Texas Rivers Protection Ass'n v. Texas Natural Resource Conservation Com'n

• Citation: 910 S.W.2d 147
• Decision Date: 01 November 1995
• Docket Number: No. 03-95-00070-CV,03-95-00070-CV
• Parties: TEXAS RIVERS PROTECTION ASSOCIATION and William Perkins, Appellants, v. TEXAS NATURAL RESOURCE CONSERVATION COMMISSION and Upper Guadalupe River Authority, Appellees.
• Court: Court of Appeals of Texas

Page 147

910 S.W.2d 147

TEXAS RIVERS PROTECTION ASSOCIATION and William Perkins, Appellants, v. TEXAS NATURAL RESOURCE CONSERVATION COMMISSION and Upper Guadalupe River Authority, Appellees.

No. 03-95-00070-CV.

Court of Appeals of Texas Austin.

Nov. 1, 1995.

Rehearing Overruled Dec. 13, 1995.

William G. Bunch, Austin, for appellants.

Dan Morales, Attorney General, Rande K. Herrell, Assistant Attorney General, Natural Resources Division, Austin, for Texas Natural Res. Con. Comm.

Robert Wilson, McGinnis, Lochridge & Kilgore, L.L.P., Austin, for Upper Guadalupe River Authority.

Before POWERS, ABOUSSIE and KIDD, JJ.

KIDD, Justice.

Appellants, Texas Rivers Protection Association ("TRPA") and William Perkins, complain that appellee Texas Natural Resource Conservation Commission ¹ ("the Commission") improperly granted appellee Upper Guadalupe River Authority ("UGRA") a permit to divert water from the Guadalupe River at a point near Kerrville, Texas. The Commission accepted a hearing examiner's proposal to grant the permit, and the district court affirmed the Commission's order. Appellants assert various points of error challenging the sufficiency of the evidence supporting the permit and the Commission's legal authority to issue it. We will affirm the trial court's judgment.

BACKGROUND

The City of Kerrville ("the City") is located on the banks of the upper Guadalupe River. Prior to 1981, the City met all its water needs from a well system drawing groundwater from the Lower Trinity aquifer. In 1981, the Commission granted a permit ("permit 3505") to UGRA for the diversion of up to 3603 acre-feet per year of water from the Guadalupe River for use by the City. UGRA diverts water from a reservoir formed by a dam it operates on the river at Kerrville. Since 1981, the City has satisfied its water needs primarily from river water diverted by UGRA. In July 1991, UGRA applied to the Commission for a second permit ("permit 5394") allowing it to divert an additional 4760 acre-feet of water annually from the river for use by the City. UGRA plans to immediately use some of the water diverted under the new permit for the City and store the remainder in the Hosston-Sligo aquifer, which lies directly below the City. UGRA decided to use this aquifer storage and recovery ("ASR") technique to avoid the expense of an artificial reservoir and to prevent the evaporation that attends surface water storage.

In August 1991, UGRA amended its application for permit 5394 due to revised population forecasts for the City and Kerr County. Although it requested the same amount of water as under the original application, UGRA modified the uses to which the water would be put. UGRA indicated that some portion of the water would be used to meet the needs of Kerr County entities other than the City. The amended application noted Kerrville's willingness to become a regional water supplier. UGRA stated that the water demand from the non-Kerrville portion of Kerr County justified the level of water it continued to request.

A Commission examiner conducted extensive hearings on the application between June 1992 and February 1993. Appellants participated as parties to the administrative hearings and vigorously challenged the application. Appellants contended that the Texas Water Code and common law prohibit the ASR plan, that the need for water outside the City was speculative and therefore that portion of the diversion improper, and that the total rate of diversion proposed by UGRA would harm their aesthetic, recreational, and business interests in the affected portion of the Guadalupe River. The examiner recommended that the Commission grant the amended application, and the Commission issued permit 5394 to UGRA in October 1993.

The permit as issued by the Commission contains many provisions that vary from UGRA's application requests. The permit allows UGRA to divert only 4169 acre-feet of water annually, apportioned as follows: 1100 for Kerrville, 1661 for Kerr County entities other than Kerrville, and 1408 for injection into the aquifer to assure a constant level of water supply even in times of drought. The permit also contains significant "flow rate" protections for the river users downstream of the diversion point. When water is diverted from the reservoir at the UGRA dam, less water is available to run downstream and the depth and flow speed of the river change. The Commission issued permit 5394 with significantly more flow rate restrictions than suggested by UGRA.

STANDING

As a preliminary matter, UGRA challenges appellants' standing to seek judicial review of the permit. The trial court overruled UGRA's plea in abatement on the issue of standing, and UGRA complains on appeal that the trial court erred in finding that appellants proved harm or injury from the permit sufficient to confer standing for judicial review.

The Administrative Procedure Act ("APA") provides that a losing party in a contested administrative case may, after exhausting administrative remedies, seek judicial review if the party is "aggrieved" by the agency's action. Tex.Gov't Code Ann. § 2001.171 (West 1995). That a party had standing before the agency does not necessarily mean that it has standing for judicial review; the right to participate in administrative proceedings is construed quite liberally to encourage varying points of view. Fort Bend County v. Texas Parks & Wildlife Comm'n, 818 S.W.2d 898, 899 (Tex.App.--Austin 1991, no writ). In this case, however, the standing test used by the Commission also satisfies the APA's requirement that the party be "aggrieved." Commission rules confer standing upon any party with a "justiciable interest in the matter being considered...." 30 Tex.Admin.Code § 267.1 (1995). The supreme court has declared that a party is "aggrieved," for purposes of the APA, if the party can show a justiciable interest in the contested matter. Hooks v. Texas Dep't of Water Resources, 611 S.W.2d 417, 419 (Tex.1981).

We find that the record amply supports the determination by the Commission and district court that appellants have shown a justiciable interest in the permit. The permit, if upheld, would divert water from the Guadalupe River in derogation of appellants' uses. Both appellant Perkins and TRPA member Roy Vance own property fronting the affected area of the river, with attendant riparian rights. Perkins and Vance both testified that the water diversion caused by the permit would injure their aesthetic and recreational interests in the river. Perkins and TRPA member Thomas Goynes also conduct canoeing trips on the affected area of the river and testified that diversion under the permit would harm their business opportunities.

UGRA argues that these interests are insufficient to show standing since appellants did not have any particularized "vested" property rights in the river, by which they apparently mean permits for recreational or business uses of the river. We disagree. Appellants' riparian ownership alone sufficiently distinguishes their injury from that of the public at large. See Hooks, 611 S.W.2d at 419 (riparian owners with no other property interest in a creek had standing to challenge permit allowing waste discharge). An injury need not affect "vested" property rights to confer standing; the harm may be economic, recreational, or environmental. City of Bells v. Greater Texoma Util. Auth., 790 S.W.2d 6, 11 (Tex.App.--Dallas 1990, writ denied). Because the record amply discloses potential harm to appellants, we hold that the trial court properly determined that appellants have standing to pursue judicial review of the permit. ²

DISCUSSION ON THE MERITS

Appellants challenge the permit on two grounds: (1) the Commission did not have the legal authority to issue the permit, and (2) the Commission's findings are not supported by substantial evidence in the record. We will first consider the questions of law and then turn to a substantial evidence review.

Questions of law

In points of error one, two, and five, appellants argue that the ASR method of water storage violates the Water Code ³ as well as the common law. Assuming a proper use for the water, appellants concede that the amount of water to be diverted is within the Commission's discretion and that storage of the water in an artificial container, even below ground, would be proper. However, appellants contend that the Commission committed legal error by granting the permit because it allows storage of water in a natural aquifer and because that storage will recharge the aquifer. See Tex.Gov't Code Ann. § 2001.174(2) (West 1995). UGRA responds that the Code clearly authorizes the appropriation and storage of surface water for municipal purposes, and the fact that the water is stored in a natural aquifer and incidentally recharges the aquifer does not make the permit improper. In an appeal governed by the APA, we exercise de novo review over questions of law. In re Humphreys, 880 S.W.2d 402, 404 (Tex.), cert. denied, --- U.S. ----, 115 S.Ct. 427, 130 L.Ed.2d 340 (1994).

Appellants argue in their first point of error that the permit is invalid because it contemplates aquifer recharge as one use of the water; they contend that aquifer recharge is not an authorized beneficial use of state water except as specifically provided in the Code. See Code § 11.023. Appellants' argument misses the mark for two reasons: the statute which appellants cite applies only to the Edwards aquifer, and aquifer recharge is only an incidental use of the water in the instant permit, not the primary use. By its plain terms, section 11.023(c) applies only to the Edwards aquifer. Id. Because this appeal does not concern the Edwards aquifer, section 11.023(c) is not applicable.

Even if the Code could be construed to forbid the diversion of state water to recharge other aquifers, the permit would still not be invalid since any recharge of the aquifer would only be incidental to the primary...