## Facts

- The Upper Guadalupe River Authority (UGRA) supplied municipal water to the City of Kerrville, historically using groundwater and later relying primarily on Guadalupe River surface water under an earlier permit.
- UGRA applied to the Texas Natural Resource Conservation Commission (Commission) for a second surface-water permit (Permit No. 5394) to divert additional Guadalupe River water for municipal supply.
- UGRA proposed using an aquifer storage and recovery (ASR) system: diverting surface water, using part immediately, and injecting the remainder into the Hosston–Sligo aquifer for later recovery instead of building additional surface storage.
- After a contested-case hearing, the Commission adopted the hearing examiner’s proposal and issued the permit with adjustments, including reduced diversion amounts and flow-protection conditions.
- Texas Rivers Protection Association (TRPA) and William Perkins challenged the permit, arguing the Water Code did not authorize aquifer storage of appropriated surface water, that injected water would become groundwater subject to the rule of capture, and that key findings (need, feasibility, and conditions) lacked substantial evidence.
- The district court affirmed the Commission’s order, and TRPA and Perkins appealed.

## Issues

1. Whether the Texas Water Code authorizes the Commission to issue a surface-water appropriation permit allowing storage of diverted state surface water in a natural aquifer as part of an ASR project for municipal use.
2. Whether potential reclassification of injected water as groundwater, and exposure to the rule of capture, defeats the Commission’s authority or renders the permit unlawful.
3. Whether substantial evidence supported the Commission’s findings on municipal need, ASR feasibility, and the permit’s conditions and modifications from the application.
4. Whether TRPA and Perkins had standing to seek judicial review of the permit decision.

## Decision

- The court affirmed the district court’s judgment and upheld the Commission’s issuance of Permit 5394.
- The court held the Water Code’s authorization to appropriate and store surface water for municipal beneficial use permitted underground storage in a natural aquifer as a storage method within the permit.
- The court rejected the argument that possible groundwater characterization or the rule of capture stripped the Commission of authority, treating beneficial use as the controlling focus.
- The court held the Commission’s findings and imposed conditions were supported by substantial evidence, and the agency could modify the permit from the application consistent with the record and statutory requirements.
- The court concluded TRPA and Perkins had standing based on alleged harms to their interests relating to the Guadalupe River.

## Legal Principles

- Statutory authority to appropriate and store state surface water for municipal beneficial use can include storage in a natural aquifer through ASR when the storage is tied to the permitted beneficial use.
- Potential interaction with groundwater doctrines, including the rule of capture, does not by itself invalidate a surface-water permit or negate the permitting agency’s surface-water jurisdiction where the permitted objective remains beneficial use.
- Under substantial-evidence review, courts uphold agency determinations on water-supply need, technical feasibility, and permit conditions when the administrative record contains more than a scintilla of supporting evidence and the court does not reweigh conflicts in expert testimony.
- A permitting agency may impose protective conditions and adjust requested amounts in issuing a permit, so long as the resulting order is supported by evidence and consistent with statutory criteria.

## Conclusion

The court sustained a surface-water permit authorizing aquifer storage and recovery as a lawful storage technique for municipal beneficial use, held that groundwater-related concerns did not negate the agency’s authority, and affirmed the permit based on substantial evidence supporting need, feasibility, and protective conditions.


Tex. Rivers Prot. Ass'n v. Tex. Nat. Res. Conservation Comm'n, 910 S.W.2d 147 (Tex. App.—Austin 1995, writ denied)