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Hearing ends on Belterra’s discharge permit

Monday, July 21, 2008 by Jacob Cottingham

Following a week of testimony and cross-examination, the contested case hearing on a permit amendment application by California-based Makar Properties’ to increase effluent discharge from the Belterra subdivision concluded Friday with both sides claiming the upper hand.


The parties were arguing over whether Belterra could discharge up to 500,000 gallons of treated effluent daily into Bear Creek, which flows into the Barton Springs segment of the Edwards Aquifer. If the permit were granted it would be the first instance where the state has allowed the direct discharge of effluent into the Barton Springs segment of the aquifer.


Several parties – including The Lower Colorado River Authority, the Barton Springs Edwards Aquifer Conservation District, the Hays Trinity Groundwater Conservation District and the City of Dripping Springs – signed a settlement agreement with Belterra. 


That left the protesting parties of Austin, Hays County and downstream landowners to participate in last week’s contested case hearing prior to a ruling on the permit by the Texas Commission on Environmental Quality. In the hearings, both sides presented scientific evidence over how dumping in the creek would affect water quality and how that might ultimately affect water quality in Bear Creek and Barton Springs.


Attorney David Frederick, representing Hays County, said he is optimistic of the ultimate outcome.


“I thought the protestants put on a strong case with plenty of support for the administrative law judges to recommend either permit denial or grant of a permit with all of the restrictions that were in the settlement agreement,” he said. “The settlement places strict guidelines on when treated effluent could be discharged into Bear Creek and limits such discharge to a maximum 350,000 gallons a day.”


The attorneys for protestants said the agreement affected their arguments.


“It makes it harder for the protestants to actually get the permit denied because I think the (administrative law judges) know that… if they make a misjudgment, that in all likelihood that settlement is there to backstop it, meaning the consequences of their misjudgment are not so severe,” Fredrick said.


“Legally I don’t think it hurt us at all. As a practical matter I think the settlement agreement turned into the maximum they’re going to get, if they get it at all.”


On Thursday, two witnesses provided ammunition for both sides. Lili Murphy, a water quality analyst speaking on behalf of the TCEQ administration, gave what attorney and downstream landowner Bob O’Boyle described as “amazing” testimony. Under cross-examination, he took the TCEQ water quality expert through the codes required for permitting, whereupon she admitted that TCEQ had never conducted Tier II Anti-Degradation Analysis. The lack of such a test would bolster the claim by the contesting parties that the permit is in violation of various regulations.


The rules form the basis of the case against the development, as they essentially state that water of high quality cannot be changed by a significant amount by discharging into the water. “She did not quarrel with Mr. (Lial) Tischler’s analysis and essentially admitted that this permit would cause degradation of the creek,” said O’Boyle.


On Wednesday, Lial Tischler had testified that the proposed disposal of treated effluent in Bear Creek would significantly degrade the water quality. Both Stuart Henry, an attorney representing downstream landowners, and Frederick called Tischler’s testimony their most helpful and authoritative witness.


“If TCEQ made a mistake like this, it is an important issue for the judges,” said O’Boyle, estimating the impact on the trial. “It seemed her superiors did not follow her advice as to the limitations of this permit.” Murphy had penned a memo recommending in-stream monitoring for nitrogen and phosphorus levels in the water as well as flow limitations on Bear Creek for when the effluent could be discharged. Later, superiors altered that memo without including those recommendations.


Hays County Pct. 4 Commissioner Karen Ford, also a witness on Thursday, agreed with Boyle’s sentiment. “I think she had trouble answering a lot of the questions and she contradicted herself a number of times…” Frederick said Murphy’s cross-examination, and that of her colleague Karen Holligan were influential saying both, “gave honest answers and were helpful to our case.”


The contesting parties also had a snag from one of their own witnesses.


Engineer Lauren Ross’s testimony centered on the draft permit TCEQ had issued for the 500,000 gallons of effluent released by the bio-membrane reactor, which she characterized as state of the art. “As far as we know (that plant is) better than any treatment plants in Texas right now,” Ross said. 


However, she stated that the effluent from that plant still significantly degrades Bear Creek, putting 10 times the concentration of nutrients such as phosphorus and nitrogen into the water. “These are things that if you grow tomatoes, you want them in your soil… they’re good for growing tomatoes, you do not want them in the creek.” When they are in the creek, it begins the process of eutrophication, “the basic stream degradation process we’ve been talking about for years.”


Under cross-examination, however, Ray Chester, the lawyer representing the Belterra development, used the words from her deposition against her. In the deposition, Ross had said that the permit meets the technical standards. Ross essentially said that TCEQ had “checked off all of their boxes” through a series of questions that then gave the impression that she approved of the permitting. “He tricked me,” Ross conceded

On September 8, all the parties will submit written closing arguments. The administrative law judge will then issue a recommendation within 60-90 days, The TCEQ is expected to make its final ruling in November or December.

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