# the Upper Trinity Regional Water District and Texas Commission on Environmental Quality v. National Wildlife Federation > Texas Court of Appeals, 1st District (Houston) · June 26, 2015 URL: https://www.frixlaw.com/law-library/cases/4058808 ## Case - **Court:** Texas Court of Appeals, 1st District (Houston) - **Decided:** June 26, 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/4058808 ## How later opinions describe it (automated extraction) - holding that “the evidence in the record actually may preponderate against the decision of the agency and nonetheless amount to substantial evidence” - holding that “the findings, inferences, conclusions, and decisions of an administrative agency are presumed to be supported by substantial evidence, and the burden is on the contestant to prove otherwise” ## Opinion text ACCEPTED 01-15-00374-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 6/26/2015 7:31:10 PM CHRISTOPHER PRINE CLERK No. 01-15-00374-CV IN THE FIRST COURT OF APPEALS FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS HOUSTON, TEXAS 6/26/2015 7:31:10 PM THE UPPER TRINITY REGIONAL WATER DISTRICT and CHRISTOPHER A. PRINE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Clerk Appellants, v. FILED IN NATIONAL WILDLIFE FEDERATION, 1st COURT OF APPEALS Appellee. HOUSTON, TEXAS 6/26/2015 7:31:10 PM Appealed from the 126th Judicial District CourtCHRISTOPHER of A. PRINE Clerk Travis County, Texas BRIEF FOR APPELLANT UPPER TRINITY REGIONAL WATER DISTRICT LAMBETH TOWNSEND State Bar No. 20167500 ltownsend@lglawfirm.com JASON T. HILL State Bar No. 24046075 jhill@lglawfirm.com ELIZABETH P. HERNANDEZ State Bar No. 24080942 ehernandez@lglawfirm.com LLOYD GOSSELINK ROCHELLE & TOWNSEND, P.C. 816 Congress Ave., Suite 1900 Austin, Texas 78701 (512) 322-5800 (512) 472-0532 (fax) ATTORNEYS FOR APPELLANT THE UPPER TRINITY REGIONAL WATER DISTRICT APPELLANT REQUESTS ORAL ARGUMENT TABLE OF CONTENTS Page TABLE OF CONTENTS.......................................................................................... ii INDEX OF AUTHORITIES.................................................................................... iv STATEMENT OF THE CASE..................................................................................1 STATEMENT REGARDING ORAL ARGUMENT ...............................................2 ISSUES PRESENTED...............................................................................................3 STATEMENT OF FACTS ........................................................................................4 SUMMARY OF THE ARGUMENT ........................................................................9 ARGUMENT ...........................................................................................................10 I. The substantial evidence standard of review governs this appeal...................................................................................................10 II. The Commission reasonably interpreted Section 11.085(l)(2) of the Texas Water Code. ...............................................12 III. Substantial evidence supports the Commission’s decision to grant the permit. ..............................................................................13 A. A substantial evidence review standard is a high hurdle for NWF to cross. ..........................................................13 B. NWF does not overcome its burden of proof. ..........................14 C. Substantial evidence exists that the 2012 Water Conservation Plan will result in the “highest practicable levels” of conservation and efficiency. ..................16 1. The District reasonably relied on various sources of expert guidance to determine practicability. ..................................................................16 2. The District reasonably relied on Report 362 as an additional guidance in development of its water conservation plans............................................18 3. Other authorities turned to Report 362 for water conservation standards..........................................20 4. NWF failed to offer credible evidence discounting the District’s development of its water conservation plans. ...............................................22 ii D. Substantial evidence in the record demonstrates that the 2012 Water Conservation Plan is the most efficient “achievable within the jurisdiction” of the District.......................................................................................24 1. “Achievable within the jurisdiction of the applicant” is a subjective standard. ................................24 2. The District’s jurisdiction is that of a wholesaler. ......................................................................24 3. The District developed multiple water- saving procedures. ..........................................................25 4. The law recognizes the distinction between wholesale and retail suppliers for purposes of conservation, but NWF does not................................29 IV. The District has satisfied all applicable Commission rules in 30 Texas Administrative Code Chapter 288...................................30 A. NWF did not preserve error regarding Chapter 288 of the Commission’s rules. .......................................................31 B. The record nonetheless demonstrates that the 2012 Water Conservation Plan complies with Chapter 288 of the Commission’s rules. ................................................34 1. The 2012 Water Conservation Plan includes enforcement provisions...................................................35 2. The 2012 Water Conservation Plan details the five-year and ten-year targets. ..................................36 V. The substantial rights of NWF have not been prejudiced...................38 CONCLUSION AND PRAYER .............................................................................40 CERTIFICATE OF COMPLIANCE.......................................................................41 CERTIFICATE OF SERVICE ................................................................................42 INDEX OF APPENDICES......................................................................................43 iii INDEX OF AUTHORITIES Page Cases CenterPoint Energy Houston Elec., LLC v. Pub. Util. Comm’n, 212 S.W.3d 389 (Tex. App.—Austin 2006, judgm’t vacated w.r.m.).................30 City of El Paso v. Pub. Util. Comm’n of Tex., 883 S.W.2d 179 (Tex. 1994)....................................................................................................... 11, 14 City of San Antonio v. Tex. Water Comm’n, 407 S.W.2d 752 (Tex. 1966)..............................................................................................................14 Hamamcy v. Texas State Bd. of Med. Examiners, 900 S.W.2d 423 (Tex. App.—Austin 1995, writ denied) ........................................................34 Heritage on San Gabriel Homeowners Ass’n v. Tex. Comm’n on Envtl. Quality, 393 S.W.3d 417 (Tex. App.—Austin 2012, pet. denied) ...........................................................................................................14 Lone Star R.V. Sales, Inc. v. Motor Vehicle Bd. of Tex. Dep’t of Transp., 49 S.W.3d 492 (Tex. App.―Austin 2001, no pet.) ........................39 Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559 (Tex. 2000) .....................12 Pub. Util. Comm’n v. Gulf States Util. Co., 809 S.W.2d 201 (Tex. 1991)..............................................................................................................30 R.R. Comm’n of Tex. v. Pend Oreille Oil & Gas Co., 817 S.W.2d 36 (Tex. 1991) ....................................................................................................11 R.R. Comm’n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619 (Tex. 2011) ...................................................... 12, 30 R.R. Comm’n of Tex. v. Torch Operating Co., 912 S.W.2d 790 (Tex. 1995)....................................................................................................... 10, 11 Ramirez v. Tex. State Bd. of Med. Exam’rs, 995 S.W.2d 915 (Tex. App.—Austin 1999, pet. denied) ..................................................................30 State v. Shumake, 199 S.W.3d 279 (Tex. 2006) ......................................................16 Tex. Dep’t of Pub. Safety v. Varme, 262 S.W.3d 34 (Tex. App.— Houston [1st Dist.], no pet.) ..........................................................................23 iv Tex. Health Facilities Comm’n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446 (Tex. 1984)............................................................. 11, 13, 24, 39 United Sav. Ass’n of Tex. v. Vandygriff, 594 S.W.2d 163 (Tex. Civ. App.—Austin 1980, writ ref. n.r.e.)..............................................................39 Statutes Tex. Gov’t Code § 2001.174............................................................................. 10, 23 Tex. Gov’t Code § 311.011......................................................................................16 Tex. Gov’t Code § 311.021......................................................................................13 Tex. Gov't Code § 2001.171 ......................................................................................1 Tex. Gov't Code § 2001.174(2) .................................................................. 10, 38, 39 Tex. Gov't Code § 2001.174(2)(A)................................................................... 38, 39 Tex. Gov't Code § 2001.174(2)(B) ................................................................... 38, 39 Tex. Gov't Code § 2001.174(2)(C) ................................................................... 38, 39 Tex. Gov't Code § 2001.174(2)(D)................................................................... 38, 39 Tex. Gov't Code § 2001.174(2)(E) ................................................................... 38, 39 Tex. Gov't Code § 2001.174(2)(F).................................................................... 38, 39 Tex. Water Code § 11.022 .........................................................................................5 Tex. Water Code § 11.085 .................................................................. 1, 5, 15, 16, 24 Tex. Water Code § 11.085(l)(2)....................................................................... passim Tex. Water Code § 11.121 .........................................................................................5 Tex. Water Code § 11.1271 .....................................................................................19 Tex. Water Code § 11.134 .........................................................................................1 Act of May 20, 1989, 71st R.S., ch. 1053, 1989 Tex. Gen. Laws 4269 (1989 Act)............................................................................................. 4, 8, 25 Act of May 24, 1995, 74th R.S., ch. 494, 1995 Tex. Gen. Laws 3233 (1995 Act)............................................................................................. 4, 8, 25 v Act of April 20, 2001, 77th R.S., ch. 46, 2001 Tex. Gen. Laws 76 (2001 Act)............................................................................................. 4, 8, 25 Act of May 28, 2003, 78th Leg., R.S. ch. 688, § 1, 2003 Tex. Gen. Laws 2116 .....................................................................................................19 Rules Tex. R. App. P. 38.1(e) ..............................................................................................2 Tex. R. App. P. 39.1...................................................................................................2 30 Tex. Admin. Code Ch. 288 .............................................................. 31, 32, 33, 34 30 Tex. Admin. Code § 288.2..................................................................................29 30 Tex. Admin. Code § 288.5....................................................... 3, 9, 15, 29, 35, 40 30 Tex. Admin. Code § 288.7..................................................................................31 30 Tex. Admin. Code § 288.30(1) .......................................................................8, 27 30 Tex. Admin. Code § 288.30(10)(B)................................................................8, 27 30 Tex. Admin. Code Ch. 295 .................................................................................31 30 Tex. Admin. Code § 295.9............................................................... 31, 32, 33, 34 30 Tex. Admin. Code § 295.9(2) ...................................................................... 32, 33 30 Tex. Admin. Code Ch. 297 .................................................................................31 30 Tex. Admin. Code § 297.11..................................................................................5 30 Tex. Admin. Code § 297.18..................................................................................5 vi STATEMENT OF THE CASE This is an appeal of a district court judgment that reversed, in part, an order by appellant Texas Commission on Environmental Quality (the “Commission” or “TCEQ”) granting appellant, the Upper Trinity Regional Water District (the “District”), a permit for a reservoir and an interbasin transfer of water. After a contested case hearing, the Commission found that the District satisfied the requirements of Sections 11.085 and 11.134 of the Texas Water Code and granted a permit to construct Lake Ralph Hall and transfer water from the Sulphur River Basin to the Trinity River Basin. Appellee, National Wildlife Federation (“NWF”), filed a motion for rehearing and then appealed the Commission’s decision to district court pursuant to Section 2001.171 of the Texas Government Code. The District Court of Travis County held that the Commission erred in deciding that the District’s water conservation plan complied with Section 11.085(l)(2) of the Texas Water Code, and reversed and remanded that portion of the order to the Commission. The District filed this appeal seeking reversal of the decision of the district court to request that the Court affirm the Commission’s decision to grant the permit. On April 21, 2015, the Supreme Court of Texas ordered the case transferred from the Third Court of Appeals to this Court. 1 STATEMENT REGARDING ORAL ARGUMENT The District requests that the Court grant oral argument because this is a case of first impression. Specifically, this case represents the first time Texas courts have been asked to review the standard an applicant must meet to receive a permit for an interbasin transfer of water under Section 11.085(l)(2) of the Texas Water Code. This Court’s decision will have a significant impact on the future of water planning in Texas. Oral arguments would significantly aid the Court’s decisional process. Tex. R. App. P. 38.1(e); 39.1. 2 ISSUES PRESENTED 1. Does substantial evidence support the Commission’s decision that the Upper Trinity Regional Water District has developed and implemented a water conservation plan that will result in the highest practicable levels of conservation and efficiency achievable within the jurisdiction of the District, as prescribed by Section 11.085(l)(2) of the Texas Water Code? 2. Did NWF fail to preserve its argument that the District did not comply with Section 288.5 of the Texas Administrative Code? 3. Did NWF fail to demonstrate that its substantial rights have been prejudiced by the Commission’s order? 3 STATEMENT OF FACTS The Upper Trinity Regional Water District is a wholesale water provider in rapidly growing North Texas.1 The Texas Legislature created the District to provide reliable, treated surface water to the cities and utilities it serves.2 Its physical jurisdiction includes all of Denton County and portions of Dallas, Collin, Cooke, Grayson, and Wise counties.3 The District counts approximately 30 cities and utilities as members and customers.4 They each buy their water from the District and, in turn, sell it to retail end-users such as homeowners and businesses.5 In the next 50 years, the populations served by the District’s member cities and customers are expected to skyrocket—more than tripling to 850,000 people.6 The water needs of retail water users will increase by 250 percent during this same time.7 Conservation efforts alone will not offset this projected increase in 1 12 AR 154 at 13:20-14:4. 2 The District was created by three laws, which are referred to collectively in this brief as the “District Enabling Act” and attached as Appx. G. Act of May 20, 1989, 71st R.S., ch. 1053, 1989 Tex. Gen. Laws 4269 (1989 Act); Act of May 24, 1995, 74th R.S., ch. 494, 1995 Tex. Gen. Laws 3233 (1995 Act); Act of April 20, 2001, 77th R.S., ch. 46, 2001 Tex. Gen. Laws 76 (2001 Act) 3 12 AR 154 at 10:22-11:2; 154 at 11; 12 AR 155. 4 12 AR 154 at 14:6-8. 5 12 AR 154 at 10; 1989 Act §§ 20, 22. 6 12 AR 154 at 27:3-5. 7 12 AR 154 at 27:3-5; 18 AR 222. 4 demand.8 In fact, without a new reservoir, the District’s existing water supplies will be inadequate in less than 15 years.9 The District applied for a reservoir and interbasin transfer permit to meet long- term water demand. The District filed the application with the Commission to secure a water use permit for the Lake Ralph Hall reservoir project. The Lake Ralph Hall project will give the District a long-term, reliable, and low-cost water supply for the projected population in its service area and will allow it to meet its planning obligations.10 The Texas Water Code11 and Commission rules12 both require the District to first obtain a water use permit before the District can: (1) build the reservoir to impound water; and (2) transfer water from the Sulphur River Basin to the Trinity River Basin for beneficial use. The Commission approved both components of the application. NWF has appealed only the portion of the Commission’s decision to authorize the interbasin transfer. The District is situated within the area defined by the Texas Water Development Board (“TWDB”) as the Region C Water Planning Area.13 Each of the 16 regional water planning areas develop water plans specific to their 8 12 AR 154 at 27:7-8. 9 12 AR 154 at 24. 10 12 AR 154 at 28:18-30:4. 11 Tex. Water Code Ann. §§ 11.022, .121, .085. 12 30 Tex. Admin. Code §§ 297.11, .18. 13 18 AR 220. 5 respective regions, and the plans are then combined to create the State Water Plan. The 2011 Region C Water Plan includes findings and strategies to address the District’s urgent water supply needs.14 In the Region C Water Plan, the Lake Ralph Hall project is among the recommended management strategies15 to meet the District’s projected water supply shortfall.16 Channel erosion has damaged the environment at the site of the proposed reservoir. Lake Ralph Hall is a water-management project that not only is consistent with the Region C Water Plan and the State Water Plan, but it also promises to create aquatic and terrestrial habitats where they have been annihilated by nearly a century of channel erosion.17 In the late 1920s, landowners wanted to improve field drainage in the North Sulphur River watershed.18 To achieve their goal, they dredged a channel approximately 16 feet wide and 10 feet deep for almost 20 miles.19 The resulting channel was designed to serve as a surrogate for the naturally formed North Sulphur River.20 As a drainage tool, the channel was very 14 12 AR 154 at 24-25. 15 12 AR 154 at 38:6-13; 18 AR 230. 16 12 AR 154 at 24:23-25:3. The existing contract with Dallas will supply 26,412 acre- feet of water, which leaves approximately 74,000 acre-feet of shortfall to be met by new water supplies, including Lake Ralph Hall. Id. 17 17 AR 208 at 20:20-21:5; 18 AR 218 at 40:5-41:18; 19 AR 245-46 (attached as Appx. A). 18 12 AR 159 at 1-5. 19 12 AR 154 at 36:4-8. 20 12 AR 154 at 36:4-8. 6 effective at carrying away water, but it came with an unfortunate side effect: it immediately began to erode away the blackland prairie soils.21 Since the 1920s, nearly 14,000 acre-feet of soil from the man-made channel and watershed have been washed downstream.22 The erosion created a 40-mile channel that is 60 feet deep and 300 feet wide,23 and a sterile aquatic environment.24 The Lake Ralph Hall project will have a stabilizing effect on these massive erosional forces.25 It will help nature restore the environment and natural beauty taken by earlier channelization and the resulting erosion.26 The project will provide new habitat and food sources for animals while helping to stop, or significantly diminish, continued soil erosion.27 District conservation initiatives are limited to those of a wholesale, not retail, supplier. The District does not have a direct or contractual relationship with retail customers—that is, the end-users of water.28 These end-of-the-line retail customers are the households, businesses, and industrial entities that ultimately 21 12 AR 154 at 36:12-16, 39:13-16. 22 25 AR 382 at 2163:23-2164:2. 23 12 AR 154 at 36:19-23; Appx. A. 24 17 AR 208 at 20:20-21:5. 25 12 AR 154 at 39:18-20. 26 12 AR 154 at 39. 27 12 AR 154 at 39. 28 12 AR 154 at 14. 7 create the demand for water within the District’s service area.29 The Texas Legislature did not give the District authority to penalize retail water consumers for their water-consumption practices.30 Nevertheless, the District has leveraged the limited tools it does have to maximize conservation of every drop of water it develops for its member cities and customers.31 These efforts include prohibiting the use of “take-or-pay” contracts,32 structuring contracts around a water year rather than a calendar year to discourage increased water use during peak times,33 and reusing treated wastewater effluent.34 These and many other water-saving protocols are explained in detail in the District’s conservation plans.35 Water conservation plans must be developed and filed with the TCEQ no later than every five years. 30 Tex. Admin. Code §§ 288.30(1), (10)(B). The District revised its 2009 plan earlier than required, in September 2012.36 Since then, the District has been executing the plan as prescribed.37 29 24 AR 377 at 1011:15-24. 30 12 AR 154 at 47:22-23-48:1; 12 AR 163 at 10; District Enabling Act, attached as Appx. G. 31 12 AR 154 at 47:15-48:7. 32 12 AR 154 at 15:22-16:3. 33 12 AR 154 at 16:22-17:2. 34 12 AR 154 at 27:6-7, 43:16-17, 44:17-20, 45:5-8, 50:21-51:13. 35 12 AR 154 at 47:3-9. 36 12 AR 163 at 38. 37 12 AR 162; 23 AR 374 at 47:15-18. 8 SUMMARY OF THE ARGUMENT NWF challenges the District’s 2012 Water Conservation Plan on the ground that the District did not satisfy Section 11.085(l)(2) of the Texas Water Code. The portion of the statute relevant to this appeal reads: (2) the applicant for the interbasin transfer has prepared a drought contingency plan and has developed and implemented a water conservation plan that will result in the highest practicable levels of water conservation and efficiency achievable within the jurisdiction of the applicant. Tex. Water Code Ann. § 11.085(l)(2) (emphasis added). NWF seeks a one-size- fits-all litmus test that will fulfill Section 11.085(l)(2). The District contends that the “highest practicable levels achievable within the jurisdiction” standard in Section 11.085(l)(2) requires a fact-based, case-by- case inquiry. The District developed a water conservation plan that included the water conservation strategies that could reasonably be employed by a wholesale— not retail—water supplier in North Texas with the District’s unique member and customer base, and statutory tools. After considering the evidence, the Commission correctly determined the District met that standard. NWF also complains that the District’s plan could not have met the “highest practicable levels achievable within the jurisdiction” standard because it failed to comply with Title 30, Section 288.5 of the Texas Administrative Code—the Commission’s standard requirements for all water conservation plans. NWF’s 9 argument fails for two reasons. First, NWF failed to preserve the alleged error because it did not object to key findings reached and conclusions made by the Commission in its decision on the application. Second, the record contains substantial evidence demonstrating that the District’s 2012 Water Conservation Plan meets Commission requirements by describing its enforcement authority and explaining the bases for the District’s five-year and ten-year water conservation goals. Also, NWF has failed to demonstrate that its substantial rights have been prejudiced by the Commission’s decision and any of the alleged errors, which is a prerequisite to reversal by this Court under Section 2001.174(2) of the Texas Government Code. The Commission made a reasonable decision to grant the permit, and that decision is supported by substantial evidence. The Court should affirm the Commission’s decision and reverse the district court. ARGUMENT I. The substantial evidence standard of review governs this appeal. The Court must review the Commission’s decision under the substantial evidence rule, which is a limited standard of review that gives significant deference to the agency in its field of expertise. Tex. Gov’t Code Ann. § 2001.174; R.R. Comm’n of Tex. v. Torch Operating Co., 912 S.W.2d 790, 792 (Tex. 1995) (citing 10 Tex. Health Facilities Comm’n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446, 452 (Tex. 1984)). This Court is charged with determining the reasonableness of the agency’s order, not its correctness. City of El Paso v. Pub. Util. Comm’n of Tex., 883 S.W.2d 179, 185 (Tex. 1994) (citing R.R. Comm’n of Tex. v. Pend Oreille Oil & Gas Co., 817 S.W.2d 36, 41 (Tex. 1991)). In applying the substantial evidence rule, the Court may not substitute its judgment for that of the agency. Torch Operating Co., 912 S.W.2d at 792 (citing Charter Medical, 665 S.W.2d at 452). The Court is prevented from “usurping the agency’s adjudicative authority even though the court would have struck a different balance.” City of El Paso, 883 S.W.2d at 185 (citing Pend Oreille Oil & Gas, 817 S.W.2d at 41). Substantial evidence is more than a mere scintilla but less than a preponderance. City of El Paso, 883 S.W.2d at 185. Evidence in the record may actually preponderate against the decision of the agency, but nevertheless amount to substantial evidence. Id. In a substantial evidence review, the test is “whether some reasonable basis exists in the record for the action taken by the agency.” Id. The agency’s findings, inferences, conclusions, and decisions are presumed to be supported by substantial evidence. Charter Medical, 665 S.W.2d at 453. The party seeking to set aside the agency’s decision bears the burden of showing that it was not supported by substantial evidence. Id. It is a question of law whether the Commission satisfied the substantial evidence test; therefore, the 11 district court decision is not entitled to deference from this Court on this appeal. Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 562 (Tex. 2000). The focus on this appeal, as it was with the district court, is on the agency’s decision. Id. II. The Commission reasonably interpreted Section 11.085(l)(2) of the Texas Water Code. In its appeal to the district court, NWF asserted that the Commission misinterpreted Section 11.085(l)(2) of the Texas Water Code. The District disagrees. The statute required the District to show, in relevant part: (1) that it developed and implemented a water conservation plan and (2) that the plan will result in the highest practicable levels of water conservation and efficiency achievable within the District’s jurisdiction. Tex. Water Code Ann. § 11.085(l)(2). Based on the evidence presented, the Commission reasonably determined that the District fulfilled each requirement of Section 11.085(l)(2). A reviewing court must provide deference to an agency’s decision if the decision is reasonable and consistent with the plain language of the statute. R.R. Comm’n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 624 (Tex. 2011) (noting that Texas courts “have long held that an agency’s interpretation of a statute it is charged with enforcing is entitled to ‘serious consideration,’ so long as the construction is reasonable and does not conflict with the statute’s language,” and further noting that Texas courts “have stated this 12 principle in differing ways, but our opinions consistently state that we should grant an administrative agency’s interpretation of a statute it is charged with enforcing some deference”). A reviewing court must also presume that the Legislature intended the statute to be executed; it may not conclude that the statute presented an impossible hurdle for any permit applicant to clear. Tex. Gov’t Code Ann. § 311.021 (West 2013) (requiring that statutes be construed under the presumption that “a result feasible of execution is intended.”). The Commission interpreted Section 11.085(l)(2) to require a fact-based, case-by-case determination of whether the applicant’s water conservation plan met the standard required for an interbasin transfer. That interpretation is reasonable and consistent with the plain language of the statute. III. Substantial evidence supports the Commission’s decision to grant the permit. A. A substantial evidence review standard is a high hurdle for NWF to cross. The Court must presume that the Commission’s decisions are valid and that each finding, inference, conclusion, and decision the Commission made is supported by substantial evidence. See Charter Medical, 665 S.W.2d at 453 (holding that “the findings, inferences, conclusions, and decisions of an administrative agency are presumed to be supported by substantial evidence, and the burden is on the contestant to prove otherwise”). Substantial evidence is a high 13 bar for NWF to clear. If the record includes any reasonable basis whatsoever for the agency’s decision, the Court must affirm the agency’s decision. City of El Paso, 883 S.W.2d at 185. The Commission granted the permit and issued findings of fact and conclusions of law, all of which must be presumed valid. Regardless of this presumption, each of the Commission’s findings of fact are supported by substantial evidence. NWF cannot prove otherwise, which is its burden in this appeal. B. NWF does not overcome its burden of proof. A party mounting a judicial challenge to an agency decision must prove the absence of even a minute piece of evidence supporting the issue it challenges; in other words, it must prove that not even a scintilla of evidence exists to support the agency. City of El Paso, 883 S.W.2d at 185 (citing City of San Antonio v. Tex. Water Comm’n, 407 S.W.2d 752, 758 (Tex. 1966)) (recognizing the fundamental principle that “when . . . an appeal is governed by the substantial evidence rule, the orders of the [Commission] are presumed to be legal and valid, and the burden is on the party appealing from the Commission’s order to show that the orders are not reasonably supported by substantial evidence” (emphasis added)). Because the review is de novo, NWF maintains that burden of proof in this Court. Heritage on San Gabriel Homeowners Ass’n v. Tex. Comm’n on Envtl. Quality, 393 S.W.3d 417, 424 (Tex. App.—Austin 2012, pet. denied) (holding that the district court’s 14 judgment regarding substantial evidence “is not entitled to deference on appeal” and the “focus of the appellate court’s review, as in the district court, is on the agency’s decision.”). NWF challenges the Commission’s findings that the District met the standards under Section 11.085(l)(2) of the Texas Water Code. NWF also argues that the District did not meet the standards found in Section 288.5 of the Texas Administrative Code. In its motion for rehearing at the Commission and in its appeal to the district court, NWF argued that: (1) no adequate conservation plan exists; (2) the District has chosen the incorrect conservation standards; and (3) the District is not implementing the plan with appropriate vigor. Contrary to NWF’s contentions and arguments, substantial evidence in the record supports the Commission’s finding that the District fulfilled the prerequisites for an interbasin transfer under Texas Water Code Section 11.085 and Title 30, Texas Administrative Code Section 288.5. Substantial evidence does not require that the Commission make its decision based on a plan desirable to all parties. Here, substantial evidence does exist in the record to support the Commission’s decision because the District presented evidence that included detailed water conservation plans,38 new contract 38 12 AR 163. 15 language,39 contracts designed to encourage water conservation,40 implementation of the 2012 Water Conservation Plan,41 and more.42 In granting the permit, the Commission considered this probative evidence and assigned weight to it accordingly. Therefore, NWF fails to meet its burden under a substantial evidence standard. C. Substantial evidence exists that the 2012 Water Conservation Plan will result in the “highest practicable levels” of conservation and efficiency. 1. The District reasonably relied on various sources of expert guidance to determine practicability. The Legislature made a deliberate decision not to define “highest practicable levels” in statute, or direct the TCEQ to define the term. The Administrative Code and Section 11.085 of the Water Code do not define “practicable.” Where terms are not defined, courts must rely on the common usage and the plain meaning of the words chosen. See Tex. Gov’t Code § 311.011 (providing “words and phrases shall be read in context and construed according to the rules of grammar and common usage”); State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006) (“our primary objective is to determine the Legislature’s intent which, when possible, we discern from the plain meaning of the words chosen”). Section 11.085(l)(2) must 39 12 AR 154 at 16:15-21. 40 Id. 41 12 AR 154 at 15:22-16:3. 42 12 AR 154 at 14:11-17:20. 16 be interpreted with reasonableness, just as courts consistently interpret plain- language statutes with reasonableness. The plain meaning of the words demonstrate that the Legislature wanted to create a standard that could be assessed by the Commission according to its own merits and considering the individual circumstances. The Commission did so in this case by considering evidence from those who know the most about conservation, including experts in the water resources industry and water plans developed by experts. The Commission correctly used a reasonable standard, making a fact-based inquiry to determine that the District satisfied the applicable level of conservation. NWF wants the Court to impose a formulaic definition of “highest practicable” where even the Legislature refrained from doing so. Tex. Water Code Ann. § 11.085(l)(2) (West Supp. 2014). Tellingly, NWF has yet to disclose what formula it believes the Commission should have used in determining compliance with Section 11.085(l)(2). The District drew upon practical and technical expertise from sources that included its own customers, board members, the District Board’s Water Conservation Committee, District staff, engineering consultants, legal counsel, and Texas A&M AgriLife Extension Service agents.43 The result was the development of a comprehensive water conservation plan that was tailored for the 43 23 AR 374 at 46:13-47:14. 17 District and that took into consideration the District’s unique geography, circumstances, and position as a wholesale provider.44 At the contested case hearing, Tom Taylor, professional engineer and executive director of the District, testified on cross examination that “. . . we think the best experts are the . . . municipalities and utilities who have to make [conservation] work, and we think they are very much an expert in regard to these matters.”45 NWF did not rebut Mr. Taylor’s testimony. The Commission correctly rejected the call by NWF to create an objective test where one is not created under the law, finding that “highest practicable” is not a one-size-fits-all standard. 2. The District reasonably relied on Report 362 as an additional guidance in development of its water conservation plans. In following the clear direction from the Texas Legislature to develop and implement the “highest practicable levels” of conservation within the District’s jurisdiction, the District reasonably relied on Report 362 in selecting the water conservation measures that would lead to the highest practicable levels of water conservation achievable within its jurisdiction.46 Report 362, or the “Water Conservation Best Management Practices Guide,” is a guide published in 2004 by 44 23 AR 374 at 46:13-47:14. 45 23 AR 374 at 47:5-14. 46 24 AR 377 at 914:12-918:5. 18 the Texas Water Development Board.47 Its publication came the year after the Legislature instructed TCEQ and TWDB to collaboratively develop target goals for water conservation in Texas and model programs that “suggest best management practices for achieving the highest practicable levels of water conservation and efficiency achievable for each specific type of water supplier.”48 Act of May 28, 2003, 78th Leg., R.S. ch. 688, § 1, 2003 Tex. Gen. Laws 2116 (codified at Tex. Water Code § 11.1271); cf. Tex. Water Code § 11.085(l)(2). NWF argues that the direction from the Legislature and the subsequent development of Report 362 are coincidental. On the contrary, the two are closely related.49 At district court, NWF argued that if the District relied on Report 362, it must have either used all of it or, if the District did not use a certain element, explain why the District chose to exclude it.50 A reasonable interpretation of the statute requires nothing of the sort. Section 11.085(l)(2) does not require that the District’s 2012 Water Conservation Plan be consistent with Report 362, in whole or in part. The Legislature left it to the Commission to determine whether each 47 19 AR 260. 48 24 AR 377 at 913:14-25. 49 24 AR 377 at 911:24-914:5;999:13-1000:15, 1002:4-16. 50 CR 66-266 (Plaintiff’s Initial Brief, Oct. 16, 2014) at 17. 19 applicant could meet the standard based on each applicant’s circumstances, and the District did. Even if the Court were to determine that Report 362 was not developed in response to a legislative mandate, the District reasonably relied on the report in developing its 2012 Water Conservation Plan to satisfy Section 11.085(l)(2).51 NWF has not established that it was unreasonable for the District to rely on the guidelines found in Report 362 in developing a water conservation plan. The District’s witness, Mr. Gooch, testified that the District determined that it could best meet the “highest practicable” standard by embracing the applicable best- management practices articulated in Report 362.52 3. Other authorities turned to Report 362 for water conservation standards. The Region C Regional Water Planning Group (“Region C”) has studied closely the viability of water conservation plans in the region that includes the Lake Ralph Hall reservoir project, with the goal of achieving the highest practicable levels of water conservation and efficiency for water providers within the region.53 Region C is one of 16 water-planning regions in Texas, and it carries the distinction of incorporating more municipal water conservation and reuse than 51 24 AR 377 at 907:5-11; 914:12-915:2. 52 18 AR 218 at 82; 24 AR 377 at 914:12-915:1. 53 19 AR 261; 25 AR 380 at 1816:13-1817:5. 20 any other regional water plan in Texas, by far.54 Therefore, it is telling that Region C also turned to Report 362 in determining appropriate conservation practices, strategies, and goals for its region.55 The 2011 Region C Water Plan concluded that implementation of the best management practices in Report 362 “will provide for the highest practicable levels of water conservation and efficiency.”56 Mr. Gooch explained further that Region C relied on Report 362 for purposes of understanding the scope of Section 11.085(l)(2): . . . Region C feels that a water supplier should look at the best management practices laid out in Report 362, consider them carefully in light of its particular situation, and implement those that fit its situation. And if the supplier does so, they will achieve the highest practicable levels of water conservation and efficiency achievable.57 The District followed the direction of the Region C Regional Water Planning Group and looked to Report 362 for guidance in the development of its water conservation plan. Report 362 itself emphasizes the critical role that planning groups such as Region C play in determining best practices in water conservation. The report 54 18 AR 218 at 75:11-16, 76:18-77:15; 18 AR 238. (Tom Gooch testifying that “Region C has significantly more municipal water conservation and reuse planned than any other region of the state.”). 55 18 AR 218 at 83. 56 18 AR 218 at 83; 19 AR 261; 25 AR 380 at 1816:13-1817:5. 57 25 AR 380 at 1817:6-16. 21 explains that regional decisions in water conservation are the only effective way to plan:58 . . . the [Water Conservation Implementation] Task Force unanimously agreed that the BMP Guide must be in accordance with the state’s philosophy of region-based water planning. The Task Force firmly believes that applying a mandatory set of BMPs throughout Texas would not be appropriate. One size does not fit all in a state characterized by wide variations in climate, geography, municipal demographics, water utility and service profiles, and agricultural and industrial needs. State policies adopted to guide the implementation of water conservation in Texas must acknowledge the fundamental decision-making primacy and prerogative of regional planning groups, municipalities, industrial and agricultural water users, and water providers.59 Report 362 was reasonably relied upon by Region C, and it was reasonable for the District to rely upon it to help determine the best available methods of water conservation in the District’s jurisdiction. 4. NWF failed to offer credible evidence discounting the District’s development of its water conservation plans. NWF relies exclusively on the testimony of its witness, Chris Brown to support its position on water conservation. At the time of his testimony, Mr. Brown was the lead staff member in a California water conservation think tank that “support[s] and integrat[es] innovative technologies and practices; encourag[es] effective public policies; advanc[es] research, training, and public education; and 58 25 AR 380 at 1817:6-16. 59 19 AR 260 at 4 (emphasis added); 25 AR 380 at 1819:15-1820:4. 22 build[s] on collaborative approaches and partnerships.”60 Although the think tank may have valuable ideas for California, Mr. Brown admitted that he has no experience operating a water utility in California, Texas, or anywhere.61 He holds no technical licenses of any sort.62 He is not trained as an economist, an attorney, or an engineer.63 Nothing in the record demonstrates how Mr. Brown’s work is relevant to water conservation planning for a wholesale treated water supplier in the North Texas region. He offered no reliable testimony regarding the satisfaction of Section 11.085(l)(2) as related to the District—the only relevant entity in the application. The TCEQ was correct in assigning little weight to his opinion testimony, and NWF cannot use the judicial review procedures to compel reassignment of the weight. See Tex. Dep’t of Pub. Safety v. Varme, 262 S.W.3d 34, 38 (Tex. App.—Houston [1st Dist.], no pet.) (citing Tex. Gov’t Code Ann. § 2001.174 (“. . . a court may not substitute its judgment for the judgment of the state agency on the weight of the evidence on questions committed to agency discretion . . .”)). Even if Mr. Brown provided testimony that was probative of a material fact at issue in the contested case, his testimony would not erase the existence of contrary evidence found throughout the record supporting the 60 22 AR 357. 61 22 AR 358. 62 24 AR 379 at 1492:2-8. 63 24 AR 379 at 1491:18-1492:1. 23 Commission’s decision regarding Section 11.085(l)(2). Charter Medical, 665 S.W.2d at 452 (holding that “the evidence in the record actually may preponderate against the decision of the agency and nonetheless amount to substantial evidence”). D. Substantial evidence in the record demonstrates that the 2012 Water Conservation Plan is the most efficient “achievable within the jurisdiction” of the District. 1. “Achievable within the jurisdiction of the applicant” is a subjective standard. Arguably the most important language of Section 11.085(l)(2) is the modifying language that requires agency evaluation of water conservation plans that are “achievable within the jurisdiction of the applicant.” This requires taking into account the unique circumstances surrounding the application, in contrast to an objective test that NWF wants created. An applicant satisfies Section 11.085 if it meets standards that are “achievable within the jurisdiction of the applicant.” The Commission correctly interpreted Section 11.085(l)(2) as requiring the District to do what was reasonably possible under the District’s unique circumstances by analyzing the application under a localized, subjective standard.64 2. The District’s jurisdiction is that of a wholesaler. The District’s substantive jurisdiction is limited to that of a wholesaler, not a retailer. Unlike a retailer, the District does not possess regulatory control of the 64 24 AR 377 at 915:18-916:1. 24 end-user of its treated water supplies. This is an important distinction in the context of determining the level to which a water provider can be expected to affect water conservation.65 Appropriate conservation efforts for a wholesale supplier like the District differ from conservation efforts considered appropriate for a retail supplier like, for example, the City of San Antonio.66 Importantly, NWF never challenged this point. The Commission correctly analyzed the District’s efforts according to a wholesaler standard, within the bounds of the District Enabling Act. This Court should use the same analysis. 3. The District developed multiple water-saving procedures. The Texas Legislature has not given the District the authority to penalize water consumers for their water consumption practices.67 As a wholesale water supplier that deals with its wholesale customers through voluntary, arms-length contracts, the District is accordingly limited in its legal ability to affect water consumption behaviors by end-users.68 Working within these statutory limitations, the District has leveraged the limited conservation tools it does possess with the goal of maximizing water conservation.69 65 18 AR 218 at 67. 66 11 AR 151 (FOF 325, 326); 18 AR 218 at 67. 67 12 AR 154 at 47:22-23; 12 AR 163 at 10; District Enabling Act, attached as Appx. G. 68 12 AR 154 at 47:15-19. 69 12 AR 154 at 47:15-48:7. 25 For example, the District has deliberately avoided the use of “take-or-pay” contracts with its members and customers, which have a tendency to discourage water conservation.70 Take-or-pay contracts require the buyer to pay for certain amount of water each year, regardless of whether the full amount is actually needed. By requiring its members and customers to pay only for the volumes of water they actually use, the District has embedded a water conservation catalyst into its rate policy.71 In addition, the District has conscientiously employed a system capacity rate structure that was designed to force each of its members and customers to make “deliberate, sober-minded” choices on their projected water needs, discouraging over-subscription and, ultimately, the waste of water.72 Additionally, the District enters into contracts based on a “water year”—i.e., June 1 to May 31—rather than a calendar year.73 If a customer exceeds its contracted water use at any time during the water year, the customer’s water rate is increased and is applied to the entire water year.74 This method was designed to promote conservation of water by creating a financial disincentive for wholesale customers to use more water than their contracts allow during the peak water-use 70 12 AR 154 at 15:22-16:3. 71 12 AR 154 at 15:22-23. 72 12 AR 154 at 16:15-21. 73 12 AR 154 at 16:22-17:2. 74 12 AR 154 at 16:22-17:9. 26 times of the year.75 Additionally, the District invested its efforts and financial resources into the creation of the Upper Trinity Conservation Trust in 2010.76 The role of the trust is to support watershed protection initiatives with the goal of conserving existing water supply through watershed and water quality protection initiatives.77 Moreover, the District has worked toward maximizing its reuse of treated wastewater effluent.78 The District’s efforts to reuse this increasingly important source of water have saved it almost 10,000 acre-feet of water supply each year.79 That volume does not include the amounts of additional water reuse that the District plans to leverage from the Lake Ralph Hall project.80 The District anticipates, and the record reflects, that the same water-reuse trend will continue into the foreseeable future.81 These water-saving protocols, and others, are memorialized in the District’s water conservation plans.82 A water conservation plan must be developed and filed with the TCEQ at least every five years. 30 Tex. Admin. Code §§ 288.30(1), 75 12 AR 154 at 17:2-9. 76 12 AR 154 at 17:15-20. 77 12 AR 154 at 17:15-20. 78 12 AR 154 at 27:6-7, 44:17-20, 45:5-8, 50:21-51:13. 79 12 AR 154 at 43:16-17. 80 12 AR 154 at 45:5-8, 51:14-18. 81 12 AR 154 at 44:17-20. 82 12 AR 154 at 47:3-9. 27 (10)(B). The District incorporated revisions to its 2009 Water Conservation Plan when it adopted its 2012 Water Conservation Plan in September 2012, ahead of this five-year cycle.83 It is unreasonable for NWF to suggest that the full five-year plan should have been completed in the short time frame between September 2012 and the contested case hearing in January 2013. Importantly, NWF cannot point the Court to any law that justifies its criticism. Since the District implemented its 2012 Water Conservation Plan in September 2012, it has been executing the plan in the orderly way prescribed by the plan, right on time.84 Because of the lack of statutory authority to regulate the behaviors of retail water consumers through punitive action, the District Board’s Water Conservation Committee has worked through the years to develop what the District refers to as “mutually acceptable strategies” to achieve water conservation.85 The District’s water conservation plans, including its 2009 Water Conservation Plan and its 2012 Water Conservation Plan, have been appropriately structured based on the fact that its customers and members are the entities that can legally enforce conservation practices on retail water consumers within the District.86 83 12 AR 163 at 38. 84 12 AR 162; 23 AR 374 at 47:15-18. 85 12 AR 154 at 48:1-3. 86 12 AR 154 at 46:8-14, 48:3-5. 28 4. The law recognizes the distinction between wholesale and retail suppliers for purposes of conservation, but NWF does not. The law recognizes this practical distinction by creating different water conservation planning standards for wholesale suppliers and retail suppliers.87 E.g., 30 Tex. Admin. Code §§ 288.2, 288.5 (requiring different types of water conservation plans for different types of water suppliers). NWF conceded this point at the contested case hearing.88 Yet on appeal, NWF argues as though no distinction exists. The record demonstrates that wholesale suppliers have substantially different and fewer tools to impact water conservation than do retail water suppliers.89 NWF’s own witness was not able to identify a single wholesale water supplier in the entire state of Texas that could satisfy his and NWF’s interpretation of Section 11.085(l)(2) of the Texas Water Code.90 The Commission rightfully understood that Section 11.085(l)(2) was not designed to render the provision nonfunctional nor impossible to meet. The Commission was right to reject NWF’s arguments regarding the meaning of Section 11.085(l)(2) in the context of the application and to assign little weight to Mr. Brown’s opinion testimony. CenterPoint Energy Houston Elec., LLC v. Pub. Util. Comm’n, 212 S.W.3d 389, 87 18 AR 218 at 67; 22 AR 351 at 4. 88 24 AR 379 at 1486:7-21. 89 12 AR 154 at 9:21-23, 47:15-48:7; 18 AR 218 at 67. 90 24 AR 379 at 1488:16-1490:6. 29 399 (Tex. App.—Austin 2006, judgm’t vacated w.r.m.) (recognizing that a court affords an agency’s expertise substantial deference in interpreting the facts); Ramirez v. Tex. State Bd. of Med. Exam’rs, 995 S.W.2d 915, 919 (Tex. App.— Austin 1999, pet. denied) (citing Pub. Util. Comm’n v. Gulf States Util. Co., 809 S.W.2d 201 (Tex. 1991)) (noting that a court may not substitute its judgment for that of the agency as to the weight of the evidence). An agency’s reasonable interpretation of a statute is entitled to “serious consideration” by a reviewing court. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d at 624. Governmental agencies have a “unique understanding” of the statutes they administer. Id. at 629. The Commission’s interpretation of Section 11.085(l)(2) in the context of the application is reasonable, can practically be implemented, and, unlike the NWF interpretation, does not contradict the language of the statute. Therefore, this Court should reverse the district court decision and uphold the Commission’s interpretation. IV. The District has satisfied all applicable Commission rules in 30 Texas Administrative Code Chapter 288. In addition to its complaints regarding Section 11.085(l)(2) of the Texas Water Code, NWF contends that the Commission should not have approved the application or issued the permit because the District did not satisfy the Commission’s water conservation plan rules. NWF’s argument on this point is flawed for multiple reasons, each of which is discussed below. 30 A. NWF did not preserve error regarding Chapter 288 of the Commission’s rules. The Commission has an assortment of rules that govern its consideration and approval of applications seeking new appropriations of State water, including the application at issue in this appeal. 30 Tex. Admin. Code Chs. 295, 297. The Commission also has a mutually exclusive assortment of rules that guide its approval of water conservation plans. 30 Tex. Admin. Code Ch. 288. Without a bridge connecting these two discrete regulatory reviews, one does not affect the other. The Commission’s rules contain just two bridge points that link the guidelines for approving water conservation plans to the application requirements for new appropriations of State water—Section 288.7 and Section 295.9 of the Commission rules. 30 Tex. Admin. Code §§ 288.7, 295.9. NWF has chosen only one of these two bridges—Section 295.9 of the Commission rules—as the route for its complaints about the application’s compliance with Chapter 288.91 Each application for a new water right must include a water conservation plan that complies with the Commission’s water conservation plan rules—that is, the applicable regulations found at 30 Texas Administrative Code, Chapter 288. In the initial paragraph of Section 295.9, the Commission requires the following: 91 CR 66-266 (Plaintiff’s Initial Brief, Oct. 16, 2014, at notes 75, 89). 31 An application relating to the appropriation or use of state water must include water conservation and drought contingency plans meeting applicable requirements contained in this section. An application not accompanied by such plans is not administratively complete and shall not be considered by the commission, unless expressly exempted by this section. 30 Tex. Admin. Code §295.9 (emphasis added). Additionally, Commission rules require that “[a] water conservation plan submitted with an application to appropriate or to use state water by a wholesale water supplier must be submitted in accordance with the guidelines set forth in Chapter 288 of [the Commission rules].” Id. § 295.9(2). NWF’s reliance in this appeal on Section 295.9 of the Commission’s rules is flawed, however, because the review required by Section 295.9 applies only to the District’s water conservation plan that was being implemented at the time the application was filed in 2003, not the 2012 Water Conservation Plan, as NWF suggests. In clear terms, Section 295.9 of the Commission’s rules states that the District’s application could not have been administratively complete if the application was not accompanied by a water conservation plan that satisfied Chapter 288 of the Commission’s rules. 30 Tex. Admin. Code § 295.9. In fact, Section 295.9 prohibits the Commission from considering an application if it was not accompanied by a compliant water conservation plan before it was administratively complete. Id. 32 The Commission declared the application to be administratively complete on August 13, 2004.92 NWF has not, at any time, challenged the validity of the Commission’s determination that the application was administratively complete, nor has NWF alleged that the water conservation plan that accompanied the application in 2003 did not comply with Chapter 288 of the Commission’s rules.93 But the Commission rules are clear on this point: the application could not have been administratively complete if the water conservation plan that accompanied the application in 2003 did not meet the requirements of Chapter 288 of the Commission’s rules. 30 Tex. Admin. Code §§ 295.9, 295.9(2). In fact, if NWF were to have perfected any error for appeal regarding compliance with Section 295.9 of the Commission rules—and by NWF’s own extension, its complaints regarding Chapter 288 compliance94—NWF must have alleged error regarding: (1) the water conservation plan that accompanied the application in 2003; (2) the Commission’s determination that the application was administratively complete in 2004; and (3) the Commission’s grounds for considering the application. NWF has not alleged any of these errors. NWF has therefore waived any complaint regarding the application’s compliance with 92 12 AR 168. 93 See 11 AR 151 at Finding of Fact No. 51, and Conclusion of Law No. 4 (recognizing that the application was administratively complete); cf. 11 AR 148 (NWF Motion for Rehearing raising no challenge to the validity of the Commission’s declaration that the application was administratively complete). 94 CR 66-266 (Plaintiff’s Initial Brief, Oct. 16, 2014, at notes 75, 89). 33 Chapter 288 of the Commission rules by virtue of Section 295.9 of the rules. Hamamcy v. Texas State Bd. of Med. Examiners, 900 S.W.2d 423, 425 (Tex. App.—Austin 1995, writ denied) (holding that the failure of a party to properly identify an issue in a motion for rehearing deprives the trial court of jurisdiction over an appeal involving the issue). Once the application was administratively complete, the Section 295.9 bridge between water conservation plan requirements and water right application requirements was crossed. Section 295.9 of the Commission rules no longer governed the Commission’s consideration of any District water conservation plan that was submitted during the application process after that time. 30 Tex. Admin. Code § 295.9. NWF’s complaints regarding compliance with Chapter 288 of the Commission’s rules should be denied on this ground alone. B. The record nonetheless demonstrates that the 2012 Water Conservation Plan complies with Chapter 288 of the Commission’s rules. Even if NWF had preserved the error it alleges on this point, its argument is nevertheless flawed because the 2012 Water Conservation Plan does satisfy the Commission’s rules regarding water conservation plans. NWF argued on appeal to the district court that TCEQ should not have approved the application because the 2012 Water Conservation Plan did not include: (1) “the means for implementation and enforcement required by TCEQ’s rules” or (2) “the required basis for the 34 development of its five-year and ten-year targets for water savings in accordance with TCEQ’s rules.”95 Substantively, NWF is wrong on both counts. 1. The 2012 Water Conservation Plan includes enforcement provisions. The evidence demonstrates that the District’s 2012 Water Conservation Plan complied with Section 288.5. In the 2012 Water Conservation Plan, the District explains that as a wholesale supplier it has no direct relationship with retail water consumers.96 In the same document, the District explains that the Texas Legislature has given it no ordinance powers or other legal ability to penalize retail water consumers relating to their use of water.97 The District further explains in the document that because enforcement authority over retail water consumption has been delegated to the local water utilities that make up its membership and customer base, the 2012 Water Conservation Plan is designed to leverage their enforcement capabilities.98 The District’s primary relationship with its members and customers is by contract.99 The 2012 Water Conservation Plan contains revised contract language that is inserted into all new contracts with the District and revisions to existing 95 CR 66-266 (Plaintiff’s Initial Brief, Oct. 16, 2014) at 25-30. 96 18 AR 239 at 6. 97 18 AR 239 at 6. 98 18 AR 239 at 9. 99 12 AR 163:10-11. 35 contracts,100 and it explains that the District’s new and existing wholesale water supply contracts provide the District with a reasonable means of enforcing the plan.101 The record contains substantial evidence that the District has appropriately described all components of enforceability in the 2012 Water Conservation Plan. 2. The 2012 Water Conservation Plan details the five-year and ten-year targets. The 2012 Water Conservation Plan provides a lengthy discussion of the basis for its conservation approach and the underlying premise for each of the strategies and goals in the plan.102 Specifically, the District explains the bases of its per capita water use goals—referenced as the 5-Year GPCD (gallons per capita per day) Goal and the 10-Year GPCD Goal—in Section 3.103 The document explains that the District’s service area is in a state of transition from largely rural land use to predominantly urban land use.104 It further explains that the transition brings with it a traditional increase in per capita water use.105 Coupled with a rapid population increase among its members and customers, the per capita use can be a 100 18 AR 239 at 9. 101 18 AR 239 at 9. 102 See generally 18 AR 239. 103 12 AR 163 at 10-11. 104 18 AR 239 at 6. 105 18 AR 239 at 6. 36 difficult measure to identify.106 The 2012 Water Conservation Plan clearly explains these components of its bases. The 2012 Water Conservation Plan also describes the limited tools available to the District in affecting individual daily water consumption.107 The document explains that the District currently does, and will continue to, keep unaccounted-for water losses in its distribution system below five percent, maintain a universal metering program among all of its customers, regularly calibrate the measuring devices, maintain its system-wide leak detection and repair program, leverage wastewater reuse, maintain its enhanced public awareness campaign for water conservation, encourage the embrace of water-conserving landscaping, enhance public awareness of the benefits of watershed protection, and use other tools as available.108 Notably, many customers of the District rely on additional sources of water, for example, privately owned groundwater wells.109 These sources fall outside of the District’s legal jurisdiction, and the uses of that water is beyond the District’s water conservation plan influences. Nevertheless, the District’s conservation effort focuses on the total usage from all sources, not just the amount of water being 106 18 AR 239 at 6. 107 18 AR 239 at 6-7. 108 18 AR 239 at 6-7. 109 12 AR 154 at 46:22-47:2. 37 purchased from the District.110 District customers used an average of 184 gallons per person per day, from all sources, between 2005 and 2011.111 The District explains in the 2012 Water Conservation Plan that it established its five-year goal of 175 gallons of total water use per person each day, and its ten-year goal of 170 gallons of total water use per person each day, based on consideration of the factors it can control, as well as those it cannot.112 The record contains substantial evidence that the District explained the bases of its five-year and ten-year water conservation targets in the 2012 Water Conservation Plan. V. The substantial rights of NWF have not been prejudiced. The substantial evidence standard of review set out in Section 2001.174(2) of the Texas Government Code contains a two-part requirement, which NWF was required to satisfy to receive the relief it sought at the district court. First, NWF was required to prove that the TCEQ’s administrative findings, inferences, conclusions, or decisions in approving the application or issuing the Lake Ralph Hall permit violated any certain criteria listed in Section 2001.174(2)(A)-(F). Second, it must have demonstrated that any such conduct or omission actually prejudiced NWF’s substantial rights. That is, NWF must have shown how a particular right it possessed was harmed by the agency’s decision. Tex. Gov’t 110 12 AR 163 at § 3. 111 12 AR 154 at 46:17-19. 112 18 AR 239 at 6-7. 38 Code § 2001.174(2); Charter Medical, 665 S.W.2d at 452 (a reviewing court may reverse because of the lack of substantial evidence only if such absence has prejudiced the substantial rights of the litigant); United Sav. Ass’n of Tex. v. Vandygriff, 594 S.W.2d 163, 171-72 (Tex. Civ. App.—Austin 1980, writ ref. n.r.e.) (finding statutory language similar to Section 2001.174 (2), Gov’t Code, to create a condition precedent to relief in an appeal of an administrative decision, and finding that, in order to complain of an agency decision, the complaining party “must show some right that is subjected to harm because of the agency’s action”); Lone Star R.V. Sales, Inc. v. Motor Vehicle Bd. of Tex. Dep’t of Transp., 49 S.W.3d 492, 500 (Tex. App.―Austin 2001, no pet.) (noting that “[e]ven if we were to find, however, that the Board engaged in an unlawful procedure, the task at hand is to determine whether [the complaining party’s] substantial rights were prejudiced by the Board’s consideration of the exceptions.”). Stated differently, even if NWF were able to show that the Commission failed to satisfy each element of Section 2001.174(2)(A)-(F) of the Texas Government Code in its decision on the Lake Ralph Hall permit, the Court cannot disturb the agency’s action in this case unless NWF demonstrates that the agency’s alleged failures prejudiced at least one of NWF’s substantial rights. Charter Medical, 665 S.W.2d at 452; Vandygriff, 594 S.W.2d at 171-72; Lone Star R.V. Sales, 49 S.W.3d at 500. The record is devoid of any evidence demonstrating that NWF has any substantial rights that were 39 prejudiced by the Commission’s decision on the application, and none were earnestly described in the district court proceeding. Accordingly, the trial court’s judgment should be reversed on this ground alone. Id. CONCLUSION AND PRAYER NWF bears the burden of proof on this de novo review of the trial court’s judgment. NWF must prove that not even a scintilla of evidence in the record supports the Commission’s decision on the portion of the application requesting an interbasin transfer of State water. The burden is high, and NWF cannot meet it. The District relied on a wide variety of sources, including its board members, water experts, District staff, customers, and engineering consultants, to develop a water conservation plan that met the “highest practicable levels achievable within the jurisdiction” standard required under Section 11.085(l)(2) of the Water Code. The Commission has a unique understanding of the subject matter at issue in this appeal. Through the lens of that unique understanding, the Commission granted the permit using the authority provided to it by the Legislature. NWF failed to preserve error to make its argument that the District did not comply with Section 288.5 of Title 30, Texas Administrative Code, and it failed to demonstrate that its substantial rights have been prejudiced by any alleged error. The District respectfully prays that this Court reverse the judgment of the trial court and affirm the Commission’s decision to grant the permit for the Lake Ralph Hall project. 40 Respectfully submitted, LLOYD GOSSELINK ROCHELLE & TOWNSEND, P.C. 816 Congress Avenue, Suite 1900 Austin, Texas 78701 Telephone: (512) 322-5800 Facsimile: (512) 472-0532 /s/ Lambeth Townsend LAMBETH TOWNSEND State Bar No. 20167500 ltownsend@lglawfirm.com JASON T. HILL State Bar No. 24046075 jhill@lglawfirm.com ELIZABETH P. HERNANDEZ State Bar No. 24080942 ehernandez@lglawfirm.com ATTORNEYS FOR APPELLANT THE UPPER TRINITY REGIONAL WATER DISTRICT CERTIFICATE OF COMPLIANCE I certify that this Brief of Appellant, Upper Trinity Regional Water District, not counting the portions properly excepted as shown in Texas Rule of Appellate Procedure 9.4(i)(1), contains 8,344 words according to the word count of the computer program used to prepare the document. It therefore complies with the word limit found in Tex. R. App. P. 9.4(i)(2)(B). /s/ Lambeth Townsend LAMBETH TOWNSEND 41 CERTIFICATE OF SERVICE I certify that on this, the 26th day of June, 2015, a true and correct copy of the foregoing submission has been served on the persons listed below by electronic transmission. Myron J. Hess hess@nwf.org Annie E. Kellough kellough@nwf.org National Wildlife Federation 44 East Avenue, Suite 200 Austin, Texas 78701 ATTORNEYS FOR APPELLEE NATIONAL WILDLIFE FEDERATION Cynthia Woelk cynthia.woelk@texasattorneygeneral.gov Assistant Attorney General Environmental. Protection Division Office of Texas Attorney General P. O. Box 12548-MC015 Austin, Texas 787l11-2548 ATTORNEYS FOR APPELLANT TEXAS COMMISSION ON ENVIRONMENTAL QUALITY /s/ Lambeth Townsend LAMBETH TOWNSEND 42 INDEX OF APPENDICES Appx. A UTRWD Exh. 24 (Photographs of North Sulphur River) [19 AR 246] Appx. B UTRWD Exh. 11U (2012 Water Conservation Plan) [18 AR 239] Appx. C UTRWD Exh. 38 (24-page excerpt of Report 362) [19 AR 260] Appx. D Texas Water Code Section 11.022 Section 11.085 Section 11.121 Section 11.1271 Section 11.134 Appx. E Texas Government Code Section 311.011 Section 311.021 Section 2001.171 Section 2001.174 Appx. F Title 30 Texas Administrative Code Section 288.2 Section 288.5 Section 288.6 Section 288.30(1) Section 288.30(10)(B) Section 295.9 Section 297.11 Section 297.18 Appx. G District Enabling Act Act of May 20, 1989, 71st R.S., ch. 1053, 1989 Tex. Gen. Laws 4269 (1989 Act) Act of May 24, 1995, 74th R.S., ch. 494, 1995 Tex. Gen. Laws 3233 (1995 Act) Act of April 20, 2001, 77th R.S., ch. 46, 2001 Tex. Gen. Laws 76 (2001 Act) Appx. H Act of May 28, 2003, 78th Leg., R.S. ch. 688, § 1, 2003 Tex. Gen. Laws 2116 43 APPENDIX A APPENDIX B Upper Trinity Regional Water District WATER CONSERVATION PLAN Updated REGIONAL WATER DISTRICT September 2012 Prepared By: Upper Trinity Regional Water District PO Drawer 305 Lewisville, TX 75067 972-219-1228 TABLE OF CONTENTS Section 1. Introduction and Objectives ...................................................................... 1 1.1 Texas Commission on Environmental Quality Rules ............................................... 2 Section 2. Water Utility Profile .................................................................................... 4 Section 3. Water Conservation Planning Goals ......................................................... 6 Section 4. Basic Water Conservation Strategies ....................................................... 7 4.1 Accurate Supply Source Metering ............................................................................ 7 4.2 Monitoring and Record Management of Water Deliveries, Sales & Losses ............. 7 4.3 Program for Leak Detection & Repair, and Water Loss Accounting ........................ 8 4.4 Requirement for Water Conservation Plans by Wholesale Customers .................... 9 4.5 Reservoir System Operation Plan ............................................................................ 9 4.6 Coordination with Regional Water Planning Groups ................................................ 10 Section 5. Enhanced Water Conservation Strategies ............................................... 10 5.1 Reuse and Recycling of Reclaimed Water ............................................................... 10 5.2 Public Education ...................................................................................................... 10 5.3 Water Conserving Landscaping ............................................................................... 11 5.4 Landscape Water Management Measures .............................................................. 12 5.5 Pressure Control ...................................................................................................... 12 5.6 Watershed Protection ............................................................................................... 12 5.7 Enhanced Contract Provisions ................................................................................. 13 5.8 Irrigation System Evaluations / Technical Assistance .............................................. 13 5.9 Industrial, Commercial and Institutional (ICI) Audits ................................................ 13 5.10 Annual Reports ........................................................................................................ 13 5.11 Means for Measuring Success ................................................................................. 13 5.12 Water Rate Surcharge ............................................................................................. 13 5.13 Recycle Water from Water Treatment Plants ........................................................... 14 5.14 In-House Water Conservation Efforts ...................................................................... 14 5.15 Model Water Conservation Plans for Upper Trinity Customers ................................ 14 5.16 Conservation Support for Customers ....................................................................... 16 Section 6. Implementation and Enforcement of the Plan ......................................... 16 Upper Trinity Regional Water District Water Conservation Plan -i - APPENDICES Appendix A Texas Commission on Environmental Quality Minimum Requirements for a Water Conservation Plan Appendix B Upper Trinity Regional Water District’s Water Utility Profile Appendix C Letter to Chairman of Region C Water Planning Group Appendix D Ordinance or Resolution from Governing Body Adopting the Water Conservation Plan LIST OF TABLES Table 3.1 Per Capita Water Use Goals LIST OF FIGURES Figure 2.1 Map of Upper Trinity’s Planning and Service Area Figure 2.2 Upper Trinity Wholesale Water Customers Upper Trinity Regional Water District Water Conservation Plan - ii - UPPER TRINITY REGIONAL WATER DISTRICT Water Conservation Plan Updated September 2012 SECTION 1 Introduction Water supply has always been a key issue in the growth and development of communities in Texas. In recent years, the growing population and economic development of North Central Texas has led to increasing demands for water. Additional supplies to meet these demands will be both expensive and difficult to develop. Therefore, it is important that we make the most efficient use of existing supplies - - to minimize the need for new resources. Effective water conservation can postpone or reduce the need for development of new water supplies, minimize the associated environmental impacts, and reduce the high cost of water supply development. Even with robust conservation measures, new sources of water will be needed; conservation alone is not enough. Therefore, to respond to the growing population of this region, the planning for new water resources must continue. Upper Trinity Regional Water District ("Upper Trinity") considers water conservation (including reuse of reclaimed wastewater) an integral part of this planning and water supply development process. Upper Trinity was created in 1989 by the Texas Legislature to provide treated water service on a wholesale basis to towns, cities, and other water utility providers. Currently, Upper Trinity provides wholesale treated water service to twenty members and customers (serving more than twenty-five communities) in Denton and Collin Counties (herein "Customers"). Recognizing the need for efficient use of existing water supplies, the Texas Commission on Environmental Quality ("TCEQ") has promulgated guidelines and requirements governing the development of water conservation plans for Wholesale Public Water Suppliers. Upper Trinity developed its original plans for Water Conservation and for Drought Contingency in May 1993, later amended in March 2005 and April 2009. This update of the Water Conservation Plan (the "Plan") has been coordinated with the suggested model water conservation plan prepared by Upper Trinity for Customers offering retail service; and, is consistent with the latest TCEQ requirements outlined below. This Plan also incorporates water conservation practices and strategies recommended by the Water Conservation and Implementation Task Force ("Task Force") and the Water Conservation Advisory Council ("Advisory Council"). Both the Task Force and the Advisory Council were created by the Texas Legislature to foster basic and enhanced water conservation measures and practices for Wholesale Public Water Suppliers like Upper Trinity. Objectives Water is a basic tenant in all aspects of sustainability. Water conservation is one critical element of a utility’s effort to meet future water supply needs, in an economical manner and without sacrificing quality of life standards, The following are the central objectives of this Plan: Provide support and incentives to communities to maintain and continue sound conservation practices; ¯ Reduce water consumption from levels that would otherwise prevail without conservation efforts; Reduce the loss and waste of water, as evidenced by per capita water use; ¯ Continue to improve efficiency in the use of water; ¯ Achieve greater reuse of reclaimed wastewater in helping to sustain an adequate supply; and ¯ Extend the adequacy of current water supplies by reducing the pace of growth in the demand for water. In an effort to meet each of the above central objectives, Upper Trinity will provide leadership and technical assistance to its Customers in order to maximize water savings and water efficiency within its service area. Upper Trinity has dedicated staff to lead its regional water conservation program and to assist its Customers with implementation of their respective conservation strategies. Similarly, to coordinate and communicate consistent conservation strategies, Upper Trinity is creating a work group within the Customer Advisory Council for the Regional Treated Water System to focus on water conservation matters and will encourage each Customer to designate a staff member with responsibility for implementing and reporting on its water conservation program. 1.1 Texas Commission on Environmental Quality Rules TCEQ rules governing the development of water conservation plans for Wholesale Public Water Suppliers are contained in Title 30, Part 1, Chapter 288, Subchapter A, and Rule 288.5 of the Texas Administrative Code. Copies of these rules are included in Appendix A. The rules define a water conservation plan as: "A strategy or combination of strategies for reducing the volume of water withdrawn from a water supply source, for reducing the loss or waste of water, for maintaining or improving the efficiency in the use of water, for increasing the recycling and reuse of water, and for preventing the pollution of water." A. Basic Water Conservation Plan Requirements TCEQ requires that water conservation plans for Wholesale Public Water Suppliers, like Upper Trinity, include the following components: Utility Profile: Information regarding population and customer data, water use data, water supply system data, and wastewater system data. (Section 2) Goals: Specific quantified five-year and ten-year targets for water savings to include goals for water loss programs, in gallons per capita per day (GPCD). (Section 3) ¯ Accurate Metering Devices: TCEQ requires that metering devices have an accuracy of plus or minus five percent (5%) for measuring water diverted from the supply source. (Section 4.1) Record Management System: A system to record water delivered, water sold, and water lost. (Section 4.2) Program for Leak Detection & Repair, and Water Loss Accounting: A program to detect and repair leaks, and water loss accounting for the water storage, delivery, and distribution system. (Section 4.3) Upper Trinity Regional Water District Water Conservation Plan 2 Wholesale Customer Requirements: A requirement that every water supply contract entered into or renewed after official adoption of the water conservation plan, including any contract extension, include a provision that each successive wholesale customer develop and implement a water conservation plan with similar water conservation strategies to this Plan, including applicable elements of Title 30 TAC Chapter 288. (Section 4.4) Reservoir Systems Operational Plan: A requirement to provide a coordinated operational structure for operation of reservoirs owned by the water supply entity within a common watershed or river basin in order to optimize available water supplies. (Section 4.5) Coordination with Regional Water Planning Group: Document that the Plan has been coordinated with the Regional Water Planning Group to insure consistency with the appropriate approved regional water plan. (Section 4.6) Means of Implementation and Enforcement: A strategy for implementing and enforcing the provisions of this Plan, as evidenced by an ordinance, resolution, or tariff, and a description of the authority by which the Plan is enforced. (Section 6) B. Enhanced Water Conservation Strateqies Upper Trinity will also incorporate the following additional conservation strategies, as needed, to achieve the conservation goals stated in this Plan: ¯ Program for Reuse and/or Recycling: Upper Trinity has implemented a program of reclaiming and recycling treated wastewater effluent in order to further the efficient use of water. (Section 5.1) Public Education Program: Upper Trinity has implemented public education and outreach programs that include an informative school program, a literature program, special events and promotions program, a website dedicated to water conservation, a public awareness program, and it provides speakers to various groups on conservation while coordinating with other North Texas water suppliers and Customers to promote water conservation. (Section 5.2) Water Conserving Landscaping: As part of its public education activities, Upper Trinity has implemented and fostered programs to support the conservative use of water in landscape by its Customers and their retail customers. (Section 5.3) Landscape Water Management: A strategy for implementing and achieving the efficient use and stewardship of water in landscape irrigation, including watering a maximum of two times per week and time-of-day watering provisions. (Section 5.4) Enhanced Contract Language: Upper Trinity will implement additional language in future contracts to continue to improve conservation and the efficient use of water. (Section 5.7) Irrigation System Evaluations / Technical Assistance: A program to provide technical assistance and training to Customers and their retail customers (residential, industrial, commercial, and institutional), if requested, regarding efficient and effective landscape Upper Trinity Regional Water District Water Conservation Plan 3 watering practices. (Section 5.8) ICI Program: A facilities and processes audit program that will assist Customers and their retail industrial, commercial, and institutional ("ICI") customers with audits of their facilities to explore the development of economical and practical water efficiency measures that will contribute to increased water conservation in their processes. (Section 5.9) Other Strategies: Upper Trinity has developed model water conservation and drought contingency plans for use by its Customers (Section 5.15). In addition, Upper Trinity has a dedicated staff to lead its regional water conservation program and to assist Customers with implementation of their respective conservation strategies; and, has created a work group within Upper Trinity’s Customer Advisory Council to focus on water conservation matters in order to better coordinate and communicate consistent conservation strategies (Section 5.16). Other strategies also include pressure controls to maintain System integrity to avoid the loss of water (Section 5.5), watershed protection measures (Section 5.6), and establishing a means for measuring success in water conservation (Section 5.11). Upper Trinity will continue to evaluate and implement water conservation strategies and practices that will further the conservation of its water supplies. This Plan sets forth a program of long-term strategies under which Upper Trinity can maintain and continue existing conservation results, plus improve the overall efficiency of water use and conserve its water resources. Shorter-term strategies that address specific water management conditions (i.e., periods of drought, unusually high water demands, unforeseen equipment or system failure, or contamination of water supply sources) are provided in Upper Trinity’s Drought Contingency Plan. SECTION 2 Water Utility Profile Upper Trinity’s Regional Treated Water System ("System") provides services to its wholesale Customers through two water treatment plants (Thomas E. Taylor Water Treatment Plant and the Tom Harpool Water Treatment Plant), and a system of pipelines and pump stations that deliver water to each Customer at specified points of delivery. The System does not include facilities "downstream" of such points of delivery (i.e., internal, retail distribution system). Upper Trinity currently obtains its raw water from Lewisville Lake, Ray Roberts Lake, Jim Chapman Lake and from the reuse of water imported from Jim Chapman Lake. A dependable supply of water from these sources is confirmed and enabled by various contractual agreements between Upper Trinity and the respective water rights holders. Upper Trinity’s planning area, as established by the Region C Water Planning Group, includes all communities currently served plus additional portions of Denton, Grayson, Wise and Cooke counties. See Figure 2.1 for a Figure 2.1 map of Upper Trinity’s planning (service) area. Map of Planning & Service Area Upper Trinity Regional Water District Water Conservation Plan 4 Participants Indirect Customer Part~:iaants Indirect Custorf~r [___-%~2-%.___] I’ Bartonvdle WSC 1.__ Town of Hickory Creek C,’~y of Lake [}alias City Of Shady Shores Denton Co FWSD No 8A ] ~ntonCo FWSDNo 10 I Den{onCo FWSDNo I’;A I Figure 2.2 Upper Trinity Wholesale Water Customers Using surface water supplies, Upper Trinity currently provides treated water service to twenty Customers serving more than twenty-five communities in Denton and Collin Counties. Figure 2.2 lists both direct Customers of Upper Trinity and the other communities served indirectly. Projections of water needs are based on dry-year demands anticipated by Customers, and reviewed and considered by Upper Trinity. Actual water usage will vary from year to year depending on climatic conditions, and on growth and development within the service area and on various factors affecting retail customers within a Customer’s residential, commercial, industrial and institutional customer categories. Upper Trinity’s population projections and raw water demand projections for its planning area are included in the 2011 Region C Water Plan, and the 2012 State Water Plan. Some Upper Trinity Customers also use groundwater for a portion of their water supply. In Denton County, groundwater resources are very limited; the County has been included in a "Priority Groundwater Management Area" by the TCEQ, and a groundwater conservation district has been created to manage and conserve groundwater resources within the County. One of the key purposes of Upper Trinity’s regional water program is to avoid further draw-down of these limited ground water resources, and to make surface water available as a more reliable and sustainable source for further growth in Upper Trinity’s service area. To this end, conservation, reuse, and the development of additional water supply resources that will allow for additional reuse supplies, will contribute greatly to the conservation program’s success. Appendix B of this Plan includes an updated water utility profile for Upper Trinity, based on the format recommended by TCEQ. The water utility profile includes additional information regarding population and Customer data, water use data, water supply system data, and Upper Trinity Regional Water District Water Conservation Plan 5 wastewater system data. SECTION 3 Water Conservation Planning Goals As a wholesale water supplier, Upper Trinity does not have a direct relationship with retail customers who are the ultimate consumers of the treated water it provides to its Customers. Further, Upper Trinity doesn’t have ordinance or policy power over such retail customers or their use of treated water supplied in wholesale transactions with Customers. As a result, and as noted in Section 4.4 below and Section 5.7, Upper Trinity has limited control or influence over the use of water being purchased by its Customers. Some Upper Trinity Customers are projected to require increased supplies for their future growth and development, which may result in increases to historical municipal per capita use, during and following periods of population growth. Reasons for such potential increases include: ¯ Upper Trinity’s service area continues to transform from a historically rural to a primarily urban land use, causing some communities to experience an increase in per capita water use. Some Upper Trinity Customers will experience substantial population growth in future years, generating changes in commercial and economic activity. With a growing infrastructure of retail industrial, commercial, and institutional customers using water supplied by Upper Trinity to its wholesale Customers, increases in municipal per capita water use can be expected for these communities. The municipal per capita use for Upper Trinity’s System can be affected by changes in per capita use for its Customers. It can also be affected by how much water Upper Trinity is asked to supply to different communities with widely varying growth factors and water usage characteristics. Nonetheless, Upper Trinity’s water conservation efforts are expected to significantly influence per capita water use that could otherwise result from continued growth in its service area. Upper Trinity will make every effort to measure and quantify savings achieved through the programs it implements, and will encourage its Customers to measure savings from the programs they implement, as well. Upper Trinity does, however, control the operation of its own water treatment and transmission system and it can take direct action to maximize the water use efficiency of System operation. Upper Trinity adopts the following water conservation and efficiency goals within the System: ¯ Maintain the level of unaccounted-for water in the System below five percent (5%) annually; ¯ Maintain a program of universal metering of Customers and regular meter calibration; and, meter replacement and repair; ¯ Maintain a program of leak detection and repair; ¯ Continue to utilize wastewater reuse as a major source of future water supply, to the maximum extent feasible; ¯ Continue to recycle wash-water from Upper Trinity water treatment plants, to the Upper Trinity Regional Water District Water Conservation Plan 6 maximum extent feasible; ¯ Continue to implement other in-house water conservation efforts; ¯ Continue to raise public awareness of water conservation and encourage responsible public behavior through a coordinated public education program; ¯ Encourage landscape water management strategies on a routine basis to help instill good habits and responsible stewardship for water conservation; ¯ Maintain and promote a first-class demonstration program for water-smart practices in landscape and gardening; ¯ Expand public education about the need to protect water quality through a continuing program for watershed protection. Upper Trinity has developed 5-year and 10-year water conservation goals as part of the Plan. Table 3.1 below shows the projected municipal per capita water use for Upper Trinity, as recommended by Region C Water Planning Group and approved by the Texas Water Development Board ("TWDB"). This table also shows Upper Trinity’s goals for municipal per capita water use with a reduction for results in implementing this Plan; and, as supported by plans to be implemented by Upper Trinity Customers. Table 3.1 Per Capita Water Use Goals 5-Year GPCD 10-Year GPCD Goal (Gallons) Goal (Gallons) Average Per Capita Use Per Day 204 208 Less Projected Reduction Due to Strategies of this Plan 29 38 Water Conservation Goal 175 170 SECTION 4 Basic Water Conservation Strategies This section outlines Upper Trinity’s basic water conservation program strategies that will be implemented to achieve and exceed the stated water conservation goals above. 4.1 Accurate Supply Source Metering Upper Trinity measures all raw water diversions using meters with an accuracy of plus or minus two percent (2%) in accordance with AWWA standards. Said meters are calibrated annually in accordance AWWA standards. When necessary, Upper Trinity will repair or replace meters not conforming to an accuracy of plus or minus two percent (2%). 4.2 Monitoring and Record Management of Water Deliveries, Sales and Losses Upper Trinity regularly monitors all water deliveries and sales to all Customers. All critical data, such as raw water conveyance to water treatment plants or to Customers, treated water pumped, and unaccounted-for water, are available on a regular basis as needed. All water sources and water delivered to Customers is metered and recorded, as follows: Upper Trinity Regional Water District Water Conservation Plan 7 Water delivered to all Customers is measured by individual meters with an accuracy of plus or minus two percent (2%) in accordance with AWWA standards, and in most cases with rate-of-flow controllers. Said meters are read monthly by Upper Trinity personnel, with the meter readings being used to invoice Customers. Meters are calibrated and tested annually, and as needed, in accordance with AWWA standards. Customers may witness the calibrations of these meters. ¯ Treated drinking water leaving the District’s water treatment plants and pumping facilities is also measured by meters with a minimum accuracy of plus or minus two percent (2%). Upper Trinity monitors unaccounted-for water in its treatment and transmission system to its Customers. (For Upper Trinity, unaccounted-for water is defined as the amount of raw water diverted to or received at the treatment plants, less metered sales to Customers, less water used during the treatment process, and water used for line flushing and construction purposes.) A goal of Upper Trinity’s water conservation program is to maintain unaccounted water below five percent (5%). 4.3 Program for Leak Detection & Repair, and Water Loss Accounting Upper Trinity’s metering program for raw and treated water is described in Sections 4.1 and 4.2 above. As evidenced by a historically low level of unaccounted-for water, Upper Trinity has an effective program to control, detect and repair leaks: In most projects, Upper Trinity’s water pipelines consist of ductile iron pipe, reinforced concrete cylinder pipe, or steel cylinder pipe with an internal protective liner and an external protective coating and/or polywrap. Because of the multi layers of material, these pipelines have very long service lives and are not subject to excessive leaks. Most joints in Upper Trinity pipelines are designed with bell and spigot joint construction, including a rubber gasket. Some joints are welded. For larger lines other than ductile iron, each joint is also coated with grout for corrosion protection. All Upper Trinity pipelines are constructed in legally defined and identified rights-of-way, properly registered with authorities in each county. Most are in exclusive rights of way on private property, protecting the pipelines from possible damage by a third party. Upper Trinity routinely inspects its facilities and pipelines for leaks or mechanical problems. Repairs are undertaken as soon as practicable in order to minimize waste. Upper Trinity operates a program for identification of construction projects adjacent to Upper Trinity facilities and pipelines in order to minimize leaks caused by pipeline damage during construction. Upper Trinity’s metering program allows comparison of metered flows in the System with metered deliveries to Customers, which can be used to identify leaks. Upper Trinity’s regular monitoring of unaccounted-for water provides a further check for problems in the transmission system. Upper Trinity Regional Water District Water Conservation Plan 8 4.4 Requirement for Water Conservation Plans by Wholesale Customers Contracts for the wholesale purchase of water by Upper Trinity Customers provide that the wholesale Customer will develop water conservation and an emergency water demand management plan appropriate and adequate for local conditions and circumstances. These plans are subject to review and approval by Upper Trinity. Any new contract for wholesale water service entered and any renewed or extended contract with a Customer after the adoption of this Plan will require the Customer to adopt similar water conservation strategies as outlined in this Plan, and providing enforcement thereof. In addition, each Customer has agreed to coordinate with Upper Trinity the implementation of any action to limit or curtail water supplies to minimize adverse impact on Upper Trinity’s water system operations, and on adequacy of service, and to promote public understanding of the need for and terms of such limitation or curtailment. Current wholesale contracts utilized by Upper Trinity include some version of the following provisions: It is the policy of the District to prepare, adopt, and maintain a regional water conservation plan which incorporates loss reduction measures and demand management practices which insure that the available supply of the System is used in an economically efficient and environmentally sensitive manner. Similarly, it is the policy of the District to prepare, adopt and maintain a drought and emergency conditions plan for water supply to Customers. Each Customer agrees to cooperate in the implementation of both plans and to adopt and enforce such or similar plans for use within its respective jurisdiction. Customer may be required by State or Federal agencies to implement a water conservation plan; also, the District reserves the right to require Customer to implement a water conservation plan. The Customer’s water conservation plan is subject to approval by District. Towns and cities have ordinance powers and greater capability to manage and enforce their own water conservation programs, as compared to a wholesale water supplier. Thus, in order to encourage local initiative and to respond to the diversity of powers, needs, and circumstances, Upper Trinity allows each Customer to develop its own conservation program, but Upper Trinity’s contracts allow for its approval of such programs. To assist its Customers, Upper Trinity provides a model water conservation plan for all wholesale customers for use in developing their own water conservation plans. 4.5 Reservoir System Operation Plan Upper Trinity currently purchases raw water from the City of Dallas and City of Denton out of Lewisville Lake and Ray Roberts Lake. In addition, Upper Trinity has a contract for up to 14.4 million gallons of raw water per day from Jim Chapman Lake in the Sulphur River Basin. Further, Upper Trinity has received a permit from TCEQ for the reuse of raw water being imported to the Trinity River Basin, treated to potable water standards, utilized by its Customers, returned to state streams via effluent discharges, and then diverted by Upper Trinity for a second treatment, delivery, and use by its Customers. Water from Jim Chapman Lake is pumped by pipeline to Lewisville Lake. Treated wastewater effluent from Upper Trinity’s three (3) water reclamation facilities and from treatment plants operated by certain Customers is returned to the Lewisville Lake watershed. Upper Trinity relies on the Cities of Dallas and Denton (and the U. S. Army Corps of Engineers) for the operation of Lewisville Lake and Ray Roberts Lake. In addition, the water rights holders of Jim Chapman Lake have developed a water supply operating plan which allows for overdrafting of the reservoir when it is relatively full and also protects the firm annual yield of the reservoir should the drought of record occur. Upper Trinity manages its use of water from these four sources Upper Trinity Regional Water District Water Conservation Plan 9 (Lewisville Lake, Ray Roberts Lake, Jim Chapman Lake and from Reuse) on a system-wide basis to make maximum use of the most efficient or most available source. 4.6 Coordination with Regional Water Planning Groups Appendix C includes a copy of a letter sent to the Chair of Region C Water Planning group to coordinate Upper Trinity’s Plan with Region C. In addition, copies of the adopted Plan have been provided to the Executive Director of TCEQ and the Executive Administrator of the TWDB. SECTION 5 Enhanced Water Conservation Strategies This section outlines enhanced water conservation strategies that Upper Trinity will include as part of its water conservation program. 5.1 Reuse and Recycling of Reclaimed Wastewater Upper Trinity has completed construction of three (3) regional water reclamation facilities with a total treatment capacity of approximately eight (8) million gallons per day. These regional facilities provide wastewater treatment services to twelve (12) municipalities, six (6) special districts and one (1) utility. Reuse is practiced on the plant site for service water and irrigation of landscape. Upper Trinity has constructed facilities and sells treated wastewater effluent to one of its Customers for golf course irrigation. Upper Trinity continues to promote additional opportunities to expand recycle and reuse markets. Upper Trinity reuses up to 60% of the water it diverts from Jim Chapman Lake pursuant to a TCEQ reuse permit. The reuse permit is for a single reuse and pass-through cycle of the water imported from Jim Chapman Lake in the Sulphur River Basin. An extensive daily accounting system provides for management of this reuse project. 5.2 Public Education Program As a regional wholesale water supplier, Upper Trinity does not interact directly with retail water customers at whom typical water conservation public education efforts are aimed. However, Upper Trinity’s public education program is intended to assist and supplement the public education efforts of its Customers. The ultimate success of any water conservation program is dependent on an informed public. The individual retail customers must have an awareness of the benefits and needs for water conservation. They must also have knowledge of how to contribute to the success of the Plan. Upper Trinity’s public education and information program, including dedicated staff for this program, is designed in cooperation with Customers to provide information to as many of the Customers’ retail customers as possible. The elements of Upper Trinity’s education program are described below. Informative School Program. This program currently provides area schools with textbook covers containing water conservation messages. Upper Trinity is working with local school districts to integrate the Waters to the Sea: Trinity River into middle school science classrooms. This engaging, multimedia interactive program connects the students to environmental history, hydrology, ecology and water quality and conservation. Also, water conservation is demonstrated to students using a watershed model. The EnviroScape model provides hands-on interaction to show at least twenty Upper Trinity Regional Water District Water Conservation Plan 10 different ways of protecting and conserving water. Educational tours of Upper Trinity’s water treatment plants and demonstration garden are also available, promoting water conservation and water quality protection. Educational opportunities include poster contests, classroom presentations, curriculum aids and materials, and teacher workshops. Literature Program. As part of its water conservation literature program, brochures are designed to educate the public on various water conservation methods. Upper Trinity will make available water conservation brochures covering the following topics: o Saving water outdoors, o Saving water indoors, o Use of native plants and wildflowers in low water-use landscaping, Retrofitting existing structures with high efficiency showerheads and high efficiency toilets. Special Events and Promotions. For special events sponsored by Customers, Upper Trinity makes available water conservation promotional items such as Texas Smartscape CD’s, toilet-leak test kits, Upper Trinity water bottles, water conservation booklets, etc. Upper Trinity also hosts special events focused on conserving water in the landscape and on protecting water quality. ¯ Website. Upper Trinity has included a section on its website dedicated to water conservation. Conservation publications are also available online. ¯ Speaking Engagements. Speakers and presentations are available from Upper Trinity, which promote water conservation ideas to environmental groups, garden clubs, senior citizen centers, youth groups, civic groups, and other citizen and professional groups. Public Awareness Campaign. Upper Trinity will promote the importance of conservation by placing public service announcements on radio or television or by promoting newspaper articles in newspapers with general circulation in the service area. In accomplishing this strategy, Upper Trinity will partner with other entities to promote a regional conservation message on radio, television and other media. ¯ Regional Cooperation. Upper Trinity will coordinate with other North Texas water suppliers and Customers to benefit all entities in promoting water conservation. 5.3 Water Conserving Landscaping As part of its public education program, Upper Trinity has a Water Wise Demonstration Garden employing Texas SmartScape® principles. Texas Smartscape was developed in cooperation with cities, utilities and other agencies, including Upper Trinity, to educate citizens on the ecological, economic and aesthetic benefit of using landscape plants, shrubs, grasses and trees that are native or adapted to the regional climate and local conditions. The goal of the Water Wise Garden is to demonstrate that outdoor landscapes can be both practical and beautiful, using earth-friendly techniques that conserve water resources and protect water quality. Upper Trinity encourages each Customer to use the Water Wise Garden Upper Trinity Regional Water District Water Conservation Plan 11 to demonstrate how to conserve water in landscape practice. Further, the Water Wise Garden is available to garden clubs, developers, and customers throughout the North Texas region to advance public knowledge of water conservation in home and business landscapes. Throughout the year, the Water Wise Garden is used to help train Master Gardeners in Denton County, and as the venue for various public education programs - - all promoting water conservation. 5.4 Landscape Water Management To promote the efficient use and stewardship of water and to provide a consistent message throughout Upper Trinity’s service area, Upper Trinity urges each Customer to include the following landscape water management strategy into their respective water conservation plans: Watering Maximum of Two Times per Week. Limit outdoor watering (automatic systems or hose-end sprinklers) to no more than two (2) times per week. Watering with hand- held hoses, soaker hoses or drip irrigation is allowed any time. Time of Day Watering. No outdoor watering with automatic irrigation systems or hose- end sprinklers from 10:00 am to 6:00 pm each day beginning June 1 and ending September 30 of each year. Watering with hand-held hoses, soaker hoses, or drip irrigation systems is allowed anytime. Each Customer will be responsible for implementing, communicating and enforcing these landscape water management strategies within its respective jurisdictions Recognizing that the goal of these strategies is to help instill good habits for conservation of water - - not to be punitive - - each Customer shall have maximum flexibility in administering same. Unless a drought contingency stage is in effect, Customers will be encouraged to allow each retail customer to select the two most convenient days of each week for outdoor watering. These strategies are intended to be actively promoted by the Customers through public information programs for voluntary or mandatory compliance by their respective retail customers. Upper Trinity will include these strategies as part of its regional public information program and within its model water conservation plan for use by Customers. During any period that a drought contingency stage is in effect, these strategies would become mandatory and are required to be enforced by all Customers. 5.5 Pressure Control to Maintain System Integrity Upper Trinity installs all necessary pressure control stations to deliver water into each Customer’s storage tank. Whenever feasible, Upper Trinity conserves energy by minimizing surplus pressure (head) available at the delivery point to the Customer. Upper Trinity encourages each Customer to determine a reasonable system pressure for each pressure zone in its retail distribution system, install internal pressure control stations where necessary, or install customer service pressure regulators where needed. 5.6 Watershed Protection Protecting our watershed is a priority need for every citizen and every community. As a double benefit, strategies that promote water conservation also tend to protect the quality of water resources. Using earth-friendly techniques, such as native and adaptive plant materials and organic techniques for landscaped areas, requires less water and less use of fertilizers, pesticides and other chemicals. Overuse or improper use of fertilizer, pesticides and other chemicals from landscape activities is also a major source of pollutants that find their way into water resources. Upper Trinity has developed a coordinated program for watershed protection Upper Trinity Regional Water District Water Conservation Plan 12 aimed at educating the public about protecting local watersheds and water quality. To help communicate the important role that watersheds have in the water supply for this region, Upper Trinity has created a watershed logo and sign. These signs are being placed along roadways in Upper Trinity’s service area as a constant reminder that we need to keep the watersheds clean. 5.7 Enhanced Contract Provisions All basic contract provisions identified in Section 4.4 will be incorporated into future wholesale water supply contracts. Amendments to wholesale water supply contracts entered into after the adoption of this Plan, including any contract extension or renewal, will require Customers to include strategies included within this Plan into their own water conservation plans. These provisions, coupled with Upper Trinity’s prohibition on the subsequent resale of water on a wholesale basis without prior written approval of Upper Trinity, will enable Upper Trinity to achieve the objectives of this Plan. 5.8 Irrigation System Evaluations/Technical Assistance To improve water conservation and efficiency in landscape watering practices, Upper Trinity will, if requested, provide technical assistance and training to Customers and their retail customers (residential, industrial, commercial and institutional). The assistance provided to the Customers could include actual evaluation of the retail customers irrigation system; or, as an alternative, Upper Trinity could offer a training program to its Customers to enable them to perform said irrigation system evaluations. A typical evaluation would include identification of potential system leaks, diagnosis of equipment malfunctions, and recommendations for equipment upgrades to enhance water efficiency. During the evaluation, education about good landscape watering practices and the use of earth-friendly materials could be shared with the retail customer. 5.9 Industrial, Commercial and Institutional (ICI) Audits Upper Trinity, in coordination with its Customers, will offer an outreach program to assist large water users in finding ways to operate more efficiently, save water and energy, and lower their costs. Water savings are realized as the ICI customers implement audit recommendations. In addition to these audits, Upper Trinity would publicly recognize those ICI customers who have implemented said recommendations and have taken proactive steps in using water more wisely and efficiently. 5.10 Annual Reports An important element of Upper Trinity’s model water conservation plan is for Customers to provide a copy of its annual conservation report to Upper Trinity at the same time it submits the report to TCEQ. Upper Trinity will compile these reports and use the information to help generate its own annual water conservation report. Upper Trinity’s report will be used to review the effectiveness of its water conservation program and will be shared with Upper Trinity’s Board and the Water Conservation Committee. 5.11 Means for Measuring Success Upper Trinity will make every effort to measure and quantify water savings achieved through its programs and will encourage Customers to measure and quantify savings from their respective programs. The water saving results from Upper Trinity and its Customers will be regularly reported to the Region C Water Planning Group to incorporate in the State Water Plan. 5.12 Water Rate Surcharge Upper Trinity has a conservation-oriented water rate surcharge as part of its rate structure for Customers. The rate structure for wholesale treated water service is two-part, based on demand and volume. The conservation-oriented surcharge takes effect when the actual volume of water sold during the months of June through September exceed the volume of water Upper Trinity Regional Water District Water Conservation Plan 13 budgeted for the same time period by more than 5%. The surcharge rate is established annually by Upper Trinity’s Board of Directors. 5.13 Recycle Water from Water Treatment Plants The wash water from filter washing and sludge from Upper Trinity’s water treatment process are pumped into lagoons for recycling. After settling of solids, suitable water is decanted from the lagoons and recycled to the head of the water treatment plant for treatment. This saves water and contributes to Upper Tdnity’s control of unaccounted water in treatment and transmission. 5.14 In-House Water Conservation Efforts Upper Trinity has implemented an in-house water conservation program, including the following elements: ¯ Upper Trinity uses native or adapted drought tolerant plants, trees, and shrubs in the majority of its landscapes; ¯ Irrigation at Upper Trinity facilities occurs during off-peak times at night and early morning to avoid evaporation losses; ¯ Irrigation will be limited to the amount needed to promote survival and health of plants and lawns, including limitation on frequency and time-of-day watering (see Section 5.4); ¯ Irrigation will be avoided on Saturday and Sunday if possible, since these are periods of high water use by the public; ¯ Irrigation will be accomplished with treated wastewater effluent wherever feasible and practicable. 5.15 Model Water Conservation Plan for Upper Trinity Customers Upper Trinity has developed two key documents as part of its water conservation strategies: (1) a Model Water Conservation Plan; and, (2) a Model Drought Contingency Plan. These model plans are valuable aids to Customers in developing their own water conservation and drought contingency plans, providing for consistency and clarity throughout Upper Trinity’s service area. A. The Model Water Conservation Plan addresses TCEQ Ch. 288 requirements for water conservation for municipal use by Public Water Suppliers. Upper Trinity will work with its Customers in developing or updating their individual water conservation plans using the following requirements: Utility Profile: Information regarding population and customer data, water use data, water supply system data, and wastewater system data. Goals: Specific quantified five-year and ten-year targets for water savings to include goals for water loss programs and goals for municipal use, in gallons per capita per day (GPCD). The goals established by a Public Water Supplier are not enforceable under this subparagraph. Accurate Metering Devices: TCEQ requires that metering devices have an accuracy of plus or minus five percent (5%) for measuring water diverted from the source of supply. Universal Metering, Testing, Repair and Replacement: A program for universal metering of both customer and public uses of water, for meter testing and repair, and for periodic meter replacement. Determination and Control of Unaccounted-for Water: Specific measures to determine and control unaccounted-for water. The measures may include periodic visual Upper Trinity Regional Water District Water Conservation Plan 14 inspections along distribution pipelines, periodic audits of the water system for illegal connections or abandoned services. Public Education Program: A public education and information program regarding water conservation is required as part of the water conservation plan. Non-Promotional Water Rate Structure: Chapter 288 requires a water rate structure that is not "promotional"; that is, rates that discourage waste and excessive use of water, such as increasing block rate instead of volume discounts. Landscape Water Management Strategy: A strategy for implementing and enforcing the efficient use and stewardship of water in landscape irrigation, including watering a maximum of two times per week; and, including a time-of-day watering provision. Reservoir Systems Operational Plan: If applicable, this requirement is to provide a coordinated operational structure for operation of reservoirs owned by the water supply entity within a common watershed or river basin in order to optimize available water supplies. Coordination with Regional Water Planning Grou [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/4058808. Public record. Not legal advice.