Community of Holiday Beach, Texas

TCEQ Permit for Sea Gun Resort
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Waste Water Permit Information

Anyone claiming to have an "affected interest" may file public comments opposing this permit.
 
The claimed affected interest must be unique to you and not the same as the affect on members of the general public.  For example, the discharged effluent will come into contact with your property where your family engages in water recreation and/or where you fish.  If you are making this claim, it would help to show/claim that tides or currents from the discharge point would move discharged effluent towards your property.  Other examples are a long-established practice of fishing in the area of the discharge point and/or eating oysters from the beds near the discharge point.
 
You must clearly state that you request a "contested public hearing" on the permit.  A contested hearing is a trial in Austin similar to a non-jury trial in your district court.  That trial will produce the final record supporting the agency's final order.  A public hearing is different than the "public meeting" held locally.  There was no evidentiary record produced at the public meeting so the statements made on the record of the "public meeting" cannot support an order.
 
You must list all the specific reasons why you think this statement is inadequate and should be denied or modified.  Examples:
 
1.  The permit parameters are insufficient to adequately protect public health and safety and the waters of the state.
2.  The permit parameters are insufficient to adequately protect aquatic and marine life in the bays and estuaries.
3.  The discharge route allows effluent to enter areas of public water recreation.
4.  There is insufficient monitoring of the wastewater treatment plant and real time problem response to insure that raw sewage or undertreated effluent are not discharged into the bays and estuaries.
5.  The collection lines and discharge lines, with associated wet wells and lift stations, traversing large areas of the peninsula are not protected against vandelism and/or mechanical break down and could result in spills and excursions.
6.  The application is deficient in technical data on how public health, safety and state waters will be protected.
7.  The draft permit exceeds the amount of water borne waste that the population to be served will really produce.  Weekend and vacation homes do not produce as much waste as full-time residences.  Under utilized wasterwater treatment plants have a greater history of permit violations and over a longer period.
 
Invalid arguments are:
 
1.  The availability of sewer service will promote growth to the detriment of the groundwater supply and/or other resources of the peninsula.
2.  Effect on property values.
3.  Danger of flooding private property.
4.  Inadequate roads, schools, EMS or other public services to support the increased population in the served development.
 
Very "iffy" argument:
 
1.  Sewer service from this new wasterwater treatment plant is available to other residents of the peninsula.
 
Remember, any opposition you bring against this permit must be in your individual capacity and not on behalf of Holiday Beach Water Supply Corporation.  HBWSC agreed to take no action against this permit when it lost the beauty pageant.
 
Public hearing requests and identification of the issues in controversy must be filed with the TCEQ Chief Clerk within 30 days of the newspaper notice.  Given the paper back log at the TCEQ, do not wait until the last minute or you may get dropped from the service list.
 
Procedure:
 
1.  After this second round of public comments is concluded, the TCEQ staff must prepare and file responses to every "comment" filed during the processing of the application.   Anyone submitting comments with their name and address will be sent copies of the staff replies to comments.  The applicant has the option of filing its own replies.
2.  The draft permit, the public comments and the replies will be sent to the TCEQ commissioners.
3.  The TCEQ General Counsel, for the Commissioners, will evaluate each comment to determine whether the submitter has a unique justiciable interest sufficient to be granted party status at trial.  The General Counsel will also evaluate each comment to determine whether it is within the TCEQ's jurisdiction in a wastewater permitting docket.  The General Counsel presents these findings to the Commissioners in a matrix schedule available for public inspection.
4.  The TCEQ Commissioners will evaluate the matrix.  If a person with a unique justiciable interest raises an issue within the TCEQ's jurisdiction, that person is named a party and the issued is referred to trial.  All issues within the context of a wastewater permitting case that are not referred to trial are presumed to have been found in the applicant's favor.
5.  The case will be referred to the State Office of Administrative Hearing (SOAH) for a hearing on the referred issues within a timeframe set by the Commissioners.  Anyone who was not named a party will have a second chance of being permitted to particiapate at the preliminary hearing.  Except for extremely good cause, if you are not named a party by the TCEQ commissioners or the SOAH judge, you are out of the game.  You can only participate as a witness of named party.
6.  Parties with similar interests will be grouped and required to present their case together.
7.  There are very real costs involved in being a party.  Most are postage, copies, deposition transcripts and a part of the cost of the final trial transcripts.  However, the TCEQ does not have the jurisdiction to impose the winner's attorney's fees to the loser(s).  Everyone must bear their own costs without reimbursement.
8.  The final hearing in the cases will probably be scheduled to last 3 days at SOAH's offices in Austin.  Local hearings are seldom held.
9.  After the hearing, there will be two sets of briefs filed with the judge.  This normally takes 8 weeks.  The judge then has 60 working days to prepare his/her proposal for decision (PFD).  The PFD is sent to the TCEQ Commissioners.  All named parties have the opportunity to file two more briefs stating why the PFD is or is not correct.  This normally takes 5 weeks.
10.  Once briefs are filed, the docket is resubmitted to the TCEQ Commissioners.  They usually hear 5 minutes of oral argument from each party, ask questions of the staff/parties and vote on the PFD.  The Commissioners will adopt the PFD without material change in 90% of contested wastewater permitting dockets.  (My personal estimate.  Many think the rate is higher.)
 
Personal Observations:
 
There is no real controversy that a need for more and better sewer treatment capactiy exists on the peninsula.  This permit, with or without modification, will be issued.  Unless a readily available sewage treatment alternative is revealed at trial, the best you can hope to do is improve the draft permit.  Remember, HBWSC screwed around with Sea Gun for over 6 years while the TCEQ and Attorney General tried to find a solution to the existing sewer problem.  There has been no permanent solution permitted and this application is how the agency plans to do that.
 
Mark H. Zeppa
Law Offices of Mark H. Zeppa, PC
Independent Water & Sewer Companies of Texas (IWSCOT)
4833 Spicewood Springs Road, Site 202
Austin, Tx 78759