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Aquifer district studies Belterra agreement permit issues

Tuesday, January 13, 2009 by Jacob Cottingham

The Barton Springs Edwards Aquifer Conservation District (BSEACD) is studying what comes next in the aftermath of the Belterra contested hearing. The Administrative Law Judges recommended that the Texas Commission on Environmental Quality approve the permit for Hays WCID 1 (Belterra) if it incorporated the terms of the settlement agreement the developers signed prior to the contested case.


That agreement is currently a contractual obligation among Dripping Springs, the LCRA, the BSEACD and Belterra. Those involved in the case have been trying to divine the TCEQ’s intentions when the issue reaches them.


Bill Dugat, the attorney for the BSEACD told the commissioners that he believes the commissioners will move forward with the permit inclusive of the settlement agreement. According to Dugat, the judges’ recommendation said, “The draft permit… without the settlement agreement is not satisfactory to protect water quality.” He said they looked at the assimilative capacity, which is the ability of the receiving stream to take in nutrients without degradation.


One of the main points of contention is the fact that TCEQ rules define that degradation nominally rather than numerically. This means that Texas does not have a specific data threshold defining degradation. Dugat cited a case out of Kentucky that concluded, “If you exceed… the assimilative capacity by 10 percent that causes degradation.” The judges used that as “a guideline, not a standard.”


The assimilative capacity of Davis Pond and Bear Creek has been exceeded by 1,000 percent and 180-200 percent, respectively, for nitrogen and phosphorus levels. Because of this, there is a potential for algae to grow in Bear Creek and in Barton Springs Pool without the settlement limits. Dugat said that they did not find any threat to the Barton Springs Salamander or the Trinity Aquifer.


Because the commission “has never really articulated a standard when it comes to degradation,” Dugat said a discrepancy between narrative and enumerative definitions would be a “key issue” before the commission. An enumerative definition would include quantitative measurements, for example a ratio of nutrients to water or a measurable number of organisms. The narrative definition uses only words, and may include generalizations in Latin such as “de minimus.” Essentially, narrative definitions are open to interpretation, while enumerative definitions are provable.


Dugat also said the Administrative Law Judges also recommended more stringent testing of the creeks before and after the discharge.


Pct. 1 Director Mary Stone asked whether those entities that refused the settlement had achieved anything worthwhile. Dugat said they had a significant impact just by possibly incorporating the settlement into the draft permit. He also remarked, “The judges said the permit drafted is a failure, it will not protect water quality,” which he called a “significant precedent.”


Sarah Baker, an environmental attorney who represented downstream landowners also told In Fact Daily she thought those continuing had achieved something. Dugat said it was rare that TCEQ reversed the judges and equally rare that the judges would give TCEQ such a rebuke on the original permit.

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