AIRW 2017-7, L.P.; 600 Westinghouse Investments, LLC; 800 Westinghouse Investments, LLC; Texas Commission on Environmental Quality; And Jonah Water Special Utility District v. City of Georgetown, Texas

ACCEPTED
15-24-00132-CV
FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS
9/19/2025 4:28 PM
No. 15–24–00132–CV CHRISTOPHER A. PRINE
CLERK

In the Court of Appeals 15th COURT
FILED IN
OF APPEALS
AUSTIN, TEXAS
for the Fifteenth Judicial District
9/19/2025 4:28:30 PM
CHRISTOPHER A. PRINE
Austin, Texas Clerk

AIRW 2017-7, L.P. ET AL.,
Appellants,
v.
CITY OF GEORGETOWN, TEXAS,
Appellee.

REPLY BRIEF OF APPELLANTS AIRW 2017-7, L.P.; 600
WESTINGHOUSE INVESTMENTS, LLC; 800 WESTINGHOUSE
INVESTMENTS, LLC

Andrew B. Davis LEHOTSKY KELLER COHN LLP
Texas Bar No. 24082898 408 W. 11th Street, 5th Floor
andrew@lkcfirm.com Austin, TX 78701
William T. Thompson T: (512) 693–8350
Texas Bar No. 24088531 F: (512) 727–4755
will@lkcfirm.com
Todd Disher Counsel for Appellants AIRW 2017-7,
Texas Bar No. 24081854 L.P.; 600 Westinghouse Investments,
todd@lkcfirm.com LLC; 800 Westinghouse Investments,
LLC

Oral Argument Requested
T ABLE OF C ONTENTS

TABLE OF CONTENTS ................................................................................................ ii
INDEX OF AUTHORITIES ........................................................................................... iii
INTRODUCTION .......................................................................................................... 1
ARGUMENT ................................................................................................................ 2
I. AIRW’s permit is consistent with regionalization. .............................. 2
A. The permit is consistent with regionalization because
the City denied wastewater service. ................................................ 3
B. The City’s argument that the Commission could not
consider the costs of annexation has no basis in law. ................. 13
C. The City’s other complaints about how the Commission
implements regionalization are baseless. ..................................... 17
II. The City’s half-hearted attempts to poke holes in the permit
fail. ............................................................................................................. 19
A. The City failed to present any evidence that the permit
does not protect water quality. ....................................................... 19
B. The City’s antidegradation arguments lack any
evidentiary support. ......................................................................... 20
C. The City’s nuisance-odor arguments ignore the
undisputed evidence. ....................................................................... 21
D. The City provides no evidence that the permit fails to
protect human health. ...................................................................... 23
E. The application was substantially complete and
accurate. ............................................................................................. 24
PRAYER..................................................................................................................... 25
CERTIFICATE OF SERVICE ......................................................................................... 27
CERTIFICATE OF COMPLIANCE ................................................................................ 27

ii
I NDEX OF A UTHORITIES

Page(s)

Cases

Save Our Springs All., Inc. v. Tex. Comm'n on Env't Quality,
713 S.W.3d 308 (Tex. 2025) .............................................................................. 20

Statutes and Codes

Georgetown Unified Dev. Code § 13.05 .............................................................. 6

Tex. Gov’t Code § 2003.047 ............................................................................18, 19

Tex. Loc. Gov’t Code § 212.172 ........................................................................... 12

Tex. Water Code § 26.003 ...........................................................................3, 15, 17

Tex. Water Code § 26.081. .................................................................................... 17

Tex. Water Code § 26.0282 .................................................................12, 15, 16, 17

Tex. Water Code § 26.030 ..................................................................................... 22

30 Tex. Admin. Code § 305.43 ............................................................................. 25

30 Tex. Admin. Code § 309.13 ............................................................................. 22

iii
I NTRODUCTION
The City of Georgetown concedes that “regionalization policy was not
drafted to be leveraged by permit applicants or those in opposition thereof.”

Resp. 22. But leveraging regionalization is exactly what the City wants to do.
The City invokes regionalization to prohibit AIRW from obtaining its own
wastewater permit and to coerce AIRW into agreeing to annexation.

Fortunately, that is not how regionalization works. The Legislature gave the
Commission—not individual cities—discretion to decide how to implement
regionalization. And the Commission reasonably concluded that granting
AIRW a wastewater permit is consistent with regionalization.
The heart of the City’s argument is that the Commission should have
forced AIRW to seek a waiver of the annexation requirement from the city
council before concluding that the City denied service. But the Commission
rightly rejected this approach. No law or regulation requires an applicant to
explore every possible political path to obtain wastewater service before the
Commission can make a regionalization determination. And the City does
not even pretend otherwise. The Commission correctly understood that
when a city enacts a mandatory ordinance requiring annexation, city staff
repeatedly confirm that annexation is required, and the city staff explicitly
reject alternatives to annexation as “non-starters,” developers need not
pursue futile political remedies.
The City also argues that the Commission could not rely on the costs
of annexation—roughly $20 million in this case—to conclude that forcing

1
connection to the City would be unreasonable. But the City concedes that the
Commission may consider “denial of service, costs, and other relevant

factors when following the regionalization policy.” Resp. 10. $20 million in
lost value because of the increased tax burden from annexation is not only a
real cost to AIRW because taxes must be paid, but also a “relevant factor”

among other legitimate cost factors that the Commission could consider
when analyzing regionalization.
Finally, the City half-heartedly argues that the Commission erred in

granting the permit for reasons unrelated to regionalization. These
arguments are all meritless, which is why even the trial court declined to
reverse the permit for the reasons the City now recycles.

In short, the Commission reasonably exercised the discretion the
Legislature entrusted to it. It considered the evidence, weighed the City’s
annexation demands against regionalization’s goals, and reasonably
concluded that forcing connection under these circumstances would be
unreasonable. The trial court’s decision to substitute its judgment for the
Commission’s determination was error. This Court should reverse and
render judgment.

A RGUMENT

I. AIRW’s permit is consistent with regionalization.
The City’s arguments that AIRW’s permit is inconsistent with

regionalization rest on a fundamental misunderstanding of both

2
regionalization’s purpose and the Commission’s broad discretion to
implement regionalization through “reasonable methods.” Tex. Water Code

§ 26.003. The Commission exercised its discretion to grant AIRW’s permit
application rather than require it to connect to the City’s wastewater facility
because it found that the City demanded costly annexation as a condition of

service. The City disagrees with this conclusion, but all its attempts to
undermine it fail because substantial evidence supports the Commission’s
findings, and those findings reflect a reasonable exercise of the

Commission’s undisputed discretion.

A. The permit is consistent with regionalization because the
City denied wastewater service.
The Commission granted the permit because it concluded that the City

effectively denied AIRW connection to its wastewater system by
conditioning service on annexation. 1.AR.66 at 10 (FOF 42). The City does
not dispute that requiring annexation as a condition of service is an effective

denial or that an effective denial of service is a reason to grant a permit
consistent with regionalization. Indeed, the City concedes that “the
Commission has the discretionary authority to approve or deny a permit
based on regional availability,” Resp. 14, and acknowledges that
“availability” for purposes of regionalization is a practical inquiry into real-
world accessibility, see Resp. 14-15. The City instead raises scattered
arguments that the Commission’s factual finding on annexation is

3
unreasonable and not supported by substantial evidence because the city
council never formally denied service. This argument fails.

1. The Commission did not need to wait for a formal city council
determination on annexation.
The City’s primary argument assumes a procedural requirement

found nowhere in Texas law. According to the City, the Commission cannot
conclude that a city denied service unless a developer has both formally
requested waiver of the annexation requirement and received a formal
rejection of that waiver request from the city council. Resp. 18 (“Without so
much as an attempt to formally introduce a Development Agreement to the
City Council, it is impossible to know whether the City Council would or

would not be willing to waive the annexation requirement.”). But the City
cites no statute imposing this requirement. Nor does it point to any case,
regulation, or guidance mandating that applicants take the political steps
that the City demands. That is because there is no such requirement.
The Commission’s permit application document specifies what
applicants must do to demonstrate regionalization efforts—they must

identify nearby facilities and request service. 2.AR.98 at 1-2. The Application
instructs applicants to coordinate with nearby providers and document
those efforts. 2.AR.146 at 33.1 But nothing requires pursuing political

1
The City briefly argues that this Court should affirm because AIRW did not “provide[]
certified copies of the correspondence it sent to the City” in its application. Resp. 9. But
the City cites no law or rule requiring communications to be in this format, and never
explains why this matters when the authenticity of the correspondence is undisputed.

4
processes to obtain a formal denial from the city council. And nothing
demands that applicants seek waivers when cities impose conditions on

service. If the Commission intended to require applicants to explore every
possible political solution, it would have said so in its guidance. The absence
of any such requirement confirms that the Commission retains discretion to

determine when efforts to obtain service have gone far enough.
The Commission properly exercised that discretion here. It found as a
matter of fact that “[t]here was no indication that the City was willing to

waive the annexation” requirement. 1.AR.66 at 10 (FOF 41). This finding
rests on substantial evidence: the City’s mandatory ordinance requiring
annexation, repeated staff confirmations of this requirement, explicit

rejection of alternatives as “non-starter[s],” and the statement that there was
“no need to revisit” the issue. 2.AR.101 at 1; 2.AR.131 at 12-13. The City cites
no example where it has ever granted such a waiver to any developer. And
when AIRW specifically proposed pursuing a development agreement for
service without annexation, the City rejected that proposal, stating that
“nothing . . . should have been construed as the City entertaining providing
wastewater service to this project in the ETJ.” 2.AR.101 at 1.
The City’s insistence that a permit cannot be granted until the city
council formally acts would, if adopted by this Court, require the
Commission to treat mandatory municipal ordinances as merely suggestive
on the speculation that a city council might someday waive that ordinance.
Under this theory, a city could enact any requirement as a condition of

5
wastewater service—for example, it could require a developer to pay $100
million, dedicate all property to the city, or convert the property to industrial

use—yet developers could not rely on these requirements to seek a
wastewater permit until formally requesting and being denied a waiver of
the requirement. This cannot be the law. When a city enacts mandatory

legislation stating properties “shall . . . submit a petition for voluntary
annexation,” Georgetown Unified Dev. Code § 13.05 (emphasis added), that
legislation represents the city council’s official position. The Commission

acts reasonably in taking mandatory ordinances at face value.

2. The Commission properly relied on city staff communications
as evidence of the City’s position.
The City fundamentally mischaracterizes both the Commission’s
reasoning and AIRW’s argument with respect to communications with city
staff. Neither the Commission nor AIRW claimed that city staff statements
legally bind a city council in the sense that the city council cannot diverge
from city staff. Contra Resp. 22. That is a strawman of the City’s own making.
The relevant question is not whether staff can create binding legal

obligations or always predict the city council’s position, but whether their
communications amount to substantial evidence supporting the
Commission’s finding that service was effectively denied.

As AIRW explained in its opening brief, it is reasonable to infer the city
council’s position from multiple authorized staff communications,
particularly when the staff explicitly state they are conveying “the City’s

6
position.” AIRW 31. The Assistant City Manager did not offer his personal
opinion—he stated that “the City’s position remains the same; annexation

will be required.” 2.AR.101 at 1. The Planning Director confirmed that
“annexation will be required.” 2.AR.107 at 3. When senior city officials
repeatedly state a city’s position over many months, reasonable developers

need to be able to rely on those statements in making business decisions,
including the decision to apply for a wastewater permit.
The City’s assertion that “it does not matter whether the staff was

acting aligned or contrary to the wishes of the City Council” (Resp. 22) is
telling. In one sense, this statement is true: it does not matter because the
Commission could reasonably conclude that service was effectively denied

even if there was a chance the city council would eventually waive
annexation after a drawn-out political process. After all, effective denial can
come simply from the delay of having to go seek and obtain a waiver from
a mandatory ordinance. But more importantly, this statement highlights that
the City has never disavowed staff statements that annexation is required.
As detailed in AIRW's opening brief, there was significant public attention
to this project. AIRW 23-24. Yet the city council never suggested flexibility
on annexation. Indeed, to this day, the City still has not said that the city
council supports service without annexation—because the City does not
support it.
The Commission reasonably concluded that when city staff are this
clear and consistent, developers need not pursue lengthy and expensive

7
political processes. The City’s contrary position would paralyze
development. Under the City’s theory, no staff communication short of

formal council action would have meaning. Every interaction with planning
departments would be provisional. Developers would need city council
resolutions before relying on any city position. Although formal council

action certainly binds cities in ways staff statements do not, the Commission
properly recognized that in the practical world of property development,
businesses must be able to rely on clear, repeated statements from senior city

officials about city requirements.

3. The record conclusively refutes the City’s assertion that
negotiations remained open.
The City now contends that negotiations for service without
annexation remained ongoing, characterizing its communications as a
“qualified approval, [rather] than an outright rejection.” Resp. 16. According
to the City, “[t]he door was not entirely closed” because the City’s planning
director, Sofia Nelson, said “please let me know if you would like to discuss
further.” Resp. 17. From this single phrase in a single email, the City attempts

to construct a narrative of ongoing negotiations.
The actual record tells a very different story. Ms. Nelson stated in that
message that the City does “not support a delayed annexation approach.”

2.AR.107 at 3. Indeed, she specifically rejected AIRW’s proposal on
annexation and made clear that “annexation will be required.” Id. So read in
context, her concluding line telling AIRW to let her know “if you would like

8
to discuss further” is hardly an invitation to continue negotiating about
annexation. Id. This is confirmed by later communications expressly telling

AIRW it can either “annex” to connect to the City’s wastewater system or
“develop in the ETJ with a private water treatment facility.” 2.AR.103.
The City also argues that AIRW could have pursued waiver of the

annexation requirement through a development agreement. Resp. 23. This
is a bit rich, considering that AIRW specifically tried to do this and was shut
down. In May 2020, AIRW wrote: “we would like for the City to agree to

work with us on . . . a Development Agreement that would result in the City
providing sewer service. The agreement could not require annexation or
limit land use but other options would be on the table and it would be site

plan specific.” 2.AR.101 at 2. AIRW even offered “substantial financial
contribution by the Developer to help the City with road or utility projects.”
2.AR.101 at 2. But the City’s response could not have been clearer:
“[N]othing that was said on our call yesterday should have been construed
as the City entertaining providing wastewater service to this project in the
ETJ. We have had multiple meetings and communications with [AIRW] on
this topic, have explained our position in detail, and there is no need to
revisit this request as the City’s position remains the same; annexation will
be required in order to receive wastewater service from the City.” 2.AR.101
at 1.
Moreover, even accepting the City’s mischaracterization that its
communications were merely informing AIRW “of a generally applicable

9
annexation requirement” (Resp. 18), the Commission’s finding must stand.
The substantial evidence standard does not require the Commission to adopt

the City’s view of disputed facts. The Commission found that the City’s
communications showed no willingness to waive annexation. 1.AR.66 at 10
(FOF 41). Multiple written rejections over many months amply support this

finding such that it cannot be overturned on the deferential substantial
evidence standard.

4. The City’s position would create an unworkable system that
undermines the Commission’s authority.
The City attempts to minimize its annexation requirement by
characterizing it as merely “an additional procedural step in the process of

connecting to the City’s system—a step that may be waived by the City
Council upon request.” Resp. 14. This characterization is breathtaking in its
audacity. The City calls a requirement that would cost $20 million and force
conversion from residential to commercial development a mere “procedural
step.” But even accepting the City’s framing, the Legislature granted the
Commission—not the City—the discretion to decide what procedural steps

(if any) are required to implement regionalization.
The annexation-waiver process the City demands is anything but
simple. As the City’s own brief reveals, obtaining a development agreement

requires formal application with fees, review by a Development Agreement
Committee, technical review and public notice, a Planning and Zoning
Commission hearing and recommendation, and finally a city council hearing

10
and vote. Resp. 23-24. This process could take months or years with no
defined timeline, no objective standards, and no guaranteed outcome. The

City argues there is “no way of knowing whether the City Council would
delay or waive the requirement without going through the political
process.” Resp. 19. That is precisely the problem—as the Commission rightly

recognized, regionalization does not require developers to pursue an
indeterminate political process when there is no evidence to suggest that it
will end in waiver and thus a feasible connection to an existing wastewater

system.
Moreover, the City’s position fails to recognize that forcing developers
to navigate lengthy political processes is itself a form of denial and renders

service unavailable. See 2.AR.98. When a city erects procedural barriers that
require months or years of lobbying, significant legal and consulting fees,
and uncertain outcomes, it has effectively denied service just as surely as if
it had said “no” outright. The Commission properly recognized that denial
can be accomplished through delay and procedural obstacles, not just
explicit rejection. A city cannot escape its decision to effectively deny service
by creating a theoretical path to service that requires developers to run a
political gauntlet—especially where, as here, that city has given no
indication that navigating the process would lead to a different result.
The City provides no limiting principle for its contrary position. Texas
law authorizes development agreements to supersede various local
requirements. See Tex. Loc. Gov’t Code § 212.172 (authorizing agreements to

11
modify municipal regulations). Under the City’s theory, any requirement
that could theoretically be waived through a development agreement must

be pursued to formal denial before the Commission can find service
unavailable and thus grant a wastewater permit consistent with
regionalization. This would include not just annexation but impact fees,

design standards, and any other condition a city might impose. Cities could
layer endless “procedural steps” between developers and regional service.
This approach would fundamentally undermine the Commission’s

broad authority to implement regionalization through “reasonable
methods.” As AIRW explained in its opening brief, the City’s position would
create a shadow permitting system where state permits depend on

indeterminate local political processes. AIRW 27-28. The Legislature gave
the Commission—not city councils—discretion to determine when regional
service is available. Tex. Water Code § 26.0282. And the Commission is
robbed of its discretion if it must wait indefinitely for developers to navigate
all municipal political processes.
The practical consequences from the City’s position would be
catastrophic and anathema to what the Legislature intended when it vested
in the Commission the discretion to decide when, if ever, to require
connection to an existing wastewater system. Under the City’s view, cities
opposed to development in their extraterritorial jurisdiction could
weaponize regionalization by imposing conditions designed to force
developers into lengthy political processes. Development would be delayed

12
for years while developers lobby city councils. And cities could extract
unrelated concessions by dangling the prospect of waivers. Indeed, that is

precisely what the City is trying to do here: use regionalization to pressure
annexation of a development that it otherwise lacks the legal authority to
control.

B. The City’s argument that the Commission could not consider
the costs of annexation has no basis in law.
The City concedes that “the Commission has the discretion to consider
denial of service, costs, and other relevant factors when following the

regionalization policy.” Resp. 10. Yet the City argues the Commission
abused its discretion by considering the $20 million cost that annexation
would impose on the development. This position contradicts the City’s own

concession and lacks any basis in law.
The City first attacks the $20 million figure as “speculative” and
“hypothetical.” Resp. 10, 25, 27. Not so. This figure derives from additional

city taxes that annexed properties must pay—and there is nothing
speculative about tax obligations. See AIRW 23-24. In addition, there is
substantial cost to being forced to convert the development from residential
to commercial to comply with the City’s land use requirements. 2.AR.107 at
1. This is also not speculative: an independent appraisal computed this $20
million difference between the property’s unincorporated and incorporated
values in part based on land use differences. 2.AR.93 at 2, 16-17. Nor is any
of AIRW’s evidence disputed. The City does not, and cannot, point to any

13
evidence that either the $20 million figure is inaccurate or that the City’s
planned (commercial) zoning for the property would not be financially

punitive. More importantly, the City can point to no statute or rule
establishing specific cost criteria the Commission must consider.
The City relatedly argues that the $20 million is not a cost because “cost

is a real expenditure” rather than reduction in value, and the $20 million
reflects an overall loss in property value. Resp. 26. But this loss in value is
attributable to city taxes, and tax payments are very much a “real

expenditure.” Regardless, even if the $20 million were not a “cost,” it would
still be one of the “other relevant factors” that the City concedes the
Commission may consider. 2.AR.98; see Resp. 10 (admitting that the

Commission may consider “denial of service, costs, and other relevant
factors when following the regionalization policy”).
The City next argues the Commission could not consider costs to
affiliates of AIRW rather than AIRW itself. Resp. 10. This hyper-technical
argument ignores practical reality. As AIRW explained in its opening brief,
AIRW owns the land for the facility while affiliated entities own the land
where residences will be built. AIRW 3-4 & n.1. These entities are all part of
one integrated development project. The Commission understood this, as
did the City. And the City does not cite a single statutory provision,
regulation, or piece of guidance that prohibits the Commission from
considering costs to a development project as a whole rather than parsing
costs among affiliated entities. The Commission correctly rejected the City’s

14
myopia in favor of holistic analysis as part of its charge to implement
regionalization through “reasonable methods.” Tex. Water Code § 26.003.

The City also argues that the Commission cannot consider an
applicant’s property value in the context of regionalization because it does
not consider property value when assessing the impact of a permitted

activity on nearby landowners. Resp. 11-12. That is nonsense. These are
entirely different contexts that have nothing to do with each other. And the
City provides no reason why the factors that the Commission considers

when addressing public comments from nearby landowners about a
permitted use must be the same factors it considers when assessing whether
to require a wastewater applicant to connect to an existing wastewater

system. The fact is, the Legislature delegated to the Commission the
authority to assess regionalization using all “reasonable methods,” and
nowhere prohibited it from considering the applicant’s diminution in
property value due to changes in tax obligations resulting from required
conditions of service as part of that cost. Tex. Water Code §§ 26.003, 26.0282.
It accordingly has discretion to consider property values in this context
when analyzing regionalization.
The City also argues that the Commission’s decision to consider the
costs of annexation when assessing regionalization is inconsistent with the
Commission’s guidance that “effects on property values” in response to
public comments. Resp. 11-12. Not so. First, the webpage has nothing to do
with regionalization. The webpage addresses what issues the Commission

15
may consider with respect to public comments from third parties, not what
the Commission may consider as part of its obligation to determine whether

an existing wastewater system is “available” in the real world. Tex. Water
Code § 26.0282. Second, as explained above, the $20 million figure is driven
by increased taxes, not just an effect on property value.

Next, the City’s argument that connecting to the City’s wastewater
system would cost less than building a new wastewater system ignores the
costs of annexation. Resp. 26. As AIRW demonstrated, while physical

connection costs are similar, annexation imposes an additional $20 million
overall burden. AIRW 24 n.5. The City’s refusal to acknowledge these costs
does not make them disappear. In any event, even if the City were correct

that connection costs to the City were lower than the cost of AIRW’s stand-
alone plant, regionalization does not establish any rules where the lower bid
automatically prevails.
Ultimately, the City admits “the statute does not limit the
Commission’s discretion to consider the cost impacts of the City’s
annexation requirements and development regulations.” Resp. 29. This
concession should end the inquiry. The Commission considered costs within
its discretion, those costs are supported by substantial evidence, and the
City’s nitpicking provides no basis for reversal.

16
C. The City’s other complaints about how the Commission
implements regionalization are baseless.
The City’s assorted other regionalization arguments likewise fail. The

City complains, for instance, that the Commission failed to adequately
consider “encouragement and promotion of the use of regional waste
collection, treatment and disposal systems.” Resp. 11 (citing Tex. Water

Code §§ 26.003, 26.0282). But the Commission encourages and promotes use
of existing systems by directing applicants to request service from nearby
providers and to document those efforts. 2.AR.74 at 77-80. And that is what

AIRW did. The statutory requirement that the Commission “encourage[]”
connection to existing wastewater systems does not mean it must mandate
connection at any cost or in all circumstances. The Water Code directs the

Commission only to use “reasonable methods” to implement
regionalization. Tex. Water Code § 26.003. And forcing developers to
connect in the face of millions of dollars in costs or wholesale changes to

their projects—as the City demands here—is not a reasonable way to
encourage regional systems.2
Relatedly, the City’s argument that the Commission violated the
requirement to use “all reasonable methods to implement” regionalization
reads out the word “reasonable.” Resp. 11. The Commission did use
reasonable methods—it instructed AIRW to coordinate with the City and
seek service, which it did. And when the City demanded unreasonable

2
The City is not a designated regional provider under Tex. Water Code § 26.081 et seq.

17
conditions, the Commission reasonably exercised its discretion to grant the
permit. The City wishes the Commission had subordinated all other

considerations to regionalization and denied the permit, despite the fact that
the application did not violate a specifically applicable state or federal
requirement. See Tex. Gov’t Code § 2003.047(i-2)(2). But that is

fundamentally unreasonable. Moreover, it is contrary to the grant of
discretion to the Commission because it would mandate denial whenever a
facility exists within three miles. That is not the law.

The City lastly protests that regionalization “is not an administrative
or procedural check-the-box step” but rather ensures “that TCEQ does not
rubber-stamp new projects when there is sufficient existing infrastructure.”

Resp. 21. This argument is misplaced since the Commission did not “rubber-
stamp” anything here. The Commission conducted a contested case hearing
over three days, heard from eleven witnesses, admitted over 100 exhibits,
and made detailed findings of fact after an overall application review
process of more than two and half years—all of which followed AIRW’s
nearly year-long effort to obtain service from the City. 4.AR.181. Based on
that voluminous record, the Commission found that although the City has
the capacity to provide service, its annexation requirement enshrined in law
and repeatedly imposed by city staff made that capacity effectively
unavailable to AIRW. This is precisely the type of practical, case-specific
analysis that the Water Code contemplates and that the Legislature
entrusted to the Commission.

18
II. The City’s half-hearted attempts to poke holes in the permit fail.
The trial court correctly rejected all the City’s attacks on the permit’s
technical provisions. That court held that the Commission’s decision must
be reversed “for the following reasons,” all of which related to
regionalization. CR 730-31. It did not agree with any of the numerous other
complaints that the City now recycles on appeal. And the City’s failure to
convince the trial court on these other issues is unsurprising. The
Commission conducted a thorough technical review, made detailed findings
supported by substantial evidence, and properly concluded the permit
protects water quality and complies with all applicable requirements. The

City’s attempts to manufacture error where none exists should be rejected.

A. The City failed to present any evidence that the permit does
not protect water quality.
The City devotes pages of its response brief to reciting water quality

law without identifying any actual error in the Commission’s analysis. Resp.
30-34. The City bore the burden to rebut AIRW’s prima facie showing that
the permit meets all legal requirements. Tex. Gov’t Code § 2003.047(i-1), (i-

2). But it “did not present evidence disputing the accuracy” of the AIRW’s
water quality evidence. 1.AR.59 at 24 (explaining that the City did not
counter AIRW’s evidence “of the [Aquatic Life Use], [Dissolved Oxygen]
determinations, or effluent limits or how such determinations and limits are
not protective of existing uses and wildlife.”).

19
To be sure, the City asserts that it “introduce[d] . . . evidence of
protecting water quality,” but it does not identify or discuss any of this

supposed evidence. Resp. 32. This is unsurprising given that the City failed
to produce a single witness who is either a water quality expert or familiar
with the Texas Surface Water Quality Standards. Without expert testimony

on water quality, the City cannot overcome the detailed evidence from the
Commission’s aquatic scientist Jenna Lueg, water quality modeler James
Michalk, and AIRW’s 50-year expert Paul Price, all of whom confirmed the

permit protects water quality. 2.AR.127 at 3-5; 2.AR.73 at 45; 2.AR.84 at 9.

B. The City’s antidegradation arguments lack any evidentiary
support.
The City’s arguments that the Commission violated antidegradation

principles are all meritless.
First, the City claims “the administrative record indicates that the
Commission failed to conduct the appropriate inquiry into the uses and

criteria for the receiving water.” Resp. 34. Not so. A witness for the
Commission, Jenna Lueg, testified in detail about her antidegradation
review, explaining how she determined uses for each receiving water
segment, applied appropriate dissolved oxygen criteria, and performed both
Tier 1 and Tier 2 antidegradation analyses. 2.AR.127 at 5-10. This is the same
analysis that the Texas Supreme Court recently upheld. See Save Our Springs
All., Inc. v. Tex. Comm'n on Env't Quality, 713 S.W.3d 308, 321-27 (Tex. 2025).
The City introduced no evidence contradicting this testimony.

20
Second, the City faults Lueg for allegedly not considering “the codified
narrative standard for the protection of aesthetic values” and for admitting

“to not always considering what land uses will be around the receiving
water body.” Resp. 34-35. But the permit explicitly prohibits discharges that
would violate aesthetic standards, including visible oil and grease, foam and

froth, and suspended solids. 2.AR.73 at 002. As for surrounding land uses,
Lueg properly focused on existing uses that were in place at the time the
application was filed rather than speculative future uses. Regardless, when

asked about future land use at Patterson Ranch—a nearby, in-progress
housing development on a former agricultural property—she testified that
the permit already had “limits … that should protect human health.”

4.AR.181 at 696.
Third, the City complains that “Lueg’s supporting documentation is
devoid of any mention of narrative standards; criteria protective of livestock
watering, irrigation, or terrestrial wildlife.” Resp. 35. Yet the City presented
no evidence that the permit fails to protect these uses. And the
uncontroverted evidence shows the opposite—the permit protects primary
contact recreation (including ingestion of water), which necessarily protects
less sensitive uses like livestock watering. 2.AR.78 at 23; 2.AR.84 at 13.

C. The City’s nuisance-odor arguments ignore the undisputed
evidence.
The City’s nuisance-odor arguments also fail. The City claims that
realignment of County Road 111 will eliminate the necessary 150-foot buffer

21
between the units producing nuisance odors and the nearest property line.
Resp. 36. See also 30 TAC § 309.13(e)(1) (discussing 150-foot buffer). But the

buffer zone map shows the 150-foot buffer runs from treatment units to the
“Facility Boundary”—not to any road. 2.AR.74 at 0070 (buffer zone map).
The buffer zone does not include any road and does not rely on the presence

of a road to create the required buffer. 2.AR.74 at 0070. Accordingly, even
after the road realignment, the Patterson Ranch property line will still be
more than 150 feet from any nuisance-odor producing units. Compare

2.AR.74 at 0070 (Buffer Zone map) with 2.AR.89 (Site Location and
Discharge Route map depicting “existing CR 110 to be abandoned and
removed”).

The City next argues that the Commission violated Texas Water Code
§ 26.030(b) by not considering effects on a “park” at Patterson Ranch. Resp.
37. But Section 26.030(b) only applies to discharges “into any body of water
that crosses or abuts any park, playground, or schoolyard within one mile of
the point of discharge.” Tex. Water Code § 26.030(b). Janet Sims testified that
there is “[n]o” “evidence of parks, playgrounds, or schools on the Patterson
Ranch currently.” 4.AR.180 at 417. And speculation about future and
unspecified “greenspace” that will still “not [be] a public park” cannot
trigger statutory requirements. 4.AR.180 at 418.

22
D. The City provides no evidence that the permit fails to protect
human health.
The City argues that the permit does not protect human health because

the Commission allegedly failed to consider “context-specific health and
safety implications of the discharge.” Resp. 3, 38. But the City’s entire
argument reduces to speculation about what might happen if there are

“treatment failures or power outages” at some undefined future time. Resp.
3. The City wants “redundant units and storage facilities,” Resp. 3, but its
own witness conceded these are not required by rule. 4.AR.179 at 8-16.

Indeed, two witnesses provided unrebutted testimony that such features
were neither required by rule nor warranted by special site characteristics.
2.AR.124 at 12:10-18; 2.AR.87 at 8:9-11, 20-22.

Moreover, the permit already contains extensive operational
requirements to protect human health. It requires operator certification and
disinfection to meet “criteria established in the [Texas Surface Water Quality

Standards] for the protection of human health and for primary contact
recreational uses.” 2.AR.78 at 21:15-18. The highly treated effluent is not
harmful to humans, even if ingested during recreational activities. 2.AR.78
at 21:4-22; see also 2.AR.84 at 11:1-11. That is why Lueg testified that the draft
permit already has “limits . . . that should protect human health.” 4.AR.181
at 696.
The City lastly complains that the permit relies on “generic permit
language” and “rote assumptions” rather than site-specific analysis. Resp. 3,

23
38. This is an amorphous criticism—and not one that the City argued below.
Regardless, it is meritless, as every TPDES permit includes some general

provisions standard for every permittee.

E. The application was substantially complete and accurate.
The City’s final refuge is to attack the application’s completeness,
despite its failure to identify any legally required information that was
omitted from the application. Resp. 39-40. The Commission found that “[t]he
Application included all required information and was substantially
complete and accurate.” 1.AR.66 at 12 (FOF 62, 64). This finding is supported
by testimony from multiple witnesses, including Gordon Cooper, who

explained that the application “went through both an administrative and a
technical review [that] provided [Executive Director] staff an opportunity to
determine whether the administrative and technical portions of the
application were missing any information.” 2.AR.124 at 10-11.
The City complains that 600 Westinghouse and Jonah Water should
have been listed as co-applicants. But AIRW owns the site where the facility

will be located, making it the proper applicant. 1.AR.66 at 6 (FOF 6). The 600
Westinghouse entity is not an owner of the facility—AIRW owns the facility
site after 600 Westinghouse conveyed it the necessary acreage. 2.AR.167 at
2-3. As for Jonah Water, it has no current responsibility for the facility—its
future operation is contingent on permit transfer in a separate proceeding.
2.AR.113 at 2-3. Moreover, it is within the Commission’s staff’s discretion

24
under 30 Tex. Admin. Code § 305.43(a) to require co-permittees based on
case-specific circumstances, and they chose not to require multiple

applicants in this case.
The City’s remaining complaints about missing maps, population
estimates, and certified letters are makeweight. The application provided all

information that the Commission needed and requested to evaluate the
permit application, including information identifying nearby facilities and
documentation of coordination efforts to satisfy regionalization. 2.AR.78 at

13:4-20. The Executive Director had the opportunity to request additional
information through the notice of deficiency process but reasonably
determined the application was complete. 2.AR.78 at 6:19-21.

P RAYER
The Court should reverse the judgment below and render judgment
for the Commission, AIRW, and the other intervening defendants.

25
Dated: September 19, 2025

Respectfully submitted.

/s/ Andrew B. Davis
Helen S. Gilbert Andrew B. Davis
Texas Bar No. 00786263 Texas Bar No. 24082898
hgilbert@bartonbensonjones.com andrew@lkcfirm.com
BARTON BENSON JONES, PLLC William T. Thompson
7000 N. MoPac Expwy, Suite 200 Texas Bar No. 24088531
Austin, TX 78731 will@lkcfirm.com
Todd Disher
Edmond McCarthy Texas Bar No. 24081854
Texas Bar No. 13367200 todd@lkcfirm.com
Ed@ermlawfirm.com LEHOTSKY KELLER COHN LLP
MCCARTHY & MCCARTHY, LLP 408 W. 11th Street, 5th Floor
1122 Colorado St., Suite 2399 Austin, TX 78701
Austin, TX 78701
Counsel for Intervenor-Defendants
AIRW 2017-7, L.P., 600 Westinghouse
Investments, LLC, and 800 Westing-
house Investments, LLC

26
C ERTIFICATE OF S ERVICE
I hereby certify that on September 19, 2025, I electronically filed the
foregoing with the Clerk of the Court using the eFileTexas.gov electronic
filing system, which will send notification of such filing to the email
addresses denoted on Service Contacts List.

/s/ Andrew B. Davis
Andrew B. Davis

C ERTIFICATE OF C OMPLIANCE
Microsoft Word reports that this brief contains 5,815 words, excluding
exempted text.

/s/ Andrew B. Davis
Andrew B. Davis

27
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.

Andrew Davis on behalf of Andrew Davis
Bar No. 24082898
andrew@lehotskykeller.com
Envelope ID: 105856701
Filing Code Description: Brief Requesting Oral Argument
Filing Description: AIRW Reply Brief
Status as of 9/19/2025 4:36 PM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Patricia Carls 3813425 tcarls@tcarlslaw.com 9/19/2025 4:28:30 PM SENT

William Thompson 24088531 will@lkcfirm.com 9/19/2025 4:28:30 PM SENT

Edmond McCarthy 13367200 ed@ermlawfirm.com 9/19/2025 4:28:30 PM SENT

William Faulk 24075674 cfaulk@spencerfane.com 9/19/2025 4:28:30 PM SENT

John Carlton 3817600 john@carltonlawaustin.com 9/19/2025 4:28:30 PM SENT

Michael Parsons 24079109 michael@carltonlawaustin.com 9/19/2025 4:28:30 PM SENT

Carlota Hopinks-Baul 24094039 chbaul@spencerfane.com 9/19/2025 4:28:30 PM SENT

Helen Gilbert 786263 hgilbert@bartonbensonjones.com 9/19/2025 4:28:30 PM SENT

Kellie E.Billings-Ray Kellie.Billings-Ray@oag.texas.gov 9/19/2025 4:28:30 PM SENT

Sara Ferris sara.ferris@oag.texas.gov 9/19/2025 4:28:30 PM SENT

Colton Halter colton.halter@oag.texas.gov 9/19/2025 4:28:30 PM SENT

Erin K.Snody Erin.Snody@oag.texas.gov 9/19/2025 4:28:30 PM ERROR

Maris Chambers MChambers@spencerfane.com 9/19/2025 4:28:30 PM SENT

Andrew Davis andrew@lkcfirm.com 9/19/2025 4:28:30 PM SENT

Todd Disher todd@lkcfirm.com 9/19/2025 4:28:30 PM SENT

John Carlton john@carltonlawfirm.com 9/19/2025 4:28:30 PM ERROR

Kelli Carlton kelli@carltonlawfirm.com 9/19/2025 4:28:30 PM ERROR

Erin Selvera erin@carltonlawfirm.com 9/19/2025 4:28:30 PM ERROR

Yahaira De Lara ydelara@bartonbensonjones.com 9/19/2025 4:28:30 PM SENT

Jennifer Jamison jennifer.jamison@tceq.texas.gov 9/19/2025 4:28:30 PM ERROR

Bobby Salehi bobby.salehi@tceq.texas.gov 9/19/2025 4:28:30 PM ERROR

Evan Greene evan.greene@oag.texas.gov 9/19/2025 4:28:30 PM SENT
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.

Andrew Davis on behalf of Andrew Davis
Bar No. 24082898
andrew@lehotskykeller.com
Envelope ID: 105856701
Filing Code Description: Brief Requesting Oral Argument
Filing Description: AIRW Reply Brief
Status as of 9/19/2025 4:36 PM CST

Case Contacts

Evan Greene evan.greene@oag.texas.gov 9/19/2025 4:28:30 PM SENT

Michael Cotton michael@lkcfirm.com 9/19/2025 4:28:30 PM ERROR

Skye Masson Skye.Masson@georgetowntexas.gov 9/19/2025 4:28:30 PM SENT

Kelsey Parker kparker@spencerfane.com 9/19/2025 4:28:30 PM SENT