Thank you for sharing!

Your article was successfully shared with the contacts you provided.
This appeal concerns whether a dispute about the Texas Natural Resource Conservation Commission’s (the TNRCC’s) permit-issuing process is ripe for judicial review by the district court. The Bosque River, a tributary of the Brazos River, is located northwest of the city of Waco. Segments 1226 and 1255 of the North Bosque River have been listed as having impaired water quality due to high levels of nutrients. See 30 Tex. Admin. Code �� 307.1-.10 (2001) (Tex. Natural Res. Conservation Comm’n, Tex. Surface Water Quality Standards). Near its point of confluence with the Brazos River, the Bosque River forms Lake Waco, which provides the sole source of drinking water for approximately 150,000 people in and around Waco; the lake is also used extensively for recreational activities. The water quality of Lake Waco, which is a “sink” for any dissolved pollutants in the Bosque River, is likewise impaired. Numerous dairy operations are located northwest of Waco in Erath County in the Bosque River watershed. The dairies must seek confined animal feeding operation (CAFO) permits from the TNRCC because the agricultural waste from their operations, which becomes dissolved in runoff or is otherwise discharged, ultimately discharges into the river.

This dispute arose when the TNRCC promulgated an order in February 2000 regulating future permits for CAFOs. Both the City of Waco (the City) and the Texas Association of Dairymen (the Dairymen) filed actions for declaratory judgments attacking the order. The TNRCC responded by withdrawing the order and moving to dismiss both actions as moot and not ripe. The City amended its petition to seek declaratory relief that the TNRCC’s interim policy of continuing to issue any permits violates state regulations. The district court dismissed the actions. Both the Dairymen and the City appealed the dismissal of their suits for declaratory relief. However, following oral argument, the Dairymen voluntarily dismissed their appeal. *fn1 The only remaining issue before us is the ripeness of the City’s suit for declaratory relief. *fn2

Specifically, the City seeks a declaration that the TNRCC may not grant any additional permits for CAFOs in the Bosque River watershed until it complies with certain federal regulations that have been incorporated into state law. See 30 Tex. Admin. Code � 305.538 (1999) (Tex. Natural Res. Conservation Comm’n, Prohibitions for TPDES Permits) (“no permit may be issued under the conditions prohibited in 40 Code of Federal Regulations � 122.4, as amended”). The City maintains that it seeks resolution of a pure question of law: whether section 122.4(i) operates to bar all new permits until the TNRCC has developed an implementation scheme to reduce pollution in the two impaired segments of the Bosque River. The TNRCC contends that its compliance with the regulations can only be determined in the context of a permit application on the facts presented by a particular application. Because we agree with the City that its request for declaratory relief presents a determination of law, we reverse the district court’s order of dismissal and remand this cause for consideration on the merits.

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

Premium Subscription

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now

Team Accounts

Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now

Bundle Subscriptions

Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now

General Counsel Conference East 2023

October 03, 2023
Brooklyn, NY

General Counsel Conference addresses trends in regulatory, data protection, tech management, legal operations, and leadership.

Learn More

New York Legal Awards (NYLA) 2023

October 05, 2023
New York, NY

The New York Law Journal honors attorneys and judges who have made a remarkable difference in the legal profession in New York.

Learn More

GlobeSt. NET LEASE Fall 2023

October 16, 2023 - October 17, 2023
Los Angeles, CA

This conference brings together the industry's most influential & knowledgeable real estate executives from the net lease sector.

Learn More

Finance/Corporate Trust Lawyer - CT or Remote

We are seeking a lawyer with a minimum of four years of experience in transactional work to join our well-established, nationally renowned C...

Apply Now ›


We are seeking an attorney to join our commercial finance practice in either our Stamford, Hartford or New Haven offices. Candidates should ...

Apply Now ›

FINANCE & REAL ESTATE ASSOCIATES - Connecticut Preferred; Remote will be considered

Shipman & Goodwin LLP is seeking two associates to expand our national commercial real estate lending practice. Candidates should have ...

Apply Now ›

Chiesa Shahinian & Giantomasi

New Jersey Law Journal


View Announcement ›


New Jersey Law Journal

Riker Danzig deeply mourns the passing of our esteemed partner, dear friend and beloved colleague, Marc D'Angiolillo.

View Announcement ›

Eisenberg, Rothweiler, et.al


Eisenberg Rothweiler

View Announcement ›