Opinion

Bradley B. Ware v. Texas Commission on Environmental Quality

Court: Texas Court of Appeals, 3rd District (Austin)
Filed: Apr 17, 2015
Status: Published
Cited by: 0 cases
Authority: More cited than 3.1%

The opinion

ACCEPTED

03-14-00416-CV

4941122

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/17/2015 4:32:14 PM

JEFFREY D. KYLE

CLERK

No. 03-14-00416-CV

FILED IN

IN THE C OURT OF A PPEALS 3rd COURT OF APPEALS

AUSTIN, TEXAS

F OR THE T HIRD JUDICIAL D ISTRICT OF T EXAS

4/17/2015 4:32:14 PM

AT A USTIN JEFFREY D. KYLE

______________________________________ Clerk

B RADLEY B. W ARE ,

Appellant,

T EXAS C OMMISSION ON E NVIRONMENTAL Q UALITY ,

Appellee.

______________________________________

Appeal from the 53rd Judicial District Court

Travis County, Texas

Cause No. D-1-GN-10-002342

______________________________________

B RIEF OF A PPELLEE

T EXAS C OMMISSION ON E NVIRONMENTAL Q UALITY

______________________________________

KEN PAXTON JON NIERMANN

Attorney General of Texas Chief, Environmental Protection Div.

CHARLES E. ROY LINDA B. SECORD

First Assistant Attorney General Assistant Attorney General

State Bar No. 17973400

JAMES E. DAVIS Linda.Secord@texasattorneygeneral.gov

Deputy Attorney General for

Civil Litigation

April 17, 2015

TABLE OF CONTENTS

Page

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

I. REPLY POINT PERTAINING TO ALL OF WARE’S POINTS OF

ERROR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Ware’s case is tainted by false assumptions. His permit is limited to a

term of years, but he complains about priority dates as if it were a

perpetual right. He diverts water from a single point far upriver, but he

complains about return flows as if he should have water that is only fully

available where the Brazos meets the Gulf of Mexico. Resting on these

false premises, his entire argument is fatally flawed... . . . . . . . . . . . . . . . . . 8

A. Term permits are not permanent water rights.. . . . . . . . . . . . . . . . . . . 8

B. A term permit is based on marginal water supplies not in use or

contemplated for near-term use by permanent water rights

holders.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

C. No one has a vested right to the issuance of a term permit or a

renewal of a term permit.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

D. The priority dates for term permits are different from those for

permanent water rights... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

E. Given his circumstances, the BRA return flows are just not

available to Ware.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

F. Ware’s interpretation of §§ 11.1381 and 11.134 is incorrect.. . . . . . 16

G. Ware’s false premises are fatal.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

II. REPLY TO WARE’S POINT OF ERROR NO. 1. . . . . . . . . . . . . . . . . . . . 17

A. There is no merit to Ware’s argument that he is entitled to return

flows... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

B. There is more than ample support for TCEQ’s analysis in this

case... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

C. Agency experts did not provide contrary or improper evidence... . . 23

III. REPLY TO WARE’S POINTS OF ERROR NOS. 2 AND 5. . . . . . . . . . . 25

A. In attacking TCEQ’s findings, Ware misconstrues Tex. Water

Code § 11.046(c).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

B. The broader statutory scheme confirms that Ware’s interpretation

of Water Code § 11.046(c) is incorrect.. . . . . . . . . . . . . . . . . . . . . . . 28

C. Ware has misinterpreted the Water Code, but even if he were

right, the proper interpretation of § 11.1046(c) is not dispositive

here. Ware’s renewal was denied based on his location; the order

can and should be affirmed on that basis.. . . . . . . . . . . . . . . . . . . . . 30

IV. REPLY TO WARE'S POINT OF ERROR NO. 3. . . . . . . . . . . . . . . . . . . . 31

A. BRA withdrew its protest of Ware’s renewal application, but that

did not make water available for Ware.. . . . . . . . . . . . . . . . . . . . . . . 31

B. Even if Ware were right that he should have been given a 1997

priority date, it would not matter.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

C. Ware’s cancellation theory is wrong.. . . . . . . . . . . . . . . . . . . . . . . . . 32

iii

V. REPLY TO WARE’S POINT OF ERROR NO. 4. . . . . . . . . . . . . . . . . . . . 34

VI. REPLY TO WARE’S POINT OF ERROR NO. 6. . . . . . . . . . . . . . . . . . . . 37

VII. CONCLUSION: NOT ONLY ARE WARE’S LEGAL THEORIES

WRONG, THE EQUITIES DO NOT FAVOR HIM EITHER.. . . . . . . . . . 38

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

INDEX OF AUTHORITIES

Cases Page

Central Power & Light Co. v. PUC,

36 S.W.3d 547 (Tex. App.–Austin 2000, pet. denied). . . . . . . . . . . . . . . . . . 5

City of Corpus Christi v. Nueces Co. Water Control. & Imp. Dist. No. 3,

540 S.W.2d 357 (Tex. Civ. App.–Corpus Christi 1976,

writ ref’d., n.r.e.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Consumers Water, Inc. v. PUC,

774 S.W.2d 719 (Tex. App.–Austin 1989, no writ). . . . . . . . . . . . . . . . . . . . 5

H.G. Sledge, Inc. v. Prospective Investment and Trading Co., Ltd.,

36 S.W.3d 597 (Tex. App.–Austin 2000, pet. denied). . . . . . . . . . . . . . . . . . 4

Lower Colorado River Auth. v. Tex. Dep’t of Water Res.,

638 S.W.2d 557 (Tex. App.–Austin 1982, rev’d. on other grounds,

689 S.W. 873 (Tex. 1984)). . . . . . . . . . . . . . . . . . . . 8, 10, 11, 12, 27, passim

Meier Infiniti Co. v. Motor Vehicle Board,

918 S.W.2d 95 (Tex. App.–Austin 1996, writ denied).. . . . . . . . . . . . . . . . . 5

Smith Motor Sales, Inc. v. Texas Motor Vehicle Comm’n,

809 S.W.2d 268 (Tex. App.–Austin 1991, writ denied).. . . . . . . . . . . . . . . . 5

Tex. Water Rights Comm’n v. Wright,

464 S.W.2d 642 (Tex. 1971).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Statutes

Tex. Gov’t. Code

§ 2001.060.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

§ 2001.175(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

§ 2001.175(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Statutes (cont’d) Page

Tex. Water Code

§ 11.022. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

§ 11.025. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

§ 11.026. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

§ 11.027. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

§ 11.042. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29

§ 11.042(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

§ 11.042(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

§ 11.046. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 28, 29

§ 11.046(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

§ 11.046(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

§ 11.046(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26, 27, 28, 30

§ 11.046(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

§ 11.046(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26

§ 11.121. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 8,

§ 11.134. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 16

§ 11.134(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

§ 11.134(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 16, 17, 25, 31

§ 11.134(b)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

§ 11.1351. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

§ 11.1381. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 11, 16, 17, passim

§ 11.1381(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11, 12, 16

§ 11.1381(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

§ 11.146. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

§ 11.147. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

§ 11.1471. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

§ 11.1491. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

§ 11.150. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

§ 11.151. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

§ 11.152. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

§ 11.171-.186.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

§ 11.172. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 33

Statutes (cont’d) Page

§ 16.012(g)-(j). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Rules

30 Tex. Admin. Code

§ 297.19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

§ 297.19(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12

§ 297.42(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20

Other References

Act of Mar. 19, 1917, 35th Leg., R.S., ch. 88, § 72,

1917 Gen. Laws 211. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Act of May 21, 1987, 70th Leg., R.S., ch. 405, § 1,

1987 Tex. Gen. Laws 1932. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Act of June 1, 1997, 75th Leg., R.S., ch. 1010, § 2.06,

1997 Tex. Gen. Laws 3610. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Act of June 1, 1997, 75th Leg., R.S., ch. 1010, § 2.07,

1997 Tex. Gen. Laws 3610. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 26

Martin Hubert and Bob Bullock,

Senate Bill 1, the First Big and Bold Step Toward Meeting Texas’s

Future Water Needs, 30 Texas Tech L. Rev. 53 (1999).. . . . . . . . . . . . . . . 29

vii

STATEMENT REGARDING ORAL ARGUMENT

Oral argument is not necessary. This case lends itself to submission on briefs

and a Memorandum Opinion.

Throughout the life of this case, from the SOAH hearing to the Commissioner’s

consideration of SOAH’s PFD to the district court, Appellant Ware has made the

same fundamentally unsound argument based on a misunderstanding of the type of

permit that he holds. No tribunal has agreed with Ware. Having lost at every level,

he now presents a third round of the same briefing. Appellee Texas Commission on

Environmental Quality submits that these written materials amply illustrate the flaws

in Ware’s case so that the Court may decide the issues without oral argument.

The Commission welcomes oral argument when the Court deems it useful and

asks to be allowed to participate should the Court grant Ware’s request.

viii

No. 03-14-00416-CV

IN THE COURT OF APPEALS

FOR THE THIRD JUDICIAL DISTRICT OF TEXAS

AT AUSTIN

______________________________________

BRADLEY B. WARE,

Appellant,

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY,

Appellee.

______________________________________

Appeal from the 53rd Judicial District Court

Travis County, Texas

Cause No. D-1-GN-10-002342

______________________________________

BRIEF OF APPELLEE

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

______________________________________

TO THE HONORABLE COURT OF APPEALS:

Appellant Bradley B. Ware (“Ware”) appeals the decision of Appellee the

Texas Commission on Environmental Quality (“Commission” or “TCEQ”)1 denying

References to the TCEQ in this brief also refer to its predecessor agencies as applicable for

the timeframe being discussed. These would include the Texas Board of Water Engineers, the Texas

Water Commission, the Texas Water Rights Commission, the Texas Department of Water

Resources, and the Texas Natural Resource Conservation Commission.

renewal of his 1997 permit allowing him to divert state water for a term of ten years.

The district court order affirmed TCEQ’s decision; this Court should affirm as well.

STATEMENT OF FACTS

In 1997, Ware was issued term Permit No. 5594, which authorized him to

divert 130 acre–feet of water per year from the Lampasas River in Bell County,

upstream of Stillhouse Hollow Reservoir.2 This permit was for a “run of the river”

right. That means that the permit did not authorize Ware to store water, e.g., in wetter

times for use in drier times. Instead, Ware was authorized to divert water directly out

of the Lampassas River and use it to irrigate.3

The 1997 Permit No. 5594 contains a special condition providing that it was

to become null and void on November 7, 2007, unless Ware applied for an extension

prior to that time and the extension was subsequently granted.4 On March 20, 2006,

he filed an application to renew or in the alternative to convert his permit to a

A copy of the permit is attached to Ware’s application, both of which were introduced into

evidence in the administrative hearing as Applicant’s Exhibit No. 2. See Administrative Record

(“AR”) Vol. 5, Item No. App 2. A copy of Permit No. 5594 is attached at Appendix Tab A.

Id. No storage is authorized in the permit and TCEQ authorization to store water is

required under Tex. Water Code § 11.121. A copy of the statutes cited in this brief are at Appendix

Tab D.

See Appendix Tab A (Permit No. 5594, Special Condition 3.b., p. 2).

permanent water right.5 The staff of the TCEQ Executive Director (“ED”) reviewed

Ware’s application using the Water Availability Model for the Brazos River Basin for

current conditions, i.e., for water availability (including all water use and return

flows) as of 2006, and determined that there was not enough water available to grant

the application for either a permanent or a term permit.6 The ED recommended denial

and the matter was heard in an evidentiary hearing conducted by a SOAH

Administrative Law Judge (“ALJ”)7 who issued a Proposal for Decision (“PFD”)

recommending denial.8 The TCEQ Commissioners denied Ware’s application by

order dated April 23, 2010.9 The district court affirmed the agency’s decision in an

order issued June 11, 2014.10

STANDARD OF REVIEW

Ware’s brief lacks a statement of the standard of review but his argument

repeatedly focuses on a lack of substantial evidence to support the order or on

AR, Vol. 1, Item No. 1E (letter from Kathy Hopkins, TCEQ Project Manager, to Bradley

Ware).

AR, Vol 5, Exhibit App. 47 (Water Availability Review Memorandum); Testimony.of

Jeffrey Thomas, AR Vol. 7, (Transcript Vol.1), p. 82.

See Transcripts, AR Vol. 7 (October 28, 2009) and Vol. 8 (October 29, 2009).

See PFD, pp. 28–29, AR, Vol. 4, Item No. 58A. A copy of the PFD is at Appendix Tab B.

AR, Vol. 4, Item No. 64 (TCEQ’s Final Order). A copy is at Appendix Tab C.

CR at 446.

references to the contents of the record to support his claims. He also frequently

asserts that the agency decision is arbitrary and capricious, an abuse of discretion, and

tainted by unlawful procedure and an incorrect interpretation of the Water Code. All

of this indicates Ware’s recognition that because this is a suit for judicial review of

a TCEQ order issued after a contested case hearing at the State Office of

Administrative Hearings (“SOAH”), the substantial evidence standard of review

applies.

Reflecting our constitutional commitment to keeping the powers of three co-

equal branches of government separate, “substantial evidence review” is a standard

of review that governs the relationship between the executive branch’s state agencies

and the judiciary. Under this standard of review, agency orders are deemed valid,

findings of fact are reviewed for support by substantial evidence, legal conclusions

are reviewed for errors of law, and the proper test is whether the evidence in its

entirety is such that reasonable minds could have reached the conclusion that the

agency must have reached to justify its decision or whether the agency acted

arbitrarily and without regard to the facts.11 As to what the facts are, the agency is the

H.G. Sledge, Inc. v. Prospective Investment and Trading Co., Ltd., 36 S.W.3d 597, 602

(Tex. App.—Austin 2000, pet. denied).

sole judge of the weight of the evidence and the credibility of the witnesses.12

Challenges to agency orders often contain “arbitrary and capricious” claims.

This Court has explained that agency actions challenged as arbitrary and capricious

are reviewed for abuse of discretion.13 Thus, in performing substantial evidence

review of an agency decision, reviewing courts often use the abuse of discretion

standard to determine whether an agency committed error. Under the abuse of

discretion standard, a court (or agency) abuses its discretion if it acts without

reference to any guiding rules or principles.14

Courts conducting substantial evidence review do not second-guess an agency.

This Court has long held that it is the agency that determines which factors to

consider, how much weight to give each, and how to weigh conflicting evidence.15

In this case, Ware often tries to avoid the effect of the substantial evidence

standard of review by describing the agency as misinterpreting the Water Code or

using an unlawful procedure. Even if he were right, these complaints are just one

Central Power & Light Co. v. PUC, 36 S.W.3d 547, 561 (Tex. App.—Austin 2000, pet.

denied).

Consumers Water, Inc. v. PUC, 774 S.W.2d 719, 721 (Tex. App.—Austin 1989, no writ).

Smith Motor Sales, Inc. v. Texas Motor Vehicle Comm’n, 809 S.W.2d 268, 270 (Tex.

App.—Austin 1991, writ denied).

Meier Infiniti Co. v. Motor Vehicle Board, 918 S.W.2d 95, 100 (Tex. App.—Austin 1996,

writ denied) (“[t]his Court will neither substitute its own judgment as to which factors the agency

should consider to be the most important nor make a de novo determination of good cause.”).

type of error that an agency can commit. Allegations of such error fit within the

substantial evidence standard of review. Indeed, the APA specifically mentions

errors of law and unlawful procedure in its list of reversible error.

This case does not require the Court to test the limits of this standard of review.

The record amply supports the order. The agency’s legal conclusions are correct and

in accord with the judicial and legislative directives providing that term permits, such

as Ware’s, cannot infringe on permanent water rights. Further, no unlawful

procedures were used, nor any constitutional or statutory provisions violated.

SUMMARY OF THE ARGUMENT

Virtually all of Ware’s arguments flow from two broad complaints: (1) that

TCEQ analyzed the amount of water available for the renewal of his term water rights

permit based on what he contends is an incorrect priority date; and (2) there is

additional water in the Brazos River Basin that could have been allocated to his

application. For both of these complaints, Ware compares his application with that

of the Brazos River Authority (“BRA”), who holds a permanent water right and

operates a system of reservoirs throughout the Brazos River basin.

Ware holds a specialized type of water use permit known as a “term” permit.

His 1997 term permit had a renewal provision but could not be renewed because

agency staff concluded—using a legislatively mandated computer model as well as

information and theories put forth by Ware—that there was not enough water

available at his diversion point to grant him another term. In urging that there was

enough water, Ware insists that BRA’s application indicated that there was water in

the form of “return flows” that could and should have been allocated to Ware under

a “priority date” senior to BRA. These aspects of water rights—term permits, their

priority dates, and return flows—are the core of this case.

Legally, his arguments are based on the flawed assumption that the law

requires TCEQ to grant a permit or renewal under the conditions he describes in his

brief. The law does no such thing. He also misapprehends the legal nature of a term

permit as compared to the nature of a permanent water right, and so he misconstrues

what his rights are and what the significance of a priority date is for a term permit.

Finally, he incorrectly views the return flows associated with BRA’s application (for

want of a better term, “BRA’s return flows”) as available to him. Ware makes this

mistake because he fails to appreciate that the circumstances of his water use are very

different from BRA’s.

ARGUMENT

I. REPLY POINT PERTAINING TO ALL OF WARE’S POINTS OF ERROR

Ware’s case is tainted by false assumptions. His permit is limited to

a term of years, but he complains about priority dates as if it were

a perpetual right. He diverts water from a single point far upriver,

but he complains about return flows as if he should have water that

is only fully available where the Brazos meets the Gulf of Mexico.

Resting on these false premises, his entire argument is fatally

flawed.

A. Term permits are not permanent water rights.

No one may take, store, or divert State Water (water in rivers, lakes, creeks, or

in the Gulf of Mexico) without authorization from the TCEQ.16 The Water Code

authorizes a number of different types of water rights, including what are called

“permanent water rights”17 and water rights granted under what are called “term

permits.”18

A permanent water right is an incorporeal right to use water.19 The right vests

in the water rights holder to the extent that the holder makes (and continues to make)

Tex. Water Code § 11.121. There are exceptions to the requirements of § 11.121, but they

are not applicable to the case at bar.

TCEQ derives its general authority to issue water rights permits under Tex. Water Code

§§ 11.022, 11.121, 11.134, and other provisions in Chapter 11 of the Code.

Term Permits are authorized under Tex. Water Code § 11.1381.

Lower Colorado River Auth. v. Tex. Dep’t of Water Res., 638 S.W.2d 557, 562 (Tex.

App.—Austin 1982), rev’d. on other grounds, 689 S.W.2d 873 (Tex. 1984), (citing Tex. Water

Rights Comm’n v. Wright, 464 S.W.2d 642 (Tex. 1971)).

beneficial use of the water in accordance with the terms of the permit.20 It is subject

to forfeiture or cancellation for nonuse.21 It is subject to loss by prescription.22

Nevertheless, to the extent that a permit holder continues to make beneficial use of

the water authorized for a permanent water right, the right continues in effect.23

A term permit, on the other hand, is just what its name implies. It is a right to

use water for a term of years.24 Unlike a permanent water right, a term permit does

not continue in effect so long as the water authorized under the permit continues to

be put to beneficial use. Both Tex. Water Code § 11.1381 and the TCEQ rule

addressing term permits at 30 Tex. Admin. Code § 297.1925 contemplate that term

permits are for a term of years, not a perpetual right. As noted above, Ware’s Permit

No. 5594 stated that it became null and void on a certain date if an application to

See Tex. Water Code §§ 11.022, .025, and .026. See also, Wright, 464 S.W.2d at 647–48.

See Tex. Water Code § 11.146 (forfeiture for failure to commence construction of

necessary dams and facilities to use the water) and §§ 11.171–.186 (cancellation for nonuse).

City of Corpus Christi v. Nueces Co. Water Control. & Improvement Dist. No. 3, 540

S.W.2d 357, 375-76 (Tex. Civ. App.—Corpus Christi 1976, writ ref’d., n.r.e.).

See Wright, 464 S.W.2d at 649, where the Texas Supreme Court held permits were “grants

to the permittees of usufructuary rights to the State’s water upon the implied condition subsequent

that the waters would be beneficially used.”

Tex. Water Code § 11.1381(a); 30 Tex. Admin. Code § 297.19(a). A copy of the rules

referenced in this brief is at Appendix Tab H.

30 Tex. Admin. Code § 297.19. Water Code §§ 11.153–.155 referenced in § 297.19

relate to a specialized use of water under term permits (aquifer storage). These Water Code sections

are not germane to the case at bar.

renew was not timely filed and if the renewal was not granted.26

B. A term permit is based on marginal water supplies not in use or

contemplated for near–term use by permanent water rights holders.

In order for TCEQ to grant an application for a permanent water right, TCEQ

must find that there is unappropriated water available in the “source of supply,” i.e.,

in the stream from which the would–be permittee wants to take water.27 In 1984, the

Texas Supreme Court construed that Water Code requirement in Lower Colorado

River Authority. v. Texas Department of Water Resources (also called the “Stacy Dam

case,”).28 In the Stacy Dam case, the Colorado River Municipal Water District

(“CRMWD”) applied for a permit to construct what is now O. H. Ivie Reservoir in

Coleman, Concho, and Runnels Counties. There was insufficient water available in

the Upper Colorado River to permit the reservoir unless TCEQ took into account

water that was permitted to the Lower Colorado River Authority (“LRCA”) but was

not being used by LRCA. TCEQ granted CRMWD’s permit application over

LCRA’s protest and LCRA appealed.

The Texas Supreme Court reversed the agency’s decision and the judgments

of both the district court and the court of civil Appeals. The Court held that TCEQ

See Permit No. 5594, Special Condition 3.a , p. 2.

See now Tex. Water Code § 11.134(b)(2).

689 S.W.2d 873 (Tex. 1984).

must take into account the entire amount of water already permitted in the stream

when considering a new application for a water right. TCEQ could not base the new

permanent water right on water that was permitted to others but was not being used.

The Court held that in amending certain water laws, the Legislature had “explicitly

shown its purpose to interdict ‘double permitting’ of water.”29

After the Stacy Dam opinion was issued, the Legislature authorized the

issuance of term permits under what is now codified as Water Code § 11.1381.30 As

noted above, § 11.1381 allows TCEQ—in its discretion—to authorize temporary use

of water that is already permitted to others but is not being used.31 TCEQ witness

Kathy Alexander explained it in her testimony before SOAH in this case:

[A]n appropriative [i.e., permanent] water right is a water right that gets

water that’s never been given to anyone else before. A term water right

is . . . an authorization to use water that we’ve previously given to

someone else which they’re either not using in whole or in part.32

This reflects the language of the applicable TCEQ rule, which provides that TCEQ

may issue a term permit for appropriated water when there is insufficient

689 S.W. 2d at 878.

Act of May 21, 1987, 70th Leg., R.S., ch. 405, § 1, 1987 Tex. Gen. Laws 1932. A copy

is at Appendix Tab F.

Section 11.1381(a) says in part, “The commission may issue permits for a term of years

for use of state water to which a senior water right has not been perfected.” (Emphasis added.)

Testimony of Dr. Kathy Alexander. AR. Vol. 8, (Transcript, Vol. 2), p. 345, ln. 6–11.

un–appropriated water available to satisfy an application, i.e., for a permanent water

right.33 Clearly, the unused water must be there in order for TCEQ to authorize a term

permit or permit renewal.34 TCEQ does perform an analysis to determine if there is

water available for a term permit. TCEQ staff performs a simulation on its water

availability model, called a “current conditions” run.

C. No one has a vested right to the issuance of a term permit or a renewal of

a term permit.

It is important to note that absolutely nothing in the law mandates the issuance

or renewal of a term permit. The Water Code says TCEQ “may” issue term permits,35

as does the relevant TCEQ rule.36 Term permits are a means for TCEQ to promote

what TCEQ determines to be optimum use of the State’s water resources while

holders of permanent rights develop their rights to use the water. Term permits were

not—and under the Stacy Dam case, they could not be—intended as perpetual grants

of water rights.

See 30 Tex. Admin. Code § 297.19(a).

Id.

Tex. Water Code § 11.1381(a).

30 Tex. Admin. Code § 297.19(a).

D. The priority dates for term permits are different from those for permanent

water rights.

Ware relies heavily on the doctrine that in water rights, first in time is first in

right. But Ware fails to appreciate that term permits are subordinate to permanent

permits. Water Code § 11.1381(d) states that “[a] permit issued under this section is

subordinate to any senior appropriative water rights.” The term “any” and the use of

the plural “senior appropriative water rights” was best characterized by TCEQ

hydrologist Dr. Kathy Alexander, who testified that a term water right is a second

class permit.37

As discussed more fully below, in determining which water user is “first in

time,” term permits and permanent water rights do not mix. A term permit will trump

other, later, term permits. A permanent water right will trump other, later, permanent

water rights. But a permanent water right will always trump a term permit. Each type

of water right has its own timeline for determining who is first. The priority dates for

term permits such as Ware’s are not dots occurring on the same timeline as for

permanent water rights such as BRA’s.

Ware also fails to understand another aspect of priority dates. While Ware’s

1997 term permit’s priority date clause gives him a first in time right over other term

Testimony of Dr. Kathy Alexander. AR Vol. 8, (Transcript, Vol. 2), p. 345, ln.12-15.

permits with later priority dates, that 1997 date is only important if a new term is

authorized. Because term permits may only authorize water that is available on the

margins, any renewal request must be judged based on the water available for the

renewal term. In deciding whether to authorize a renewal, TCEQ must look at current

conditions and use a priority date related to the renewal application. Had there been

water available and the renewal issued, Ware would have then benefitted from his

1997 date vis a vis other term permit holders.

Thus, Ware’s insistence on 1997 as his priority date as a date that should have

led to his renewal being granted is wrong on two fronts. That 1997 date does not put

Ware’s term permit date ahead of BRA’s permanent water right nor does it play any

part in determining water availability for the renewal term requested.

E. Given his circumstances, the BRA return flows are just not available to

Ware.

The extra water that Ware claims was available for him was, from a

hydrological and legal standpoint, not really there at his location on the river for

direct diversion from the Lampasas River when and where he wants. Water rights can

seem metaphysical: someone can see water flowing past his farm and be told that he

cannot have it, even if there seems to be plenty. But that is because it may already

have been appropriated to someone else who lives downstream. The Commission is

charged with protecting that someone else and with managing all of the water in the

entire basin of a Texas river. It is a delicate balance between protecting permanent

water rights and issuing term permits to avoid waste of water that those permanent

rights holders are not currently using.

In this case, the Commission could not strike the balance in Ware’s favor for

several reasons.38 First, Ware does not create any return flows from the water that he

diverts. Second, he directly diverts from a single point far upstream from the mouth

of the Brazos at the Gulf of Mexico. Third, as a term permit holder, he is subordinate

to all holders of permanent water rights.

These factors all work against Ware’s obtaining any BRA return flows. BRA

manages many reservoirs but Ware has no storage to tap into to cover shortages.

With his upriver diversion point, the BRA return flows (only fully available

hydrologically at the Gulf) are not counted as available to him. And he is subordinate

to BRA and all other permanent water rights holders. As the Commission explained,

the BRA return flows were already reserved for downstream use when Ware sought

renewal and were needed for the overall management of the basin.39

Perhaps the clearest explanation of the issues in this case is the ED’s Response to Ware’s

written closing arguments after the close of the SOAH evidentiary hearing. It is Item 57 in Volume

4 of the administrative record; a copy is at Appendix Tab I.

AR, Vol. 4, Item No. 57, p. 6.

F. Ware’s interpretation of §§ 11.1381 and 11.134 is incorrect.

Both in Point of Error No. 2 and Point of Error No. 5, Ware proceeds from the

false assumption that § 11.1381 relating to term permits and § 11.134 relating to

TCEQ consideration of permit applications somehow require TCEQ to issue permits

if certain conditions are met. A cursory look at the black letter law demonstrates that

this is not the case.

The term permit statute says that TCEQ “may”grant term permits.40 There is

no “shall” associated with the granting of term permits in that section or elsewhere

in the statutes. And, while Ware discusses Water Code § 11.134(b) at length in his

brief, he fails to quote—or even mention – § 11.134(a). Subsection (b), which Ware

does discuss, merely provides that TCEQ may not grant a permit application unless

certain conditions are met. Subsection (a), though, is key to determining what

TCEQ’s obligations are under § 11.134. Subsection (a) indicates that TCEQ has no

obligation to grant Ware’s permit renewal:

(a) After the hearing, the commission shall make a written decision

granting or denying the application. The application may be granted or

denied in whole or in part.41

Indeed, when one considers the entire statutory scheme relating to water rights, it is

Tex. Water Code § 11.1381(a).

Tex. Water Code § 11.134(a). (Emphasis added.)

apparent that the focus is on insuring that the granting of new or amended rights does

not adversely impact senior water rights holders and the environment. Water Code

§ 11.134(b) provides that TCEQ may not grant a permit unless a litany of conditions

listed therein are fulfilled and a litany of other items are considered first. Water Code

§ 11.1381 also contains express prohibitions against granting a term permit if certain

conditions are present. Water Code § 11.1351 expressly allows TCEQ to place

restrictions on permits that are granted. Sections 11.147, 11.1471, 11.1491, 11.150,

and 11.152 all relate to obligations that TCEQ has to protect the environment and

water quality when considering permits. Section 11.151 requires TCEQ to consider

the groundwater impacts of an application.

G. Ware’s false premises are fatal.

Because Ware’s argument is infused by and tainted with misunderstanding of

term permits, priority dates, the availability of return flows, and the TCEQ’s

obligation to grant permits, it should be rejected by this Court as it was by the SOAH

ALJ, the agency, and the district court.

II. REPLY TO WARE’S POINT OF ERROR NO. 1

A. There is no merit to Ware’s argument that he is entitled to return flows.

On pages 13–15 of his brief, Ware argues that a 2008 TCEQ analysis for a

Brazos River Authority (“BRA”) permit application found approximately 74,000

acre–feet of return flow water available for appropriation in the Brazos Basin. He

complains that none of these flows were allocated to him, i.e., that TCEQ did not

consider these flows as being available for him to take. TCEQ expert Kathy

Alexander explained why these return flows were not allocated to Ware. Dr.

Alexander testified:

The only water that would be available for Mr. Ware’s application

would be those return flows that could exist or not in the watershed of

the Lampasas River and our current conditions model does include those

return flows as part of flow and even with those return flows in the

model, we still could not find water available for Mr. Ware’s

application.42

Regarding the 74,000 acre–feet of return flows themselves, Dr. Alexander testified

that they were:

[T]he result of different return flow locations throughout the [Brazos

River] basin and the availability analysis was done at the Brazos River

Authority’s requested diversion point at the Gulf of Mexico, which is

the most downstream place in the river basin, and the Executive Director

had also recommended that prior to reuse of any of these return flows

that the Brazos River Authority submit an accounting plan and a water

management plan and a whole host of other items that would limit or

direct how these flows would be used.43

Dr. Alexander also testified that BRA might be able to divert water downstream of

its 12 reservoirs as opposed to down at the Gulf of Mexico. She explained that was

Testimony of Dr. Kathy Alexander. AR, Vol. 8, (Transcript, Vol. 2), p. 384, ln. 1–7.

Id., p. 360–61, ln. 3-13.

possible because BRA has a number of large permitted reservoirs and, “should a

shortage occur . . . as a result of diversions of those return flows, the BRA has a

number of sources and a system operation permit that would allow them to make up

those shortages in downstream senior water rights.”44 When asked why Ware could

not do that, Dr. Alexander testified:

Mr. Ware’s application is a direct diversion from the stream. If he were

taking other people’s water, there’s no way for him to give it back

without reservoir storage or some other option.45

Dr. Alexander’s testimony on the lack of available water quoted above is

consistent with the policy expressed in TCEQ’s “75–75 Rule”, which provides in

relevant part as follows:

For the approval of an application for a direct diversion from a stream

without sufficient on or off channel water storage facilities for irrigation,

approximately 75% of the water requested must be available

approximately 75% of the time when distributed on a monthly basis and

based upon the available historic stream flow record. . .46

TCEQ staff’s water availability review showed that 75% of the water Ware was

requesting would be available in only 5.2% of the years of the period of record.47

Id., p. 361, ln. 7–20.

Id., p. 361, ln. 21–25.

30 Tex. Admin. Code § 297.42(c).

See Water Availability Review. AR, Vol. 5, Item No. App. 47, p. 1.

TCEQ may grant an exception to the “75–75 Rule” provided the applicant “can

demonstrate that a long-term, reliable, alternative source or sources of water of

sufficient quantity and quality are economically available to the applicant to make the

proposed project viable and ensure the beneficial use of state water without waste.”48

In this case, TCEQ staff suggested to Ware that he secure an alternate source of water

in a letter dated March 20, 2006.49 However, Ware provided no evidence of alternate

sources that would satisfy the requirements of this exception.

B. There is more than ample support for TCEQ’s analysis in this case.

The record is replete with support for TCEQ’s analysis in this case. The

applicable law supports it as well. In 1997, the Texas Legislature enacted an omnibus

water bill known as “Senate Bill 1.”50 As part of Senate Bill 1, the Legislature

required TCEQ to “obtain or develop an updated water availability model” for all

river basins in Texas by December 2001 and, upon developing the models, to provide

comprehensive new information to water rights holders and water planners about

water availability and potential environmental impacts of drought.51

30 Tex. Admin. Code § 297.42(c).

AR, Vol. 6, Item No. ED 5, p. 1.

Act of June 1, 1997, 75th Leg., R.S., ch. 1010 § 2.07, 1997 Tex. Gen. Laws 3610. A copy

is at Appendix Tab G.

Id. at 3679–80, § 7.01, codified as Tex. Water Code § 16.012(g)–(j).

The model software was developed and revised by Dr. Ralph Wurbs from

Texas A&M University.52 The model was the collaborative work of consultants,

TCEQ, the Texas Water Development Board, environmental agencies, and others.53

Hydrology witness Jeffrey Thomas, a registered professional engineer and registered

professional geologist who had performed water availability analyses for TCEQ for

over 10 years at the time,54 testified that, to his knowledge, the Brazos water

availability model was the most accurate method of determining water availability

that was available at the time of the hearing.55

Both Mr. Thomas and Dr. Kathy Alexander (who at the time was a doctoral

candidate, who had a Masters of Science in Applied Geography, Water Resource, and

Environmental Management, who had worked on water availability model

development teams and worked as a hydrologist for TCEQ for almost 10 years )56

testified that extending the period of record for the model, as Ware’s witness Sam

Jones suggested, would only add data that was within the range of water variability

Testimony of Jeffrey Thomas. AR, Vol. 7 (Transcript Vol. 1), p. 73, ln. 17–19.

Id., p. 176, ln. 7–10.

Resume of Jeffrey C. Thomas, P.E., P.G. AR, Vol. 6, Item ED-1.

Testimony of Jeffrey Thomas. AR, Vol. 7 (Transcript Vol. 1), p. 174, ln. 5–9.

Resume of Kathy Alexander. AR, Vol. 6, Item ED-6.

already contemplated by the model.57

In contrast to the testimony of Mr. Thomas and Dr. Alexander, the testimony

of Ware’s technical witness, Mr. Sam Jones, lacked credibility. Mr. Jones conceded

that he was not an expert on the TCEQ’s water availability models.58 While he

worked in TCEQ’s water rights adjudication program, he admitted that he did not

work with models in that job.59 He admitted that he had never worked with any type

of model or any other analytical framework to determine whether there was water

available in a stream in the manner used by TCEQ.60

Ware claims that the Commission ignored record evidence and that the only

reliable evidence favors him. Not so. Neither the SOAH ALJ nor the TCEQ

Commissioners was persuaded by Mr. Jones’s testimony and by Ware’s theory that

he should have been given some of the water identified in BRA’s application as

return flows—water with a diversion point far from Ware’s location and subject to

a very different type of permit including a water management plan for ensuring that

other water rights are protected.

Testimony of Jeffrey Thomas. AR, Vol. 7 (Transcript Vol. 1), p. 114, ln. 6–p. 115, ln. 25;

Id., p. 176, ln 2–p. 177, ln. 1. Testimony of Kathy Alexander. AR, Vol. 8 (Transcript Vol. 2), p.

346, ln. 19–p. 348, ln. 3.

Testimony of Samuel W. Jones. AR, Vol. 7 (Transcript, Vol. 1), p 219, ln. 15–18.

Testimony of Samuel W. Jones. AR, Vol. 7 (Transcript, Vol. 1), p. 220, ln. 15–17.

Testimony of Samuel W. Jones. AR, Vol. 8 (Transcript, Vol. 2), p. 294, ln. 3–12.

Ware’s evidentiary arguments under Point of Error No. 1 are actually a

statement of his disagreement with the conclusions TCEQ reached on the evidence,

not on a lack of evidence to support TCEQ’s decisions nor on the agency ignoring the

record evidence. The record evidence amply supports the Commission’s decision not

to allocate to him the BRA return flows that are the subject of Ware’s Point of Error

No. 1. He cannot ask the Court to substitute the Court’s—or his—findings on the

evidence for those of the agency.

C. Agency experts did not provide contrary or improper evidence.

At pages 15-17 of his brief, Ware asserts that TCEQ’s decision was based on

an unlawful procedure occurring at the open meeting in which the TCEQ

Commissioners considered the PFD from the SOAH ALJ. Ware claims that agency

staff responded to questions from the Commissioners with statements that were

contrary to their testimony at the SOAH hearing and that the Commissioners in turn

treated these answers as evidence. Ware’s claim is meritless.

First, Ware’s claim cannot be substantiated because he did not request that the

transcript of the Commissioner’s meeting be included in the administrative record.

The Administrative Procedure Act does not list transcripts of these open meetings as

a necessary part of the record, and they are not usually included.61 But Ware did not

Tex. Gov’t Code § 2001.060.

even try to have a transcription included by utilizing the statutory provision

authorizing a court to permit additions to the record.62

Second, although Ware tags it an unlawful procedure, there is nothing improper

about the Commissioners asking questions and receiving answers from staff at an

open meeting. From Ware’s unsubstantiated description of the exchange, the

questions were about the record, which is the very point of such a public meeting.

Third, Ware’s unsubstantiated description of staff answers do not demonstrate

that they contradicted earlier testimony before SOAH. According to Ware,

Dr. Alexander told the Commissioners that the BRA return flows were considered in

determining water available for Ware. At the SOAH hearing, Ware’s counsel asked

if the ED had run any analysis using the information Ware put forward through its

witness Mr. Jones or had asked TCEQ expert Mr. Thomas about. Dr. Alexander

answered that they had.63 Ware’s case focused heavily on return flows.

Dr. Alexander said that the ED had run an analysis using information from Ware’s

witnesses; that surely included return flows. Clearly, staff had considered Ware’s

attack on their 2006 Water Availability Memorandum (Applicant’s Exhibit 47) and

determined that his information did not change the unfortunate reality that there is not

Tex. Gov’t Code § 2001.175(b).

Testimony of Dr. Kathy Alexander. AR, Vol. 8, (Transcript Vol. 2), p. 370, ln. 12-22.

enough water to grant his renewal request. Dr. Alexander did not contradict this

testimony when she answered Commissioners questions.

III. REPLY TO WARE’S POINTS OF ERROR NOS. 2 AND 5

In Points of Error Nos. 2 and 5, Ware cites to a number of statutes, but

particularly to Texas Water Code §§ 11.1381 (relating to term permits), 11.046(e)

(relating to return of surplus waters to streams), and 11.134(b) (relating to TCEQ’s

consideration of permit applications). He attempts to weave those statutory

provisions into evidentiary arguments he makes about water availability, apparently

in an attempt to suggest that he has some entitlement to receiving a permit renewal

based on these statutes. Ware is wrong.

A. In attacking TCEQ’s findings, Ware misconstrues Tex. Water Code

§ 11.046(c).

In Point of Error No. 2, Ware attacks the Commission’s Finding of Fact No. 44,

which states:

44. The addition of “new water,” if it were proved to exist, would be

subject to all prior appropriation rights of senior water rights

holder[s] and could not be treated as available for new

allocation.64

Ware argues that this finding is inconsistent with language in Tex. Water Code

TCEQ’s Final Order. AR, Vol. 4, Item No. 64, p. 5.

§ 11.046(c),65 but in so doing, Ware misconstrues the statute.

Section 11.046(a) provides that surplus waters be conducted back to streams

by gravity flow, whenever practicable. That language has been in the Texas

statutes—virtually unchanged—since at least 1917.66 The Legislature added

Subsections (b), (c), and (d) to the statute in 1997 as part of Senate Bill 1.67

Notably, § 11.046(b) authorizes TCEQ to place conditions on any permit that

requires certain percentages of water to be returned to streams at certain places, “to

protect senior downstream permits, certified filings, or certificates of adjudication

or to provide flows for instream uses or bays and estuaries.”68 Section 11.046(b)

does not allow TCEQ to reserve water for new permit holders or junior permit

holders; it speaks in terms of protecting senior water rights holders, of allowing

surplus water to flow to senior water rights holders.

The first part of Water Code § 11.046(c) provides that a water rights holder

may use and reuse the water allocated under the permit as provided in the permit, but

Ware’s Brief at 20-21. Ware also discusses § 11.046(e) in more detail in his Point of Error

No. 5. See Ware’s Brief at 32-38.

Act of Mar. 19, 1917, 35th Leg., R.S., ch. 88, § 72, 1917 Tex. Gen. Laws 211, 229. A

copy is at Appendix Tab E.

Act of June 1, 1997, 75th Leg., R.S., ch. 1010 § 2.07, 1997 Tex. Gen. Laws 3610, 3620.

A copy is at Appendix Tab G. A copy of Tex. Water Code § 11.046 in its current form (unchanged

from 1997) is at Appendix Tab D.

(Emphasis added.)

it is the second part of Water Code § 11.046(c) that Ware emphasizes—and

misconstrues. It provides as follows:

Once water has been diverted under a permit, certified filing, or

certificate of adjudication and then returned to a watercourse or stream,

however, it is considered surplus water and therefore subject to

reservation for instream uses or beneficial inflows or to appropriation

by others unless expressly provided otherwise in the permit, certified

filing, or certificate of adjudication.69

Ware contends both in Point of Error No. 2 and Point of Error No. 5 that return flows

should be available to him under a term permit by virtue of this language.70 But there

are several flaws in his reasoning. First, Ware seeks a term permit (or renewal of a

term permit). As discussed at the beginning of this brief, a term permit is given for

water that is already subject to appropriation by another person but is simply not

being used at present. There is no law that allows a person to appropriate another

person’s water under a term permit. As discussed above, the Stacy Dam decision

would prohibit that.

Additionally, the term “appropriation by others” in § 11.046(c), when read in

context with the rest of the statute, clearly does not mean surplus water released into

a river is somehow preserved for use by junior water rights holders or term permit

(Emphasis added.)

Ware’s Brief at 20-21; 32-38.

holders when there are substantial numbers of senior water rights holders who do

have senior rights to appropriate water in the river.71 And that is the case in the

Brazos Basin. It is undisputed that there are rights on the Lampasas River and

downstream on the Brazos River that are senior to Ware’s claimed 1997 priority date.

B. The broader statutory scheme confirms that Ware’s interpretation of

Water Code § 11.046(c) is incorrect.

As noted above, the additions to § 11.046, including Subsection (c), were part

of Senate Bill 1. Related changes were made to Tex. Water Code § 11.042, relating

to the movement of groundwater and surface water down the bed and banks of Texas

streams.72 Section 11.042 as amended by Senate Bill 1 provided TCEQ with authority

to impose restrictions on the use of river beds and banks for the conveyance of water,

including water that originated in streams and water that originated in underground

aquifers. TCEQ was authorized to impose restrictions to protect water rights in the

streams and to address environmental issues as well.73 The purpose of amendments

to §§ 11.042 and 11.046 were explained in a commentary by Martin Hubert, general

counsel to former Lieutenant Governor Bob Bullock, and Governor Bullock

As Ware emphasizes in his brief, the law provides that “As between appropriators, the first

in time is first in right.” Tex. Water Code § 11.027.

Act of June 1, 1997, 75th Leg., R.S., ch. 1010, § 2.06, 1997 Tex. Gen. Laws 3610, 3620.

A copy is at Appendix Tab G.

Tex. Water Code § 11.042(b) and (c).

himself.74 The authors explained these changes in the context of water reuse. They

wrote:

While reuse has been proven to decrease the total amount of water

needed by a user, it also decreases the amount of water available to

downstream users because more water is reused and less water is

discharged. As a result, there is less water available for the

environmental needs of instream flows, bays, and estuaries.

Additionally, less water is available to downstream users dependent on

discharged water. These situations present an especially critical

problem in already over-appropriated rivers and streams.75

Specifically citing both §§ 11.042 and 11.046 in a footnote, they continued:

S.B. 1 addresses this situation by balancing the needs of upstream and

downstream interests.

The changes to § 11.046 cited by Ware were not made to insure that junior

water rights holders and term permit applicants were guaranteed an increment of

water. They were made to balance the needs and interests of existing senior

appropriators and the environment in the face of growing demand for water recycling.

Finally, Ware improperly attempts to bolster his argument by claiming that the

ALJ who heard the BRA application accepted Ware’s interpretation of § 11.046 and

rejected the ED’s interpretation.76 But the ALJ said that he disagreed with both

Martin Hubert and Bob Bullock, Senate Bill 1, the First Big and Bold Step Toward

Meeting Texas’s Future Water Needs, 30 Texas Tech L. Rev. 53 (1999).

Id. at 62 (footnotes in text omitted).

Ware’s brief at 36, relying on Ware’s Exhibit I.

parties’ competing analyses, so Ware’s reliance is misplaced.77 Moreover, Ware

himself has said that the BRA matter was remanded to SOAH, so it remains to be

seen how much of the first BRA PFD remains intact.

C. Ware misinterprets the Water Code, but even if he were right, the proper

interpretation of § 11.046(c) is not dispositive here. Ware’s renewal was

denied based on his location; the order can and should be affirmed on that

basis.

At Finding of Fact No. 45, the TCEQ order denying Ware’s renewal finds that

BRA’s requested return flows become available only at the furthest downstream point

in the Brazos River basin. This is in accord with the testimony of Dr. Kathy

Alexander, who performed the water availability analysis for the BRA application and

testified that the analysis used a diversion point of the Gulf of Mexico, the furthest

downstream point.78 Ware’s diversion point is well upstream from that. The return

flows are simply not available to him.

This was more fully explained by the ED in his response to Ware’s written

closing arguments at SOAH.

The Executive Director did include the return flows in the modeling

used in the review of Applicant’s request for a term renewal but the

model showed that none of those return flows was available at

Applicant’s diversion point. What the model shows is that these return

Id. at 147, CR at 213.

Testimony of Dr. Kathy Alexander. AR, Vol. 8 (Transcript Vol. 2), p. 360, ln. 5-8.

flows were already reserved for some purpose of use downstream from

Applicant’s diversion point by the time his application was received.

The hydrologic function and management of the Brazos River Basin

depends on the presence of those return flows.79

These return flows were not, as Ware claims, reserved for future applicants—they

were already needed for other purposes.

IV. REPLY TO WARE’S POINT OF ERROR NO. 3

A. BRA withdrew its protest of Ware’s renewal application, but that did not

make water available for Ware.

Ware discusses the fact that BRA withdrew from the proceedings and argues

that BRA’s actions mean that his application should be granted. He is wrong.

Neither BRA’s decision to withdraw nor any resultant lack of evidence on the

limiting factors for granting a permit application under Water Code § 11.1381 or

§ 11.134(b) serve to make the granting of Ware’s application mandatory. Especially

in a time of burgeoning population and record drought, such a construction of the

statutes would not be reasonable. Put simply, BRA is not Ware’s problem. A lack

of water is Ware’s problem.

B. Even if Ware were right that he should have been given a 1997 priority

date, it would not matter.

Reurging the issue of priority dates, Ware insists that he is entitled to some of

AR, Vol. 4, Item No. 57, p. 6.

the return flows listed in BRA’s application because he has a 1997 priority date while

BRA’s priority date is 2004, yet the ED used the 2006 date of his renewal application.

TCEQ hydrologist Dr. Alexander testified that using 1997 would make no difference:

It’s just at a very junior date whether it’s 1997 or 2006, because of the

vast number and amount of water rights that have been appropriated,

there’s certainly—there just isn’t enough water let to go around which

is why we recommended denial of Mr. Ware’s application.80

Any “error” in choosing a priority date was harmless error.

C. Ware’s cancellation theory is wrong.

Ware also claims that he is entitled to the return flows in BRA’s application

because he has been beneficially using water under his existing permit. Ware claims

that the TCEQ is implementing a cancellation program for term permits, and that this

is improper because water rights cannot be cancelled if they are being put to

beneficial use. All of these claims rest on Ware’s false premise that his term permit

functions similarly to a permanent water right. In this, as in so many other respects,

the two types of permit are very different.

While permanent water rights can be cancelled if the permit holder does not use

the water for ten years,81 term permits are not subject to a cancellation program—they

Testimony of Dr. Kathy Alexander. AR, Vol. 8 (Transcript Vol. 2), p. 389.

Tex. Water Code § 11.172.

are self cancelling. Ware’s statement that “TCEQ is essentially implementing a

cancellation program for term permits” ignores reality. Term permits do not have to

be cancelled—they expire on their own terms, in this case after ten years. Ware

sought to renew his term permit but the agency determined that there is not enough

water available to do so.

By describing TCEQ’s denial of his renewal request as a “cancellation” of his

term permit, Ware tries to use Water Code § 11.172 and Lower Colorado River

Authority v. Texas Department of Water Resources, 689 S.W.2d 873 (Tex. 1984) (the

Stacy Dam case) to his advantage. In Ware’s view, because permit holders not using

all of the water appropriated to them in their permit can be subject to at least partial

cancellation, someone like Ware who is using water should be shielded from

cancellation. Once again, Ware ignores reality. The water that he is using does not

belong to him. He holds a term permit, which by its very nature is the ability to

temporarily use water allocated to someone else—a permanent water right

holder—who is not currently using it. That current nonuse is the very reason that

term permits can be granted. But term permit holders cannot use the fact of their

temporary use to bootstrap themselves into the same status as a permanent water

rights holder, which is what Ware attempts here with his “I-am-using-it-so-it-cannot-

be-taken-away-from-me” argument. It was not taken away—it was not there when

the time came to seek renewal. As the record, the briefs, and the argument all

demonstrated, no matter how the water availability assessment was done, there was

not enough water for Ware, so his term permit was not renewed. TCEQ’s Order

should be affirmed.

V. REPLY TO WARE’S POINT OF ERROR NO. 4

Ware’s Point of Error No. 4 insists that his 2006 application for renewal should

have been reviewed using a priority date reflecting his 1997 permit, that the staff’s

use of the renewal application’s 2006 date is a policy change and collateral attack on

the order issuing the 1997 permit, and that using the 1997 date would have made all

the difference to him, because it would have put him ahead of, i.e., made him senior

to, BRA, whose application was reviewed using a 2004 priority date.

Ware fails to understand that priority assessments for term permits are different

from permanent water rights. The Executive Director explained term-permit priority

dates in his written response to closing arguments.82 When a term permit is assigned

a priority date—as Ware’s 1997 permit (and its renewals) was—that is for purposes

of determining its seniority against junior term permits.83 But when the time for

renewal arrives, the central principle underlying a term permit must be honored: there

AR, Vol. 4, Item No. 57, pp. 2-5.

Id. at 2.

must be sufficient appropriated but unused water available for the term permit holder

to be granted another term.84

In order to make this determination, the staff uses the current conditions

program in the water availability model. To do otherwise—to evaluate a renewal

based on conditions that are ten years old—would run the risk of error and over-

appropriation of water because it would not take into account the permanent water

rights holders who may have started using their water since the original term permit

was granted.85 If the current conditions program indicates that there is enough water

for another term, then and only then would the original date (1997 for Ware) be used

to, at best, establish priority of rights among term permit holders.86 There was no ED

staff change of policy, denial of due process, or collateral attack on the 1997 order.

That order never came into play because the requested renewal could not be granted

due to a lack of water.

Ware also asserts that the record is clear that staff did not use the 1997 date in

modeling for water availability, as if that were reversible error.87 The TCEQ staff

Id. at 3.

Id. at 3-4.

AR, Vol. 4, Item No. 58A, pp. 25-26.

Ware’s brief at 29.

explained why not: using 1997 as the priority date would make no difference because

of the brief period of time between the two dates.88 Ware characterizes staff

testimony as indicating a procedural irregularity within the Executive Director’s staff

that the Court may examine,89 alluding to the provision of the Administrative

Procedure Act allowing courts to take evidence of procedural irregularities “alleged

to have occurred before the agency that are not reflected in the record.”90 In his

brief, Ware cites to testimony and evidentiary rulings relating to the very complaint

about priorities that he makes.91 Actually, Ware’s counsel cross–examined Jeffrey

Thomas at length about the priority date issue.92 The ALJ also questioned Mr.

Thomas at length about the priority date issue, and he questioned Mr. Thomas as to

why it did not make any difference in Ware’s application.93 Ware’s theory that there

are procedural irregularities to be examined should be rejected.

Testimony of Jeffrey Thomas. AR, Vol. 7 (Transcript Vol. 1), pp. 173-74; Testimony of

Dr. Kathy Alexander. AR, Vol. 8 (Transcript Vol. 2), p. 389.

Ware’s brief at 28-29.

Tex. Govt. Code § 2001.175(e). (Emphasis added.)

On page 29 of his brief, Ware cites to the testimony of Jeffrey Thomas in Vol. 1 of the

Transcript.

See, e.g., AR, Vol. 7 (Transcript Vol. 1) pp. 116–124 (Testimony of Jeffrey Thomas.).

See AR, Vol. 7 (Transcript Vol. 1), pp. 186, ln. 3 – 193, ln. 13 (Testimony of Jeffrey

Thomas.).

Ware fails to recognize that term permits and permanent water rights run on

parallel tracks in terms of establishing seniority based on priority date. The two types

of permits are not mingled together in assessing who is senior to whom. But Ware

incorrectly treats them as if they were. The ALJ, TCEQ Commissioners, and district

court all saw the fatal flaw in Ware’s reasoning and rejected his priority-date theory.

VI. REPLY TO WARE’S POINT OF ERROR NO. 6

In Point of Error No. 6, Ware complains that Findings of Fact Nos. 45, 49, 50,

and 51 refer to the Brazos River Authority’s pending permit application. This

complaint is meritless. It was Ware himself who inserted BRA into this matter by

offering the water availability memo for the review of BRA’s application as

Applicant’s (Ware’s) Exhibit 50, insisting, over the ED’s objection, that it was

relevant.94

Most of these complained-of findings discuss priority dates. Again, it was

Ware himself who has argued repeatedly at SOAH, TCEQ, district court, and now in

this Court that the ED’s staff erred in assigning priority dates that put BRA earlier in

time than Ware. Ware now complains of findings that his own argument invited.

AR, Vol. 7 (Transcript Vol. 1), pp. 134-35. And while Ware initially indicated that his

offer was of pages 1 through 7 of the document, the entire document was ultimately admitted without

any limitations to its admissibility or use. AR, Vol. 8 (Transcript Vol. 2) p. 255.

VII. CONCLUSION: NOT ONLY ARE WARE’S LEGAL THEORIES

WRONG, THE EQUITIES DO NOT FAVOR HIM EITHER.

Ware himself testified that the permanent water right once associated with his

family farm was lost years ago through inaction, albeit through no fault of his own.95

He emphasizes the undisputed and indisputable principle that Texas agriculture is

important and paints a picture of a family farm facing ruin. But he does not

emphasize or even state that he has already obtained most of the water that he sought

in his renewal application. He testified that he bought 100 acre-feet of water rights,

which he intends to use to expand.96 Renewal of his 1997 permit for another 10 years

at his original 130 acre-feet and requested additional 20 acre-feet would put him well

ahead. In fact, it would total 250 acre-feet, almost double the original 1997 amount.

The denial of his renewal request, while disappointing, has not significantly harmed,

much less ruined, Ware.

PRAYER

Appellee TCEQ respectfully prays that the agency order be affirmed.

Testimony of Bradley Ware. AR, Vol. 7 (Transcript Vol. 1), p. 22.

Testimony of Bradley Ware. AR, Vol. 7 (Transcript Vol. 1), p. 64-65.

Respectfully submitted,

KEN PAXTON

Attorney General of Texas

CHARLES E. ROY

First Assistant Attorney General

JAMES E. DAVIS

Deputy Attorney General for Litigation

JON NIERMANN

Chief, Environmental Protection Division

/s/Linda B. Secord

LINDA B. SECORD

Assistant Attorney General

State Bar No. 17973400

Office of the Attorney General

Environmental Protection Division

P.O. Box 12548 - MC 066

Austin, Texas 78711-2548

Tel: (512) 463-2012

Fax: (512) 320-0911

Linda.secord@texasattorneygeneral.gov

ATTORNEYS FOR DEFENDANT, TEXAS

COMMISSION ON ENVIRONMENTAL

QUALITY

CERTIFICATE OF COMPLIANCE

1. This brief complies with the volume limitation of Tex. R. App. P.

9.4(i)(2)(B) because it contains 9,033 words, excluding the parts of the brief

exempted by Tex. R. App. P. 9.4.(i)(1).

2. This brief complies with the typeface requirements of Tex. R. App. P. 9.4(e)

and the type style requirements because it has been prepared in a

proportionally spaced typeface using WordPerfect for Windows, version 12

in Times New Roman 14-point type face for text and 12-point type face for

footnotes.

/s/Linda B. Secord

LINDA B. SECORD

Attorney for Appellee

Office of the Attorney General

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing Brief of Appellee Texas

Commission on Environmental Quality has been served on the persons listed

below electronically by an electronic service provider and by email on the same

day, April 17, 2015:

Stephen P. Webb

Gwendolyn Hill Webb

Webb & Webb

712 Southwest Towers

211 East 7th Street

Austin, Texas 78701

/s/Linda B. Secord

Linda B. Secord

Index to Appendix

Item Description

Numbe

A Permit No. 5594 (AR, Vol. 5, Item No. App 2)

B Proposal for Decision (PDF) (AR, Vol. 4, Item No. 58A)

C TCEQ’s Final Order (AR, Vol. 4, Item No. 64)

Statutes

Texas Government Code

§ 2001.060

§ 2001.175

Texas Water Code

§ 11.022

§ 11.025

§ 11.026

§ 11.027

§11.042

§11.046

§ 11.121

§ 11.134

§ 11.1351

§ 11.1381

§ 11.146

§ 11.147

§ 11.1471

D Statutes (cont.)

§ 11.1491

§ 11.150

§ 11.151

§ 11.152

§ 11.171-.186

§ 11.172

§ 16.012

E Act of Mar. 19, 1917, 35th Leg., R.S., ch. 88, § 72,

1917 Tex. Gen. Laws 211

F Act of May 21, 1987, 70th Leg., R.S., ch. 405, § 1,

1987 Tex. Gen. Laws 1932

G Act of June 1, 1997, 75th Leg., R.S., ch. 1010,

1997 Tex. Gen. Laws 3610

H Rules

30 Texas Administrative Code

§ 297.19

§ 297.42

I Executive Director’s Response to Closing Arguments (AR, Vol. 4,

Item No. 57)

Appendix

App. Exh

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TEXAS COMMISSION oN EI\I\.TRONMENTAL F:z

P.O. BOX 13088, MC_l60

Austin, Tcxas 7871 l-30Sg

Telephoné No. (512) 23g46gt FÆ( (512)

Zsg¿ltO

APPLICATION FORAMENDMENT TO A\ryATER

RIGHT

REQUIRING TVÍAILED A}.ID PIJBLISHED

NOTICE; oT

. .NOTREQUIRING À{AII,ED ANÐ PIJBLISHED NOTICE

Refore,nce Toas Admbistrative code

section ãgsrià'o) * o

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Form TCEQ -10201 (revised B/02)

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Gmnl¡¡lol E¡?h¡r lßlt-zrün

Form TCEQ-10201 (revised 8/02)

Texas NaruReI, Rpsouncn CoTvSERVATIoN Co¡I¡,TISSIoN

PERMTT-To AppRopmerb

AND USE STATE TVATER

APPLICATION NO. 5594 PERMIT NO. 5594 TYPE:. Secrion I1IZI

Name: Bradley B, 'Ware Address: Rte, 3, Box 211

Killeen, TX76542

Filed

Granted l{0y 0 7 19s7

Purposes

County Bell

Watercourse:

Watershed: Brazos River Basin

Éra¿Tel B.:wäiäläsìéclüèstea äritho¡?äüoïtô

ciinèit-äuã üié'noitölti"ó"ã-r,o

r annum to irrigate l00 acres of'Iand

owned by the:applicant in BeIr county

les southwest of Kifegn, Texas; and

WIIEREAS' the Texas Natural co*ovution commission fi¡ds that jurisdiction over

application is established; pd the

WI{EREAS, no pbrson protested the granting

of this application; and

WHEREAS, the commission has complied

i,vith the:requirements of the Texas .water code

and Rules o.{ ttre-T¡xa1 Natr$al n.rout..

ô;ni.t*rili co.*ission inissuing rhis.perrnit.

Now' TryYfoRE, x¡s FrTt io appropriate and'use

'ware, srare ïvareris issuø to niaarey n.

subject to the forlowing i.r*r and conditions: i .,

and use nöt to exceed 130

to irrigate 100 acres ofla

t No. 67, the D.G, Van

Ë'¿rtxrì.4-.æ . -.Â. .a:

survey, AbstractNo. g51, and the c. Edwards survey,

Abstract No.291 inB\ell

counly, Texas approximately 15 miles southwest

of Éib.r,lïr-"rl rl,

ürrã',r,

conveyed to perrrittee in a deed ¡ecorder i¡ vorume

1524, page 67r oi tH. n.u

County Deed Records.

2. DIVERSiON

a Diversion A¡ea: permitte is authorized to divert

wate¡ f¡om any point

o¡ the left o¡ east .bank of the Lampasas River, between

a point

N60.6'w 2,050 feet from the southeast corne¡ of the

aforesaid van

Vicheton Survey and a point located S37'E 4,200

feet frorn the

aforesaid survey cor'er in Bell county. This

downstieam poiat is

located ar Latitude 31.032.N, Longitude 97.gg2"w.

b Maximum Diversion Rate: 2.67 cfs (1200 gpm).

3, SPECIAL CONDITIONS

a. In order to protect instream uses, biological habitats and water quality,

pemrittee is authorized to divert waterLreo"a.r:ãuring.the

months of

{nrit through June only when rhe flow of rhe iÃ}"ru, River ar

u.s.c.s.'Gaging station No. 08103800 near K;*ñ:

:: bi -êxcéeds 38 cfs arid'dui.iitg:ffis.öther

r.*urlqu"L

mõnths oniy.Vtren-it,equais or

exceeds 12 cfs. . - ." .. -

b' The authorization to divert and .use 130 acre-feet

of waier per year shall

. expire a¡rd become null anil void on@ unless

prior to such date permittee applies tot uffiîu"n

application is sub'sequently granted for an additio""i

perpetuity. The priority date of this permit and

tËr"r- i,

"r-

all extensions h.ereof

shall be July 1,j.gg7. ' :

4. ÏVATER CONSERVATION

y4_tiop.p[at tha.r .p5o.v,igqs foq

Jþe

and technotoþies that reduce the

e- loss o¡ waste of water, ¡naintain

o¡

, , or

of wate¡ so that a water supply is made available

increase the recycling and reuse

fo¡ future or alternative uses.

d subject to all superior and senior *utri rights in the B¡azos River Basin

È:

€

Pern'ittee agri:es to be bouud by the terms, conditioru and provisions

contai¡ed hereih and such

agreement is a conditionprecedent to the granting of this permit.

All other matters requested in the application which are not specificaiiy granted

by this permit

are denied

This permit is issued subject to the Rules of the Texas Natural Rgsource

conservation

Commission and to the right of continuing supervision of Sute water rêsources

exercised by the

Commission,

TEXAS NATURAL RESOTTRCE

CONSERVATION COI\¿IøISSION

For

DATE ISSIJED: HOl/ 0 7 1997

ATTEST:

EugeniaK.

il;

Ph.D.,Chief Clerk

...

gqg

REQUIREMENTS FOR WATER CONSERVATION PLANS

FOR INDIVIDUAL IRRIGATION SYSTEMS

These are a synopsis of the rules AS approved by the

Comrnissioners of the Texas Commission on Enviro

nmental

April 7, 1993. The approved rules were publíshed in Quality

the Texas

Administrative

Code, Title 30, Chapter 288. Conservation plans required

to be

submitted to the Texas Commission on Environmental

Quality must

follow these guidelines.

A water conse idual inigatorshall provide information, where applicable,

in responseto ements, äcluding wtrat the user intends to do, or not

to do

and why, wittr

(1) A description of the agricultural production process which shall j¡rclude

but is not limlted

to the t1'pe of crops and acreage of each ..opio be irrigated,

monthly lrrigation diversions

and any seasonal or annual crop rotation and soil typäs

of the land io U. rrrig;¡gd;

(2) A descnption of the irrigation method or system and equipment including pumps,

flow

rates, plans, a¡d./or sketches of the system iayout;

(3) A description as which practice and,/or device will be utilized to measure

and account

fo¡ the amount of^towater diverted from the source of supply;

(4) {} p,.uious assessments which may have been performed regarding the system

efficiency of the irrigation system;

(5) Specification of conservation goals including quantitative goals for

irrigation water use

efficiency;

(6) Water conserving irrigation equipment and application system or method

including but not

lÍmited to surge irrigation, low pressure rpiinttu., drif irrigation, pollution

preïention,

a¡d non-leaking pipe;

(7) Leak-detection, repair, and water-loss control;

(8) Scheduling the timing and./or measuring the amount of water applied, such as, soil .

moisture monitoring;

(e) Land improvements for retaining or reducing runoff, a¡d increasing

the infiltration of rain

and irigatlon water including but not limited to land leveling,

fu¡rori diking, terracinj, anJ

weed control;

(i0) Tailwater recovery and reuse;

(l 1) Any other water conservation practíce, method, or technique which the

irrigator shovy to

be appropriate for preventing waste and achieving conr..uãtion.

fì

Texæ Commission on Envj¡onmental Quality

IRRIGATION WATER CONSERVATION DATA AND PLAN

FOR INDIVIDUALLY OPERATED SYSTEMS

Subrnit this forrn with an application for PermÍt to Appropriate State Water, you may want to contact

the local County Agent, Natu¡al Resou¡ces Conservation Service office, ttre Texæ Water Development

Board or a professional engineer ir preparing this form. If you have any questions concerning the

information requested, contact us at (51 2)Z3e-4730.

Name of Applicant: B, wARe

Daytime Telephone No.: 2S+-lr 2r7

Requested Diversion Amount: r50

sæ Þ P¡.âe :'oe-

L Type of crop: Growing season (months): -

Acres Írrigated/year:

Total number of acres: 132

Include hybrid crop names: for example, which tlpe of coastar Bermuda?

II On average, how much water in acre'feet uritl b€ diverted monthty for írrigation?

January (" May 2l September 2o

Lt TOTAL

February June tfl October r7

for all

March 3 July 25 November 5 months

April ,1 30

August December 5

MONTHL

TOTALS 2,o 1z 3t 150

Itr, Do you seasonally or annga.þ rotate crops? NO (circle one)

Ifyes, please describe WT\ SDK6

6Uc\1 As Ausr ì-) UJ INTER PÉAS .

C:\FORMSU 02t6.hd (rcvlsd 3ßE Page 2

¿i

q* €

Bradley ÏVare

Part I. .

Some ofmy land I double crop,

þpe of top: Growing seflson (months) Acres íní/year

Tifron 85 Bermuda 8 months 36

Soft Wheat (Graaing) -lJ (double orop) 6 months 36

2, Improved Native Grass 9 months 22

3. Brown midrib Sorghum

Bob oats or soft wheat l 7 months

(double crop) 5 months

4 Costal Bermuda glass -:-l (double crop) 8 months 20

Bob oats or soft y¡!¡s¿f-J 5 months 20

ry. Describe your soil Çpe (nclude permeabiliry characterislics, if available) BoSoue C

LOAÍ\A H I W I.\DLDI¡Jô C'A?AC ÒN 5l

-t C' D(ßP

LL DRAINIE, SLDIJ PÉ.RMAß AIJD

3õ€ò€D TO NAÎUE 6RASS SP€CIgS,CRAWFDRD C(AV-WEI| DRAUED PRÉS€O

eol.JTDUR rE, RRAC€,D , ALSo RÉF€,R rb -rÐXAs coo ERATi r.J€

POõUcATìoN ø-./'.t7o p.B,

ext€usrolo

V. Describe the existing/proposed irrigati on system including plans, designs and/or sketches

of the system layout, pump location, slope of the land to be irrigated, and specifìcs about

the delivery method. (For example: Single pivot with bÍg gun sprinkler)

SLÞP€ O t¡o 3 PÉRC€úI / D€,LIU6RY UI.JDÉR6RCLJ TJD PUC P¿¿MP

CAPAÖry 5ÕO 6P¡,^, / Po¿SeB uN 1r 25 H,P F l-ECiP,tC CCJÜTER PtUat-

LePA DES Ei tJ (lou EI-EI?6Y PR€Cts€ AÞPLI Ol'J ) UJ tlr+ A ñÃs l/{¡,

ÉFFÉC\ AEDUC QSO/O DRAWTU6 gxllrBITS AtB,c, + D. T€xAs

eoÞPÉRA$ UE €xTErôs lou PUBUCAT]DÀJ B -Iør L-22t L-SD4

ts-búb, ts-btbz

VI. Describe the methods and/or device which will be used to measure and account for the

amount of water diverted for írrigation.

CT]\)TCR P IUDT IÅDZZL€. CHART AI'JD PtJf\^P e-FF- ì CE-0\EY CrrRUe

É,HItsfT ð AND c LO6 OF DæRAJ-IDU I{ÔU 5 t+ rT +1,

VII. If .there's is an existing irrigation system any system evaluations been performed

regarding the efficiency of the system? NO (circle one)

If YES, indicate:

When: -t

Who performed rhe evatuarion: DR . f3,(1 LYLC TEXAS A$ M eyrte-us I DL)

sÉRv tG- t LrJBBÞcx 1y

oR,. lgou NEtrJ/ TEXAS Cl)oæf<ATlU6 Exrer.É/OÀ)

C:\FoRMS\1021 6.wpd (revlsed 3/98) Page3 ANÀA'(ILLÞ.TX

¡l

Resrlls of the evaluation: LÈPA De,Sl6ñ) CeUIER P I UÒT sYsi.t€^rs AR€

PRou€;.-l Tt> €xc6€ D q5'/o Añ Ò qbo/o UUrtuR^it TV

CFFSÀ)CI É.tJcV

oF DtslRtBUÎD,.J/ €xHlBlT5 F+6,C HoOStt5 A ce,lr,ER ptgõf t3

6UY FIPR5

VIII. Describe any water conserving equipment used in the irrigation system. (i.e

closed pipes,

leak detection, pressure loss cut-off vãlve, etc.)

Hl H EFFCCI ENC t¡rllrtrt

lpcrcnoro)

1eD lr) PVC IIN ÔRDttÑJ D

-VIIL cont . D6LIV ÉRV PtÉ e.Nr Y DPECISG AÞP¿ ).A:TI

ABC\J6 SoIL 5 URFAC€, TÉXAÉ Cooffi.Æ\JE e).f€ÐSt Dþ Sæ.UICC

PugLtc+rtDÞs , g-bo il t L- zztq ,Bbt øz t B -6t1o t lJ -bú b

x Describe any rnethods which will be used for water loss control and

leak detection and

repair.

R€SSUR€ T PAI A,\Affi lüór

fv\eî+oDs AND DARDS / 5t)PgRç ts ,Þ¡J DORfTJó¡ oERAnor:

X. Describe any water saving scheduling or measurement practices to be utilized in the

application of water, for example: irrigation only early in the morning, late evening

night hours, when the wind is calm and temperatures loier, and also thãudlization of

soil

moisture monitoring:

ALL T]l€ ABo\€ , GvPsu M M olr.) llER tL)6 B{-DcKs

^NDIS1ER

DÉLl'"n oRST

^^ETÚ?

IRPI 6ATrotù wtl- BC MD

C:\FORMSU 0¿ I 6.wpd (revlsed 3/98) Page 4

XIV. Indicate that water is diverted

from the

C:\FORMS\I0218.r@ (rsdscd 998) Page 6

,i.¡

r-F n, -È,

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Htve5 . /c/ - ¿ ¡ Á

State OÆ of Adminis trativè-h eanngs

:-': I

Cathleen Parsle,v

Chief Administrative La'¡' Judge

lìcbruar\' 8. 2010

Lcs'frob¡nan. Gcneral Counsel

'lexa.sC ontmi ssi o¡ ç¡¡ [,¡1r' i ronmenral Quali t¡'

P.O. Box 13087

Austin Texas 7871 l-3087

tìe: SOAH Dockct No. 5ti2-08-1698; TCEQ Docket No 200 I 8l-\\'R: hr Re

Application of'Bradle1"B, S/a¡c to Amend \\/ater Lise P ¡1 5e. j-594

Dear Mr. 'l-robllran

'lexas Commi on on Envirclnrnental

l'he above-ref'crenccd malier wiil be considered '01' tire

Quaii¡, o¡ a clate ancJ rime t¡ be determincd b¡' thc Chief Clerk's O ce in lloonr 20lS oi

Builclrng li.. ì21 i8 N Inlerstate 35, Attstin, Texas'

I:nclosccl are copies of thc- Proposal f'or Decision a¡d Order that have n recorrmendecl to tbe

Cgm¡lissign lor ap¡rrovat. An¡, part-V ma)' f rle exccpticrns or brre ls b¡' fi ng the dcrcumcnts u,ith

thc Cliief'Clerk otthc"l'c'xas Cornrnission on Environnlental Qualit¡'no I er than March L 2010.

,An¡' replies to cxceptions or briefi musl be irled in ihe s allr e no later ihan

\4arch i 0. l0 I ()

'l-his nraucr has bccn cìesignared TCEQ Docket No. 2008-018 r-iln; s OAH Docket

No. 582 -0lJ-1698 All docunrents to be filed nrust clearl¡' rcfercn cel thc-se assi{¿ned docket I

ltur¡'ocrs. ^\tl exccptions. briefs and replies along r,r'ith ccrrifìcati on 0f' sc r\¡tce Io lhc abovc

¡rartics shall be filed u'ith thc Chjef' Clcrk of the ]-CEQ clcctrclnicallr' àt

h ().t slate filin or b¡, frling an orilinal a¡ld I SCvell copìes u'ith thc

-t'cL'Q' L

Failure to provide copies mav be gr ounos [or u,ithhoiciing

ciriei cle'k oi rire I

consideration ol' the plcadings,

S incerel¡'.

i ,"ù,' l, .i''t:*,i '(l)

Paul D.Kecpcr I I

Administraiivc Lau'{ udse

I'D K:c rn

lìnclosLlres

cc: \4uilrnq l.ist

\\'i il ia nl l). (.lernent.s Ilu iltling

Posr ()ftcc l.]rlx 13021 .ì00 \\;est lSth Strct't. Strire 502 O Âu.srirl Tex¡rs ltì711-l0li

(írl).i15-.í1)9J ' l)ockct (í11)'i:5 l.i'i; t:;rx (.512) 47 t-4<)94

Irttlt: u'tvrr :oalt,s(:ltc (x.tts

-r'

soAII l)OCKlil' NO. 582-0ll-1698

TCEQ DOCKE'I' NO. 2008-0l tìl-wl{

APPLICA'TION OF- IìIì,,\I)LT]Y B $ llllFollll'l'llE ST¡\'flt Ol-F'lCE -

W¡\lìE'tO ÄlvlENI) $

W¿\'flill. USD PI|RMIT NO. 5594 $

(x'

$ r\DIVIINISTRATI v E IIEAIIINGS

PIìOPOSAL F-OR DECISION ì

'TAIILE OF'CONT'ENTS I

I. INTIIODLICTION

III. .ITJIIISDICTION

IV. PllOClll)Ull¡\L lllSTOIÌY

V. I}ACK(;IIOUNI) FACTS

.d. Ilistory ¡rf thc W¿rrc Flrm ¿¡nd thc Pcrmit 3

lì. Ef)'s rccommcnd¿¡tion to dcny the Applic:ltion........""""""""'!"' I

C. Thc issucs,

Vf. DID'TIIE ED IìAVE S'I'ÀNI)I¡"G 1'O OPPOSE TIIE APPT,ICAI'ION?........' 6

A. Did thg t)D,s party st¿rtus clcpcncl on rvhcthcr thc ED rvas lit affcctctl person?..... 7

lì. Dicl the scopc of thc lùD's ¿ruthorit¡,inclutlc thc right tn p..r.Jt:tn opposing casc?.. 7

C. Was thc in[ornl¡¡tion that thc l]D prcscnted rvithin thc lirnits qf thc larv?.....'..........'. 8

Vtl. W¡\S TIIIS AN UNCONTIISTIÌD MAT'[ER'|""""""""""""' " :' I

vril. r)tD THI.I FID IIVIPROPEIìI,Y IìELY SOLÚILY ON'tllE MOpEL? I

¡\. 'Ihc l¡ullcn of proof an{ thc cvidentitry .st¿¡nd¡rd for scicntilic tcsti¡nony ...'.......'... 9

lì. Thc rcgulator-v schemc for thc Ctlmmission's issuancc of pcrniits .'.. I

C. 'I'hc dcternrination of thc lvnil:rbili$' of rvltcr for npproprintiirn...'.' I3

l). D iscussion. 5

l. Lcgnl issucs ....... l5

¡r. Docs the larv rcquire thc tlse of thc lVlotlcl? t5

b. If not, ntly rlthcr an:tl1'ticrrl trlols llc usctl'l '..... .. l6

(

)

( I

l'ag0 2

soAll l)ocKET NO. 582-08-l698 l'ROl'¡OSr\L FOR DECISION

TCEQ DOCKtil' NO. 2008-01 8l -wR

c Is thc use of thc Modcl r¡ppropri¡tc i¡t cv:rltrating a rcqu cst for ¡r snrall ¡ìm0unt

..17

of rvrrtcr?

....................... I 8

2. ùlr. .loncs' 'Jnrlys¡.s'....

.........,............. 20

IX. IS'I'fln MODDI, IìA'TI\LLY FL^\ryED'?

¿\. Naturaliz.etl florvs

B. Impcrviouscovcr................

C. Wastervater trc¡tmcnt plant rcturn florvs """"'

/\. 'Il¡c El)'s argunrents

l. Docs thc Pcrmit authorizc l\tr. w:rre to appropri¡rtc watcr?

2. Docs thc Pcrmit ruthorizc Mr. Ware to usc slatc rvatcr?.... 2l

l]. iVlr. W¡rre's ¡rrgumcnts.......'.......

L Did thc ED tlisrcgartl I\lr. warc's priorit)' rights untler the P ir? .......,,.... .......,.. 21

2. Did thc ED m:rnipulatc thc priority dates of Mr' W¡trc's pplicntion so thrt its

priority rvoulrl bc infcrior to that of thc Br¿rzos Riv Authority's Pcrmit

application? ......'..

XI. CON(]LUSION

S()AI I DOCKET N0. 582-08-l(r98

'rcEQ DOCKIiT NO. 2008-0I8l-WR -1

.I'E

.,\PI'LIC¿\'TION OF IìIìADLI]Y B.

$ BI]F'ORE TIIÊ OFF-ICE

WAIIE'l'O i\lvlFlNl) $

WATEIì usE t,ElìÌ\{l'l'No. 5594 $ o

$ ¡\DMINISTIìA'l' [IEAIIINGS

PIìOPOSAL FOR DECISION

I. INTIì,OI)TJC'TION

llracllci, ll. Warc, Ap¡rlicant, seeks to amend his Waler tJse it 5594 (Pcrnrit). 'l'he

tcn-year tcrm Pcrnlit authorizcs hini to annually rvithdrarv lJ0 et 0l' watcr fìom thc

l,ampasa.s Iìivcr. 'l'hc amcndnrent rvot¡ld cither extcnd his tcrm it for another ten-ycar

pcriocl or conven his Pcrnrit 10 fl pcrpctual right.l In addition, Mr. arc seeks authority to

withdrarv 20 morc acre-feet ol' water annually a¡rd to irrigatc 3l morc ol'his l¡nn. 'l'he

llxccutivc Director (h.D) ol'the Texas Contmissicln on lìnvíronmcntal ity (Comnrission) and

thc Oflìcc of'l)ublic Intcrest Counsel (OPIC) opposc thc applicatiolr. e application should be

denicd.

II. PAIITIIÙS

'l'hc attorncys rvho appcnred in this proceeding u'crc (ìwcndolyn IIill Wcbb ancl Stcphon

Welrb fìrr Mr. Warc. Shana IIorlon and James Alclrc<Jge f-or thc lil), and arrett Arthur l'or OPIC

' Mr. Warc's cvidcncc and arguntcnt.s requcst t

propr-rscd [o rcne\v lris tcn-ycal righls ttndcr thc l)crurit.

lvlr. Wirrc stated lhat hc sought to rernovc the tcn-ycar tcr

his initial post-lrcaring bricl, lvlr. Ware rcl'crrcd to his reqt

,\rqumcnt at 2. ln his linal bricfì lvlr. Ware'argtrcd lbr tl

,\pplicnnr's Rcplv ro Closing Algurncnts ar 9. 'I'hc proposal lor <Jccision rvill treat rltc iipplicatiorr as seckirrg tlrc trvo

pcriods in thc allcrn¡tivc

) )

soA¡t r)ocKET No, 582-0tì-ló98 PIIOI'OSAL FOR DECISION l):rgc 2

TCEQ DOCKEl' NO. 2oo8-olIl-wR

III. .'TJIìISDICTION

'l'þc partics clicl not contcst t[c jurisdiction ttt'thc Commission t: r ol'rhc Statc ol'lìcc ol'

'l'he attachcd Propc rsed Orcler contains thc

Atinlinistrative l.lc¡rings (SOAfl) to hcar the casc.

rìccess¿try fìntlings and co¡rclusions about jurisdiction'

IV. PIIOCEDURAL IIISTORY

On Novenrbcr 7, l9c)7, thc Commission issucd the original tr )n-ycar tcrnr I)crmit to

N'lr. Ware. I-ìy its u'rittct't tertns, thc Pcrmit was to cxpire on Novcnrbel ' 7, 2007, unle ss bcf orc

that datc, Mr. Warc rcccivcd thc Conlmission's approval to extentJ lhc tcrm or to convert the

Pcrmit to r perpctual right.

On Novernbcr 15, 2005, ì\4r. Warc tinlcly fìled his Applicatio n for Âmendment to a

Water Right (Âpplici.ttion). On January 5, 2006, thc IìD dcterminod tl rat thc Application was

ndrrrirristrativcly completc. On .Iunc l, 2006, the Brazos lìiver y' ,uthoritv co¡ìtestcd thc

application. On Novctnber 6, 2006, thc IID rcconrmcncìed derlial o l- the Application. Orr

January 8,2007, iVfr, Ware rcc¡ucstcd a contcstcd ca.se lte¿rring at SOÂll Orr .lanuary 25, 2008,

thc IiD roqucstetl antl thc Comniission dircctly rel-crrccl thc case to SO I-l lì¡r a hcaring on the

rncrits on thc' agrccd issttc:

Whcthcr sul'lìcic'nt rvatcr cxists in tlic Ilrazos Rivcr Basin t nll applicablc

statutor), and rcgulatory rcc¡rtircmcnts havc been mct to issuirtg

flradtcy [J Warc's proposcd Watcr [Jsc Perntit No. 5594¡\'?2

On Âpril 3 2008. ttlc SO¿\ll adnrinistratìv'e l¿rrv.ludgc (ALJ) i:onvcnccl it prclittrinarl'

lrcarirtg ancl took jurisdiction. On January 12,2009, the

[Jr¿rz.os [ìivcr Â It thority lvas grantcd the

rl'he origirrlrl l,crnlit rvls issrrr-.ri as Watcr [.isc l)cr¡nit No 559,1 'l'hc ¡roposid pcnuit, il issucd, woultl bc

Watcr Usc f'c'rrnit No 559{^.

PIIOPOSA L FOII DI.]CIS ION l'agc J

soAll DOCKET NO. 582-08-l ó98

]'CEQ DOCKr:T NO. 2ooll-ol8l-wR

'l'he hearing adjoumcd on O .I obcr 29, 2009, ancl thc

right to ll,ithclraw' as rr protcsting party.l I

adrninistrative record closed on l)ecernbcr 21, 2009'

V. T}ACK(;ROUND ¡-ACTS

Â,. t-listory of thc Wlrc Farm and thc Pcrnrit

In thc micl-1870's, Mr. Warc's fanrily acquired 2ól acres ol'pro y alorrg the Lanrpasas

[ìivcr ncar prcscnt-day Killccn. lvlr, Ware's grcat-grandfathcr and fathcl lìrrmccl the land,

clrarving watcr ztlong thc property's trvo rniles of' river tionlage. Drrri lvfr. Ware's parcnts

ow'ncrship of thc lancl, thcy failcd to scck an ad.iudication ol'u'atcr a ro priatiorr rights,a'fhc

l¿rnn rvas not in proctuctiolr l'rotn the mid-1960s r¡ntil 1996, whcn Vfr- W acquirecl thc propcrty

lìrnr his parcnts.

ln 1997. lvtr. Warc obtained f'ronr thc Commission the tcrm t that authoriz.ed him

fbr tc¡l ycars t9 cliycrt ¡nd use 130 acre-l'eet of water fionr thc Rivcr to irrigate 100

-fhc

acrcs. Pcrnlit rcclttired hini to limit his withdralvals. srrbjcct to the ri cr's l'atc ol'llort' during

spccilìc ¡no¡rths.'lhe l'erniit also establishcd July 1, 1997 as "thc priorit datc oIthis permit and

all cxtcrlsiolrs herccll'

I)uring the nvclve ycars itt rvhich Mr. Warc has h¿rd n ancl itrigation rigìrts,o

he has tirrnlccl hny, puntpkins, whcat, sorghum, oats, and winter peas, Ic has triccl to inrpound

t \\,h.n the llr{rzos River Âuthority rvithdrc\v iLs prolest, it clal'ilicd that it no objcction to thc issuancc

\uthoriry clid objcct to tltc

crics of'operations b,r, w'hiclt

opriativc right; thc \viltcr tt-l

ission hits ulso tlc fì¡rcd

--'r.¡¡¡nr

rnritl, ol' state \\'iìtcr acquired

bv larv." 101'r,x, Ar)MlN. CoDli ('l'AC) 5 291.1 (i) and (a).

' \\¡urc lìx. 2

" r\lthouglr thc lrcrrrrit l'vas to expirc on Novcmber 7,2007, his right to apprc priatc rvatcr has relnai¡rcd in

cl'l'cct pcncling ¡ lìrral adrninistrativc ruling orr thc Application

(3 i

¡,R,OI'OSAL FOR DEC¡S ION I)rrgc J

soAr I DOCKlil' NO. 5li2-0tt- 1698

't'ctiQ DocK E't NO. 2008-01 tl l-wR

his rvatcr by installing six or scven earthcn tânks, brrt the co¡l1positi ol'thÈ soil linits tl'ìc

amo¡nt 9l'rvatcr that thc tanks rvìll rctain. llc has purchased 100 ol'watcr rights and

insrallccì tì,000 to 10,000 f'ect ol'two-inch pipes, plus an eight-inch ipc t0 a centr¿ìl pivot

systcnt.T

ln addition to tarming, Mr. Ware has isst¡cd hunting leases to additional incollre to

fì¡ncl thc fhrm's opcrations, I-le has also madc his land available at no to educational, non-

prcllì1, ancì public cvcnts, inclucling sumnler camp programs held at lhc rrie lla¡'rtcs llanch, a

'l'cxas Parks ancl Wildlifè Dcpartrncnt làcility adjaccnt to his larnl.

lì. El)'s rccornmcndntion to dcny thc Application

Afìer N4r. Warc liled his Application in 2005. the ED's h1'drolo learn dctcrurincd that

"littlc l0 no watctl was available at Mr. Ware's <iivcrsion point otl thc ampasas Iìiver, without

'fhc IID's

rcgarcl to rvhethcr thc amcndcd Permit rvould havc a pcrpetual or lir irecl rerm.8

surlìrcc r,vatcr availability and interstate compacts tcam conñrmcd thc hydrology tc¿trn's

'l'hc rlremo that thc tcam hacl

cortclusiort in n Watcr ,A.vailability R*'iew ,r',"mo.u

calculatccl thirt insr-rf-tìcicnt rvatcr rvas available at Mr. W¿lre'S cliversion int to support cven the

'l-he team's alculation rclicd on thc

original ll0 acrc-fcct oltcnn-limited appropriation rights.

l). 'fhe calct¡lation

Conlmission's Water Availability Moclcl lbr the [Jraz-os Rivcr Iìasin (

¡sccl a lristorical pcriocl ol' rccçrcl of 1940 to l99l . l-hc tcam cd a priority clatc ol'

.lanuary 5,2006, thc clatc on rvhich thc [ìD had dctcrnrincd thc Applicat to bc achninistratively

curnplctc.

'l'r,

* rÌD lut

i3.4'1. arld ó5

tìx. 5

'' rìD lìr, 47

)

l')agc 5

so^llDocKtiTNO.582-08-ló98l',llol'os,'\LFoRDECISIoN

'rcEQ l)ocKET NO. 200¡l-0lttl-wR

C 'l'he issucs

Mr. Ware ¡llade five scparatc challcngcs to the ED's rcco nrcndcd clenial oi his

osc his Âpplicatiort.

,,\pplication. Iìirst, Mr, Warc contcnclccl that the LiD had no authorit)' to

I le assertecl tl'ìat thc law restricts Lhc IìD's role to

thc prcscntati¡n o inlormatiort about thc

Application. 'l'trat restriction, accorcling to Mr. Ware, docs not give he DD the authoritY

ly oppose his Application, particularly in thc abscnce of any clral engcs brought by othcr

active

holclers çl',rvatcr appropriatitln rights in thc Brazos Rivcr llasin

Application

Sccontl, Mr. vy'are contendcd that thc ED had a procedural duty to trc¿ìt the

lvlr. V/arc

its iìt't uncontcstcd mattcl whcn thc Brazos Rivcr Authority rvithdreu' i opposition.

hcaring a¡rcl firilure to

alguccl that the ED's failurc to rvithclraw its request for a contcstccl

approvc thc A¡:plication as an ttncontcste{ casc rvere breachcs ol'due S,

'l'hircl.

Mr. Warc cçntcndecl that the El) inrpnrperly rclictl solcly þn thc Modcl in making

'l-exas

trrc rcccrrrr'cncratio' to dcny tric Apprication. Notlri.g in restricls thc

ivatcr larv I

r-.valuation of' the r\pplicertion to thc ED's Mocìcl. argucd Mr' Warþ' Ftrrthcr, lvlr'

Ware

cclnsiclcr l'actors that

contcnclccl that his cluc process rights rvere violated rvhen the ED ailcclitof

ttlc El) had usccl in 1997 rvhen evaluating Mr. Ware's original Pcnnit ap$lication.

Irourth, Mr. Ware colltencled that the Moclel lailccl to protccl his isting rvatcr rights. IIe

asscrtecl that thc lVlodel disregardecl the prior appropriation doctlinc' M Warc also complaincd

tlrat lhe N4oclcl reliccl on a data sct that was lìol]-ctlrretlt and in¿ìcctlrate.

I;ilili, lr4r. warc argucd that irr crcating thc lvlodcl, thc [il) i rmissibly rcliccl on a

priority clatc otltcr than thar statcci in ancl rcquircd by lhc 1997 Pcrnrit n doing lhis, Mr. Warc

procedural atld

asscrtccl. thc Ilt) clisregarclcrl thc Conrnrissio¡l's orcler and violated Mr Warc's

propcrty rights.

\) )

so,\H DOCKIi',T NO. XXX-XX-XXXX PRO|'OSAl, t-ol{ l)ECls loN l'rgc ó

TCriQ r)ocK¡1]' NO. 200E-0lttl-wR

VI. DII)'[IITì IìI) IIAVE STANI)IN(; 1'O OPPOSE ]'TIE A l)LIC¿\1'ION?

In his rl,rìtlcn opcning statentcnt,r0 dtrring the hcaring,ll in his cl ing briel,12 ancl in his

reply briel.'' ìVfr. Warc challcngccl the authurity of the ED to asscrt thc ghts o[ a prcltestant. A

challcngc to a pcrson's stat¡s as a party is a jrrrisdictional challcngc.l' challcnge is rejectecl.

Mr. Warc's argumcnt was that the IiD's role in a contested casc is linritcd to the

provision of inf'or¡nation to cotnplcte the acllninistralivc record. Ii4r \Yare notccì that lor any I

pcrson, inclucling thc IjD, to clainr the statlls olan ''af'tectccl pcrson." hb must denlonstratc tlte

cxistencc o1' "it ¡.rct'sorrcrl justiciablc intcrest rclatccl to a lc'gal right. tt , privilege, power, or

cconomic intcrest afl'cctcd by thc aclministrativc hcaring"'lj Mr. W arguccl that thc IiD's

aclions ancl itttcrcsts wcrc based solcly on his status as thc agent of the ission. In that rolc.

hc contenclcd, the IID's justiciablc interest, if any, could ncvcr bc a al intcrcst

l'hc ÌjD argucd that thc intc¡rtion of the lau"s limitation ol'his rol was t() cnsurc lhat thc

lìt) clocs not aicl arr a¡rplicant in meeting his burclen of prool. [Jut, thc IlD, the limitation

\\'as r-tot intcndccl to prevent thc llD lÌom dcmonstratirrg that an applicat n should bc dcniccl it'it

l¿rils to protect statc watcr rcso[¡l'ccs.

"' "^clcl¡riolrullv. Âpplicarrt rnust r¡uestion the rolc olthc Flxccutivc Director in this procceding. whcrc thc

l:rccLrtivc f)irectgr hus lssuntccl tltc posititlrt of a parrY protcsliìnt Opcnirlg Statcntcrtt by Âppliclnt'

tlradlc¡, Il. Wrrc at 8, I

rr 'l'r. llt 14.

'' "'l'his casc \\¿ts unique irr that thc IEDl of'tlre IComrnission] appeared irl this cltsc as a scll'-stylccl

'prrìtcst¿uìt' . . . ." ,{pplicltnt's Closing Ârgttnrenl at l.

' rr "['l'lhc irurhority arrd porvcr [that rhc lìDl sccks to e.xercisc has bccn lcgallf prcclutlcd by uctit¡ll of'thc

-l'cxirs

t.cgislirrurc in prcscritring thc rolc of- . . . thc [ìDl spccifìcally in the'lcxas Wat(r Codc." Âpplicanl's lìeply

to Closing Argurttcttts nl 2. i

ro Nr¡vai,52S.W.3d704,?10-ll(Tc\ 200 l).

.tr",t/ I).Åndersou()uncerCentvv.

't l'rìx. W¿\r rin Cot)r' A\N. .s 5.1 l5(a). IF.rnphasis addcd ]

PROPOSAL FOR DIiCISION Pagc 7

soAH DOCKIiT NO. 5lt2-08-1698

TCEQ I)OCK ET NO. 2008-01 8¡-wll

r\. l)id the IiI)'s p:rrty stttus dcpcnd on rvhcthcr thc IiD lv¿ls ¿¡ll å¡ pcrson?

It clid not. Iì1' statute, "any pcrson'' ma,v appeâr at a hearing at h thc issuance of'a

pcrmir is to bc considcred.'u Ily Cotnmission rttlc, the h,D is requircd to rticipate as a Party rn

contcstecl hcar.ings rclating to applications ¿¡bottt rvater rights.lT the ED mcets thc

clollnition ol an "alt'ected pcrson'' is irrelcvant to these proccedings by virtuc of' thc IìD's

statlrlory stancling ts a party

l]. Ditl thc scopc of thc ED's ¿uthori$' incluclc thc right lo prcsc an opposing c:rsc?

It clid. []1'statute, the ED is rcc¡uircd to rcpresent tho Commi in hearings that raisc

n1¿ìttcrs that allict the prrblic's intcrest in the statc's cnvironmcnt and nat ral rcsources, incllrding

lnâttcrs that have been clctcnlrinccl to be policics of the state.ls In con d casc pcrrnit hearings,

thc Iì[)'s ¡rrescutation is limitcd to "thc solc purpose cll'providìng in rnation tcl complctc thc

'l'hat infbnnatioll is furtlier limitccl to "inlo ation del'elopcd b.v" thc

aclnlinistr¿rtivc rccord."le

Comnlission .rr2r) Ancl, in prescnting thc Cornmission's in[onnation, larv cl earl.v- prohibi ts

thc lil) lior¡ itssisting an applicant in pernrittirrg matters'21

Ilut, thc larv docs not prohibit the ED liorn providing in on that opposes ¿ìn

'fhe larv pcrmits "any

applicution, as long as thc inl-onlation is within thc linlits o1'thc sl¿ìtuto

'['hc larv does not rcs t the l'orrn in rvhich thc

pct.st)n" to gbjcct to the issu¿rnce of a pcrmit,22

IìD rnay prcscnt his inf'ornlatitltt, cithcr throtrgh documcntary or testi cvidencc. lìinally,

thc Cornnlission has adoptcd proccdural rtlles that guarantec all part thc right to prescnt il

r'' 'l'lix W,r run Cor)E AN¡¡ \ I l. lll

ro 'r'^c S 80. lo8(b)( t).

'' 'l'fi.\.

'* 'lt'x. w,\tt:t( coDtì 's

5.228(a).

"' ANN. \ 5.228(c).

W,\1'tiR C(x)l' ^NN.

tu 'l'1,\ W¡l'l;n Cot)ti -5.228(a).

" ro l'¡\c S Bo. to8(c)^NN,

lll.

" I'r,\. w^ r tì'ì cot)ri ANN. \ II.

)

PIìOPOSAI- FOII DI:CISION l'irgc 8

so^ll lx)cKIiTNO. 5tl2-08-l698

TCE() DOCK ET NO. 2008-01 lll-wll

'l'hc rulc' docs nol crcate

clircct casc alld to crgSs-cxaminc an opposing ¡rarty's cvirJencc'23 ¿ì

s¡locial catcgory that limits or expartds the ED's rights as a contcsting parl v

c. wns thc infbrnration that the ED prescntcd rvithin thc limits o thc law?

It rvas. lìor rhis hcaring. the IID callecl two commission cmploy as ex¡rcrt wlluesses lll

its dircct casc, Stcve lla¡nos ancl Kathy Alcxander' Mr. Ramos tc'stilìed ut the Comlnission's

Ìvatcr rights pcrmitting process, and tu'ls. Alex¿rndcr lvfoclel. 'l'hc llD also

testifìed abtltrt

'lhonras, a hydrologist

clicitcd oxpcrt tcstirnony from a third Com¡¡ission employce. Jc[fì'cy

'l-llomas also tcstllied

rvhonl Mr, Warc hacl callccl as an adverse u'itness. L,ike Mr. Ramos,

aboul the Cotnmission's pcrmitting practices'

'l'hc liD cross-cxamined ìv'lr. Warc and his expert rvitness, ol Jones, a prolèssional

cugincer rvho hacl workcd tbr thc Comnrission's prcdccessor agcncies. scopc- ol the cross-

exa¡nination lìrcused on thrcc main isstles: (l) horv tl-re Model lvas lopecl, (2) rvhethcr thc

Moclcl wâs ¿uì accl¡Iate ¡:reclictor of rvater availability in the Ilrazos Ri r llasin, and (3) rvhat

factors thc Conrmission had historically considcrecl in processing appl ions lbr extensions of

tcnn pcrrnits. All ol'thi.s testinrony relatcd to thc Cìornntission's inf'ormaf on

'l'he lll) ot'fèred lìve exhibits. cach of'rvhich rvas adrnittccl the rcsumcs ol' thc

Cìonr¡nission's [hree tesrif ,ving cmployces,2'r a Ictter lÌorn thc HI) tr Mr. Ware.r5 ancl thc

clcposition ol'Mr. Jones.2t' All of thc cviclcncc presentcd by the Iìlì was gcncratcd b-v tlrc

Cortrrnis.sior-¡ or was of fcred to support thc intcgrity olthe Commissicln's rundcrlyin g lnfbrmation.

Alì ol'thc illtÌrrnl¿ttittn prcsctttcd rv¿rs '"vithirl thc linlit.s of thc larv.

,' j0't.^c ¡s lJO I l5(ir).

t' ED tlxs. I, 4, ancl 6.

tt rìt) [x,5.

"' trD lìx i,

j\ )

l':rgc 9

So^llDOCK!ìTNo.582-08.1ógflPROPOSÀLF.ORDh]clsloN

'l'ctiQ l)ocKE't NO. 2008-0181-wll

'l-hc DD hact standir'ìg to appc¿ìr as ¿l party in this proccccling arrd rva^s authoriz'cd to

to Mr' Warc's case'

prcscnt tlrc Conllnissiotl's evidcncc and iuguments in tlpposition

VII. wAS 1'IIIS ¡\N UNCONTESTED NIATTIìIÌ?

No, this \\,as a contestecl mattcr. An applicant may rcqLlesti that an application

renlanclecl to tho ED lìlr actio¡ì as ùn uncontcstcd mattcr

il': (l) all tinreiy hcaring rcqttcsts havc

casc rcach a sqttlcment so that no f acts

been rvithdr¿ìwn or r.lcniecl or (2) all parties to a contestecl

oasc bccausc the ED remained a

or issr¡cs re¡naiu controvcrtc.l.2T A hcarirrg rvas rcquirecl in this

antl bccattsc

pîrty to a contestecl case aticr thc Brazos River Authority withclrcrv itsitlpposition

thcrc lr,¿ìs not a scttlcl¡cllt bctrvccn thc rctnainittg parties'

VIII. DID TIIB ED IVIPROPERI.,Y RELY SOLELY ON ìIID ÌVTODEL?

A The bur<tcn of proof an<t thc cvitlcntiary stnntlard for scientific tcstimony

Ware, as applicant, wiìs

For c¿rch ol'the substantive issucs raised in this healing, lvlr.

thc lhctual support

rcq'irccl lo sh'rv (hat thc factual suppolt lor liis contcntions outrvcighccl

¡rrcsctttccl b¡' thc t'rther pirny'18 .

Mr. Warc's burclc¡ was particularly clifTcult to sustain bccausc llc had to prove tltc

a'ailabiliry crl'sulllcicnt Iìivcr basin at his clivc"rsion poittt'

urrperlèctecJ water rights in the []razos

'l'hat proOf rcqtrírcd Mr' Warc tt-r

alier giVirrg proPer recognition ro all superior rv¿ttcr rights.

rcscrvcd by law to cxpcrt rvitncsses' ancl cx¡lcrt tcstimony

¡:rcscnt scicntillc tcstinlon),, an ¿ìrc¿ì

'l'hc larv pcnnits thc Iurcter ol'f¿rct to ctctcminc thc

bc basccl o' a rcliablc tìrundation.l')

'.lust

cvicleutt.'''tn

rcliability 6f'the evidcncc. and "lulnrcliablc cxpcrt tcstimon)'is not

'l',\c-' fJo lo l.

"t* 30 ss

lo I AC-'

.l-1,\

30.17.

,,, '

R. Dvlt). 702

t" (-;r-r,r,r v llttrt,l{gS.lV3(l 2li,237('fex App l"ort Worlh 200{, Pet. clcilied)

"\ rl

( j 'l

L FOII DF]CISION Pagc l0

soAl ¡ l)ocKFl'l- No. 582-0ll-l ó98 PROPOS¿\

TCEQ DOCKEl' NO. 200t1-01 lil-wR

'l'o cstablish thc rcliability of an cxpctl's tcstimony, an of'f'cring 5 ,arty must lìrst establish

thc reliubility ol'thc analysis that thc cxpert ttsccl in rcaching ltis conr :Iusio¡rs.'ì'hc Suprcnre

CoLtrt of 'l'cxas h¿ts añiculatcd six nonexclusivc l¿rcttlrs to be usccJ n dctcrmining

rvìrctl'rer

scicntifÌc tcstinronv is rcliablc:

(l) rhc cxtcnt to lvhich thc thcory has been or can bc tested; (2) the extcnt to which thc

tcchniquc rclics upon the subjccti ve lnterprctatton o f the cxpert (3) whether thc theorY

has bccn subjected to Pccr review and publication; (4) thc t que's potential rate ol'

crror; (-5) r.vhethcr the underlying thcory or technique h a.s bccn ly acccptc'd as valid

by thc rclev¿rnt scicntifìc communit¡'; and (ó) the non -judicial cs that have bcen made

.lt

ot'llrc ther¡rv or tcchnique

Although lr,1r. Jones' crcdentials establishcd him as an cxpcrt, he id not cstablish that his

nrcthocl ol' analysis had bccn tcsted- subjectecl to peer revicu' or p blication, or gcnerally

¿ìcccptccl as valicl by any scientilìc comnrttnitv. Mr. Joncs aclrnitted th hc had not dcvclopcd a

systcmatic or anitll,tical f'ramework by which hc coulcl dctennine the issuc in this casc

whcther wiìtcr \vas avril¿blc at a givcn point in thc Brazos Iìiver basirl.l2

[ìr"rrthcr. thc intcrprc.tation oI Mr. Joncs' r'csults rvas ltis alonc, in part bccausc Mr- .ltlltes

gc-neratccl no rvrittcn report that was availablc lbr revicw. lnstcad, he [eachcd his ccrncltlsions

on "his revierv <.rl'thc lìlc and his rcvicw of'thc i¡rf'ormation on {hat Irvhichl is availablc

tr¿rsed

rcgarcling \\,arcr â\,¿ìilab[ilityl at this divcrsion point."33 F'inally, at to he non-.judicial uscs ol'

]

N4r. Joncs' nrcthoil. lvlr..lt¡nes establishccl that his analysís was nlLlch liki a nrethod that hnd bccn

¡rrcvior-tslv usctl hry thc Cttlttlnissit¡n but later hacl bcclt abanilonecl."t Ml Warc ciid not cstablish

rh¿rt Vlr. .loncs' nlcthod olanalysis rvas rcliablc

tl /,1 r,t 237-38, citirrg I/cllcll Dott'l'hornt:¡,. lnc v. llu¡'ncr, 95i S.\\/.2dr i06, 714 ('l'cx. l9()7¡. ctrt.

tlcni¿<l. -52i tJ.S, \i

I I l9 (l99ll) alld [./. du P<¡ttl tle i\'cntour.t <(' ('rr. r' Rtthittrt¡tt,923 S' z¿ s.¡.), 557 ('lcr. l9c)-s)

') fr. ìlar 29,1.

" l'r I ut 22)-14

t' \\'rlrc lìx. .19.

( i

SO,\il I)OC:KDT NO. 582-08-ló98 t)RoPos^ L l.'o R D l.lc ¡sloN lragc I I

't'crìQ DOCKEl' NO, 2008-0 I 8l-WR

ln rcltlition. llrt¡ch <,¡l'lvfr. Warc's cviclcncc fbcused on thc allc il inadcquacies of' tltc

lìl[)'s rncthocl ot'nnalysis, the Model, rathcr than on Mr. Warc's s. Mr. Ware also paid

pârticular attcntion ttl allcgcd llarvs in thc data on rvhich the Model rcli Mr. Ware prescntcd

this linc ol' cviclettcc (mtrch ol' it throttgh cross-cxamination) i¡ ng to cstablish the

prcponclerancc ol' his cxpcrt evidence ovcr that oft'cred by thc lil) r\lthough Mr. Joncs'

testinror.ry w¿rs adtnitte<.l by rhe A[-J, counscl fbr the IìD timely objectctl o its rcliability. lìather

lhrn concluct a Datúert-slylc hcaring-rvithin-a-hcaringl5 to clc inc reliability bclbrc

consirlcring thc nlcrits ol'the saurc cvicìcncc, thc ALJ grantecl the IìD a ing ob.icclion. subject

[o thc lil)'s righr to rcasscrt thc objcction. 'l'hc ED objcctcd to thc rcliability ot'N4r. .lottcs'

tcstirnony. ancl thc ob.icction is norv sustaincd

Noncthclcss, the ALJ has revicwecl all ol' lvf r' Warc's cviclen ancl has contparcd thc

rc.lilrir,.- *,ciglrt ol'Mr. Ware's evidcncc to that of thc ED's. Bven il'M . Warc's cvidcnce vvere

not rc'jcctccl fbr lack ot'rcliability, lr4r. Ware rvould not prevail on tltc p cc ol'evidcnce

stenclarcl.

'l'hc Al.J prcscnts this atlditional analysis to ¿rvoicl thc lbr a rcnr¿rnd il' the

C¡lnrurissigrì \\'crc to concluclc that lvlr. Wat'e's ex¡rcú cvidellcc is rcliabl q

I3. 'l-hc rcgrrlatola schcme for the Ctlnlmission's issuancc of pcrnlits

'l'þe rr,atcr ol'cvery lìorving ril'er in the Statc ol-'['cxas is the propþrty o['tl.ìe slatc. ancl thc

'l{lc Comnrissitrt htts thc

Ctl¡rrnissiçn is thc st¿ìtc's agcrrt fbr the rcgulation t¡[ its rvater.']('

autþor.ity to rllorv pcrsons to appropriûtc statc watcr fbr spccilìc itrses.i7 Although thc

Cgnlltissiol.ì l'lt¿tv grant pcrntits to applic¿ìnts who scck to appropriiifc tttlltppropriatccl slatc

ryalcr,js lhc amoullt ol'rvater tor rvhich thc Comnrission may grant ¡rcrnriht t-ttny tlot bc tlrorc than

is ir va i latr lc .'ì'' i

tt ,Sc.,-fl,x ll lrvlf). 104(c).

''' l'l ¡-.w^tt:Rcot)ttA\N.rs I1.02 1(¡).

tt l't'\ W.\ r l,tt (.'ot)t, I I 022.

'* It,x. !Vr\llrtì col)f: ^NN.

ANN. i\ I l.l11.

"' l'1,\. w,\t-t,t{ c()f )ti rs I I 021(c).

^NN

(

) ]

I'nge l2

SO,\ll DOCKET NO.XXX-XX-XXXX PROPOSAL IOR

DECISION

TCIIQ DOCKET NO. 2001ì-0llll-wR

.Ihatpolicyrvascstablishcclbylarvinlg6Tlvhcnthc'f.cxaslc slaturc abltncltlnc'd thc

both ri and apprtlPriativc

chaotic corrclition of thc stâte's l'ornrcr svstem of rccognizing

'f'exas supremc court

rights.r0 lrr its plircc, thc lcgislaturc adoPtetl a ncw systcm

that

ordcrly f-orum ancl proccclrlrc lbr the [comni on's] adjuclication ancl

char¿tctcrizecJ as "¿rn

'l'he 'l'cxas lcgislaturc later rcqut the Comnrission l<:

acl'rinistrati.¡l of watcr rights,"'lr

'.proviclccertaintyinrvittermânagcment''bycvaluatingtlrestatc'smaj river basins.'12 tJsing

to grant a v y of types of

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