Texas Supreme Court Hears Oral Arguments in Critical Water Quality Case

by Nathan Vasser

The Supreme Court of Texas heard oral argument on October 1, 2024 in a case that carries implications for both deference to the Texas Commission on Environmental Quality’s (“TCEQ’s”) discharge permitting as well as to underlying antidegradation requirements administrated by TCEQ, and pursuant to the Clean Water Act.

The case, Save Our Springs Alliance, Inc. v. Texas Commission on Environmental Quality and the City of Dripping Springs, asks whether TCEQ’s decision in issuing a Texas Pollutant Discharge Elimination System (“TPDES”) permit to the City of Dripping Springs was in violation of the antidegradation rules administered by the state agency. After TCEQ issued the permit, it was administratively appealed to Travis County District Court, where the judge opined that allowing an increase in certain nutrient loadings would “turn the Clean Water Act upside down,” and reversed the TCEQ permitting decision. On appeal at the El Paso Court of Appeals, the appellate justices reversed, finding that TCEQ followed applicable law in supporting the permit.

On the ultimate appellate stage, justices’ questions circled around topics tied to EPA’s withdrawal of its initial objections on the permit and whether a federal guidance applied to state policy in asking whether the anti-degradation standard of no greater than a de minimis lowering of water quality was met. Counsel for TCEQ and the City of Dripping Springs repeatedly drew attention to the rule that asks whether, broadly speaking, water quality would be degraded, rather than focusing on particular parameters that are impacted by the discharge. By using comparisons to blood oxygen levels, Dripping Springs’s counsel noted that a few points’ drop in blood oxygen levels does not result in overall health decline. By extension, counsel argued that in the antidegradation context, whether discussing dissolved oxygen or phosphorous levels, a numeric change does not necessarily equate to decline in overall stream health.

With respect to the influence of the EPA decision on the matter, Save Our Springs’s attorneys noted that EPA’s withdrawal of its opposition to the permit occurred prior to the development of evidence at the State Office of Administrative Hearings and that, consequently, it could not have known the full extent of numeric impacts as testified by witnesses at such hearing. TCEQ and Dripping Springs’s side held that EPA had the full administrative record at its disposal, including TCEQ’s technical memoranda in support of issuing the permit, and also acknowledged that the City accepted a more stringent permit than was originally requested.

Although the question of substantial evidence arose a few times throughout the argument, the questions and presentation veered away from deference-based arguments, and instead emphasized governing language for Tier 2 antidegradation reviews. The key question is whether the justices are inclined to accept Save Our Springs’s contention that the de minimis standard should equate to a numeric change, or whether the Court will agree with TCEQ’s determination that water quality, on the whole, is protected, despite alterations to particular parameters. A decision is anticipated in 2025.

Nathan Vassar is a Principal in the Firm’s Water, Compliance and Enforcement, Litigation, and Appellate Practice Groups. If you have any questions or would like additional information related to this article or other matters, please contact Nathan at 512.322.5867 or nvassar@lglawfirm.com.