Opinion filed May 23, 2013

In The

Eleventh Court of Appeals _________

No. 11-12-00030-CV 

_________

TEXAS WATER DEVELOPMENT BOARD, Appellant

V.

WARD TIMBER, LTD.; WARD TIMBER HOLDINGS;

SHIRLEY SHUMAKE; GARY CHEATWOOD; RICHARD

LETOURNEAU; AND PAT DONELSON, Appellees

On Appeal from the 126th District Court

Travis County, Texas

Trial Court Cause No. D-GN-11-000121

O P I N I O N

The issue, one of first impression, is whether there is an “interregional 

conflict” between the 2011 water plans of two regions that are now part of the 

Texas water plan. The Texas Water Development Board (the Board) is required by 

State law to adopt a comprehensive state water plan every five years that 

incorporates approved regional plans. TEX. WATER CODE ANN. § 16.051(a) (West 

Supp. 2012). The Board has divided the State into sixteen planning regions. 
2

Regional planning groups must submit their plans to the Board no less than once 

every five years; the first plans were due on January 5, 2001. Id. § 16.053(i). 

Section 16.053(h)(7)(A) of the Water Code provides that the Board may approve a 

regional water plan only after it has determined that “all interregional conflicts 

involving that regional water planning area have been resolved.”

The 2011 regional water plan for the North Central Texas Regional Planning 

Area (Region C) included a proposed Marvin Nichols Reservoir in the Sulphur 

River Basin of the North East Texas Regional Planning Area (Region D) as a 

future source of water for Region C. Region C includes Fort Worth and Dallas. 

Region D’s 2011 water plan provided detailed reasons why the impact of that 

proposed reservoir on Region D’s timber, agricultural, environmental, and other 

natural resources constituted an interregional conflict with Region C’s plan. The 

Board approved the Region D plan on October 14, 2010, and the Region C plan on 

December 16, 2010. When the Board approved each plan, it expressly found that 

there was no interregional conflict.

Appellees, landowners and members of the Region D planning group, sued

under TEX. WATER CODE ANN. § 6.241 (West 2008) and, as a suit for declaratory 

judgment, under TEX. GOV’T CODE ANN. § 2001.038 (West 2008), seeking judicial 

review of the Board’s decision approving Region C’s water plan. They contended 

that, because of the “interregional conflict” between the two plans, Section 16.053 

of the Water Code prohibited the Board from approving the Region C plan until 

the conflict was resolved. The Board filed a plea to the jurisdiction, arguing lack 

of standing and sovereign immunity, and contended that there was not an 

interregional conflict under the Board’s definition of an “interregional conflict.” 

By definition, an interregional conflict exists only when more than one regional 

water plan relies on the same water source and there is insufficient water to fully 
3

implement both plans. 31 TEX. ADMIN. CODE § 357.10(15) (2012) (Tex. Water 

Dev. Bd., Regional Water Planning, Definitions).

The district court denied the Board’s plea to the jurisdiction, declared that an 

interregional conflict existed between the two water plans, reversed the Board’s 

decision approving the two plans, and remanded the case to the Board for it to 

follow its rules and the statute to resolve the conflict. We affirm.

The Board’s Issues on Appeal

The Board presents three issues: (1) whether the district court erred in 

denying the Board’s plea to the jurisdiction; (2) whether the district court erred in 

declaring that an “interregional conflict” existed between Region C and Region D 

and declaring that the Board’s interregional conflict rules applied to the conflict; 

and (3) whether the district court erred in reversing the Board’s approval of the 

2011 Regional Water Plan for Region C and remanding the case back to the 

agency.

Background Facts

The Texas Water Development Board, created by the state constitution, is 

the state agency primarily responsible for water planning and for administering 

water financing for the state. TEX. CONST. art. III, § 49-c; WATER § 6.011 (West 

2008). There is a constitutional duty to conserve water as a precious resource. 

TEX. CONST. art. XVI, § 59(a). To regulate and control this precious resource, the 

legislature created an administrative and regulatory agency known as the Texas 

Commission on Environmental Quality (the Commission), previously known as 

the Texas Natural Resource Conservation Commission. WATER § 5.001(2); Tex.

Water Rights Comm’n v. Wright, 464 S.W.2d 642 (Tex. 1971); 73 TEX. JUR. 3d 

Water § 9 1990).
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In 1997, the legislature changed the way Texas plans for its water future. 

Instead of the “top-down” approach previously used, the legislature passed Senate 

Bill 1 to build the state water plan through a “bottom-up” process. This new 

process relies, to a large degree, on regional planning. Act of June 1, 1997, 75th

Leg., R.S., ch. 1010, 1997 Tex. Gen. Laws 3610.

As the water planning agency for Texas, the Board must adopt a 

comprehensive state water plan every five years that incorporates approved 

regional water plans. WATER § 16.051(a). Regional planning groups develop the 

regional plans and must submit their adopted plans to the Board not less than once 

every five years. Id. § 16.053(i). The Board reviews and approves regional water 

plans under Section 16.053. Once they are approved, the Board combines the 

sixteen regional plans into a state water plan that is intended to assure that future 

water needs will be met while protecting significant natural and agricultural 

resources and economic interests of the regions.

Chapter 16 of the Texas Water Code and the Board’s rules provide guidance 

to the sixteen regional planning groups. Some items that the Board’s rules 

required planning groups to address in regional plans at the time of the trial court’s 

decision are listed in the Board’s reply brief:

• A description of the regional planning area that takes into account 

water providers, use, water quality problems, water sources, socioeconomic data, drought preparedness, and a host of other factors;

• Current and projected population and water demands;

• The adequacy of existing water supply for use in the drought of 

record;

• A water supply analysis for the drought of record;
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• Identified water strategies to meet demands during the drought of 

record;

• An evaluation of the water management strategies that the 

planning group identifies;

• Specific detailed recommendations of water management 

strategies;

• Regulatory, administrative or legislative recommendations that the 

planning group believes are needed for drought response; and

• Descriptions of the major impacts of recommended strategies on 

water quality, agricultural resources, natural resources in general, 

as well as financial demands and other implications of the 

strategies.

See former 31 TEX. ADMIN. CODE § 357.7(a)(1)–(14) (Tex. Water Dev. Bd., 

Regional Water Plan Development) repealed 37 Tex. Reg. 5797 (2012) (effective 

Aug. 12, 2012).

After the district court’s decision, the Board repealed its water planning 

rules that were in effect and adopted new rules. 37 Tex. Reg. 5797 (effective date 

August 12, 2012). The Board’s current rules also require regional planning groups 

to address the impacts of recommended strategies on agricultural and natural 

resources. See 31 TEX. ADMIN. CODE §§ 357.30, 357.34(d)(3)–(7), 357.35(c), 

357.40, 357.41 (2012) (Tex. Water Dev. Bd., Regional Water Planning). 

Section 357.41 provides that the planning group must describe how its regional 

plan is “consistent with the long-term protection of the state’s water resources, 

agricultural resources, and natural resources as embodied in the guidance 

principles in § 358.3(4) and (8) of this title (relating to Guidance Principles).”

Section 16.053(a) of the Water Code requires that a regional plan provide for 

the development of water resources in preparation for and in response to drought 
6

conditions in order that sufficient water will be available at a reasonable cost to 

ensure public health, safety, and welfare; to further economic development; and to 

protect the agricultural and natural resources of that particular region. Likewise, 

Title 31, Section 358.3 of the Administrative Code provides that development of 

the regional water plans and the state water plan shall be guided by the principles 

listed in that section, one of which is that “[c]onsideration of all water management 

strategies [shall be] consistent with long-term protection of the state’s water 

resources, agricultural resources, and natural resources.” 31 TEX. ADMIN. CODE

§ 358.3(9) (2012) (Tex. Water Dev. Bd., State Water Planning Guidelines) 

(formerly 31 TEX. ADMIN. CODE § 358.3(b)(4)).

The Board may approve a regional water plan only after it has determined 

that all interregional conflicts involving that regional water planning area have 

been resolved. WATER § 16.053(h)(5). If there is an interregional conflict, the 

Board must first attempt to resolve the conflict through a dispute resolution process 

involving the regions. WATER § 16.053(h)(6). If the conflict cannot be resolved 

by the regions, the Board is required to resolve the conflict. Id. 

Section 16.053(h)(7) provides for Board approval:

(7) The board may approve a regional water plan only after it 

has determined that:

(A) all interregional conflicts involving that 

regional water planning area have been resolved;

(B) the plan includes water conservation practices 

and drought management measures incorporating, at a 

minimum, the provisions of Sections 11.1271 and 

11.1272; and

(C) the plan is consistent with long-term protection 

of the state’s water resources, agricultural resources, and 
7

natural resources as embodied in the guidance principles 

adopted under Section 16.051(d). 

In 2010, the Board approved the 2011 regional water plans for the North 

Central Texas Regional Planning Area (Region C) and for the North East Texas 

Regional Planning Area (Region D). The Region C water plan recommended 

water management strategies, including water conservation and reuse, three new 

major reservoirs (Marvin Nichols Reservoir was one), and utilization of other 

surface water sources. If implemented, the recommended strategies would provide 

approximately 2.3 million acre-feet per year of additional water supply by the year 

2060: water for the projected population increase from 6,670,493 in 2010 to 

13,045,592 by 2060. In recommending approval of the Region C water plan, the 

Board’s staff stated that it had reviewed the Plan for interregional conflicts and 

found none.

The regional water plan for Region D was prepared by the planning group 

with Bucher, Willis, & Ratliff Corporation and various engineering firms. 

Chapter 7.0 described how the Region D plan was consistent with the long-term 

protection of the state’s water resources, agricultural resources, and natural 

resources as required by the Administrative Code. Chapters 7.0 and 8.0 addressed 

the impact of the Marvin Nichols Reservoir on the long-term protection of those 

resources, concluding that it was “the position of the [North East Texas Regional 

Water Planning Group] that inclusion of the Marvin Nichols I Reservoir [was] not 

consistent with the long-term protection of the State’s water resources, agricultural 

resources, and natural resources.”

Subchapter 8.13.1 of the Region D plan points out that the 2005 Region D 

planning group had also concluded that the proposed Marvin Nichols Reservoir 

was not consistent with protecting the timber, agricultural, environmental, and 

other natural resources and third parties in the Region D area. According to 
8

Appellees, the Board ignored Region D’s concerns about the overall impact of the 

proposed Marvin Nichols Reservoir during that earlier planning cycle.

Subchapters 7.6.1 and 7.6.2 of the 2011 Region D plan discussed the impact 

on agricultural resources and the timber industry. It was estimated that the Marvin 

Nichols Reservoir would flood 66,000 to 70,000 acres, mainly in Red River 

County but also in portions of Bowie, Titus, and Morris Counties. Included in the 

flooded acreage would be 33,000 to 53,000 acres of forest lands, including 

Priority 1 bottomland hardwoods and wetlands. Besides the timber and 

agricultural land that would be lost due to the reservoir, mitigation requirements 

were anticipated to greatly impact agricultural resources. After a detailed study, 

the Texas Parks and Wildlife Department and the United States Fish and Wildlife 

Service Study concluded that a minimum of 163,620 acres would be required for 

mitigation and that the number could be as high as 648,578 acres. In a March 2003 

report prepared for the Sulphur River Basin Authority, Weinstein and Clower in 

“The Economic, Fiscal and Developmental Impacts of the Proposed Marvin 

Nichols Reservoir Project” estimated an agricultural land loss of 165,000 to 

200,000 acres. The Region D water plan contains more discussion of the probable 

impacts should the Marvin Nichols Reservoir be built. Even at the planning stage, 

it is evident that the impacts would be substantial.

Despite the impact findings in Region D’s water plan and Region D’s 

contention that there were interregional conflicts, the Board accepted and approved 

Region C’s plan. The Board expressly found that there were no interregional 

conflicts. Appellees seek only the opportunity for the Region D water planning 

group to negotiate with the Region C water planning group, under the guidance of 

the Board, to see if there is a more acceptable alternative to Region D than the 

Marvin Nichols Reservoir. The district court found that Region C’s water strategy 
9

of building the Marvin Nichols Reservoir was an interregional conflict with 

Region D’s long-term protection of Region D’s water resources, agricultural 

resources, and natural resources. Therefore, the district court reversed the Board’s 

approval of the Region C water plan and remanded this case to the Board for it to 

follow the procedures in Section 16.053(h)(6) of the Water Code:

If an interregional conflict exists, the board shall facilitate 

coordination between the involved regions to resolve the conflict. If 

conflict remains, the board shall resolve the conflict. On resolution of 

the conflict, the involved regional water planning groups shall prepare 

revisions to their respective plans and hold, after notice, at least one 

public hearing at some central location within their respective regional 

water planning areas. The regional water planning groups shall 

consider all public and board comments; prepare, revise, and adopt 

their respective plans; and submit their plans to the board for approval 

and inclusion in the state water plan.

Appellees state that the purpose of their suit is only to require the Board to 

follow the procedures in Section 16.053(h)(6). Their purpose is not to fix property 

rights; it is to have the Board resolve conflicts with a goal of a more complete and 

balanced water plan. Appellees point out that “Region D has identified other areas 

in [Region D] where additional water and even reservoirs could be developed or 

expanded to provide water for other regions without the economic and other losses 

the [Region D planning] group projects for the Marvin Nichols site.”

Summary of the Two Views of Water Planning

The Board characterizes the planning process as identifying water supply 

needs for the uses specified in its rules and identifying possible strategies to meet 

those needs. The Board contends that the conflicts raised by Appellees may be 

addressed when the Commission begins the permitting process for the actual 

building of the Marvin Nichols Reservoir; that, therefore, Appellees have no 

standing for judicial review of the Board’s approval of the two plans because the 
10

reservoir may never be built; and that Appellees cannot show harm to their rights 

at this point. The Board does not deny there is a conflict in the respective plans 

concerning the Marvin Nichols Reservoir; it takes the position this is not a conflict 

within the meaning of Section 16.053 of the Texas Water Code. The Board

defines an “interregional conflict” under Section 16.053 as arising when “more 

than one regional water plan attempts to rely upon the same water source, so that 

there is not sufficient water available to fully implement both plans and would 

create an over-allocation of that source.” 31 ADMIN. § 357.10(15).

The Board further reasons that Appellees are concerned with the impact on 

Region D’s resources if the Marvin Nichols Reservoir is built for Region C’s water 

supply, a concern that does not involve a “use” of water from the proposed Marvin 

Nichols Reservoir. See former 31 ADMIN. § 357.7. The Board points out that 

Appellees are not arguing Region D wants water from the proposed Marvin 

Nichols Reservoir for one of those uses.

Appellees contend that the Board’s position defeats the purpose of 

Section 16.053 of the Texas Water Code, the regional water planning statute that 

directs regional planning groups to identify and recommend strategies for water 

use while protecting significant agricultural and natural resources. The text of 

Chapter 16 reflects the intent of the legislature that conflicts between regions 

involving a proposed water strategy and its effect on resources should be addressed 

as early as possible. Appellees point out that the Board in the 2007 state water 

plan requested the legislature to fund the purchase of the Marvin Nichols Reservoir 

site. The legislature complied, designating Marvin Nichols as a unique reservoir 

site. WATER § 16.051(g-1); Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 

468, 475 (Tex. 2012). Under the Board’s view, the Commission would not address 

the fundamental conflicts posed here until after the funding is provided and the 
11

permitting process is underway. Appellees assert that the Board’s position will 

waste time, effort, and money as opposed to the simple statutory procedure the 

legislature has provided for the Board to follow.

The Board focuses on regulatory policy and regulatory decisions, stating that 

“[n]either the development nor the approval of a regional water plan is regulatory 

in nature. Approval of a regional plan does not fix the legal rights of a person 

seeking a permit for a project, nor those of an affected person seeking to support or 

protest a project.” Appellees agree because they are not seeking to have any rights 

fixed. Appellees point out that this is not a suit that would impose liability on the 

Board. They seek only to have the Board follow the statutory guide that 

encourages regional planning groups to resolve conflicts through negotiation. 

Appellees are only challenging the Board’s approval of the two plans because the 

Board omitted the requisite procedural steps to resolve an interregional conflict 

before approving the plans. 

The Board states that “Appellees approach in this case appears to be based 

on the erroneous assumption that the planning process is the functional equivalent 

of a permit hearing.” We do not understand that to be Appellees’ approach. 

Appellees only want the Board to follow Section 16.053 of the Water Code and the 

Board’s own rules as reflected in former 31 TEX. ADMIN. CODE § 357.14 and give 

the two regions an opportunity to negotiate alternatives to the proposed Marvin 

Nichols Reservoir. The Administrative Code provided in relevant part:

(8) In the event the board finds that an interregional conflict 

exists between adopted regional water plans, the executive 

administrator shall:

(A) notify the affected regional water planning 

groups of the nature of the interregional conflict;
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(B) request affected regional water planning 

groups assistance in resolving the conflict; and 

(C) negotiate resolutions of conflicts with regional 

water planning groups and other interested parties as 

determined by the executive administrator.

(9) In the event negotiations conducted under paragraph (8) of 

this subsection to resolve conflicts between adopted regional water 

plans are unsuccessful, the executive administrator shall:

(A) determine a proposed recommendation for 

resolution of the conflict;

(B) provide notice of its intent to hold a public 

hearing on proposed recommendations for resolution of 

the conflict by publishing notice of the proposed change 

in the Texas Register.

Former 31 ADMIN. § 357.14 (emphasis added).

We note that, in the current 31 TEX. ADMIN. CODE § 357.62, the Board has 

changed the wording to “the [executive administrator] may use” the negotiating 

process (emphasis added). In the event that the Board has to resolve the 

interregional conflict, the current Section 357.62 provides that “[t]he Board’s 

decision is final and not appealable.”

Appellees acknowledge that Region D will need to provide more water to 

Region C besides the substantial amounts of water it already provides. Their 

desire is for the Region D planning group to have a mediated negotiation with 

Region C because of the impact the Marvin Nichols Reservoir would have on 

Region D.

In its reply brief, the Board states:

[I]f the case were remanded for TWDB to attempt to resolve the 

alleged interregional conflict, the most the law affords them is another 

opportunity to make public comments on the regional plan. . . . Since 
13

the Water Code does not provide Appellees with any additional input 

into the process other than the ability to make additional comments, 

there is no guarantee that a remand will remedy the harm they claim.

Section 16.053(h)(6) of the Water Code provides that “the board shall facilitate 

coordination between the involved regions to resolve the conflict.” Resolving a 

conflict does not mean that one side makes a few comments. Former 31 TEX.

ADMIN. CODE § 357.14 and current 31 TEX. ADMIN. Code § 357.62 appropriately

interpret the statute to mean that the Board will help the regions “negotiate” a 

resolution. Negotiating involves the sharing of information between the two 

regions. Appellees recognize that it will be the Region D water planning group 

that will negotiate for Region D.

Jurisdictional Issues

In the first issue, the Board argues that the district court erred in denying its 

plea to the jurisdiction. The Board argues that (1) there is no statute authorizing 

judicial review of the Board’s decision in approving Region C’s water plan,

(2) there is no waiver of sovereign immunity, and (3) Appellees have no standing 

to seek judicial review of the Board’s decision. It is important to keep in mind this 

is not an appeal to review the merits of the Board’s decision in approving a 

regional water plan, which would involve the substantial evidence rule.

1

 The 

appeal involves the issue of whether the Board reached its decision without 

complying with one of the statutory requirements. The applicability of that 

statutory requirement turns on whether there was an “interregional conflict” 

between the two plans.

 1

See Tex. Water Comm’n v. Dellana, 849 S.W.2d 808 (Tex. 1993), where the supreme court held 

that Section 5.351 of the Texas Water Code authorizes judicial review of the Commission decisions, but 

only after a party has exhausted all available administrative remedies.
14

Standing

Sovereign immunity and standing are separate issues. In their petition, 

Appellees provided a summary of their interests to demonstrate their standing to 

sue for judicial review under Section 6.241 of the Texas Water Code and to seek a 

declaratory judgment under Section 2001.038 of the Texas Government Code that 

there was an interregional conflict between the two water plans that required 

resolution before the Board approved the two plans. Ward Timber, Ltd. and Ward 

Timber Holdings (Ward Timber) are companies involved in the development of 

forest products in Region D. Ward Timber has over 100 employees and harvests 

approximately 100,000 tons of timber each year on lands within the Sulphur River 

Basin where the Marvin Nichols Reservoir site is located. Ward Timber claimed 

that it would be adversely affected by the construction of the proposed Marvin 

Nichols Reservoir because the reservoir would inundate a substantial amount of 

that timberland. 

Shirley Shumake owns land that would be flooded by one of the proposals 

for the Marvin Nichols Reservoir; she is also a past and current member of the 

Region D water planning group. She claimed that the Region C water plan 

adversely affected her property values and her ability to plan for the productivity of 

her ranch operations. Gary Cheatwood also owns land that would be flooded by 

the Marvin Nichols Reservoir. He was a member of the Region D water planning 

group. Richard LeTourneau also owns land that would be flooded; he was a 

member of the Region D water planning group and served as chairman of the 

group. Pat Donelson owns the Cross Arrow Ranch; a substantial part of the ranch 

would be inundated by the Marvin Nichols Reservoir.

Appellees alleged that the Board’s approval of the Region C water plan 

impairs Appellees’ ability to borrow money or make investments on their property 
15

within the proposed site of the Marvin Nichols Reservoir. Investment decisions for 

planting trees, timber harvesting, and agricultural endeavors depend on whether the 

Marvin Nichols Reservoir remains a unique reservoir site and a viable strategy. 

All of the Appellees participated in the Region D planning process. Appellees 

recognize that negotiations may fail and that the Board may resolve the conflict in 

favor of Region C. However, Region D will have had an opportunity at the 

planning stage to present alternative strategies to Region C that may have a lesser 

impact on Region D.

Texas law traditionally required a claimant to possess a common-law or a 

statutory right of action or, in public rights cases, to have a personal interest in the 

enforcement of the public right because the claimant has suffered or is threatened 

with some damage peculiar to himself. William V. Dorsaneo, III, The Enigma of 

Standing Doctrine in Texas Courts, 28 REV. LITIG. 35 (2008). In 1993, Texas 

replaced the traditional ideas with federal standing doctrine and elevated the law of 

standing to jurisdictional status in Texas Association of Business v. Texas Air 

Control Board, 852 S.W.2d 440, 445–46 (Tex. 1993). Article III of the United 

States Constitution limits federal judicial power to resolving “Cases” and 

“Controversies”; thus, a lack of standing deprives a federal court of subject-matter 

jurisdiction. See Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). Professor 

Dorsaneo points out that the adoption of the federal standing doctrine has 

complicated Texas procedural law because it has embraced a complex body of 

federal constitutional law without clearly explaining “whether a claimant must 

possess a legal injury resulting from the breach of a legal duty, or whether some 

other type of interest or injury is sufficient to satisfy Texas’s standing 

requirements.” Dorsaneo, The Enigma of Standing Doctrine in Texas Courts, 28 

REV. LITIG. at 36. He points out that the Texas Supreme Court recognized that the 
16

federal standing doctrine has both prudential and jurisdictional components and 

stated that “[t]his Court has not indicated whether standing is always a matter of 

subject-matter jurisdiction.” Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 

S.W.3d 1, 9 n.16 (Tex. 2008).

This case would appear to be one where standing arguably should not be a 

matter of subject-matter jurisdiction. Our analysis, however, will follow Texas 

jurisprudence regarding challenges to governmental action. Viewing standing as a 

component of subject-matter jurisdiction, we consider it as we would a plea to the 

jurisdiction, construing the pleadings in favor of the plaintiffs. Brown v. Todd, 53 

S.W.3d 297, 305 n.3 (Tex. 2001).

The United States Supreme Court, applying standing principles that are 

analogous to this situation, explained that the “irreducible constitutional minimum” 

of standing consists of three elements:

• the plaintiff must have suffered an “injury in fact—an invasion of a 

“legally protected” interest that is concrete and particularized and 

that is actual or imminent, not conjectural or hypothetical;

• the injury must be fairly traceable to the challenged action of the 

defendant and not the independent action of a third party not 

before the court; and

• it must be likely, not merely speculative, that the injury will be 

redressed by a favorable decision.

Lujan, 504 U.S. at 560–61; see Good Shepherd Med. Ctr., Inc. v. State, 306 

S.W.3d 825, 833 (Tex. App.—Austin 2010, no pet.); Save Our Springs Alliance, 

Inc. v. City of Dripping Springs, 304 S.W.3d 871, 878 (Tex. App.—Austin 2010, 

pet. denied).

An “injury in fact” is conceptually distinct from whether the plaintiff has 

incurred a “legal” injury (a viable cause of action on the merits). See Hunt v. Bass, 
17

664 S.W.2d 323, 324 (Tex. 1984); Good Shepherd Med. Ctr., 306 S.W.3d at 833. 

And, the required infringement of a “legally protected” interest does not 

necessarily have to rise to the level of depriving the plaintiff of a “vested right” to 

violate due process. Good Shepherd Med. Ctr., 306 S.W.3d at 833. But a plaintiff 

must show it has or imminently will suffer an invasion of some “legally protected” 

interest sufficiently unique to the plaintiff, as distinguished from the general 

public. Id.

The Board argues that (1) Appellees do not have an “injury in fact” because 

the Marvin Nichols Reservoir may never be built; (2) Appellees cannot trace the 

Board’s approval of the two regional plans to any actual, imminent, concrete or 

particularized harm suffered by them; and (3) the Board’s approval decision did 

not fix rights or obligations and, therefore, this case does not involve a justiciable 

controversy and will result in an advisory opinion.

Appellees argue that they have standing because they are challenging the 

Board’s approval of Region C’s plan only because of its inaction on the 

interregional conflict, “not [the] future construction of the Marvin Nichols 

[R]eservoir.” Appellees’ alleged harm results from the Board’s failure to 

recognize and resolve the interregional conflict between Regions C and D. 

Appellees assert that Texas case law includes several instances involving 

challenges to governmental decisions analogous to the challenge involved here. 

We agree their cited cases have merit.

Appellees cite Hays County v. Hays County Water Planning Partnership, 

106 S.W.3d 349 (Tex. App.—Austin 2003, no pet.), where the court of appeals 

considered the standing of an association (the Partnership) to challenge Hays 

County’s approval of a transportation plan submitted to the Capital Area 

Metropolitan Planning Organization (CAMPO) by Hays County. CAMPO 
18

coordinates transportation planning and approves use of federal transportation 

funds for a large area that includes Hays County. 106 S.W.3d at 353. The 

Partnership asserted that the submitted plan had been altered after the meeting 

approving the plan, resulting in the county’s submission to CAMPO of a 

substantially different plan from that adopted at the meeting. The court of appeals 

held that the Partnership had standing because a “published intention for future 

roadway development” in an area covered by a transportation plan was enough to 

cause “potential and immediate economic loss” to association members. Id. at 357.

The harm in Hays is not dissimilar from the harm to Appellees here. 

Region C’s water plan is incorporated in the state water plan. The Board’s approval 

of the state water plan impairs Appellees’ ability to invest in property 

improvements. By the Board’s action, the Marvin Nichols Reservoir site has been 

designated by the legislature as a “unique reservoir site.” See WATER § 16.051(g-1). 

Requesting millions from the legislature for purchasing the Marvin Nichols 

Reservoir site expresses a “published intention” for that reservoir to be built in the 

future. The Board first designated the Marvin Nichols Reservoir as a reservoir site 

in the state water plan in 1968. Hearts Bluff Game Ranch, 381 S.W.3d at 474. 

That was long before the comprehensive regional water planning required by 

Chapter 16 that tasks each region to identify interregional conflicts or potential 

conflicts. See WATER § 16.053(h)(5). 

In Shackelford v. City of Abilene, 585 S.W.2d 665 (Tex. 1979), the supreme 

court refused to construe the “particularized harm” requirement narrowly. 

Shackelford, a reporter for a local television station, sought to enjoin the Abilene 

Equal Employment Opportunity Board from holding closed meetings where the 

board was considering allegations of discrimination against a city employee. 585 

S.W.2d at 667. Shackelford alleged that the closed meetings violated the city 
19

charter’s provision requiring open meetings. The court of appeals held that the 

reporter did not have standing because he did not have a particular interest 

different from the general public. Id. Reversing, the supreme court held that,

under the city charter, Shackelford had standing “as a citizen of Abilene.” Id. at 

668. In this case, Appellees have interests separate from the general public in 

seeing that the Board follows the procedures in Chapter 16 for eliminating 

interregional conflicts.

The case of Dillard Texas Operating Limited Partnership, L.P. v. City of 

Mesquite, 168 S.W.3d 211 (Tex. App.—Dallas 2005, pet. denied), is also 

instructive on the issue of standing in the type of case now before us. Dillard 

appealed the trial court’s grant of a plea to the jurisdiction in its case against the 

City of Mesquite and a waste hauler. Dillard contended that the city had illegally 

entered into an exclusive contract for waste management and that Dillard should 

not be required to use that provider. 168 S.W.3d at 213. The appellate court held 

that Dillard had standing to sue, seeking a declaratory judgment that Mesquite 

violated its charter by granting the waste hauler exclusive rights to haul 

commercial waste, and that the trial court had subject-matter jurisdiction and erred 

in granting the plea. Id. at 215. Citing Shackelford, the court rejected the 

argument of Mesquite and the waste hauler that Dillard did not have standing 

because Dillard had not incurred a “particularized injury” or harm distinct from 

any allegedly incurred by the general public. Id. at 214. The court also rejected 

Mesquite’s argument that there was no justiciable controversy.

In Housing Authority of City of Harlingen v. State, 539 S.W.2d 911 (Tex.

Civ. App.—Corpus Christi 1976, writ ref’d n.r.e.), occupants of a low-income 

housing project sought an injunction and other relief contending the city housing 

authority did not have the right to make monthly $50 lump sum payments to each 
20

commissioner of the authority for undocumented expenses. The court held that 

the occupants had standing to challenge the authority’s right to make the payments 

and that the payments were not authorized by the “Housing Authorities Law” (then 

TEX. REV. CIV. STAT. art. 1269k (repealed 1987)). 539 S.W.2d at 917. 

In summary, first, Appellees own property interests affected by both water 

plans; that sets them apart from the general public interest in the Board following 

its procedures. Second, their alleged “injury in fact” results from the Board’s 

failure to recognize and resolve the alleged interregional conflict; that failure 

impacts their property because it denies Region D an opportunity to resolve the 

conflict with Region C. Third, their injury probably will be redressed by a 

favorable court decision to have the regions resolve the conflict or the Board 

resolve the conflict. The trial court did not err in finding that Appellees had 

standing to sue and that their suit involved a justiciable controversy. Like the 

reporter in Shackelford seeking to compel the Abilene board to follow the Open 

Meetings Act and the city charter, Dillard seeking to compel the City of Mesquite 

to void a contract with a waste hauler in violation of the city charter, and the 

occupants in City of Harlingen contending the local housing authority was making 

unauthorized payments to the commissioners, Appellees seek to have the regions 

or the Board resolve what Appellees argue is an interregional conflict under the 

statute.

We turn next to the Board’s claim that Appellees’ suit is barred by sovereign 

immunity.

Statutory Waiver of Sovereign Immunity

Appellees contend that Section 6.241 of the Water Code and 

Section 2001.038(a) of the Government Code authorize judicial review of the 

Board’s action in ignoring the statute on interregional conflicts and further support 
21

their standing to challenge the Board’s action. Appellees argue that Section 6.241 

and Section 2001.038(a) waive sovereign immunity for Board administrative 

decisions where the suit is not for money damages from the State. We agree.

This is a case of first impression addressing Section 6.241 of the Water 

Code; it has not been the subject of a Texas case. Section 6.241 provides that a 

person may seek judicial review of a “ruling, order, decision, or other act” of the 

Board. The Board claims that Section 6.241 does not waive sovereign immunity

and that, therefore, the case should be dismissed for lack of subject-matter 

jurisdiction.

The Board argues that the statutory scheme negates the availability of 

judicial review under Section 6.241 in this case. If a groundwater conservation 

district disagrees with how the Board resolved a conflict between its approved 

groundwater management plan and an approved state water plan, 

Section 16.053(p) authorizes the district to seek judicial review of the Board’s 

decision. By contrast, the Board points out, Chapter 16 does not provide for 

judicial review of the Board’s decisions on interregional conflicts. Because the 

legislature did not provide a judicial review provision in Chapter 16, the Board 

contends that “[t]here simply is no clear and unambiguous waiver of immunity 

under Texas Water Code § 6.241 for the type of lawsuit that the Appellees have 

brought.” 

We disagree with the Board’s position that judicial review of the Board’s 

actions under Chapter 16 is limited to a conflict between a groundwater 

management plan and the state’s water plan. Section 6.241, entitled “Judicial 

Review of Acts,” contains the following provisions:

(a) A person affected by a ruling, order, decision, or other act of 

the board may file a petition to review, set aside, modify, or suspend 

the act of the board.
22

(b) A person affected by a ruling, order, or decision of the board 

must file his petition within 30 days after the effective date of the 

ruling, order, or decision. A person affected by an act other than a 

ruling, order, or decision must file his petition within 30 days after the 

date the board performed the act.

(c) Orders, decisions, or other actions of the board pursuant to 

Subchapters E and F of Chapter 16 and to Chapter 17 of this code are 

not subject to appeal (footnote omitted, emphasis added).

There would be no reason for the legislature to except subchapters E and F of 

Chapter 16 unless the legislature meant for Section 6.241 to apply to orders, 

decisions, or other actions of the Board under the remaining subchapters of 

Chapter 16. We hold that Section 6.241 applies to rulings, orders, decisions, or 

other acts of the Board under Section 16.053 (which are not in subchapter E or F), 

including the Board’s final approval of a regional water plan. We see no reason to 

ignore the plain text of Section 6.241.

Section 5.351 of the Texas Water Code provides for judicial review of 

Commission acts and contains identical language to paragraphs (a) and (b) in 

Section 6.241. However, Section 5.351 does not have a paragraph (c). The Board 

points out that the Texas Supreme Court held in Texas Natural Resource

Conservation Commission v. IT-Davy, 74 S.W.3d 849 (Tex. 2002), that 

Section 5.351 did not waive sovereign immunity. The Board argues, therefore, by 

analogy, that Section 6.241 also does not. IT- Davy had sued the Commission for 

additional payments under a contract with the Commission. The IT-Davy court 

began its analysis with the reminder that sovereign immunity protects the state 

from lawsuits for money damages, citing General Services Commission v. LittleTex Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001). 74 S.W.3d at 853. IT-Davy 

sought money from the state; therefore, sovereign immunity was applicable. The 
23

Board’s attempt to analogize the IT-Davy court’s holding concerning Section 5.351 

to the role of Section 6.241 in this case is not an appropriate analogy. The supreme 

court explicitly held that Section 5.351 did not waive sovereign immunity “under 

the facts” in IT-Davy. Id.

The more appropriate analogy is the role of Section 5.351 in providing for 

judicial review in cases involving permits. Section 5.351 allows “[a] person 

affected by a ruling, order, decision, or other act of the commission” to petition a 

Travis County trial court “to review, set aside, modify, or suspend the act of the 

commission.” In cases involving permits, courts have found that Section 5.351

allows parties to sue following a final decision by the Commission; the courts have 

obviously recognized that Section 5.351 waives sovereign immunity in those cases 

provided the plaintiff has exhausted its administrative remedies. See Tex. Water 

Comm’n v. Dellana, 849 S.W.2d 808 (Tex. 1993) (Section 5.351 authorized 

judicial review of the Commission’s decision to deny Hunter Industrial Facilities’ 

application for hazardous waste disposal permit, but Hunter had not exhausted its 

administrative remedies); City of Waco v. Tex. Comm’n on Envtl. Quality, 346 

S.W.3d 781 (Tex. App.—Austin 2011, pet. granted) (City is an affected person 

under Section 5.115(a) and can sue under Section 5.351 concerning a dairy’s water 

permit application that would affect Lake Waco water quality.); Tex. Comm’n on 

Envtl. Quality v. Kelsoe, 286 S.W.3d 91 (Tex. App.—Austin 2009, pet. denied)

(party not allowed to sue because he filed his judicial review petition late); Heat 

Energy Advanced Tech., Inc. v. W. Dallas Coalition for Envtl. Justice, 962 S.W.2d 

288 (Tex. App.—Austin 1998, pet. denied) (Coalition of residents had standing to 

challenge facility’s application for renewal permit.).

Here, the decision of the Board approving the water plans of Regions C and 

D is analogous to the Commission’s decision involving a permit. The legislature 
24

has not provided a separate administrative procedure for one region to challenge 

another region’s plan. Region D’s planning group followed the only 

administrative procedure available by pointing out the purported interregional 

conflict with Region C’s plan and submitting its plan for approval. The Board 

issued a final decision when it approved Region C’s water plan. Region D 

exhausted the administrative procedure before Appellees filed suit. We further 

note that Section 5.351 allows standing to sue following a final permit decision by 

the Commission. It follows that, by analogy, Section 6.241 allows standing to sue 

following a final decision by the Board in approving a water plan.

The Board’s argument is that cases such as these show that Appellees’ 

claims are not yet final—finality will occur in the permitting process under the 

Commission—and that an appeal following a final permit decision by the 

Commission is the appropriate forum for Appellees to seek redress for injury to 

their property rights. Appellees are not seeking such redress, only the resolution of 

the purported conflict. Appeal following a permit decision will be too late for a 

negotiation between Region C and Region D to see if there is an alternative water 

strategy that will not have the impact on Region D that the Marvin Nichols 

Reservoir site does.

The Board’s position effectively means its definition of interregional conflict 

cannot be challenged. Yet, the Texas Supreme Court has stated that administrative 

orders are final and appealable if they impose an obligation, deny a right, or fix 

some legal relationship as consummating the administrative process. City of 

Austin v. Tex. Comm’n on Envtl. Quality, 303 S.W.3d 379, 384 (Tex. App.—

Austin 2009, no pet.) (citing Tex.–N.M. Power Co. v. Tex. Indus. Energy 

Consumers, 806 S.W.2d 230, 232 (Tex. 1991)). The Board argues that there are 

only proposals for the Marvin Nichols Reservoir and that there are many 
25

conditions that must be met before the reservoir becomes a reality. In Texas–New 

Mexico Power Company, the supreme court considered whether an order of the 

Public Utility Commission of Texas (PUC) conditionally approving a certificate of 

convenience and necessity for construction of a power plant was final and 

appealable. Because of the numerous conditions and restrictions imposed by the 

PUC, the trial court dismissed the administrative appeal for want of jurisdiction. 

The court of appeals affirmed, reasoning that the absence of “the necessary permits 

from the other agencies” made it impossible to know if the power company would 

obtain the approval of those agencies. 806 S.W.2d at 231. The supreme court 

reversed, holding that the order was final and reasoning that regulated parties and 

consumers must be afforded an opportunity for timely judicial review of actions 

that affect them. In determining finality, courts should consider the statutory 

context in which the agency operates. Id. at 232.

The Board’s decision approving Region C’s plan was a final decision for the 

planning process. Region D followed the administrative process for water 

planning in Chapter 16. The statutory context here, Section 16.053, requires 

regional groups to address a number of factors in their plans with emphasis on 

possible water strategies and the impact of the strategies on agricultural resources 

and natural resources. The Board misconstrues the purpose of Appellees’ suit. It 

repeatedly argues that approval of a regional plan does not fix the legal rights of a 

person seeking a permit for a project or those of an affected person seeking to 

support or protest a project. True. But the only right Appellees seek here is their 

right, as Region D citizens directly affected, to have the Board follow the statute 

and its own rule requiring it to assist regions in negotiating a resolution where 

there is an interregional conflict.
26

 Neither Sun Oil Company v. Railroad Commission of Texas, 311 S.W.2d 235 

(Tex. 1958), nor Moody v. Texas Water Commission, 373 S.W.2d 793 (Tex. Civ. 

App.—Austin 1963, writ ref’d n.r.e.), cited by the Board, is helpful. Prior to the 

enactment of the statute applicable in Moody, there was no statutory procedure 

whereby the views of the state could be given to Congress on a federal water 

impoundment project. 373 S.W.2d at 796. The appellate court in Moody found

that the commission had complied with the requirements of the statute, that the 

governor had notified the federal agency of the action of the commission 

approving the feasibility of the project, and that the matter had become moot. Id.

at 796–98. The statute was a narrow one that the court found provided no appeal

for judicial review of the commission’s decision.

Sun Oil also lacks relevance to this case. The railroad commission’s order 

was the result of an investigation and expressed its view that certain truck 

movements into the state should be subject to higher intrastate rates if the shipper 

first stored the goods after they entered Texas and then subsequently delivered the 

goods to well sites; the intrastate rates should apply to the transportation after the 

goods were removed from storage. 311 S.W.2d at 236 n.2. The Sun court held 

that the order was not a final administrative order that was judicially reviewable 

because the order did not prevent Sun from contending the traffic in question to be 

interstate if the railroad commission ever proceeded against Sun. Id. at 297. The 

supreme court admitted that it was difficult to distinguish the order before it from 

that held reviewable in Frozen Food Express v. United States, 351 U.S. 40 (1956). 

Id. In the case before us, the Board has taken a final action with respect to 

approval of Region C’s water plan; no further action is needed.
27

Section 2001.038 also provides statutory authority for the district court’s 

judicial review of the Board’s action. Section 2001.038(a) authorizes a declaratory 

judgment action to determine the “applicability of a rule”:

(a) The validity or applicability of a rule . . . may be determined 

in an action for declaratory judgment if it is alleged that the rule or its 

threatened application interferes with or impairs, or threatens to 

interfere with or impair, a legal right or privilege of the plaintiff.

Section 2001.038 is a grant of original jurisdiction and waives sovereign 

immunity. Tex. Logos, L.P. v. Tex. Dep’t of Transp., 241 S.W.3d 105, 123 (Tex. 

App.—Austin 2007, no pet.); Tex. Dep’t of Human Servs. v. ARA Living Ctrs. of 

Tex., Inc., 833 S.W.2d 689, 693 (Tex. App.—Austin 1992, writ denied). The 

section also provides that “[a] court may render a declaratory judgment without 

regard to whether the plaintiff requested the state agency to rule on the validity or 

applicability of the rule in question.” GOV’T § 2001.038(d).

Appellees sought a declaratory judgment regarding the applicability of the 

Board’s former Rule 357.14 (currently Rule 357.50(j)(2)). Former Rule 357.14 

required the Board to consider “information from regional water planning groups 

of the existence of an interregional conflict” and to find “that no interregional 

conflict exists” before approving a regional water management plan. Former 31 

ADMIN. § 357.14(3). Current Rule 357.50 contains the same requirement. Where 

there is an interregional conflict, the Board must take steps to resolve it. See

WATER § 16.053(h)(6).

The Board decided that the rules on resolving interregional conflicts did not 

apply to the type of conflict identified by the Region D planning group. Appellees 

contend that the rules do apply and that the unresolved interregional conflict 

should have prevented the Board from approving Region C’s water plan until the 
28

conflict between the two regional water plans was resolved. See WATER

§ 16.053(h)(7).

It is true that the state water plan recommends water strategies, some of 

which will not be built. A fair reading of the text of Chapter 16, however, 

indicates that the legislature meant for there to be a comprehensive planning 

process, balancing strategies against their impacts on agricultural, economic, and 

natural resources. Resolving interregional conflicts through negotiation is part of 

that balancing. As provided in Section 16.053(h)(7), the Board may approve a 

regional water plan only after it has determined that:

• all interregional conflicts involving that regional water planning 

area have been resolved;

• the plan includes water conservation practices and drought 

management measures incorporating, at a minimum, the provisions 

of Sections 11.1271 and 11.1272; and

• the plan is consistent with long-term protection of the state’s 

water resources, agricultural resources, and natural resources as 

embodied in the guidance principles adopted under Section 

16.051(d) (emphasis added).

Section 6.241 and Section 2001.038 provide for judicial review of the 

Board’s order that approved Region C’s plan under Chapter 16. The trial court did 

not err in denying the Board’s plea to the jurisdiction. The first issue of the Board 

is overruled.

Does An Interregional Conflict Exist?

In its second issue, the Board contends that the district court erred in 

declaring that an “interregional conflict” existed between Region C and Region D 

and declaring that the Board’s interregional conflict rules applied to the conflict. 

Because the legislature did not define “interregional conflict,” the issue is the 
29

meaning of “interregional conflict” within the context of Chapter 16 of the Water 

Code.

The construction of a statute is a question of law we review de novo. R.R.

Comm’n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 

619, 624 (Tex. 2011); First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 631 

(Tex. 2008); F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 

(Tex. 2007). Our primary objective in statutory construction is to give effect to the 

legislature’s intent. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). We seek 

the legislature’s intent first and foremost in the statutory text. Lexington Ins. Co. v. 

Strayhorn, 209 S.W.3d 83, 85 (Tex. 2006). We rely on the plain meaning of the 

text unless a different meaning is supplied by legislative definition or is apparent 

from the context or unless such a construction leads to absurd results. City of 

Rockwall v. Hughes, 246 S.W.3d 621, 625–26 (Tex. 2008). 

The Board points out that the legislature has defined the purpose of state 

water planning:

[To] provide for the orderly development, management, and 

conservation of water resources and preparation for and response to 

drought conditions, in order that sufficient water will be available at a 

reasonable cost to ensure public health, safety, and welfare; further 

economic development; and protect the agricultural and natural 

resources of the entire state.

WATER § 16.051(a).

Section 16.053(a) contains similar language that directs the regional 

planning group to develop a plan for sufficient water to be available at a reasonable 

cost to ensure public health, safety, and welfare; further economic development; 

and protect the agricultural and natural resources of “that particular region.” The 

premise of Appellees’ argument is that the Marvin Nichols Reservoir will not 

supply water at a reasonable cost when one considers the cost of its probable 
30

adverse impact on Region D’s economic development and on Region D’s 

agricultural and natural resources. 

The intent of the legislature concerning water planning is broader than the 

statements in Sections 16.051(a) and 16.053(a). From reading the entire 

Chapter 16, it is evident that the legislature wants the state water plan to be 

comprehensive: (1) to assure that future water needs will be met while protecting 

regional interests and significant natural and agricultural resources in the state and 

(2) to not have conflicts or internal inconsistencies. The legislature created an 

interregional dispute resolution process to resolve conflicts that may arise between 

two or more regional plans. Each region is tasked to identify interregional 

conflicts or potential conflicts. See WATER § 16.053(h)(5); 31 ADMIN. § 357.50(f), 

(j).

As stated at the outset, the legislature changed water planning into a more 

democratic “bottom-up” process that involves groundwater districts and regional 

planning groups. Section 16.053(d) requires the Board to provide guidelines for 

regional water planning groups. Section 16.051(d) provides that the Board, in 

adopting guidance principles, should give due consideration “to the construction 

and improvement of surface water resources and the application of principles that 

result in voluntary redistribution of water resources” (emphasis added). See 31 

ADMIN. § 358.3(10). One of the principles in former Section 358.3(b) and in 

current Section 358.3(9) of the Administrative Code is that consideration of all 

water management strategies shall be “consistent with long-term protection of the 

state’s water resources, agricultural resources, and natural resources.”

Section 16.053(h)(7) provides that the Board may approve a regional water 

plan only if (1) all interregional conflicts have been resolved, (2) the plan includes 

water conservation practices and drought measures, and (3) “the plan is consistent 
31

with long-term protection of the state’s water resources, agricultural resources, 

and natural resources as embodied in the guidance principles adopted under 

Section 16.051(d)” (emphasis added). The Board’s former Section 357.14 (now 

Section 357.62), providing for its assistance in negotiations, is an application of the 

principles in Sections 16.053(h)(7) and 16.051(d) that will assist “in voluntary 

redistribution of water resources” of areas such as Region D.

No business would plan for a project without considering the costs of that 

project and its impact on the business’s resources. From the plain text of 

Section 16.051, the legislature expressed its intent that the water planning process 

should encompass an assessment of a proposed water strategy and its impact. To 

defer assessment of a water strategy’s impact until the Commission’s permitting 

process would encourage bureaucratic inertia and discourage a fair evaluation of 

the impacts of a water strategy that has been part of a water plan for a period of 

time and may have been partially funded.

Both Region C and Region D recognize that their plans should involve 

evaluating the impacts of a water strategy, not simply identifying that strategy. 

Chapter 7.0 of the Region D water plan described how the Region D water plan “is 

consistent with” the long-term protection of the State’s water resources, 

agricultural resources, and natural resources and explained the inconsistency of any 

Marvin Nichols Reservoir (proposed by Region C) in protecting these resources. 

Region D stated several times in its plan that the Marvin Nichols Reservoir site 

was not consistent with the long-term protection of the state’s water resources, 

agricultural resources, and natural resources.

In the 2011 Region C water plan at page 4C.14, the Region C water planning 

group summarized its decision for the next steps: “Evaluate Marvin Nichols 

Reservoir, Lower Bois d’Arc Creek Reservoir, Lake Ralph Hall, George Parkhouse 
32

Lake (North and South), Lake Columbia, and Lake Tehuacana as potentially 

feasible strategies.”

Region C recognized that, although new reservoirs represent a large source 

of potential supply for Region C, environmental and economic impacts of reservoir 

development are concerns that need to be evaluated. The 2011 Region C water 

plan at page 4C.13 briefly listed those impacts to include inundation of wetlands 

and other wildlife habitat, including bottomland hardwoods; changes to 

streamflows and streamflow patterns downstream; impacts on inflows to bays and 

estuaries; and impacts on threatened and endangered species. Region D identified 

several impacts and concluded that the impacts of the Marvin Nichols Reservoir 

outweighed a selection of the strategy. Both regions appear to understand the 

legislature’s intent for the planning process, as expressed in Sections 16.051 and 

16.053, to include evaluating the impact of a proposed water strategy.

The Board’s regulations outlining guiding principles for regional water plans 

require that the impacts of water strategies be analyzed. Regional water planning 

groups must give consideration to threats to agricultural and natural resources and 

how those threats will be addressed or affected by the water management strategies 

evaluated in the plan. 31 ADMIN. § 357.30(12).2

 In evaluating potentially feasible 

water strategies, regional water planning groups are to analyze the 

“[e]nvironmental factors including effects on environmental water needs, wildlife 

habitat, cultural resources, and effect of upstream development on bays, estuaries” 

and “[i]mpacts to agricultural resources.” 31 ADMIN. § 357.34(d)(3)(B), (C).

Planning groups are to select “cost effective water management strategies, which 

are consistent with long-term protection of the state’s water resources, agricultural 

 2

At the time of the trial court’s decision, former Section 358.3(b)(3) was in effect; it provided that 

the planning group must give consideration to “the effect of policies or water management strategies on 

the public interest of the state, water supply, and those entities involved in providing this supply 

throughout the entire state.”
33

resources, and natural resources.” 31 ADMIN. § 357.35(c). The social and 

economic impacts of moving water from rural and agricultural areas are to be 

analyzed. 31 ADMIN. § 357.34(d)(7).

The regional water plan shall include a description of the impacts of the 

water plan regarding agricultural resources, other water resources of the state, 

threats to agricultural and natural resources identified pursuant to 

Section 357.34(d)(5), third-party social and economic impacts resulting from 

voluntary redistribution of water, major impacts of strategies on water quality, and 

effects on navigation. 31 ADMIN. § 357.40 (Impacts of Regional Water Plan).

Former Section 357.7(a)(13) provided that the regional plan should contain 

“a chapter describing how the regional water plan is consistent with long-term 

protection of the state’s water resources, agricultural resources, and natural 

resources as required in [former] § 357.14(2)(C).” The current Section 357.41 

provides that the planning groups shall describe how their regional water plan is 

“consistent with the long-term protection of the state’s water resources, agricultural 

resources, and natural resources as embodied in the guidance principles in 

§ 358.3(4) and (8) of this title (relating to Guidance Principles).” 31 ADMIN.

§ 357.41. The guidance principles in Section 358.3 also require that regional 

planning groups consider the effects of water management strategies.

It is surprising the Board does not consider that the impact of a major water 

strategy can constitute an interregional conflict, especially here where Region D’s 

plan stated repeatedly that the impact of the proposed Marvin Nichols Reservoir 

posed a clear interregional conflict and backed the claim with engineering studies.

The Board expresses a concern that, if its definition of “interregional 

conflict” is rejected, the Board will be mired down in many small conflicts:

A variety of things could be classified under the heading of 

“interregional conflict,” including differences of opinions on the 
34

regulatory recommendations that planning groups are required to 

submit to TWDB; or estimates of future needs in small, discrete 

portions of a planning region; or any number of other facets of the 

planning process.

We disagree. Region D interprets “interregional conflict” to encompass the type of 

major conflict here between Region C’s proposed major reservoir in Region D and 

its impact on the resources in Region D. Region D has examined the impacts; 

Region C has decided to evaluate the impacts of the Marvin Nichols Reservoir in 

the future as part of its planning process. Region C will recognize there is an 

interregional conflict when it evaluates the impact of the Marvin Nichols Reservoir 

strategy. Although we are of the opinion that the term is unambiguous, the Board 

can solve its dilemma by amending the rule defining an interregional conflict to 

include its present definition and the present situation where a region has studied

the impacts and finds there is a substantial conflict. As earlier stated, each region 

is tasked by statute to identify interregional conflicts or potential conflicts. See 

WATER § 16.053(h)(5).

Region D’s plan had an entire section on the conflict between the Marvin 

Nichols Reservoir and its negative impacts on the timber industry, other 

agricultural resources, and economic resources of Region D. Region C’s plan 

contains little comment on the strategy’s impact on Region D. A review of the 

Board’s file reflects that, from the time that Region D submitted its plan and had it 

approved and from the time that Region C submitted its plan and had it approved,

less than ninety days elapsed. The short period occurred even though the plans are 

several hundred pages long with large amounts of data to process and evaluate. A 

thorough review process will take time. The plain language of the statutes and 

accompanying regulations indicates that an emphasis should be placed on 
35

balancing water uses and supply and their effect on agricultural and natural 

resources and other economic resources.

By complying with Section 16.053(h)(6) and facilitating coordination 

between the two regions to resolve the major conflict in the two plans, the Board 

will be carrying out the purpose of the state water plan. Region C had the 

assistance of Freese and Nichols, Inc. in preparing its regional water plan. 

Region D had the assistance of Bucher, Willis & Ratliff Corporation. To assist the 

respective regions, these firms addressed or planned to address the items the Board 

rules required the planning groups to address, including those listed above. The 

ninth item listed by the Board as one required to be addressed in regional plans is 

“descriptions of the major impacts of recommended strategies on water quality, 

agricultural resources, natural resources in general, as well as financial demands 

and other implications of the strategies.” Simply having members of these two 

engineering firms, along with a few representatives from the two regions, for 

negotiating sessions may lead to a solution that both regions find acceptable and 

that facilitates a “voluntary redistribution of water resources.”

The Board interprets the term “interregional conflict” in Chapter 16 to exist 

only “when more than one regional water plan relies upon the same water source, 

so that there is not sufficient water available to fully implement both plans and 

would create an over-allocation of that source.” 31 ADMIN. § 357.10(15). An 

agency’s interpretation of a statute that it is charged with administering is entitled 

to serious consideration unless the agency’s construction is clearly inconsistent 

with legislative intent. Tex. Water Comm’n v. Brushy Creek Mun. Util. Dist., 917 

S.W.2d 19, 21 (Tex. 1996) (citing Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 

820, 823 (Tex. 1993)). We find that the Board’s interpretation is clearly 

inconsistent with legislative intent.
36

The legislature made clear its intent for regional planning groups to consider 

important resources early in the planning process. For example, 

Section 16.053(e)(6) requires that a planning group identify “river and stream 

segments of unique ecological value” that the regional planning group 

recommends for protection under Section 16.051.

The legislature intended for the state water plan to play an important role in 

the Commission’s permitting process. In City of Marshall v. City of Uncertain, 

206 S.W.3d 97 (Tex. 2006), the City of Marshall sought a water-rights amendment 

to its 1986 certificate of adjudication that recognized a right to divert and use up to 

16,000 acre-feet of water from Cypress Creek. The City of Uncertain and others 

opposed the amendment application and sought a contested-case hearing, which

the Commission had held was not required. The Texas Supreme Court concluded 

that, while TEX. WATER CODE ANN. § 11.122(b) (West 2008) significantly 

restricted the issues that may be reviewed in a contested-case proceeding, it did not 

preclude a contested-case hearing:

Depending upon the particular amendment application, a hearing may 

be necessary to allow the Commission to assess certain limited criteria 

other than the application’s effect on other water-rights holders and 

the on-stream environment that the 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.

206 S.W.3d at 99 (emphasis added). Section 11.134(b)(3)(E) of the Water Code 

provides that the Commission generally cannot issue new water rights for any use 

that is inconsistent with the regional plan. TEX. WATER CODE ANN.

§ 11.134(b)(3)(E) (West 2008).

The Board uses the state water plan for its recommendations to the 

legislature for the appropriation of state funds. The Board recommended public 
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funding to purchase land for reservoir sites in the 2007 state water plan; the Marvin 

Nichols Reservoir was one of the sites. Section 16.051(g-1) provides that “a site is 

considered to be a designated site of unique value for the construction of a 

reservoir if the site is recommended for designation in the 2007 state water plan 

adopted by the board.” WATER § 16.051(g-1). The Marvin Nichols Reservoir is 

now a designated site of unique value for constructing a reservoir. But it does not 

make sense for the legislature to provide funding for the Marvin Nichols Reservoir 

site until the interregional conflict raised by Appellees is resolved.

Section 16.053 applies to the regional water planning groups and the Board. 

The regional planning groups are directly impacted by the statutory language, and 

they are well-suited to identify interregional conflicts based on the common 

meaning of that term. The district court owed no deference to the Board’s 

interpretation of an unambiguous term. The district court correctly determined that 

the two plans contain an interregional conflict that the Board should help the two 

regions resolve. The Board’s second issue is overruled.

The District Court’s Judgment

From the briefs, it appears that the Board has confused the planning process 

and the permitting process under the current approach to water planning. The 

planning process should encompass possible water strategies and the impact those 

water strategies will have on the agricultural and natural resources of the region 

involved, especially when an interregional transfer of water is involved. The 

Region D planning group in its Region D plan made a preliminary case that there is 

a substantial interregional conflict with Region C’s plan, and that should be 

sufficient for the Board to require the two regional planning groups to attempt to 

resolve that conflict.
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The Board admits that regional water planning groups must consider many 

of the same issues considered in the permitting process. We agree. This is one. 

However, even though the information concerning the probable impact of a water 

strategy will be less detailed in the planning stage than during the permitting stage, 

the Board and affected regions must resolve interregional conflicts in the planning 

process. 

The Board has been focused on viewing Appellees’ suit as one seeking a 

determination of their individual rights in a permitting process. Perhaps the Board 

is concerned that the two regions will not resolve the conflict as the Board would, 

but that becomes a possibility when planning is placed with regional planning 

groups instead of being a “top-down” plan by the Board. By now, the two regions 

might have selected alternative strategies for Region C that will not impact 

Region D to the extent that the Marvin Nichols Reservoir will. But, even if the 

two regions cannot agree on alternative water strategies for Region C, the Board is 

in a position to resolve the conflict in the manner that is most consistent with 

protecting the state’s agricultural and natural resources. In view of the statutorily 

required five-year period for developing a plan, the negotiation period between the 

two regional planning groups will be limited. At the end of the time period, the 

Board must resolve the conflict for planning purposes if the two regions cannot

reach agreement. Understandably, all parties, including the Board, are in a 

learning phase in an attempt to meet the legislature’s intent and goals for a 

comprehensive state water plan. That is demonstrated by the Board’s rewriting its 

rules after the decision of the trial court.

Appellees are seeking to have the Board follow the procedure outlined in the 

statute and in the Board’s rules. Assessing a water strategy’s impact on 

agricultural and natural resources and on other economic resources of the state and 
39

then resolving major interregional conflicts during the planning phase will result in 

a more considered plan. The Board’s third issue is overruled.

This Court’s Ruling

We affirm the judgment of the district court.

TERRY McCALL

JUSTICE

May 23, 2013

Panel consists of: Wright, C.J.,

McCall, J., and Willson, J.