In City of Waco v. Texas Nat. Res. Conversation Comm'n, 83 S.W.3d 169 (Tex. App.--Austin 2002, no pet.), the Texas Natural Resource Conservation Commission (TNRCC) determined that waste produced by confined animal feeding operations (CAFO) had impaired the water quality of stretches of the North Bosque River. 83 S.W.3d at 173.
Under the Federal Clean Water Act, once the TNRCC made this determination, it was required to develop a Total Maximum Daily Load, which is a plan for assimilation of the pollutants that are present in the water. Id.
The City of Waco sued the TNRCC seeking a declaration that the TNRCC could not grant any additional permits for CAFOs in the Bosque River watershed until it complied with the federal regulations that had been incorporated into state law. Id. at 172-73.
In response to the TNRCC's plea to the jurisdiction, the City argued that it sought resolution of a pure question of law: whether the federal regulations operated to bar all new permits until the TNRCC developed an implementation scheme to reduce pollution in the two impaired segments of the Bosque River. Id. at 173.
The TNRCC argued that the City's suit would not be ripe until the TNRCC issued a specific permit; however, the TNRCC admitted that its interim policy was to continue to grant new permits as long as additional discharge would not worsen the environmental status quo of the impaired river. Id. at 174-75.
The Austin court concluded that the question of whether the federal regulations operated to prohibit the TNRCC from approving any new discharge permits until it adopted the necessary pollution-reduction measures presented a purely legal inquiry. Id. at 177.
The court noted that the purely legal question would not benefit from the development of additional facts in connection with a specific permit application. Id.
The court further concluded that the facts had sufficiently developed as between TNRCC and the City such that the dispute was not hypothetical. Id.