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The Texas Commission on Environmental Quality met to hear a regular docket. This report focuses on BRA’s water rights permit application and publication of rules changes implementing Senate Bill 912 (84th).
 
Item 1. TCEQ Docket No. 2005-1490-WR; SOAH Docket No. 582-10- 4184.
Consideration of the Administrative Law Judges’ Proposal for Decision on Remand regarding the application of Brazos River Authority (BRA) for a new Permit No. 5851 pursuant to rules of the Texas Commission on Environmental Quality and Tex. Water Code Chapter 11 to authorize a new appropriation of state water, which includes return flows in the basin for multiple uses including domestic, municipal, agricultural, industrial, mining, and other beneficial uses on a firm basis in the Brazos River Basin.
 
Senator Brian Birdwell

  • “Deep and widely held concerns” with the permit, would lock up all remaining water in area below Possum Kingdom reservoir in one holder
  • Far too much water and far too little clarity
  • Recently appointed Watermaster only has control over half of the basin, essentially half of the basin would be unmonitored
  • Water management plan has been completed, but questions remain for water use, including lack of specified diversion points
  • State law requires accurate information that permit application does not provide, granting permit without updated water and sedimentation modeling would be wrong
  • Permit is “deeply flawed” without re-opener clause allowing for reconsideration of permit in instance of drought
  • If TCEQ wants to approve permit, permit should have significant modifications to protect the citizens of the basin area

 
Adam Haynes, Chief of Staff, Rep. Jim Keffer

  • Presents letter from Rep. Keffer
  • Hood and Palo Pinto counties are directly impacted by this decision, TCEQ should consider detrimental impact on the local communities
  • Legislature should establish new framework for water rights based upon economics of local communities
  • Sedimentation and drought pose serious problems for water availability, urges TCEQ to consider reassess availability of Possum Kingdom
  • If passed, BRA would lock up water that could be distributed more equitably in the future
  • Permit presents “new law” given the broad reach and complicated nature, TCEQ might should seek legislative guidance on water rights issues

 
Administrative Law Judges

  • ALJ recommends approval of the permit and water management plan with some changes

 
Doug Kurum, Brazos River Authority

  • BRA basically agrees with ALJ proposed permit
  • Allows BRA to combine 11 existing reservoirs with unassigned flows existing in the river
  • No capital investment is needed, permit essentially allow river water to be used when needed
  • Satisfies SB 3 environmental flow standards, permit more than meets environmental standards
  • Permit is strongly in public interest
  • Permit does not “lock up” all existing water, there are substantial sources still unassigned within the basin
  • BRA contends with the ALJ’s conclusion that there is a 14% reduction appropriation based upon storage capacity reduction due to sedimentation, TCEQ has previously advised drafting permits based on more lenient standards
  • BRA asks TCEQ to allow BRA to present evidence in the future that it has taken steps to replace lost storage capacity due to sedimentation

 
Colette Barron-Bradsby, Texas Parks and Wildlife Department

  • Prior to the application, BRA and TPWD met and agreed that usage of river flows required a new appropriation
  • Appropriation of return flows and “bed and banks” appropriation are two different permitting matters, “bed and banks” are only granted to entities already holding a right to the water
  • BRA properly sought a new appropriation for return flow authorization, but improperly sought a “bed and banks” authorization

 
Andrew Guthry, Lake Grandbury Coalition

  • PFD threaten real harm to Texas water permitting system, never before has a permit been presented that would set so many precedents for permitting
  • BRA’s application does not fit into currently existing legal permitting standards, permit is flawed
  • In 2011, ALJs found that permits that seek to divert water “anywhere” are deficient, permits must define water diversion points
  • BRA permit has not changed on this point, is deficient in asking for diversion points anywhere on the river
  • Specific diversion points are necessary to complete any water availability analysis
  • Freeform diversion points would negatively impact all future permits
  • Strict adherence to requirement for specific diversion points is necessary to protect permitting moving forward

 
Fred Workington, Jr., DOW

  • Problem exists with appropriation amount in permit, sedimentation does not support appropriation volume and permit does not address drought status
  • BRA’s suggestion for a study on appropriation levels is not sufficient, BRA must provide more proof as to appropriation they are entitled to
  • Reservoir storage levels presented by BRA are inaccurate, sediment buildup requires a re-evaluation of storage

 
 
Gwen Webb, Brazos Family Farmers and Ranchers

  • Parties have not reached a lawful usage agreement
  • Water use is threatened, permit plans to co-opt water already appropriated using priority dates, usage of water by local agriculture will be negatively impact
  • Major changes in agency policy should be subject to public comment and hearing

 
National Wildlife Federation

  • Scope of permit means that decision on approval will impact all permitting in the future
  • Diversions in permit are not specific enough and would lead to stream drying, dry streams are not allowable as per permitting standards
  • Diversions are required to leave a certain flow standard in streams, BRA permit flow standards combined with senior permits means that some stream flows will be inadequate; senior diversion are not accounted for
  • BRA’s contention that meeting flow standards meets environmental concerns ties TCEQ’s hands in considering permit-specific problems
  • Mediation might solve language disputes

 
Jason Hill, Cities of Lubbock, College Station, and Bryan

  • Re-use is an important water development strategy
  • BRA permit terms endanger some re-use strategies and “bed and banks” authorization investments by Lubbock, College Station, and Bryan
  • BRA is not required to divert groundwater and return flows in the current language of the permit given a “bed and banks” permit authorization
  • No geographic limitations exist on these authorizations in the permit
  • Protections in the permit for these issues are subject to “use” of flows by third parties, infrastructure investment by Lubbock, Bryan, and College Station is not necessarily meant for immediate use and these clauses could endanger the cities’ investments

 
Robin Smith, TCEQ Exec. Director’s Staff

  • ED disagrees with ALJ on return flow and water availability
  • BRA permit would establish new policy precedent for return flows, ED currently allows a rights holder to permit their own return flows only
  •  ALJ’s policy would allow any entity who is first-in-line to co-opt another holder’s return flows, would harm senior water rights policy
  • Potentially, cities within the basin would not be allowed to use their own return flows as BRA would have appropriated them via its permit policy precedents
  • ED’s approach would require no substantive changes to management plan
  • ALJ’s appropriation modification based upon sediments are derived from estimates, BRA would need to make major adjustments to flow and availability modeling in the management plan to fulfill TCEQ evidentiary requirements

 
Eli Martinez, Office of Public Interest Council

  • OPIC agrees with ALJ’s determination that appropriation be reduced due to sediment
  • OPIC believes the current permit is not detrimental to the public welfare
  • SB 3 environmental standards are appropriate for BRA’s permit, but water management plan does not adequately account for these standards
  • Greater clarity is needed to ensure Watermaster can properly address environmental concerns

 
Doug Kurum, Brazos River Authority

  • Rebuttal
  • BRA and ALJ agree that rules are directive rather than mandatory, permits should not be “thrown out” if some small part is not met
  • Definite amounts of demand are defined in BRA permit within four scenarios and in each reach
  • Diversion points are based upon BRA’s 115 existing contracts and demand is clear, excess water is specified as diverted below Richmond gauge, all experts agreed BRA could model diversion adequately with these factors
  • BRA will define diversion points as contracts are formed for water usage
  • Return flows should be considered a new appropriation, application is limited to existing return flows
  • ED’s current approach to return flows was developed alongside the WAM where return flows were not considered
  • BRA contends that return flows are state water when they return to a water course, subject to re-use authorization, and that this approach properly protects senior water rights
  • Changes asked for by the cities of Lubbock, College Station, and Bryan are already covered by permit provisions, re-use agreements have been established by BRA and municipalities already

 
Bryan Shaw, TCEQ

  • From a policy standpoint, challenge exists in finding water in a fully allocated system, solution exists in finding water before it “leaves [the state’s] grasp”
  • Way should be found to protect “bed and banks” and re-use rights, preferred use should be protected and encouraged

 
Jon Niermann, TCEQ

  • System operations permits are good policy, but TCEQ must protect existing rights

 
Toby Baker, TCEQ

  • Creating WMP after acquiring water right is backwards, but this seems to have been addressed
  • Diversion, sediment, and re-use are the keys areas of contention

 
Item 1. Commission Discussion of Key Permit Issues
Diversion Points

  • Commissioners agree with ALJ on diversion points, standard is a directive rather than mandatory and the approach is not unique to the BRA permit
  • Shaw believes BRA’s demand-level approach allows for more specific modeling, that even if diversion requirements are considered mandatory, then BRA’s permit satisfies

 
Drought Conditions

  • Baker believes drought is accounted for in PFD by the drought condition study BRA must perform, perhaps issue is that there are no protections if drought is found
  • Shaw believes that decision should be made on record before the commission, seems to be a willingness by BRA to adjust allocations given study within PFD
  • Niermann concurs

 
Sedimentation and Capacity

  • Baker comments that permit must comply with “Stacy Damm” case decision, unsure if it does
  • Shaw comments that TCEQ previously suggested authorization for the full permit amount, but recognize that full amount may not be currently available and adjust, e.g. opportunity for BRA to develop and appropriate for full amount

 
Re-use Issues

  • Baker comments that rights that exist or could exist through “bed and banks” have to be protected
  • Even if water becomes state water by entering in water course, discharger needs ability to reclaim usage via “bed and banks,” however, until discharger applies for “bed and banks” water should be usable
  • Shaw agrees, believes that TCEQ is directed by SB 1 to re-use the water until “bed and banks” permits are applied for, TCEQ should accommodate senior rights holders
  • Niermann comments Texas has a unique, dynamic approach to return flows, agrees with ALJ considering SB 1
  • Niermann is unsure whether it is appropriate to issue a permit for all of the water rights along the river, wonders if it would be better to issue some “bed and banks” authorizations to cover some of the use
  • Shaw thinks this might need a review of the record, would like a determination of what is appropriate for authorization today, what would be appropriate for “bed and banks,” and if BRA needs to bring a new effort to secure “bed and banks” authorization
  • Baker is unsure if the information is in the record, Niermann thinks the process should end eventually and would not like to re-open the record
  • Baker thinks there should be sufficient protection to protect against BRA diverting more than another holder’s return flows and against BRA diverting beyond availability

 
Item 1. Questions and Discussion

  • Niermann wants to know what record might say about water that already belongs to BRA
    • There is sufficient evidence already that remand is unnecessary
    • Return flows were fully accounted for in modeling, at times even to BRA’s detriment
    • PFD’s numeric authorization for returns in their entirety is less than if you approached each return requirement piecemeal
    • Intent of BRA’s application is to have BRA’s rights subject to senior rights holders regarding re-use
  • Niermann is convinced there is sufficient total available water, wonders if different authorizations need to be kept in their own “lanes”
  • Shaw believes different rights should be separated as this clarifies conflicting interests
    • ALJ believes this concern is met adequately by proposed permit, unsure how one would qualify different waters and rights
    • BRA has presented information as to which flows belong to BRA and which belong to other holders
    • Staff comments that while numbers exist within the record defining return flows, they are not presented as the Commission seems to want
  • Shaw asks for clarity, does information exist within the record to calculate BRA’s interest for “bed and banks” authorization
    • Staff responds that losses are identified, however, water availability is modeled all as “bed and banks” or entirely without consideration for factors such as loss
  • Baker asks for clarity, if “bed and banks” has carriage losses and other models do not factor out losses
    • Correct, no availability calculation exists that does not include “bed and banks” water
  • Shaw suggest discussing this at a recess to “chew on” this aspect and whether commission should remand without opening record again
  • Shaw believes that BRA has not fully explained capacity reduction via sediment, would like parties to craft a workable “special condition” that would reduce diversions by 14% if BRA does not prove capacity, involves re-draft more fully incorporating 14% or other appropriate reduction into the draft permit
    • Niermann and Baker concur
  • Shaw comments that diversion point requirements from the ALJ have been met
    • Niermann agrees
  • Niermann believes that legislature has provided a statutory framework for the TCEQ to operate under, as well as common law authorities
  • Baker thinks that SB 3 and ALJ guidance is correct in requiring only a single monitoring point for environmental monitoring
  • Baker would like to look at reasonable costs, avoiding building a new reservoir is in the best interest of the public welfare in terms of costs
  • Shaw proposes a recess for the commissioners to individually consider the issues

 
Item 1. Motion

  • Shaw comments that discharge and return flows should be handled separately, some are appropriate through “bed and banks” and not through a new permit appropriation
  • Niermann and Baker concur, Baker comments he is comfortable with drought language in PFD
  • Shaw moves to remand the permit with the following conditions
    • Majority of issues in the PFD are solved, remand for the purposes of clearing up reservoir capacity and return flows issues in record
    • Commission agrees with ALJ 14% reduction, should implement through appropriate special use clause, including recalculating demand scenarios and requiring BRA to reduce demand levels by 14% pending showing by BRA of capacity
    •  Return flows issue is reconcilable, Commission believes BRA has met its burden in addressing groundwater effluent flows of others
    • BRA can only authorize its own return flow use through “bed and banks” provisions
    • BRA can obtain new authorization to use other entities’ return flows, subject to senior rights or “bed and banks” authorizations
    • Commission directs ALJ to incorporate Commission’s decisions in re-examining BRA’s permit
  • Motion carries

 
Item 2. Docket No. 2015-1528-IWD.
Consideration of the application by Formosa Utility Venture, Ltd. and Formosa Plastics Corporation, Texas, which operates the Point Comfort Plant, a plastics and organic and inorganic chemicals manufacturing facility, for a major amendment to Texas Pollutant Discharge Elimination System (TPDES) Permit No. WQ0002436000.

  • Motion to defer to ADR carries

 
Item 3 Docket No. 2015-1624-MWD.
Consideration of the application by Randolph Todd Company, LLC, for new TPDES Permit No. WQ0015314001 to authorize the discharge of treated domestic wastewater at a daily average flow not to exceed 390,000 gallons per day in the Final Phase.

  • Motion to refer to SOAH carries

 
Item 4 Docket No. 2015-1276-DIS.
Consideration of a petition by Cypress 600 Development Partners LP (Petitioner), for dissolution of Harris County Municipal Utility District No. 317 (District).

  • Motion to grant petition carries

 
Item 5 Docket No. 2015-1531-TML.
Consideration for approval to publish and solicit public comment on one draft Total Maximum Daily Load for Bacteria in Jarbo Bayou in Galveston County. (Chris Loft, Robert Brush) (Project No. 2015-008-TML-NR)

  • Motion to publish carries

 
Items 6 through 73. Enforcement Docket, considered together.

  • Staff supports enforcement orders
  • Motions carry

 
Item 74. Docket No. 2015-1076-RUL.
Consideration for publication of, and hearing on, proposed new Section 305.132 of 30 TAC Chapter 305, Consolidated Permits; and amended Section 327.1 and proposed new Section 327.32 of 30 TAC Chapter 327, Spill Prevention and Control.

  • Rules amended by SB 912 (84th)
  • Amends volume based reporting requirements for accidental discharge or spills, and establishes procedures for determining status of spills
  • Staff supports publication
  • Julie Nargong, Water Environment Association of Texas, comments Rules follow intent of SB 912
  • Motion to publish carries