The Texas Supreme Court has affirmed an El Paso Court of Appeals decision rejecting an environmental organization’s challenge to TCEQ’s permitting standards for the discharge of treated wastewater.
Save Our Springs Alliance, Inc. v. Texas Commission on Environmental Quality and The City of Dripping Springs (No. 23-0282; April 11, 2025) involved a 2025 permit application by the city to discharge up to 995,000 gallons per day of treated wastewater into two nearby waterways, one of which flows into Onion Creek. TCEQ rules allow issuance of a permit if “the permitted activities would neither (1) disturb existing water uses nor (2) degrade the water” to the extent necessary to protect existing uses, that is (as applied to Onion Creek) preserving sufficient quality for swimming and fishing. TCEQ applies both narrative and numeric measures to determine degradation, including site-specific criteria for waterways such as Onion Creek. After performing its technical review, TCEQ’s proposed permit prescribed more restrictive effluent limits than those proposed by the city, as well as the addition of a disinfection requirement. The executive director issued a draft permit, the city revised its application, and the EPA, after consultation with the U.S. Fish and Wildlife Service, signed off in 2017. The city made some further revisions after receiving public comments, which the executive director approved.
Save Our Springs and other groups requested a contested case hearing, which TCEQ granted. Only SOS held out and didn’t sign on to a settlement agreement that required the city to take additional steps to reduce effluent levels. SOS’s objections focused on the effect of the permitted effluent levels on algal growth and, consequently, aquatic life. The ALJ concluded that the draft permit complied with all requirements. Specifically, the ALJ rejected SOS’s “parameter-by-parameter” approach to the antidegradation standards, which would have required an assessment of the effect of the discharge on disaggregated components of the waste stream. Instead, the rule directs an assessment of whether the discharge lowers the water quality by more than a de minimus amount. TCEQ issued a final administrative order granting the city’s permit application. SOS sought judicial review and won at the trial court. The case was transferred to the El Paso Court of Appeals for docket equalization purposes. The court of appeals, in a split decision, reversed and upheld the permit. SOS sought review.
In opinion by Justice Devine, SCOTX affirmed. The sole question before the Court was the validity of SOS’s contention that TCEQ should conduct a “parameter-by-parameter” analysis rather than a holistic one. SOS argued that the discharge’s adverse predicted effect on one parameter, dissolved oxygen, should have determined the whole issue because the DO level could fall below Onion Creek’s site-specific criteria for DO. TCEQ’s modeling disagreed with that conclusion. The Court determined that substantial evidence supported TCEQ’s finding, particularly since its assessment of the DO level turned out to be more conservative because it was based on the permit application’s initial higher volume of discharge. “Instead of focusing on the effect the DO level has on Onion Creek’s water quality,” Justice Devine wrote, “the antidegradation analysis SOS endoreses focuses only on the DO parameter itself. The former, not the latter, is the approach the antidegradation rules prescribe.”
The Court next took up SOS’s argument that TCEQ’s final order was invalid because it lacked a statement of “underlying facts” to support its final findings of fact and conclusions of law in violation of § 2001.141, Government Code. That statute requires an agency to include “a concise and explicit statement of the underlying facts supporting the finding.” But, as Justice Devine pointed out, the findings “need not take any particular form” but must only be “clear, specific, non-conclusory, and supportive of the ultimate statutory findings.” Put another way, as long as the statement of underlying fact findings “generally enable a reviewing court to ‘fairly and reasonably’ say that the basic facts ‘support the statutorily required criteria,’” it satisfies the statute. SOS tried to argue that the findings did not specifically explain “how the projected drop in DO concentrations and accompanying losses of assimilative capacity” did not constitute a lowering of water quality by more than a de minimis amount.
The Court, however, shot this down on both procedural and substantive grounds, finding that: (1) SOS did not preserve the argument for appellate review because it failed to raise it in its motion for rehearing in the administrative proceeding; and (2) TCEQ’s order did not require underlying fact findings because the statute only requires them when those findings are set out in “statutory language.” TCEQ’s antidegradation standards are regulatory, not statutory, and § 26.027, Water Code, doesn’t establish mandatory criteria for an antidegradation review. By contrast, the statute merely authorizes TCEQ to deny a permit “when the commission finds that issuance of the permit would violate the provisions of any state or federal law or rule or regulation promulgated thereunder[.]” SOS’s position would “result in an absurd extension of the APA’s language that would infect every TCEQ order with potentially nullifying error for failing to identify and provide underlying findings of fact that a permit issuance complies with every federal and state law, rule, and regulation.”
This common sense decision illustrates both the strengths and weaknesses of environmental regulation in Texas. On the positive side, the process works and eventually vindicated the agency’s decision to issue the permit. On the negative side, SOS was able to hold up the permit for several years as it wound its way through the administrative and judicial systems. As fast as the state’s urban areas are growing and encroaching further into the countryside, local governments have to struggle to expand infrastructure to keep pace. Slowdowns in the regulatory process can only put them further behind the eight ball.
