# Bradley B. Ware v. Texas Commission on Environmental Quality > Texas Court of Appeals, 3rd District (Austin) · April 17, 2015 URL: https://www.frixlaw.com/law-library/cases/4064383 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** April 17, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4064383 ## Opinion text 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, v. 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 ii 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 iv 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 v 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 vi 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, v. 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 1 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. 1 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 2 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. 3 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. 4 See Appendix Tab A (Permit No. 5594, Special Condition 3.b., p. 2). 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 5 AR, Vol. 1, Item No. 1E (letter from Kathy Hopkins, TCEQ Project Manager, to Bradley Ware). 6 AR, Vol 5, Exhibit App. 47 (Water Availability Review Memorandum); Testimony.of Jeffrey Thomas, AR Vol. 7, (Transcript Vol.1), p. 82. 7 See Transcripts, AR Vol. 7 (October 28, 2009) and Vol. 8 (October 29, 2009). 8 See PFD, pp. 28–29, AR, Vol. 4, Item No. 58A. A copy of the PFD is at Appendix Tab B. 9 AR, Vol. 4, Item No. 64 (TCEQ’s Final Order). A copy is at Appendix Tab C. 10 CR at 446. 3 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 11 H.G. Sledge, Inc. v. Prospective Investment and Trading Co., Ltd., 36 S.W.3d 597, 602 (Tex. App.—Austin 2000, pet. denied). 4 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 12 Central Power & Light Co. v. PUC, 36 S.W.3d 547, 561 (Tex. App.—Austin 2000, pet. denied). 13 Consumers Water, Inc. v. PUC, 774 S.W.2d 719, 721 (Tex. App.—Austin 1989, no writ). 14 Smith Motor Sales, Inc. v. Texas Motor Vehicle Comm’n, 809 S.W.2d 268, 270 (Tex. App.—Austin 1991, writ denied). 15 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.”). 5 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 6 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. 7 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) 16 Tex. Water Code § 11.121. There are exceptions to the requirements of § 11.121, but they are not applicable to the case at bar. 17 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. 18 Term Permits are authorized under Tex. Water Code § 11.1381. 19 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)). 8 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 20 See Tex. Water Code §§ 11.022, .025, and .026. See also, Wright, 464 S.W.2d at 647–48. 21 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). 22 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.). 23 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.” 24 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. 25 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. 9 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 26 See Permit No. 5594, Special Condition 3.a , p. 2. 27 See now Tex. Water Code § 11.134(b)(2). 28 689 S.W.2d 873 (Tex. 1984). 10 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 29 689 S.W. 2d at 878. 30 Act of May 21, 1987, 70th Leg., R.S., ch. 405, § 1, 1987 Tex. Gen. Laws 1932. A copy is at Appendix Tab F. 31 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.) 32 Testimony of Dr. Kathy Alexander. AR. Vol. 8, (Transcript, Vol. 2), p. 345, ln. 6–11. 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. 33 See 30 Tex. Admin. Code § 297.19(a). 34 Id. 35 Tex. Water Code § 11.1381(a). 36 30 Tex. Admin. Code § 297.19(a). 12 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 37 Testimony of Dr. Kathy Alexander. AR Vol. 8, (Transcript, Vol. 2), p. 345, ln.12-15. 13 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 14 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 38 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. 39 AR, Vol. 4, Item No. 57, p. 6. 15 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 40 Tex. Water Code § 11.1381(a). 41 Tex. Water Code § 11.134(a). (Emphasis added.) 16 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 17 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 42 Testimony of Dr. Kathy Alexander. AR, Vol. 8, (Transcript, Vol. 2), p. 384, ln. 1–7. 43 Id., p. 360–61, ln. 3-13. 18 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 44 Id., p. 361, ln. 7–20. 45 Id., p. 361, ln. 21–25. 46 30 Tex. Admin. Code § 297.42(c). 47 See Water Availability Review. AR, Vol. 5, Item No. App. 47, p. 1. 19 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 48 30 Tex. Admin. Code § 297.42(c). 49 AR, Vol. 6, Item No. ED 5, p. 1. 50 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. 51 Id. at 3679–80, § 7.01, codified as Tex. Water Code § 16.012(g)–(j). 20 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 52 Testimony of Jeffrey Thomas. AR, Vol. 7 (Transcript Vol. 1), p. 73, ln. 17–19. 53 Id., p. 176, ln. 7–10. 54 Resume of Jeffrey C. Thomas, P.E., P.G. AR, Vol. 6, Item ED-1. 55 Testimony of Jeffrey Thomas. AR, Vol. 7 (Transcript Vol. 1), p. 174, ln. 5–9. 56 Resume of Kathy Alexander. AR, Vol. 6, Item ED-6. 21 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. 57 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. 58 Testimony of Samuel W. Jones. AR, Vol. 7 (Transcript, Vol. 1), p 219, ln. 15–18. 59 Testimony of Samuel W. Jones. AR, Vol. 7 (Transcript, Vol. 1), p. 220, ln. 15–17. 60 Testimony of Samuel W. Jones. AR, Vol. 8 (Transcript, Vol. 2), p. 294, ln. 3–12. 22 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 61 Tex. Gov’t Code § 2001.060. 23 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 62 Tex. Gov’t Code § 2001.175(b). 63 Testimony of Dr. Kathy Alexander. AR, Vol. 8, (Transcript Vol. 2), p. 370, ln. 12-22. 24 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 64 TCEQ’s Final Order. AR, Vol. 4, Item No. 64, p. 5. 25 § 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 65 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. 66 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. 67 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. 68 (Emphasis added.) 26 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 69 (Emphasis added.) 70 Ware’s Brief at 20-21; 32-38. 27 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 71 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. 72 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. 73 Tex. Water Code § 11.042(b) and (c). 28 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 74 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). 75 Id. at 62 (footnotes in text omitted). 76 Ware’s brief at 36, relying on Ware’s Exhibit I. 29 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 77 Id. at 147, CR at 213. 78 Testimony of Dr. Kathy Alexander. AR, Vol. 8 (Transcript Vol. 2), p. 360, ln. 5-8. 30 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 79 AR, Vol. 4, Item No. 57, p. 6. 31 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 80 Testimony of Dr. Kathy Alexander. AR, Vol. 8 (Transcript Vol. 2), p. 389. 81 Tex. Water Code § 11.172. 32 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 33 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 82 AR, Vol. 4, Item No. 57, pp. 2-5. 83 Id. at 2. 34 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 84 Id. at 3. 85 Id. at 3-4. 86 AR, Vol. 4, Item No. 58A, pp. 25-26. 87 Ware’s brief at 29. 35 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. 88 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. 89 Ware’s brief at 28-29. 90 Tex. Govt. Code § 2001.175(e). (Emphasis added.) 91 On page 29 of his brief, Ware cites to the testimony of Jeffrey Thomas in Vol. 1 of the Transcript. 92 See, e.g., AR, Vol. 7 (Transcript Vol. 1) pp. 116–124 (Testimony of Jeffrey Thomas.). 93 See AR, Vol. 7 (Transcript Vol. 1), pp. 186, ln. 3 – 193, ln. 13 (Testimony of Jeffrey Thomas.). 36 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. 94 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. 37 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. 95 Testimony of Bradley Ware. AR, Vol. 7 (Transcript Vol. 1), p. 22. 96 Testimony of Bradley Ware. AR, Vol. 7 (Transcript Vol. 1), p. 64-65. 38 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 39 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 40 Index to Appendix Item Description Numbe r 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 A I App. Exh Þ f, il d;: € e :i - sÊ ç\¡ - u!l !J i: ti r: .j i''. J' ilj 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 zubmititwiththis ]t NA.N[]E AIIDIIDIBI&SS: EIÌI.AtrIL ItlDltmssl[tulFïF @A.OIL. OoM A.X}Ï}MIESS qÞ Lftffi"ffi sffis# Slrnlm(DL \F' 'r rt !.\MIINGÍ]IDINIGS " NGE '' NSITV(DIIIDIIIVGS'' rt6t ìffi W.A.]tMM,SMIEIID ) OOllIN1flf: BmÍ,il, OOUTNTTD¡ t IPMOIPOSM]ID OnIARIGMS ]tO WA.TTMM IRIGIIHIIT ^&ITMMOMIIZA.IIÏONIS: E'E**w^', oF rso ÂoBB Ir@[! wor'Ð r.rEE To ]r,,,, sr¡ rso*E aoB,E [wr Fffffi#^ðÀf-* rÂPrP&ÂT D*rqrr*o p*."rßsr r,o.o.^rro*r, rrrv*Bsr$N ,,or\rr, Form TCEQ -10201 (revised B/02) ll. lr 1IIHIIÐ DILA]T A]ID]ID]tIIIIOTUA]I, ]IHm m&II} 00) ,A]PIP]LITOÄ.1TTOÐN. Ð IFMMS ]ilEMIUWIIlT]tr. tu*ïffi1ffi*SWffiffiP.%rffi ¡m'm*U'tmmnD ìWII1INMSS ]HIAN]ID A.1[ lfffiA.s, (DtrY/(DìUm,) :trlnnrs I I (ffi-A.DtrFttrE: =p¡rJn om I I _, ffimt-, p(D(D '-' _1. L- ì^q e re_ Nra-I[m GPmlINlt) swomN BIEIITING TTBIIIM .ANIID OOMIE,IEO1T BEF'OEE]E DIIE OIF STA,TE OIF JENNIFEB L ïULEV @" tloürt P!DlE, tffi of T6 Gmnl¡¡lol E¡?h¡r lßlt-zrün Form TCEQ-10201 (revised 8/02) t Texas NaruReI, Rpsouncn CoTvSERVATIoN Co¡I¡,TISSIoN \ PERMTT-To AppRopmerb AND USE STATE TVATER APPLICATION NO. 5594 PERMIT NO. 5594 TYPE:. Secrion I1IZI Name: Bradley B, 'Ware Address: Rte, 3, Box 211 Killeen, TX76542 Filed Granted l{0y 0 7 19s7 Purposes County Bell Watercourse: Watershed: Brazos River Basin Éra¿Tel B.:wäiäläsìéclüèstea äritho¡?äüoïtô ciinèit-äuã üié'noitölti"ó"ã-r,o r annum to irrigate l00 acres of'Iand owned by the:applicant in BeIr county les southwest of Kifegn, Texas; and WIIEREAS' the Texas Natural co*ovution commission fi¡ds that jurisdiction over application is established; pd the WI{EREAS, no pbrson protested the granting of this application; and WHEREAS, the commission has complied i,vith the:requirements of the Texas .water code and Rules o.{ ttre-T¡xa1 Natr$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 1 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 2 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. t il; Ph.D.,Chief Clerk 3 ! ... gqg -- }Y 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 on the Texas Register on April 23, and are recorded in 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. I 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: L 2. 3 4. 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 Y 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 s4 54 4 Costal Bermuda glass -:-l (double crop) 8 months 20 Bob oats or soft y¡!¡s¿f-J 5 months 20 I t 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 €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 A It 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 or 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 G XIV. Indicate that water is diverted from the C:\FORMS\I0218.r@ (rsdscd 998) Page 6 ,i.¡ r-F n, -È, å .f lr-' 1 il:' ' L .,/ T oLo',ÞrArxó R^ry68 RKtll Re\ LY i^f ûkt 'Y fr- ^n 1. \ ., : i.' tt E¡EI ti rJl I t.' I BÉ,8 Htve5 . /c/ - ¿ ¡ Á B 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 () I 'T '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 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-4rvs antl potcntially gruater rvater ¿rvailabilit)-.7? 'l'he Comnrission gathcrs inl'onn¡lioll alrout w¿ttcr rvithin thosc strcallrl'lo*'s by rclf irrg on gaugq inf'ornration. Whcrc gaugc '' lo-t¡c \ 2()7 r9(bX2). '" 'l'¡'. ll nt 27-.Ì-74. '' l r. I lt 19,1. ) I'nge l8 sO.\llDOCKllTNO.582-08-l(TgSPROPOS'^\LFOIIDIIC'lSlON l'CltQ l)ocK ¡i]' NO. 200t1-0181-wll I in[orniation bascrj on thc infornration is unavailable, thcn thc Conrmission rnay cxtrapolatc ¿is ''natt¡ralizecl llorvs.''78 rc*clings at ncarby gauging stations. a process proclucing clata knorvn -l'hc v¿rlL¡e to thc Ctlmnlission bc-cattse it reflccts thc monthly qvcragc of thc llow in a clata þas strcarìl rvithin a rcporting periocl'7') ììinirlly, lv,ls. Alcxanttlcl ltann sot¡cttnc elsc.8') i Ms. Alexa¡clcr cx¡rl¿iucd that b1'examining an application in terrþs olthcsc thrcc fàctors' pcriod ol-record, locatiou. ancl priority clate, thc IID is able to cvaluate a[ applicatìon olarty sizc rclatecl her clforts to in tcrms of thc currcnt conclitions presented. As an cxamplc, Ms. Alcxa¡iclcr cxtminc Ìür. Warc,s application in tcrnrs of his cxpanded rec¡rtcst ol'150 acrc-lcct' thc original 'l'hc tvlodel is capablc l-i0 acrc-ltct. and clinrinisherl anlounts as srrrall as l0 aclc-f'cct, o1' cst proclr.rcing a rcsult that projcctccl avnilability rvithotrt regarcl to thc siz'c o t' the rc(lu I I 2. Mr. .lonc.s' ln¡rlYsi.s : i l' aclditio' te arguing that thc clc.sign of'thc tvloclel rvas flarvcd, fvlr. .loncs also aclvaltced his orvn arralvsis. I'¡at ar-ralysis rclicd in part on tt balancc bctrvccn tþc scopc ol'lvlr'. W¿rrc's rccìr¡r'st ¿rncl tltc then-cun'cnt rvithclr¿rrval ratcs ol'thc tlost proxitt-,nl ,ui,t.l. ririhts tlscrs alltl thc inflorv ratcs '* l'r. I ¿rr 77-ti I :'' l'r llat i5.t *(' lr ll irt 172 '\J ] SOAII DOCKET NO.532-08-Ió98 PROPOSAL FOII DECISION l'ugc l9 TC¡lQ DOCKT:T NO. 2oo8-oltll-wll fvlr, Jl ¡rermit.'.I1,, "* ,io'lnc 297.1 ('1). "'7 'l'r'x. Wn'l t:tt CoDf i s\ I l . l4l /,/ urld l0 'f,\C ^NN. 297 4a(c) "'* tu" t\ ld. rr(i 'rl.y w^ t'tìR col)ti ANN. s{ I I ' li5(a) Pngc 25 PIIO POSA L F'OtI DI]CIS ION so,\H DOCKti'r NO. 582-0tl-l69ll TCIìQ tx)cKtl'I NO' 2008-0181-wll i ltlltv irlclr"¡dc to all typcs of ¡lcnuits, thc Çomnrissitltl watcr that nlaY bc clivcrtccl'lll wirh rcspcct l2 restrictions to prolect thc priority tll'sctliot w'atur'rights "l conditions ancl limitation making pcrmits "suborclinatc Iiach tcrn, ¡:rcnnit is subjcct to thc statutorv 'fhe and the gcncrallY intcrPret to any scnior approptiativc rights"'lll ¡lhrase is urldetined' l14 ln af'ñrmati sentencos, thc ordinarY meanlng' unclctì¡rccl lernrs accot'ding to their orclinary lìcl¡'ing on that ordinary mcan the rulc makes tcnn rrreaning ot'-,ir'y" is "cvcrv" or "all."ll5 pcrntits suborclinatc to all serrior rvatcr rights' rrr 'ì't \. W,\'¡:t( Cot)t: li I 1.135(bX5)' r-' .1.t.\. ll.l35l.'iii. lar' controlling thc issuancc ttllc'r.porirry pcrtnils' a clilt'crent w¡\rr..r{ coDr, ^NN. $ ^i.rx. 'l'r:x w,\'l'lìl{Col)l-:ANN.\ 'rrr ll.lltlic) ltìnrphosisstrpplicdl i 'l'l'\, Wr{l l;tt C'¡'ccthe ItiDJ to apply the fìrnrlamental principal of''first in tinrc, tìrstiin right,'to thc watcr in rhc Ilrazos Iìii,c¡'lJasin rvhich hc knou's to be available fìrr appropriation."l24 'l'hat firnciamental principtrl prcvails in this casc, but not to Mr. Warc's adveurtagc. lll Wirre [i,.r.,tl nt li. f-his clulc rvns includcd i¡r a cirali pcrrnit that hud not bccrr ar.lopred by the Cttnttnis:;icln 'l'hc partics did not rJispulc that thc datc on rvhich the ßrazos Rivcri Aurholity'-s irpplicafion rvas ildrninistrativcly contplctc was belorc thc datc vernbcr (r. 200(r. thc I:.D rccornme ntlcd dcrri¿rl ol'the AppliLation. 1 (] 3 t7 On Januar¡, 8. 2007. lvlr, Warc rcqucstcd a contcsted case hearin{ at SOAII' i Itt gn Janrrar\,?5.20011, thc Conrrlission dircctll'rcf'crrcci the casq to SO,'\f I lìlr a lrearing ()n Ilìc rtrcrils. t9 On April l, 200f1, thc SOAII adrninistrativc law jtrclge (At'J) convcnccl a prclirninarY hcaring ancl took .!urisdiction. 20 On January 12, 2009, tlte Brazos Rivcr Atrthorit¡ rvtts grantcd t right to rvitltclraw ¿ts a prtltcsting partY. 'crllorving 2 on ocrober l. 200tì, rhc ¡\[-J issr¡cd an ordcr f telcphonic prchearirrg conll.rcncc ancl notilìetl thc partics that thc hcaring on the nrerrits uld be held lvlarch I8 through 19. 2009. ?2. ¿\t thc rcqucst ol' lVlr. Warc. the hearing on thc mc'rits rvas rcschc'clulccl to convcnc October 29 throrrgh 30, 2009 'I'he hcaring cOlrvclred on octobcr 28, 2009. arrcl acljrlttrnecl oll October 29, 2009. 'l'hc :J I arlnrirristmrivc rect)rd closed orl f)eccmt:er 21,2009. alìcr closi n g argunlcnts ancl rcplics ucrc fìled. I I EI)'s recontmcnduliott lo tlctt¡t llrc Applicoliort i i 24. Alier lVlr. Warc filccl ¡is Application in 2005, the LìD's hydroltjg.v- tc'anr tlclcrtnincd thal I '.littlc to tìo watel"' w¿ìs available at Mr. W¿trc's tliversion pointlon thc Lampasas Rivcr. 'l u,ithout rcgarcl to rvhcthc.r the amended l)ennit rvould havc a pcr¡lctual or limitccl tcnrr. ) 'l'hc Iìt)'s surl¿rcc rryarcr ¿rv¿rilability ancl intcrstatc.ot't'tpn,jts tc¿ìm ctlnfirmccl thc lri,clrr:l'91,tciutì's conclusit>n in a rvatcr availatrility rct'icw,t,Lut,, that calculatctl thilt illsul-trcicut watel.w¿ts available at lv{r. ware's clil'ersion poirrt to strpport crcll thc origirral I 30 lcrc-lcut ol'tcl'm-lilnitecl appropriation righls' -) ( } 26. lrl rcconr¡lrcnding denial of thc Appplication. thc fiD reliecl on Conlnrissior'¡' s Wate'r 'l'hc cal r\vailabilitl, MocJel ft¡r thc lJrazos lìiver basin (Model)' rulation used a historical pcriotl olrccorclol1940 to 1997 27 Although prcvious r\'¿ltcr availability ¡lrodcls !\'cre clcvc and uscd b;" thc' Cornnrission. the currcnt Ìvloclel has been in ttse sincc 2001. Comnrissit-rn has rclied orr thc Motlol in evaluating all applícations for appropriative s sincc then 2tt [¡r cvaluati¡rg tlrc Application r¡'ith thc'lr4oclcl. thc l]D usecl ¿.t iority datc of January 5, 200(r, thc datc orl rvltich tlrc i\pplicatitln rvas adrnirristrativcly plctc 29 'l'hc Motlcl prcclicts that Mr. W¿rre's cttrretlt rcqucst coulcl bc slìed at ¿ 100"/t lcvcl ur nn basctl on thc rcaclings at nearby gauging stations, ir proccss producing data known a.s "lrirturalizccl f'ìr)rvs." :i9 Natunrlizcd l'ln ol "ncrv \vâter," i1 it wcrc provcd to cxisl. lvoulil bc subjcct to all prior ruppropriation rights ol'seniol u,atcr rights ltolder ancl ct>ulcl not b,lc trcatccl as av¿¡ilablc [or ncw allocltirln. i 'l'hc lJrazos Iìivcr At¡thority's lctru'rì f lorvs beconrc ¿rvailab!c only itt thc lirrthcst dorvnstrc¿trn point in thc tlasin. I'riorily dutcs I 16. 'l'hc priorin' illtc ol' Vlr W¿rrc's currurt Pcrnrit is .lul,v l, I 997 anrl itpplics to "¿ll cx tcnsl()lls I ( ( ì ) -, I 47 l'hc priority clatc in thc Permit ha.s no rclation to applications fì)r ttcw pcrnrits or lo äny ¡lttrcr qrhcr rhan csratrlishing whcn the permir holclcr begttn tlrc åppropriation ol'\\ratL'r or rvlrcn thc ¡lcrntit holclcr acc¡trircd the ríght to tlsc thc water. ' 48 'l'hc priorit¡ datc ol-\4r. Warc's application rvas establishccl on thc tlatc on *'hich it bccrunc actntinistratír,cly contplctc', January -5. 2006. I '['hc l]razos Iìive.r ¡\uthority is sceking a 19 ¡rcnnit l'rom thc Comrnission to Ítppropriatc atl adclitional 421.449 acre-tèet pcr year of'urrnppropriatecl watcr. o¡ scvcral thous¿tnd tittrcs thc anrount thut Mr, Warc is scc-king ar¡thority to appLopriatc liorh thc same rivcr basin. i .50 'l'hc'priority'cl¿rte ol'the application olthc ßrazos Rivcr Â,uthorityi i¡; C)ctobcr 15,2004. 5l 'l'lrc priorit¡' clatc of thc Ilrazos River Authoritl"s applicatr is earlicr th¿rn that ol' Vlr. Warc's ap¡rlication. I 5l l'hc l:f) cngagccl in no manipt¡l¿rtion of thc priority datcs in rccr ('lr\C) ch. 295, subch. C; ancl'l'l;x. (ìov. Col)li z\NN. .s$ 2003,051 and i 1001.052. -) SO¡\ll has iurisdiction lo concluct a hearing and to prepírrc it i'roposal lbr Decision i¡r i c0¡trcstccl cascs rcfcIrcd b1' l'ClrQ. 'l'l:X. (ìflv. Conr: ANN. \ 20qi.47. + '['lre i\¡lplie¿rr.ion bcciurc aclnlinistrativcl¡' corlplctc tln .lanuaryr -5. 200ó. 'lt;\'. \\t,rt'l'n ó ( ) 5. 'l'[c Apptication wâs proccssed and tlrc procecdings tJcscri in this Orclcr wcrc concluctecl ilr ¿rccordance rvith a¡l¡rlicable stattttcs and thc rulcs of thc Commissivicling infìrrrnation to conrplclc thc administrativc rccord." r. W,rr riR Cìot)r-r AN\ 5s _5.228(c). ll In ¡r contestccl lrcaling, thc Ilt)'s prcscntation is [illritcd to "inlir ation clevelopcd by thc Conrnrission . , ."'l't,x. Wn'l'uR Clot)n ANN. \s 5.228(a). t2 I¡ ¿r corrtcstcrl lrcaring. thc IiD niay proviclc inforntation that opposcs ¿ìll application. as lonq as thc inlbrrnation is rvithin thc liurits of thc law. TI'x. W,r'rl'R Clor)ß ÂxN, 5s I 1.133. l ll ,,\ll partics to a contcstcd casc havc thc right to prcscnt a clircct cåsc ancl to cross-cx¿tnrinc i thc o¡rposing part)"s eviclence. 30 l'AC $ 80.1 l5(al. i I l4 't'hc IID has starlcling to rìppear ¿ìs a part,v in this proccccling ancl rf'as attthorizcd to prcscnt i thc (\lllllrissioll's eviclcncc a¡rd nrs,urlcnts in opposititln to Mr. Wtlrc's casc. a ( 3 I 3 15. Ân applicant nlay requcst that an npplication bc rcnlanded ro hc Lll) lìrr action as an r.¡ncontcstc(l rnattcr if' (l) all timcly hcaring rcqr¡csts har.e bcc¡i w,ithrlr¿ru,rr or cleniccl or (2) all partics to a contestcd casc rcach a settlcnrenl so that lìtcts or issucs rcnrain controvcrtcd. 30 'lAC $ 80. I 0l I 6. A hearirrg was rcquirccl in this casc bccause thc ED rcmainccl a y to a contcstecl c¡tso atìcr thc Ilraz.os River Authority withdrcw its opposition and r,rsc lhcrc w¿rs not a scttlcmcnt bctrvccn the rcmaining partics. 17. Scicntifìc tcstimony presented by a pnrtv must be olf'cred truo gh the tcstinrony, ol an cxpcrt. and that testimony nìust be basecl on a rcliablc l'ounclatio 'l'nx. Iì. I\'rr>. 702 Itl. A lindcr of'lact is to clctcrminc thc rcliability, of'thc cvidcncc, and "[u]nrcliablc cxpcrt testinrony is not cvidencc," (ir¿¡.r:; t'. Burt.l49 S.W.3cl 213.237 cx. Âpp.--l;ort Worth 2004. pct. dcnicd) t9. lir c'stablish the rcliability ol'an expcfl's tcstimony,. an of'li'ring rty nlust lìrst cstablish thc rcliability ol'thc analysis that thc cxpctl uscd in rcachi his couclusirtns. Six ¡ronexclusivc l'actors arc uscd in cletcrnrining rvhctlrer scicntilìc nlo¡ry is rsliablc ( l) thc cxtctlt to whích thc thcory has bccn or can bc tc cl: (2) thc cxtcr'¡t to rvhich thc tcchniquc rclics upon tlrc subjectit,c int rctatioll of thc cxpcrt; (3)r.vhcthcr tlrc thcory has becn subjcctccl to cr rcl'icrv and publication; (4) the technique's potcntial r¿rte ol' crrclr (5) u,hcrhcr the rurtilcrlyiuu thcory or tcchniquc has lrcclt gcncrall¡, acc d as valid by thc lclcr,¿rnt scicntif ic corlmunirvl and ((r) the non-.ir-rdicial t¡ s that h¿rvc lrccn rnaclc ol'thc' theory or technique (iro:;.s v IJurt. 149 S.W.jd at 237. citrng À/cn-ell Drnr l,hctrilt.t.., lnc.. t,. Ilt¡,ncr. g53 s.\\/ 2d 706,114 (-l'c'x. 1997). t'ert. clcnictl,5?i U.S. lllg (lÇls¡ anct E I lu prntt clt, Nantr¡urs n is the statc's agcnt for the rcgulatio¡r oI its n'ater EX. WI\ IIiIì COI)I| ANN $ l l .02l(a). 'l'hc 22 Conrnlission has thc authority to allow pcrsons to a¡:propri atc statc watc'r lbr snccifìc I tuscs. '['t:x. \\/;\'t'Dlì COnn ANx. N I 1.022. I 'l'hc Conrnrission nìay grmt permits to applicants wlro seck to up propriate una ppropri atcd -frx. Wn'r'¡.tì sr¿rtc watcr. CoDE r\Nx. $ ll.l24. 24 'l'hc ¿¡mtlunt oln,¿rtcr lor which thc Comnlission nray grant penn ts mav not bc'more thirn í.s availablc. 'l'Ix. W¡\t'riR Collr, ¿\rx. s\ I 1.023(cr). 2 ) In l9(r7. the 'l'exas lcgislaturc ab¿tncloncd thc state's l'ornrcr sy,'slcrn ol'recognizing both I ripirriarr antl appropriative rights. In re lcljuclic'¿ttit¡n ol'Iú'utlr Ili,qhts oJ'ßrunls Ill S'ag,ntant ttf llt'uzos River lJa:;in,7,16 S.W,2 d207,209 ('l'cx. l9S8f. i I 26 ln placc of thc f'ormcr srstcrn. tll e legislaturc aclopted "an orclcf l¡, fìrrunr and procedurc fìrr thc [(lonrnrission's] ac'ljudicati on ¿rncl achlinistration ol' rvatcri riglrts." l)ruzr¡.r lll, 746 S.W.2(l ¿rt 209. '27 'l'hc (lorrrnission is rcqLrircd to "proviclc ccrtaint¡" in u,¿rtcr mar ragcrì'ìc11t" lry c'valuuting thc st¿ìtc's rnajor river btsins. '['rtr. \\¡,r't'riR C]oot, ANN. I t.02.iitcl-2). 5s 28 l;or all pernrits. thc holclcr has thc right to appropriatc rnatcr o,rl¡4 to the cxtcnt and lbr thc : purposcs statecl in thc pcrnrit ancl sub.iect to the protcction ol'th{ holdcrs of'scnior u,ittcr rights. 'l'ux. W,\'l'utì Col)l Aln*. g$ I 1.135(a) ilncl l-ì51. i i l9 ,,\n "appropriatil'c ri-qht" is ttle right to inrpound, tlivcrt. r,or.f ,rk., or usc a spccilìc qLrirrrtity crl'stn(c \\,ater ¿ìcquirccl by larv. 30 1'¿\C $ 297.1(4). I 1 j0 I'he holclcr"s rights to appropriatc \\'atcr uray bc afftctcd bV rhcjí.ì¡noLurts that thc holclcr uctuall\' usus ()r can beneficially use. ancl "all \vatcr not ,n I urct.l is consiclcrcd not applopriatccl." 'l'Ix. Wtrr,lr Clonlt ÂNN. N I 1.025. () ( ) 3t lf thc holdcr of a pernrit docs not l'rcncfìcially use his rvn tcr, thcn thc right of appropriatior: is consiclered to bc not pcrlccted. 'fux. Wn'rnn Cop t ANN. s\ I 1.026, I i )2 'l'hc Conrnrission has cliscrctionary authrlrity to tcmporarilyi rr..allocatc unpct'lèctccl I appropriatil'L- \.vater rights to persons othcr than thc rcgular pcrrfit holder. ,{n applicarrt ntay scck a tcrnl pcnlit. a pcnlit that is issuccl fìrr a tcrnr jof years nrthcr than in pcr¡rctuitv. 'l'r:x. W;r'r't:tr (Ìrot,: ANN. çrS I l.l:i8l(a) ancl I 1.026. i I -) -) r\ Lcnn pcrmit allorvs an applicant 1 be concluctccl -l'r;x. b1,thc llD. W,rt'rin Cooni\Nx. ¡s 5,2291(tt). 4:l 'l'hc lìl) has the authority to rcly on scientilic data analysis in nl-orcing thc tcrms of a pcrnrit and in prescnting infbrnration about an npplication lìrr a pcrrttit. 'l't,x. W.r't'f:n C,'¡;r, AXX. \s ,í.230. .{4 r\ contestiug pc'rrlít holdcr rnay rely on "rcasonablc pro.icct ons bascd on acccptccl n'ìùtlìods." arrtl an applicant and thc lìl) nray do the samc. i0'l-A [' ò 2e7. re(bx2). 'l'hc 45 Courmission uray usc approximatc ¡rttnrbcrs in estinlating rvi ¡tcr availability irr pcrrnit application procccdings. 30 l'AC $ 297.42(c). 46 Iror cvcr'), pcrnrit, a priority tlate is establishecl firr the appropriaiion of ,,r,atcr anrl firr thc "l'EX. W/\'t-tjRCODE¡\Nt. cl¿rinrant's right ro usc thc watcr. rS f f ,i+f . , 17 'l'hc nlcusuring clate fìlr thcsc priority clatcs is thc chtc of'fìlinig ol'un aclnlinistrativclv -ì'¡\C conrplctc ayrplicatiurr. i0 ¡t 297.44(c). -l'hc .18 clltc on rv'hich a priority clalc co¡rtcs into bcing is "[rv]hcn t Conlnission issues the 'l'¡\C rs 197.-l.l(c), ¡rcrnrit -i0 il (3 49 r\n applicant's right to takc atrd usc watcr is linlitecl "to thc ex( ei'rt I anr'l purposcs statcd in rhe ¡rcrnrit." 'l'ux. Wn't'l,n Coor ANx. $ I I .l 35(a). i I I I .50 A pcrnrit rlny incluclc spccial conditiorts that limit thc total am oi-tnt ol' rvater thut rnay bc clivcrtcd. 'l'r:r. W,rrER CoDE AxN. $ I L 135(bX5). I 5l With rcspcct to all types ot'permits, the Comnrission ntay inclrJdc "...conditionsancl rcstrictions. , . to protect thc priority oIsenior rvatcr rights." 'l'rix. W.r'r'un (ìoor Alx. t\ il.r35r i 52 liuch tcrnr Jrcrnrit is sub.icct to thc unique stiìtutory linritatiln making tcrm pennits I "subordi¡iurc to any sc'nior npproprialive rights." 'l'nx. Wn't't'r¡ Crir¡ri i\ I l.l38l(d). i 53 Courts gcncrally intcrprct undefìncd tcnns accorcling to their Jrdinary rtte'itning, 'fax. I (ìov'r' Clr; ANx s\ I l.l38l(cl); i0 't'¡\c { 297.19(a). -i6 \4r. Warc f ¿rilctl to carry lris bulden of proving that sul'lìcicnt tcr cxists in thc IJraz.os Ilivcr basin or that all ipplicablc st¿rtutory and regulatorv rcqur rncnts hnvc l'lccn n.ìcl to warrant issuirrg to hinr the proposecì \\/ater [,sc l)crnlit No. 5594uir, 51 I)ulsua¡lt Lo thc tuthuritl,ol, and in ac'cordancc rvitlr. a¡rplicahlc l¿rrvs ancl regulations, the rcc¡ucstc-cl Pcrnrit should not be grantcd. -5lt. [)r¡rsu¿urt to 30 'l'rix. Aotr,rtN, Coon ANN. 5$ 80.23(dX2). thc Excc:utivc Dircctor ancl Of'tìcc of I'ublic lntcrest Clounscl n.ìay not bc asscssccl u,ry p,rrdio,'r ol'thc trunscript ancl rcpclrtirrg crrsts I2 J NOW, 1'll0lìtill'ollli, llE r1' 0RDFllìtiD IìY 't'tìll ]'EXÂs cOillì\llssl0N oN ¡iNVilìONMEN'r^L QU^LITY, IN ACCOIIDANCE Wlrll 'l' ESIì þ'INDINGS OF I.-AC''I' ,\ND CONCI,IJSIONS OF T,AW THAT l . 'llrc application ol'Bradlcy B. Warc lo atncnd Watcr [Jsc Pcrnrit o. 5594 is dcniccl 1 'l'hc Applica¡rt shlll pay the cottrt rcporling ancl transcript costs tlris casc 'l'he Chief'Clerk of thc Commission shall lorward a copy ol'tl''i Ordcr to all partics, attd 3. no umcnchnont to Watcr Usc I'ermit No. 5594 shall be issued +, ¡\ll othcr ulotions. rcqLlests f'or specifìc lrinclings ol' Fact or onclusions tlf' Law, antl orþcr rcc¡r.rcsts lìtr gcncral ancl spccilic relictì il'not expressly grairtcd. ¿rrc cicnicd fbr r.r'anl. rll'nrcrit. 5. lt'any provision. sc¡ltctlcc, cl¿tuse, or phrasc ol'this Orclcr is iìrr)' rcíìson hclcl to bc t' invalicl. tftc invalidity ol'any pclrtion shall not afl'ect thc valiclity l' thc rc'nraining portions of'this Orclcr. 'l'lrc cl-lcctivc clats ol this Ortlcr is thc clatc thc Orcler is final, as proviclccl by 30 't'AC 6. \ lì0.271 ancl'['¡x. Cþ James Aldredge, Staff AttomeY Admini strative Law Judge Texas Commission on Environmental Quality State Offrce of Administrative Hearings Environmental Law Division MC-173 P. O. Box 13025 P.O. Box 13087 Austin. Texas 7 87 ll-3025 Austin, Texas 787 1I-3087 * Courtesy Copy via inter-agency mail ( ! I ) Tpres ComIISSIoN ox ExvIRoNMENTAL QunurY AN ORDER Concerning the Application of Bradley B. Ware to amend water use Permit No. 5594; TCEQ Docket No. 2008-0181- WR; SOAH Docket No. XXX-XX-XXXX On April 14, 2010, the Texas Commission on Environmental Quality (TCEQ of 'Ware Commission) considered the application (Application) of Bradley B. to Amend Water Use Permit No. 5594 (Permit). A Proposal for Decision (PFD) was presented by Paul D. Keeper, an Administrative Law Judge (ALJ) with the State Offrce of Administrative Hearings (SOAH), who conducted a hearing in this case from October 28 through October 29,2009, in Austin, Texas, After considering the ALJ's PFD, the Commission adopts the following Findings of Fact and Conclusions of Law: I. FINDINGS OF FACT General Findíngs 'Ware 1. The applicant is Bradley B. Ware. Mr. owns a 261-acre farm on the Lampasas River, about l5 miles southwest of Killeen, Texas. 2. Mr. Ware's street and mailing address is 911 Gann Branch, Killeen, Texas 76549. 3. Mr. Wa¡e's farm is located in Bell County, Texas, and is r¡'ithin the Brazos River basin. History of the Pernút 4, On November 7 , 1997 , the Commission issued Mr. Ware the Permit for a ten-year term. t ( I ( ì 5 The Permit authorized Mr.'Ware to divert and use 130 acre-feet of water annually from the Lampasas River to irrigate 100 acres. 6 The Permit also established July I , 1997 as "the priority date of this permit and all extensions hereof . . . ." 7 The Permit was to expire on November 7, 2007, unless before that date, Mr. Ware received the Commission's approval to extend the term or to convert the Permit to a perpetual right. 8 Mr. Ware's rights under the Permit remained in effect pending a hnal administrative ruling on the Application. 9 During the twelve years in which Mr, Ware has had irrigation rights, he has farmed hay, pumpkins, wheat, sorghum, oats, and winter peas. 10 Mr, 'Ware has tried to impound his water by installing six or seven earthen tanks, but the composition of the soil limits the amount of water that the tanks will retain. 11 Mr. Vy'are has purchased 100 acre-feet of water rights and installed 8,000 to 10,000 feet of two-inch pipes, plus an eight-inch pipe to a central pivot system. T2 On November i5, 2005, Mr. Ware timely f,rled his Application to: (1) either extend his Permit for another ten-year period or convert his Permit to a perpetual right, (2) withdraw 20 more acre-feet of water annually, and (3) irrigate 31 more acres of his farm. 13 On January 5, 2006, the ED determined that the Application was administratively complete. 14. On June 7 ,2006, the Brazos River Authority contested the application. 15 OnNovember 4,2006, the ED's surface water availability and interstate compacts team completed a water availability review and determined that there was not sufficient water available at the Applicant's location to support the requested demand, 16. On November 6, 2006. the ED lecommended denial of the Application. 2 ,, ( tJ -\ l7 On January 8,zOOi , Mr. Ware requested a contested case hearing at SOAH' On January 25,2008,the Commission directly referred the case to SOAH for a hearing 18. on the merits. On April 3, 2008, the SOAH administrative law judge (ALJ) convened a preliminary 19. hearing and took jurisdiction. On January 72,2009, the Brazos River Authority was granted the right to withdraw as a 20 protesting Party. 21. on october I, 2008, the ALJ issued an order following a telephonic prehearing be held March 18 conference and notified the parties that the hearing on the merits would through 19,2009. 22 At the request of Mr, ware, the hearing on the merits was rescheduled to convene October 29 through 30,2009. 23. The hearing convened on October 28,2009, and adjourned on October 29,2009' The and replies administrative record closed on Decemb er 2I,2009, after closing arguments were filed. ED's recommendøtíon to deny the Applícatíon 24. After Mr. Ware filed his Application in 2005, the ED's Surface Water and Interstate Compacts Team determined that "little to no water" was available at Mr' Ware's amended Permit diversion point on the Lampasas River, without regard to whether the would have a perpetual or limited term. the 25. The ED's Surface Water Availability and Interstate Compacts Team confirmed that hydrologist's conclusion in a water availability review memo that calculated insufficient water was available at Mr. Ware's diversion point to support even the original 130 acre-feet of term-limited appropriation rights' /\ \J ) 26. In recommending denial of the Application, the ED relied on the Commission's Water Availability Model for the Brazos River basin (Model), The calculation used a historical period ofrecord of 1940 to 1997. 27 Although previous water availability models v/ere developed and used by the Commission, the current Model has been in use since 2001. The Commissionhas relied on the Model in evaluating all applications for appropriative rights since then. 28 In evaluating the Application with the Model, the ED used a priority date of January 5, 2006,the date on which the Application was administratively complete. 'Ware's 29 The Model predicts that Mr. current request could be satisfied at a I00Yo level in none of the years and at least 7 5o/o in 5.2%o of the years. Standing 30. The evidence presented by the ED at the hearing on the merits was generated by the Commission or was offered to support the integrity of the Commission's underlying information. The reliability of the Model 31 The Model is designed to be the most accurate method available to the ED without regard to the size of the request for water' 32. The design relies in part on the Model's use of a period of record. a1 JJ The period of record gives the Commission a set of historical boundaries ranging from the most severe basin-wide drought to the most severe flood periods ever recorded. 34 The historical period was developed by the Commission in conjunction with other state agencies and outside consultants' 35 The Model relies on an applicant's particular location within a river basin to determine availability. 4 r-) 36 If an applicant's diversion point is located within a large drainage area, then the applicant would be able to rely on large streamflows and potentially greater water availability. 37 The Commission gathers information about streamflows by relying on gauge information and data from other sources. 38 Where gauge information is unavailable, then the Commission may extrapolate information based on the readings at nearby gauging stations, This type of adjustment occurs during the creation of the naturalized flow data set. 39 Naturalized flow data has value to the Commission because it reflects the flows that would have occurred without the impacts created by human diversions and storage of water, 40. The Model takes into account an application's priority date in evaluating a request. 4t The role of the priority date is to determine the seniority status of a particular appropriative right previously given by the Commission. 42 By examining an application in terms of period of record, location, and priority date, the ED is able to evaluate an application of any size in terms of the current conditions presented. 43 At this time, the inclusion of more recent gauge flow data would have no effect on the range of data reflected in the historical period of record used in the Model. 14 The addition of "new water," if it were proved to exist, would be subject to all prior appropriation rights of senior water rights holder and could not be treated as available for nerv allocation. 45. The full amount of the Brazos River Authoritl"s requested return flows become available only at the furthest downstream point in the basin; diversions at other points are possible due to specific facts and circumstances of that application. 5 \ .! ) Priority dates 46. The priority date of Mr, Ware's current Permit is July 7, 1997, and applies to "all extensions...." 47 The priority date in the Permit has no relation to applications for new permits or to any matter other than establishing when the permit holder began the appropriation of water or when the permit holder acquired the right to use the water. 48 The priority date of Mr. Ware's application was established on the date on which it became administratively complete, January 5, 2006. 49 The Brazos River Authority is seeking a permit from the Commission to appropriate an additional 42I,449 acre-feet per year of unappropriated water, or several thousand times the amount that Mr. Ware is seeking authority to appropriate from the same river basin. 50. The priority date of the application of the Brazos River Authority is October 15,2004. 5l The priority date of the Brazos fuver Authority's application is earlier than that of Mr. Ware's application. 52 The ED engaged in no manipulation of the priority dates in recommending the denial of Mr. Ware's application. II. CONCLUSIONS OF LAW The Commission has jurisdiction over the determination of water rights in Texas rivers and streams. T¡x. WnreR Cooe A¡m. ch, 1i. 2 Notice was provided in accordance with TEx. W¡.r¡R CooE A¡n, $ 11.132,30 Tex. Aovn-r. Cooe (TAC) ch. 295, subch. C; and Tex. Gov. Coop Al.rN. $$ 2003.051 and 2003.052. J SOAH has jurisdiction to conduct a hearing and to prepare a Proposal for Decision in contested cases referred by TCEQ. T¡x. Gov. Coo¡ Al.Jl.J. $ 2003.47 . o J 4 The Application became administratively complete on January 5,2006. Tex. Wnr¡n Coop AxN. $ I 1.141 and 30 TAC $ 297,44(c) 5 The Application was processed. and the proceedings described in this Order were conducted in accordance with applicable statutes and the rules of the Commission and SOAH. Tex. WnreR CoDE A¡n'¡. ch. 11; 30 TAC ch. 80, i TAC ch. 155, 6. Mr. Ware held the burden of proof. 30 TAC $ 80.17(a). Mr. Ware did not meet his burden. 7 Any person may appear at a hearing at which the issuance of a permit is to be considered. Tex. WersR CoDE At tN, $ I 1.133. 8 The ED is required to participate as a party in contested hearings relating to applications about water rights. 30 TAC $ 80.108(bxl). 9 The ED is required to represent the Commission in hearings that raise matters that affect the public's interest in the state's environment and natural resources, including matters that have been determined to be policies of the state. T¡x. W¿,rsn Coo¡ A¡m. $ 5.228(a), 10 In contested case permit hearings, the ED's presentation is limited to "the sole purpose of providing information to complete the administrative record." TEX. V/¡,reR Cooe AxN. $ s.228(c). 11 In a contested hearing, the ED's presentation is limited to "information developed by the Commission . . . ." Tpx. WnreR CoDE Ar.w. $ 5.228(a). 12 In a contested hearing, the ED may provide information that opposes an application, as long as the information is within the limits of the law. Tpx. WereR Coop AwN.$ 11.133, l3 All parties to a contested case have the right to present a direct case and to cross-examine the opposing parry's evidence. 30 TAC $ 80, I 15(a). 7 J t4, The ED has standing to appear as a party in this proceeding and was authorized to present the Commission's evidence and alguments in opposition to Mr. Ware's case. 15 An applicant may request that an application be remanded to the ED for.action as an uncontested matter if: (1) all timely hearing requests have been withdrawn or denied or (2) all parties to a contested case reach a settlement so that no facts or issues remain controverted. 30 TAC S 80.101. 16. A hearing was required in this case because the ED remained a party to a contested case after the Brazos fuver Authority withdrew its opposition and because there was not a settlement between the remaining parties. 17, Scientific testimony presented by a party must be offered through the testimony of an expert, and_,that testimony must be based on a reliable foundation. Tex. R. Evto. 702' 18 A finder of fact is to determine the reliability of the evidence, and "fu]nreliable expert testimony is not evidence." Gross v. Burt,149 S.V/.3d 213,237 (Tex. App.-Fort V/orth 2004,pet. denied). t9 To establish the reliability of an expert's testimony, an offering party must first establish the reliabitity of the analysis that the expert used in reaching his conclusions. Six nonexclusive factors are used in determining whether scientific testimony is reliable: (1) the extent to which the theory has been or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert; (3) whether the theory has been subjected to peer review and putlication; (4) the technique's potential rate of error; (5) whether the irnderlying theory or technique has been generally accepted as valid by the relevant scientihc community; and (6) the non-judicial uses that have been made of the theory or technique. 8 () Gross v. Burt, 149 S,W.3d at 237, citing Merrell Dow Pharms., Inc' v' Havner,953 S.W.2d 706,714 (Tex. 1997), cert, denied,523 U'S. 1119 (1998) and E'1. du Pont de Nemours & Co, v, Robinson,923 S.W.2d 549, 557 (Tex' 1995)' 20 Mr. Ware did not establish that the method used by Mr. Jones, Mr. Ware's expert witness, was reliable. 21 The water of every flowing river in the State of Texas is the property of the state, and the 'W¡'rEn Coo¡ AtçN. Commission is the state's agent for the regulation of its water. Tex. $ I 1,021(a). 22. The Commission has the authority to allow persons to appropriate state water for specific uses. TEx.'W¡.ren Cooe AIIN. $ 11.022. )7 The Commission may grant permits to applicants who seek to appropriate unappropriated state water. Tex. Wnrnn Cooe ANl. $ Il'I24. 24. The amount of water for which the Commission may grant permits may not be more than is available. Tpx. Weren Cooe AwN. $ 11'023(e). 25. In 1967, the Texas legislature abandoned the state's former system of recognizing both riparian and appropriative rights. . In re Adjudication of ll/ater Rights of Brazos III Segment of Brazos River Basin,746 S.W '2d207,209 (Tex' 1988)' 26 In place of the former system, the legislature adopted "an orderly forum and procedure for the [Commission's] adjudication and administration of water rights'" Brazos III,746 S.W.2d at209. 27 The Commission is required to "provide certainty in water management" by evaluating tlre state's major river basins. Tex. W¡,rEn Copp Ar'r¡¡. $ 11.0235(d-2)' 28 For all permits, the holder has the right to appropriate water only to the extent and for the purposes stated in the permit and subject to the protection of the holders of senior water rights. TEx, WnreRCoDEAr.w.$$ l1'135(a) and 1351. 9 ( t r' 29. An "appropriative right" is the right to impound, divert, store, take, or use a specific quantity of state water acquired by law, 30 TAC ç 297 .1(4). 30 The holder's rights to appropriate water may be affected by the amounts that the holder actually uses or can beneficially use, and "all water not so used is considered not appropriated." TEX. WnrpR CooE Am. $ 11.025, 3l Ifthe holder of a permit does not beneficially use his water, then the right of 'WnreR appropriation is considered to be not perfected. Tex. CoDE A¡w. $ I1.026. The Commission has discretionary authority to temporarily reallocate unperfected appropriative water rights to persons other than the regular permit holder. An applicant may seek a term permit, a permit that is issued for a term of years rather than in perpetuity. Tpx. WnrpR CoDEAttN.$$ 11.1381(a) and 11.026. aa JJ A term permit allows an applicant to use water rights that have not been perfected by the holders. A term permit creates derivative rights, not original rights, so that the maximum use of water may be achieved. TEx. W¡.IER CoDE At\t{. $ 11.I23. 34 The Commission may deny an application for a term permit if the permit will jeopardize financial commitments for water projects or if the permit will prevent the holder of the senior appropriative right from beneficially using his rights during the period of the term permit. Tex. WerER CoDE Awr. $ 1 I . 13 8 1(b) and (c). 35. If the Commission approves a permit, then the rights that it confers are subordinate to any senior appropriative rights. TEx. WnreR CoDE A¡nç. $ 1 1 , 13 81 (d). 36 The Commission may issue a term permit "when there is insufficient unappropriated u'ater in the source of supply to satisfy the application." 30 TAC ç 297 .19(a). 37. A holder of a senior appropriative right may challenge an application for a term permit by showing that the Commission's issuance of a term permit would adversely affect the holder's beneficial use of its senior rights, In proving this adverse effect, the holder may use as its proof: water use projections in the state or regional water plans, economic 10 ) indicators, population growth projections, electrical generation needs, or "other reasonable projections based on accepted methods," 30 TAC ç 297.19(bX2). 38 The Commission may deny an application if the proposed permit would be detrimental to the public welfare. 30 TAC ç 297.19(bX4). 39 In 1997, the Texas legislature mandated the Commission to adopt an updated water availability model (Model) for six river basins in Texas. Tex. WereR Cooe A¡w. $ 16.012(Ð. 40 For direct diversions from a stream without sufficient water storage facilities, an applicant must prove that approximately 7 5o/o of the water requested is available approximately 75o/o of the time when distributed on a monthly basis and based on the available historic stream flow record. 30 TAC ç 297.42. 4l Neither the ED nor an applicant is required to use the Model in determining whether water is available in each river basin in Texas. 42. The Commission has the authority to contract for "scientific and technical environmental services," including scientific data analysis, to be used in the modeling to be conducted by the ED. TEx. Wnren Cooe A¡w. $ 5.2291(a). 43. The ED has the authority to rely on scientific data analysis in enforcing the terms of a permit and in presenting information about an application for a permit. Tex. WnrER Coo¡ A¡w. $ 5.230. 44 A contesting permit holder may rely on "reasonable projections based on accepted methods," and an applicant and the ED may do the same. 30 TAC 5 297 . [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4064383. Public record. Not legal advice.