Summary of a Recent
Judicial Development in
Water Law

Court Defers on Approval of Application to
Relocate Water Diversion Points

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Brownsville Irrigation District v. Texas Commission on Environmental Quality, 264 S.W.3d 458 (Tex. App. 2008), the Texas Court of Appeals affirmed the judgment of the trial court, which affirmed an order of the Texas Commission of Environmental Quality (TCEQ). The TCEQ approved appellee's application to amend its certificate of adjudication to relocate authorized points of diversion in one county to points of diversion downstream in other counties. Additionally, the commission allowed appellee to change the purpose of the use of water from irrigation to municipal.

Background

Presidio Valley Farms was authorized, pursuant to Certificate of Adjudication No. 23-952, to divert water at ten locations from the Rio Grande River. Id. at 459. The certificate stated that the diversions were for agricultural purposes. Id. In 2003, after filing for bankruptcy protection, Presidio Valley sold its downstream water rights under the certificate to Maverick County, Eagle Pass, and Laredo. Id. at 460. Thereafter, Presidio Valley Farms filed three applications with the TCEQ to amend its certificate of adjudication to transfer the points of diversion in Presidio County to the locations downstream, and to change the use of the water from irrigation to municipal. Id. Appellants, consisting of several water districts, intervened to contest the amendments. Id. at 459. Following a case hearing, the Administrative Law Judge (ALJ) issued a proposal for decision recommending that the applications be denied. Id. The TCEQ disagreed with the ALJ and, contrary to the recommendation, entered an order approving the applications. Id. The water districts unsuccessfully sought review of the commission's approval in district court, and thereafter sought review in the instant court. Id.

Arguments

The water districts argued that the application to amend the certificates of adjudication should be denied because the TCEQ did not approve an applicable conversion factor as required by § 303.42(4) of the administrative code. Id. at 460.

The TCEQ argued that it approved an applicable conversion factor by reducing the amount of water that the water districts could divert to account for channel and transportation losses and by allowing the watermaster to protect the water rights of downstream users when necessary. Id. at 463.

Analysis and Holdings

In its discussion of the case, the court stated that the case turned on whether the TCEQ approved an applicable conversion factor. Id. at 461. The court determined that approving or rejecting applicable conversion factors was a policy determination on which it should defer to the agency if the agency's decision was not plainly erroneous, inconsistent with the language of the rule or the statute, or a violation of the constitution. Id. at 463. In the case at bar, the court held that the commission's interpretation of § 303.42(4)(A) was not clearly erroneous or inconsistent with the language of the rule or a statute. Id. Additionally, the applicable administrative code provision did not supply a conversion factor. Id. For these reasons, the court affirmed the decision of the district court. Id. at 464.

The case was decided on August 29, 2008.