Texas Commission on Environmental Quality v. Wilbarger Creek Conservation Alliance, Marilyn Kelinske, Anne Brockenbrough, and Jonathan Beall

ACCEPTED
15-25-00084-CV
FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS
12/23/2025 9:32 AM
No. 15-25-00084-CV CHRISTOPHER A. PRINE
CLERK
IN THE FIFTEENTH DISTRICT COURT OF APPEALS FILED IN
AUSTIN, TEXAS 15th COURT OF APPEALS
AUSTIN, TEXAS
12/23/2025 9:32:39 AM
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY,
CHRISTOPHER A. PRINE
Appellant, Clerk

v.

WILBARGER CREEK CONSERVATION ALLIANCE, MARILYN KELINSKE,
ANNE BROCKENBROUGH, and JONATHAN BEALL,
Appellees.

On Appeal from the 126th District Court of Travis County, Texas
Cause No. D-1-GN-23-004031

REPLY BRIEF OF APPELLANT TCEQ

KEN PAXTON AMANDA ATKINSON CAGLE
Attorney General of Texas Assistant Attorney General
State Bar No. 00783569
BRENT WEBSTER Amanda.Cagle@oag.texas.gov
First Assistant Attorney General
SARA J. FERRIS
RALPH MOLINA Assistant Attorney General
Deputy First Assistant Attorney General State Bar No. 50511915
Sara.Ferris@oag.texas.gov
AUSTIN KINGHORN
Deputy Attorney General for Civil OFFICE OF THE ATTORNEY
Litigation GENERAL OF TEXAS
Environmental Protection Division
KELLIE E. BILLINGS-RAY P.O. Box 12548, MC-066
Chief, Environmental Protection Austin, Texas 78711-2548
Division (512) 975-1582 | Fax: (512) 320-0911

Attorneys for the Texas Commission on
December 23, 2025 Environmental Quality

Oral Argument Requested
TABLE OF CONTENTS

INDEX OF AUTHORITIES................................................................................. iv
GLOSSARY OF ACRONYMS AND TECHNICAL TERMS .............................vii
ARGUMENT........................................................................................................ 1
I. The Commission applied the appropriate legal standard
and properly considered statutorily-designated materials
when it found that Appellees were not entitled to a
contested case hearing ........................................................................ 1
A. An affected person determination is an
administrative proceeding with statutorily-defined
rights and procedures—not a jury trial ..................................... 1
B. The Water Code charges the Commission to
consider specified materials and to determine the
likely impact of the proposed discharge on a
requestor—not to merely take requestors’
statements as true .................................................................... 3
C. The Commission is not required to limit its
consideration of materials to those on file with the
Chief Clerk .............................................................................. 6
D. The Commission’s consideration of the challenged
materials is documented in the record ...................................... 8
II. The Commission’s determination that Appellees are not
likely to be affected by the permit in a manner different
from the general public is reasonable and supported by
substantial evidence .......................................................................... 11
A. Substantial evidence supports that Appellees’
“contamination” allegations related to other
permitted discharges do not establish them as
affected by this permit............................................................ 12
B. A permitted discharge does not automatically create
injury to downstream land through which the
receiving waters flow.............................................................. 15

ii
C. Substantial evidence supports that Appellees are
not likely to be affected by this permit in a manner
different from the general public ............................................ 18
CONCLUSION AND PRAYER ......................................................................... 22
CERTIFICATE OF SERVICE............................................................................ 24
CERTIFICATE OF COMPLIANCE .................................................................. 25

iii
INDEX OF AUTHORITIES

Cases

Barshop v. Medina Cnty. Underground Water Conservation Dist.,
925 S.W.2d 618 (Tex. 1996) ............................................................................ 16

City of Canyon v. McBroom,
121 S.W.3d 410 (Tex. App.—Amarillo 2003, no pet.) ..................................... 16

Heat Energy Advanced Tech., Inc. v. W. Dall. Coal. for Envtl. Justice,
962 S.W.2d 288 (Tex. App.—Austin 1998, pet. denied).................................... 5

Lake Medina Conservation Soc. v. Texas Nat. Res. Conservation Comm’n,
980 S.W.2d 511 (Tex. App.—Austin 1998, pet. denied).................................. 16

Shrimpers & Fishermen of RGV v. Texas Comm’n on Envtl. Quality,
968 F.3d 419 (5th Cir. 2020) ............................................................................. 6

Sierra Club v. Texas Comm’n on Envtl. Quality,
455 S.W.3d 214 (Tex. App.—Austin 2014, pet. denied).................................... 3

Stark v. Geeslin,
213 S.W.3d 406 (Tex. App.—Austin 2006, no pet.) .......................................... 2

Texas Catastrophe Prop. Ins. Ass’n v. Council of Co–Owners of Saida II
Towers Condo. Ass’n,
706 S.W.2d 644 (Tex. 1986) .............................................................................. 2

Texas Comm’n on Envtl. Quality v. City of Waco,
413 S.W.3d 409 (Tex. 2013) ..................................................................... 1, 2, 12

Texas Comm’n on Envtl. Quality v. Sierra Club,
455 S.W.3d 228 (Tex. App.—Austin 2014, pet. denied)................... 4, 11, 19, 22

Texas Rivers Prot. Ass’n v. Texas Nat. Res. Conservation Comm’n,
910 S.W.2d 147 (Tex. App.—Austin 1995, writ denied) ................................. 16

United Copper Indus. v. Grissom,
17 S.W.3d 797 (Tex. App.—Austin 2000, pet. dism’d) ..................................... 5

iv
Constitutional Provisions & Statutes

33 U.S.C. § 1313(d)(1) ........................................................................................ 13

Tex. Gov’t Code § 2001.060 ................................................................................. 7

Tex. Gov’t Code § 2001.175(b) ........................................................................... 11

Tex. Water Code § 5.115 ..................................................................................... 15

Tex. Water Code § 5.115(a) ........................................................................... 2, 4, 5

Tex. Water Code § 5.115(a-1) ............................................................................ 2, 5

Tex. Water Code § 5.115(a-1)(1) ....................................................................... 3, 5

Tex. Water Code § 5.115(a-1)(1)(A)-(E) ............................................................... 7

Tex. Water Code § 5.115(a-1)(1)(B) ..................................................................... 4

Tex. Water Code § 5.115(a-1)(1)(C) ................................................................... 10

Tex. Water Code § 5.115(a-1)(1)(D) ................................................................... 21

Tex. Water Code § 5.221 ...................................................................................... vii

Tex. Water Code § 5.222 ...................................................................................... vii

Tex. Water Code § 5.228(c) .................................................................................. 7

Tex. Water Code § 5.556 ....................................................................................... 2

Rules & Regulations

30 Tex. Admin. Code § 39.419 ............................................................................. vii

30 Tex. Admin. Code § 55.201(a).......................................................................... 8

30 Tex. Admin. Code § 55.201(d)(2)..................................................................... 4

30 Tex. Admin. Code § 55.203(c).......................................................................... 6

30 Tex. Admin. Code § 55.211(a)....................................................................... 1, 3

v
30 Tex. Admin. Code § 55.251 .............................................................................. 4

30 Tex. Admin. Code § 55.255(a)....................................................................... 1, 3

30 Tex. Admin. Code § 80.118 .............................................................................. 7

30 Tex. Admin. Code, Ch. 307 .............................................................................. 9

30 Tex. Admin. Code § 307.2(e) ........................................................................... 9

30 Tex. Admin. Code § 307.10 .............................................................................. 9

30 Tex. Admin. Code § 307.10, Appendices A-D ................................................ 13

vi
GLOSSARY OF ACRONYMS AND TECHNICAL TERMS

Appellees – Wilbarger Creek Conservation Alliance (WCCA), its President, Jon
Beall, its Vice President, Anne Brockenbrough, and its Board Member Marilyn
Kelinske, (referenced collectively as WCCA).

Applicant – SWWC Utilities, Inc.

AR – Administrative Record.

Commission or TCEQ – Texas Commission on Environmental Quality, Appellant
in this suit.

Discharge Point or Outfall – The location where water, run-off, or effluent enters
a watercourse (such as a creek or river).

Executive Director or ED – TCEQ’s Executive Director – Oversees the day-to-day
operations of the agency, including processing applications for wastewater treatment
permits and preparing draft permits and recommendations for the Commission. See
Tex. Water Code §§ 5.221-5.222; 30 Tex. Admin. Code § 39.419.

Final Order – Final Order of the Texas Commission on Environmental Quality,
signed on May 2, 2023, in TCEQ Docket No. 2023-0370-MWD, concerning the
application by SWWC Utilities, Inc. for a new Texas Pollutant Discharge
Elimination System Permit No. WQ0016022001.

RTC or Response to Comments – The Executive Director’s written analysis and
evaluation of Appellees’ concerns articulated in their comments. The RTC was
incorporated in full into the Final Order.

RTHR or Response to Hearing Requests – The Executive Director’s written
response and opinion regarding whether Appellees’ hearing requests should be
granted.

SWQM/SWQMIS – Texas Surface Water Quality Monitoring/Texas Surface
Water Quality Monitoring Information System or Texas Surface Water Quality
Monitoring System.

vii
TMDL – Total Maximum Daily Load. A concept associated with protecting or
improving impaired or threatened waters. The federal Clean Water Act requires
Texas to determine a TMDL for water bodies that are impaired or threatened.

viii
ARGUMENT

I. The Commission applied the appropriate legal standard and properly
considered statutorily-designated materials when it found that Appellees
were not entitled to a contested case hearing

Appellees fundamentally misunderstand the nature of the determination they

challenge. They complain that they were deprived “of the opportunity to challenge”

the permit supporting materials and the Commission’s reports and standards, and

that the Executive Director’s opinions and analysis were too conclusory to support

the Commission’s final decision, citing to authorities regarding evidentiary

standards for review of jury trials and contested cases. Appellees’ Br. at 22, 34. But

an affected person determination is neither a jury trial, nor a contested case. Rather,

the procedures and standards applicable here are set forth by statute and rule—and

do not incorporate contested case or jury trial type processes. The Commission

properly made the affected person determinations at issue here in accord with the

standards and procedures applicable to this special type of threshold determination.

A. An affected person determination is an administrative proceeding
with statutorily-defined rights and procedures—not a jury trial

“The Commission’s … determination of whether the party is an ‘affected

person’ … is not itself a contested case.” Texas Comm’n on Envtl. Quality v. City of

Waco, 413 S.W.3d 409, 417 (Tex. 2013) (internal citations omitted) (City of Waco);

see also 30 Tex. Admin. Code §§ 55.211(a), 55.255(a). An affected person

1
determination is a Legislatively-created process through which the Commission

determines whether a requestor has the right to participate in a different

Legislatively-created process, a contested case hearing. See Tex. Water Code

§§ 5.556, 5.115(a), (a-1). When the Legislature creates a right, it can also prescribe

the procedures and requirements for entitlement to that right. Texas Catastrophe

Prop. Ins. Ass’n v. Council of Co–Owners of Saida II Towers Condo. Ass’n, 706 S.W.2d

644, 645–46 (Tex. 1986). Contested cases are expensive and time-consuming, and

the public has a significant and legitimate interest in conserving finite fiscal and

administrative resources. City of Waco, 413 S.W.3d 409, 410; see also Stark v. Geeslin,

213 S.W.3d 406, 415 (Tex. App.—Austin 2006, no pet.) (“At some point, the

benefit of providing additional safeguards to individuals potentially affected by

adverse administrative action may be outweighed by the cost”).

Here, the Legislature chose to steward limited state resources by providing a

streamlined, circumscribed process for the Commission to make the threshold

determination of whether a hearing requestor might be affected by a permit in a

manner different from the general public. Tex. Water Code §§ 5.556, 5.115(a),

(a-1); City of Waco, 413 S.W.3d 409, 410. The process gives requestors the

opportunity to provide comments, to express their dissatisfaction with the proposed

permit, to tell the Commission why they think they will be adversely affected by the

2
proposed permit, and to have the Commission consider their comments and any

evidence they offer in support. Sierra Club v. Texas Comm’n on Envtl. Quality, 455

S.W.3d 214, 224 (Tex. App.—Austin 2014, pet. denied)(Sierra Club I); see also 30

Tex. Admin. Code §§ 55.211(a), 55.255(a). But it does not afford them discovery;

there is no opportunity for them to examine and challenge evidence. Rather, they

may offer comments and evidence for the Commission to consider, along with the

statutorily-enumerated categories of materials and factors (application and

supporting materials, ED’s analysis and opinions, and other data submitted to the

Commission, whether the application meets statutory standards, the likely impact of

the discharge on requestors’ interests). Tex. Water Code § 5.115(a-1)(1).

B. The Water Code charges the Commission to consider specified
materials and to determine the likely impact of the proposed
discharge on a requestor—not to merely take requestors’
statements as true

Appellees’ contention that it was error for the Commission to weigh and

consider their allegations of injuries in light of contravening materials such as the

ED’s analysis and opinions and the permit supporting documents (Appellees’ Br.

at 22-25), confuses the rule that explains how to file a request with the statutory

factors relevant to evaluating that request. Weighing and considering the

information in front of it is exactly what the Legislature has required of the

Commission.

3
By rule, the Commission directs requestors to provide “a brief, but specific,

written statement” with their “location and distance relative to the proposed

facility” and how and why they will be adversely affected. 30 Tex. Admin. Code

§§ 55.201(d)(2), 55.251. By statute, the Legislature directs the Commission to

consider and weigh factors including whether the permit meets requirements for

issuance, the permit application supporting materials, and the Executive Director’s

opinions and analysis when it evaluates “the likely impact of regulated activity on

the health, safety, and use of the property of the hearing requestor.” Tex. Water

Code §§ 5.115(a), 5.115(a-1)(1)(B). The Commission does not simply accept

requestors’ statements about the impact of the discharge on the impacted resource

or their proximity to the facility, and it certainly does not take as true requestors’

legal conclusions that they will be impacted.

In making a decision regarding affected-person status, TCEQ enjoys
the discretion to weigh and resolve matters that may go to the merits of
the underlying application, including the likely impact the regulated
activity ... will have.

Texas Comm’n on Envtl. Quality v. Sierra Club, 455 S.W.3d 228, 235 (Tex. App.—

Austin 2014, pet. denied) (Sierra Club II). To determine whether a contested case

hearing is warranted, the Commission must weigh and evaluate whether this

particular permitted discharge is likely to affect this particular requestor in a manner

different from the general public. It does so by considering the permit application

4
and supporting materials, including engineering reports, modeling, and its own

experts’ analysis of the likely effects of the discharge on the receiving waters, as well

as requestors’ statements and concerns. Id., Tex. Water Code §§ 5.115(a),

5.115(a-1)(1). It does not simply accept a requestor’s statement that she or he will

be affected.

Appellees cite to United Copper Indus. v. Grissom, 17 S.W.3d 797, 802 (Tex.

App.—Austin 2000, pet. dism’d) and Heat Energy Advanced Tech., Inc. v. W. Dall.

Coal. for Envtl. Justice, 962 S.W.2d 288, 295 (Tex. App.—Austin 1998, pet. denied),

contending that the Commission erred in considering evidence (such as the permit

supporting materials and the Commission’s samples and reports on water quality in

Wilbarger Creek) and should have instead simply accepted Appellees’ allegations as

true. But neither of those cases actually holds that the Commission must take as true

requestors’ statements that they will be adversely affected by a proposed permit.

More importantly, these cases pre-date the 2015 changes to the Water Code, the

changes that set forth in detail both the determinations and materials the

Commission was to consider going forward when it made an affected person

determination. See Tex. Water Code § 5.115(a-1).

The current and applicable law charges the Commission to consider the

“likely impact of the regulated activity” on the requestor, information gathered

5
through the application process, the requestor’s location, staff experts’ analysis and

opinions of the discharge’s likely effects on the receiving waters, whether the

proposed permit meets statutory standards, and the analysis and opinions of the

executive director. 30 Tex. Admin. Code § 55.203(c); Tex. Water Code § 5.115; see

also Shrimpers & Fishermen of RGV v. Texas Comm’n on Envtl. Quality, 968 F.3d 419,

422 (5th Cir. 2020) (in determining whether requestor is likely to be affected, TCEQ

may consider “the merits of the underlying application” and “the analysis and

opinions of the executive director”). The Legislature has charged the Commission

to weigh and consider this information when determining whether a requestor is

affected and the Commission properly did so here.

C. The Commission is not required to limit its consideration of
materials to those on file with the Chief Clerk

Appellees also err in contending that the Commission did not or should not

have considered the materials included in the Supplement to the Administrative

Record. As the District Court found when it admitted these materials, they were

properly included in the record because they were considered by the Commission

when it made its determination. RR at 6-11. These materials are referenced and

discussed in the Executive Director’s Response to Comments (RTC), 1 and the

1 The materials are also specifically listed in the Statement of Basis/Technical Summary as having

been considered in developing the draft permit. RR.AR.12 at 6.

6
Commission incorporated the RTC—including its references and discussions of

these materials—in full into the Final Order. RR.AR.31 at 1-2 [Final Order],

RR.AR.20 [RTC]. By referencing these materials in the Final Order, the

Commission made clear that it had considered them.

Appellees also assert that when the Commission made its determination “the

administrative record consisted of the documents filed with the TCEQ Chief Clerk.”

Appellees’ Br. at 19. But nothing supports that assertion. Certainly, in a contested

case hearing, the materials in the administrative record are those filed with the clerk

or admitted into evidence, as provided by the laws and rules governing contested

case hearings. See e.g., Tex. Water Code § 5.228(c) (requiring the ED to provide the

information to complete the administrative record in a contested case hearing

process); 30 Tex. Admin. Code § 80.118 (listing items to be included in the

administrative record of a contested case hearing); Tex. Gov’t Code § 2001.060

(same). But here, where there is no contested case, and no procedures for admission

of evidence or taking of official notice, Appellees’ assumption fails. The Commission

is charged to make an affected person determination prior to referring the matter for

hearing—and is told what materials it may consider in doing so. It is not required to

limit its consideration to materials filed with the Chief Clerk, nor is it required to

take formal notice of its own reports and standards. Id. § 5.115(a-1)(1)(A)–(E).

7
Appellees’ arguments would require this Court to add restrictive language to the

Water Code—language the Legislature chose not to include.

Appellees also err in implying that the Commission’s consideration of these

materials was hidden from them. The materials were referenced and discussed in the

Executive Director’s Response to Comments, which was filed and served on

Appellees on October 19, 2022. RR.AR.20 at 11. The ED then issued her decision

on October 26, 2022. RR.AR.21. By rule, requestors have 30 days after the mailing

of those documents to file hearing requests. 30 Tex. Admin. Code § 55.201(a).

Appellees were informed of the Executive Director’s opinions and of the materials

she referenced, and given more than 30 days to address them.

D. The Commission’s consideration of the challenged materials is
documented in the record

The Standards Implementation Procedures (IPs), RR.AR.39, are referenced

both in the RTC’s discussion of the antidegradation review and the methodologies

of analysis and modeling, and in also in the ED’s Statement of Basis/Technical

Summary, which lists documents considered. RR.AR.20 at 5-6 [RTC]; RR.AR.12

at 6 [Statement of Basis/Technical Summary]. This is both reasonable and expected

since the Commission is required by law to adhere to the IPs in evaluating permits;

they are an integral part of the Texas Water Quality Standards which are

8
implemented through permitting. 30 Tex. Admin. Code § 307.2(e). 2 Appellees are

wrong to suggest that the Commission did not consider the IPs, when it is both

required to consider them and when it referenced them in its Final Order.

The Order (by incorporation of the RTC) similarly references the Texas

Integrated Report of Surface Water Quality and explains that the Integrated Report 3

is updated every two years to incorporate more current sampling data. RR.AR.20

at 8-9 (discussing Integrated Report and explaining that Appellees’ demand for a

TMDL is misplaced because Wilbarger Creek is not impaired); see also RR.AR.31

at 1-2 [Final Order]. The Integrated Report results are also codified into the Site-

Specific Standards set forth at 30 Tex. Admin. Code, Chapter 307 and referenced in

the Statement of Basis/Technical Summary of the permit. 4 RR.AR.12 at 6. The

Commissioners operate with the benefit of the expertise and analysis of the agency

and its published reports and standards, not in a jury-type vacuum where access to

data is limited to that filed with the Chief Clerk or admitted by a judge.

2 The IPs were reviewed and approved by the EPA as part of its delegation to Texas under the

federal Clean Water Act. RR.AR.40 at 1 [Implementing the Texas Surface Water Quality
Standards in Permitting].
3 The Integrated Reports for both 2020 and 2022 are included here because the permit was

considered during that timeframe.
4 Data for the Colorado River segment and Wilbarger Creek is found at 30 Tex. Admin. Code

§ 307.10, Appendices A, C, and D, and indicates that neither is even remotely impaired. See also
RR.AR.20 at 8 [RTC].

9
The modeling and standards implementation working papers, RR.AR.36-37,

are supporting documentation for the permit prepared by the ED during technical

review. See also RR.AR.7 [Standards Implementation Memo], RR.AR.9 [Water

Quality Modeling Memo], RR.AR.12 [Statement of Basis/Technical Summary].

“Supporting documentation” is specifically listed in § 5.115(a-1)(1)(C) for

consideration by the Commission. These documents are the source of the specific

details regarding the modeling that was performed, including that the model contains

multiple outfalls, and which provides the amounts and quality of the discharged

effluent of those other outfalls, and of the details of the site-specific nutrient

screening performed to address potential algal blooms in the RTC that were

incorporated into the Final Order. RR.AR.20 at 6-8 [RTC].

Appellees’ complaint regarding the TCEQ’s Surface Water Quality

Monitoring (SWQM) System Map, RR.AR.44, similarly ignores the fact that the

Order (through the RTC) discusses the specific locations of SWQM stations when

it explains that the Commission has sampling data collected at “an active SWQM

station approximately 2.25 miles downstream” of the proposed facility, and also at

“other active SWQM stations further upstream and downstream on Wilbarger

Creek, in which current water quality data is being collected.” RR.AR.20 at 8-9. The

Map is the source of the referenced locations. RR.AR.44.

10
II. The Commission’s determination that Appellees are not likely to be
affected by the permit in a manner different from the general public is
reasonable and supported by substantial evidence

The Court reviews “a TCEQ determination regarding affected-person status

for an abuse of discretion.” Sierra Club II, 455 S.W.3d 228, 235. It does so in light

of “the entire record of the proceeding under review,” which the Commission is

required to prepare and file as part of the process for judicial review of an agency

order. Tex. Gov’t Code § 2001.175(b). Here, the Commission provided the entire

record of its affected person determination—the proceeding under review here.

That proceeding was not a contested case and the district court properly rejected

Appellees’ objections that attempted to impose contested case record requirements

onto this proceeding and admitted that record into evidence. See RR at 5, 11.

The record of this proceeding supports that the TCEQ considered the factors

the Legislature directed it to consider (it evaluated “the likely impact of regulated

activity on the health, safety, and use of the property” of Appellees) and reached a

reasonable decision (that they are not likely to be impacted in a manner distinct from

the general public by the permit)—and thus did not abuse its discretion. Sierra

Club II, 455 S.W.3d 228, 235.

11
A. Substantial evidence supports that Appellees’ “contamination”
allegations related to other permitted discharges do not establish
them as affected by this permit

As an initial matter, Appellees’ representations that the ED did not contradict

that the creek is “impaired” and “confirmed that no TMDL project had been

undertaken,” Appellees’ Brief at 6-9, misrepresent and distort. The ED refuted

Appellees’ contention that Wilbarger Creek is impaired in her response to

Appellees’ comment that a TMDL (Total Maximum Daily Load) study should be

conducted on Wilbarger Creek. RR.AR.20 at 8-9. The ED explained that TMDL

projects are only for impaired waters, that they are “conducted on water bodies that

have been found to be impaired for some specific constituent(s) or other water

quality-related parameter(s).” Id. at 8. She further explained that no TMDL project

is planned, or appropriate for Wilbarger Creek because Wilbarger Creek is not

impaired:

Such impairments are documented in the Texas 303(d) list…of the
Texas Integrated Report of Surface Water Quality, which is updated
every two years. Wilbarger Creek is not listed as impaired…no TMDL
projects have been developed for the Wilbarger Creek watershed, nor
are any currently underway or planned.

Id. at 8. That TMDL projects are only for impaired waters has also been discussed

by the Texas Supreme Court. City of Waco, 413 S.W.3d 409, 412 (Clean Water Act

12
requires Texas to determine a TMDL for water bodies that are impaired or

threatened); 33 U.S.C. § 1313(d)(1).

Further, as the ED observed in the RTC, the Texas Integrated Reports for

2020 and 2022, which are based on the Commission’s expert analysis of samples

taken in Wilbarger Creek, find that Wilbarger Creek is not impaired, and that it

supports high quality aquatic life. RR.AR.20 at 6, 8-9 [RTC], referencing RR.AR.42-

43 [Integrated Reports]. The Texas Surface Water Standards, which are similarly

based on Commission analysis of samples taken from Wilbarger Creek, similarly

support that the creek is not impaired. 30 Tex. Admin. Code § 307.10, Appendices

A-D [Texas Surface Water Standards for Wilbarger Creek and Colorado River]. In

addition, the permitting supporting materials, including the Standards

Implementation Memo, note that Wilbarger Creek supports high aquatic life use—

which means it is not impaired—and the Modeling Memo specifically notes that the

creek “is not currently listed on the State’s inventory of impaired and threatened

waters (the 2020 Clean Water Act Section 303(d) list).” RR.AR.7 at 1; RR.AR.9

at 1. This information supports the Commission’s determination.

The Commission was not required to ignore that data and just accept

Appellees’ contentions that the creek is impaired. Appellees’ second-hand account

of a youth’s verbal assessment of the creek as “impaired” was not supported by any

13
sample results or scientific analysis. RR.AR.34 at 13-14; 28-29 [Public Comments].

The Legislature charged the Commission to use its expertise and to evaluate likely

impacts. And it did so.

Appellees raise arguments regarding the Commission’s interpretation of the

sample results and data contained in the Integrated Reports. But they miss the point.

The Commission had before it sample data and analysis indicating that Wilbarger

Creek supports high quality aquatic life, RR.AR.7 at 1, and, more importantly, that

the quality of the water has not only not decreased, but has improved, since it went

from being “of concern” for nitrates (algae-related) in 2020, RR.AR.42 at 5, to being

not “of concern” for nitrates in 2022, RR.AR.43 at 8. This sample data shows

conditions in the creek as it exists with multiple permitted discharges. See RR.AR.20

at 8 [RTC] (discussing other outfalls into Wilbarger Creek). It supports that this

permit is not likely to impact Appellees.

The Legislature delegated the responsibility to monitor and protect Texas

waterways—and to develop policies and procedures to do so—to the Commission,

which is staffed by environmental specialists trained to interpret data. Appellees

question the Commission’s methods of sampling and data analysis. Appellees’ Br.

at 28. But that is neither here nor there for the purpose of this appeal. Appellees may

disagree with the Commission’s sampling procedures and analysis, but the

14
Commission’s data and analysis support its determination that Appellees were not

likely to be affected in a manner distinct from the public by this permit.

Appellees also allege that the cumulative impact of all the discharges into the

creek, and in particular, the effects of other facilities that Appellees allege are

discharging in violation of their permits show that this permit will injure them.

Appellees’ Br. at 12. First, as noted above, the Commission had before it sample data

reflecting the water quality in the creek over time, and which indicates that the water

quality has improved over that time as to nitrates. Second, Appellees’ contentions

regarding these other facilities make clear that there is no nexus between Appellees’

alleged injuries and the permit at issue here. To establish affectedness, the permit at

issue and the acts authorized by that permit must be likely to injure the requestor.

See Tex. Water Code § 5.115. A requestor cannot establish that it is affected by this

permit simply by alleging injury from other, wholly unrelated permittee’s violations of

another permit. Appellees’ allegations fail to establish that they are likely to be

affected by this permit; hence it was reasonable for the Commission to reject their

request for a contested case hearing on this permit.

B. A permitted discharge does not automatically create injury to
downstream land through which the receiving waters flow

Citing to three water rights cases and one involving a zoning challenge to a

Wal-Mart, Appellees contend that because they own land downstream of the outfall,

15
this permit will damage their property rights. Appellees’ Br. at 25-26. But none of

the cited cases support Appellees’ contention that they are automatically injured

from a permitted discharge upstream from their property. In fact, none of them even

involve a discharge permit; the courts in those cases were applying completely

different bodies of law to completely different facts.

Barshop v. Medina Cnty. Underground Water Conservation Dist., 925 S.W.2d

618, 627 (Tex. 1996), held that landowners had standing to challenge a statute

because it threatened to deprive them of access to their underground water. The

threatened injury was deprivation of water. Similarly, Lake Medina Conservation Soc.

v. Texas Nat. Res. Conservation Comm’n, 980 S.W.2d 511, 515-516 (Tex. App.—

Austin 1998, pet. denied) and Texas Rivers Prot. Ass’n v. Texas Nat. Res. Conservation

Comm’n, 910 S.W.2d 147, 151 (Tex. App.—Austin 1995, writ denied), also

involved the removal of water and diversion of water. There is no deprivation or

removal of water from Appellees here. The zoning case involved a challenge to a

city’s zoning decision to allow construction of a Wal-Mart in the flood plain and a

nearby property owner was found to have alleged an injury because such large-scale

construction near him in the floodplain was likely to increase his risk of flooding. City

of Canyon v. McBroom, 121 S.W.3d 410, 415 (Tex. App.—Amarillo 2003, no pet.).

Again, this is not the situation here. None of these cases hold, or even suggest, that

16
someone who owns property several miles downstream of a permitted discharge has

automatically established an injury to their property rights.

Appellees allege injuries of an entirely different nature—injuries from

contaminated water flowing across their properties that would presumably be caused

by this permitted discharge. But the record does not support that this discharge will

presumably contaminate the creek. The discharge constituents are stringently

limited in accordance with standards developed to protect water quality and the

Commission’s expert analysis concluded that the permitted discharge would not

degrade that water quality and that existing uses will be maintained and protected.

RR.AR.20 at 6, 9 [RTC] (permit limits accord with requirements of the Colorado

River Watershed Protection Rules); RR.AR.7 at 1 [Standards Implementation

Memo]; RR.AR.12 at 2 [Statement of Basis/Technical Summary]. The Commission

is charged to evaluate the likely impact of this permit on Appellees’ interests and

property. It did so using its technical expertise after reviewing the permit supporting

materials, including modeling of the likely impact on this creek of a discharge with

these particular constituents. Appellees’ location downstream and ownership of

property on the creek were factors that the Commission considered in that

evaluation.

17
Appellees’ property rights remain intact—if they suffer injury to their

property because of discharges (whether permitted, such as this proposed facility or

another permitted facility, or whether not permitted at all), they can pursue recourse

for that invasion directly. See RR.AR.20 at 6-7 [RTC] (“the draft permit does not

authorize any invasion of personal rights nor any violation of federal, state, or local

laws or regulations…the proposed permit does not limit any landowner’s ability to

seek private action against the applicant”). But simply owning property on a creek

into which a permitted discharge outfalls does not automatically establish that

Appellees are injured by this permit.

C. Substantial evidence supports that Appellees are not likely to be
affected by this permit in a manner different from the general public

Appellees attempt to build a straw man, contending that the Commission

denied their hearing requests “solely based on proximity.” Appellees’ Br. at 12-36.

Not only is this contention not supported—it is contravened. Chairman Niermann

specifically stated that:

the point that I’m trying to make is that what we’re doing here is we’re
weighing different factors, that there is no bright line test, including
none pertaining to distance.

CR.191 [Open Meeting Transcription]. The evidence regarding those factors in this

case supports that the application met the statutory requirements for issuance, and

supports that “operation of the facility as licensed is not likely to adversely affect the

18
environment in amounts that are prohibited under the law.” Sierra Club II, 455

S.W.3d at 240; see also RR.AR.12 at 3, 6 [Statement of Basis/Technical Summary].

The Commission’s experts, including the ED, analyzed, modeled, and

evaluated the likely impacts of the proposed discharge for almost a year. The permit

application and supporting documentation total hundreds of pages and include

materials such as those submitted by the applicant, the applicant’s engineer, and

Commission staff. RR.AR.1 [Permit Application and Engineering Report], RR.AR.7

[Standards Implementation Memo], RR.AR.9 [Water Quality Modeling Memo],

RR.AR.12 [Statement of Basis/Technical Summary], RR.AR.36 [Water Quality

Modeling Memo Working Papers], RR.AR.37 [Standards Implementation Memo

Working Papers], RR.AR.25-26 [Backup Documents and Amended Backup

Documents for Agenda]. The final conclusion of all of this analysis was that the

proposed discharge “will not” impair “existing water quality uses” and that “no

significant degradation of water quality” is expected in the receiving waters which

have “high and exceptional aquatic life uses” and that “[e]xisting uses will be

maintained and protected.” RR.AR.7 at 1 [Standards Implementation Memo];

RR.AR.9 [Water Quality Modeling Memo]; see also RR.AR.12 at 3-5 [Statement of

Basis/Technical Summary]. Only because of all these findings was the proposed

discharge found to meet statutory requirements. RR.AR.12 at 3-5.

19
The ED further analyzed and evaluated these materials in the Response to

Comments, RR.AR.20, which fills 10 single-spaced pages, and specifically addresses

each concern raised by Appellees in their comments. RR.AR.20. Her Response to

Hearing Requests (RTHR) synthesized that information and those conclusions, and

applied them specifically to Appellees, considering the size (volume) and

characteristics (biological oxygen demand, bacteria, etc.) of the discharge, in light of

all that modeling data, and in light of characteristics of the receiving waters at issue

(Wilbarger Creek), and Appellees’ proximity (or lack thereof) to the facility, and

concluded that Appellees were not likely to be impacted in a manner distinct from

the general public. RR.AR.23. She also observed that Appellees’ concerns are not

specific to them or to this proposed discharge. Id. Indeed, Appellees’ concerns are

not tied to this permit or to their locations, or even to the quality of the discharged

treated effluent. Rather, Appellees’ main concern is that the creek—which used to

be dry or stagnant for most of the year—now flows year-round and contains treated

effluent. RR.AR.34 at 11, 9, 16 [Public Comments]. But the presence of treated

effluent does not establish injury. Indeed, the entire reason for the thoroughness of

the permit review process is to ensure that discharges of treated effluent do not cause

injuries.

20
Appellees argument that the ED’s discussion of proximity was “conclusory”

and should be disregarded relies on inapplicable caselaw regarding evidentiary

standards for jury trials. Appellees’ Br. at 34. The Commission is not a jury; it is an

expert, with vast knowledge and expertise regarding environmental impacts of

permitted activities. And it is charged to utilize that expertise in making an affected

person determination. It is also permitted—specifically—to consider the opinions

and analysis of the Executive Director. Tex. Water Code § 5.115(a-1)(1)(D). The

Commission was authorized to consider the ED’s opinions in making this

determination.

Moreover, Appellees ignore that the ED’s conclusion about proximity is just

that—a conclusion—her opinion formed only after her experienced evaluation of all

the facts of this case. RR.AR.12 [Statement of Basis/Technical Summary] RR.AR.20

[RTC], RR.AR.23 [RTHR]. That her conclusion made reference to proximity is to

be expected. After all, proximity is always a factor in modeling and analysis of a

permitted discharge—regardless of whether that discharge is to water or to air—

because modeling evaluates the likely effects of a discharge at different distances

from an outfall. And the ED’s opinion regarding Appellees’ lack of affectedness was

not based solely on proximity in any case—it was just one of the many factors that

she analyzed before opining that Appellees are not likely to be impacted by this

21
permit in a matter distinct from the general public. RR.AR.20 [RTC], RR.AR.23

[RTHR], RR.AR.12 [Statement of Technical Basis/Summary] (listing reference

materials relied upon in making permitting recommendation).

This is the same type of evidence and analysis that the Austin Court of

Appeals considered before concluding that “it would have been reasonable, and thus

within TCEQ’s discretion, to conclude that [requestors] are not affected persons

because the licensed activity will have minimal effect on their health, safety, use of

property, and use of natural resources.” Sierra Club II, 455 S.W.3d 228, 240. That

court further observed that “Finally, we would note, as did the Executive Director,

that [requestors’] concerns about the licensed activity are shared by the general

public. . . . In sum, we cannot say that TCEQ erred in deciding that neither

[requestor] is a person who would be affected by the proposed permit under the

relevant factors.” Id.

CONCLUSION AND PRAYER

Charged to utilize its expertise and access to environmental data as well as its

expert analysis of this application and the allegations made by requestors, the

Commission appropriately and reasonably analyzed the materials before it and found

that Appellees were not likely to be affected by the permit at issue here. The District

Court erred when it reweighed that evidence because it could not conceive of people

22
downstream not being injured by a discharge. The Court should reverse the district

court order and render judgment affirming the Commission’s Final Order denying

Appellees’ request for a contested case hearing and granting the permit.

Respectfully submitted,

KEN PAXTON
Attorney General of Texas

BRENT WEBSTER
First Assistant Attorney General

RALPH MOLINA
Deputy First Assistant Attorney General

AUSTIN KINGHORN
Deputy Attorney General for Civil Litigation

KELLIE E. BILLINGS-RAY
Chief, Environmental Protection Division

/s/ Amanda Atkinson Cagle
AMANDA ATKINSON CAGLE
Assistant Attorney General
Texas State Bar No. 00783569
Amanda.Cagle@oag.texas.gov

SARA J. FERRIS
Assistant Attorney General
Texas State Bar No. 50511915
Sara.Ferris@oag.texas.gov

23
OFFICE OF THE ATTORNEY GENERAL
ENVIRONMENTAL PROTECTION DIVISION
P.O. Box 12548, MC-066
Austin, Texas 78711-2548
Tel. 512-475-4002
Fax: 512-320-0911

ATTORNEYS FOR THE TEXAS
COMMISSION ON
ENVIRONMENTAL QUALITY

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing Reply Brief of Appellant

TCEQ was served upon the following counsel of record on December 23, 2025 via

electronic service:

Christopher D. Smith
Becky L. Jolin
SMITH JOLIN PLLC
901 S. Mopac Expressway
Building 1, Suite 300
Austin, Texas 78746
chris.smith@smithjolin.com
becky.jolin@smithjolin.com

Attorneys for Appellees

/s/ Amanda Atkinson Cagle
AMANDA ATKINSON CAGLE

24
CERTIFICATE OF COMPLIANCE

I certify that the foregoing Reply Brief of Appellant TCEQ contains 5,045

words and therefore complies with the word limit found in Tex. R. App.

P. 9.4(i)(2)(C).

/s/ Amanda Atkinson Cagle
AMANDA ATKINSON CAGLE
Assistant Attorney General

25
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Laura Courtney on behalf of Amanda Cagle
Bar No. 783569
laura.courtney@oag.texas.gov
Envelope ID: 109399826
Filing Code Description: Brief Requesting Oral Argument
Filing Description: Reply Brief of Appellant TCEQ
Status as of 12/23/2025 11:12 AM CST

Associated Case Party: Wilbarger Creek Conservation Alliance

Name BarNumber Email TimestampSubmitted Status

Christopher Smith 24051349 Chris.Smith@smithjolin.com 12/23/2025 9:32:39 AM SENT

Becky Jolin 10856200 Becky.Jolin@smithjolin.com 12/23/2025 9:32:39 AM SENT

Associated Case Party: Texas Commission on Environmental Quality

Name BarNumber Email TimestampSubmitted Status

Laura Courtney laura.courtney@oag.texas.gov 12/23/2025 9:32:39 AM SENT

Sara Ferris sara.ferris@oag.texas.gov 12/23/2025 9:32:39 AM SENT

Amanda Cagle amanda.cagle@oag.texas.gov 12/23/2025 9:32:39 AM SENT

Colton Halter colton.halter@oag.texas.gov 12/23/2025 9:32:39 AM SENT