5/30/2019 9:30 PM

Velva L. Price
District Clerk
Travis County
D-1-GN-19-003030
CAUSE NO.________________________ D-1-GN-19-003030
Jessica A. Limon

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SAVE OUR SPRINGS ALLIANCE, INC., §

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Plaintiff, §

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§ IN THE DISTRICT COURT
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§ OF TRAVIS COUNTY, TEXAS

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TEXAS COMMISSION ON §
ENVIRONMENTAL QUALITY, § ________ JUDICIAL DISTRICT
345TH

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§

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Defendant.

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PLAINTIFF’S ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:

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COMES NOW Save Our Springs Alliance, Inc. (“SOS”), and files this Original Petition,

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seeking judicial review of actions of the Texas Commission on Environmental Quality

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(“TCEQ”), and in support thereof, would respectfully show the following:
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I. DISCOVERY
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This case is an appeal of an administrative agency’s actions, and therefore review is

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based on the administrative record. However, if discovery becomes necessary, it should be

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conducted in accordance with a Level 3 discovery control plan under Tex. R. Civ. Pro. 190.4.

II. SUMMARY OF CASE

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Plaintiff SOS seeks an order reversing Defendant TCEQ’s March 6, 2019 Order
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approving the application of the City of Dripping Springs (“the City”) for Texas Pollutant
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Discharge Elimination System (“TPDES”) Permit No. WQ0014488003 and issuing that
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Permit. The Permit authorizes the City to discharge up to 822,500 gallons of treated

municipal sewage every day into Onion Creek, a crystal-clear Texas Hill Country limestone
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stream that is the largest source of recharge water for Barton Springs.
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The Clean Water Act of 1972 is a comprehensive water-quality statute designed “to

restore and maintain the chemical, physical, and biological integrity of the Nation’s
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waters.” 1 The Act establishes a goal of attaining “water quality which provides for the
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1 33 U.S.C. § 1251(a).
 protection and propagation of fish, shellfish, and wildlife.” 2 Towards that end, the Act

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proclaims a “national goal that the discharge of pollutants into the navigable waters be

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eliminated by 1985.” 3

Nearly fifty years after Congress declared this national goal, and thirty-five years

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since the Congressionally imposed deadline passed, the discharge of pollutants into waters

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of the United States has not been eliminated. Instead, the discharge permit issued in the

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matter at hand represents a giant leap backwards in achieving the Clean Water Act’s

goals—not only by its untimely issuance, but because it allows pollutants at a level that will

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degrade Onion Creek and dramatically alter its existing ecological community, in violation

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of federal and state antidegradation standards.

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This case primarily focuses on the City’s proposal to discharge under all
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conditions—including critical low-flow, high- temperature conditions—orders of
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magnitude more Total Phosphorus and Total Nitrogen than currently exists in Onion Creek.
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Onion Creek is a very clear, low nutrient, high Dissolved Oxygen stream that supports
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vulnerable, unique, and endangered species that have adapted to live in this limestone Hill

Country stream environment. The massive discharge proposed by the City would change all
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of that, turning Onion Creek into a stream that is mostly treated sewage more than one-
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third of the time.

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TCEQ’s decision was based on disregard of the facts and misinterpretation of its
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own “antidegradation” rule and the underlying federal antidegradation rule that the state

standard must follow. These rules require that high-quality waters that exceed baseline
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Clean Water Act standards, like those found in our clear Texas Hill Country streams, must
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be maintained. In other words, state and federal law prohibit the high-quality water of
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2 Id. § 1251(a)(2).
3 Id. § 1251(a)(1).
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 Onion Creek to be lowered by more than a de minimis amount. 4 The record establishes that

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the permitted discharge would increase phosphorus and nitrogen pollution by far more

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than a de minimis amount. The addition of these fertilizing pollutants would increase

benthic algae growth by an order of magnitude—far more than a de minimis amount. The

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proliferation of algae in turn reduces dissolved oxygen in the water. Higher Dissolved

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Oxygen correlates to higher water quality, but the discharge would reduce dissolved

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oxygen by more than a de minimis amount. The result is a change in species composition in

Onion Creek, displacing and replacing the aquatic plant, macroinvertebrate, and fish

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communities.

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Moreover, TCEQ acted in an arbitrary and capricious manner by failing to

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meaningfully consider the City’s need for the volume of discharge requested, and also by
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ignoring the plain language of federal and state regulations providing the required
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elements of a legally sufficient public notice of the proposed discharge.

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Additionally, SOS’s due process rights were violated when SOS was deprived the
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opportunity to cross-examine a key TCEQ expert witness, and the record is incomplete and

skewed without the testimony of this witness.

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III. PARTIES
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Plaintiff Save Our Springs Alliance, Inc. is a membership association and a 501(c)(3)
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charitable corporation established in 1992 to protect the land, water, and wildlife of the
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Edwards Aquifer region and the natural and cultural heritage of the Texas Hill Country.

Members supporting SOS’s mission include landowners, conservationists, scientists, and

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recreational enthusiasts. SOS has an interest in maintaining the high quality of Onion Creek,
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and its members’ interests are adversely affected by the agency action at issue. SOS is

injured and adversely affected by TCEQ’s decision in a manner different from the general
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4An exception to this prohibition is available if the applicant presents a compelling showing of
socioeconomic need. 30 Tex. Admin. Code § 307.5(b)(2). It is not disputed that no such showing
was made in the agency proceedings.
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 public. SOS was a party and fully participated in the agency proceedings that are the subject

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of this suit.

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Mr. David Penn, a member of SOS owns property along Onion Creek less than one

mile downstream from where the proposed discharge would enter Onion Creek from the

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Walnut Springs tributary. Mr. Penn’s property is shown in the record to be the first

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property downstream from the proposed discharge that is not hosting part of the proposed

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wastewater treatment and discharge facilities. The proposed discharge will result in

elevated levels of algae growth, nitrogen, and phosphorus in Onion Creek as it flows

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through Mr. Penn’s property.

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Defendant TCEQ is an agency of the State of Texas responsible for permitting the

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treatment and disposal of municipal wastewater, and administering the laws related
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thereto, including Chapter 26 of the Texas Water Code, section 402 of the Clean Water Act,
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and chapters 213, 307, 308, 309, and 311 of the Texas Administrative Code. Defendant
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TCEQ may be served through its Executive Director, Toby Baker, at 12100 Park 35 Circle,
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Austin, Texas 78753.

IV. JURISDICTION AND VENUE

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Jurisdiction of this action lies in this Court pursuant to Texas Government Code
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§ 2001.171 and Texas Water Code § 5.351.

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Venue is proper in this Court under Texas Government Code § 2001.176 and Texas
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Water Code § 5.354.

All conditions precedent have been performed or have occurred to allow for judicial
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review of TCEQ’s decision in accordance with Texas Government Code § 2001.171 and
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Texas Water Code § 5.351.

V. PROCEDURAL BACKGROUND
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This lawsuit arises from TCEQ’s decision to issue TPDES Permit No. WQ0014488003

to the City of Dripping Springs, authorizing the City to discharge up to 822,500 gallons per

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 day of treated domestic wastewater into a tributary of Onion Creek in Hays County, Texas,

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directly impacting neighboring properties and degrading the downstream receiving

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waters.

On October 20, 2015, the City applied to TCEQ for a new TPDES permit, requesting

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authorization to discharge nearly one million gallons per day of treated wastewater

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effluent into Walnut Springs Creek, a small tributary that flows into Onion Creek.

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TCEQ’s Executive Director (“ED”) completed a technical review of the application

and issued a notice on September 23, 2016, announcing that he had made a preliminary

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decision to issue the permit. The proposed to authorize a daily average flow not to exceed

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995,000 gallons per day in the Final phase.

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On November 10, 2016, a public meeting was held in Dripping Springs, which
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approximately 350 people attended. The ED received over one thousand written
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comments on the permit, of which one hundred included requests for a contested case
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hearing. The public comment period ended at the close of the public meeting.
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TCEQ Commissioners considered the hearing requests at their regular meeting on

March 7, 2018. On March 12, 2018, TCEQ issued an Interim Order granting requests for a
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contested case hearing filed by SOS and several other parties. TCEQ referred the matter to
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the State Office of Administrative Hearings (SOAH) for an evidentiary hearing on twelve
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issues, the following of which are relevant to this appeal:

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1. Whether the Draft Permit contains sufficient provisions to

prevent nuisance odors, protect the health of the requesters and
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wildlife in the area, and be protective of the requesters’ use and

enjoyment of their property;
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2. Whether the discharged effluent will violate the aesthetic

parameters in 30 Texas Administrative Code § 307.4(b);
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3. Whether the Draft Permit will be protective of water quality and

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the uses of the receiving waters under the applicable Texas Surface
Water Quality Standards (TSWQS);

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 4. Whether the proposed discharge will comply with the applicable

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antidegradation requirements;

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5. Whether the Draft Permit is protective of groundwater in the area;

6. Whether the modeling analysis of the proposed effluent discharge

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is sufficient;

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7. Whether the Draft Permit will protect against the creation of algal
blooms;

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8. Whether TCEQ should deny or alter the terms and conditions of the

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Draft Permit based on consideration of need under Texas Water

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Code § 26.0282; and

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9. Whether the Applicant substantially complied with all applicable
notice requirements.

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The preliminary hearing was held at SOAH on May 21, 2018. The ALJs admitted the
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administrative record and numerous other exhibits, and admitted SOS and several other
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protestants as parties to this proceeding. The City supplemented the Administrative Record
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on June 14 and July 23, 2018.

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All of the protesting parties except SOS entered into a settlement agreement with
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the City in July 2018, resulting in the revised draft permit that is the subject of this case.
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The revised draft permit reduced the maximum permitted discharge volume from 995,000
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to 822,500 gallons per day, among other changes.

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The evidentiary hearing was held on August 20-22, 2018, with ALJ Craig R. Bennett
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presiding. The record closed on November 12, 2018, after the parties submitted written
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closing arguments and proposed findings of fact and conclusions of law.

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On November 16, 2018, the ALJ issued a Proposal for Decision (PFD) and Proposed
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Order recommending TCEQ approve the City’s application and issue the permit. On January
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8, 2019, after giving all parties a chance to take exceptions to the PFD and respond to these
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exceptions, substitute ALJ Casey Bell issued a letter recommending adoption of the ED’s

proposed changes to a few Findings of Fact, and still recommending issuance of the permit.

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 TCEQ Commissioners heard the matter at their regular meeting on February 27,

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2019. Representatives of the City, SOS, and the agency’s Executive Director were given five

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minutes each for oral presentations to TCEQ Commissioners. The Commissioners did not

ask any questions, and the entire matter was disposed of in about fifteen minutes.

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On March 6, 2019, TCEQ issued an Order granting the City’s application for a new

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discharge permit. SOS timely filed a Motion for Rehearing on April 1, 2019, which was

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overruled as a matter of law on April 30, 2019.

VI. FACTUAL BACKGROUND

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For over two decades, Dripping Springs has treated its municipal wastewater

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without discharging it to Onion Creek or any other public stream. This treatment has taken

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place under two TCEQ-issued “Texas Land Application Permits,” or TLAPs. TLAP-permitted
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facilities treat municipal sewage in a treatment plant and then irrigate the treated
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wastewater on land, where plants and soils assimilate the waste contaminants. TLAPs
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explicitly prohibit the discharge of treated sewage to any waterways. TLAP-permitted

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facilities have long been the standard method for managing municipal sewage in the Texas

Hill Country. Now, rather than working to eliminate discharge, as called for by the Clean
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Water Act, the City wants to abandon the subsurface drip irrigation requirements under its
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existing TLAP permits and create an entirely new discharge into a clear Texas stream.
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The effluent from the Interim II and Final Phases of the City’s permit will discharge
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into Walnut Springs Creek, then to Onion Creek in Segment No. 1427 of the Colorado River

Basin. The designated uses for this segment of Onion Creek, as determined by TCEQ, are
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high aquatic life use, public water supply, aquifer protection, and primary contact
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recreation. 5 There are currently no wastewater discharges into Onion Creek or Walnut

Springs Creek. 6
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5 Order, Findings of Fact 30 & 72.

6 SOS Ex. 7, Ross PT at 32:2-33:5.
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 VII. STANDARD OF REVIEW

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An agency’s decision must be based on substantial evidence, considering the reliable

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and probative evidence in the record as a whole. 7

In determining whether an agency decision is supported by substantial evidence,

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the reviewing court must consider only the record upon which the decision is based. 8

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Texas Government Code § 2001.060 sets forth the documents and materials that comprise

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the record in this case.

The Substantial Evidence rule is “whether the evidence taken as a whole is such that

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reasonable minds could have reached the conclusion that the agency must have reached in

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order to justify its action.” 9

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The Texas Administrative Procedure Act also provides that a court must reverse and
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remand “if substantial rights of the appellant have been prejudiced because the
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administrative findings, inferences, conclusions, or decisions are:

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(A) in violation of a constitutional or statutory provision

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(B) in excess of the agency’s statutory authority;

(C) made through unlawful procedure;
(D) affected by other error of law
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(E) not reasonably supported by substantial evidence considering the

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reliable and probative evidence in the record as a whole; or

(F) arbitrary or capricious or characterized by abuse of discretion or clearly
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unwarranted exercise of discretion. 10

In some instances, an agency decision which is supported by substantial evidence is
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nonetheless arbitrary and capricious. An agency decision may be arbitrary, even though
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supported by substantial evidence, where the agency:

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(A) denies a litigant due process.

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(B) fails to make findings of fact and instead bases its decision on findings in
another case;
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7 Tex. Gov’t Code § 2001.174.

8 Id. § 2001.175.
9 Suburban Util. Corp. v. Pub. Util. Comm’n, 652 S.W.2d 358, 364 (Tex. 1983).
10 Tex. Gov’t Code § 2001.174.

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 (C) improperly bases its decision on non-statutory criteria;
(D) abuses its discretion by basing its decision on legally irrelevant factors,

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or failing to consider legally relevant factors; or

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(E) weighs only relevant factors but still reaches a completely unreasonable

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result. 11
An agency’s decision is also arbitrary if it is made without regard for the facts, relies

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on fact findings that are not supported by any evidence, or lacks a rational connection

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between the facts and the decision. 12

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A court “may not substitute its judgment for the judgment of the state agency on the

weight of the evidence or on questions committed to agency discretion,” but must reverse

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or remand the case for further proceedings under certain circumstances. 13

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VIII. GROUNDS FOR REVERSAL OR REMAND

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SOS would show that TCEQ’s decision is in violation of statutory provisions, is
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contrary to TCEQ’s rules, is not reasonably supported by substantial evidence, and is
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arbitrary, capricious, and characterized by abuse of discretion or clearly unwarranted

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exercise of discretion. SOS’s substantial rights have been prejudiced because of TCEQ’s
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decision to grant the City’s application.

IX. ERRORS OF DEFENDANT TCEQ

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TCEQ, through its issuance of an Order granting the City’s application for TPDES
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Permit No. WQ0014488003, erred as follows:

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Claim One: As a matter of law, and based on substantial evidence in the record, TCEQ
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violated state and federal antidegradation rules that prohibit lowering of

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water quality by more than a de minimis amount, and require protection of

existing native aquatic species adapted to baseline low-nutrient conditions in
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Onion Creek.
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1. TCEQ’s federally required anti-degradation rule provides:

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11 Kawasaki Motors v. Motor. Vehicle Comm’n, 855 S.W. 2d 792, 795 (Tex. App.—Austin 1993, no
writ); City of El Paso v. Pub. Util. Comm’n, 883 S.W.2d 179, 184 (Tex. 1994).
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12 See City of Waco v. Tex. Comm’n on Envtl. Quality, 346 S.W. 3d 781, 819-20 (Tex. App.—Austin

2011), rev’d on other grounds, 413 S.W. 3d 409 (Tex. 2013).

13 Tex. Gov’t Code § 2001.174.

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 Under Tier 1 review, “[e]xisting uses and water quality sufficient to protect those
existing uses must be maintained.” 14 Under Tier 2 review:

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No activities subject to regulatory action that would cause degradation of
waters that exceed fishable/swimmable quality are allowed unless it can be

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shown to the commission’s satisfaction that the lowering of water quality is
necessary for important economic or social development. Degradation is

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defined as a lowering of water quality by more than a de minimis extent, but
not to the extent that an existing use is impaired. 15

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It is undisputed that Onion Creek is a high-quality aquatic habitat stream subject to both

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the Tier 1 and Tier 2 standards. 16 TCEQ’s Order simply ignores the plain language and

purpose of these rules and the structure of specific rules that are intended to protect

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against degradation of high-quality waters. For this reason, the decision is arbitrary,

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capricious, and unlawful.

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TCEQ’s determination, as articulated in its Order at Findings of Fact 87, 88, 90, &
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91and Conclusions of Law 12 & 13, that the Permit would not violate Tier 2 anti-
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degradation review is arbitrary and capricious because the record clearly established that
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the discharge would lower Onion Creek water quality by more than a de minimis amount. 17
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Specifically, the discharge would increase Total Phosphorus concentrations to

approximately 45 times the current baseline conditions. Total Nitrogen concentrations

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would increase to almost 100 times the current baseline conditions. Dissolved Oxygen
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levels would drop by about 30 percent below current conditions.

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3. TCEQ’s Order fails to provide a reasonable explanation for how such a major
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increase in the critical nutrient pollutants of Total Nitrogen and Total Phosphorus, and the

substantial lowering of Dissolved Oxygen, do not constitute a more than de minimis

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lowering of water quality. The interpretation TCEQ must have made, but does not explain,
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14 30 Tex. Admin. Code § 307.5(b)(1).

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15 30 Tex. Admin. Code § 307.5(b)(2); see also Tex. Water Code § 26.003.
16 See Admin. Record Tab G at 00008; Order, Findings of Fact 84, 87, 89, & 90.
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17 Because the Texas Surface Water Quality Standards (TSWQS) also contain the antidegradation

policy, TCEQ’s findings that the permit limits would satisfy TSWQS are also in error, specifically
Findings of Fact 74, 75, & 76.
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 conflicts with the plain language of the TCEQ rule and of the federal Environmental

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Protection Agency rule that the TCEQ’s rule must follow.

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4. Secondly, TCEQ’s Order lacks a sufficient or rational basis for concluding that the

City has met its burden to prove that the discharge would not impair the existing uses of

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water quality under Tier 1 Antidegradation review. 18 The overwhelming scientific record,

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set out in years of research funded by TCEQ, show that increasing Total Phosphorus over

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0.02 mg/L (20 µg/L) will cause displacement of existing aquatic life and replacement with

a different assemblage of species that is more tolerant to higher nutrient levels. 19 TCEQ

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committed legal error by failing to recognize that “impairment of existing uses” requires

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protecting the existing assemblages of aquatic species in a stream, and by ignoring the

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overwhelming scientific record showing that the permitted discharge will increase nutrient
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levels such that existing aquatic life use will be impaired.
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5. Further, TCEQ interpreted applicable federal and state regulations incorrectly by

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failing to treat Total Phosphorus (Total Phosphorus) and Total Nitrogen (Total Nitrogen) as
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pollutants subject to Tier 2 analysis. TCEQ’s Order focused only on whether Total

Phosphorus and Total Nitrogen in the discharge would result in an accumulation of

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excessive algae.
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6. TCEQ’s decision, as articulated in its Order, is arbitrary and capricious because it

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relies on an interpretation contrary to the plain text of state and federal regulations on
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antidegradation. TCEQ committed legal error by collapsing Tier 2 analysis into Tier 1,

finding that Tier 2 standards would be met under the Permit because Dissolved Oxygen
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levels would be maintained at levels sufficient to protect existing uses. TCEQ’s

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interpretation renders the regulatory text meaningless and superfluous.

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18 30 Tex. Admin. Code § 307.5(c)(2)(B).

19 SOS Ex. 7, Ross Ex. S, Ross Ex. T; Ex. APP-14 at 67.

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 a. Legal Background

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7. States are obligated under the Clean Water Act and its implementing regulations to

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develop and implement water quality standards that include, among other elements, an

“antidegradation policy” meeting federal requirements. 20 Accordingly, TCEQ promulgated

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the Texas Surface Water Quality Standards, including the antidegradation policy, in Chapter

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307 of TCEQ’s rules.

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8. TCEQ must review all wastewater discharge permits for compliance with the

antidegradation policy. TCEQ performs this review under a TCEQ-issued document titled

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Procedures to Implement the Texas Surface Water Quality Standards (“Implementation

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Procedures”), which explains the procedures TCEQ uses when applying Chapter 307,

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including the antidegradation rule, to wastewater discharge permits.
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9. Regarding a Tier 2 analysis, the Implementation Procedures provide that the “effect
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of a proposed discharge is compared to baseline water quality conditions in order to assess

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the potential for degradation of water quality.” 21 The applicable date for establishing
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baseline water quality conditions is November 8, 1975. 22 Unless there is information

indicating that degradation in ambient water quality has occurred in the receiving waters
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since that date, baseline conditions “are estimated from existing conditions, as indicated by
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the latest edition of the Texas Water Quality Inventory or other available information.” 23
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10. Thus, to determine whether the proposed regulated activity will result in
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degradation of water quality, TCEQ rules require a comparison of the baseline water-

quality conditions with the conditions that will exist once the permitted activity begins. If
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this comparison shows no change in water quality, a de minimis—i.e., “trifling” or

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“negligible”—lowering of water quality, or a water-quality improvement, the anti-

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20 33 U.S.C. § 1313; 40 C.F.R. § 131.12.

21 ED-LM-3 at 63.
22 Id.; 40 C.F.R. § 131.3.
23 ED-LM-3 at 63.

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 degradation policy is not implicated. 24 If, however, the comparison shows a loss in water

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quality that is more than de minimis, the activity will not be allowed absent a showing that

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the loss is necessary for important economic or social development.

b. Total Phosphorus and Total Nitrogen

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11. Like most Hill Country streams, Onion Creek has naturally low ambient levels of

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both phosphorus and nitrogen, two of the key nutrients that cause algae proliferation.

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12. Evidence in the record indicates that baseline concentrations of Total Phosphorus in

Onion Creek are in the range of 0.002 to 0.009 milligrams per liter (mg/L)—also expressed

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as 2 to 9 micrograms per liter (µ/L)).

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13. The Permit allows the effluent discharge to have 0.15 milligrams per liter (or 150

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micrograms/L) on a daily average, an amount equal to 1.0 pound per day in total loadings.
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The City’s own expert witness, Dr. James Miertschin, modelled the effects of the discharge
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on Onion Creek and estimated that Total Phosphorus concentrations would spike to 45
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times higher than their current baseline conditions—from about 2 micrograms per liter to
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over 90 micrograms per liter. 25

14. This discharge will result in a dramatic increase in both the concentration and the
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absolute amount of Total Phosphorus in Onion Creek. This increase in Total Phosphorus
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levels alone represents degradation beyond a de minimis amount.

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15. The Permit allows the effluent to have 6.0 mg/L of Total Nitrogen on a daily average.
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In terms of total loadings, the Permit allows forty-one pounds of Total Nitrogen per day to

be discharged into Onion Creek. Dr. Miertschin modelled the effects of the discharge on
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Onion Creek and estimated that Total Nitrogen concentrations would spike to nearly 100
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times higher than their current baseline conditions—from 50 micrograms per liter to

almost 5000 micrograms per liter. 26

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24 Black’s Law Dictionary 524 (10th ed. 2014) (defining “de minimis”).
25 SOS Ex. 9 at 1.
26 SOS Ex. 8.

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 16. This increase in Total Nitrogen levels from the proposed discharge represents

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degradation beyond a de minimis amount.

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17. The combined additions of Total Phosphorus and Total Nitrogen from the discharge

will stimulate algal and plant growth in Onion Creek resulting in significant increases in the

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growth of benthic algae beyond a de minimis amount. Again, the City’s expert witness Dr.

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Miertschin modelled the discharge’s effects on Onion Creek and testified that his “best

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estimate” was that benthic algae concentrations would increase nearly tenfold—from less

than 5 milligrams per square meter to 45 milligrams per square meter. 27

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18. TCEQ’s Implementation Procedures and guidance issued by the federal

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Environmental Protection Agency refer to the concept of “assimilative capacity” in making

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evaluations under Antidegradation Tier 2 review. “Assimilative capacity” refers to a body of
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water’s capacity to receive waste waters or toxic substances without deleterious effects
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and without damage to aquatic life or humans who consume the water. Onion Creek has
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little assimilative capacity for nutrients, so a small increase in nutrients can result in big
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changes to water chemistry and biology.

19. TCEQ’s Order includes no reference to or analysis of assimilative capacity, evincing

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the agency’s failure to conduct a legally sufficient Tier 2 antidegradation review.

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20. Because the discharge would lower water quality in Onion Creek by more than a de
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minimis amount, a showing that the discharge would be necessary for an important
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economic or social development is required under state and federal law. No such showing

was made by the City nor requested by TCEQ.

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c. Dissolved Oxygen
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21. TCEQ’s conclusion that the discharge allowed under the permit would not violate

antidegradation policy with regard to lower Dissolved Oxygen levels is arbitrary and
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capricious and not supported by substantial evidence in the record.

27 SOS Ex. 9 at 2.

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 22. Under Tier 1 antidegradation review, Dissolved Oxygen concentrations must be

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sufficient to support existing, designated, presumed, and attainable aquatic life uses. 28 In

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order to maintain the “high aquatic life” use, Onion Creek must maintain a minimum

Dissolved Oxygen level of 5.0 mg/L.

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23. The evidence indicates that baseline Dissolved Oxygen levels in Onion Creek are

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well above 6.0 mg/L. The City’s expert measured current ambient Dissolved Oxygen

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concentrations ranging from 6.89 mg/L to 8.42 mg/L Dissolved Oxygen. 29

24. TCEQ staff prepared a short memo concluding that modelling exercises, which were

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not provided, showed that Dissolved Oxygen levels would not decrease below 5.0

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milligrams per liter when measured as a twenty-four hour average. This memo does not

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provide information as to how TCEQ modeler James Michalk calculated his figures to show
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that the permit parameters would maintain Dissolved Oxygen levels above 5.0 mg/L, nor
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does it indicate what the Dissolved Oxygen levels would actually be in Onion Creek as a
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result of the discharge.

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25. The City conducted Dissolved Oxygen modelling showing that the proposed

discharge would lower Dissolved Oxygen levels to 4.87 mg/L at their lowest point, a drop
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of 30 to 40 percent below baseline conditions. 30

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26. Under the Implementation Procedures, a reduction of Dissolved Oxygen by more

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than 0.5 mg/L in a high-quality stream is likely more than de minimis. The evidence shows
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that Dissolved Oxygen will decrease by more than 1.0 mg/L as a result of the discharge.

TCEQ ignored this fact with no rational basis for doing so.
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27. The clear, unambiguous language of this regulation requires TCEQ to evaluate the
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conditions of the receiving waters with the discharge relative to the baseline conditions. An

agency abuses its discretion when it fails to consider legally relevant factors. An agency
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28 30 Tex. Admin. Code § 307.4(h).

29 AR, Tab C, Miertschin Technical Memorandum, at p. 4 (chart); APP00510.
30 Ex. APP-10-14.

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 decision—here, a decision to issue the permit—is arbitrary if it fails to follow the clear,

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unambiguous language of its own regulations. TCEQ’s failure to do so is arbitrary.

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Claim Two: TCEQ’s decision to issue the Permit is arbitrary and capricious where the
record lacked substantial evidence demonstrating that the discharged effluent

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will be protective of groundwater.

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28. Among the issues specifically referred to SOAH by TCEQ was: “Whether the Draft

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Permit is protective of groundwater in the area.” Onion Creek is a source of recharge to

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both the Trinity Aquifer and the Barton Springs segment of the Edwards Aquifer. Moreover,

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there are fifty-five private water wells supplied by the Trinity Aquifer within one mile of

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the proposed discharge point.

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29. TCEQ’s Order finds that groundwater will be protected by compliance with TCEQ’s

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Edwards Aquifer Rules by setting effluent requirements that are more stringent than the
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default rules for this watershed, “the existing karst ability to clean water,” other natural
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and chemical processes, and because protecting surface water protects groundwater. 31 The
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record, however, lacks substantial evidence to support these findings. TCEQ’s decision to
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issue the permit absent a showing that the permit will be protective of groundwater is
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arbitrary, capricious, and violates TCEQ’s own rules.

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30. The great weight of the evidence shows that karst lacks the ability to clean water. It
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is well-established in the literature that karstic systems do not have the filtering capacity of

other types of aquifers, such as sandstone, because they are comprised of porous limestone
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with caves, sinkholes, and swallets where water enters the aquifer with no filtration. 32
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Thus, karst aquifers are particularly vulnerable to pollution. Only one of the City’s experts
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claimed this alleged ability of karst to clean water, and he did not reference any studies to
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support this claim. 33 The ED did not present evidence on the supposed filtering capabilities
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31 Order, Findings of Fact 92, 93, & 94.

32 SOS Ex. 7, Ross PT at 9:13-18; 39:12-19; SOS Ex. 7, Ross. Ex. E at 4, 26.
33 Ex. APP-6, Thornhill PT at 11:19-20.

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 of karst. Rather, SOS’s expert Dr. Lauren Ross testified on how karst systems lack filtration

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power. 34 In addition, the literature overwhelmingly demonstrates the inability of karst

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systems to clean and filter water.

31. Also, there is no evidence in the record that hydrological processes such as dilution

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and evapotranspiration would serve to protect groundwater. These processes were merely

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mentioned by one of the City’s experts without providing any support or references. 35 Nor

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does the record reflect any attempt to determine whether these processes would apply

here, and to what extent. For example, there is no evidence that any calculations were done

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as to the level of dilution that would be sufficient to protect the aquifer, nor how much

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evapotranspiration would occur before the water entered a swallet and entered the

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aquifer. To the contrary, evidence in the record indicated rapid transmission of pollutants
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with little dilution or filtration. 36 In December 2017, a dye-trace study was conducted to
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study the flow paths of Onion Creek water within the Trinity Aquifer; specifically, to
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determine if flow loss measured in Onion Creek re-emerged in springs farther downstream,
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migrated into the aquifer toward wells, or both. Non-toxic, fluorescent dye was injected

into two discrete karst features downstream from the proposed discharge point. Within a
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few days of the injection, dye was detected in a domestic water well at such a high
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concentration that it was visible, indicating rapid transmission with little dilution. 37 Dye
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showed up in some wells and an Onion Creek spring within a week of injection and
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continued to appear in more wells and springs for weeks after the dye was injected. 38

32. In addition, the claimed stringency of the effluent requirements compared to the
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generally applicable standards (the Edwards Rules and the Colorado River watershed
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rules) is not evidence that the permit limits will protect groundwater. Both rules make
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34 SOS Ex. 7; Ross PT at 39:12-19.

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35 Ex. APP-6, Thornhill PT at 11:19-20.

36 SOS Ex. 7, Ross PT at 39:12-19.
37 SOS Ex. 7, Ross PT at 9:13-18; 39:12-19; SOS Ex. 7, Ross. Ex. E at 4, 26.
38 SOS Ex. 7, Ross PT at 13:4-6; Ross. Ex. H; Ross Ex. I; Ross Ex. J.

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 clear that these are the minimum requirements and more stringent requirements may be

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needed in site-specific circumstances. Thus, meeting or exceeding the effluent limits set

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therein does not guarantee protection. 39

33. And as explained above, because significant evidence in the record demonstrates

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that the surface water of Onion Creek will be degraded by the proposed discharge, it is

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arbitrary and capricious to rely on the protection of surface water to support a finding that

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groundwater will be protected.

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Claim Three: TCEQ’s decision to issue the Permit is arbitrary and capricious where

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significant record evidence demonstrated that the public notices did not
comply with state and federal regulations.

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34. TCEQ erred in determining in Finding of Fact No. 134 and Conclusion of Law No. 21

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that the City substantially complied with all applicable notice requirements. These
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determinations rest on erroneous Findings of Fact Nos. 130 and 132 stating that the
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required notices “provided a general description of the proposed discharge point.” The
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Order’s findings and conclusions that the notice provided was sufficiently descriptive are
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arbitrary and capricious, are not supported by substantial evidence, and are inconsistent
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with applicable law.

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35. Federal and state regulations implementing the Clean Water Act require public
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notices associated with a proposed discharge permit to provide “a general description of

the location of each existing or proposed discharge point.” 40

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36. Under the Permit, wastewater treatment will occur at the same site as the City’s
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current wastewater treatment facility; however, the proposed discharge point is to be

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located approximately 1.5 miles northwest of the wastewater treatment plant, across a
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highway and within a subdivision currently under construction. Thus, the discharge point
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is a significant distance upstream from the treatment plant site on Onion Creek.
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39 30 Tex. Admin. Code § 213.6(c)(3); id. § 311.43(a),(d).

40 30 Tex. Admin. Code § 39.411; 30 Tex. Admin. Code § 39.551; 40 C.F.R. § 124.10(d)(1)(vii).
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 37. None of the notices provided the legally required description of the location of the

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proposed discharge point. Rather, the notices only identify the name of the receiving

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waters: Walnut Springs and then Onion Creek. TCEQ also erred in Finding of Fact No. 133 in

determining that the United States Geological Survey Quadrangle maps use Walnut Springs

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as the proper name for the receiving stream because the evidence showed otherwise. TCEQ

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ignored the plain language of state and federal regulations in finding that the public notices

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complied with applicable notice requirements.

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Claim Four: TCEQ’s decision to issue the Permit is arbitrary and capricious where the

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record lacked substantial evidence to show that the City had a need for the
volume of discharge permitted.

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38. TCEQ erred in determining in Conclusion of Law No. 19 that the terms and

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conditions of the permit do not need to be altered based on consideration of need under
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Texas Water Code § 26.0282 and further erred in determining in Conclusion of Law No. 123
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that the City has demonstrated its need for the additional proposed discharge allowed in
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the permit. TCEQ’s decision to allow a maximum of 822,500 gallons of wastewater to be

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discharged per day is arbitrary and capricious and not supported by substantial evidence
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or consistent with applicable law. 41

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39. State law gives TCEQ discretion to deny or alter a permit’s terms based on whether
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the applicant demonstrates a need for the permit and the volume requested. 42

40. The Clean Water Act requires a five-year permit term for discharge permits issued
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by state agencies. 43 This five-year permitting cycle is intended in part to move agencies and
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permittees towards the Act’s no-discharge goal by requiring agencies to re-examine

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41 Tex. Water Code § 26.0282

42 Tex. Water Code § 26.0282.
43 33 U.S.C. § 1342(b)(1)(B).

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 permits to determine whether they are appropriate in light of changing circumstances and

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the ability of each permittee to eliminate pollutants. 44

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41. The City currently disposes of wastewater via subsurface drip irrigation on City-

owned land at the wastewater treatment plant site. This land disposal method is

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authorized by two Texas Land Application Permits (TLAPs). These permits authorize the

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City to dispose of up to 348,500 gallons per day of wastewater via land application on

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120.3 acres of non-public access land. In February 2018, the City applied for an amendment

to one of its TLAPs that would allow for land application of an additional 110,000 gallons of

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wastewater per day, for a total of 458,500 gallons per day. The City’s TLAPs do not

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authorize discharge but instead provide an alternative means to dispose of wastewater that

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avoids discharging to waters of the state, consistent with and furthering the Clean Water
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Act’s goal of eliminating discharges into waters of the United States.
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42. The City has not come close to treating the volume of wastewater authorized under
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its current or future amended TLAPs. The City’s existing facility currently processes
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approximately 90,000 gallons per day of wastewater, only one fourth of the volume it has

permission to dispose of under its current TLAPs. 45

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43. The City’s application included demand projections estimating that it would need to
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process 502,950 gallons per day by 2022—the year that the permit will expire. The City
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also projects that it will need to process 909,700 gallons per day by 2028.
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44. It was unreasonable for TCEQ to allow the 822,500 gallons per day in light of the

substantial evidence that the City will not need to discharge this volume of water during
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the entire permit term. Permitting a five-year permit based on ten years of needs
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undermines the Clean Water Act’s five-year renewal cycle and thus inhibits progress

towards its no-discharge goal.

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44See 33 U.S.C. § 1251(a); see id. § 1311(b)(2)(A) (establishing timetable for compliance as a means
to achieve no-discharge goal).
45 Ex. APP-9-02.

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 45. Authorizing disposal of 822,500 gallons per day at this time, as the Permit does,

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allows the City to renew its permit without the benefit of public participation even though

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the City will not need to discharge an amount close to this much wastewater during the

entire permit term.

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46. Additionally, TCEQ considered legally irrelevant factors in deciding to authorize the

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permitted volume. Specifically, the Order states that the City has to impose additional

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requirements on new developments because it does not yet have the capacity requested in

the permit application, and authorizing only the additional capacity the City will need in

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five years would put the City in a “continuous cycle of applying for permit amendments,

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which is neither necessary nor reasonable.” 46

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Claim Five: TCEQ acted arbitrarily and abused its discretion by relying on the
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“stringency” of this permit relative to others with no evidentiary support.
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47. TCEQ erred in declaring in Findings of Fact 47, 48, and 49 that the Permit
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incorporates some of the “most stringent” effluent limits issued in the State of Texas. These
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findings were not reasonably supported by substantial evidence considering the reliable

and probative evidence in the record as a whole. The record is devoid of any discharge
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permits with more lax effluent parameters or discharge limitations. Thus, TCEQ made an
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arbitrary and unsubstantiated comparison of the Permit at issue to other permits.

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48. The only other discharge permit in the record (introduced by SOS) for comparison
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of effluent terms is that for the Belterra subdivision, a short distance away on an Onion
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Creek tributary. 47 That permit restricts the conditions under which discharge is permitted
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to only very narrow, high-flow conditions, when the wastewater is diluted and the
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permittee cannot irrigate the land due to saturation from wet weather conditions. The
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Permit at issue contains no such restrictions. Thus, the Permit allows wastewater to be
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Order, Findings of Fact 120 & 121.

46

SOS Ex. 3 (Hays County Water Control and Improvement District No. 1, Permit No.
47

WQ0014293001); SOS Ex. 7, Ross PT at 32:20-34:7.

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 discharge into the creek even at dry times, increasing both the concentration and total load

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of pollutants in Onion Creek.

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Claim Six: TCEQ’s decision was made on unlawful procedure in violation of SOS’s
right to due process, and the ALJ’s decision to deny SOS’s request to subpoena

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TCEQ’s water quality modelling expert to testify at the hearing constituted an
abuse of discretion.

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49. The agency’s decision was made on unlawful procedure in that SOS was denied the

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right to cross-examine James Michalk, a staff member of the ED identified as an expert

witness for the ED, who made a key determination as to the discharge’s impacts to Onion

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Creek. Mr. Michalk’s written conclusions were admitted into the record; he was listed as an

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agency witness, but then not called by the agency. As soon as SOS learned that he would not

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be called, SOS sought a subpoena from the ALJ to have Mr. Michalk testify at the merits
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hearing. The ALJ denied this request without explanation at the pre-hearing conference
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held on August 16, 2018. “In a contested case, a party may conduct cross-examination
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required for a full disclosure of the facts.” 48 Accordingly, the record does not represent a
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full and true disclosure of the facts.

50. This ruling constitutes an abuse of discretion and a violation of SOS’s due process
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rights. An agency order may be invalidated for arbitrariness where the contesting parties
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are denied due process of law in the conduct of the administrative hearing. 49 “In the eyes of
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the law there is no hearing unless a fair opportunity is afforded the parties to prove their
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case before an administrative agency.” 50

X. TRANSMISSION OF RECORD
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Pursuant to Texas Government Code § 2001.175(b), SOS hereby demands that TCEQ
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transmit the original or a certified copy of the entire record of the proceeding to the Court
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within the time permitted by law for the filing of an answer in this cause.
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48 Tex. Gov’t Code § 2001.087.

49 Lewis v. Metro. Savings & Loan Ass’n, 550 S.W. 2d 11, 15 (Tex. 1977).
50 Id.

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 XI. PRAYER

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Plaintiff SOS contends that the TCEQ Order granting the application of the City of

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Dripping Springs for TPDES Permit No. WQ0014488003 in Hays County, Texas, is unlawful

for the reasons set forth herein. As a result of the unlawful and improper action of the

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agency as described above, SOS has suffered harm and prejudice to substantial rights.

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WHEREFORE, PREMISES CONSIDERED, SOS requests that TCEQ be cited and

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required to answer and appear herein, that a hearing be held, and that on final hearing

hereof, SOS have judgment of the Court as follows:

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1. Reversing and vacating the TCEQ’s decision to grant the subject permit, and finding that

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the agency’s decision was arbitrary and capricious, not in accordance with law, and
contrary to the substantial evidence in the record, taken as a whole, as set out above; or

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2. Issuing an order enjoining TCEQ and the City of Dripping Springs from taking actions in
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reliance on the approved permit until such time as a new order is entered; and
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3. Granting such further relief at law or in equity as to which SOS may be entitled.
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Dated: May 30, 2019

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Respectfully submitted,

/s/ William G. Bunch____

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William G. Bunch
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State Bar No. 03342520

bill@sosalliance.org
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Kelly D. Davis
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State Bar No. 24069578

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kelly@sosalliance.org
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Christopher Mullins
State Bar No. 24105679
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chris@sosalliance.org
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Save Our Springs Alliance

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4701 Westgate Blvd., D-401

Austin, TX 78745
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Tel: 512-477-2320
Fax: 512-477-6410
Attorneys for Plaintiff Save Our Springs Alliance
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 CERTIFICATE OF SERVICE

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On this 30th day of May, 2019, a true and correct copy of this pleading was served

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on the parties identified below via regular U.S. mail and/or electronic mail.

L.
/s/ Kelly D. Davis______
Kelly D. Davis

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Mr. Toby Baker Mr. Andrew N. Barrett

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Executive Director of the TCEQ Andy Barrett & Associates, PLLC
12100 Park 35 Circle 3300 Bee Cave Road, Suite 650 #189

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Austin, Texas 78753 Austin, Texas 78746

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TCEQ Executive Director Counsel for Applicant the City of Dripping
Springs

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Ms. Kathy Humphreys
Ms. Ashley McDonald
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Mr. Shea Pearson
Texas Commission on Environmental Quality
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Environmental Law Division

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MC-173 P.O. Box 13087

Austin, Texas 78711
kathy.humphreys@tceq.texas.gov
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Ashley.McDonald@tceq.texas.gov
Shea.Pearson@tceq.texas.gov
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Counsel for TCEQ Executive Director

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Mr. Garrett Arthur

Texas Commission on Environmental Quality
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Office of Public Interest Counsel

MC-103 P.O. Box 13087
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Austin, Texas 78711

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Garrett.Arthur@tceq.texas.gov
Counsel for TCEQ Office of Public Interest Counsel
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Mr. David J. Tuckfield

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Mr. Eric B. Storm

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The AL Law Group PLLC

12400 West Hwy 71, Suite 350-150
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Austin, TX 78738
david@allawgp.com
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Eric@allawgp.com
Counsel for Applicant the City of Dripping Springs