Full opinion text
OPINION BOB PEMBERTON, Justice. We withdraw the panel opinion and judgment dated September 17, 2010, and substitute the following in its place. The motion for en banc reconsideration filed by appellant, the City of Waco (City), is dismissed as moot. This administrative appeal presents several questions concerning third-party standing to obtain contested-case hearings in Texas Commission on Environmental Quality (Commission) permitting proceedings that are governed by subchapter M of water code chapter 5. See Tex. Water Code Ann. §§ 5.551-.558 (West Supp. 2010). The City challenges a Commission order denying its request for a contested-case hearing regarding the proposed issuance of a water-quality permit and a district court’s judgment affirming the Commission’s order. For the reasons explained herein, we conclude that the Commission’s order must be reversed as arbitrary and an abuse of discretion. BACKGROUND In that way that seems unique to Texas jurisprudence, this case presents significant and complex administrative law issues that arise from a dispute about cow manure — specifically, that generated by cattle at a dairy, located northwest and upriver from the City, known as the O-Kee Dairy. Because of the considerable volumes of manure and other animal waste generated by such facilities and the propensity of such waste to end up in surface or ground water, “concentrated animal feeding operations” (CAFOs) — which include dairies that confine and feed two-hundred or more cattle for extended periods in areas that do not sustain vegetation — are legally considered “point sources” of water pollution, and must obtain water-quality permits. See 30 Tex. Admin. Code §§ 321.31, .32(3), (13), (58), .33 (West 2011) (Texas Comm’n on Envtl. Quality, CAFOs). These “CAFO permits,” generally speaking, require the dairies who hold them to maintain “retention control structures” (RCSs) — basically ponds to collect runoff of manure and wastewater from the areas where cows are confined — with capacities sufficient to prevent the waste from discharging except during certain large rainfall events. However, dairy CAFO operators are allowed, subject to certain restrictions, to discard their animal waste by applying it as fertilizer to grow crops on acreage termed “waste application fields” (WAFs), a method that is not considered a “discharge” of the waste. This proceeding arises from an application by the O-Kee Dairy’s owner and operator to amend an existing CAFO permit to expand the dairy’s maximum allowable number of cows from 690 to 999 and its total waste-application acreage from 261 to 285.4 acres. Because the procedures through which the Commission considers such amendments — in particular, public-participation requirements — are central to the issues on appeal, we first review the key statutes and rules that prescribe those procedures before turning to the Commission’s application of them here. Public-participation requirements The procedures by which dairy CAFOs obtain new or amended permits with respect to water quality are governed in the first instance by chapter 26 of the water code, which governs water-quality permits generally. See Tex. Water Code Ann. §§ 26.001-.562 (West 2008). Under chapter 26, the Commission is required to give public notice of a permit application and, if requested by a commissioner, the Commission’s executive director, or “any affected person,” hold a “public hearing” on the application. Id. § 26.028(a), (c), (h). Exempt from the requirement of an opportunity for public hearing, however, are applications to amend or renew a water-quality permit that do not seek either to “increase significantly the quantity of waste authorized to be discharged” or “change materially the pattern or place of discharge,” if “the activities to be authorized ... will maintain or improve the quality of waste authorized to be discharged,” and meet certain other requirements. Id. § 26.028(d). To the extent that chapter 26 requires public notice or an opportunity for public comment or hearing in regard to a permit application, the Legislature has prescribed detailed procedures governing such notice or opportunity in chapter 5, subchapter M, of the water code. See id. §§ 5.551, .558. Enacted in 1999, subchapter M — which also governs applications for injection-well and certain solid-waste disposal permits, see id. § 5.551(a) — requires public notice of an applicant’s intent to obtain a permit once the Commission’s executive director declares the application to be administratively complete. See id. § 5.552. The executive director then conducts a technical review of the permit application and issues a preliminary decision. Id. § 5.553(a). The preliminary decision triggers a second round of public-notice requirements and a public-comment period of a duration set by Commission rule. See id. § 5.553(b), (c). During the public-comment period, the executive director may also hold a public meeting on the permit application and must do so if, among other things, he “determines that there is substantial public interest in the proposed activity.” See id. § 5.554. Following the conclusion of the public-comment period, the executive director must file a response “to each relevant and material public comment on the preliminary decision filed during the public comment period.” See id. § 5.555. After the executive director files his response to any public comments, subchap-ter M and the Commission’s rules provide an opportunity for interested persons to request reconsideration of the executive director’s preliminary decision and to request a contested-case hearing under the Administrative Procedure Act. See id. § 5.556; 30 Tex. Admin. Code § 55.201 (West 2011) (Texas Comm’n on Envtl. Quality, Requests for Reconsideration or Contested Case Hearing). Exempt from this requirement, however, are several categories of permit applications that include “minor” permit amendments — those that improve or maintain the permitted quality of the waste discharge, see id. §§ 55.201(i), 305.62(c)(2) (West 2011) (Texas Comm’n on Envtl. Quality, Consolidated Permits); see also Tex. Water Code Ann. § 26.028(d) (statutory exemption from “public hearing” requirement) — as contrasted with “major” amendments, which the Commission has defined as those that change a “substantive term, provision, requirement or limiting parameter of a permit.” See 30 Tex. Admin. Code § 305.62(c)(1). As for those categories of permit applications where an opportunity for contested-case hearing is required, the Commission must grant a hearing request only if the request is made by its executive director or the permit applicant, see id. § 55.211(c)(1) (West 2011), or, in certain circumstances, if made by a third party who is an “affected person,” see Tex. Water Code Ann. § 5.556(a)-(e); 30 Tex. Admin.Code §§ 55.201, .211(c)(2); see also Tex. Water Code Ann. § 26.028(c) (Commission, “on the request of ... any affected person, shall hold a public hearing on the application for a permit, permit amendment, or renewal of a permit.”). Conversely, the Commission is expressly prohibited from granting a contested-case hearing request unless it “determines that the request was filed by an affected person as defined by [water code] Section 5.115,” Tex. Water Code Ann. § 5.556(c), subject to its discretion to grant a hearing “if it determines that the public interest warrants doing so,” see id. § 5.556(f); 30 Tex. Admin. Code § 55.211(d)(1). In instances where the Commission has granted a contested-case hearing request, the Legislature has authorized it to delegate the task of conducting the hearing itself to the State Office of Administrative Hearings (SOAH). See Tex. Water Code Ann. § 5.311 (West Supp.2010). Water code section 5.115 currently defines “affected person” as follows: For the purpose of an administrative hearing held by or for the commission involving a contested case, “affected person,” or “person affected,” or “person who may be affected” means a person who has a personal justiciable interest related to a legal right, duty, privilege, power, or economic interest affected by the administrative hearing. An interest common to members of the general public does not qualify as a personal justiciable interest. Id. § 5.115(a) (West Supp.2010). The Commission’s pertinent rules incorporate the same definition. See 30 Tex. Admin. Code § 55.103 (West 2011) (Texas Comm’n on Envtl. Quality, Requests for Reconsideration and Contested Case Hearings; Public Comment) (“[Ajffected person” with respect to permit application “has a personal justiciable interest related to a legal right, duty, privilege power, or economic interest affected by the [permit] application. An interest common to members of the general public does not qualify as a personal justiciable interest.”), .203(a) (West 2011) (Texas Comm’n Envtl. Quality, Determination of Affected Person) (same). In water code section 5.115, the Legislature additionally mandated that the Commission “shall adopt rules specifying factors which must be considered in determining whether a person is an affected person in any contested case arising under the air, waste, or water programs within the commission’s jurisdiction and whether an affected association is entitled to standing in contested case hearings.” Tex. Water Code Ann. § 5.115(a). Pertinent to this appeal, the Commission has promulgated the following rule: In determining whether a person is an affected person, all factors shall be considered, including, but not limited to, the following: (1) whether the interest claimed is one protected by the law under which the application will be considered; (2) distance restrictions or other limitations imposed by law on the affected interest; (3) whether a reasonable relationship exists between the interest claimed and the activity regulated; (4) likely impact of the regulated activity on the health and safety of the person, and on the use of property of the person; (5) likely impact of the regulated activity on use of the impacted natural resource by the person; and (6) for governmental entities, their statutory authority over or interest in the issues relevant to the application. 30 Tex. Admin. Code § 55.203(c). Related to the final factor, the Commission has further provided that “[gjovernmental entities, including local governments and public agencies, with authority under state law over issues raised by the application may be considered affected persons.” Id. § 55.203(b). We additionally, note — as it later becomes relevant to our analysis — that the current versions of section 5.115 and related Commission rules differ from those we construed in our prior precedents addressing contested-case hearing requests before the Commission. See Collins v. Texas Natural Res. Conservation Comm’n, 94 S.W.3d 876, 881-82 (Tex.App.-Austin 2002, no pet.); United Copper Indus. v. Grissom, 17 S.W.3d 797, 800-03 (Tex.App.-Austin 2000, pet. dism’d); Heat Energy Advanced Tech., Inc. v. West Dallas Coal for Envtl. Justice, 962 S.W.2d 288, 289, 294-95 (Tex.App.-Austin 1998, pet. denied) (HEAT). At the time pertinent to those decisions, section 5.115 and Commission rules required hearing requestors to demonstrate not only that they possessed a “personal justiciable interest” in the permit application so as to be an “affected person,” but also that their request was “reasonable” (considering such factors as whether the project would decrease emissions or discharges of pollutants and “the extent to which the person requesting a hearing is likely to be impacted by the emissions, discharge, or waste”) and that it was supported by “competent evidence.” See Act of May 28, 1995, 74th Leg., R.S., ch. 882, § 1, 1995 Tex. Gen. Laws 4380, 4381; 30 Tex. Admin. Code §§ 55.27(b)(2), .31; see Collins, 94 S.W.3d at 881-82; United Copper, 17 S.W.3d at 800-01; HEAT, 962 S.W.2d at 289, 294-95. The Legislature deleted the “reasonableness” and “competent evidence” requirements in 1999 — in the same legislation in which it added subchapter M to water code chapter 5. See Act of May 30,1999, 76th Leg., R.S., ch. 1350,- § 1, 1999 Tex. Gen. Laws 4570 (codified at Tex. Water Code Ann. § 5.115). In addition to prohibiting the Commission from granting hearing requests of third parties who are not “affected persons,” subchapter M restricts the Commission from referring an issue to SOAH for a contested-case hearing unless the Commission determines that the issue (1) involves a disputed question of fact (2) that was raised during the public-comment period and (3) that is “relevant and material” to its decision on the permit application. See Tex. Water Code Ann. § 5.556(d). In the event it grants a hearing request, the Commission is additionally directed “to limit the number and scope of the issues” it refers to SOAH. Id. § 5.556(e). The water code does not prescribe a particular procedure through which the Commission is to decide requests for contested-case hearings and determine whether the requestor is an “affected person” entitled to one. See id. §§ 5.115, .556. The Commission’s rules, however, specify that a person seeking a contested-case hearing must file a written hearing request within a specified period following the executive director’s response to public comments, that the request “may not be based on an issue that was raised solely in a public comment withdrawn by the commenter” before the executive director filed his response to public comments, and that the request must “substantially comply” with rules specifying certain required contents. 30 Tex. Admin. Code § 55.201(a), (c), (d), (i). Among these required contents, the request must “list all relevant and material disputed issues of fact that were raised during the public comment period that are the basis for the hearing request,” and “identify the person’s personal justiciable interest affected by the application, including a brief, but specific, written statement explaining in plain language the requestor’s location and distance relative to the proposed facility or activity that is the subject of the application and how or why the requestor believes he or she will be adversely affected by the proposed facility or activity in a manner not common to members of the general public.” See id. § 55.201(d)(2), (4). Once a contested-case hearing request is filed, a “response” may be filed by the executive director, the director of the Commission’s Office of Public Assistance, or the applicant. See id. § 55.209(d) (West 2011). Any such response must specifically address “whether the requestor is an affected person[,] which issues raised in the hearing request are disputed[,] whether the dispute involves questions of fact or of law[,] whether the issues were raised during the public comment period[,] whether the hearing request is based on issues raised solely in a public comment [that was] withdrawn[, and] whether the issues are relevant and material to the [Commission’s] decision on the application. ...” Id. § 55.209(e)(l)-(6). The hearing requestor then has the right to file and serve a “written replfy] to a response.” See id. § 55.209(g). The rules then direct the Commission to “evaluate” the hearing request and provide it four basic options. See id. § 55.211(b)-(d). First, the Commission “may ... determine that a hearing request meets the requirements of this subchapter,” and “shall” grant the request if made by an “affected person” and the request (1) is timely filed, (2) “is pursuant to a right to hearing authorized by law,” (3) complies with the form and content requirements of rule 55.201, and (4) “raises disputed issues of fact that were raised during the [public] comment period, that were not withdrawn ... and that are relevant and material to the [C]ommission’s decision on the application.” See id. § 55.211(b)(3), (c). In that instance, the Commission must refer the disputed relevant and material fact issues to SOAH for a contested-case hearing. See id. § 55.211(b)(3). The Commission’s second option is to “determine that the hearing request does not meet the requirements of this subchapter,” and proceed to act on the permit application without a hearing. See id. § 55.211(b)(2). Its third option is to refer the hearing request itself to SOAH for a contested-case hearing and recommendation “on the sole question of whether the requestor is an affected person.” See id. § 55.211(b)(4). Finally, apart from these requirements, the Commission has discretion to grant a hearing request in the “public interest.” See id. § 55.211(d). Although the Commission’s “evaluation” of the hearing request may result in the referral of the request to SOAH for a limited contested-case hearing or the granting of a contested-case hearing on the merits of the permit application, the Commission’s rules specify that its evaluation of the request “is not itself a contested case subject to the APA.” See id. § 55.211(a). The present proceeding The Commission staff classified the O-Kee Dairy permit application as seeking a “major” amendment to the dairy’s existing water-quality permit, as opposed to a “minor” one that would be exempt for that reason from the requirement of an opportunity for a contested-case hearing. See id. §§ 55.201(f); 305.62(c). The executive director declared the O-Kee Dairy permit application administratively complete, conducted technical review, prepared a draft permit, and issued a preliminary decision that the draft permit, if issued, met all statutory and regulatory requirements. As the applicants had requested, the draft permit proposed to increase the dairy’s maximum herd size from 690 to 999 head and to expand its total waste application acreage from 261 to 285.4 acres. At the same time, however, the draft permit proposed to implement several new measures that Commission staff viewed as strengthening the overall water-quality protections at the facility, even considering the higher volumes of manure that would be produced by hundreds more cows. These included steps aimed at reducing the possibility of discharges from the dairy’s RCSs by, among other things, more than doubling their total storage capacity to 21.9 acre-feet — a capacity estimated to accommodate rainfall and runoff from a ten-day rainfall volume that would be expected to occur once every 25 years — and improving monitoring of sludge and water levels. There were also new restrictions aimed at reducing the risk of waste from the WAFs entering the water supply, including limiting waste application in accordance with the phosphorus requirements of the crops and soil, rather than nitrogen requirements, which had an estimated effect of lowering by about 40 percent the amount of waste fertilizer that could be applied in the fields. The dairy was also required to expand the size of non-vegetative buffer zones around the WAFs and to transport any excess waste off-site. The new measures purported to conform to numerous regulatory changes that had been imposed on Texas dairy CAFOs — and particularly dairy CAFOs located, like the O-Kee Dairy, northwest of Waco — during the years since the dairy had obtained its previous water-quality permit, which dated back to 1999. Although located a few miles from the river itself, the O-Kee Dairy is situated within the watershed of the North Bosque River, which rises from headwaters in Erath County, flows southeastward through Hamilton and Bosque Counties, and into McLennan County and the Waco city limits, where it joins two other branches of the Bosque and a creek in forming Lake Waco. During recent decades, the dairy industry within the North Bosque watershed has seen significant growth, bringing controversy among regulators, scientists, elected officials, and members of the public regarding the extent to which increasing volumes of animal waste being produced by the dairies are damaging water quality in the North Bos-que and, ultimately, Lake Waco. The City — for whom Lake Waco serves as a source of both its municipal water supply and its broader economic health — has been prominent among those advocating stricter regulatory limits on the dairies’ operations before the Legislature, the Commission, and in other fora. Among other complaints, the City has blamed upstream dairies for causing perceived unpalatable taste and odor in its drinking water, as well as contributing pathogens that can endanger human health. Several of the intervening regulatory changes stemmed from a 1998 determination by the Commission made to comply with the federal Clean Water Act, which requires that Texas “identify those waters within its boundaries for which the effluent limitations required by [the Act] are not stringent enough to implement any water quality standard applicable to such waters,” 33 U.S.C. § 1313(d)(1)(A) (2001). The Commission determined that two segments of the North Bosque River above Lake Waco were “impaired” under “narrative” water-quality standards — qualitative, somewhat subjective assessments of “too much,” in contrast to quantitative or numeric measures — “related to nutrients and aquatic plant growth.” These were Segment 1255, which extends from the North Bosque’s headwaters to a point just downstream from Stephenville, and Segment 1226 — the area in which the O-Kee Dairy is located — which extends from the southeast end of Segment 1225 to the point where the river flows into Lake Waco. The Commission’s identification of the two segments of the North Bosque as “impaired” triggered an obligation on its part to determine for each a “total maximum daily load” (TMDL) — essentially a plan or budget that defines the maximum amount of a pollutant that the water body can receive and attain the applicable water-quality standard. See id. § 1313(d)(1)(C). Following study and public comment from persons that included the City, the Commission in 2001 determined that soluble phosphorus, which it attributed primarily to dairies’ waste application fields and municipal water-treatment plants, was the key variable that could be controlled to limit algal plant growth in the North Bos-que River, and approved TMDLs that proposed an overall fifty-percent reduction in soluble phosphorus loading over time. After further study and comment (including comments from the City), the Commission in 2002 proposed an implementation plan through which dairies and cities could reduce phosphorus loadings. In 2004, the Commission adopted rules making parts of the plan legally enforceable. See 29 Tex. Reg. 2550-2601 (Mar. 12, 2004). Meanwhile, in 2001, the Legislature — at the City’s urging — had imposed new environmental restrictions on dairy CAFOs located in a “major sole source impairment zone” (MSSIZ) — a term that, at the time of enactment, included only the North Bos-que watershed above Lake Waco. See generally Tex. Water Code Ann. §§ 26.501-.504. The restrictions and requirements of this MSSIZ legislation included mandating that new or expanded CAFOs located within a MSSIZ obtain an individual water-quality permit — i.e., one tailored to the particular circumstances of the dairy — and barred regulation through a general permit. See id. § 26.503(a). Because general permits are among the types of permit that are exempt from the requirement of an opportunity for a contested-case hearing, see 30 Tex. Admin. Code § 55.201(i)(7), the MSSIZ legislation’s requirement of individual permits had the effect of removing that exemption for CA-FOs covered by the statute, thus opening their permitting proceedings to the potential for contested-case hearings. The Environmental Protection Agency also adopted new rules and guidelines governing CAFOs that imposed stricter waste-application and record-keeping requirements. See National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitation Guidelines and Standards for Concentrated Animal Feeding Operations (CAFOs), 68 Fed.Reg. 7176-7274 (Feb. 12, 2003). The Commission, in turn, promulgated rule amendments purporting to implement the MSSIZ legislation, the new stricter federal requirements, and other changes aimed at strengthening environmental protections at dairy CAFOs and particularly those located in the North Bosque watershed. See 27 Tex. Reg. 1511-33 (Mar. 1, 2002) (amending 30 Tex. Admin. Code §§ 321.31-35, .39, .48., .49 (West 2011)); 29 Tex. Reg. 6652-6723 (July 9, 2004) (amending 30 Tex. Admin. Code §§ 321.31-49) (West 2011). The net effect was that the O-Kee Dairy’s amended water-quality permit had to incorporate more stringent water-protection requirements than its previous one. The City timely submitted numerous comments in opposition to the proposed permit and requested a public meeting, which the executive director granted. Following the public meeting, the executive director filed his responses to public comment. With respect to the City’s complaints, which he grouped into thirty-one specific comments or sets of comments, the executive director agreed to make five changes to permit provisions governing waste application in the dairy’s WAFs or off-site, but otherwise rejected the City’s legal and factual assertions. The City then timely filed a written request for a contested-case hearing that incorporated its prior comments, replied to the executive director’s responses, and delineated the legal and factual issues it considered to be in dispute. See 30 Tex. Admin. Code § 55.201(a), (e), (d). Purporting to act both in its own behalf and as parens patriae for its citizens, the City invoked the right of an “affected person” to obtain a contested-case hearing on a “major amendment” to the O-Kee Dairy’s water-quality permit. See id. § 55.201(b)(4), (i); id. § 305.62(c)(1), (2). To comply with the requirement that it “identify [its] personal justiciable interest affected by the application, including a brief, but specific, written statement explaining in plain language [its] location and distance relative to the proposed facility or activity ... and how and why [it] believes [it] will be adversely affected by the proposed facility or activity in a manner not common to members of the general public,” see id. § 55.201(d)(2), the City presented four pages of argument that attached and incorporated two affidavits— one from a professional engineer, Bruce L. Wiland, whom the City presented as an expert in water-quality analysis, the other from the engineer who serves as the City’s water-utility director, Richard L. Garrett. The Wiland affidavit attached and incorporated roughly two-hundred pages of research studies on which the expert relied as support for his opinions. The City’s assertions concerning its personal justicia-ble interest in the O-Kee Dairy permit application, which essentially track the assertions and opinions of the two experts, can be summarized, as follows: • The City possesses a personal justiciable interest in the quality of the water in Lake Waco because it owns all adjudicated and permitted rights to the water impounded in the lake and uses the water as its sole source of supply for its municipal water utility, exclusive of emergency connections. The City must treat the water to ensure that it is safe for uses that include drinking and bathing and that it will be regarded as palatable by the customers to whom the City sells the water, including 113,000 City residents, approximately 45,000 residents of surrounding municipalities, and major industrial customers “that place a premium on the quality of the water they use.” Otherwise, the City is placed at a competitive disadvantage in preserving and growing its water-utility customer base and, ultimately, its broader economic health. • For many years, the City has received complaints about offensive taste and odor in its drinking water. The source of these problems has proven to be a geosmin (earthy odor) produced by decaying algae that grows in Lake Waco during warm weather. Beginning in the 1980s, Lake Waco began to experience more frequent and longer durations of algal blooms, with correspondingly more taste and odor problems in the City’s drinking water. To counter these problems, the City has incurred escalating costs in attempting to treat the water. Despite these additional expenditures, current treatment methods (chiefly, the use of powdered activated carbon) have repeatedly fallen short of eliminating the geosmin, necessitating that the City deliver offensive smelling and tasting water to customers for the time being and that it plan and budget to install different and more expensive water-treatment systems in the future. • There is a causal linkage between the increasing algal growths in Lake Waco (and resultant taste and odor problems in the City’s drinking water) and phosphorus loading from dairies upstream in the North Bosque watershed. The North Bosque contributes approximately ' 64 percent of the total flow into Lake Waco and over 72 percent of the total phosphorus loading to the lake. Between 30 to 40 percent of the lake’s total phosphorus load is attributable to dairy operations in the North Bosque watershed, most of which stems from runoff and discharges that occur during heavy rainstorms. This phosphorus loading attributable to dairies in the North Bosque watershed, in turn, is the primary cause of the lake’s heavy algal growth. • In addition to contributing nutrients that lead to algal growth and, ultimately, to taste and odor problems in drinking water, CAFOs in the North Bosque watershed are also a source of bacteria and other pathogens entering Lake Waco. In addition to driving up water treatment costs, the presence of these pathogens in the lake endanger the health and enjoyment of the City’s many citizens who swim, fish, sail, ski, and engage in other water recreation there. • If the problems with the proposed 0-Kee Dairy permit identified in the City’s comments are not remedied to any greater extent than described in the executive director’s response, the increases in the dairy’s herd size from 690 to 999 will increase the amounts of phosphorus and bacteria transmitted from the dairy, its waste application fields, and third-party fields into the North Bosque and downstream to Lake Waco, where it will contribute to increased algal growth, more bacteria, and the problems that follow. Although Lake Waco is approximately eighty miles downstream from the O-Kee Dairy, the distance does not substantially reduce these adverse effects because the primary mechanism through which these pollutants are transported are heavy rains, which can deliver the pollutants downstream in as little as 3-5 days. The executive director timely filed a response in opposition to the City’s contested-case hearing request. See id. § 55.209(d), (e). He did not dispute that the City, if an affected person, would have a legal right to a contested-case hearing and conceded that the City’s request met the Commission’s formal and procedural requirements governing hearing requests, see id. §§ 55.201, ,211(c)(2)(B)-(D), including providing the requisite “brief, but specific, written statement” explaining the City’s personal justiciable interest, id. § 55.201(d)(2). The executive director further concluded that the City had identified nine disputed and material fact.issues or sets of issues that it had timely raised in its comments, not withdrawn, and that would be referable to SOAH. See id. §§ 55.201(d)(4), .211(c)(2)(A). The executive director disputed only whether the City met the requirement of an “affected person” with regard to the O-Kee Dairy permit. The executive director analyzed the City’s request under the non-exclusive “factors” that the Commission “considers” under its rules to identify “affected persons.” See id. § 55.203(c). He first observed that the City has no legal authority to regulate dairies outside its territorial jurisdiction or to enforce CAFO regulations in particular. See id. § 55.203(b) (“ [governmental entities ... with authority under state law over issues raised by the application may be considered affected persons”), (c)(6) (“for governmental entities, their statutory authority over or interest in the issues relevant to the application”). On the other hand, observing that the City had water rights in Lake Waco, the executive director acknowledged that the City’s “interest in maintaining water quality in Lake Waco is protected by the rules and regulations covering this permit application and there is also a reasonable relationship between the interest claimed and the activity regulated.” See id. § 55.203(c)(1) (“whether the interest claimed is one protected by the law under which the application will be considered”), (3) (“whether a reasonable relationship exists between the interest claimed and the activity regulated”). “However,” the executive director reasoned, “the distance from the dairy to the City of Waco and Lake Waco weigh heavily against Waco’s claim that they are an affected person for purposes of this particular permit application.” See id. § 55.203(4) (“likely impact of the regulated activity ... on the use of property of the person”), (5) (“likely impact of the regulated activity on use of the impacted natural resource by the person”). In support of that conclusion, the executive director relied on two sets of basic propositions: • The extent of any discharge from- the dairy’s RCSs that would be allowed by the permit, he suggested, would be rare or insignificant, occurring only “in the event of a rainfall event that exceeds the 25-year, 10-day storm event for this area.” As for runoff from the dairy’s ■ waste-application fields and third-party fields, the executive director reasoned it is considered non-point source runoff and exempt agricultural runoff that was not regulated so long as waste was applied in compliance with the permit and applicable rules. Further elaborating on these issues, the executive director attached the draft permit, his responses to public comment, and a “fact sheet” detailing his position that the amended permit, despite authorizing hundreds more cows, would nonetheless be “more stringent” in terms of water-quality protections than the existing one. • “Assuming the dairy had a discharge,” the executive director added, it would be unlikely to impact Lake Waco because the dairy is approximately 7.2 downstream miles from reaching the North Bosque, then another 75 miles before the North Bosque reaches the point where it empties into the lake. “At 82 miles upstream,” he reasoned, “the distance is such that ... assimilation and dilution would occur long before the water reaches Lake Waco.” “However, even if the discharge could somehow survive the 82 mile trip downstream,” the executive director further reasoned, “it would then have to survive further dilution to travel an additional 6.8 miles across Lake Waco” to reach the City’s municipal water intake point. The executive director did not cite to any support for these conclusions other than to attach a map illustrating the distances described. The executive director also urged several broader policy or administrative justifications for denying the City’s hearing request. He argued that the City’s claim to affected-person status implied that “any city in Texas can challenge any permit upstream of their drinking water supply, without regard to distance, through the [contested-case hearing] process.” He further suggested that the City’s real issue “is not the potential contamination that could be caused by this particular dairy, but the cumulative effects of all dairy CAFO operations in the North Bosque watershed,” going as far as to assert that “[n]one of the documentation submitted by [the City] identifies the Applicant fiy name as a source of nutrients.” Similarly, urging that “many” of the City’s complaints were in reality challenges to the underlying CAFO rules, the executive director criticized the City for an “entirely inappropriate” use of a contested-case hearing on a single permit to vent concerns that are properly addressed through rule-making or statutory change. The City filed a reply in support of its hearing request. See id. § 55.209(g). It specifically disputed, among other things, whether the proposed permit would ensure compliance with Commission rules, the TMDLs, or the federal Clean Water Act; the factual accuracy of the executive director’s assertions regarding “assimilation” and “dilution” of pollutants; the director’s policy views regarding cumulative impacts; and his attempt to characterize the City’s arguments as implicating only the upstream dairy industry as a whole and not the O-Kee Dairy permit in particular. The City presented a supplemental affidavit from Wiland in which he elaborated on the bases for his opinions, citing a study of nutrient loading in Lake Waco by Dr. Kenneth Wagner, and further detailing his opinions regarding a causal linkage between specific claimed deficiencies in the proposed permit and water-quality problems in Lake Waco. In part, Wiland opined that the proposed permit allowed excessive application of waste to WAFs and did not address application to third-party fields at all, that the nutrients and pollutants would be washed off the fields in the watershed and into the North Bosque during wet weather, that the permit aggravated the problem by permitting waste application to saturated fields, and that the same wet conditions would speed transmission (and reduce any natural attenuation) of pollutants to Lake Waco. The Commission subsequently considered the City’s hearing request and the O-Kee Dairy permit application in a public meeting. See id. § 55.209(g). It is undisputed that no further evidence was presented on the hearing request. The Commission denied the City’s hearing request without referring it to SOAH. See id. § 55.211(b). Its order elaborated only that it had evaluated the request “under the requirements of the applicable statutes and Commission rules, including 30 Texas Administrative Code (TAC) Chapter 55,” and considered the “responses to the hearing request filed by the Executive Director, the Office of Public Interest Counsel, the Applicant; the City of Waco’s reply; and all timely public comment.” In the same order, the Commission also proceeded to adopt the executive director’s response to public comment, approved the permit amendment, and issued the permit as the executive director had proposed. The City sought judicial review of the Commission’s order. See Tex. Water Code Ann. §§ 5.351, .354 (West Supp.2010). During the pendency of the suit, the Commission supplemented the administrative record to include not only the filings in the O-Kee Dairy permitting proceeding, but additional agency documents, created prior to its order, reflecting its study and actions concerning broader water-quality issues in the North Bosque watershed and Lake Waco. These documents included the 2001 TMDLs for the North Bosque watershed, the 2002 implementation plan for the TMDLs, the Commission’s responses to public comment concerning the TMDLs and implementation plan (including comments from the City), 2004 and 2008 status reports concerning implementation of the TMDLs, and 2002 water-quality assessments pertaining to Lake Waco and the North Bosque watershed. The district court affirmed the Commission’s order in full. This appeal ensued. See id. § 5.355 (West Supp.2010). ANALYSIS In a single issue, the City asserts that the Commission “erred” in denying its request for a contested-case hearing and that the district court similarly erred in affirming the Commission’s order. Although the Commission did not elaborate in its order on its specific grounds for denying the City’s hearing request, nor did it enter findings of fact and conclusions of law, the parties agree that the order is founded on an ultimate legal conclusion that the City had failed to demonstrate that it is an “affected person” with respect to the O-Kee Dairy permit application under the meaning of the water code provisions and Commission rules that govern its right to a contested-case hearing. The Commission thus concedes that, as its executive director determined, the City’s hearing request raised disputed, relevant, and material fact issues regarding the O-Kee Dairy permit application and otherwise complied with the procedural and substantive requirements that would entitle the City, if an “affected person,” to a contested-case hearing on the application. See id. § 5.556(c), (d); 30 Tex. Admin. Code §§ 55.201, .211(b)(3), (c). The City challenges this ultimate legal conclusion with essentially two sets of arguments. In the first, the City contends that the Commission’s conclusion is predicated on an erroneous construction of “affected person” as defined under the water code and Commission rules. The City’s second set of arguments concerns the factual bases on which the Commission would have impliedly relied in reaching that conclusion. We consider each in turn. “Affected person” Our resolution of the City’s first set of arguments turns on statutory construction, which presents a question of law that we review de novo. See State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006). Our primary objective in statutory construction is to give effect to the Legislature’s intent. See id. We seek that intent “first and foremost” in the statutory text. Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex.2006). “Where text is clear, text is determinative of that intent.” Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex.2009) (op. on reh’g) (citing Shumake, 199 S.W.3d at 284). We consider the words in context, not in isolation. See State v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002). We rely on the plain meaning of the text, unless a different meaning is supplied by legislative definition or is apparent from context, or unless such a construction leads to absurd results. See Entergy Gulf States, Inc., 282 S.W.3d at 487; City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex.2008); see also Tex. Gov’t Code Ann. § 311.011 (West 2005) (“Words and phrases shall be read in context and construed according to the rules of grammar and common usage,” but “[w]ords and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.”). We also presume that the Legislature was aware of the background law and acted with reference to it. See Acker v. Texas Water Comm’n, 790 S.W.2d 299, 301 (Tex.1990). We further presume that the Legislature selected statutory words, phrases, and expressions deliberately and purposefully. See Texas Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex.2010); Shook v. Walden, 304 S.W.3d 910, 917 (Tex.App.Austin 2010, no pet.). These principles have application even where, as here, the judgment or order on appeal is predicated on an administrative agency’s construction of a statute that it is charged with administering. See Railroad Comm’n of Tex. v. Texas Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 624-25 (Tex.2011). The Commission emphasizes that there are circumstances in which courts must give deference — “serious consideration” — to an agency’s construction of a statute it is charged with administering. See id.; Fiess v. State Farm Lloyds, 202 S.W.3d 744, 747-48 (Tex.2006). However, as the Texas Supreme Court has recently made clear, this rule of deference applies only when the statute in question is ambiguous — i.e., susceptible to more than one reasonable interpretation — and only to the extent that the agency’s interpretation is one of those reasonable interpretations. See Texas Citizens for a Safe Future & Clean Water, 336 S.W.3d at 624-25. Consequently, to determine whether this rule of defei’ence applies, a reviewing court must first make a threshold determination that the statute is ambiguous and the agency’s construction is reasonable — questions that turn on statutory construction and are reviewed de novo. See id. at 625. The “serious construction” rule is further limited and qualified by, among other things, the principle that courts give less deference to an agency’s construction of a statute that does not lie within its administrative expertise or pertains to a non-technical issue of law. See id. at 630 (citing Rylander v. Fisher Controls Int’l, Inc., 45 S.W.3d 291, 302 (Tex.App.-Austin 2001, no pet.)). Similarly to the “serious consideration” rule where it applies, we defer to an agency’s interpretation of its own rules unless that interpretation is plainly erroneous or inconsistent with the text of the rule or underlying statute. See Public Util. Comm’n v. Gulf States Util. Co., 809 S.W.2d 201, 207 (Tex.1991); Tennessee Gas Pipeline Co. v. Rylander, 80 S.W.3d 200, 203 (Tex.App.-Austin 2002, pet. denied). We construe administrative rules in the same manner as statutes since they have the force and effect of statutes. Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248, 254 (Tex.1999). As previously noted, the Commission rules that control the City’s right to a contested-case hearing all incorporate a definition of “affected person” found in water code section 5.115. See 30 Tex. Admin. Code §§ 55.103, .203. Section 5.115, in turn, defines an “affected person” as one “who has a personal justiciable interest related to a legal right, duty, privilege, power, or economic interest” in the matter at issue, and not merely “[a]n interest common to members of the general public.” Tex. Water Code Ann. § 5.115(a). The City argues that “affected person” as defined in water code section 5.115 must be construed in accordance with case decisions espousing an expansive view of standing to participate in administrative hearings. See, e.g., Fort Bend County v. Texas Parks & Wildlife Comm’n, 818 S.W.2d 898, 899 (Tex.App.-Austin 1991, no writ) (observing that “[a]s a matter of policy, the right to participate in agency proceedings is liberally construed in order to allow the agency the benefit of diverse viewpoints”); Texas Indus. Traffic League v. Railroad Comm’n of Tex., 628 S.W.2d 187, 197 (Tex.App.-Austin 1982) (reasoning that “[s]ince administrative proceedings are different from judicial proceedings in purpose, nature, procedural rules, evidence rules, relief available and the availability of review, ... one’s right to appear in an agency proceeding should be liberally recognized,” and that “[a]ny stricture upon standing in an administrative agency would ... be inconsistent with the proposition that the agency ought to entertain the advocacy of various interests and viewpoints in determining where the public interest lies and how it may be furthered”), rev’d on other grounds, 633 S.W.2d 821 (Tex.1982). The Commission responds that the Legislature intended section 5.115’s “affected person” definition to do precisely the opposite. It observes that the definition of an “affected person” or “person affected” as one having a “justiciable interest” not common with the “general public” tracks the jurisprudence addressing constitutional standing requirements in court, see Hooks v. Texas Dep’t of Water Res., 611 S.W.2d 417, 419 (Tex.1981), which are more restrictive than the standing concepts generally applicable at the agency level, see Texas Rivers Prot. Ass’n v. Texas Natural Res. Conservation Comm’n, 910 S.W.2d 147, 151 (Tex.App.-Austin 1995, writ denied). Further, citing anecdotal legislative history, the Commission maintains that the Legislature intended section 5.115 to combat perceived overuse or misuse of contested-case hearings in Commission permitting proceedings. See Senate Comm, on Natural Resources, Bill Analysis, Tex. S.B. 1546, 74th Leg., R.S. (1995). Consequently, the Commission reasons, the judicial standing requirements that the Legislature incorporated into section 5.115 must be applied “narrowly” or “restrictively” in light of the legislative intent to limit access to contested-case hearings. We agree with the Commission, but only in part. As this Court has previously observed, a “personal justiciable interest” not common to members of the “general public” — the cornerstone of section 5.115’s “affected person” definition — denotes the constitutionally minimal requirements for litigants to have standing to challenge governmental actions in court. See HEAT, 962 S.W.2d at 295 (observing that Commission’s associational standing rules that incorporated section 5.115’s “affected person” requirement were “clearly derived” from constitutional standing requirements articulated in Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446-47 (Tex.1993)); accord United Copper, 17 S.W.3d at 803. As we recently summarized these constitutional standing requirements and their purposes: The general test for constitutional standing in Texas courts is whether there is a “real” (i.e., justiciable) controversy between the parties that will actually be determined by the judicial declaration sought. See [Texas Ass’n of Bus., 852 S.W.2d] at 446. Constitutional standing is thus concerned not only with whether a justiciable controversy exists, but whether the particular plaintiff has a sufficient personal stake in the controversy to assure the presence of an actual controversy that the judicial declaration sought would resolve. See Patterson v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex.1998); Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 662 (Tex.1996). The requirement thereby serves to safeguard the separation of powers by ensuring that the judiciary does not encroach upon the executive branch by rendering advisory opinions, decisions on abstract questions of law that do not bind the parties. See Texas Ass’n of Bus., 852 S.W.2d at 444. For a party to have standing to challenge a governmental action, as a general rule, it “must demonstrate a particularized interest in a conflict distinct from that sustained by the public at large.” South Tex. Water Auth. v. Lomas, 223 S.W.3d 304, 307 (Tex.2007); see Brown v. Todd, 53 S.W.3d 297, 302 (Tex.2001) (“Our decisions have always required a plaintiff to allege some injury distinct from that sustained by the public at large.”); Tri County Citizens Rights Org. v. Johnson, 498 S.W.2d 227, 228-29 (Tex.Civ.App.-Austin 1973, writ refd n.r.e.) (“It is an established rule ... that ‘... sufficiency of a plaintiffs interest (to maintain a lawsuit) comes into question when he intervenes in public affairs. When the plaintiff, as a private citizen, asserts a public, as distinguished from a private, right, and his complaint fails to show that the matters in dispute affect him differently from other citizens, he does not establish a justiciable interest.’”) (quoting 1 Roy W. McDonald, Texas Civil Practice § 3.03, at 229 (rev. vol.1965)). Stop the Ordinances Please v. City of New Braunfels, 306 S.W.3d 919, 925-26 (Tex.App.-Austin 2010, no pet.) (footnote omitted) (STOP). By crafting a definition of “affected person” that precisely mirrors these standing principles and incorporating it into the statute governing contested-case hearing requests in water-quality permitting proceedings, the Legislature unambiguously manifested its intent that those same principles govern standing to obtain a contested-case hearing in those proceedings. See Entergy Gulf States, Inc., 282 S.W.3d at 437 (where statutory terms have acquired a technical meaning, we apply that meaning); Acker, 790 S.W.2d at 301 (we presume the Legislature was aware of background law); State v. Young, 265 S.W.3d 697, 705-07 (Tex.App.Austin 2008, pet. denied) (applying similar analysis to determine that Legislature’s use of the phrase “has been granted relief based on actual innocence” in wrongful-conviction statute denoted relief obtained through habeas corpus and not direct appeal). To possess standing under these principles with regard to the O-Kee Dairy permit application, the City had to establish: (1) an “injury in fact” from the issuance of the permit as proposed — an invasion of a “legally protected interest” that is (a) “concrete and particularized” and (b) “actual or imminent, not conjectural or hypothetical”; (2) the injury must be “fairly traceable” to the issuance of the permit as proposed, as opposed to the independent actions of third parties or other alternative causes unrelated to the permit; and (3) it must be likely, and not merely speculative, that the injury will be redressed by a favorable decision on its complaints regarding the proposed permit (i.e., refusing to grant the permit or imposing additional conditions). See Brown v. Todd, 53 S.W.3d 297, 305 (Tex.2001) (quoting Raines v. Byrd, 521 U.S. 811, 818-19, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997), Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)); STOP, 306 S.W.3d at 926-27; Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871, 878 (Tex.App.-Austin 2010, pet. denied). Together, these elements serve to limit court intervention to disputes that the judiciary is constitutionally empowered to decide by “ensuring] that the plaintiff has a sufficient personal stake in the controversy so that the lawsuit would not yield a mere advisory opinion or draw the judiciary into generalized policy disputes that are the province of the other branches.” STOP, 306 S.W.3d at 927 (citing Lujan, 504 U.S. at 569, 576-78; Save Our Springs Alliance, Inc., 304 S.W.3d at 894). Consequently, as the Commission observes, the “personal justiciable interest” requirement is more restrictive than the standing concepts that ordinarily govern the public’s right to participate in executive agency proceedings. See, e.g., Texas Rivers Prot. Ass’n, 910 S.W.2d at 151; Fort Bend County, 818 S.W.2d at 899. The City also insists that to establish its “personal justiciable interest” in the O-Kee Dairy permit application, it need not prove the “merits” of its objections to the proposed permit, but only show that some “potential harm” would result if the permit was issued as proposed. The City is correct to the extent that the existence of the injury-in-fact required for constitutional standing is conceptually distinct from the ultimate question of whether the plaintiff has incurred a legal injury — i.e., whether the plaintiff has a valid claim for relief on the merits. See STOP, 306 S.W.3d at 926-27 (citing Hunt v. Bass, 664 S.W.2d 323, 324 (Tex.1984)). This distinction is reflected in our precedents addressing contested-case hearing requests before the Commission. See United Copper, 17 S.W.3d at 802-04; HEAT, 962 S.W.2d at 295. United Copper involved a 1997 application for an air-quality permit by United Copper Industries, Inc., to operate two copper-melting furnaces, facilities that would emit copper and lead particulate matter into the air. 17 S.W.3d at 799-800. After United Copper submitted its application with research data predicting levels of ground-level emission concentration that would result from the operation, the Commission determined that the proposed facility would not have any negative impact on the health or property interests of the public in the surrounding area — a finding required before the Commission could issue the permit under the then-applicable version of the health and safety code. Id. at 800 (citing Tex. Health & Safety Code Ann. § 382.0518(b) (West Supp.2000)). Following public notice of the permit application, Grissom, who lived within two miles of the proposed facilities, sent a letter to the Commission requesting a contested-case hearing on the application. Id. at 800. In his letter, Grissom expressed concern that the facilities would have adverse health effects on himself and his two sons, all of whom suffered from serious asthmatic conditions. Id. United Copper filed a response urging that, with reference to the then-applicable, pre-1999 version of water code section 5.115 and Commission rules, the hearing request should be denied because (1) Gris-som was not an “affected person,” (2) the hearing request was “unreasonable,” and (3) Grissom had failed to present “competent evidence” (or, for that matter, any evidence) in support of his request. Id. The Commission’s executive director, on the other hand, filed a response conceding that Grissom was an “affected person” but urging that his hearing request should be denied as “unreasonable” in the view that United Copper’s uncontroverted evidence “established that the emissions would probably not negatively affect Grissom, his family, nor any other members of the pub-lie.” Id. Grissom did not file a reply in support of his hearing request, nor did he ever submit evidence. See id. At a subsequent public meeting, the Commission, concluding that Grissom had failed to meet the requirements for obtaining a contested-case hearing, denied his request and proceeded to grant United Copper’s permit application. Id. at 800-01. Grissom sued for judicial review, contending that, at a minimum, he was entitled to a “preliminary hearing” at which he would have an opportunity to present evidence in support of his request. Id. at 801. The district court agreed, deciding that the Commission erred in determining that the hearing request was unreasonable and not supported by competent evidence without first providing Grissom a preliminary hearing at which he could offer evidence, and remanding the proceeding to the Commission for that purpose. Id. at 801-02. Both United Copper and the Commission appealed. Of immediate relevance, United Copper argued that the district court should have upheld the Commission’s order because the research data it submitted with its permit application, which Grissom never controverted, conclusively established that Grissom’s health, safety, and property would not be affected by its operations and, consequently, that he was not an “affected person.” See id. at 802-03. This Court disagreed that United Copper’s evidence negated any effect of the proposed operation on Grissom or his family, observing that the data actually “indicates that the operations will result in increased levels of lead and copper at the site of Gris-som’s home and the elementary school one of his sons attends.” Id. at 803-04. Consequently, we reasoned, the data “does not prove that Grissom and his family will not be affected” so as to have a personal justi-ciable interest in the permit, but only “merely suggests that Grissom may not be affected to a sufficient degree to entitle him to prevail in a contested-case hearing on the merits of his case against United Copper’s application.” Id. at 803 (emphasis in original). In this regard, “United Copper,” this Court explained, “confuses the preliminary question of whether an individual has standing as an affected person to request a contested-case hearing with the ultimate question of whether that person will prevail in a contested-case hearing on the merits.” Id. (emphasis in original) (citing HEAT, 962 S.W.2d at 295). Relying on United Copper’s own proof regarding the effect of its proposed operations and the factual allegations in Gris-som’s hearing request regarding his close proximity to the facility and “unique health concerns,” the Court held that Grissom and his family had a personal justiciable interest in United Copper’s permit application because they faced “potential harm” from the permitted activity. Id. at 803-04. HEAT, on which United Copper relied in part, involved the application by an operator of a hazardous waste storage and processing company to renew the Commission permit under which it conducted its business. See HEAT, 962 S.W.2d at 289. Invoking a statutory right of “persons affected” — as defined by the pre-1999 version of water code section 5.115 — to a contested-case hearing on the application, a coalition of residents who lived near HEAT’s facility requested a hearing based on the affected-person status of indiv