Council to consider citywide development ban after TCEQ further delays sewer plant

The Granbury City Council will soon consider a yearlong citywide development moratorium due to the Texas Commission on Environmental Quality referring the city’s permit application for a second wastewater treatment plant to the State Office of Administrative Hearings (SOAH) for a contested case hearing.

City Manager Chris Coffman said the continued delay will affect approximately $100 million in pending economic development.

The decision, made by TCEQ commissioners on Wednesday, means that a ruling on the permit application will likely be delayed a year or longer.

The City Council imposed a development moratorium on the east side of town last December after the TCEQ extended the public comment period to hear from those who oppose the facility planned for 3121 Old Granbury Road.

The council will consider a citywide suspension of all permitting and building at its regular meeting on Monday, Oct. 4 because the current wastewater treatment plant (WWTP) on Water’s Edge Drive is nearing capacity. (The council normally meets on Tuesdays, but the schedule was changed due to a Texas Municipal League conference.)

TCEQ Commissioner Bobby Janecka made the motion to have an administrative law judge with SOAH make affectedness determinations where certain opponents and issues are concerned.

The judge will issue a Proposal for Decision (PFD), which will be considered by the TCEQ’s commissioners.

Commissioner Jon Niermann voted in favor of Janecka’s motion. TCEQ’s third commissioner, Emily Lindley, was not present.

In a statement emailed to the HCN late Wednesday, Coffman said that granting some opponents “affected person” status had been expected at Wednesday’s meeting, and he noted that sending the matter to SOAH does not mean that the permit ultimately will be denied.

“The Commissioners’ decision today was not a vote on the application itself,” the email stated. “It is not an indication that TCEQ Commissioners have any concerns with the City’s application. Today, Commissioners did not consider approving the City’s permit application. Instead, it was merely a process for determining whether the right people asked for a hearing on issues that are within the TCEQ’s jurisdiction.”

According to city officials, plans for a second WWTP got underway more than five years ago after the current plant reached a certain capacity level, in accordance with TCEQ rules. City officials said they worked with TCEQ representatives throughout the complex, multi-step permitting process.

Last year, the TCEQ issued a draft permit for the proposed facility but then granted a request for an extended comment period after several hundred residents and business owners came forward with concerns. Worries include possible foul odors, lower property values, and negative impacts on health, the environment and water recreation.

Opponents organized into a group called Granbury Fresh.

If the permit is approved, the plant will operate with Membrane Bioreactor technology, discharging up to 2 million gallons of treated domestic wastewater per day into a tributary of Rucker Creek, which feeds into the Brazos River and Lake Granbury.

In June, TCEQ Executive Director Toby Baker determined that the city’s permit application “meets the requirements of applicable law.” The agency distributed to interested parties a 51-page document in which Baker addressed specific concerns that had been raised.

OPPONENTS HEARD

The Office of Public Interest Counsel recommended in a 20-page document submitted ahead of Wednesday’s meeting that some of the issues raised by some of the WWTP’s opponents go to the SOAH for an affectedness determination.

“At this point in the process, OPIC is not opining on whether the permit should be granted,” spokesman Brian McGovern explained in an email sent to the HCN on Monday.

Under the Texas Water Code, the Office of Public Interest Counsel is an independent party to all TCEQ proceedings. The Counsel provides information to anyone with questions about the legal aspects of the agency’s rules, permitting procedures, contested case hearing procedures and enforcement proceedings.

In making his motion for a SOAH proceeding, Janecka listed several opponents of the plant and various issues raised. Among those he named were two of the WWTP’s most vocal opponents: Victoria Calder and Stacy Rist, whose family owns Bennett’s Camping Center & RV Ranch at 2708 E. US 377.

Janecka said that he was recommending referral to SOAH for a determination on the following issues:

• Whether the permit complies with applicable requirements to abate and control nuisance odors;
• Whether the draft permit is protective of water quality;
• Whether the draft permit is protective of groundwater and wells;
• Whether the draft permit is protective of the heath of requesters, their families, livestock and wildlife, including endangered species;
• Whether the proposed discharge will adversely impact recreational activities;
• Whether the permit application is accurate and complete;
• Whether the modeling complies with applicable regulations to ensure the draft permit is protective of water quality;
• Whether the executive director’s anti-degradation review is accurate;
• Whether the nutrient limits in the draft permit comply with applicable Texas surface water quality standards;
• Whether the commission should deny or alter the terms and conditions of the draft permit based on the consideration of need under Texas Water Code Sec 26.0282;
• Whether the applicant’s compliance history or technical capabilities raise any issues regarding the applicant’s ability to comply with the material terms of the permit that warrant denying or altering the draft permit;
• Whether the proposed location of the facility complies with the 100-year floodplain and wetland locations standards; and
• Whether the applicant substantially complied with applicable public notice requirements.

THE ROAD AHEAD

According to McGovern with TCEQ, once the administrative law judge issues a recommendation, there will be a period for the parties to file objections and replies to objections.

After the replies are filed it will be up to the TCEQ's general counsel to decide when the judge’s recommendation will go before the commissioners.

“Each case is a little different, but based on past hearings a reasonable estimate is that the PFD will be back before the Commissioners for their consideration in 12-14 months,” McGovern told the HCN in an email.

Coffman said that the city has proposed to the TCEQ a plan that “balances environmental, fiscal and logistical responsibilities.”

His email stated, “At this point, proposing new, short-sighted alternative plans driven by political motivation is not the answer.”

Coffman said that city staff is working with engineering to develop options that will minimize infiltration of the wastewater treatment system during heavy rains. He said that those options will be presented to the City Council for consideration.

“Until the Wastewater Treatment Plant on Old Granbury Road is constructed, the city will experience overflow issues,” Coffman said.