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THE FACTS, BRIEFLY The proposed Zumwalt project is a limestone quarry that will have a project area of approximately 30 acres within a 113 acre property. Mark Vickery, at the TCEQ headquarters office at 12100 Park 35 Circle, Austin, Texas 78753. Defendant TCEQ can be served with citation by serving its Executive Director, Mr. 213 of 30 TAC, that require the water pollution abatement plan for which approval (by the TCEQ’s Executive Director) is an issue, here. Pursuant to this authority, Defendant TCEQ promulgated the “Edwards Rules,” i.e., Ch. Defendant Texas Commission on Environmental Quality is an agency of this State responsible for, inter alia, implementation and administration of certain laws of Texas, including Chapter 26 of the Water Code. Ranchland Oaks members are dependent on the Trinity Aquifer for water for their domestic uses, and it lies immediately beneath the Edwards Aquifer at this location. The western drainage from the Zumwalt site is onto the properties of some of Ranchland Oak’s members. Among the objectives of the Association is the preservation of the qualities of the natural environment that make the properties of its members desirable. PARTIES Plaintiff Ranchland Oaks Homeowners’ Association is a membership organization of property owners in a subdivision that adjoins the Zumwalt site on its west side. Venue is proper in this court under §5.354, TEX. Jurisdiction of this action lies in this Court pursuant to §§5.351, TEX. TCEQ’s regulations provide an opportunity for persons aggrieved by the Executive Director’s approval of Edwards Aquifer protection plans to seek reconsiderations of such approvals. The TCEQ Executive Director approved Zumwalt’s document on February 4, 2010, and it is that approval this suit challenges. The controlling Austin Court of Appeals case law appears to be that there is no administrative record, absent an adjudicatory hearing. Zumwalt submitted in November 2009 and supplemented in January 2010 a document it denoted as a water pollution abatement plan. The details of such a plan are specified at 30 TAC § 213.5(b). For this activity, Zumwalt must receive from TCEQ’s Executive Director approval of its Edwards Aquifer protection plan, i.e., of its water pollution abatement plan. Zumwalt has designated this project the “FM 1283 Ranch Quarry.” This project is on and in the recharge zone of the Edwards Aquifer. (“Zumwalt”), proposes to construct and operate a rock quarry and an associated rock crushing plant on FM 1283 in northwest Medina County. (There are certain exempt activities, but those are not relevant, here.) The term, “Edwards Aquifer protection plan” encompasses a “water pollution abatement plan.” 30 TAC § 213.3(9). Construction of roads and clearing or excavation that alters or disturbs the topographic, geologic, or existing recharge characteristics of a site are specifically identified as regulated activities. The term, “regulated activity,” extends to any construction-related activity on the recharge zone of the Edwards Aquifer, which activity has the potential to pollute the aquifer or interconnected surface streams. NATURE OF THE CASE Defendant Texas Commission on Environmental Quality (“TCEQ”) has adopted regulations that prohibit the commencement of construction of any regulated activity over the Edwards Aquifer without the approval of the agency’s Executive Director for the activity’s Edwards Aquifer protection plan. Caselaw is that, in such cases, appeal is by substantial evidence de novo review.1 Furthermore, caselaw is unresolved as to what is the administrative record, if there is an administrative record, in such cases.2 The case, therefore, should be controlled by a Level 3 order, and Plaintiff may need to conduct discovery pursuant to the Texas Rules of Civil Procedure.ġ Gilder v. DISCOVERY This case is an appeal of an action of an administrative agency that occurred outside the contested case process of Chapter 2001, TEX. § IN THE DISTRICT COURT OF TRAVIS COUNTY, TEXAS, PLAINTIFF’s ORIGINAL PETITION COMES NOW Ranchland Oaks Homeowners’ Association (“Ranchland Oaks”) and files this, its original petition, seeking judicial review of actions of Defendant, the Texas Commission on Environmental Quality (“TCEQ”) and, in support thereof, would respectfully show the following. Texas Commission on Environmental Quality, Defendant. Ranchland Oaks Homeowners’ Association, Plaintiff, v.
#TCEQ WPAP PDF#
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The following was filed with the District Court in Travis County, Austin, TX today: