### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-07-00699- CV

The City of Au stin, App ellant

v. Texas Com m ission on En vironm ental Quali ty and KBDJ, L.P ., Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 98TH JUDICI AL DISTRICT NO. D-1 -GN-0 5-0 0421 7, H ONO RAB LE MARGARET A. CO OP ER, JUDGE P RESIDING

O P I N I O N Appellant, t h e C i t y of Austin, filed suit ag ainst the Texas Commi ssion on Environmental Quality , challeng ing the Commi ssion’s approva l of a water pollution abate ment plan filed by KB DJ , L .P. rela ting to activities aff ecting the Edwar ds Aquifer

. The district court enter ed judgme nt in favor of the Commi ssion and KB DJ

. We hold that t h e ef fe ct i ve date of the C o mmissi on’s decision was not tolled by the City ’s filing a motion to overturn and, t h er ef o re , the City failed to file suit within 30 day s afte r the eff ective dat e o f t h e Commi ssion’s decision

as require d by Texas Water C o d e s ection 5.351(b). Consequently , we vaca te the district court’s judgme nt ag ainst the City and dismiss the Cit y ’s suit for wa nt of jurisdiction.Factual an d Procedural Background KB DJ proposed to construct a limestone quarr y pit in Hay s County within the

rec harg e z one of the Edwards Aquifer

. On December 1, 2003, KB DJ submitt ed an application to the Commiss ion for appr oval of its water pollution abatement plan (WPAP). See 30 Tex. Admin. Code § 213.5(b) (2009) (re quired contents of WP AP). On October 28, 2005, the executive direc tor of the Comm ission approve d the WP AP application, subject to the standard conditions and specia l conditions set out in the written decision. See id. § 213.4(a) (2009) (WPAP to be revie wed 1 and appr oved by

executive direc tor). On November 21, 20 0 5 , the City filed with the Commi ssion a motion to overturn the executive direc tor’s decision. See id. § 50.139(b) ( 2009) (re quiring that motion to overturn be fi l ed within 23 day s afte r date that notice of executive direc tor’s action is mailed). The City and other af fe ct ed persons who also filed motions to overturn submitt ed supplemental briefing to the Commi ssion, and one of the aff ecte d persons filed an aff

idavit that had not been in the rec ord at the time of the executive dire ctor’s O ctober 28 decision. On Fe bruar y 3, 2006, having considere d the written filings, oral argument, and response s to questions during a public meeting , the Commi ssion denied the City ’s motion to overturn as we ll as the other a ffe cted pe rsons’ motions.

The executive direc tor had orig inally approve d the WP AP application on J une 22, 2004. 1 Howeve r, ce rtain af

fec ted par ties (not including the City ) filed suit in Travis Count y district court chal l enging the decision. The district court on September 19, 2005, reve rsed the approva l of KB DJ ’s WP AP based on the lack of substantial evidenc e of the “80% reduc tion of the incre mental loading of total suspended s olids” and “that there is no rea sonable and prac ticable alternative to sealing the [rechar g e] features.” During the following month, KB DJ submitt ed supplemental filings to the executive direc tor, and the executive direc tor conclude d in his October 28, 2005 decision that the supplemental filing s sufficiently addre ssed those two issues.

2The C i t y fi l ed suit ag ainst the Commi ssion on Fe bruar y 23, 2006, challeng ing the approva l of KBDJ’s WP AP. On No v em b er 13, 2007, the di strict court entered judgment that the Commi ssion’s decision be a ffirme d.

T h e C ity appea ls, asser

ting that (1) the Commi ssion did not have jurisdicti o n t o 2 consider cer

tain supplemental information filed by KB DJ , (2) the C o mmissi on failed to provide aff ecte d persons with proper notification and opportunity to participa te, and (3) cer tain conclusions made in the Oc tober 28, 2005 de cision were not supported by substantial evidence

. I n addition to contesting the City ’s points on appea l, the Commi ssion and KBD J co n t en d that the City failed
to timely seek judicial revie w of the Commi s s i on’s decision and, there fore , the City ’s lawsuit should be dismiss ed for want of jurisdict i o n. We will addre ss this issue befor e proce eding to the merits of the City ’s appea l. See Texas Ass’n of Bus. v. Texas Air Control Bd. , 852 S.W .2d 440, 443 (Tex. 1993) (consider ing matter of trial court’s juris d ic ti o n befor e rea ching merits of case , as subjectmatter jurisdiction is essential to authority of cour t to decide c ase)

.

Jurisdi ction over the City’s Lawsui t

The Commi ssion and KB DJ contend t h at t h e City ’s lawsuit is untimely

. Section 5.351(a) of the Texas Water Code provides for judicial revie w of a ruling , order , decision,

or other act of the Commi ssion. Tex. Water Code Ann. § 5.351(a) (West 2008). Section 5.351(b)

Th e o t h er aff

ecte d persons who filed motions to overturn the executive direc tor’s 2 October 28, 2005 decision—Ne ighbor s Org anized to Protect the Environment, I nc. (an org anization of Hay s County homeowner s and landowner s), J ohn Sikoski (whose homestead is near the proposed quar ry p i t), and Anne Ashmun (also an owner of near by land)—a lso soug ht judicial revie w in district court and wer e parties to this appea l. Howeve r, t hese app el lants filed unopposed motions to dismi ss their appe als, which this Court has g rante d. 3states: “A person aff ecte d by a ruling , order , or decision of the commission mu s t fi l e his petition [for judicial revie w] within 30 day s afte r the eff ective date of the ruling , order , or decision.” Id. § 5.351(b). There is no dispute that the City did no t fi l e s u i t wi t h in 30 day s afte r the executive direc tor’s Oc tober 28, 2005 de cision. Effective date of exe cutive dire ctor’s dec ision The City argues that it complied with the 3 0 -d ay requirement based on the

exe cu t i v e direc tor’s decision not being “ef fec tive” until the Commi ssion overr uled the City ’s motion to overturn. See id. (30-da y period comm en ce s on decision’s “ef fec tive date” ). The City filed its orig inal petition in district court within 30 day s of the Commi ssion’s Fe bruar y 3, 2006 order denying the City ’s motion to overturn.

This Court has held that a plaintiff’s failure to comply with section 5.351(b) deprive s the trial co u rt o f j u ri sdiction over the plaintiff’s petition for judicial revie w. See W est

v. Texas Comm’n on Envtl. Quality , 260 S.W .3d 256, 263 (Tex. App.—Austin 2008, pet. denied)

. I n W est , this Court also held that the 30-day period commence d when the executive direc tor signe d the re levant orde r. See id. at 260. Howeve r, in so holding, this Court relied on se ction 50.135 of 3 the C ommissi on’s ru l es , see id. , which provides that an approval of the C ommissi on “is eff ective when signe d by the executive direc tor,” unless otherwise speci fi ed, see 30 Tex. Admin. Code

This Court issue d i t s opinion in W est v. Texas Commission on Environmental Quality , 3 260 S.W .3d 256 (Tex. App.—A u stin 2008, pet. denied), on J uly 31, 2008, which was subsequent t o both the executive direc tor’s Dec ember 9, 2005 decision in that case and his October 28, 2005 decision in this case. 4§ 50.135 (2009). Chapter 50 of the rules applies g ener ally to applications befor e the Commi ssion. 4 See id. §§ 50.1 0 2 , . 1 3 1 (2009). The ex ecutive director in this case was acting in acc ordanc e with chapte r 213 of the Commi ssion’s rules, which specific ally perta ins to “ac tiviti es having the potential for pollut ing the Edwar ds Aquifer .” See id. § 213.1 (2009). There is no provision in chapte r 213 that expressly provides for when the “ef fec tive date” of an executive direc tor’s action occur s, or that expressly makes sec tion 50.135 applicable. Although chap t er 213 does not define a decision’s eff ective date, chapte r 213 i n d icates that the executive direc tor’s approva l is the rele vant action g overning the appli ca n t ’s subsequent obliga tions and deadlines. Under these Edwar ds Aquifer rules, no p erson may beg in construction of any activity that has a regulated rela tionship with the Edward s Aquifer until the person files the appropr iate appli ca t i o n and the executive direc tor revie ws and approve s the application. See id. §§ 213.4(a) (1), .23(a) (1) (2009). The City is corr ect that chapte r 213 authorizes

an ap p l i cant or aff

ecte d person to file a motion to overturn with the Commi ssion. Howeve r, such m o tion is subject to section 50.139(d), see id. §§ 213.1(3), .20(c) (2009), which states that “[ a]n action by the executive direc tor

. . . is not aff ecte d by a motion to overturn filed under this section unless expressly order ed by th e co m m i s s i o n , ” id. § 50.139(d). I t follows, then, that the Commi ssion’s consideration of and ruling on a motion to overturn will not aff ect the eff ectivene ss of the executive direc tor’s d ec i s i o n u n l es s so order ed by the Commi ssion. In this case , the

The primar

y issue in W

est was whether the appellant’ s application wa s a conte sted ca se, 4 in which case the Administrative Procedur e Act (APA), not the water code , wo u l d go vern judicial revie w of the Com m i s s i o n ’s d ecision. See 260 S.W .3d at 260-62; see also generally Tex. Gov’t Code Ann. §§ 2001.001-.902 (West 2008 & Supp. 2009) (APA). The City conce des that this case is not a c ontested ca se and, the ref ore, tha t the water

code g overns, not the APA. 5Commi ssion has not m ade any statement that could be construed to alter the eff ectivene ss of the executive direc tor’s dec ision.

I n addition, chapte r 213 sets deadlines based on the ex ec u t ive direc tor’s action,
not based on any revie w and approva l by the Commi ssion. Chapter 213 provides that the executive direc tor’s approva l of an Edwar ds Aquifer plan “will ex p i re t wo y ear s afte r the date of initial is suance ,” with the possibility of extensions. Id. §§ 213.4(h), 213.23( g ). Converse ly , there

are no compliance timelines in the Edwards Aquifer rules tied to the Commissi on’s consider ation of a motion to overturn.

The City contends that this case is simil ar to Gree ning v. Texas W ater Commission , No. 3-92-285- CV (Tex. App.—Austin Sept. 16, 1992, no writ) (not desig nated for publication). I n Gree ning , the Commi ssion issued an order on August 9, the appellant filed a motion for rehe aring

on Aug ust 20, the Commi ssion denied the reque st for rehe aring on September 18, and the appellant filed his suit in district court on October 18. This Court held that the appellant satisfied water code section 5.351 beca

use he filed suit within 30 day s of the date his motion for rehe aring was overr uled. The City argues that the same analy sis applies here

. Howeve r, in Gree ning , differ ent administrative rules applied, and those rules express l y s t at ed both that a petition for judicial revie w could be filed within 30 day s afte r an order beca me “fina l” and that an order beca me final on the date the motion for rehe aring was overr uled. Neither rule applies here

. The absenc e of such rules operates ag ainst the City

. Where, as here , the applicable rules indicate that the executive direc tor’s decision is eff ective upon its issuance, for this Court to hold that the filing of a motion to overturn postpones that eff ective da te would re quire that the r ules so state, as wa s the ca se in Gree ning

.

6The City also relies on the lang uag e of the executive direc tor’s Octo b er 2 8 , 2 0 05

decision, which provides that “KB DJ or a person aff ecte d may file wi t h the chief cler k a motion
to overturn the Ex ecutive Direc tor’s final action on this Edwar ds Aquifer WP AP.” Acc ording to the City , this langua g e dire cts rec ipients to take furthe r ac tion—file a motion to overturn—in order to bring the administrative matter to con cl u s i o n . However, contra ry to the City ’s rea ding, the cited lang uag e does not dir ect the parties to e x tend the administrative proce ss, a nd does not include any

asser tion re gar d i n g a motion to overturn’ s impact on the decision’s eff ectivene ss. Rather, the cited lang uag e mere ly informs the parties what administrative avenue s rema in available

. I t does not speak at all to the availability of judicial revie w or the applicable deadline for seeking judicial revie w. The fac t that an avenue for administrative revie w was op en d id not fore close 5 judicial revie w also being available , and the fac t that admin istrative revie w was soug ht did not fore close j u dicial revie w cea sing to be available

. See Heat Energy Advanc ed Tech., Inc. v. W est Dallas Coalit ion for Envtl. Justice , 962 S.W .2d 288, 290-91 (Tex. App.—Austin 1998, pet. denied) (re cog nizi ng that, depending on applicable statutes and rules, judicial-r eview timetable can e x pire befor e administrative reme dies have been exhauste d). The lang uag e of the executive direc tor’s decision neither

addre sses nor impacts the City ’s dea dline for se eking judicial revie w. The City contends that beca use its first opportunity to comment upon supplemental filings by KB DJ was during th e m o t i o n to overturn proce ss, the executive direc tor’s decision could not have been eff

ective prior to the Commi ssion ’s co n s i d er ation of the City ’s comments.

I n W est , this Court observe d that “the Commi ssion’s notice does not fully explain the rang e 5 o f options available to a person try ing to protest an application pending befor e the Commi ssion, much less the impact of

eac h available option.” 260 S.W .3d at 262 n.7.

7Howeve r, the City does not a lleg e that the executive direc tor’s ac ting a bsent the City ’s re sponsive b ri efing was a violation of the applicable statutes and rules. Moreove r, this Court has previousl y observe d that an ag ency ’s order may become eff ective prior to the final order en t er ed i n t he administrative proce ss. See id. at 2 9 2 -9 3

. Gi ven that the Commi ssion ref used to modify the executive direc tor’s decision afte r its revie w of the subsequently filed documents, we decline to hold that the filing of those documents was sufficie nt to postpone the decision’s eff ectivene ss, absent any statute, rule, or decla

ration by the Commi ssion to that eff ect. See 30 Tex. Admin. Code § 50.139(d). We hold that, when a decision is issued by the executive direc tor under chapte r 213

o f t h e C o m m i ssion’s rules, section 5.351 of the water code require s a petition for judicial revie w contesting that decision to be filed within 30 day s of the date of is s u an ce of that decision, unless the Commi ssion expressly stay s th e effective date of the decision. See Tex. Water Code Ann. § 5.351(b); 30 Tex. Admin. Code § 50.139(d); see also Public Util. Comm’n v. Gulf S t a t es Utils. Co

. , 809 S.W .2d 201, 207 (Tex. 1991) (apply ing defe renc e to ag ency ’s interpre tation of its own rules)

.
Judicial rev iew of denial of motion t o overturn Next, the City argues that, even if the ex ec u t i v e direc tor’s decision was eff ective

on the date it was i s s ued, the City complied with water code section 5.351’s 30-day require ment beca use t h e d ecision for which the City seeks judicial revie w is the Commi ssion’s overr uling the City ’s motion to overturn.

Acc ording to the City , beca use it is undisputed that the City filed suit within 30 day s of the Commission’s denial of t he mot ion to overturn, “this Court unquestionably has jurisdiction

8over t h e City ’s appea l of the Commi ssion’s denial of the City ’s motion for rec onsideration under

Texas Water Code § 5.351.” Howeve r, the Tex as S upreme Court has stated that administrative order s are g ener ally final and appealable if they impose an obligation, den y a ri ght, or fix some leg al rela tionship as a consummation of the administrative proce ss. See Texas-New Mex ico Power Co. v. Texas Indus. Energy Consumers , 806 S.W .2d 2 3 0 , 232 (Tex. 1991) (quoting Sierra Club v. United States Nuclear Re gulatory Comm’n , 862 F.2d 222, 225 ( 9th Cir. 1988)). The Commi ssion’s denial of the motions to overturn does not establish any rig hts or obliga tions. The substance of the Commiss ion’s denial, in its entirety , is as follows:

THEREFO RE, BE I T DECI DED BY T HE TEXAS COMMI SSI ON ON ENVI RONMENTAL QUAL I TY that: T h e M otion to Over turn filed by Anne Ashmun; t h e Motion to Over turn filed by Neig hbors Org anized to Protect the Environment and J ohn Sikoski ; and the Motion for Reconsider ation filed by the City of Austin have be en DEN I ED.

The Commi ssion’s dec is io n c onstitut es mere ly a ref usal to overturn or otherwise modify the decision
t h at did establish KB DJ ’s rig hts and obligations. The executive direc tor’s decision consists of nine pag es, imposes nine specia l conditions and eig hteen standard conditions, and provides that KB DJ ’s W PAP is approve d subject t o those stated conditi ons. I t is the conditi ons set forth in the executive direc tor’s decision that the Commi ssion will enfor ce and wi t h which the Commi ssion will ex pect KBDJ to comply

. See Star Houston, Inc. v. Texas Dep’t of Transp. , 957 S.W .2d 102, 105 (Tex. App.—Austi n 1 9 9 7 , pet. denied) (final ag ency order is one with which ag ency expects compliance ). The denial of the motions to overturn does not fix the leg al rela tionship betwee n the Commi ssion and KB DJ , but rathe r, at most, declines to alter the manner i n wh i ch the

9executive direc tor’s decision fix ed the leg al relationship. See Rea v. State , No. 03-08-00491-CV,

2009 Tex. App. L EXI S 5463, at *9 (Tex. App.—Austin J uly 16, 2009, no pet. h.) (“I n deter mining whether an ag ency action is final, we do not look at the ac t i o n s ep ar at ely , but to the ag ency d ec ision-making proce ss as a whole.”) ; Kinney County Groundwater Conservation Di s t

.

v. Boulware , 238 S.W .3d 452, 459-61 (Tex. App.—San Antonio 2007, no pet.) (ag ency ’s decision

on permit final and appea lable; administrative reme dies exhausted by filing motions for rehe aring ).

The Commi ss i o n ’s d en i al of the City ’s motion to overturn is not a final and appea lable order and, ther ef o re , n o t a “ruling , order , decision, or other act of the commission” subject to judicial revie w under section 5.351 of the wate r co d e. S ee Tex. Water Code Ann. § 5.351(a)

. Whether the City ’s petition f or judicial revie w was filed within 30 day s of such denial is irrele vant to whether the petition was timely in acc ordanc e with water code section 5.351. See id. § 5.351(b).

Conclu sion The executive direc tor’s decision approving KB DJ ’s water pollution abate ment plan was sig ned and issued on O ctober 28, 2005. The Commission di d not order tha t the eff ectivene ss of t h at decision be delay ed. The City filed suit challeng ing the executive direc tor’s decision on Fe bruar y 23, 20 0 6

. T h e City ’s lawsuit was not filed within 30 day s of the executive direc tor’s signing and issuance of the decision and, there fore , failed to comply with water code section 5.351.

10See id. Consequently , the district court was without jurisdiction over the City ’s suit. See Tex. Gov’t

Code Ann. § 311

. 0 3 4 (W est Supp. 2009) (“Statutory prer equisites to a suit

. . . are jurisdictional require ments in a ll suits ag ainst a g overnme ntal entity .”). We va cate the district court’s judgme nt ag ainst the City

and dismiss the Cit y ’s suit for wa nt of jurisdiction.

__________________________________________ G. Alan Waldrop, Just ice Be fore Chief J ustice Jones, J ustices Waldrop and He nson Vac ated a nd Dismissed for Want of J urisdiction Filed: De cembe r 31, 2009

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