Party suing TCEQ over concerns of property, Edwards Aquifer contamination

Gavel - KXAN File

Comal County (KXAN) – Neighbors of a growing Comal County subdivision say treated wastewater being released from the community could negatively affect a critical Central Texas aquifer, according to a lawsuit against the state’s main environmental agency.

The small coalition of landowners living next to Johnson Ranch, a development near Bulverde along U.S. 281, are continuing a long-simmering legal battle they have waged in an effort to stop the discharge of treated wastewater through and near their properties and over areas that recharge the Edwards Aquifer. The group is now suing the Texas Commission on Environmental Quality over its granting of a permit to allow the development to discharge its treated wastewater, according to the lawsuit filed in early December.

The plaintiffs include Patricia and Terrell Graham, Margie Hastings, Asa Dunn and the Greater Edwards Aquifer Alliance, a nonprofit advocating for the preservation of the Edwards Aquifer.

Annalisa Peace, executive director of the alliance, said the discharged water could rapidly enter the aquifer after it is released onto the ground near Cibolo Creek, which recharges the aquifer.

“That water is not treated to drinking-water standards, but it will be recharging the aquifer with no filtration,” Peace said. “A lot of the local well owners do not pretreat the water that comes over their wells.”

In a recharge zone, water can flow practically uninterrupted into the aquifer, according to the alliance. Beyond the lawsuit against TCEQ, the alliance has concerns about several developments “in the pipeline” that could cumulatively discharge more than 1 million gallons of treated wastewater per day to Cibolo Creek, Peace said.

Charles Hill, vice president and CFO with DHJB Development LLC, which is the developer behind Johnson Ranch, declined to comment on the situation.

Michael McEvilly, an attorney representing the plaintiffs, said the discharged water does not flow into a legal watercourse but rather across a normally dry and grassy swail, which is one reason TCEQ should not have issued the permit. Another reason: the treated water flows very near aquifer recharge zones.

“Once they start discharging, it will seep down into the Edwards Aquifer and also down into water wells,” McEvilly said. “That is something that we just don’t think the TCEQ analyzes in these kinds of cases, and they should, and the rules say that they should.”

The lawsuit notes several other issues, including that the TCEQ violated its statutory authority, the commission made procedural errors, the wastewater could negatively impact cattle and people, and the permit violates Edwards Aquifer rules, according to the lawsuit.

A TCEQ spokesperson said the agency does not comment on pending litigation.

Legal Battle

The plaintiffs have worked for more than a year to stop the discharge of treated wastewater near their properties.

Charles Irvine, an attorney representing the plaintiffs, said the ongoing legal battle underscores problems with the integrity of TCEQ’s contested-case process.

In April 2014, TCEQ referred four issues raised by the plaintiffs to be reviewed by an independent administrative law judge, Sarah Ramos. Irvine said the contested-case process took about nine months and included discovery, hiring experts, depositions, closing arguments and written briefs. “It is not a small thing,” he said.

In November 2014, after hearing from both sides in the contested case hearing, Ramos issued a decision that the developer’s permit should be denied. However when the TCEQ took up the issue again in September 2015, the agency granted the developer’s application for a permit.

“At some point you kind of ask yourself: Why go through the whole contested-case process, when even if you win as a protestant, the TCEQ commissioners are going to ignore those fact findings and make their own?” Irvine said.

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