Topic: Water Quality/Utilities

Water Quality

Plans for Seawater Desalination Plants Take a Salty Turn

Near the end of 2022, Texas was poised to move forward with plans for the first seawater desalination plant in the state. The Texas Commission on Environmental Quality (TCEQ) issued an environmental permit to the Port of Corpus Christi to build its plant on Harbor Island—a culmination of what the Texas Tribune called “years of business strategy, political maneuvering and lawyering effort” from the Port.[1]

But the Port—and others interested in building future marine desalination plants in Texas—may not be so lucky. The Environmental Protection Agency (EPA) can refuse to recognize a permit if it does not comply with the Clean Water Act,[2] and the agency expressed concerns that this permit as it stands may be insufficient to protect both water quality and aquatic life.[3] In a September 2022 letter to the TCEQ, the EPA wrote that there are outstanding concerns that could halt development of the plants.[4] This legal battle highlights the debate over whether Texas can build marine desalination plants in time to alleviate the state’s strain on current water supplies.

Desalination in Texas

Texas’ desalination efforts spread far and wide. Currently, Texas has 53 municipal desalination facilities, which provide a combined desalination capacity of 157 million gallons per day.[5] Two major desalination plants—the Kay Bailey Hutchinson plant in El Paso and the Southmost Regional Water Authority Desalination plant in south Texas—produce a combined 35 million gallons of fresh water per day.[6]

All of Texas’ current municipal desalination plants use brackish surface water or groundwater as their sources.[7] By 2070, the Texas Water Development Board recommends incorporating seawater into desalination practices to help meet demand: The Board suggests generating 192,000 acre-feet of water from brackish groundwater; 63,000 from brackish surface water; and 157,000 from seawater.[8] Combined, these outputs would represent 5.3% of new water supplies.[9]

Though current desalination all involves brackish water, there are five proposed marine desalination plants in Corpus Christi alone.[10] Two proposed plants are from the city of Corpus Christi, two are from the Port, and one is from Corpus Christi Polymers, which has taken over the partially completed industrial seawater desalination plant begun by M&G Resins USA, LLC before it filed for bankruptcy.[11]

Marine Desalination—And Its Potential Problems

Developers must solve several problems before marine desalination can become a viable source of fresh water for industry or drinking purposes. First, it is much more expensive to produce desalinated marine water than desalinated brackish groundwater. According to the Texas Water Development Board, producing desalinated water from brackish groundwater costs $357–$782 per acre-foot.[12] On the other hand, producing desalinated water from the sea may cost twice as much, at $800–$1,400 per acre-foot.[13]

Second, marine desalination produces toxic brine, which may contaminate nearby bodies of water.[14] In Corpus Christi, scientists worry that large quantities of brine dumped into the bay could harm aquatic species’ reproductive cycles, which rely on less-salty waters for larvae to mature.[15] More generally, scientists have also expressed concern that brine discharge combined with shipping pollution and ocean freighter traffic may constitute “a near-fatal blow for life in the bay.”[16] Developers’ studies, however, have modeled that brine discharge in Harbor Island will not lead to a “continual” increase in ambient salinity and that discharge will not create a “high-saline layer of water along the channel bottom.”[17] Other experts disagree. One argues that the brine should be pumped into the open Gulf instead of the shallow bay—a concept supported by scientists but deemed too expensive by developers.[18] But the issue also has a potential solution: a growing body of science that shows this brine can be transformed into useful chemicals, metal recovery, and commercial salt.[19]

Third, like many environmental technologies, desalination can exacerbate existing inequalities.[20] As explained below, the EPA has raised concerns that current desalination proposals can disproportionately impact underserved communities, often because plants and their potential problems are located near those communities.[21] The use of desalination plants also implicates more radical discussions of the human right to water and who should have access to water and for what reasons.[22] Experts in California are already grappling with these questions—and have no easy answer.[23]

EPA’s Concerns

EPA’s concerns about Texas desalination are not new—in 2021, the agency revoked the state’s authority to independently review desalination wastewater permits without the agency’s input.[24] The bulk of the EPA’s current concerns, outlined in its September 2022 letter, stemmed from its inability to review the permit issued by the TCEQ. The EPA disagreed with the TCEQ’s determination that the desalination permit is “minor,” thus not requiring EPA approval; instead, the EPA noted, the permit is “major,” and its issuance could be denied by the EPA if it does not have a chance to review the permit.[25] TCEQ had notice since 2021 that the EPA disagreed with the agency’s classification of this permit as “minor,” and that since the facility seeks to discharge process wastewater, it should be classified as a major facility.[26] “Process wastewater” is any water that “comes into direct contact with or results from the production or use of any raw material, intermediate product, finished product, byproduct, or waste product.”[27]

The EPA’s procedural concerns are accompanied by substantive concerns. For example, in 2021, the EPA requested information about the reporting and monitoring requirements for sulfates, chlorides, and total dissolved solids.[28] While the EPA acknowledged that the facility in question is unconstructed, and thus had no actual measurements, it reiterated that best professional judgment could be used to determine appropriate limits.[29]

Second, the EPA struggled to see how the permit’s revision to include a Whole Effluent Toxicity testing requirement by itself would protect water quality. Whole Effluent Toxicity testing helps permit holders measure and stay within the limits for the aggregate toxic effect of an aquatic sample, and helps replicate aquatic species’ environmental exposure to toxic pollutants without identifying specific pollutants.[30] “Whole Effluent Toxicity testing,” the agency wrote, “is not intended to take the place of other biological assessments that may be appropriate for the assessment of water quality in this receiving water body.”[31] Instead, the EPA acknowledged the possible need for a water-quality-based effluent limitation, which is reserved for situations where normal measures do not meet water quality standards.[32]

Third, Section 316(b) of the Clean Water Act establishes requirements and conditions for cooling water intake structures. While the TCEQ concluded that the facility does not intend to use water for cooling purposes, the EPA wanted to address any current and/or future use of water withdrawals from the intake structure.[33]

Finally, the EPA addressed community concerns, namely that the proposed facility could disproportionately impact underserved portions of the community.[34] In October 2022, residents filed a civil rights complaint to stop the city’s seawater desalination plant, which is planned in the predominantly Black Hillcrest neighborhood—an area historically disproportionately impacted by industrial plants and projects.[35] At a public hearing for the Corpus Christi Polymers desalination plant in February 2023, more than thirty people voiced their opinions on marine desalination in Corpus Christi; according to a news report, the meeting room was almost entirely full.[36] The TCEQ is considering renewing the permit for this proposed plant because it had issued permits to M&G Resins, who originally planned to build the plant, prior to the company’s bankruptcy.[37] At the hearing—focusing on the proposed desalination plant—residents brought up everything from plastics pollution in the water to further deterioration of the bay for recreational use.[38]

Fixing Problems

The TCEQ in early 2023 said that it had largely resolved its issues with the EPA over the polymer plant’s permit.[39] TCEQ noted that it had changed the facility’s measures to protect fish from entering the discharge system and increased monitoring for sulfates, chlorides, and dissolved solids.[40] Discussions with the EPA continue as issues around the salinity limit remain unresolved.[41] But the TCEQ’s moves are not enough—the EPA is now informally investigating the state agency.[42] Advocates argue that the state’s permits allow industries to contaminate water, and that the state’s waters are so polluted they are considered impaired under the Clean Water Act.[43] Should the EPA find merit in these allegations, it can launch a formal investigation and could ultimately revoke TCEQ’s authority to regulate water quality.[44]

Race Against the Clock

Despite these regulatory battles, Corpus Christi faces a problem all too familiar to many cities across the south and southwest: The city needs water. According to the Texas Tribune, the city is on pace to run out of water by the end of the decade, if new water sources are not established.[45] And, as time runs out to either adapt demand or increase supply, desalination plants, potentially costing cost almost one billion dollars to construct, increasingly appear to be a promising option.[46]

Stakeholder opinions on marine desalination also complicate the situation. Environmentalists want to stymie desalination to prevent the growth of industry in the city.[47] Scientists are concerned that the brine issue has not been properly addressed.[48] City leaders want to begin construction on the plants they’ve promised their residents.[49] And developers want to capitalize on the city’s, and state’s, growing need for water.[50] The agencies’ showdown will help determine which stakeholders get what they want, and which are left in the salt.

Alisha Adams is an attorney in the Environmental and Legislative section of Jackson Walker’s Austin office. She focuses on permitting and water matters, including real estate developers and special utility districts and counsels clients on transactional and regulatory issues before the Public Utility Commission of Texas.

Emma Edmund is a 2L from Tampa, Florida. She attended Northwestern University and joined TELJ her 1L fall. Emma has long been interested in environmental law, especially water quality and ownership issues. In addition to TELJ, she also worked at UT’s environmental law clinic.

Water Quality

Ownership with Responsibility

The legal treatment and protections afforded to water resources and water quality control in the United States are complex. Water quality is regulated at both the federal and state level, and those regulations are not always consistent with each other. This note focuses on a recent Texas Supreme Court case, Texas Comm’n on Env’t Quality v. Maverick Cnty, which interpreted key language in the rules promulgated by the Texas Commission on Environmental Quality.[1]

The Texas Commission on Environmental Quality (TCEQ) is a state agency with the mission of “[p]rotecting Texas by reducing and preventing pollution.”[2] A primary function of the agency is to issue licenses and permits for the many business owners whose operations effect environmental resources within the state and to promulgate regulations designed to limit negative environmental impact from business operations. Each permit application has a unique review process with various procedures and components.[3] This system is the primary means of regulating the environmentally impactful conduct of businesses within Texas—without the proper permits from TCEQ, businesses cannot continue their operations. Therefore, the successful issuance of a permit or license is critical to any business whose operations fall under the purview of the TCEQ. It also means that challenging a permit or license is the best way for an advocate, who believes the environment is being harmed by certain business conduct, to try and stop operations.

The focus of Texas Comm’n on Env’t Quality v. Maverick Cnty was the renewal of a permit for wastewater being discharged from a coal mine applied for by mine’s owner, Dos Repúblicas Coal Partnerships (DRCP).[4] The primary issue involved the interpretation of the TCEQ rule that “if the facility is owned by one person and operated by another and the executive director determines that special circumstances exist (…) both [should] apply for a permit.”[5] This rule accommodates gives TECQ flexibility to require additional procedures for circumstances where owners are remote from the overall operations of the particular business. Therefore, the TCEQ is allowed to determine those non-owners who actually run the business must also comply with licensing requirements. Since DRCP has hired a contractor “to personally perform the day to day running of the mine,” those challenging the permit argued that both DRCP and the contractor needed to apply for the permit. [6] The court narrowed the issue to “whether DRCP or the contractor is the [coal] mine’s ‘operator’” under the definitions adopted by TCEQ. [7]

The court begins by discussing the lengthy application history of DRCP’s licensing application, showing that DRCP complied with the various procedures, and obtained all the needed consents in order to obtain a license from TCEQ.[8] Furthermore, the court acknowledged that TCEQ had complied with each required step. In reviewing agency actions, the court applies the reasonable basis test, which gives substantial deference to the agency’s actions.[9] Under a reasonable basis standard, the court is not evaluating the substantive correctness of the decision. Instead, the curt is deciding whether there is any legitimate basis for concluding as the regulatory authority did.

Accordingly, applying a textualist approach, the court looked to the literal language of the rules promulgated by TCEQ to determine what should be considered reasonable. The focus was on the definition of “Operator–The person responsible for the overall operation of a facility.”[10] The court acknowledged that although “overall operation” is open-ended and vague, that the court’s “principal goal when interpreting text is not to achieve simplicity or ease of application.”[11] Therefore, the court determined that specifying the meaning of the terms by adding other language such as “personal performance,” as the court of appeals had done, was an error. Adding such a qualifier unacceptably limited the scope of the term.[12] The court reasoned that there are entities that can be “responsible for [the] overall operation of a facility” without doing the day to day work.[13] 

In this holding, the court sticks to a broader, more flexible reading of the rule, which in turn gives TCEQ more discretion in how to apply it. However, the more encompassing the definition of “operator” is, the narrower the circumstances in which an owner and operator will be deemed separate entities. As a result, it is less likely that two licenses will be required in any given situation—making it easier for businesses to legally continue their possibly harmful conduct. 

From a practical perspective, the ruling does allow for a more streamlined application. There are many substantive issues which arise when multiple people or entities are required to obtain licenses which the court did not discuss, as its analysis solely pertained to the text of the rules. For example, contractors may change many times over the course of a business’s life. A lot of added difficulty would come to the businesses if any time it wanted a new contractor, the contractor had to go through the entire licensing process. This could cause the an owner to keep employing a bad contractor, simply because the time and expense of finding a new one to get permitted would be too costly. Once a contractor obtains a license, that could provide substantial negotiating leverage over the owners. Therefore, from a logistical standpoint, it makes a lot of sense maintain an approach that allows an owner to be the “operator” for purposes of licensing, while also contracting out experts to deal with the day-to-day maintenance and running of a facility. Furthermore, the definition does not mean that the owner and operator will always be the same entity. It just gives flexibility in the appropriate circumstances for TCEQ to make such a finding. 

Although this case may feel like a loss for those seeking a harsher licensing policy, it makes sense from both a textualist and realist approach. Those seeking to reform the policies regarding water treatment should do so through legislative or agency advocacy. However, the court showed that unless the circumstances are “unreasonable,” the agency’s decision will likely continue to be upheld. 

Jessica Rosenwasser is a 3L from New York City. She attended Washington and Lee University and joined TELJ during her second year of law school. Jessica will be working for Vinson & Elkins in the New York office after graduation.

Francesca Eick is an Associate with Baker Botts in Austin. Ms. Eick’s practice focuses on regulatory compliance, permitting, litigation, and transactions involving environmental, land use, natural resource, and energy issues. Ms. Eick has advised public and private clients on matters relating to a range of environmental statutes including the Clean Water Act (CWA), the Endangered Species Act (ESA), the Clean Air Act (CAA), and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

Water Quality

Citizens Using the Courts to Enforce Zero Discharge Limits for Plastic Pellets

In the last decade, a surge of cheap shale gas has driven growth in the domestic plastics industry.[1] Shale gas is one of plastic’s key ingredients, and Texas produces 23% of the national total.[2] Texas, Louisiana, and Oklahoma have seen an influx of plastics manufacturers.[3] New plants are being built across an area deemed “Cancer Alley,” raising concerns about further pollutants.[4] Citizen suits concerning waterborne, plastic pellets have set a low bar for proving plastic contamination in effluent emissions. These decisions have effectively enforced a plastic-pellets zero-discharge limit under the Clean Water Act (CWA), and state agencies are following along.

In 2019, the District Court for Southern District of Texas issued a declaratory judgment finding that a Formosa Plastics facility violated a CWA permit issued by the Texas Commission on Environmental Quality (TCEQ).[5] TCEQ has the authority to issue Texas pollutant discharge permits, referred to as Texas Pollutant Discharge Elimination System (TPDES) permits.[6] In San Antonio Bay Estuarine Waterkeeper v. Formosa Plastics Corporation, the TPDES permit at issue prohibited the discharge of floating solids “in other than trace amounts.”[7] The plaintiffs, a group of citizens and an NGO, alleged that the permitted facility had been discharging plastic pellets and powder that exceeded that limit.[8]

The court looked to the Webster’s Dictionary definition of “trace,” essentially determining it meant “barely discernible.”[9] The court also referred to an expert witness’s “trace amount” interpretation as contaminants that are “‘not easily identifiable in the environment . . . very difficult to detect . . .  and often take[] advanced instrumentation to concentrate them for analysis.’”[10] The court’s trace amount interpretation essentially means that any plastic a person could see or collect was excessive and violated the permit. To meet this standard, the plaintiffs submitted “photographs, videos, and 30 containers containing 2,428 samples of plastics in gallon zip lock bags and plastic bottles of plastic pellets.”[11] The court relied on this to find that the plastic discharges were beyond trace amounts, violating the TPDES permit and damaging the affected area’s recreational, aesthetic, and economic value.[12] Formosa was required to pay $50 million to improve technologies for preventing plastics in wastewater and fund offsetting environmental projects.[13]

This case suggests an emerging zero-discharge standard for waterborne plastic. Under the “trace amounts” interpretation accepted by the court, any person can show a CWA violation by simply hauling bags of collected plastic into court. If the plastic is able to be collected with human hands and be seen with human eyes, then it is not “barely discernible.” It does not take as much volume for solid plastic to have these qualities as required for a liquid or particulate contaminant. While the Texas Administrative Code demands a scientific process for measuring a water body’s toxicity, radioactivity, temperature, PH, or bacterial health, measuring the water’s physical plastic amount seems to be a blunt tool. Plastic pellet manufacturers, formers, and transporters should be aware of the enforcement potential if a single pellet in the water can be seen or collected.

However, this does not mean that the court’s interpretation exceeds regulators’ current goals. As the court pointed out, the TCEQ conducts visual inspections of water to determine whether discharges exceed “trace amounts.”[14] The Texas Administrative Code’s Chapter 37 sets out aesthetic parameters for surface water, mandating that water be “essentially free of floating debris[,] . . . suspended solids[, and] . . . settleable solids.”[15] TCEQ gave a presentation at the Surface Water Quality Advisory Workgroup meeting on June 29, 2020, clarifying that none of the 155 TPDES permits for plastic pellet manufacturers authorized any amount of plastic pellets to be discharged into receiving waters.[16] The agency has proposed measures to clarify this prohibition including updating the Texas Administrative Code’s Chapter 37 to explicitly prohibit plastics’ discharge, update wastewater permits, and require a set of Best Management Practices for handling plastics.[17]

Decisions like Formosa are not themselves driving administrative change, but are a signal that citizen groups are using litigation to stop plastic pollution more quickly than administrative or legislative solutions are formalized. Eliminating waterborne plastics is a growing priority for citizen groups and legislators. The Save Our Seas 2.0 Act (SOS Act) was signed on December 18, 2020, and focuses on marine ecosystems’ contamination and plastic ingestion by marine fauna.[18] The Break Free From Plastic Pollution Act (BFPPA) was introduced on March 25, 2021, with the goal to “shift the burden of cleanup to the corporations that produced the plastic[] . . . .”[19] Whether these legislative efforts will bring about meaningful change remains to be seen, as the SOS Act has been criticized for its measured approach and the BFPPA has failed to garner bipartisan support.[20] Whatever their outcome, they will move slower than many activists prefer, making the courts the most expedient battleground to stop plastic pollution.

The Formosa ruling may have invited a surge in CWA citizen suits over plastic contamination. Citizen groups have recognized that standards such as “trace amounts” require less plastic-contamination scientific evidence than discharge limits on other contaminants. Individually-collected waterborne plastics may become the preferred method of proof against plastic manufacturers. A District of South Carolina pending case affirmed that the plaintiffs have standing partially based on a similar production of plastic pellet bags.[21] In 2020, Formosa Plastics faced a permit challenge where the plaintiff citizen group cited the individually collected plastic in San Antonio to evidence a misconduct pattern.[22]

Now, in 2021, Formosa is facing a public challenge by environmental justice groups to stop the construction of a $9.4 billion complex in Baton Rouge, Louisiana’s, “Cancer Alley.”[23] The case emboldening local activism was not accidental. Following the decision, the plaintiff activists drove the plastic pellets that had been used as evidence to Baton Rouge.[24] The activists placed the pellet boxes outside the homes of four chemical industry lobbyists with notes reading “we have delivered this package . . . as a reminder—Louisiana does not need any more pollution, plastics, or otherwise.”[25]

David Klein is a Principal of Lloyd Gosselink Rochelle & Townsend, P.C. and is the Chair of the Environmental and Natural Resources Law Section of the State Bar of Texas.  David represents public and private clients in water quality, water rights, water districts, and water utility service matters.

Graham H. Pough is a second-year student at The University of Texas School of Law and Senior Editor of the Texas Environmental Law Journal.