A long-fought court battle was finally put to rest last week when the National Wildlife Federation declined to appeal a Houston appeals court decision rendered in January. The unanimous opinion affirmed the issuance of the Lake Ralph Hall reservoir permit and resolved decades-old questions regarding water conservation requirements for interbasin transfers in Texas.
The Austin-based law firm Lloyd Gosselink Rochelle & Townsend, P.C., successfully argued on behalf of the Upper Trinity Regional Water District that what is known as the “highest practicable” water conservation standard for interbasin transfers of surface water required a case-by-case analysis of an applicant’s conservation capabilities within its jurisdiction. NWF had argued that the law required the development of a standardized test to be applied to water developers regardless of their individual circumstances.
Jason Hill, a principal at Lloyd Gosselink and an attorney on the Lake Ralph Hall permitting legal team, says the Houston court’s decision helped resolve a lingering question posed by water developers for 20 years——will an applicant ever be able to properly establish and then satisfy the evidentiary burden related to the stringent conservation requirements attached to interbasin transfers of surface water across Texas?
“There has been a debate for several years about the ‘highest practicable’ standard and what it truly means,” Hill said. “The 1st Court of Appeals’ decision in the Lake Ralph Hall case finally and affirmatively addresses the conservation standard in the interbasin transfer statute and, as a result, it should help resolve a great deal of the regulatory uncertainty for many large-scale water development projects in Texas.”
Water planners have grappled with the stringent water conservation requirement imposed on interbasin transfers since it was adopted by lawmakers in 1997. “Upper Trinity Regional Water District’s Lake Ralph Hall permit application was the first significant project to be subjected to the heightened water conservation standard included in the interbasin transfer statute,” said Martin Rochelle, chair of Lloyd Gosselink’s Water Practice Group. “Lake Ralph Hall is the first major reservoir authorized by the Texas Commission on Environmental Quality in a generation and my firm is grateful for the opportunity to have assisted the District in securing this important permit,” Rochelle added.
The 1st Court of Appeals in Houston determined that an applicant’s conservation measures must include the highest levels of water conservation measures that are capable of being put into practice and carried out successfully within its jurisdiction. The Court agreed that Upper Trinity satisfied that standard. Last Monday was the deadline for appealing the Houston Court’s decision to the Supreme Court of Texas. NWF did not appeal, making the Court opinion final.