Environmental advocates push feds to investigate Texas’ enforcement of water quality

Downstream from Inland Environmental & Remediation Inc., contaminated water empties from Skull Creek into the Colorado River south of Columbus in 2019. (Credit: Michael Stravato for The Texas Tribune)

The Environmental Protection Agency says an informal investigation is underway after more than two dozen environmental advocacy groups submitted a petition against the Texas Commission on Environmental Quality. The petition alleges that state regulators are not doing enough to protect water quality in Texas, as is federally required.

The environmental groups are asking the federal agency to step in and repair Texas’ “broken system” of issuing permits to control water pollution, saying the state has made it too easy for industries to contaminate its water.

“We really feel that the TCEQ regulations, frankly, are not sufficient to ensure clean water,” said Annalisa Peace, executive director of Greater Edwards Aquifer Alliance, an environmental protection nonprofit based in San Antonio.

Historically, the TCEQ has been criticized for being a “reluctant” regulator and for being industry friendly. Many environmental groups have been pushing for permitting transparency, opportunities for more community input, and accountability of the state agency.

The Greater Edwards Aquifer Alliance, Environmental Integrity Project, Sierra Club, Clean Water Action, Public Citizen and 16 other groups filed the petition in 2021, stating that Texas has a major water pollution problem with state rivers, lakes and estuaries “so polluted they are considered impaired under the federal Clean Water Act.”

The Clean Water Act is a 1972 law designed to reduce pollution in America’s waterways. According to the petition, the state’s water permitting process does not recognize people who use waterways for recreational purposes, such as fishing or kayaking, to petition for a contested court hearing — only those who own land nearby.

The petition also states that industries are not required to document “the economic or social necessity of projects.” Environment advocates believe companies should provide documentation that shows there are no other options to their projects that could avoid pollution of the waters in order to obtain permits.

“They are the ones who are wanting to pollute the environment,” Eric Allmon, an attorney representing the petitioners, said about the industry. “The applicant should bear the burden of demonstrating compliance.”

Allmon said the EPA’s informal investigation is a preliminary step that determines whether there is any merit to the allegations from environmental advocates before the agency formally reviews the TCEQ’s track record on enforcing water quality standards.

As part of the investigation, EPA lawyers will meet with the environmental groups that petitioned to better understand the claims made, reviewing the state’s public participation processes in water permits and looking at TCEQ documents and court decisions.

“If proven to be true, the allegations outlined in the petition are concerning,” Charles W. Maguire, EPA’s acting deputy regional administrator, said in a letter sent to Allmon last week.

If the EPA concludes that TCEQ is not enforcing the Clean Water Act, then the federal agency can proceed with a formal investigation and could revoke TCEQ’s authority to regulate water quality. The TCEQ would have 90 days to fix the problems or lose its authority.

TCEQ said it has no comment on the EPA’s letter but noted that its discharge program was “thoroughly” reviewed in 2020 by the EPA at the state agency’s request for additional authority over discharges related to oil and gas operations. The TCEQ said the National Pollutant Discharge Elimination System program, established in 1998, was found by EPA to meet all requirements.

Environment advocates said the Texas Legislature could fix the TCEQ’s water permitting process, along with following recent recommendations of the Texas Sunset Advisory Commission, a group of 10 state lawmakers and two members of the public who periodically review all state agencies.

The commission made recommendations in November after a report documented how the TCEQ can improve its efficiency: Expand the notice sent to the public about its meetings, extend the period during which people can comment on agency matters to 36 hours after the end of a public meeting, and increase penalty levels for noncompliant industrial facilities from $25,000 to $40,000 per day.

TCEQ has not yet made any of these changes.

Peace, with Greater Edwards Aquifer Alliance, said TCEQ’s process as it stands is very problematic. “We are constantly asked by residents to contest water permits, because the whole process makes it really hard for citizens,” she said.

It’s unclear when the EPA’s informal investigation will conclude, but Allmon said that the EPA is “well aware” that TCEQ is under review by state lawmakers.

“We as petitioners are interested in seeing if these problems will be fixed during Sunset — at a time that legislators have a chance to fix it.”