The Tarrant Regional Water District is one step closer to successfully challenging the city of Fort Worth’s proposed sewage treatment plant at Mary’s Creek near Aledo.
After a lengthy hearing Feb. 28, Judge Christiaan Siano, who serves in the State Office of Administrative Hearings, said the water district was an “affected person” – a legal term meaning directly impacted – when it comes to Fort Worth’s application to discharge up to 15 million gallons of treated wastewater per day into a creek that feeds into the Trinity River.
The water district “has demonstrated that it has a personal, justifiable interest which is not common to members of the public in general,” Siano told the attorneys and observers watching the hearing on Zoom.
That means the water district qualifies for a contested case hearing from the Texas Commission on Environmental Quality, which is similar to a civil trial in state district court and can take several months to resolve.
The commission will ultimately decide whether to grant Fort Worth’s permit application, which was filed in 2018 with the mission of preparing for rapid population growth in the city’s western corridor.
Water district officials and leaders of Fort Worth’s department have drafted a term sheet that would allow the issue to be settled outside of court, but the two sides have yet to approve a final agreement. Chad Lorance, a water district spokesperson, declined to comment beyond stating that the agency is committed to finding a resolution with Fort Worth.
“While we disagree with the decision of the judge regarding the status of (the water district) as an affected party, the city welcomes the opportunity to continue working through the TCEQ permitting process and is open to all methods of resolution with all of the parties, including mediation,” said Mary Gugliuzza, spokesperson for the city’s water department.
Even if Fort Worth and the water district are able to resolve their differences before the contested case hearing tentatively scheduled for early June, the city still will face a legal battle with water district board member Marty Leonard, who owns property on Mary’s Creek.
State commissioners granted Leonard a hearing last November in a separate challenge to Fort Worth’s sewage treatment facility. Leonard has recused herself from private board sessions discussing the district’s opposition to the plant, and said there “is no conflict of interest” when it comes to her concerns about Fort Worth’s proposal.
“I’m not putting my interest … above the interests of the community,” Leonard said during a Feb. 15 board meeting. “My interest is in the best water quality for Mary’s Creek and the entire community.”
Water district cites concern over water quality in challenge
Lawyers for the water district argued that the sewage plant could harm water quality in the Clear Fork of the Trinity River, which the agency has authority over when it comes to water supply and recreation. Chief Water Resources Officer Rachel Ickert testified that the district is responsible for monitoring water quality in the Trinity and Fort Worth’s floodway.
While there are about seven miles between the creek and the Clear Fork, computer modeling conducted by the water district showed discharges from Fort Worth’s plant could lead to higher levels of nutrients like phosphorus and nitrogen in the Trinity.
What is cyanobacteria?
Found naturally in all types of water, the microscopic organisms bloom quickly in warm, nutrient-rich environments. They can be harmful by blocking sunlight or taking the nutrients that other organisms need or by producing cyanotoxins, what the CDC calls “among the most powerful natural poisons known.”
Those nutrients could lead to blooms of blue-green algae, or cyanobacteria, that would hurt the entire ecosystem, according to testimony from Lial Tischler, an environmental engineering consultant hired by the water district. The algae is naturally present in lakes and streams, but can cause harmful health effects in people and animals, causing diarrhea, nausea, vomiting and breathing difficulties even when it doesn’t produce toxins, according to the Environmental Protection Agency.
“The expense of water treatment would go up substantially because additional chemicals have to be used to remove the algae that’s brought in with the intake water,” Tischler said. “You may shift the fish populations to those that are less desirable for recreational use … and people may be less willing to use water that has significant amounts of algae in it, particularly if you have floating algae.”
James Aldredge, an attorney representing the city, objected to Tischler’s appearance, arguing that his testimony fell outside the scope of whether or not the water district qualified as an “affected person,” a status typically reserved for people who have an interest within one mile of a facility.
“The time for that would be at the evidentiary hearing,” Aldredge said. “It’s interesting that they’re making these kinds of substantive technical arguments on this issue before you make a determination that may very well take this issue off the table.”
However, Siano allowed Tischler’s testimony to move forward. Jackee Cox, a retired attorney and activist who has frequently criticized the water district for lack of transparency, observed the hearing over Zoom. The Feb. 28 hearing was not livestreamed on a YouTube channel for the State Office of Administrative Hearings, and recordings are not publicly available.
Aldredge made “no serious effort” to probe the reliability of the water district’s scientific evidence or Tischler’s qualifications, Cox said.
“While I still don’t know whether the testing done by the city met all of the standards required by (the state) to assure accuracy, or whether (the water district’s) ‘modeling’ comports with required scientific standards, I was left with the distinct impression that (the water district) won on the merits because the city’s lawyer was not at all prepared to deal with a careful and considered evaluation of the quality of the evidence,” Cox said. “That was disappointing.”
Unless the parties come to an agreement outside of the hearing process, attorneys for Leonard, Fort Worth and the water district will be back in Siano’s court by early June. Under state law, Siano must file his decision by the end of August to complete the hearing process within 180 days.
Haley Samsel is the environmental reporter for the Fort Worth Report. Her position is supported by a grant from the Marilyn Brachman Hoffman Foundation. Contact her by email or via Twitter. At the Fort Worth Report, news decisions are made independently of our board members and financial supporters. Read more about our editorial independence policy here.