Jeff Civins in Law360: Texas High Court Could Complicate Water Permitting Fights


The Texas Supreme Court will hear arguments Thursday over whether the state’s environmental agency has the authority to decide internally who can challenge water discharge permits, in a case closely watched by businesses that say the decision could potentially add significant cost and delay to the permitting process.

In two consolidated cases, the court will consider whether the Texas Commission on Environmental Quality overstepped its bounds when it told the city of Waco and interest group the Bosque River Coalition they didn’t qualify as “affected persons” with standing to challenge amendments to wastewater discharge permits filed by two central Texas dairies. An Austin appeals court said the agency should have held an evidentiary hearing to evaluate the potential impact of the dairies’ water runoff on Waco and the coalition before shutting them out of the process.

But contested case hearings in Texas are more like minitrials that can cost applicants up to $1 million and delay permitting for close to a year in some cases, and if the appeals court ruling stands, businesses around the state could see an increase in opposition to their water permits from groups using the hearing process to delay projects, attorneys say...

Jeff Civins of Haynes and Boone, LLP, an adjunct environmental law professor at the University of Texas School of Law, said the ruling as it stands won’t open the floodgates to force hearings on every permit applicant. But it’s a big deal for any applicant to go through a hearing, and to the extent the court lowers the threshold to allow more permit opponents, the regulated industry is likely to encounter significant delays, he said. 

Excerpted from Law360, February 25, 2013. To view full article, click here (subscription required).

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