By Leonard Dougal & Jennifer Ferri
The Texas State Soil & Water Conservation Board (Soil Board) is responsible for the abatement and prevention of pollution resulting from agricultural or silvicultural nonpoint source pollution in the state of Texas, as provided in Section 26.1311 of the Texas Water Code. The Soil Board provides assistance relating to nonpoint source pollution control to local and regional soil and water conservation districts across Texas. The Soil Board is also charged with helping landowners develop individualized site-specific water quality management plans, as well as certifying, monitoring, and enforcing compliance with those plans, pursuant to Section 201.026 of the Texas Agriculture Code.
In addition to its obligations under the Texas Water Code and Texas Agriculture Code, the Soil Board also jointly administers the state’s Nonpoint Source Management Program under Section 319 of the federal Clean Water Act, in cooperation with the Texas Commission on Environmental Quality (TCEQ). The Soil Board’s responsibilities with respect to Section 319 include soliciting federal grant funding and administering federally-funded projects to implement the Nonpoint Source Management Program, as well as providing the EPA with all required reporting regarding those federally funded projects and any other information required by the EPA to evaluate the state’s implementation of its Nonpoint Source Management Program.
This article examines whether information contained in Texas water quality management plans may be subject to public disclosure by the Soil Board or other governmental entities, either under the Texas Public Information Act or the federal Freedom of Information Act.
Texas Public Information Act
The Texas Public Information Act (Public Information Act) makes information that is in the possession of a Texas governmental body generally available to the public, subject to certain exceptions. If a governmental body believes that an exception applies, it must request a ruling from the Texas Attorney General before it will be permitted to withhold information that is responsive to a request.
One of those exceptions, contained in Section 552.101 of the Public Information Act, permits a governmental body to withhold information “considered to be confidential by law, either constitutional, statutory, or by judicial decision.” This exception incorporates Section 201.006 of the Texas Agricultural Code, which makes certain information relating to water quality management plans confidential under law. Specifically, that provision states:
[I]nformation collected by the [Soil Board] or a conservation district is not subject to [the Public Information Act] and may not be disclosed if the information is collected in response to a specific request from a landowner or the landowner’s agent or tenant for technical assistance relating to a water quality management plan or other conservation plan if the assistance is to be provided:
- under this code; and
- on private land that:
- is part of a conservation plan or water quality management plan developed cooperatively with the state board or conservation district; or
- is the subject of a report prepared by the state board or conservation district.
The Soil Board or a conservation district may disclose information about a tract of land to the landowner, or to the landowner’s tenant or agent, or to others with the landowner’s consent. The Soil Board or a conservation district may also disclose (i) the number of acres of land that are in a particular conservation plan; (ii) the number of acres of land that are subject to a particular conservation practice; or (iii) other conservation program information, provided that such disclosures are made “in a manner that prevents the identification of a particular tract of land, the owner of the tract, or the owner’s agent or tenant.”
Section 201.006 of the Agriculture Code has not been interpreted by Texas courts. It has, however, been applied by the Texas Attorney General in decisions issued under the Public Information Act. These decisions often provide only a vague, general description of the requested information, but taken together they indicate that the scope of protected information is quite broad. The Texas Attorney General has concluded that the information protected under Section 201.006 includes, for example, the following:
- water quality management plans and portions thereof,
- “a list of poultry operations that have filed waste water plans”,
- “information pertaining to all enforcement referrals and complaints received by the [Soil Board] during a specified time period,”
- “15 categories of information relating to poultry houses, including inventories of boiler, breeder, and layer production houses in Robertson County.”
- “a list of animal feeding operations in the North Bosque River watershed.”
- “a map of the location of the Kerr County brush management cost share projects during a specified time period.”
- “the GPS coordinates of facilities under the [Soil Board’s] jurisdiction in the Lake Fork Reservoir Watershed.
The Texas Attorney General has also protected a variety of information regarding specific tracts of land and specific businesses under Section 201.006, while permitting the release of general, non-identifying information.
Note that Section 201.006(a) applies to information collected by the Soil Board, regardless of where it is being held. As such, if information collected by the Soil Board is shared with another state agency such as the TCEQ, there is a reasonable argument that the confidentiality requirement of Section 201.006 would still apply. The Public Information Act’s exception for trade secrets and competitive commercial information (Texas Government Code Section 552.110) may also apply to information related to a particular property’s water quality management plan, and as such the governmental body from whom the information is requested should notify the affected landowner or tenant of its opportunity to present arguments under this exception to the Attorney General; but note that this exception requires a showing of specific factual information, and as such may be a more difficult route to protecting water quality management plan information than invoking Section 201.006 of the Agriculture Code.
Note also that the Soil Board’s obligation to implement Section 319 of the Clean Water Act does not conflict with the Texas Agricultural Code’s confidentiality requirement. Section 319 of the Clean Water Act does not require state or local government entities to make any information available to the public, or to disclose information to anyone other than the EPA. As such, it should not bar the application of Texas Agriculture Code Section 201.006 to any Public Information Act request for water quality management plan information.
Freedom of Information Act and Clean Water Act
The federal Freedom of Information Act, 5 U.S.C. § 552, (FOIA) could be a mechanism for public access to the information contained in water quality management plans, but only if that information has been provided to a federal agency. FOIA only applies to “agencies” as defined in the Administrative Procedure Act, 5 U.S.C. § 551(1), and FOIA, 5 U.S.C. § 552(f). Under these definitions, the term “agency” does not encompass state agencies. Nor does a state agency’s role in implementing a pervasive federal regulatory scheme or spending federal funds convert it to “agency” status under FOIA. A grant of federal funds will not impose federal “agency” status on an entity absent “extensive, detailed and virtually day-to-day supervision” by the federal government. The Soil Board’s role in implementing the Texas Nonpoint Source Management Program under the Clean Water Act does not involve such extensive federal supervision, and as such it is unlikely that any FOIA request for water quality management plan information held by the Soil Board would be enforceable.
If the Soil Board or TCEQ have provided information to the EPA, however, that information would likely be subject to disclosure under FOIA in response to a request made to the EPA itself. Given the general nature of the reporting required by Section 319 of the Clean Water Act, the Soil Board may not routinely provide any information regarding specific water quality management plans to the EPA. However, the EPA does have a broad right to request “such information, data, and reports as [it] considers necessary to make the determination of continuing eligibility for grants under [Section 319]”, making it at least theoretically possible for some water quality management plan information to be obtained by the EPA and subject to FOIA. In that event, the information would be subject to disclosure unless one of FOIA’s exemptions applies.
The Clean Water Act also expressly requires that certain effluent data be made public, but that requirement likely does not apply to information held by the Soil Board. Section 308 of the Clean Water Act broadly permits the EPA to require a point source to sample effluents, install monitoring equipment, maintain records and provide other information “[w]henever required to carry out the objective of [the Clean Water Act].” Section 308 further permits the EPA or its authorized representative to copy those records, inspect monitoring equipment and take its own effluent samples. Information obtained under Section 308 must be made public unless it falls within a FOIA exemption. However, the Soil Board’s responsibility to implement the Clean Water Act is limited to Section 319, which applies only to non-point sources. As such, any effluent data held by the Soil Board would not be information “obtained under” Section 308, and thus would not be subject to the public access requirement contained therein.
As an example, an area of important focus of the Soil Board is the preparation of certified water quality management plans for poultry operations. Dry litter poultry operations, those which confine birds using bedding materials such as wood shavings, sawdust, straw or other dry absorbent materials and which do not directly discharge litter or wastewater, are not required to obtain a TPDES permit, but may be authorized for water quality purposes as non-point sources pursuant to a Soil Board certified water quality management plan. In the absence of a direct discharge to waters of the U.S., such operations are not a point source under the federal Clean Water Act, even if they exceed the head count threshold set by EPA (e.g., 125,000 chickens on litter), given the holding of Waterkeeper Alliance as confirmed by Soil Board rules. Hence, Section 308 point source information requirements would not apply to such operations.
Section 201.006 of the Texas Agricultural Code makes confidential information collected by the Soil Board or a conservation district in response to a specific request from a landowner or the landowner’s agent or tenant for technical assistance relating to a water quality management plan. While Texas courts have not interpreted this provision, the Texas Attorney General has applied it broadly in rulings under the Public Information Act to include water quality management plans themselves, as well as other information that relates to a specific property or the property’s owner or tenant. General or aggregated program information that does not identify a particular tract of land, the owner of the tract, or the owner’s agent or tenant is subject to disclosure under the Public Information Act, unless it can be established that another of the statute’s exemptions, such as the exemption for trade secret information, applies.
As state governmental entities, the Soil Board and Texas conservation districts are not subject to FOIA and would not need to comply with a FOIA request for records in their possession. However, some information in Texas water quality management plans may be in the possession of the EPA, either as a result of reporting requirements applicable to the Soil Board under Section 319 of the Clean Water Act, or as a result of point-source obligations under Section 308 of the Clean Water Act or the EPA’s own investigational efforts authorized thereunder. In that case, the information would be subject to disclosure in response to a FOIA request submitted to the EPA, unless it can be established that one of FOIA’s exemptions applies.
| 31 Tex. Admin. Code § 523.5.
 Tex. Gov’t Code Chapter 552.
 Tex. Gov’t Code § 552.101.
 Tex. Ag. Code § 201.006(a).
 Id. at § 201.006(b).
 Id. § 201.006(c).
 See Tex. Att’y Gen. OR 2009-12065 (Aug. 26, 2009 (directing the Soil Board to withhold “specified pages from the water quality management plans for two specific agricultural properties in Hopkins County”); Tex. Att’y Gen. OR2007-03032 (March 20, 2007) (directing the Soil Board to withhold “a particular dairy farm’s water quality management plan”).
 Tex. Att’y Gen. OR2018-01529 (Jan. 24, 2018).
 Tex. Att’y Gen. OR2017-18716 (Aug. 16, 2017).
 Tex. Att’y Gen. OR2008-06716 (May 16, 2008).
 Tex. Att’y Gen. OR2008-00806 (Jan. 22, 2008).
 Tex. Att’y Gen. OR2012-04641 (March 30, 2012).
 Tex. Att’y Gen. OR2010-02456 (Feb. 18, 2010).
 Compare Tex. Att’y Gen OR2018-04958 (protecting from disclosure “information pertaining to a named individual and specified properties” with Tex. Att’y Gen. OR2000-1538 (directing the Soil Board to release the estimated number of acres covered by a brush control program, the number of acres for which funds have been paid to date and the balance of the program’s funds, and further directing the Soil Board to withhold identification numbers and names of program participants).
 See Tex. Gov’t Code § 552.305.
 See Tex. Gov’t Code § 552.110(a),(b).
| See generally 33 U.S.C. § 1329.
 St. Michael’s Convalescent Hosp. v. California, 643 F.2d 1369, 1373 (9th Cir. 1981).
 See id. at 1373-74 (holding that the California Department of Health Services is not subject to FOIA though it receives funds under federal Medicaid program’s “pervasive statutory and regulatory scheme”).
 Forsham v. Harris, 445 U.S. 169, 180 (1980) (holding that private research organization was not subject to FOIA request for raw data underlying its federally-funded study).
 See U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 144-47 (1989) (holding that agency records subject to FOIA are those that been either created or obtained by an agency, and that records in the possession of an agency may be subject to FOIA even if the organization from which the documents originated is not covered by FOIA).
 For example, trade secret information and confidential commercial or financial information is exempt from disclosure under FOIA, as is certain information compiled for law enforcement purposes. See 5 U.S.C. § 552(b).
 See 33 U.S.C. § 1318(b); Envtl. Integrity Project v. EPA, 864 F.3d 648 (D.C. Cir. 2017) (holding Exemption 4 of FOIA protecting confidential commercial or financial information was not superseded by Section 308 of the Clean Water Act).
 30 Tex. Admin. Code § 321.33(f) (dry litter poultry operations).
 Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486 (2d Cir. 2005) (vacating EPA’s rule which required all CAFOs to apply for Clean Water Act NPDES permits, even absent a discharge to waters of the U.S. or to affirmatively demonstrate that they have no potential to discharge); National Pork Producers Council v. EPA, 635 F.3d 738 (5th Cir. 2011); 31 Tex. Admin. Code § 523.1(a)(1)(B) (“all animal feeding operations not required to obtain a permit from the Texas Commission on Environmental Quality are nonpoint sources”).
Leonard H. Dougal represents a diverse group of clients in complex permitting and water matters, including energy companies involved in shale development, power generation companies, real estate developers, and special utility districts. He is also active in water quality issues where he represents mining and energy companies, developers, and agricultural operators in Clean Water Act permit and compliance matters. A Chambers USA-ranked attorney in Texas for environmental matters, Leonard is a sought-after speaker at bar and continuing legal education seminars regarding emerging water law issues.
Jennifer Ferri focuses on serving electric power industry clients and large industrial power users in commercial transactions and regulatory matters. Jennifer has leveraged her experience as in-house counsel at an electric utility to advise clients on a broad range of electric power matters, including renewable power purchase agreements, energy finance transactions and regulatory proceedings. Jennifer also has a strong background in energy trading agreements, including the ISDA, EEI and NAESB agreements.
The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.