS CHARACTERlZED BY AN ABUSE OF DISCRETION. Summmy ofArgument The Commission's Order of April 20, 2010 was based upon its staff's refusal to consider record evidence that completely contradicted the evidence upon which the staff and the agency relied to make its primary determination. The primary issue in Plaintiff's application for a perpetual right was whether there was state water available for appropriation in Plaintiff's section of the Brazos River Basin. The agency's Executive Director performed a November 14, 2006 analysis that concluded there was no water available. The record shows that the same Executive Director performed a 2008 updated analysis on the entire Brazos River basin and found on an additional 74, 387 acre-feet per year available for appropriation. The Commission never resolved, on the record, the contradiction between these factual determinations. APPELLANT'S BRIEF PAGE 13 Argument The adopted Findings of Fact regarding water availability and "The reliability of the Model" in the Commission's April 20, 2010 Order, attached as Exhibit E (Clerk's Record p. 146-463) are, on their face, inconsistent with each other, directly contrary to the evidence of record, and founded upon unlawful procedure. While the Commission is entitled to draw an appropriate inference from the substantial evidence of record regarding water availability in the Brazos River Basin, the Commission is not entitled to abuse its discretion by disregarding the existing evidence of record concerning water availability in favor of outdated evidence known to be inaccurate. On November 14, 2006, the Executive Director performed a water availability review of Mr. Ware's amendment application using the Commission's Brazos WAM which was current and accurate at the time it was performed. See, Exhibit G (Clerk's Record p. 179-181), attached hereto. Two years later, however, the Executive Director preformed another water availability review of the Brazos River Basin using updated information which was not available at the time Mr. Ware's application was reviewed. The Executive Director updated the Brazos WAM's Current Conditions data set and found that there was an additional 74,387 acre-feet per year available for appropriation in the Brazos River Basin. See, Exhibit H (Clerk's Record p. 182-196), also attached hereto. APPELLANT'S BRIEF PAGE 14 It is undisputed in the record that Mr. Ware's amendment application did not benefit from the Executive Director's 2008 update of the Brazos WAM, which occurred well before the contested case hearing on Plaintiff's Application No. 5594A. The Executive Director's staff hydrologist, Jeffrey Charles Thomas, testified at the hearing that neither he nor anyone else in the Executive Director's office performed a water availability review of Mr. Ware's application, other than the one completed on November 14, 2006 and included in Exhibit H (Clerk's Record p. 182-196). The same witness also testified that no portion of the 74,387 acre-feet found to be available in the Brazos River Basin in 2008 and set fOlih in Exhibit H (Clerk's Record p. 182-196) was ever applied to Mr. Ware's application or the Executive Director's analysis of water availability for the Ware application6 . In considering the Plaintiff's argument regarding water availability based on return flows and updated information, the Commissioners appeared to believe that their questioning of Commission staff during the April 14, 2010 Commission Agenda meeting on the Proposal for Decision on Application No. 5594A regarding consideration of return flows and water availability was a lawful substitute for the evidence of record. This procedure is not lawful. The Commission's decision must be based on the evidence of record, not the earnest responses of Commission staff at Agenda, which responses are not contained in the administrative record 6(Attached as Exhibit D, Tr. Vol. 1 p. 109 line 6 - 110 line 8; Clerk's Record 112-113; and pp. 134 line 9 -154 line 24; Clerk's Record p. 125-145) APPELLANT'S BRIEF PAGE 15 upon which the decision must be based? TCEQ staff hydrologist Kathy Alexander, (now Ph.D.) responded to Commission inquiries stating that the Executive Director had included the return flows shown on Exhibit H, attached hereto, in its consideration of water available for Plaintiff's proposed appropriation. .This statement is directly contr(lry to the testimony of TCEQ staff during the hearing, including Dr. Alexander, regarding the consideration of 74,384 acre-feet of water shown to be available in the updated Current Conditions data set of the Brazos WAM. The evidence of record, as shown in an excerpt of the official transcript, is set fOlih below. CROSS EXAMINATION OF JEFFREY CHARLES THOMAS, TCEQ HYDROLOGIST ON THE BRADLEY B. WARE APPLICATION Transcript, Bradley B. Ware SOAH Contested Case Hearing October 28, 2009, Page 149, line 24 to Page 150, line 2: Q. Okay, the point is you didn't use any portion of that additional water in the basin in your model? A. That's correct. Transcript, Bradley B. Ware SOAH Contested Case Hearing October 28, 2009, Page 150, lines 10 through 19: Q. Additional unappropriated water would benefit the entire basin, wouldn't it? A. Yes. Q. And so it doesn't matter whether it's above Stillhouse Hollow Lake, below it? It would benefit everyone, wouldn't it? 7 Texas Gov. Code §2003.047(l)(m) APPELLANT'S BRIEF PAGE 16 A. It would benefit everyone downstream of it and potentially that-yes, I can-say that it would benefit everyone in the basin, yes. CROSS EXAMINATION OF KATHY ALEXANDER, TCEQ HYDROLOGIST EXECUTIVE DIRECTOR'S REBUTTAL WITNESS ON THE BRADLEY B. WARE APPLICATION Transcript, Bradley B. Ware SOAH Contested Case Hearing October 29, 2009, Page 378, line 15 to Page 379, line 8: Q. Okay. And so there were return flows available and you gave them a priority date of October 15, 2004? A. Yes. Q. Okay. You mentioned that there were 74,387 acre-feet of return flows resulting from different discharges up and down the Brazos River Basin determined to be available by TCEQ hydrology? A. Yes. Q. And those are the return flows that were given the October 15, 2004, priority date? A. Yes. Q. Okay. And that-and none of those return flows, not any portion of them were allocated for use by Mr. Ware under either a 1997 priority date or any other priority date? A. The return flows were considered and - Q. Yes or no, Ms. Alexander. A. No. Therefore, to the extent that the Commission's April 20, 2010 Order contains Findings of Fact which state that water is not available for continued appropriation in the Brazos River Basin, under the Brazos WAM, such Findings of Fact are not reasonably supported by substantial evidence when considering the record as a whole. Exhibit H (Clerk's Record p. 182-196) shows that 74,387 acre-feet of water APPELLANT'S BRIEF PAGE 17 per year are available in the Brazos River Basin in the latest version of the Brazos WAM. 8 Texas law does not confer upon the Commission discretion to disregard the evidence ofrecord. Tex. Gov't Code, §2001.174(2)(E) requires a reviewing court to reverse an order of the Commission that is not reasonably supported by substantial evidence considering the reliable probative evidence in the record as a whole. The only reliable evidence is that Mr. Ware's application never received a water availability review which referenced the amount of water now known to be available for appropriation in the Brazos River Basin. The Commission's reliance on the outdated water availability information included in Exhibit H (Clerk's Record p. 182-196), known to be superseded by more reliable and updated information in Exhibit H (Clerk's Record p. 182-196) deprives the Commission's April 20, 2010 Order of any legitimacy under the law and constitutes an obvious abuse of the Commission's discretion. 2. POINT OF ERROR NUMBER TWO. THE COMMISSION'S APRIL 20, 2010 ORDER VIOLATES THE DIRECTIVES AND REQUIREMENTS OF TEXAS WATER CODE, § 11.134(B), REGARDING COMMISSION ACTION ON WATER RIGHTS APPLICATIONS. 8The Commission was only willing to use the evidence of water availability under the Brazos WAM in favor of an application filed by Brazos River Authority, as shown in its adoption of Findings of Fact Nos. 42-52. APPELLANT'S BRIEF PAGE 18 Summmy ofArgument The Commission's April 20, 2012 Order fails to comply with Texas Water Code § 11.134(b). Under the agency's erroneous construction of Texas Water Code § 11.046(c), the Commission specifically and erroneously "reserves" state water that was available for appropriation for a subsequent pending applicant, rather than a senior water right holder. Argument Pertinent requirements of Texas Water Code, § 11.134(b) is: (b) The Commission shall grant the application only if: (1) the application conforms to the requirements prescribed by this chapter and is accompanied by the prescribed fee; (2) unappropriated water is available in the source of supply; (3) the proposed appropriation: (A) is intended for a beneficial use; (B) does not impair existing water rights or vested riparian rights; (C) is not detrimental to the public welfare; (D) considers any applicable environmental flow standards established under Section 11.1471 and, if applicable, the assessments performed under Sections 11.147(d) and (e) and Sections 11.150, 11.151, and 11.152; and (E) addresses a water supply need in a manner that is consistent with the state water plan and the relevant approved regional water plan for any area in which the proposed appropriation is located, unless the commission determines that conditions warrant waiver of this requirement; and APPELLANT'S BRIEF PAGE 19 (4) The Applicant has provided evidence that reasonable diligence will be used to avoid waste and achieve water conservation as defined by Section 11.002(8) (B). The Findings of Fact and Conclusions of Law in the Commission's April 20, 2010 Order do not address the requirements of Texas Water Code, §11.134(b). To the extent that the Conclusions of Law ultimately denying Application No. 5594A flow from the Findings of Fact regarding water available for appropriation in the Brazos River Basin, they are not reasonably supported by substantial evidence when considering the record as a whole; are arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. Moreover, the Commission's Apri120, 2010 Order also violates Texas Water Code, §11.134(b) as well. The Commission's Order states: 44. The addition of "new water," [return flows] if it were proved to exist, would be subject to all prior appropriation rights of senior water rights holder and could not be treated as available for new allocation. Finding of Fact No. 44 clearly fails to incorporate the most recent amendments to §11.046(c) as discussed herein below. Finding of Fact No. 44 presents an unlawful interpretation of Commission requirements under Texas Water Code, §11.134(b), which is only highlighted by the subsequent contradictory finding that: . 45. The full amount [described in Finding of Fact No. 49 as 421,449 acre-feet of water pel' year] of the Brazos River Authority's requested return flows become available only at the furthest downstream point m the basin; diversions at other APPELLANT'S BRIEF PAGE 20 points are possible due to specific facts and circumstances of that application. The Commission is charged with granting water rights applications when it finds that water is available for appropriation. Instead of discharging its statutory responsibilities in accordance with Texas Water Code, § 11. 134(b), and granting Plaintiff a continued right to appropriate 150 Acre-feet of water dating from his July 1, 1997 priority date, the Commission's April 20, 2010 Order "allocated" the water available for appropriation in the Brazos River Basin to a subsequent applicant, BRA, in an application yet to be completed at SOAR, even as of the date of this appeal to the Court of Appeals. 3. POINT OF ERROR NUMBER THREE. THE DISTRlCT COURT ERRED IN FAILING TO FIND THAT THE COMMISSION'S APRIL 20, 2010 ORDER IS IN VIOLATION OF THE REQUIREMENTS OF TEXAS WATER CODE, §11.138l, REGARDING THE CONSIDERATION AND GRANTING OF WATER RIGHTS PERMITS FOR A TERM OF YEARS. SUlnmmy ofArgument The Commission's April 20, 2010 Order fails to comply with Texas Water Code § 11.1381, regarding an appropriation of state water for a term of years. The Commission inappropriately evaluated Plaintiff's application, that included a APPELLANT'S BRIEF PAGE2! request to renew his term permit, in consideration of its impact on a pending applicant, rather than a senior water right holder. Argument Texas Water Code §11.1381 states: Sec. 11.1381. TERM PERMITS. (a) Until a water right is perfected to the full extent provided by Section 11.026 of this code, the commission may issue permits for a term of years for use of state water to which a senior water right has not been perfected. (b) The commission shall refuse to grant an application for a permit under this section ifthe commission finds that there is a substantial likelihood that the issuance of the permit will jeopardize financial commitments made for water projects that have been built or that are being built to optimally develop the water resources of the area. (c) The commission shall refuse to grant an application for a term permit if the holder of the senior appropriative water right can demonstrate that the issuance of the term permit would prohibit the senior appropriative water right holder from beneficially using the senior rights during the term of the term permit. Such demonstration will be made using reasonable projections based on accepted methods. (d) A permit issued under this section is subordinate to any senior appropriative water rights. Accordingly, even the Commission's unlawful recognition of the availability of return flows in the Brazos River Basin, albeit solely for use under BRA's pending water rights application, is unspoken Commission recognition that the APPELLANT'S BRIEF PAGE 22 evidence of record shows there is water available for appropriation for Plaintiffs diversion and use, at least for a term of years. BRA still has only a pending application for a proposed appropriation. The water that the Commission's April 20, 2010 Order finds available for that proposed appropriation by BRA is, by definition, available to Plaintiff under his 1997 priority date before any new appropriation by BRA with a 2004 priority date is authorized by the Commission. Additionally, the evidence of record is that BRA is using only 20% of its existing Stillhouse Hollow Lake water right, the closest and most pertinent water right to Plaintiff. Tex. Water Code §11.1381 requires the holder of a senior appropriative water right to "demonstrate that the issuance of a term permit would prohibit the senior appropriative water right holder from beneficially using the senior right during the term of the term permit." In this case, there was no senior apptopriator party-- BRA withdrew; And, there could have been no demonstration of harm to BRA because it only has a pending application, not any right to appropriate the 421,449 acre-feet per year of return flows found to be available for appropriation in the Brazos River Basin under the Commission's April 20, 2010 Order. There was no demonstration ofhann to any other existing water rights holder in the Brazos River Basin, on the facts of record in this contested case hearing. APPELLANT'S BRIEF PAGE 23 In this case, the TCEQ is essentially implementing a cancellation program for term permits. The problem with the TCEQ's program is that through the Texas Water Code, the Texas Legislature has authorized the Commission to cancel permits for failure to put all or a part of the water to beneficial use for ten (10) years or more. (See, Texas Water Code, § 11.1729) This is the same directive given by the Texas Supreme Court in reviewing actions of the predecessor agency to the TCEQ in the "Stacy Dam case," Lower Colorado River Authority, et aI, v. Texas Department of Water Resources, 689 S.W. 2d 873 (Tex. 1984), the most recent comprehensive review on water law in this State. In that case, just as in the case at bar, we are all called to consider the issue of how to make the best use of the state's resources during times of water shortage, when questions of water availability become most pronounced. The problem with the Commission's actions in this case, is that TCEQ attempts to effect a cancellation of a water right by a party who the evidence of record shows has put the water to beneficial use in the last ten years. In the "Stacy Dam case," the Texas Supreme Court told the TCEQ that it had to honor appropriations in accordance with the prior appropriation system of the Texas Water Code. Specifically, the Texas Supreme Court stated: 9 Sec. 11.172.' GENERAL PRINCIPLE. A permit, certified filing, or certificate of adjudication is subject to cancellation in whole or part for 10 years nonuse as provided by this subchapter. APPELLANT'S BRIEF PAGE 24 Section 11.146(e), by providing that water granted under any permit is not again subject to a new permit to appropriate until the permit has been cancelled in whole or in part, is consistent with the overall legislative purpose [of providing security for investors that water needed for a project will be there when the proj ect is built]. Id, at p. 877. In other words, under extant provisions of the Texas Water Code, the TCEQ has two avenues to provide for water for additional appropriation: (1) It can make use of surplus water returned to the stream in the form of return flows after use by authorized appropriators under Texas; or (2) It can undertake a cancellation program as specified in Texas Water Code, Chapter 11, Subchapter E. Cancellation of Permits, Certified Filings, and Certificates of Adjudication for Nonuse. In order to grant new water rights and provide for a growing Texas economy, the TCEQ must cancel water rights-that is, de-appropriate the water-ii'om people who are not using the water. The problem, with the current TCEQ practice of changing priority dates and cancelling term permits is that the Agency seeks to cancel water rights of people who are using their water, in favor of those who have yet to be authorized to use the return flows made available under Texas Water Code, § 11.046. In other words, instead of following the Stacy Dam case directive to consider only water not subject to a duly issued Permit to Appropriate State Water, the TCEQ seeks to impose an unofficial "back door" cancellation program APPELLANT'S BRIEF PAGE2S of water rights which were issued for a term of years, even where the permittees are seeking to continue to use the water as originally authorized, and even though additional water in the form of return flows has become available legally to satisfy that continued use. 4. POINT OF ERROR NUMBER FOUR. THE DISTRICT COURT IN FAILING TO FIND THAT THE COMMISSION'S APRIL 20, 2010 ORDER VIOLATES THE FUNDAMENTAL DOCTRINE OF WATER RIGHTS LAW OF "FIRST IN TIME, FIRST IN RIGHT," AS SET FORTH IN THE TEXAS WATER CODE, SECTION 11.027. Summmy ofArgument The Commission's April 20, 2012 Order violates the doctrine of prior appropriation and is based upon an unlawful procedure that was prejudicial to the Plaintiff. Under Texas Water Code § 11.141, the Commission is obligated to use the priority date of the applicant to determine the availability of state water for appropriation. Plaintiff filed an application that should have been given a July 1, 1997, based on a previous order of the Commission. The agency order which set Plaintiff's priority date was final order over which the Commission had lost jurisdiction. Without notice to the Plaintiff or opportunity for him to protest, the Commission's staff changed the priority date of Plaintiff's application to Janumy 5, 2006. Then, the agency compared this "new" priority date unfavorably to the APPELLANT'S BRIEF PAGE 26 2004 priority rate of a pending applicant. The Commission's order is unlawful and is based on unlawful procedure. Argument Texas water law established long ago the prior appropriation doctrine of "first in time, first in right" to resolve disputes between appropriators and potential appropriators of State water. The Texas Legislature codified the doctrine in the Texas Water Code, § 11.027 and fUliher defined the priority of an appropriation at Texas Water Code, §I1.I41. When the Commission issued Mr. Ware's original Permit No. 5594 to "Appropriate and Use State Water" in 1997, the Commission's inclusion of Special Condition 3(b) merely memorializes the "first in time first in right" doctrine in Texas Water Code, §I1.027 and § 11.141. Special Condition 3(b) states, unequivocally: "The priority date of this permit and all extensions hereof shall be July 1, 1997." Sections 11.027 and 11.141 protect the appropriation of State water, not an application for an appropriation, or for a proposed appropriation of State water. The intent of the Texas Water Code is obvious, on this point. The priority date of July 1, 1997 included in Permit No. 5594 establishes the priority of Plaintiff's appropriation; Tex. Water Code, §I1.14I states: Sec. 11.141. DATE OF PRIORITY. When the commIssIon issues a permit, the priority of the appropriation of water and the claimant's right to use the water date from the date of filing of the application. APPELLANT'S BRIEF PAGE 27 The priority date applies to the original appropriation, regardless of whether the appropriation is authorized for a term of years or in perpetuity.lO Where the appropriation is perpetual, the date of the original application, and the priority date would not change. When the appropriation is for a term of years, necessitating re- application if the appropriator wished to retain the water right, there could be confusion about which "application" date controlled. Logically, on a renewal of an existing appropriation it would remain the date of the original application. However, the Commission in 1997 eliminated all confusion and ambiguity by expressly and correctly interpreting Texas Water Law and including Special Condition 3(b) ofpermit No. 5594. When the Executive Director and, ultimately, the Commission, changed Mr. Ware's priority date to January 5, 2006 (Finding of Fact 48) the action violated §11.141 of the Water Code and §2001.174(2)(A) of the Government Code. The exact process of "changing" a final order of a state agency where the agency had lost jurisdiction over the contested case years before, was never explained during the hearing. The record shows that the Commission's Executive Director's Staff never notified Plaintiff that is had changed his 1997 priority date when it did so "administratively." When the Executive Director's representative was pressed to In water rights, this is known as the "doctrine of relation back," meaning the right to appropriate relates to the first point in time (as ofthe date of the completed application) that the state could have authorized the appropriation. APPELLANT'S BRIEF PAGE2S about the procedure, or the exact nature of the "policy" that was used to change Plaintiff s priority date, the witness could not answer the questioning". In fact, the presiding SOAH ALJ prevented fUliher questioning about this important factor in the Agency's pre-hearing consideration of Plaintiffs application l2 • Because the record could not be completed, whether it was because of the limitations of the Executive Director's representative, or the failure of the witness to know the policy used to change Mr. Ware's permit, the Court is allowed to examine the TCEQ procedural irregularities that occurred within the Executive Director's Office. [Tex. Gov't Code §2001.175; See Tex. Water Com 'n v. Del/ana, 849 S.W.2d 808,810 (Tex. 1993)] The record is clear that the Commission's Executive Director's staff did not model 13 or determine water availability to meet the requests in Mr. Ware's amendment application with a 1997 priority date. Therefore, the Commission's administrative record lacks competent evidentiary support for a determination of available water in the Brazos River Basin if the staff had modeled Plaintiffs application correctly. 11 (Attached as Exhibit D, Tr. Vol. 1, p. 116 line 8 - 124 line 25; Clerk's Record p. 114-122) 12 (Attached as Exhibit D, Tr. Vol. 1, p. 125 line 1 -126 line 7; Clerk's Record p. 123-124) 13 By "model" we mean use the agency's Brazos River Basin Water Availability Model computer based simulation of available water within the basin that takes into account inflows, evaporation and channel losses, and the rights granted to senior water rights holders within the basin. APPELLANT'S BRIEF PAGE 29 Of course, Texas law prohibits the collateral attack of an order derived from a closed contested case. Chocolate Bayou Water Company and Sand Supply v. Texas Natural Resource Conservation Commission, et al., 124 S.W.3d 844, 853 (Tex. App - Austin 2003, pet. denied) This prohibition extends to the agency itself. In Railroad Commission of Texas v. Home Transportation Company, 670 S.W.2d 319,325 (Tex. App - Austin 1984, no writ) the Court held; "Agencies are entitled to interpret their own orders, for administrative purposes, so long as the agency does not use the occasion to interpret as a means to amend the prior order." Even if the Executive Director sought to "change" or otherwise "interpret" the plain, unambiguous priority date listed in Plaintiffs permit during the hearing, the cited case law would prevent such a collateral attack of a determination and grant of a water right that has been made by a previous Agency decision. What is more egregious to Mr. Ware's due process rights is that Mr. Ware's permit was amended by a unilateral staff action, without notice and oppOliunity for Mr. Ware to adjudicate the change or even comment on the change. The effect of the action was that Mr. Ware was deprived of a right (a water right with a 1997 priority date) conferred by the original Commission order issuing Permit No. 5594 without any notice and opportunity to respond to the removal of the right. A new, far less senior priority date was used, improperly, in the Executive Director's November 14, 2006 Water Availability Review of Mr. APPELLANT'S BRIEF PAGE 30 Ware's application and formed the basis for the denial of Mr. Ware's application. Therefore, the Commission's order denying Mr. Ware's application on the basis of the change in priority date, also violated Tex. Gov't. Code §2001.174(2)(C). Moreover, in House of Tobacco, Inc. v. Calvert, 394 S.W.2d 654, 656 - 657 (Tex. 1965), the Texas Supreme Court held that even a person who is granted a privilege under the state's police power such as a licensee, is entitled to procedural due process when that license is taken away. Mr. Ware was granted an important and valuable priority date of July 1, 1997. He was entitled to procedural due process when it was taken away by the Executive Director's staff without notice and the opportunity for a hearing on the removal of the priority date. The agency compounded the error when it ratified the Executive Director staffs action by issuing a final order. The TCEQ's Final Order itself indicates that the priority date ofMr. Ware's application is relevant. The Final Order includes findings 49, 50, and 51, peliaining to BRA's application for a system water right. Assuming that all findings of fact are necessary and relevant to the TCEQ's Conclusion of Law and ultimate decision [See Heritage on San Gabriel Homeowners v. TCEQ, 393 S.W.3d 417, 423 (Tex.App. - Austin 2012); citing City of Waco v. Texas C0111111 'n on Envtl. Quality, 346 S.W.3d 781, 819 - 20 (Tex.App - Austin, pet. denied)], we can only assume that BRA's October 15,2004 priority date (Finding 50) as a competing applicant is APPELLANT'S BRIEF PAGE 31 part of the reason why Mr. Ware's application, using a January 5, 2006 priority date (Finding 48) was denied. (Finding 51). The Texas State District Court in Travis County has already considered the importance of recognizing the priority of water rights for agricultural use in Texas Farm Bureau, et al v. Texas Commission on Environmental Quality, Cause No. D- I-GN-12-003937, and found the TCEQ Drought Curtailment Rules, 30 Texas Administrative Code §§ 36.1-36.8, are invalid because: 1. The rules exceed TCEQ's statutory authority because they allow exemption of preferred uses from a curtailment or suspension order, and such exemptions are not in accordance with the priority of water rights established by Texas Water Code § 11.027; and 2. Exemption of junior water rights from a priority call and curtailment or suspension order [meaning administering water rights during a time of shortage by putting later water users in front of earlier priority water users] is not authorized by TCEQ's police power or any general authority to protect the public health; safety, or welfare. [Parenthetical explanatory comments supplied. June 6, 2013, Order on Cross Motions for Summary Judgment, the Honorable Scott H. Jenkins] 5. POINT OF ERROR NUMBER FIVE. THE DISTRICT COURT ERRED IN FAILING TO FIND THAT THE COMMISSION ACTED ARBITRARILY AND CAPRICIOUSLY TO DEPRIVE PLAINTIFF OF ANY CONTINUED RIGHT TO DIVERT AND USE ANY APPELLANT'S BRIEF PAGE 32 WATER AT ANY TIME FOR WARE FARM UNDER PERMIT NO. 5594, AN AUTHORIZED APPROPRIATION, ON THE STATED BASIS OF NO WATER AVAILABLE FOR APPROPRIATION, WHILE AT THE SAME TIME GRANTING WATER RIGHTS FOR NEW APPROPRIATIONS AND ISSUING STATEMENTS OF WATER AVAILABILITY FOR OTHER PLAINTIFFS, NEW PERMITTEES, AND OTHER WATER RIGHTS HOLDERS. SUn1n1my ofArgument The Commission's April 20, 2010 Order IS based on an erroneous construction of Texas Water Code § 11.046(c) peliaining to the availability of return flows for re-appropriation; and is based on an unlawful procedure. The Commission's construction of Texas Water Code §11.046(c) is erroneously in that it included a limitation on the availability of return flows for reappropriation that was not imposed on return flows by the Texas Legislature. This erroneous agency construction ofthe applicable law is not entitled to deference by this court. Further, the Commission's Order then unlawfully reserves these return flows that should have been available to the Plaintiff, for the benefit of a subsequent, pending applicant. Argument The Commission's April 20, 2010 Order denying Plaintiffs amendment application is made through the unfair and unlawful procedure of denying some Plaintiffs Brazos River Basin access to water available for appropriation in the APPELLANT'S BRIEF PAGE 33 form of return flows or updated information on water availability. Texas Water Code § 11.046(c) states: § 11.046(c). Except as specifically provided otherwise in the water right, water appropriated under a permit, certified filing, or certificate of adjudication may, prior to its release into a watercourse or stream, be beneficially used and reused by the holder of a permit, certified filing, or certificate of adjudication for the purposes and locations of use provided in the permit, certified filing, or certificate of adjudication. Once water has been diverted under a permit, certified filing, or certificate of adjudication and then returned to a watercourse or stream, however, it is considered surplus water and therefore subject to reservation for instream uses or beneficial inflows or to appropriation by others unless expressly provided otherwise in the permit, certified filing, or certificate of adjudication. (Emphasis supplied) The Commission's order, which recogmzes the presence of "the full amount [421,449 acre-feet of water per year] of BRA's requested return flows," but also denies that 150 acre-feet of water is available for Plaintiff's continued appropriation, is founded upon unlawful procedure. Plaintiff asserts that the Executive Director's and TCEQ's erroneous interpretation of §11.046(c) is not subject to the usual substantial evidence review by this court because it is clearly a question of law and the TCEQ's interpretation is not entitled to a presumption of validity [Entex v. Railroad COl11m., Texas, 18 S.W.3d 858, 862 (Tex. App. - Austin 2000, pet.denied); Dodd v. Meno, 857 S.W.2d 575, 576 (Tex.App. - Austin 1993), APPELLANT'S BRIEF PAGE 34 affd on other grounds, 870 S.W.2d 4 (Tex. 1994)] The Texas Water Code and Commission rules do not provide for reservation of state water available for appropriation to ji/ture Plaintifft. There is no law or rule, and consequently no legal justification for the Commission's actions denying a requested appropriation for Ware Farm while granting or providing documentation to support granting, perpetual or long term permits for other later applicants and future appropriators. Moreover, the arbitrary limitations that the Executive Director placed on the availability of retulU flows for re-appropriation is not supported by the law or even the potentially changing position of the TCEQ on the proper appropriation of retulU flows. The Executive Director's witnesses testified that Plaintiffs application was not reviewed assuming that retulU flows upstream of Mr. Ware's diversion point were available for re-appropriation 14 • Dr. Alexander testified that the Executive Director asselis that retulU flows are available for re-appropriation only to the entity that discharged such retulU flOWS 15 • Plainly, this qualification on the availability of retulU flow for re-appropriation is not contained in §11.046(c), cited herein. The consideration of a pending application of a non-patiy applicant and use of such legally irrelevant factors is evidence that the TCEQ's Denial of Plaintiffs application was arbitrary and capricious. [See City of El Paso v. Public 14 (See Exhibit D, Tr. Vol. 1 p. 109 line 6 - 110 line 8; Clerk's Record p. 112-133 and pp. 134 line 9 -154 line 24; Clerk's Record p. 125-145) 15 (See Exhibit J, Tr. Vol. 2 p. 377 line 10 - 379 line 8; Clerk's Record p. 224-226) APPELLANT'S BRIEF PAGE 35 Utility Com'n. of Texas, 883 S.W.2d 179, 184 (Tex. 1994)] Further, it is evidence that the agency's final order is characterized by an abuse of discretion or a clearly unwarranted exercise of discretion [Tex. Gov't Code §2001.174(2)(F); Berkley v. Railroad Commission of Texas, 282 S.W.3d 240, 242-244 (Tex.App - Amarillo 2009, no pet.h.); Langford v. Employees Retirement System of Texas, 73 S.W.3d 560, 564-565 (Tex. App. - Austin 2002, pet. denied); TGS - NOPEC Geophysical Company v. Combs, 268 S.W.3d 637, 651-652 (Tex. App. - Austin 2008, pet. filed)] In addition the Executive Director's erroneous interpretation of §11.046(c) is at odds with BRA's position in the pending application that the TCEQ references in its Final Order. BRA seeks all available return flows in its pending application. Since the issuance of the TCEQ's Final Order in Mr. Ware's case, BRA's application has been heard, considered by the Commission, and remanded to the ALJ's for further hearing. The Administrative Law Judges who heard BRA's application in Brazos River Authority's System Operation Permit Application No. 5851 ("BRA Application No. 5851") issued a proposal for decision with a construction of §11.046(c) consistent with BRA's and Plaintiff's interpretation of § 11.046(c). The ALJs concluded that the Executive Director's interpretation was erroneous and in conflict with the plain language of the statute. See excerpts of the Proposal for Decision, BRA Application No. 5851, attached as Exhibit I; Clerk's Record p. 197-222. APPELLANT'S BRIEF PAGE 36 The real reason the TCEQ determined that there is no water available for Mr. Ware is because the TCEQ Staff has construed the law to exclude return flows as a basis for a new appropriation under certain unspecified and uncodified conditions. The TCEQ may wish to invoke the protections of "substantial evidence review" and point to the "more than substantial evidence" to support its order; but the lynch-pin of the TCEQ's argument is its construction of the controlling statutOlY authority: § 11.134(b) and, consequently § 11.046 of the Texas Water Code. Therefore, the TCEQ's Final Order in Mr. Ware's application is not entitled to the deference ofthis Court. [Entex v. Railroad Comm., Texas, 183 S.W.3d 858, 862 (Tex. App. - Austin 2000, pet. denied); Dodd v. Meno,857 S.W.2d 575, 576 (Tex. App. - Austin 1993, affd on other grounds, 870 S.W.2d 4 (Tex. 1994)] The case-law is clear: a court reviewing a state agency's construction of controlling statutory authority is entitled to substitute its interpretation of the law for that used by the state agency. (Entex, supra) Moreover, it is important that this court provide its construction is a matter of first impression. As noted in the proposal for decision in BRA's actual pending application [SOAR Docket No. XXX-XX-XXXX; TCEQ Docket No. 2005-1490-WR; On Re: Concerning the Application by the Brazos River Authority for Water Use Permit No. 5851 and Related Filings] (A relevant excerpt was attached as Exhibit I to Plaintiffs Initial Brief), the issue of the appropriate use of return flows is a matter "in play" still under consideration and APPELLANT'S BRIEF PAGE 37 subject to interpretation at the TCEQ. The legal construction of Texas Water Code, § 11.046(c) is crucial to Mr. Ware in his application and this appeal. The importance of fair and accurate water availability analysis by the Commission, has its basis, not only in the Texas Water Code, but also in principles of fundamental fairness, and prohibition against property deprivation without compensation or due process, under the Constitution of the United States of America and the Texas Constitution. Water rights are propeliy rights, and the termination or denial of those rights without just cause or fair compensation amounts to an unauthorized use of the State's police powers. The Commission, in every water rights case, must act in a just and reasonable way. Reliance on erroneous or outdated data, refusal to apply facts as dictated by statute, operating in accordance with non-existent rules and procedures unlawfully compromise the Commission's water rights regulation. Above everything, Plaintiff should not be denied under Commission procedures which determine water availability based on unspecified procedures and non-public rules which favor some Plaintiffs over others without regard to the statutory mandate, "As between appropriators, the first in time in the first in right. 6. POINT OF ERROR NUMBER SIX. THE DISTRICT COURT ERRED IN FAILING TO FIND THAT THE COMMISSION'S APRIL 20, 2010 ORDER ADOPTED FINDINGS OF FACT APPELLANT'S BRIEF PAGE 38 PERTAINING TO A PENDING NON-PARTY APPLICANT; MOREOVER, THE DETAILS OF SAID PLAINTIFF'S PENDING APPLICATION AND PROPOSED APPROPRIATION WERE UNLAWFULLY USED AS A BASIS TO DENY PLAINTIFF'S WATER RIGHT APPLICATION. Summmy ofArgument The Commission's April 20, 2010 Order is unlawful and voidable on its face because is it based upon consideration given to a non-patty, pending applicant, to the detriment of the Plaintiff. Argument The Commission's April 23, 2010 Order contains Findings of Fact 45, 49, 50 and 51; which refer to the unidentified application of Brazos River Authority, a non-patty. These findings of fact regarding the ongoing contested application of a non-patty were used as a basis to deny Mr. Ware's application. Therefore, the Commission order violated Tex. Gov't. Code §2001.174(2) because the decision was made through unlawful procedure [§2001.174(2)(C)]; it was not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole [§2001.174(2)(E)]; and was arbitrary and capricious and was characterized by an abuse of discretion [§2001.174(2)(F)]. The referenced Findings of Fact Nos. 45, 49, 50 and 51 appear to refer to pending water rights BRA Application No. 585l. However, as of its April 14, 2010 consideration of the Proposal for Decision in Plaintiff's case, the Commission had yet to even consider that pending application in an open meeting lawfully convened pursuant to the APPELLANT'S BRIEF PAGE 39 Texas Open Meeting Act, Tex. Gov't. Code Chapter 551 et. seq. and, of course, had not rendered any final order granting all or any portion of BRA's proposed appropriation. [See Tex. Gov't. Code §2001.005(a)] On April 28, 2010, the Commission referred BRA's Application No. 5851 to SOAR granting the requests for a contested case hearing of several protestants. The hearing before SOAR is subject to the Texas Rules of Evidence in a non-jury civil trial. (See Tex. Gov't. Code §2001.081) BRA was not a party to Mr. Ware's application, and no witness on behalf of BRA was sponsored to verify any pOliion of Application 5851 or any other application filed by BRA. Even more impOliantly, Plaintiff was provided no oppOliunity to cross examine or otherwise determine the validity of any evidence associated with BRA's application or the supposed evidence which mayor may not support the Findings of Fact Nos. 45, 49, 50 or 51 in the Commission's April 20, 2010 Order. (See Tex. Gov't. Code §2001.087) Therefore, in denying Mr. Ware's application based on unsupported evidence from a pending application of a non-party, the Commission's April 20, 2010 Order amounts to a taking of Mr. Ware's property without the benefit of any procedural due process, in direct contravention of the Article XIV of the U.S. Constitution. In that regard, the Commission's order also violated the Texas Constitution, Art. 1, Sections 3 and 19, and Tex. Gov't. Code §2001.174(A). [See also Texas Citizens for a Safe Future and Clean Water v. Railroad Commission of APPELLANT'S BRIEF PAGE 40 Texas, 254 S.W.3d 492, 496-497 (Tex. App. - Austin 2007, pet. filed); Hernandez v. Meno, 828 S.W.2d 491,493-495 (Tex. App. - Austin 1992, writ den.)] There is little doubt about the damaging impact of the referenced findings on Mr. Ware's application. The most significant Findings of Fact Nos. 49, 50 and 51 were included in a section of the Commission's order labeled "Priority dates." In Findings of Facts 40 and 41 (which directly contradict the Commission Finding of Fact 47) the Commission established the importance of an Plaintiffs priority date in the Commission's determination of water availability. Then, the Commission directly compares BRA's alleged priority date to a less senior priority assigned to Mr. Ware's application (Finding of Fact 48) rather than the date included in his permit (Finding of Fact 46). In so doing, the effect of the Commission's order was to deny Mr. Ware's application in favor of another pending and undecided application. Moreover, the Commission's Finding of Fact 51 violates Tex. Water Code § 11.141 by implying that the pending BRA application had already resulted in a valid appropriation of water. That section ofthe Water Code provides: "DATE OF PRIORITY. When the Commission issues a permit, the priority of the appropriation of water and the claimant's right to use the water date from the date of filing of the application." (Emphasis supplied) Texas Water Code, §11.141 The agency's actions in adopting Findings of Fact 40,41,45,47,49,50 and 51 substantially prejudiced Plaintiff s substantial rights discussed herein, including APPELLANT'S BRIEF PAGE 41 his right to due process, and therefore Plaintiff is entitled to the reversal and remand of the TCEQ's decision [Tex. Gov't. Code §2001.174(2); Balla v. Texas State Board ofMedical Examiners, 693 S.W.2d 715-717 (Tex. App. - Dallas 1985, ref.n.v.e)] Plaintiff did not agree to use information about BRA's pending application or waive his objection to receipt of information about BRA's application into his hearing record. Plaintiff offered the Executive Director's 2008 Water Availability Review to the ALI for the limited purpose of establishing that it was the most current water available analysis performed by the Executive Director regarding the Brazos River Basin. In that review (Exhibit H; Clerk's Record p. 183-196) the Executive Director updated the Brazos WAM that had been used two years before in its review of Mr. Ware's application. The fact that the Executive Director found that 74,387 additional acre-feet of water per year was available in the Brazos River Basin using the same period of record as was used in Mr. Ware's Water Availability Review was relevant and probative information for the Commission's consideration of Mr. Ware's application. The fact that another applicant (or any other applicant) may have also applied for the water available for appropriation is irrelevant to any issue in this case. Plaintiff strenuously objected to the admission of any evidence about BRA's application during Mr. Ware's hearing for the reasons discussed herein. The Commission's inclusion of any information about APPELLANT'S BRIEF PAGE 42 BRA or its pending application is objectionable and unlawful and has no bearing on the question of water availability for Mr. Ware. VII. SUMMARY The Commission's April 20, 2010 Order denying Mr. Ware's application to appropriate 150 acre-feet of water per year from the Lampasas River, Brazos River Basin, violates the Texas Water Code, the Texas Constitution, and the Constitution of the United States and is voidable and reversible. Apart from being unlawful, the Commission's role in administering water rights is called into question when it denies a family farmer access to water available for appropriation in the Brazos River Basin for any term at all on the one hand, and supports contractual water rights, and issues perpetual permits for use of State water associated with return flows and updated streamflow conditions and data sets on the other hand. VIII. PRAYER FOR RELIEF WHEREFORE, CONSIDERING THE FOREGOING, Plaintiff asks the court to vacate the Texas Commission on Environmental Quality's unlawful April 20,2010 Order denying the Application of Bradley B. Ware to Amend his Permit to Appropriate State Water No. 5594, and remand the case to the TCEQ for further consideration of Plaintiff's application based on the evidence of record and the Texas Water Code and all applicable law; and for such other and further relief that Plaintiff may show himself to be entitled. APPELLANT'S BRIEF PAGE 43 Respectfully Submitted, WEBB & WEBB Attorneys at Law 712 Southwest Towers 211 East i h Street Austin, Texas 78701 (512) 472-9990 Telephone (512) 472-3183 Facsimile , bbwebblaw.com 0.21033800 GWENDOLYN HILL WEBB g.hill.webb@webbwebblaw.com State Bar No. 21026300 ATTORNEY FOR APPELLANT, BRADLEY B. WARE CERTIFICATE OF COMPLIANCE Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that this brief contains 10,260 words (excluding the caption, table of contents, table of authorities, signature, proof of service, certification, and certificate of compliance). This is a computer generated document created in Microsoft Word, using 14-point typeface for all text, except for footnotes which are 12-point typeface. In making this certificate of compliance, I am relying on the word count provided by the software used to prepare the document. APPELLANT'S BRIEF PAGE 44 CERTIFICATE OF SERVICE I hereby celiify that I have this I--~ r? day of ( ~ , 2015, ","«I .~~I,j J'I~''F~~ ~ ~~6.~ '" ::>d~ WOtn~e ~O .... ~M TEXAS COMMISSION ON ENVIRONMENTAL'QUAiXllijl . P,O, BOX 13088, MC-160 . Austin, Texas 78711-3088· '" Telephoue No, (512) 239-4691 FAX (512) 239:4770 APPLICATION FOR AMENDMENT TO AWATER RIGHT REQUIRING MAILED AND PUBLISHED NOTICE; or NOT REQUlRlNG MAILED lIND PUBLISHED NOTICE ReferenC§ AIDl.JJllJID(lftO'&''JI'll®m tOlHIllll,'Il'. N®. §'lrllKlf!lA:mI ~A\§A\@ l!!'.ILiYJ1lllllt 'lHtmll!Jlffi\V®lIJllt (lP'lffilE§Jl!lMlr WDlI'Jl'l[®:ru~,JI]j'' ' ' ,'®mlI!llEl1.(]@'lr§): ,1D®llJml'JY: -..-lJJ)lElljllJ (fJ1l!fl~ $. ll"llll.®lP'®§ID]lJl 1lJ)[ll.&1ll6illl!J§ 'Il'® \W.&Jl.'lEllll, 'lHtlI!litlHl'll' .A\1lJ'Jl'lHl®lffimA\.'Jl.')[®m§: Form TCEQ-10201(revis~d 8/02) ,. I .. . .' If lIJ'ffiID1IillI.It§'.l1.'A\lml 'll'~'ll' WIlDE .A\.G.lElNfIDW NlIA\.W JmIEl(U\IDmm .A\JIDlIlJ11'll'11fIDNI.&JL lIJ'IDF®Jm.NIIA\.'H'JH!IlNi lINI JmIElGA\.1Il!,ID) 'll'® '1l.'IDlllll lmIEl@l ,'§'ll'IEllIlJ ..8\.Nll.JlllN.IIJ)Jilll:IENI'll' lBlJlJlJF®JlJl,llJ] ID®M§11lIDRiIlmlINltG l'IlDr .A\JP'JP'lLlIcDA'lr11®M. !D. 11 llllA\WIDJ §1lJlHlNlIlI'll''ll.'llJ]JIJJ 'lrJBJJE) ffil,IElI!llllJIDlll,JEJIJJ lIJ'Jlilllll§ JflIIElJlR.iIlI'WlI'll'lBI. (§:mJ'lrJI®NI§ ~®!D. Jl. 3l JHlllIDlD. Jl. 3l1ID) ~§§ (Yl y JIIlA\.:&IDJ .A\.'ll' • (JIDY I ®lUJffi) 'll'EH§ _is_lIlJAW ®1F J( (.iIDUBII!'lLE, -=-J!--lfAc..\-\GD pJ'.>.6,5 Foe TInS CMRT--=t' I. Type of crop: Growing season (months): Acres irrigated/year: 1. 2. 3. 4. Total number of acres: \'52. Include hybrid crop names: for example, which type of coastal Bermuda? II On average, how much water in acre-feet will be diverted montllly for irrigation? January G May '21 September 20 TOTAL February 4 June Irl October 'I for all _ months March "3 July 25 November 5 April F") August 30 December 5 MONTHL y TOTALS ~o q3 31 150 m. Do YOIl seasonally or annually rotale crops? NO (circle one) If yes, please describe: WI-IE/.\\i Fo\,\JJFDRD CI..A'/- wELl DRAll0eD PRESEJV' e.oIVTOUR ThRRACE.D .AlJ:',D REfER Ttl 'TG'#S eooPE:RAI1\JE EXTE.I0SIO/J PU,6uCATlO/J B- \0'70 p.B. V. Describe the existing/proposed irrigation system including plans, designs and/or sketches of the system layout, pump location, slope of the land to be irrigated, and specifics about the delivery method. (For example: Single pivot with big gun sprinkler) SloPE; D tc:> 3 PERCE.Wr /OCUIJE1?Y UWDSR6RCU~D PVC PUMP c.APW1V 500 6.PM./pDJJ[.R UkllT 25 H. Po ELEcTRlC C6J'TER PI\JDr- L.ePA DSSISIJ (lOUJ El0E:.R6Y PREUSS ADPUCAllDIJ) w11!i A /xS161J E.FFE.C.IE.IS:.'f t>-'ilO\lE CJ5% DRA\\J/\J6 (;)(1-\1611-5 A)6,C,'l-D. TExf'S CODPERI\\l\lE EXTEI0S ID/V PuBUc'ATloJJ B -\loll / L-22 1,)7, l-5D~, B-loc;A"'1 tHo llo2. VI. Describe the methods and/or device which wllI be used to measure and account for the amount of water diverted for irrigation. CEhlTE.Q PIVDT J.JD2.ZlE C'.HART AfJD PLlMP ~ \C~~y CUR\Je G\IB rr B At-JI) Co 1 , Lo6 DF DPE.MlI0f.) HOu'Rs ~Hl3lT -1-1, VIr. If there's is an existing irrigation systcm~ any system evaluations been performed regarding the efficiency of the system? ~ NO (circle one) If YES. please indicate: . \ When: sEE AlTN:I:1ED TEXAS .A·t-M PLt5UCAllD\.) B-lfolO "I B(;'OI'j Who performed the evaluation: DR. !DIll LYLE -n;XM A'l- M E.iClill3li5 F'IG,/C.rtD05l~ AC81J1E:R PIVOT By GUY flPRS VIII. Describe any water conserving equipment used In the irrigation system. (I.e. closed pipes, leak detection, pressure loss cut-off valve, etc.) \11611-\ EF=FECIEf0CY, E.J£c:..-IRIC celJrRlFlcAl PU/JI.P,SEAlED AIJD - r (FRIC:nOJ-) ') PR-ESSuRE lEST€:D lOW ffiU/;,) CE:I0TER PI\laf: USIIJ::3 LOID DRIFT NOZZLES AND DRAilc>Z, B-bI50, B-focRb IX, Describe any methods which will be used for water loss control and leal, detection and repair. REbULA'R PRfSSLtRE TE..ST,, 'R£'PAI f2S MAC£. (,\SI/J(,;, AWROOCD X. Describe any water saving scheduling or measurement practices to be utilized in the application of water, for example: irrigation only early in the morning, late evening or night hours, when the wind is cairn and temperatures lower, and also the utilization of soil moisture monitoring·, Page 4 72 t·· , ' So N> MOIS1VR€ L8JELs ARE: MAI}JT.AII>'::£D FeR goP OCIJE.lCPM6'JI BUT NDT TD 111E PC>JlJf of Rv,wofFAUSt> , REFE.R 1P TEXAS CCOPEI'j,J B-lbIO. :;> e.-I 0701 B-0oIQ. 'TE.Y:As cooFERA'TI \.lEO E> 10 MAI/..)TAIN f!...T LEAST '30% G,ROfllJD COIlE.R 00 SOIL SUR.FACE:.1 XII. Describe any recovery and reuse of taUwater runoff. lRRI6ATlD0 vJlLl B( MDf\jffDREb 'SOTMf'\! SoiL WILL COfSlp..\10 SUFFtiTf::i..)T MDlS1DRE: FOR PRoPER CROP DE\lQoPMEi0f BUT 1'001 _IRRlt:iA.TC£) TO lliE. POIDT DF RU'i..iOFF, REFER -10 TEXI'S CroPE:RA1l1JE ~1D0 PLIBUcAl700 1.-:- 5D3Q. XIII. Describe, where appiicable, any xeriscape practices utilized (usually associated with landscaping) . Page 5 73 , , XIV. Indicate (in gallons-per-minute or cubic-feet-per-second) tl!e rate that water is diverted from the source: SOD G.'PM DR \.2. c.-Fs C:\FORM.S\10211l\1jXf (rcvisffl W5) Page 6 74 .~. 75 Exhibit B Applicant Bradley B. Ware's Motion for Rehearing SOAlI DOCKET NO. 582·08·1698 TCEQ DOCKET NO. 2008·0181·WR \ n>j II' \ 6 . '''~\I'"\l i _ IJ \ 1Nf'S MonON FOR REHEARING MAy 14, 20)0 PAGE 2 77 n. STATEl\fENT OF POINTS OF ERROR POINT OF ERROR NUMB:ER ONE The Commission's April 20, 2010 Order unlawfully ignores the evidence of record regarding the water available fol' appropriation by Applicant; therefore, the Commission's action in adopting the April 20, 2010 Order was arbitrary and capricious, and was characterized by an abuse of discretion. Po~rOFERRORNUMBERTWO The Commission's April 20, 2010 Order violates the directives and requirements of Texas Water Code, §11.1 34 (b), regarding Commission action on water rights applications. POINT OF ERROR NUMBER THREE The Commission's April 20, 2010 Order is in violation of the requirements of Texas Water Code, §11.l381, regarding the consideration and granting of water rights permits for a tenn of years. POINT OF ERROR NUMBER FOUR The Commission's April 20, 2010 Order violates the fundamental doctrine of water right~ law of "first in time, first in right," as set forth in the Texas Water Code, Chapter 11. POINT OF ERROR NUMBER FIVE The Commission acted arbitrarily and capriciously to deprive Applicant of any continued right to divert and use any water at any time for Ware Farm under Pennit No. 5594, an authorized appropriator, on the stated basis of no water available for appropriation, while at the Al'PLlCAN1"S MOTION FORJ1EBl;ARlNG MAY 14,2010 78 same tUne granting water rights for new appri>Priations and issuing statements of water availability fur other applicants, new pennittees, and other water rights holders. POINT OF ERROR NUMBER SIX The Commission's April 20, 2010 Order adopted of Findings of Fact pertaining to a pending .non-party applicant; Moreover, the details of said applicant's pending application and proposed appropriation were unlawfully used as a basis to dellY Applicant's water right application. APrLlCANr'S MOTION FOR REJlEARJNG MAv14,2010 PAG~4 79 m. POINT OF ERROR NUMBER ONE The Commission's April 20, 2010 Order unlawfully ignores the evidence of record regarding the water available for appropriation by Applicant; therefore, the Conunission's action in adopting the April 20, 2010 Order was arbitrary and capricious, and was characteriwl by an abuse of discretion. DISCUSSION The adopted Findings of Fact regarding water availability and "The reliability of the Model" in the Corrunission's April 20, 2010 Order are, on their face, inconsistent with each other, directly contrary to the evidence of record, and founded upon unlawful procedure. While the Commission is entitled to dmw an appropriate inference from tlle substantial evidence of record regarding water availability in the Brazos River Basin, the Commission is not entitled to abuse its discretiou by disregarding the existing evidence of record concerning :water availability in favor of outdated ovidence known to be inaccurate. There was much hand wringing during the Commission's consideration of Applicant's amendment application on April 14, 2010, and the Administrative Law Judge and the Connnissioners all Opilled that it was a sad and difficult decision that bad to be made to protect the water resources of the state. In fact, the Connnission's decision to deny Mr. Ware's applicalion to amend. Pennit to Appropriate State Water No. 5594 and terminate all water use thereunder should not have been made at all. On November 14, 2006, the Executive Director perfonned a water availability review of MI'. Ware's amendment application using the COllnllission's Brazos River Basin Water Avaiiability Model ("the· Brazos WAM') which was current and accurate at the tinle it was performed. See, Applicant's Exhibit No. 47, attached hereto. Two years later, however, the Executive Director preformw another water availability review of the Brazos River Basin using updated information which was not (Nailable at the time Mr. Ware's application was revieww. TIle Executive Director updatM the Brazos WAM's Current Conditions data set and found tl,at APPLICANT'S MonON FOR REHEARING MAy 14,:UllO PAGES 80 there was an additional 74,387 acre-feet per year available for appropriation in the BlazOS Rivet Basin. See, Applicant's Exhibit 50, also attached hereto. It is lmdisputed in the record thai Mr. Ware's amendment application did not benefit from the Executive Director's 2008 update of the Brazos WAM. The Executive Director's staff hydrologist, Jeffrey Charles Thomas, testified at the hearing that neither he nor anyone else in the Executive Director's office perfonned a water availability review of Mr. Ware's application, other than the One completed on November 14, 2006 and included in Applicant's Exhibit No. 47. TIle same witness also testified that no portion of the 74,387 acre-feet found to be available in the Brazos River Basin in 2008 and set forth in Applicant's Exhibit No. 50 was ever applied to Mr. Ware's application or the Executive Director's analysis of water availability for the Ware application. In considering the Applicant's arglUllent regarding water availability based on rctnrn flows and \lpdated infonnaiion, the Commissioners appeared to believe that their questioning of ColUlllission staff during the April 14, 2010 Connnission Agenda meeting regarding consideration of retnrn flows and water availability was a lawful substitute for the evidence of record. TIlis procedure is not lawful. The Commission's decision must be based on the evidence of record, not the earnest responses of Couunission staff at Agenda, which responses are not contained in the udministmtive record upon which the decision must be based. TCEQ staff hydrologist Kathy Alexander responded to Commission inquiries stating that the Executive Director had included the retnrn flows ShOWll Oll Applicant's Exhibit 50, attached hereto, in its consideration of water available for Applicant's proposed appropriation. 1bis statement is directly contl'ary to the testimony of TCEQ staff during the hearing, including Ms. Alexander, regardu;g the consideration of 74,384 acre..feet of water shown to be available in the updated Current Conditions data set of the Brazos River Basin Water Availability Model. The evidenoe of record, as shoWn in an excerpt of the official transcript, is set forth below. MrLlCANl"S MOTION FORRllHEAlUNG MAY 14,2010 'fAGE6 81 CROSS EXAMINATION OF JEFFREY CHARLES THOMAS, TCEQ HYDROLOGIST ON THEBRADLEYB. WAREAPPLlCATION Transcript, Bradley B. Ware SOAH Colllesied Case Hearing Ootober 28, 2009, Pages 149, 150: Q. Okay, the point is you didn't use \lllY portion ofthat additional water in the basin in your model? A. That's correct. Trans(:ript, Bradley B. Ware SOAH Contested Case Hearing October 28,2009, Page 149, 150: Q. Additional unappropriated water would benefit the entire basin, wouldn't it? A. Yes. Q. And so it doesn't matter whether it's above Stillhouse Hollow Lake, below it? It would benefit everyone, wouldn't it? A. It would benefit everyone downstream ofit and potentially thiit--yes, I can-say that it would benefit everyone in the basin, yes. CROSS EXAMINATION OF KATHY ALEXANDER, TCEQHYDROLOGIST EXECUm'E DIRECTOR'S REBUTTAL WITNESS ON THE BRADLEY B. WARE APPLICATION Transoript, Bradley B. Ware SOAH Contested Case Hearing October 29, 2009, Pages 378, 379: Q. . Okay. And so there were return flows available and you gave them a priority date of October 15,20047 A. Yes. Q. Okay. You meniioned that there were 74,387 acre-feet ofreturn flows resulting from different discharges up and down the Brazos River Basin determined to be available by TCEQ hydrology? A. Yes. Q. And those are the return flows that were given the October 15, 2004, priority date? A. Yes. APPLICANT'S MOTION FOR REIDlAR1NG MAy14,:20W 82 Q. Okay. And that-and none of those retUln flows, not any portion of them were allocated for use by Mr. Ware under either a 1997 priority date or any other priority date? A. The retum flows were considered and - Q. Yes or no, Ms. Alexander. A. No. Therefore, to the extent that the Commission's April 20, 2010 Order contains Findings of Fact whlch state that water is not available for continued appropriation in the Brazos River Basin, under the Brazos WAM, they are not reasonably supPOlied by substantial evidence when considering the record as a whole. Applicant's Exhibit No. 50 shows that 74,387 acre-feet of water per year are available in the Brazos River Basin in the latest version of the Brazos River Basin Water Availability Mode!.' Texas law does not confer upon the Commission discretion to disregard the evidence of record. Tex. Gov't Code, §2001.l74(Z)(E) requires a reviewing court to reverse an order of the . Commission that is not reasonably supported by substantial evidence considering the reliable probative evidence in the record as a whole. The only reliable evidence is that Mr. WffrC'S application never received a water availability review which referenced the amount of water now known to be available for appwpriation in the Brazos River Basin. The Commission's reliance on the outdated water availability infonnation included in Applicant's Exhibit No. 47, lmown to be superseded by more reliable ruld updated information in Applicant's Exhibit No. SO deprives the Commission's April 20, 2010 Order of any legitimacy under the law and constitutes an obvious abuse of the Commission's discretion. I The Commission was only willing to lIse the evidence of water availability tlllder the Brazos WAM In favor of an appHcation filed by Brazos River Au!horlty, as shown in its adoption ofFlndfngs of Fact No-s. 42-52, MrUCANT's MOnON FOR RElreARJNG MAY 14, 2010 PAGE 8 83 IV. POINT OF ERROR NUMBER TWO The Commission's April 20, 2010 Order violates the directives and requirements of Texas Water Code, §11.134 (b), regarding Commission action on water rights applications. DISCUSSION Pertinent requirements of Texas Water Code, §11.134(b) are: (b) The Commission shall grant the application only if: (I) the application comonns to the requirements prescribed by this chapter and is accom!>anied by the prescribed fee; (2) unappropriated water is available in the source of supply; (3) O,e proposed appropriation: (A) is intended for a beneficial use; (B) does not impair existing water rights or vested riparian rights; (C) is not detrimental to the publio welfare; (0) considers any applicable environmental flow standards established under Sectio" ILl471 and, if applicabJe, the assessments perfonned uuder Sections 11.147(d) and (e) and Sections 11.150, 11.151, and 11.152; and (E) addresses a water supply need in a marmer Ihal is consislent wilh the state water plan and the relevanl approved regional water pJan for any area in which the proposed appropriation is located, unless the commission determines that conditions warrant waiver oftbis requirement; and (4) the applicant has provided evidence that reasouabie diligence will be used to avoid WOSle ""d achieve water conservation as defrned by Section 11.002(8)(B). The Findings of Fact and Conclusions of Law in the Commission's April 20, 2010 Order do not address the requirements of Texas Water Code, §11.134(b). To the extent that the Conclusions of Law ultimately denying Application No. 5594A flow from the Findings of Fact regarding water available for appropriation in the Brazos River Basin are not reasonably supported by substantial evidence when considering the record as a whole; are arbitrary 01' capricious or APPLICANT'S MonON FOR Rtll£.\llJNG l\1AY14,2010 PAGEY 84 characterized by abuse of discretion or clearly unwarranted exercise of discretion, the Commission's April 20, 2010 Order also violates Texas Water Code, §11.134(l;» as well. The Commission's Order states: 44. The addition of "new water," [return flows] if it were proved to exist, would be subject to all prior appropriation rights of sealor water rights holder and could not be treated as available for neW allocation. Finding of Fact No. 44 presents an unlawful inte.rpretation of Commission requirements under Texas Water Code, §11.l34(b), which is only highlighted by the subsequent contradictory finding that: 45. The full amount [described in Finding ofFact No. 49 as 421,449 acre-feet of water per year] of the Brazos River Authority's requelNT'S MonON FoR REIlEAlUNG MA1(14,2010 PAGElS 90 20, 2010 Order then, effectively supports the unlawful allocation of water to the parties to this agreement in violation of Texas Water Code §11.027. Other parties who "settled with BRA," include the City of College Station and the City ofBtyan. Consequently, the Commission's April 20, 2010 Order is founded upon the unquestionably unlawful procedme of allowing a water rights holder to determine the allocation of Slate water available for appropriation. Consequently, the Commission's April 20, 2010 Order denying Applicant's amendment application is madc through the unfair and unlawful procedure of denying somo Applicant's access to water available for appropriation in the fonn of return flows or updated information on water availability. Texas Water Code §11.046(c) states: §11.046(c). Except as specifically provided otherwise in the water right, water appropriated under a permit, certified filing, or certificate of adjudication may, prior to its release into a watercourse or stream, be beneficially used and reused by the holder of a permit, certifieINT'S MOTION 1'01AJUNG lVU.Y 14,2010 PAGE 19 94 purpose of establishing that it was the most current water available analysis performed by the Executive Director of !lie Brazos River Basin. )ll that review (App. Ex. 50) the Executive Director updated the Brazos WAM that had been used two years before in its review of Mr. Ware's application. The fact that the Executive Director found that 74,387 acre-feet afwater was available in the Brazos River Basin using the same reliod of record as was used in Mr. Ware's Water Availability Review was relevant and probative infonnation for the Commission's consideration of Mr. Ware's application. The fact that another applicant (or any other applicant) may have also applied for the water available for appropriation is il1'eievant to any issue in this case. Applicant strenuously objected to the admission of any evidence about BRA's application during Mr. Ware's healing for the reasons discussed herein. The Commission's inclusion of any information -about BRA or its pending application is objectionabJe and unlawful. APrLIcANT's MonON Foll. RE[jE~RING lV/Ay14,2010 PAGE 20 95 IX. SUMMARY The Commission's April 20, 2010 Order denying Mr, Ware's application to appropriate 150 acre·feet of water per year from ilie Lampasas River, Brazos River Basin. violates the Texas Water Code, ilie Texas Constitution, and ilie Constitution of ilie United States and is voidable and reversible. Apart from being unl"v,ful, ilie Commission's role in administering water rights is called into question when it denies a family fatmer access to water available for appropriation in ilie Brazos River Basin for any term at all on ilie one hand, and supports contractual water rights, and issues perpetual penni!s for use of State water associated wiili retum flows and updated streamflow conditions and data sets on ilie oilier hand. Applicant requests ilie Commission rehear this caSe and reverse its unfau' and unlawful decision. Al'~LlCI>NT'S MOTION FOR REIJEAlUNG M'Av14.2010 PAGE 21 96 WHEREFORE, CONSIDERING TIlE FOREGOJNG, Applicant asks the Texas Commission on Environmental Quality to vacate its unlawful April 20, 2010 Order denying the Application of Bradley B. Ware to Amend his Permit to Appropriate State Water No. 5594, and issue lawful order based on the evidence of record and tile Texas Water Code and all applicable law which grants Applicant a right to divelt and use 150 acre-feet of water per year for agricultural purposes at Ware Farm, a Texas Century Farro, in accordance with the Commission's updated detenninations of water availability in the Brazos River Basin. Respectfully Submitted, WEBB & WEBB Attorneys at JAlW 712 Southwest Towers 211 Bast 7fi1 Street Austin, Texas 78701 (512) 472·9990 Telephone (512) 472-3183 Facsimile Stephen P. Webb State BarNo. 21033800 Gwendolyn I Webb State BarNo. 21026300 ATI'ORNEYS FOR APPLICANT, BRADLEY B. W ARB ~LICANr'S MonON Fon REltEhlUNG l\1hv14,2010 PAGE 23 98 Exhibit C J nne 7, 2006 Letter from BRA regarding Conditions of Withdrawal of Protest Bickerstaff, Heath, Pollan &Caroom, L.L.P. 816 Oollgre" Avenu. Sull. 17\10 Austin, Texas 18101 (512) 412-8021 Pax (612) 3UJ.5638 www.blck....t.ff.c<>m June 7, 2006 ~, -.,} App. Exh. _ f..( , __ 2 Q;~ 0 2: Via Hand DelivelY q:j fo" n"-:; ~ ~~ Ms. LaDonns Castaiiuela Office of the Clerk, MCI05 OPA \\ RK Bruce Wasinger via electronic mail: Bickerstaff Heath Delgado Acosta LLP 3711 South MoPae Expressway LaDonna Castaiiuela Builcling 1, Suite 300 Texas COlIUllission on Environmental Quality Austin, Texas 78746 Office of Chief Clerk MC-l 05 P.O. Box 13087 FOR THE EXECUTIVE DIRECTOR Austin, Texas 78711-3087 via electronic mail: Shaua Horton, Staff Attorney * James Aldredge, Staff Attorney . * The Honorable Paul Keeper Administrative Law Judge Texas Commission on Em1romnental Quality State Office of Administrative Hearings EnviroIUnental Law Division MC-173 P. O. Box 13025 P.O. Box 13087 Austin, Texas 78711-3025 Austin, Texas 78711-3087 • Courtesy Copy via inter-agency mail ., .. 148 149 TEXAS COMMISSION ON ENVIRON1Y1ENTAL QUALITY I'HIHlli\Tt;; OI'TEl(AS eOUNW 61"'flllAVI!l II\?IOO( tertijy inal this ~ .1"'6 .00 Mfll!i1\f&1?ll\ ''" '!>"""'J r~~.'l ('.ornrnl~l;i!Jn on (!_nvifooment~! QualitY AN ORDER Concerning the Application of nradlcy B. Ware to amend wlIter llse Permit No. 5594; TCEQ Docket No. 2008-0181- 'WR; SOAli Docket No. XXX-XX-XXXX On April 14, 2010, the Texas Commission on Environmental Quality (TCEQ of Commission) considered the application (Application) of Bradley B. Wru'e to Amend Water Use Pennit No. 5594 (Pennit). A Proposal for Decision (PFD) was presented by Pan! D. Keeper, an Administrative Law Judge (ALJ) with the State Office of Administrative Hearings (SOAH), who condncted a hearing in this case from October 28 through October 29, 2009, in Austin, Texas. After considering the AU's PFD, the Commission adopts the following Findings of Fact atld Conclusions of Law: 1. FINDINGS OF FACT General Findings· 1. The applicant is Bradley B. Wru·e. Mr. Ware owns a 261-acre farm ou the Lampasas River, about 15 miles southwest of Killeen, Texas. 2. Mr. Ware's street and mailing address is 911 Gann Branch, Killeen, Texas 76549. 3. Mr. Ware's farm is located in Bell County, Texas, fUld is within the Brazos River basin. Iiistory o/tlte Perlltit 4. On November 7,1997, the Commission issued Mr. Wru'c the Penni! for a ten-year tenn. .~. .',: ', .. ~"- 150 5. The Pertnit authorized Mr. Ware to diver! and use 130 acre-feet of water annually fi'om the Lampasas Ri verto irrigate 100 acres, 6. The Permit also established July 1, 1997 as "the priority date of this pennit and all extensions hereof ...." 7. The Pelmit was to expire on November 7, 2007, unless before that date, Mr. Ware received the Commission's approval to extend the term or to convert the Permit to a . perpetual right. .8. Mr. Ware's rights lIllder the Permit remained in effect pending a final administrative ruling on the Application. 9. During the 1;\'1elve years in which Mr. Ware has had irrigation rights, he has fmmed hay, plUUpkinS, wheat, sorghum, oats, and winter peas. to. Mr. Ware has tried to impound his water by installing six or seven eruthcn tanks, but the composition of the solllimits the runount of water that the tanks will retain. 11. Mr. Ware has purchased 100 acre-feet of water rights and installed 8,000 to 10,000 feet of two-inch pipes, pIns an eight-inch pipe to a central pivot system. 12. On November [5,2005, Mr. Ware timely filed his Application to: (1) either extend his Pennit for another ten-year period or convert his Permit to a perpetual right, (2) withdraw 20 more acre-feet of water annually, and (3) lITigate 31 more acres of his fann. 13. On J31lUary 5, 2006, the ED determined that the Application was administratively complete. 14. On June 7, 2006, the Brazos River Authority contested the application. 15. On November 4, 2006, the ED's surface water availability and interstate compacts team completed a water availability review and detennined that there was not S\lfficient water available at the Applicant's location to support the requested demand. J6. On November 6, 2006, the ED recommended denial of the Application. 2 151 17. On January 8, 2007, 11'11'. Ware requested a contested case hearing at SOAR. 18. On January 25, 2008, the Commission directly referred the case to SOAR for a hearing Oil the merits. 19. On April 3, 2008, the SOAR administrative law judge (AU) convened a preliminary hearing and took jurisdiction. 20. On January 12,2009, the Brazos River Authority was granted the right to withdraw as a protesting party. 2), On 0c;tober I, 2008, the AU issued an order folloVi1ng a telephonic preheating conference and notified the parties that the hearing on the merits would be held March 18 through 19, 2009. 22. At the request of Mr. Ware, the hearing on the merits was rescheduled to convene October 29 through 30, 2009. ......... 23. The hearing convened on October 28, 2009, and adjoumed On October 29, 2009. The administrative record closed on December 21, 2009, after cloSing arguments and replies were Hled. ED's recommendatioll to dellY the Application 24. After Mr. Ware filed bis Application in 2005, the ED's Surface Water aIld Interstate Compacts Team determined that "little to no water" was available at Mr. Ware's diversion point on the Lampasas River, without regard to whether the amended Penni! would have a petpetual 01' limited telm. 25. The ED's Surface Water Availability and Interstate Compacts Team confirmed the hydrologist's conclusion in a water availability review memo that calculated that insufficient water was availabJe at Mr. Ware's diversion point to support even the original 130.acre-feet of term-limited appropriation rights. 3 ,/.,' .. ~', ," . .. ~ ~ 152 26. In recommending denial of the Application, the ED rI'lied Oll the Commission's Wate), Availability Model for the Bra7J)s River besin (Model). The calculation used a historical period of record of 1940 to 1997. 27. Although previous water availability models were developed and used by the Commission, the CUlTent Model has been in use since 2001. The Commission has relied on the Model in evaluating all applications fo), appropriative rights since then. 28. In evaluating the Applioation with the Model, the ED used a priority date of January 5, 2006, the date on which the Application was administratively complete. 29. The Model predicts that Mr. Ware's current request could be satisfied at a 100% level in none of the years and at least 75% in 5.2% of the years. Stand/fig 30. The evidence presented by the ED at the hearing on the merits was generated by the Commission or was offered to support the integrity of the Commission's underlying infonnation. The reliability of the Model 31. The Model is designed to be the most accurate method available to the ED without regard to the size of the request for water. 32. The design relies in part on the Model's use of a period of record. 33. The period of record gives the Commission a set ofhistoricnl boundaries ranging from the most severe basin-wide drought to the most severe flood periods ever recorded. 34. The historical period was developed by the Commission in conjunction with other state agencies and outside consultants. 35. The Model relies on afl applicant's particular location within a river basin to determine availability. 4 153 . 36. If an applicant's diversion point is located within a large drainage area, then the applicant would be able to rely on large stream flows and potentially greater water availability. 37. The Commission gathers information abott! streamflows by relying OJ) gauge information and data from otber sources. 38. v,'here gauge iuformatioll is unavailable, then the Commission may extrapolate information based on the readings a~ nearby gauging stations. This type of adjustment occurs during the creation of the naturalized flow data set. 39. Naturalized flow data has value to the Commission because it reflects the flows that would have occurred without the impacts created by hurnau diversions and storage of water. 40. The Model takes into account an application's priority date in evaluating a request. 41. The role of the priority date is to determine the seniority status of a particular appropriative right previously given by the Commission. 42. By examining an application in terms of period of record, location, and priority date, the ED is able to evaluate an application of any size in terms of tbe current conditions presented. 43. At this time, the inclusion of more recent gauge flow data would have no effect on the range of data reflected in the historical period of record used ill the Model. 44. The addition of "new water," if it were pi'oved to exist, would be" subject to all prior appropriation rights of senior water tights holder a~d could not be treated as available for new allocation. 45. The full amount ofthe Brazos River Authority's requested return flows become available only at the furthest downstream point in the basin; diversions at other points axe possible due to spedfic facts and circumstances of that application. 5 - .... 154 Priority dates 46, The priority date of Mr, Ware's CUITent Permit is July 1, 1997, and applies to "all extensions, , .. " 47, The priority date in the Pennit has no relation to applications for new permits or to any matter other than establishing when the permit holder began the approprIation of water or when the permit holder acquired the rIght to use the water, 48, The priority date of Mr. Ware's application was established on the date on which it became administratively complete, January 5, 2006, 49, The Brazos River Authority is seeking a permit from the Commission to appropriate an additional 421,449 acre-feet per year of unappropriated water, or several thousand times the amount that)\Jr, Ware is seeking authority to appropriate from the sanle river basin, 50, The priority date of the application of the Brazos River Authority is October 15, 2004, 51. . The priority date of the Brazos River Authority's application is earlier than that of Mr, Ware's application, 52, The ED engaged in no manipulation of the priority dates in recommending the denial of Mr, Ware's application,' II. CONCLUSIONS OF LAW 1, The Commission has jurisdiction oVer the determination of water rights in Texas rivers and streams, TEx, WATER CODE ANN, ch. 11. 2, Notice was provided in accordance with TEx, WATBR CODE ANN, § 11.132, 30 TEX, AOMIN. CODB (TAC) ch, 295, Bubch, C; and TEx, Gov, CODE ANN, §§ 2003,051 and 2003,052, 3, SOAH ha~ jurisdiction to conduct a hearing and to prepare a Proposal for Decision in contested cases referred by TCEQ, TEX, GOV, CODE ANN, § 2003.47, 6 155 4. The Application became administratively complete on January 5, 2006. TEx. WATER CODBANN. § 11.141 and 30 TAC § 297.44(c) 5.. The Application was processed and the proceedings described in this Order were conducted in accordance with applicable statutes and the rules of the Commission and SOAl!. TEX. WATERCODEANN,ch, 11; 30 TACeh. 80,1 TACeh. 155. 6. Mr. Ware held the burden of proof. 30 TAC § 80. 17(a). Mr. Ware did not meet his burden. 7. Any person may appear at a hearing at which the issuance of a permit is to be considered. TEx. WATBRCODEANN. § 11.133. 8. The ED is required to participate as a party in contested hearings relating to applications about water rights, 30 TAC § 80.108(b)(l). 9. The ED is required to represent the Commission in hearings that raise matters that affect the public's interest in the state's environment and natural resources, including matters that have been determined to be Jlollcies of the slate. TEx. WATER CODE ANN. § S.228(a). 10. In contested case permit hearings, the ED's presentation is limited to "the sole purpose of providing information to complete the administrative record." TEx. WATER CODE ANN. § 5.228(c). 11. In a contested hearing, the ED's presentation is limited to "information developed by the Commission .... " TEx. WATBR CODE ANN. § 5.228(a). J2. In a contested hearing, the ED may provide infonnatlon that opposes rul application, as long as the information is within the litnits of the law. TEX. WATER CODE ANN. § ILl33. 13. All parties to a contested case have the right to present a direct case and to cross-exrunine the opposing party's evidence. 30 TAe § 80.1 15(a). 7 '.. " ,~ ~.. 156 14. The ED has standing to appear as a party in this proceeding and was authorized to pmsen! the Commission's evidence and arguments ill opposition to Mr. Ware's case. 15. An applicant may request that au application be remanded to the ED for action as an uncontested matter if: (l) all timely hea1'ing reqnests have been withdrawn or denied or (2) all parties to a contested case reach a settlement so that no facts or issnes remain cOlltrovelted. 30 TAC § 80.101. 16, A heming was required in this case because the ED remained a party to a contested case after the Brazos River Authority withdrew its opposition and because there was not a settlement between the remaining parties. 17. Scientific testimony presented by a party must be offered through the testimony of an expert, and that testimony must be based on a reliable foundation. TEx. R. EvrD. 702. 18. A finder of fact is to determine the reliability of the evidence, and "[u)nreJiable expert testimony is not evidence." Gross v. Burt, 149 S.W.3d 213, 237 (Tex. App.--Fort Worth 2004, pet. denied). 19. To establish the reliability of an expelt's testimony, an offering patty must first establish the reliability of the analysis that the expert used in reaching his conclusions. Six nonexclusive factors are used in determining whether scientific testimony is reliable: (1) the extent to which the theory has been Or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert; (3) whether the theory has been subjected to peel' review and publication; (4) the technique's potential tate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the non-judicial uses that have. been made orthe theory or technique. 8 157 Gross v. Burt, 149 S.W.3d at 237, citing Merrell Dow Phm'ms.. Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997), cel'l. denied, 523 U.S. 1119 (1998) and E.l. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549,557 (Tex. 1995). 20. Mr. Ware did not establish that the method used by Mr. Jones, Mr. Ware's expert witness, was reliable. 21. The water of every flowing river in the State of Texas is the property ofthe state, and the Commission is the state's agent for the regulation oHts water. TEx. WATBR CoPE ANN. § 11.021(a). 22. The COlmnission has the authority to allow persons to appropriate state water for specific uses. TEX. WATBR COPE ANN. § 11.022. 23. The Commission may grant permits to applicants who seek to appropriate unappropl'iated state water. TEX. WATBR CODE ANN. § 11.124. 24. The amount of water for which the Commission may grant permits may not be more than is available. TEX. WATER CODE ANN. § 1l.023(e). 25. In 1967, the Texas legislature abandoned the state's former system of recognizing both riparian and appropriative rights. In re Adjudication of Water Rights of Brazos III Segment ofBrazos River Basin, 746 S.W.2d 207, 209 (Tex. 1988). 16. .In place of the fanner system, the legislature adopted "an orderly forum and procedure for the [Commission's] adjudication and administration of water rights." Brazos Ill, 746 S.W.2d at 209. 27. The Commission is required to "provide certainty in water management" by evaluating the state's major river basins. TEx. WATER CODE ANN. § 11.0235(d-2). 28. For all permits, the holder has the right to appropriate water only to the extent and for the purposes stated in the permit and subject to the protection of the holders of senior water rights. TEx. WATER CODBANN. §§ 1l.135(a) and 1351. 9 ~ '. :- " .' 158 29, An "appropriative dght" is the right to impound, divelt, store, take, or use a specific quantity of state water acquired by Jaw. 30 TAC § 297.1(4-), 30. The holder's rights to appropriate water may be affected by the amounts that the holder actually uses or can beneficially use, and "all water not so used is considered not appropriated," TEX. WATER CODE ANN. § 11.025, 31. If the holder of a permit does not beneficially use his water, then the right of approptiation is considered to be not perfected, TEX. WA1ER CODE ANN, § 11.026. 32, The Commission has discretionary authority to temporarily reallocate unperfected appropriative water rights to persons other than the regular permit holder. An applicant may seek a term permit, a permit that is issued for a term of years rather than in perpetuity, TEx. WATER CODE ANN. §§ 1l.1381(a) and 11.026. 33. A term pennit allows all applicant to use water rights that have not been perfected by the holders. A term permit creates derivative rights, not original rights, so that the maximum use of water maybe achieved. TEx, WATER CODE ANN. § 11.123. 34, The Commission may deny an application for a term pennit if the permit will jeopardize financial conunitments for water projects or if the pennit will prevent the holder of the senior appropriative right from beneficially using his rights during the period of the tcnn pennit, TEx. WATER CODE ANN. § 11.1381(b) and (c). 35. If the Commission approves a permit, then the rights that it confers are subordinate to any senior appropriative rights. TEX, [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4040688. Public record. Not legal advice.