Lake Medina Conservation Soc., Inc./Bexar-Medina Atascosa Counties WCID No. 1 v. TexasNatural Resource Conservation Com'n

• Decision Date: 29 October 1998
• Docket Number: No. 03-98-00058-CV,BEXAR-MEDINA-ATASCOSA,No. 1,1,03-98-00058-CV
• Citation: 980 S.W.2d 511
• Parties: LAKE MEDINA CONSERVATION SOCIETY, INC./COUNTIES WCID NO. 1; and Canyon Regional Water Authority, Appellants, v. TEXAS NATURAL RESOURCE CONSERVATION COMMISSION; Bexar-Medina-Atascosa Counties WCID; and Canyon Regional Water Authority/Lake Medina Conservation Society, Inc., Appellees.
• Court: Texas Court of Appeals

Page 511

980 S.W.2d 511

LAKE MEDINA CONSERVATION SOCIETY, INC./BEXAR-MEDINA-ATASCOSA COUNTIES WCID NO. 1; and Canyon Regional Water Authority, Appellants, v. TEXAS NATURAL RESOURCE CONSERVATION COMMISSION Bexar-Medina-Atascosa Counties WCID No. 1; and Canyon Regional Water Authority/Lake Medina Conservation Society Inc., Appellees.

No. 03-98-00058-CV.

Court of Appeals of Texas Austin.

Oct. 29, 1998.

Mary Kathryn Sahs, Law Offices of Mary K. Sahs, Austin, for appellants.

Edmond R. McCarthy, Jr., McGinnis, Lochridge & Kilgore, L.L.P., Austin, Louis T. Rosenberg, Louis T. Rosenberg, P.C., San Antonio, Cynthia Woelk, Nancy E. Olinger, Asst. Attys. Gen., Natural Resources Div., for appellees.

Before POWERS, KIDD and B.A. SMITH, JJ.

POWERS, Justice.

The Lake Medina Conservation Society, Inc. ("LAMCOS") appeals from a district court judgment affirming an order of the Texas Natural Resource Conservation Commission (the "Commission"). The order amends a certificate of adjudication pertaining to water rights held by Bexar-Medina-Atascosa Counties WCID No. 1 ("BMA"). BMA and the Canyon Regional Water Authority ("CRWA") appeal from the district court order overruling jurisdictional pleas attacking LAMCOS' standing. We will affirm the judgment of the district court.

THE CONTROVERSY

BMA is a water-control and improvement district, the boundaries of which encompass land in Bexar, Medina, and Atascosa counties. Before the Commission proceedings, BMA was authorized to divert for irrigation use 65,830 acre-feet of water impounded in its reservoir at Lake Medina. ¹ On April 12, 1993, BMA applied for an amendment to its certificate of adjudication. ² The requested amendment would authorize BMA to divert the 65,830 acre-feet for municipal and industrial uses as well as irrigation uses.

BMA gave notice of its application as required by section 11.132 of the Water Code and sections 295.151, 295.152, and 295.153 of the Commission's rules. ³ The Commission held public hearings in San Antonio on January 24, 1994, and in Austin on September 12 through 16 and September 19 and 20, 1994. Several parties admitted to the contested case, including LAMCOS, opposed the requested amendment. ⁴

LAMCOS is an organization of about 600 members having a variety of interests in Lake Medina. Members include persons who own lakefront property or businesses on the lake and others who draw water from private wells near the lake. LAMCOS opposed BMA's application on the ground that the proposed additional uses would result in BMA's consistently taking the entire volume of water it is authorized to use (65,830 acre-feet), lowering the lake level and affecting adversely members' businesses, water wells, and recreational use of the lake.

After the hearings, the hearings examiner issued a Proposal for Decision ("PFD"). The Commission adopted the examiner's recommendations, imposed some additional requirements, and granted BMA's application in an order issued February 21, 1995 (the "1995 Order"). The order authorized BMA to apply its 65,830 acre-feet of water to "multiple uses," including irrigation, municipal, and industrial uses. ⁵ The amendment did not specify a quantity of water authorized for any particular use: BMA might divert up to 65,830 acre-feet for any one of the specified purposes, or any combination of those purposes, so long as the aggregate amount of water diverted did not exceed 65,830 acre-feet. The amendment did not change the total volume of water BMA was authorized to divert, nor did it authorize any new diversion points.

The Commission so amended BMA's certificate although the agency agreed with LAMCOS that the permit would likely result in BMA more consistently diverting the full volume of water authorized in its certificate of adjudication. The Commission concluded, however, that BMA's water resources were a component of limited water resources in the region; and because of a trend in the area toward increased urbanization and reduced agricultural activity, a portion of BMA's water would be used beneficially to supplement limited municipal and industrial groundwater supplies in the region.

LAMCOS sued in district court for judicial review of the 1995 order. ⁶ LAMCOS contended the order was unlawful because the law required that BMA's certificate set forth a specific volume of water for each authorized use. ⁷ The district court agreed, reversed the 1995 Order, and "remanded [the matter] to the Commission for further proceedings." ⁸ No party appealed from the district court judgment.

After the remand, BMA withdrew its request to divert water to industrial use and moved that the Commission, "based on the existing record," authorize BMA to divert 19,974 acre-feet to municipal use and the balance to irrigation use. The Commission considered BMA's motion and the pending application at a public meeting held April 2, 1997. LAMCOS participated in the hearing through its attorney. The Commission, by order dated April 11, 1997 (the "1997 Order"), amended BMA's certificate as requested in the motion: BMA might divert up to 19,974 acre-feet of water for municipal use and the remaining 45,856 acre-feet for irrigation.

LAMCOS sued for judicial review of the 1997 Order, contending that after the 1995 Order was reversed BMA was required to file a new application and the Commission was required to hold a new evidentiary hearing thereon. The district court disagreed and sustained the 1997 Order. LAMCOS appeals now from the resulting judgment.

DISCUSSION AND HOLDINGS

Standing in the District Court

When LAMCOS sued in the present cause for judicial review of the Commission's 1997 Order, BMA, CRWA, and the County of Bandera intervened in defense of the order. The three intervenors filed in the trial court a joint plea to the jurisdiction challenging LAMCOS's standing to contest the 1997 Order. The attorney general filed a similar plea to the jurisdiction on behalf of the Commission. The district court overruled the pleas. BMA and CRWA appeal from the trial-court action and repeat their contention that LAMCOS lacks standing to challenge in district court the 1997 Order. ⁹

The Texas Administrative Procedure Act ("APA") provides that a losing party in a contested case may, after exhausting administrative remedies, seek judicial review if the party is "aggrieved" by an agency action. Tex. Gov't Code Ann. § 2001.171 (West 1998). LAMCOS is not itself injured in fact by the agency decision. LAMCOS sued based upon the effect of the agency decision upon members whom LAMCOS represented. For LAMCOS to maintain an action in that capacity, the record must show the following: (1) LAMCOS members otherwise have standing to sue in their own right; (2) the interests LAMCOS seeks to protect are germane to its organizational purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the action. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 447 (Tex.1993).

We find the record supports the district court determination that LAMCOS may represent its members. The amendment, if upheld, would add an additional authorized use to BMA's certificate. The Commission concluded that BMA will likely divert more water in future years than it has in the past. LAMCOS is organized specifically to protect its members' interest in the lake; thus, LAMCOS' interest is germane to the organizational purpose. The relief requested by LAMCOS--invalidation of the amendment to BMA's certificate--does not require the participation of individual members in the appeal.

The only real dispute seems to be BMA's claim that members of the organization would not be entitled to sue in their own right. BMA argues that LAMCOS's interests are insufficient to show any specific or peculiar injury to itself or its members as a result of the Commission's amending BMA's certificate. The general rule is that standing depends upon some interest peculiar to the person or entity individually and not as a member of the general public. Hunt v. Bass, 664 S.W.2d 323, 324 (Tex.1984). Specifically, a plaintiff has standing to sue if: (1) he has sustained, or is immediately in danger of sustaining, some direct injury as a result of the wrongful act of which he complains; (2) there is a direct relationship between the alleged injury and the claim to be adjudicated; (3) the plaintiff has a personal stake in the controversy; (4) the challenged action has caused the plaintiff some injury in fact, either economic, recreational, environmental, or otherwise; or (5) the plaintiff is an appropriate party to assert the public interest in the matter as well as his own interest. Billy B., Inc. v. Board of Trustees, 717 S.W.2d 156, 158 (Tex.App.--Houston [1st Dist.] 1986, no writ); Housing Auth. v. State ex rel. Velasquez, 539 S.W.2d 911, 913-14 (Tex.Civ.App.--Corpus Christi 1976, writ ref'd n.r.e.).

The members of LAMCOS have shown various interests in the lake, including ownership interest in lakefront property, that will be affected by the amendment. The impact of lower lake levels on owners of waterfront property, waterfront businesses, and private wells in the area constitutes a sufficiently particularized injury to distinguish the members' injury from that of the public at large. See Hooks v. Texas Dep't of Water Resources, 611 S.W.2d 417, 419 (Tex.1981); Texas Rivers Protection Ass'n v. Texas Natural Resource Conservation Comm'n, 910 S.W.2d 147, 151 (Tex.App.--Austin 1995, writ denied).

We overrule BMA's and CRWA's points of error.

Subject-Matter Jurisdiction in the Agency

LAMCOS contends that after the district court reversed the 1995 Commission order and remanded the contested case to the agency, the Commission lost jurisdiction to take any further action on BMA's 1993 application. LAMCOS points out that an administrative agency lacks authority to modify its previous final orders absent a statute conferring that authority. See ...