ELR Citation: ELR 20106
No(s). 03-1111 (Tex. Jun 9, 2006)

The court holds that while §11.122(b) of the Texas Water Code significantly restricts the issues that may be reviewed in a contested-case proceeding, it does not altogether preclude one when a proposed water rights amendment requests a change in use but does not seek to increase the amount of water appropriated or the rate of diversion. After a city sought to amend its water use certificate so that it could supply untreated water for industrial use, another city opposed the application and sought a contested-case hearing. Even though the application did not request a change in the amount of water or rate of diversion, the opposing city alleged the amendment would have serious adverse environmental and socioeconomic consequences. The state agency, however, concluded that §11.122(b) mandated approval of the amendment without a contested-case hearing. But depending upon the particular amendment application, a hearing may be necessary to allow the agency to assess certain limited criteria other than the application's effect on other water rights holders and the on-stream environment that the state legislature considered necessary to protect the public interest, including assessment of water conservation plans, consistency with the state and any approved regional water plans, and groundwater effects. The court, therefore, remands the case so that the agency can determine whether a contested-case proceeding would be appropriate in light of this interpretation.