Legislators try to limit public

Input, notice in TCEQ process

Sponsors say changes needed to streamline permitting House Environmental Regulations Committee Chair Rep. Dennis Bonnen (R-Angleton) is looking for a Senate sponsor for legislation that he says would streamline and shorten the Texas environmental permit process. Opponents say the legislation would muzzle public comment and eliminate protections that become part of permits as they work their way through the Texas Commission on Environmental Quality (TCEQ).

Bonnen’s committee heard testimony yesterday on House Bill 21 and House Bill 73. Simply put, HB 21 limits who has standing in hearings at the TCEQ and HB 73 sets parameters as to which cases reach hearing, and how. Much of House Bill 21 was contained in House Bill 2877, an omnibus bill authored by Bonnen that died on the floor of the House during the regular session when Rep. Mike Villarreal (D-San Antonio) stopped it from going to conference committee.

The two bills limit the number of people who have standing in a protest and leave notification of people outside affected areas up to the discretion of the commission. The legislation also eliminates contested case hearings for some types of facilities. All of which worries environmentalists.

“Both of these bills are going to limit public participation,” Kelly Haragan of Public Citizen told the committee. “While we understand the need to shorten timelines, we’re doing that at the expense of public communication.”

Opponents of the bills, like Public Citizen, fear that the streamlined process could overlook many objections that are raised during the current hearing process by outside parties. A tighter timeline could deny opponents the chance to do proper research, Haragan said. In addition, options on public notification fail to meet federal requirements, and narrowing the radius of “affected persons” who can contest a permit is unreasonable, especially when dealing with downstream flow issues, said Harragan.

“The real value of public participation isn’t getting a permit denied. We tell people that’s probably not going to happen,” Haragan said. Most permits that do get to the contested hearing stage have already met TCEQ standards. “What the public can do is get some additional protections added to the permit, to specifically address local issues.”

The TCEQ’s lengthy permit process is a major stumbling block for new business, Rep. Warren Chisum (R-Pampa) told the committee Tuesday. Chisum is sponsoring HB 21. Toyota considered the regulatory red tape to be a major concern as Texas tried to lure the carmaker to San Antonio. It has also become an issue to smaller businesses, such as dairies, Chisum said, with many dairies choosing to relocate to New Mexico, rather than face Texas’ lengthy regulatory processes.

“In many, many areas, this timeline becomes a major factor,” Chisum told the committee. “We’re not wanting to eliminate any environmental requirements. We want to have a more predictable timeline and some certainty.”

According to a flow chart presented by Chisum, a contested permit can take up to 635 days to clear the TCEQ. Chisum estimates his bill would cut the process down to no more than 105 days for non-adjudicative hearings and 205 days for contested case hearings.

Streamlining the permit process will require putting some limits on the public participation process, Bonne said, but he added that the bills still provide plenty of opportunity for comment. Attorney Rick Lowerre, who represented a number of South Texas cities and counties at the hearing, argued that the willingness of TCEQ to redraft applications for applicants had lengthened the process far more than public participation.

Public input can be an important part of the process, Lowerre said. In a document Lowerre presented to the committee, he cited some of the exceptions where the public process stopped applications. Opponents, including the City of El Paso and the Sierra Blanca Legal Defense Fund, were able to quash a radioactive waste landfill permit. Local landowners were able to stop a permit for hazardous waste recycling in Athens by showing that the applicant failed to include wells and springs on and off the site. And stricter permit conditions were put in place to allow a discharge permit for an existing shrimp farm when Texas Parks and Wildlife Department and the Texas Shrimp Association protested.

Bonnen countered that a streamlined process at TCEQ would mean that the state agency, with its limited resources, could spend more time on enforcement and less time on the application process.

The committee discussion implied that House Bill 21 and House Bill 73 have a good chance of being merged into one bill. This session’s Environmental Regulation Committee is both pro-business and heavily Republican. After the hearing, Bonnen said he was still waiting for a sponsor of the bills on the Senate side. If no sponsor can be found, Bonnen said he would not waste time with the bill on the floor of the House. If he does find a sponsor, the bill could go to the full House as early as next week.

Supporter Shawn Glacken of the Association of Electric Companies of Texas argued that the TCEQ does a good job and is well qualified to review the 465 air, water and waste permits pulled by the state’s electric companies. More than 300 of them are issued by the TCEQ, with the balance issued by federal agencies. Streamlining the process would bring more economic development to Texas, Glacken said.

Rep. Wayne Smith (R-Baytown) argued that the lengthy process not only discourages businesses wanting to move to the state but also limits current growth in suburban areas. For example, cities that have reached capacity on wastewater plants—and must wade through the permit process for expansion approval—are forced to either turn developers away or push infrastructure into overload.

House Bill 21 limits affected parties to those who live between a quarter of a mile to a mile from the source of pollution. Chisum argues that affected parties should be those who have a legitimate interest in the permit and not those who intend to “oppose everything in the State of Texas.” Both Chisum and Bonnen said opponents of permits frequently raise objection after objection, and question whether proper notice has been filed with surrounding landowners, just to drag out the permit process.

Bonnen admitted that he had advised his own constituents to drag their feet on the permit process if they opposed a permit and it looked like the applicant “wasn’t in it for the long haul.” And Smith argued that almost any person could argue that he or she was an affected party for a water permit under current state law, given that every stream eventually flows out to the Gulf of Mexico. A line needs to be drawn some place in the law, Smith said.

Environmentalists ask for federal

Protection for cave-dwelling spider

Creature's existence threatened by SH 45 South

Three Austin-based environmental organizations have filed a petition with the US Fish & Wildlife Service to declare a rare spider as endangered and property around it as critical habitat. The habitat, according to the petition filed by the Save Our Springs Alliance (SOSA), the Save Barton Creek Association and the Austin branch of the Sierra Club, consists of only two caves, one of which would be disturbed by construction of the proposed extension of SH 45 South.

The spider, Cicurina cueva, lives only in Flint Ridge Cave and Cave X, both of which are in the Balcones Fault Zone of the Edwards Aquifer. The groups have requested that the spider be listed on an emergency basis because of the threat presented by the Texas Department of Transportation’s plans for the highway. According to the petition, which was prepared by Mark Kirkpatrick and Colin Clark of SOSA, “construction and operation of SH 45 South could eliminate 50 percent of the species’ known habitat and jeopardize its survival.”

The City of Austin purchased property, including Flint Ridge Cave, as part of the Proposition Two water quality program. “However,” the petition states, “rather than preserve the environmental integrity of the cave, Travis County acquired the right-of-way for SH 45 South adjacent to and upstream of Flint Ridge Cave from the City of Austin, which owns the drainage basin and entrance to Flint Ridge Cave . . . Part of the natural drainage basin for water flowing into Flint Ridge Cave will be paved over by the highway.” Construction of the road will also create a number of other hazards to the spider and other creatures living in the cave. The petition says blasting over the cave could result in collapse of cave passages, and disturbance of soil and vegetation near the cave will create conditions favorable to fire ant invasion. The spider, like most other species, is a potential food supply for the ants. Cave X is also threatened, according to the petition, but not to the same extent as the larger Flint Ridge Cave. According to the petition, both caves are “listed for protection” under Austin’s Section 10(a) permit. The Balcones Canyonlands Conservation Plan lists the caves as containing “species of concern.” But the environmental groups say that neither cave has gotten any meaningful protection through the BCCP, so the species must be listed. They say that TxDOT plans to award construction contracts “shortly after August 2003,” rendering the normal listing process inadequate to the task and requiring emergency listing.

Democrats vote to support

Opponents of Wal-Mart Supercenter

Group asks retailer to be a 'good corporate citizen'

The South Austin Democrats backed a resolution last night to support those opposed to a Wal-Mart Supercenter in the Barton Springs Recharge Zone in soutwest Austin.

President Jeff Jack presented the resolution, which passed unanimously with a voice vote of two-dozen members at Rosie’s Tamale House last night. In the resolution, the South Austin Democrats wrote they would recommend that the Wal-Mart be built, but only if it meets the SOS Ordinance water quality standards of 15 percent impervious cover.

“Isn’t everyone aware of the Edwards Aquifer Recharge Zone?” Jack asked the group. “Yet developers continue to put big development over the recharge zone. We can tweak this around the edges. We can fine-tune the pollution controls. But the simple fact is that more square footage on the aquifer is going to hasten the death of our drinking water.”

The new Wal-Mart Supercenter is on the Maple Run tract adjacent to South MoPac at Slaughter Lane. According to corporate plans for the site, impervious cover would be closer to 51 percent, Jack said. Even though the resolution left the door open for Wal-Mart to proceed if it met SOS standards, the likelihood of that happening is remote. The retailer is not required to meet SOS ordinance standards under an agreement made to settle a lawsuit with the original property-owner.

Environmental Board Chair Lee Leffingwell was on hand to present the city’s strongest argument against the development. Leffingwell told the crowd that the only protection from the Wal-Mart might be critical environmental features on the property. One city staff member has told Endeavor Realty, which is brokering the deal, it must provide a 300-foot setback upstream and a 100-foot setback downstream from the site, Leffingwell said.

“As far as I know, that may be the only legal hook available to stop this, other than the impervious cover issue,” Leffingwell said. “They have offered to buy some land to offset the 15 percent impervious cover, but it’s miles away. That’s ridiculous.”

The resolution—which asks all local jurisdictions to deny site development, environmental and building permits—also cites concerns about cut-through traffic across neighborhoods and chronic congestion in Southwest Travis County. It asked Endeavor “to be a good Austin Corporate Citizen and withdraw this site from consideration.”

Jack encouraged vocal opposition to the project and provided the email addresses of the Wal-Mart corporate board, Endeavor Realty, City Council members and local newspapers, among others. The only way that the fight can be won, Jack said, is through public awareness. Public opposition could “really turn the tide” in such issues, Jack said.

In Fact Daily was on vacation last week.

©2003 In Fact News, Inc. All rights reserved.

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