An opinion filed Monday by two administrative law judges with the State Office of Administrative Hearings recommends that the Texas Commission on Environmental Quality issue a permit for the second wastewater treatment plant that Granbury officials say is desperately needed for the growing city.
The WWTP, planned for the eastern part of town, has been opposed by some residents and business owners in that area. Two groups of protesters (also referred to as protestants) were involved in a contested case hearing that was argued before administrative law judges Sarah Starnes and Pratibha Shenoy over a three-day period in March.
SOAH cases are similar to civil cases heard in district court.
The recommendation of the SOAH judges does not settle the matter. Commissioners with TCEQ will ultimately make the decision on whether to issue the permit.
City Manager Chris Coffman said he expects the matter to likely be on a TCEQ meeting agenda in August or September.
Coffman indicated that in the meantime city officials will probably take steps to be ready to begin construction as quickly as possible if the permit is granted.
Due to continued supply chain issues, Coffman predicted that construction will likely take about 18 months.
That means that the projects that have been on hold due to a development moratorium caused by the sewer plant delay will continue to be affected, but Coffman indicated that construction of the plant and developments could occur simultaneously.
The holdup in building the plant, which has spanned two years, began when TCEQ officials became aware of opposition to the sewer plant and extended the public comment period despite the city having published notices about the project.
TCEQ commissioners subsequently determined that concerns raised by some opponents should be sent to SOAH for a contested case hearing.
Those protestants were in two groups.
One group consisted of James and Stacy Rist and Bennett’s Camping Center and RV Ranch. Stacy Rist’s family owns and operates that company. The RV Ranch is close to 3121 Old Granbury Road, where the city plans to build the sewer facility.
The other group includes Victoria Calder and Granbury Fresh, an organization formed by several hundred people who oppose the plant’s chosen location.
The proposed WWTP will discharge up to two million gallons of treated domestic wastewater per day into a tributary of Rucker Creek, which feeds into Lake Granbury. Opponents claim risks to environmental and public health, as well as other negative consequences.
In their 117-page Proposal for Decision, Starnes and Shenoy included an analysis of all 13 issues that were referred to them for consideration.
On pages 28 and 29, there is a passage regarding opponents’ claims about E. coli and the Lake Granbury Watershed Protection Plan. The judges wrote that protestants did not show “that E. coli levels in the receiving waters are currently problematic, let alone that they would be dangerously worsened if the Draft Permit is issued.”
The passage continues, “The Lake Granbury WPP was written over a decade ago and reported E. coli levels recorded between 12 and 15 years ago. The evidence does not show whether those conditions persist today.
“Even assuming they do, Granbury has convincingly shown that the East Plant will help, not hurt, the conditions that the Lake Granbury WPP blamed for high bacteria levels. The East Plant will facilitate the Plant’s goal of moving residents away from the failing private septic systems that were responsible, in large part, for the high bacteria levels recorded in the coves of Rucker Creek. The flow of effluent will also increase circulation in the coves, improving the stagnant conditions that led to the elevated bacteria levels.”
Coffman told the Hood County News, “Granbury has convincingly shown the East plant will help, not hurt, the conditions that the Lake Granbury Watershed Protection Plan blamed for high bacteria levels. So, that’s good news for Granbury, and we hope that the TCEQ commissioners will grant the permit.”
Under the heading “Conclusion & Recommendation,” the judges wrote one sentence: “The ALJs find that Granbury has met its burden of proof on all 13 questions referred by the Commission and recommend that the Draft Permit be issued without amendments.”
The case is not yet officially out of SOAH’s hands. The parties have until Monday, July 11 to file exceptions or proposed changes to the judges’ PFD, and the city will have until Thursday, July 21 to respond.
“Once the exceptions period is past, the ALJs will issue a letter either accepting or rejecting the parties’ exceptions to the decision,” Shane Linkous, general counsel for SOAH, wrote in an email to the HCN. “After this, the case will be dismissed from SOAH and remanded back to the TCEQ.”
TCEQ will then decide “either to adopt the ALJs’ Proposal for Decision or to change, vacate, or modify the Proposal for Decision,” Linkous stated.
Attorney Eric Allmon told the HCN that Calder and Granbury Fresh will file exceptions. In a statement emailed to the newspaper, Allmon wrote: “The ALJs in this matter failed to follow the plain and unambiguous language of the TCEQ's rules regarding odor buffer zones, based upon unfounded testimony by witnesses for the City.
“Further, the ALJs did not adequately consider the potential degradation of water quality that was indicated by the City of Granbury's own water quality modeling. The proposed discharge will create an unacceptable risk of excessive algal growth and elevated bacteria levels in the receiving waters.
“The errors made by the ALJs in the interpretation and application of the TCEQ rules are appropriate for the TCEQ Commissioners to correct when making a final decision on the permit application. Granbury Fresh and Victoria Calder will ask that the TCEQ Commissioners follow the Commission's own rules and deny the permit.”
Michael Booth, attorney for the Rists and Bennett’s Camping Center and RV Ranch, provided this statement via email:
“The Protestants, Bennett’s Camping Center and RV Ranch and Stacy and James Rist, have reviewed the SOAH judges Proposal for Decision in the Granbury wastewater permit decision. We are extremely disappointed that the SOAH judges ignored the Protestants’ evidence and legal arguments and the recommendation for denial by the State Office of Public Interest Counsel. Indeed, this recommendation is further evidence that the TCEQ needs to reevaluate its public hearing process and adopt rules after public input as recommended by the Texas Sunset Commission.
“For example, the unofficial ‘guidance’ used by the SOAH judges and Executive Director ignore the requirement that the dissolved oxygen must maintain 5.0. They are going with ‘it's close enough for government work’ and are satisfied with maintaining an average of 4.8.
“This is not acceptable. Compounding matters, Granbury, at least for now, has been able to keep out of the record that the dissolved oxygen levels will be well below 4.8 as our expert proved. The result of this decision means that the fish will be in danger during the summer months. Other decisions mean that there will be greater algae problems with the possibility of making Rucker Creek unsuitable for swimming.
“Further, the judges misconstrued the requirements to maintain a 500-foot buffer allowing Granbury to locate facilities that WILL cause odor essentially on the property line of the Rist’s RV park.
“Protestants look forward to bringing its concerns in front of the TCEQ Commissioners for their final review.”
At a regular meeting of the City Council in April, Coffman and Assistant City Manager/Public Works Director Rick Crownover told the council that the city will be forced to pay an additional $5 million to $6 million for wastewater treatment infrastructure because of pandemic-related issues and delays in building the East WWTP.
Part of that infrastructure involves upgrades to the existing plant on Water’s Edge Drive. Coffman explained that agreements had basically been a package deal with shared fees between contractors, but those cost savings were lost when construction of the East plant was delayed.
He told the council that the “bottom line” is that an almost $20 million agreement became a $25 million agreement that covers one WWTP but not both.
The city manager told the HCN on Tuesday that he was not sure exactly how much the city spent defending the proposed plant in the contested case hearing but estimated that it was between $350,000-$400,000. He said the money came from bond funds for the project.
Coffman said that projects totaling about $800 million are “vested” and can move forward, and that there are developments totaling about $250 million that are “waiting to develop right now.”
He explained that if the permit is approved, projects will be allowed to move forward while construction is underway since processes that involve zoning and putting in infrastructure take several months.
The proposed WWTP will operate with Membrane Bioreactor technology and, according to Coffman, will produce effluent that will be clean and safe. He said that he and city staff always felt that they had followed the law when planning the facility.
“We want the environment protected as much or more than anyone because this is our community,” he said. “The lake is a big part of our community and tourism, and that’s what drives our economy. We don’t want anything to damage it.”
The SOAH judges’ PFD is posted with this article. Scroll to the top to click on the link.