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Waco, City of v. Texas Comm'n on Envtl. Quality

Citation: 40 ELR 20261
No. No. 03-09-00005-CV, (Tex. App., 09/17/2010)

A Texas appellate court affirmed the Texas Commission on Environmental Quality's denial of a city's hearing request concerning a dairy's application for a major amendment to its concentrated animal feed operation permit. The amendment would allow the dairy to expand its dairy head capacity, increase its retention control structure capacity, and increase the number of acres used for land application of waste and wastewater. The Commission denied the hearing request after concluding that the city was not an "affected person." The city argued that it is an affected person because there is no dispute that the dairy could potentially discharge phosphorus into the watershed. The question before the Commission, however, was whether to grant the city affected person status with respect to the particular permit at issue. The permit under consideration did not seek to authorize a new dairy, but to modify the operations of an existing one—one that presumably was already discharging some amount of phosphorus into the watershed. The Commission determined that granting this permit would have an overall beneficial environmental impact and therefore would not adversely affect the city. This decision was within their discretion and was supported by substantial evidence. The court also rejected the city's claims that the Commission's decision violates notions of due process and fair play.