Austin, Texas—A Travis County District Court Judge ruled in favor of the National Wildlife Federation, reversing the Texas Commission on Environmental Quality’s decision to issue a water rights permit to the Guadalupe-Blanco River Authority (“GBRA”). The permit would have allowed GBRA to divert billions of gallons of publicly owned water from the Guadalupe River for sale to potential customers without adequately considering or limiting environmental harm.
“NWF successfully argued that TCEQ failed to follow numerous requirements of state law in issuing the permit to GBRA,” said Myron Hess, an attorney who represented NWF during the permitting process. “NWF challenged the permit both because of the adverse environmental impacts this individual permit could cause and because of the bad precedent it would set for ignoring state law and TCEQ’s own rules designed to minimize environmental damage and ensure informed decisions.”
NWF initially litigated the permit through a contested case hearing at TCEQ, which included settlement negotiations that resolved some key issues about flow protection. In September 2020, over NWF’s objections, the state agency granted the permit without requiring an assessment of environmental damage caused by constructing pumping facilities and large reservoirs for storing the diverted river flows, or requiring measures to mitigate for the impacts. During the hearing, NWF provided evidence of the types of species and habitats that would be harmed and argued that state law, including the agency’s own rules, requires TCEQ to consider and assess such impacts so it can make informed decisions before issuing permits.
NWF also raised several other permitting requirements required by law, including proper notice to people who might be adversely affected, time limitations for beginning and completing construction activities, and the opportunity for public input in considering significant future changes to the permit, that TCEQ failed to comply with. Because of NWF’s concerns about impacts from that permit and the potential for TCEQ to follow the same flawed process in future permitting decisions, NWF challenged the decision in district court.
Unfortunately, it appears that TCEQ is repeating the same inadequately protective process in proposing to issue a permit granting the Lavaca-Navidad River Authority the right to build pumping facilities and a storage reservoir to divert over 31 billion gallons of publicly-owned water annually from the Lavaca River, just upstream of Lavaca Bay in Jackson County. As with the earlier GBRA application, TCEQ again did not assess the impacts on fish and wildlife and their habitats of building the proposed pumping facilities or the proposed off-channel reservoir and has not ensured adequate protections for river flows and freshwater inflows to the bay.
LNRA has indicated that, if it gets the permit, it will offer to sell most of that water to Formosa Plastics, for a manufacturing plant on the coast that has an egregious environmental track record. In 2019, Formosa settled a lawsuit brought by private parties due to its ongoing pollution in Lavaca Bay. The $50 million settlement was the largest private settlement ever made under the Clean Water Act.
TCEQ is now accepting public comments on the draft LNRA permit, including the opportunity for an affected person to request a contested case hearing to challenge the permit and provide evidence of its shortcomings.
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