Texas Rivers Protection Association v. Texas Natural Resource Conservation Commission

910 S.W.2d 147 (1995)

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Texas Rivers Protection Association v. Texas Natural Resource Conservation Commission

Texas Court of Appeals
910 S.W.2d 147 (1995)

Facts

The Upper Guadalupe Water Authority (UGWA) obtained a permit from the Texas Natural Resource Conservation Commission (the commission) (defendant) for the diversion of 3,603 acre-feet of water from the Guadalupe River via a reservoir to serve the City of Kerrville’s municipal water needs. A decade later, the UGWA sought a second permit for an additional 4,760 acre-feet of river water. The UGWA planned to inject some of the new water into an underlying aquifer as part of an aquifer storage and recovery (ASR) project that would avoid the cost of an additional reservoir and the loss of water via evaporation that occurs with above-ground storage. After hearings, the commission granted the new application. The Texas Rivers Protection Association (the association) (plaintiff) challenged the permit on multiple grounds, including that the commission lacked legal authority under the state’s water code to issue the permit because (1) the ASR water storage method would recharge the aquifer and not just apply the water toward direct beneficial use, (2) the commission had no statutory control over groundwater, which is what the injected water would become, and (3) the water would become subject to the rule of capture—the right of landowners to pump water beneath their property. UGWA responded that the purpose of the ASR water was its beneficial use for the public that the incidental and temporary recharge of the aquifer did not change the ASR water’s primary purpose. Likewise, it argued that storage in the aquifer was an appropriate and efficient storage technique and the fact that the water might be subject to capture did not change its purpose of providing beneficial water use. The commission agreed with UGWA, as did the district court. The association appealed to the Texas appellate court.

Rule of Law

Issue

Holding and Reasoning (Kidd, J.)

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