*1 upon referring [A] mandate [dis- WACO, Appellant, CITY OF to promptly appeals court resolve
trict] the rulings judges. from of associate v. This that the court does mean loses TEXAS CON- NATURAL RESOURCE jurisdiction if fails a hearing it to hold COMMISSION; SERVATION rather, the required within time period; Jeffrey Saitas, A. Di- as Executive it parties allows to mandamus rector, Appellees. hearing day after the prompt dead- No. 03-01-00217-CV. expires.3 line Texas, I Court Appeals believe the same interpretation should here, apply Austin. and for the same reasons.
legislature clearly 10-day intended 9,May 2002. deadline TexAlco.Bev.Code Ann. Overruling Rehearing As Modified on 11.67 to trial prompt insure of the June issues. trial Where the court refuses mandate, comply legislative with the
remedy should be mandamus the recal- court, deprivation
citrant of the right
to appeal.
Although the Beverage Alcoholic Code language
contains requirements its literally,”
“be I construed do not view liter-
al construction as necessarily depriving a
litigant their properly perfected appeal
to the trial court. A literal construction
the requirement that “the case shall be
tried a judge days before within 10 from date logically filed” would more
result court, in a from higher mandate court,
the trial hearing that the be held
immediately as required by the Code. This
makes much more sense than punishing
party powerless who otherwise to en- appellate
force rights. I believe our Lopez
reasoning apply should here. reasons,
For I these dissent. (emphasis original).
3. Id. at 897 *3 Waco, any “sink” for which is a Lake River, Bosque in the pollutants
dissolved dairy opera- has been affected. Numerous northwest tions are located of Waco County Erath River water- shed. The dairies must seek confined ani- Battle, B. Jackson Brown McCarroll (CAFO) feeding mal operation Austin, L.L.P., appellant. agricultural from the because the Secord, Linda B. Anthony Grigsby, C. operations, waste from their which be- *4 General, Natural Re- Attorneys Assistant dissolved in runoff or is otherwise comes Division, Austin, appellees. sources for ultimately discharges into the discharged, river. ABOUSSIE, Before Chief Justice dispute This arose when the Justices B.A. SMITH and PURYEAR. Febru an order in promulgated SMITH, BEA ANN Justice. permits for ary regulating future CA- 2000 (the City City) FOs. Both the of Waco This appeal dispute concerns whether a Dairymen and the Texas .Association about the Texas Natural Resource Conser- (the Dairymen) actions for declarato filed (the TNRCC’s) per- vation Commission’s ry attacking the order. judgments judicial re- mit-issuing process ripe is for withdrawing the responded by or by Bosque view the district court. The both as moving der and to dismiss actions River, River, the tributary of Brazos is City ripe. moot and not amended Seg- the city located northwest of of Waco. petition declaratory to seek relief the Bosque and ments 1226 the North continuing to policy TNRCC’s interim having impaired been River have listed as regula any permits issue violates state nu- water levels of quality high due tions. The court dismissed the district See 30 Tex. Admin. Code trients. Both Dairymen actions. and (2001) (Tex. §§ Natural Res. 307.1-.10 their suits for appealed dismissal of Comm’n, Conservation Tex. Surface Water However, declaratory following relief. Standards). Quality point Near its of con- Dairymen voluntarily argument, oral River, Bosque the Brazos fluence with their remain appeal.1 dismissed Waco, provides River forms Lake which ing ripeness is the issue before us ap- drinking the sole source of water for City’s declaratory for relief.2 suit 150,000 in proximately people and around Waco; extensively Specifically, lake also seeks declaration used may grant any addi- activities. The water that the TNRCC recreational responses, the court: 1. The TNRCC filed a motion to dismiss the of the motion and Dairymen’s appeal ground legisla- [the GRANTS the motion and DISMISSES ap- brief, tive action had mooted the association’s causes].” consolidated In its Dairymen peal. voluntarily dis- Because the City’s that the claims is moot TNRCC asserts appeal, missed their we overrule the TNRCC’s ripe. City's original and While the claims motion. may moot have been rendered order, revolting its it amend- TNRCC’s action Dairy- 2. The motion to dismiss the TNRCC's petition ed its to state a different claim based men's and the claims asserted mootness policy. We on the TNRCC's conclude there- grounds. hearing, ripeness After a analyzed be fore that the issue should in granted trial court the motion. The order ripeness. terms of motion, considering the states that ”[a]fter responses, support evidence filed in Bosque Bosque pro- in River watershed. The waste tional CAFOs operations complies River watershed until it with cer- duced these concentrated adja- of the regulations impaired tain federal been have cent North River. incorporated into stretches state law. See 30 Tex. (1999) (Tex. primary The TNRCC has identified the Admin. Natu- Code 305.538 Comm’n, pollution phosphorus, source of be ral Res. Conservation Prohibi- Permits) (“no which a nutrient found in animal waste. permit for TPDES tions large phosphorus amounts prohib- under issued the conditions water growth have caused excessive of al- in ited Regulations Code Federal gae plants, in turn amended”). aquatic other which 122.4, main- potentially cause distaste and odor a pure tains it seeks resolution of and, drinking under certain circum- 122.4(i) question of law: whether section stances, depletion contribute to dis- all operates to bar until the solved oxygen. developed TNRCC has implementation pollution im- scheme reduce the two Act, Under the federal Clean Water *5 paired segments of Bosque the River. required state is “identify to those waters compliance The TNRCC contends that its within for its boundaries which the effluent regulations with the can be deter- required limitations are not [the Act] in permit applica- mined the context of a stringent enough implement any to water presented by tion the facts particular a quality standard to such applicable wa- application. agree Because we with the 1313(d)(1)(A) (2001). § ters.” 33 U.S.C. request declaratory for relief 1998, In segments the listed TNRCC two presents law, a determination we re- River as “impaired under verse the district court’s order of dismissal water quality narrative standards related and remand this cause for consideration on to aquatic growth.” nutrients and plant the merits. Once the TNRCC identified water seg- impaired,
ments as it required was to de- FACTUAL AND PROCEDURAL velop Daily a Total Maximum Load
BACKGROUND (TMDL), plan which is a for assimilation of pollutants in 1980s, present that are the wa- During the the dairy industry 1313(d)(1)(C).3 ter. id. See expanded greatly in the North Bosque TMDL TNRCC describes a as County River watershed. Erath became leading county milk quantitative plan state for a that determines the production. This a in reflects trend amount of a a particular pollutant that small, dairy industry away geograph- body from water can receive and still meet its ically scattered large-scale, applicable dairies toward quality water standards. In operations. words, dairy early clustered In possi- other TMDLs are the best the TNRCC estimated that there were capacity ble estimates of the assimilative 41,000 milk along cows body concentrated for a pollutant the water under Act, 3. Under stringent [required provi- the Clean Water as TNRCC as those under required Act],” develop "continuing plan- also incorpo- sions of the Clean Water "the ning process” reducing pollution for any applicable ration of all elements area- bringing segments up management plans,” to state water wide waste total maxi- quality pathogens. standards for daily pollutants nutrients and mum loads for in accordance 1313(e) (2001). (d), process See 33 "adequate implemen- U.S.C. This with subsection tation, include, part, plans including compliance, must in limi- "effluent schedules of compliance tations and schedules of at least revised or new water standards.” Id. loadings, among allocated commonly phosphorus A TMDL is consideration. load, that could dischargers, as a with units mass and other expressed dairies expressed period, violating quali- but water per time be tolerated without ways also ty in also. TMDLs must and nutrients. pathogens other standards for pollutant how much the load estimate sched- implement Nor does from current levels to be reduced dischargers needs the dairies and ules for other in to achieve water stan- order pathogens in the two im- reduce the dards. paired segments. years than after the TNRCC More three respect these failures with Compounding impaired, identified watershed existing dischargers, asserts had still not established TMDL the situa- that the TNRCC worsened Although “anticipated” plan. for ad- by approving applications tion able to submit late 1999 that it would be into the al- discharges ditional waste Environmental proposed TMDL ready polluted exception river. With (EPA) Agency spring Protection the dairies operations, certain small complete did not the TNRCC are obtain required the watershed early TMDL al- TNRCC that CAFO from the approv- now a TMDL to the EPA for sent from their low them waste al; parties the time the submitted their that since operations. The asserts cause, however, in this the TMDL briefs impaired, declaring segments approved by agency. had not been *6 grant permits has continued to TNRCC major TMDL that a con- The confirms an evolv- expanded for new and uses under phosphorus the in the source of trollable Although “interim this inter- ing policy.” dairy farms concen-
water comes from slightly has different forms policy im taken It recommends trated watershed. years, City every in that recent asserts in forty sixty percent to reductions that grants agency phase policy of in and loadings some areas phosphorus contrary new permits, issue discretion will re- fifty overall be needed to percent additional regulations prohibiting to the problematic algae potential duce the implements until CAFOs TNRCC problems *7 denied) pet. (quoting Dep’t Texas Pub. DISCUSSION Moore, 149, v. 985 Safety 153-54 S.W.2d Ripeness implicates subject-mat 1998, (Tex.App.-Austin pet.)). no jurisdiction ter emphasizes and the re The that claim City contends its quirement of a injury concrete order to 122.4(i) that section of the Code of Federal present justiciable a Indep. claim. Waco Regulations, which has been incorporated Gibson, Sch. Dist. v. 22 S.W.3d 851 law, into prohibits state the TNRCC from (Tex.2000); Patterson v. Planned Parent issuing permits for in the new6 CAFOs hood, (Tex.1998). 442 S.W.2d watershed until the com develops Ripeness is concerned with an when action pliance and pollutant schedules load alloca can brought be judi and seeks to conserve 122.4(i) ripe. tions Section reads: cial time and resources for real and cur rent controversies rather hypothetical permit may than No be issued a new [t]o Gibson, or disputes. remote at discharger, S.W.3d source or new if a the dis- 851; Patterson, at charge opera- 971 S.W.2d 442-43. from its construction or permit The only current administrative code is cited for to a for a new source or dischar- 122.4(f) (2001). convenience. ger. See 40 C.F.R. There- fore, stipulated that appeal has currently operates 6. A that a CAFO under limited to for new CAFOs. permit may permit also seek a for additional 122.4(i) expanded applies or uses. Section phos- for regulations implement TMDLs will or contribute the viola-
tion cause in the two pathogens The and quality phorous of water standards. tion and Segments new or that contain load allocations or of a source operator owner compliance to discharge schedules.” discharger proposing new segment which into a water does sec- interpretation, Under the TNRCC’s applicable quality meet standards obligate the agency does not tion 122.4® meet those stan- expected or is compliance develop load allocations and application of dards even after the a schedules before it issues new by sections required limitations effluent rather, merely limits permit; 301(b)(1)(A) 301(b)(1)(B) CWA, and ability that to issue TNRCC’s or and which State interstate or the violation for would “cause contribute to a load agency performed pollutants Whether a of water standards.” dis- to be pollutant allocation permit will cause or contribute to the new demonstrate, charged, must before standards, violation of water that: period, public close comment continues, specific agency depends on (1) remaining pol- permit. There are sufficient given conditions terms City’s
lutant allocations to allow argues that claim load of law discharge; present pure question does not compliance with sec- agency’s because the existing dischargers (2) into only tion can be determined segment subject compliance are 122.4® permit. for a application context of seg- designed bring schedules TNRCC, Thus, according to the applica- ment with into ripe approves the agency claim is not quality standards. ble water point can permit, because Director waive submission permit will determine whether one the new of information source or contribute to a violation water cause discharger required by para- emphasizes also standards. (i) Di- if the graph this section state and federal that variations between Director rector determines permit vio- particular law affect whether information to already adequate lates section explana- An request. evaluate the 12214®. limita- development
tion of the particular City responds this meet the criteria of tions to any irrelevant permit are be- conditions (i)(2) paragraph is to included policy, rules *8 agency’s cause under under permit fact to the sheet into im- every permit discharge to new 124.56(b)(1) chapter. § of this section paired waters violates 122.4®. 122.4(f) (Envtl. (2001) governing City points Prot. The to rules § 40 C.F.R. CAFOs,7 dis- Elimi- which authorize Discharge specifically Pollutant Nat’l Agency, Prohibitions) rainfall catastrophic in “chronic or (emphasis charges add- Sys., nation 122.4(i) Tex. Admin. Code ed). events.” See 30 interprets section City The (2001) .32(8), .34, ,39(f)(19)(E) 321.31(b), §§ permit may be that “no mean Comm’n, (Tex. Res. Conservation impaired Natural to a new CAFO within the issued Operations). Feeding Animal promulgates Concentrated watershed until currently management disposal of waste in accor- govern the 7. are rules that These 321, B, Chapter Tex. Water Code Title permit process. Subchapter See dance CAFO with 26.503(b)(1) (West (stating Supp.2002) 30, Code”). §Ann. Texas Administrative permit "provide an individual must validity applicability The also maintains that the TNRCC’s or the a rule. (West §Ann. 5.351 own evidence indicates that half See Tex. Water Code about 2000); § Gov’t Code Ann. 2001.038 produced of the waste is ever Tex. CAFOs (West 2000). “collectible.” Even if all of the “collectible prevented waste” is entering from wa- however, The City, assert tershed, other uncollectible waste is not. lawsuit, a specifi ed different basis its Therefore, issuing permit an additional cally, sections 37.002-.004 of Uniform pollutant without load allocations and com- (UDJA). Declaratory Judgments Act See pliance schedules will violate section Tex. & Rem.Code Ann. Civ. Prac. 122.4(i), regardless of the conditions that (West 1997). §§ 37.002-.004 Under that Furthermore, imposed. are according to Act, judicial a claimant’s access to review City, differences between state and rules; is not limited to review of federal law not are relevant to its declara- instead, Act provides a basis which suit, tory judgment premised which is sole- a claimant can obtain declaration ly on the law. basis state status, rights, legal or other relations un 122.4(i) *9 is, permit application. brought, The TNRCC asserts be that “whether the facts that developed sufficiently inju issues are not fit for decision have that an so occur, City challenge ry likely because the has failed to a has or rather occurred is to agency Citing final in provisions being contingent action. than or remote.” See Patterson, the Water Code and the Administrative The facts S.W.2d 442. (APA), empha Procedure Act have sufficiently developed the TNRCC as between the judicial agen City dispute that is such that the sizes limited to TNRCC and the review orders, addition, decisions, acts, cy rulings, or is In an hypothetical. other not inter- proceed- jurisdiction had to hear the party may City’s ested intervene in the court P. ings on remand. Tex.R. Civ. under the and that the See claim UDJA issue adjudication.8 is ripe Moreover, judicial the denial of review to hardship City. will result in Under CONCLUSION APA, permit a issued in a contested the City’s Because we find that declara- final, pend- is appeal case is even while judgment request turns a tory purely on § ing. See.Tex. Gov’t Code Ann. 2001.144. issue, legal we reverse order dis- City wait until forcing The effect of to and cause missal remand this for consider- permit granted another the TNRCC presented. ation of issue effect, means, in that Lake could Waco polluted with the additional become more FOR REHEARING MOTION litigate parties while the their write to refute the claim asserted in We Moreover, City dispute. could suffer that rehearing motion for re- TNRCC’s multiple multiple harms from additional this under the solving controversy UDJA CAFOs, be to make this same and forced change” appeals will effect a “sea from argument appeals. legal numerous is agencies. administrative not Thus, the claim City’s prongs satisfies both appealing specific agency from action ripeness inquiry. of the validity challenging appli- and is Furthermore, City’s appro- claim is rule; rather, it agency cation of an is priately pursuant to brought the Declara- asserting it it is un- rights feels afforded act, Judgment tory Act. Under that Code, implement- der the Texas Water (1) justiciable must that claimant show by regulations, specifically ed sec- certain rights and controversy exists as 305.538, incorporates tion which federal (2) parties; status of the the contro- See Tex. Ad- regulation section 122.4. will versy be resolved the declaration (1999); min. Code 305.538 40 C.F.R. . Moore, 985 sought. S.W.2d at 153. There (2001). only ground 122.4 for dis- justiciable controversy is a between that missal asserted TNRCC was parties of section regarding the effect controversy hypothetical ripe and not 122.4(i)on agency’s permitting process. adjudication apart per- from a specific that the TNRCC has a asserts application. mit of the duty improve the water effect segments dispute At issue in this impaired river without further on delay, and that the has no discre- section TNRCC’s discretion 122.4© permits that permits tion to issue new CAFO issue new to CAFO’s dis- into a that has steps. charge segment affirmative been takes these impaired. insists responds that it the discretion found obligates regulation do grant permits additional this quo. A load allocations develop worsen the environmental status improve regarding the effect of section schedules to declaration 122.4(f) discharge permits. authority issuing on the to issue before agency’s urges regulation this con- The TNRCC new CAFO will resolve Therefore, of new troversy. merely hold that trial limits issuance we 122.4(i) (a) claim under section City also asserts subsections 8. The (d) place controversy, 122.4 we presents ripe of section restrictions need not con- *10 permitting process. See 40 the TNRCC’s arguments. these additional sider 122.4(a), (d) (2001). Having §§ found C.F.R. discharges ry authority[,]... was those who would not worsen Moore’s suit not quo of quality. by sovereign immunity.”). status the water barred only remaining question we ask is wheth present controversy con er is whether dispute hypothetical this protection cerns the state law affords a it presents controversy real that will be it segment once has found to be declaratory sought. he by resolved relief impaired. controversy We find the indis hold that not seek Because we is tinguishable question sought from the ing advisory opinion but a declaration be resolved under the UDJA in Texas of protection what afforded under Department Moore, Safety Public v. 122.4(i), applicable by section as made (Tex.App. S.W.2d 149 — austin mandatory TNRCC’s rules and as made pet.). no The City rights asserts its statute, by the TNRCC’s we overrule the have the TNRCC follow the mandate of rehearing. motion for See Tex. Water 122.4(i),just section as Mr. Moore assert 5.103(c) (WestSuupp.2002) CodeAnn. ed his right Department have the (stating that the TNRCC’s “shall follow Safety apply Public its promotional own rules”) added).9 its own (emphasis filling rules in vacancies. See id. 154. Department Just as the had adversely af rights
fected Mr. Moore’s by requir not
ing competitive in filling examinations sev id., succession,
eral vacancies in see asserts ad
versely affected its rights by adopting
load allocations and schedules for the River before granting new PARKER, Appellant, Russell discharges. purpose v. clarify UDJA is to the nature of STATE FARM MUTUAL AUTO law, rights asserted under state as we CO., MOBILE INSURANCE recognized Moore: “Moore’s interest Appellee. in being according treated to statute when applying for vacant positions in the De No. 04-01-00201-CV. partment clearly implicates the UDJA’s Texas, of Appeals Court purpose clarifying rights affected San Antonio. statute.” Id. alleg Because ing that the TNRCC is granting May 2002. following without of section mandates 122.4(f), sovereign immunity does not bar (“Because
this suit. See id. Moore’s suit
under the sought UDJA declaration that Department acted outside its statuto acknowledge adversely We our unfortunate use of the of Lake Waco “has been addition, "impaired” term describing pro- to describe the water In affected.” Waco, two, complained of Lake as history in motion cedural this lawsuit in footnote rehearing. impaired We concerning used as a we included a the doc- statement Act, term ripeness of art under the Clean Water but in trines mootness and to which the its strongly objects conventional sense of or dam- “diminished in motion for re- confusion, aged.” any hearing. modify avoid sug- To we have sub- We will footnote page says gested stituted a new one that the TNRCC. notes growth. various improve qual- measures that will City argues proposed with the TMDL. The ity to meet state standards. on that its recommendations are based the TNRCC The Executive Director of information; outdated the number now agency that the exercise testified will with the currently pending as long grant discretion TNRCC, if approved, would increase additional will worsen 20,000, so cows number authorized of the im- quo” status the “environmental levels of the recommended previously points also paired river. The wa- TMDL will not achieve attainment of See policy. this addition, says rule that embodies ter standards.4 In quality (2001) § Admin. 321.33 amount of 30 Tex. Code does not establish the TMDL disposed applied waste to be otherwise based on data that was The TMDLs are existing dairy cows based on number during the mid-1990s. The TNRCC collected pro- the waste reliability permitted in the watershed. If similar concerns with has noted significantly due increas- jection changes [to] interagency that data. An memo states of the animals, feasibility ing the model numbers is number of “demonstration of the TMDL’s supporting approv- TMDL large less useful for part computer model sim- Eire in based dairy amount of al.” that estimated the ulations 175 (Tex. Comm’n, advisory of this not issue Natural Res. Conservation Courts state Patterson, 443; Feeding Ap- opinions. Animal 971 S.W.2d at Operations, Confined Ass’n Bus. v. Texas Air Texas Control plicability).5 argues (Tex.1993). Bd., 440, An discretionary current at 852 S.W.2d 444 policy TNRCC’s requires opinion ripe odds issued that is not with state law which case injury a hypothetical sufficient allocation be available for the would address than or imminent remedying water to receive the rather actual loading additional Bus., still meet state water harm. See Texas Ass’n 852 standards. (1999) at (prohibiting See id. 305.538 S.W.2d 444. per- 122.4). mit would violate 40 C.F.R. determining In whether a cause City sought a declaration that judicial consideration, ripe we look to until the promulgates legally sufficiently see whether the facts have de binding regulations implement oc veloped injury show TMDLs for nutrients pathogens Patterson, curred, likely or is to occur. 971 Segments two that contain A required S.W.2d at 442. claimant is not load allocations and other measures that injury already to show that oc will assure with the state curred, provided injury is imminent or standards, permit may no Gibson, sufficiently likely. 22 S.W.3d issued construct or operate a new Patterson, 852; at 442. Like S.W.2d ... CAFO within the watershed. wise, a person seeking judg a declaratory argues that the suit injury; ment need not have incurred actual would not be ripe the TNRCC issued declaratory judgment if action will he a specific permit. The district court facts show the presence “ripening seeds agreed with TNRCC and dismissed of a controversy.” Dep’t Texas Bank suit. now appeals from that Ass’n, ing Cemetery v. Mount Olivet judgment. (Tex.App.-Austin S.W.3d
Notes
notes section incor- been der a writing or statute. See id. porated part law, into and become of state A 37.004. suit under the UDJA is not and that claim is based parties confined to cases in which the have TNRCC’s failure to implement standards apart cause of action from the Act itself. federal, comply state, with not Moore, Texas Dep’t Safety Pub. v. quality standards. 149, (Tex.App.-Austin 1998, S.W.2d no pet.). legislature intended UDJA We question conclude that the remedial, to be to settle and afford relief 122.4(i) operates whether section to pro uncertainty insecurity from with re hibit the approving any TNRCC from spect rights, liberally and to be con discharge permits it adopts the nec strued. Tex. & Ann. Civ. Prac. Rem.Code essary pollution-reduction pres measures Moore, 37.002; 985 S.W.2d at legal a purely inquiry. ents In determin (1) ripeness, ing courts should examine questions TNRCC also decision, judicial decision, fitness of the issues for asserting fitness of the issues for (2) hardship party occasioned to a that the will request affect addition by the denying judicial court’s al parties present review. who not are defend Of Pub. v. Util. Counsel Public Util. their interests. responds fice of Comm’n, 843 S.W.2d 724 (Tex.App. questionable any such additional denied). -Austin writ City’s parties adequate would have standing poses claim purely legal question-the in a participate challenge to an individual 122.4(i)-which interpretation Furthermore, permit. section will the TNRCC’s as the development go directly benefit from of addi sertion the ripeness does specific tional facts in connection with a inquiry, which determines when action