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.
