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TCEQ Rejects Pristine Streams Petition — But Admits Wastewater Pollution Is A Problem

Thanks to your support for the Pristine Streams Petition, the Texas Commission on Environmental Quality has acknowledged that it needs to do more to protect our state’s most beautiful rivers and creeks from treated wastewater.

Let’s get the bad news out of the way first. On March 30, TCEQ’s three commissioners voted 2-1 to deny the petition, which asked TCEQ to stop issuing new wastewater discharge permits on some of the Hill Country’s most treasured waterways. You can watch the video of the meeting here.

Barton, Cypress, and Onion Creeks would have been among the streams protected In central Texas, as well as the Blanco and San Gabriel Rivers. The petition was filed by the Hill Country Alliance (HCA), Save Barton Creek Association (SBCA), Devils River Conservancy, Friends of Hondo Canyon, and 59 individual landowners. 

Despite the loss, there were plenty of encouraging signs during the commissioners’ meeting:

Bright Spots

• Most importantly, Commissioner Bobby Janecka voted to accept the petition. While he didn’t support the recommendation for a prohibition on new discharge permits, he felt the commission should have accepted the petition in order to start TCEQ’s rulemaking process.

• Although they ultimately voted against the petition, Chairman Jon Niermann & Commissioner Emily Lindley listened closely to supporters and showed that they were engaged with the issue. They both said that discharging treated wastewater into pristine streams is a real problem that TCEQ needs to address.

• A large and diverse group of backers delivered a strong set of arguments for the petition. Supporters who spoke at the meeting included representatives from the Blanco City Council, Texas Wildlife Association, Texas Onsite Wastewater Association, and Texas River Protection Association.

• Statements of support were filed prior to the meeting by the cities of Bandera and Wimberley, as well as Edwards and Real Counties. In addition, more than 1,200 online comments were filed with TCEQ, with all but a handful in support of the petition.

• None of the petition’s opponents bothered to speak at the meeting — an absence that Commissioner Lindley noted. Statements opposing the petition were filed beforehand by the Texas Association of Builders (the trade association for real estate developers), the Texas Association of Water Companies (the trade association for privately owned utilities), two law firms representing cities with wastewater discharge permits, and the city of Dripping Springs.

• Prior to the meeting, TCEQ Executive Director Toby Baker recommended rejecting the petition, because the Legislature had considered similar bills but failed to pass any of them. Chairman Niermann expressed his dissatisfaction with Baker’s reasoning, and substituted his own order for rejecting the petition. Still, even Niermann’s order acknowledges that TCEQ is only doing what’s “legally adequate” to protect our state’s most pristine streams.

• The meeting was covered by two Austin TV stations, Fox 7 and KXAN, which interviewed Brian Zabcik and Sydney Garcia from SBCA, and Katherine Romans from HCA, for their stories.

Next Steps

Though the petition was rejected, there will be several opportunities to advocated for pristine streams in the coming months: 

• Niermann directed TCEQ’s staff to examine whether the agency is doing enough to protect pristine streams. He also suggested that the agency could set up stakeholder meetings to discuss the issue. All three commissioners said that they were willing to meet directly with the petition’s supporters.

• TCEQ is being reviewed this year by the Texas Sunset Commission. Sunset staffers are expected to issue a report next month with their recommendations for TCEQ. Sunset commissioners will then consider those recommendations when they meet in late summer. SBCA has already asked Sunset staff to include a pristine streams discharge prohibition in their recommendations. We’ll also be asking Sunset commissioners to include the pristine streams prohibition in the recommendations that they forward to the Legislature.

• Finally, we’ve already started planning our strategy for next year’s Legislative session. HB 4146, which would have also prohibited new discharge permits on pristine streams, advanced farther in last year’s legislative session than any previous bill on wastewater discharge. We plan to build on that success in working for a pristine streams bill next year.

Save Barton Creek Association wants to thank you again for everything you did to support the Pristine Streams Petition. We’ll be in touch in the coming months with more information about how you can help protect Barton Creek — and all pristine streams in Texas — from wastewater pollution.

During the commissioners’ meeting, Chairman Niermann told petition supporters, “Y’all are going to have to keep fighting this.” We will.

FOR IMMEDIATE RELEASE:
Monday, August 2, 2021

CONTACTS:
Cynthia Wilcox, 512-771-5755, cbwidaho@gmail.com
Karon Rilling, 512-468-1692, karon.rilling@gmail.com
Kelly Davis, 512-477-2320 x6, kelly@sosalliance.org

Judge Tells TxDOT: Stop Bulldozing Protected Trees in Oak Hill

AUSTIN — A federal judge on Friday instructed the Texas Department of Transportation (TxDOT) to stop destroying protected trees as it begins reconstruction of the Oak Hill Y interchange at U.S. 290 and S.H. 71. Hours later, TxDOT announced that it had directed its contractor to stop removing all trees in the project until the judge’s next hearing on September 2.

TxDOT’s plans call for the existing ground-level intersection of 290 and 71 to be replaced by a much larger interchange with both sunken and elevated roadways. According to the project’s environmental impact statement, almost 200 trees that would otherwise be shielded by Austin’s tree protection ordinance could be removed during construction. The at-risk trees include 37 Legacy Trees (trunk diameter of 40 inches or more), 137 Heritage Trees (24 inches or more), and 114 Protected Trees (19 inches or more).

Several community groups and local residents have sued TxDOT, asking the agency to abandon its costly and unnecessary plans for the new interchange and to switch to a less destructive and cheaper design. The suit, which has been assigned to U.S. district court judge Robert Pitman, was filed by Save Barton Creek Association, Fix 290, Save Oak Hill, South Windmill Run Neighborhood Association, Alan Watts, and Mike and Crystal Bomer. The plaintiffs are represented by Bill Gammon of Gammon Law Office, with assistance from Kelly Davis of Save Our Springs Alliance.

During Judge Pitman’s hearing on Friday, TxDOT claimed that only trees with trunk diameters of 8 inches or less had been removed by its contractor so far. Gammon used photos taken by local residents to show the judge that the contractor had in fact bulldozed several much larger protected trees. (See attached photos below.)

In his ruling, Judge Pitman told TxDOT that it couldn’t remove any “potentially protectible” trees (trunk diameter of more than 8 inches) until he could rule on the plaintiffs’ motion for a preliminary injunction. The judge told TxDOT’s attorney that if he found any evidence that protected trees had been destroyed, he will question the contractor to find out exactly what instructions it received from the agency.

TxDOT announced late Friday that it was temporarily stopping the clearing of all trees and brush at the construction site. According to the agency’s statement:

“TxDOT has voluntarily and specifically instructed its contractor, Colorado River Constructors (CRC), to immediately stop work on tree and brush clearing along the entirety of the Project limits until the preliminary injunction hearing and hearing on the merits is conducted on September 2, 2021. Under TxDOT’s partial stop-work order, hand grubbing and clearing is also not allowed.”  

According to Cynthia Wilcox, president of the Oak Hill Association of Neighborhoods, “You can’t ever replace a native tree that is hundreds of years old. It takes eight human generations for a Heritage Tree to reach full maturity.”

Wilcox added, “The devastation to the Oak Hill community from this massive deforestation and destruction cannot be overstated. Community members have repeatedly asked TXDoT to scale back the footprint of this project to fix the congestion at the intersection and leave the community and Oak Hill’s namesake trees intact.”

Dr. Karon Rilling, a long-time Oak Hill activist, added, “TxDOT’s wasteful and obsolete elevated-and-excavated design will divide a cohesive community into three pieces with a hazardous and blight-inducing barrier between them.”

VIDEO LINK:
https://www.youtube.com/watch?v=L7BpvMUCLiE

PHOTOS:

(Originally published with NRDC https://www.nrdc.org/stories/protesting-your-life-depended-it)

Photo caption: 

Zabcik (left) and Aldyn McKean brief ACT UP members on a protest at the National Institutes of Health in May 1990. (Photo: Dona Ann McAdams)

Editor’s note: SBCA’s Brian Zabcik was invited to write this Pride Month column for the website of the Natural Resources Defense Council (NRDC).

Do you want to get media coverage for your protest? Use clever props. That’s one of the first lessons I learned when I became an AIDS activist with ACT UP/New York in the late 1980s. And it’s a lesson I still follow in my current work as an environmental activist in Texas.

With no money for paid media campaigns, ACT UP (which is still flourishing) depended on TV and print stories to get its message out. This led to a lot of creativity around how to stage events that would look good on television—everything from carrying colored smoke canisters across the Maryland campus of the National Institutes of Health, to floating a balloon-suspended banner up to the ceiling of Manhattan’s Grand Central Terminal.

I was thinking about ACT UP’s props earlier this year when I organized a press conference for Save Barton Creek Association (SBCA), the Austin, Texas–based environmental nonprofit where I currently work. We were trying to rally opposition to a proposed sewage plant on one of the city’s most popular and pristine streams. Treated sewage still contains enough phosphorus and nitrogen to cause huge algal blooms, which have already suffocated other local streams.

But how to visualize this for TV cameras? The night before our press conference, I asked one of our supporters to fill a bucket with algae from a nearby creek. The next morning, at the start of our event, I placed the bucket next to my feet. Then at a strategic moment, I reached into the bucket, grabbed a handful of algae, and held it up for the cameras. The green goo was the money shot in our TV coverage that evening. Two days later, the sewage plant developer canceled its plans.

My current work might not be that surprising, since I’m a child of the environmental movement. I was six when the first Earth Day was held, and my interest in nature was further fueled by my dad’s subscription to National Geographic and family vacations to national parks. But I was also able to explore nature on my own, since we lived on my grandparents’ farm in central Texas. The creek that runs through our pasture was my after-school playground, where I collected fossils, arrowheads, and wildflowers for class projects. My love for the outdoors continued as a student at the University of Texas (UT) at Austin, when I would go on hiking and camping trips with friends.

But I’m also a child of the gay rights movement since the Stonewall uprising happened when I was five. I came out as a gay man while at UT, and as graduation approached, I was unsure about where to live next. I’d only seen a handful of queer adults who were out in non-queer spaces in Austin. I felt that my options would be similarly limited if I stayed anywhere in Texas. On the other hand, I had several friends who were moving to New York City to look for jobs in journalism and publishing. In 1987, two weeks after graduation, I followed them to a place that I already knew was a gay mecca.

I was far from unique in thinking that I had to move to a big city in order to be fully out as a queer person. At the macro level, people with different sexual and gender identities exist in every possible demographic, including in every country, ethnicity, and faith. But at the micro level—in homes, schools, and workplaces—individual queers usually find themselves to be the only one, or at least the only one they know of.

That’s why many LGBTQIA+ people have historically moved to big cities so that we can find more people like ourselves. Over time, this urban immigration has built on itself—in fact, LGBTQIA+ communities are similar to other immigrant communities. Word spreads that a particular city is a safe place where queer people can work without getting fired, where they can live without getting evicted, and where they can get medical care without being stigmatized. Equally important are the social benefits, such as an expanded pool for finding friends and partners.

Shortly after moving to New York, I was walking down an avenue one afternoon when I heard a man in front of me talking to his friend about ACT UP. I’d seen some of the group’s posters and flyers across Manhattan, and I was curious. I joined their conversation, and the man invited me to my first meeting. I went, and kept going for the next five years. Hundreds of people packed ACT UP’s general meeting every week. The majority of them were gay men, but the group also had a sizeable and influential contingent of lesbians too. It was the first time in my life that I was enveloped by such a large and thoroughly queer community.

The intense passion within ACT UP came from a simple source—we felt like we were fighting for our lives. When I joined the group, there were no effective treatments for the HIV infection that caused AIDS. Most people died within two years of a positive diagnosis. The first truly effective therapy that prevented this death sentence wasn’t widely available until 1996. Many of the people I’d become friends with through ACT UP died before they could benefit. The man who invited me to my first meeting, Mark Carson, died in 1994.

I devoted all of my spare hours to working for ACT UP—even switching to a part-time position at my magazine in order to have more time for the group. I helped organize several actions, which was how I learned firsthand about the importance of props. In 1989, we held a protest to demand that the U.S. Food and Drug Administration (FDA) speed up its approval of the only medication that could prevent AIDS-related blindness. In order to make the point that time was running out for people with AIDS, we held up clocks and watches, along with posters asking the FDA to “See the Light.” A few months later, the agency approved the drug.

In addition to the nuts and bolts of organizing actions, ACT UP also taught its members several important lessons about strategy. Because our positions were generally unpopular, we learned how to be resilient. Because we sometimes won, we learned how to be occasionally optimistic. And because we couldn’t win without support from other groups, we learned how to form coalitions. Indeed, that’s in the group’s full name: the AIDS Coalition to Unleash Power.

ACT UP has received more attention lately, with several writers citing it as one of the most successful social change movements of recent decades. The group’s history is being told in documentaries like United in Anger and How to Survive a Plague, and in books like Let The Record Show, the most comprehensive account of ACT UP yet published. (A few weeks ago, a friend texted me to say she saw me in old footage of ACT UP on that night’s episode of the Rachel Maddow Show.) But at the time, we had to fight for every little bit of media coverage.

Other causes were more popular, because they were less problematic. For instance, ACT UP was protesting inside churches and setting up needle exchanges, while environmental groups were protecting cute animals and pretty forests. At least, that’s how we saw it. One evening, I was talking with my friend Lee Schy, who was angry about how college students were flocking to other causes but avoiding ours. “They’d rather join Greenpeace than ACT UP,” he said bitterly. Lee died from AIDS in 1995.

Ironically, one of ACT UP’s few connections with an environmental group was with Greenpeace. In 1989, Howard “Twilly” Cannon, who had trained Greenpeace’s activists for some of their most spectacular protests, offered his assistance to one of our members, Peter Staley. Their collaboration led to one of the most notorious AIDS protests ever.

Senator Jesse Helms aggressively fought against any federal policy that could’ve helped people with AIDS or slowed the spread of it. In 1987, he successfully sponsored legislation that effectively banned federal funding for safer sex eduction aimed at gay men. Four years later, Helms received a demonstration on the effectiveness of one safer sex practice—condoms. With Cannon’s help, Staley’s affinity group commissioned a company that made inflatable displays to produce what is probably the biggest condom ever made (it even had a reservoir tip). While Helms was away from home, the affinity group unfurled the giant condom to cover his two-story house in Washington, D.C. The senator never proposed another piece of life-threatening AIDS legislation again.

I’d only intended to stay in New York for a few years, but that turned into a decade, then another decade. In 2011, family obligations finally brought me back to Austin. The city was bigger than when I had left, but it was also more interesting, and it had an active queer scene. Austin is also a hot spot for outdoor recreation, and I spent as much time as possible swimming in Barton Springs, running around Lady Bird Lake, and hiking on the Barton Creek Greenbelt.

And then in 2016, I made an unexpected career change when I was hired by the Texas chapter of Environment America to be its clean water advocate. Last year, I moved to Save Barton Creek Association, one of the oldest citizens’ environmental groups in Texas, to work on water issues on a more local scale.

At first, I thought I was going to have a steep learning curve in my new career as an environmentalist, but I quickly learned how many of my prior skills and experiences were transferrable. I’ve been able to use all of the lessons I learned from ACT UP and other LGBTQIA+ groups about community organizing, media outreach, and policy advocacy.

I also found that I knew much more about environmental protection than I’d given myself credit for, simply because I’d grown up on a farm. In fact, many of the green infrastructure practices that I now promote to protect water quality are things that my grandfather would have recognized, although he would have used a different label—soil conservation—to describe them in the 1930s.

Everything came full circle last fall when I decided to move back to the family farm in order to restore my grandparents’ 85-year-old farmhouse. From clearing invasive mesquite trees to managing the exploding deer population, I’m now interacting with nature on a daily basis in a way that I haven’t since I was a kid. And what about the gay thing? Well, things are different back here too. While I live in a very red rural area, most of my friends and family know that I’m gay, and so far, it hasn’t been an issue.

How applicable is my experience to other queer people? I don’t know. I was able to make a midlife change because I’d already done many other things. If I were a new college graduate now—even in a Texas that’s more gay-friendly than when I graduated—I’m not sure what I would do. Many of the factors that led me to New York City in 1987 might lead me to the same place now.

But maybe not. It’s impossible to overstate how much life for my community has changed—mostly for the better—since the 1969 Stonewall uprising. I sometimes joke that queer people should have the right to be just as boring as straight people. I don’t mean that in a derogatory way—I just mean that if we want, we should be able to think about nothing else but getting the kids to soccer practice, fixing the leak in the kitchen sink, and writing that overdue report for work. We shouldn’t be forced to constantly think about our sexual and gender identities. And we definitely shouldn’t be forced to contemplate how some people think our identities are wrong.

And with that extra time, maybe more queer people will be able to think about what we can do to help protect the environment.

Save Barton Creek Association(SBCA) has had a special interest in protecting the water quality and experience at Barton Springs Pool since our founding in 1979. SBCA submits these comments on the Zilker Café Conditional Use Permit, after much discussion among SBCA’s board of directors. Save Barton Creek Association is opposed to amending the zoning of the  Café to allow for the sale of alcohol.  

While we understand the urban “fun factor” of having such a café in a public space, this  location brings up significant concerns. Barton Springs Pool is a deep, slippery, cold spring-fed  pool which already presents challenges for the lifeguard staff. It’s unfair to require the staff,  mostly teenagers, to determine and enforce the rules on alcohol use and entry into the pool. It  is also unfair to make lifeguards responsible for the increased risky behavior that drinking and  swimming is likely to bring.  

For many, Barton Springs Pool is a peaceful retreat or family-friendly outing. It is a sacred place where everyone should feel safe and welcome. Many current pool swimmers won’t feel safe and welcome in a situation where they are surrounded by potentially drunk and rowdy people – especially families with young kids, elderly people, and people seeking the peace and tranquility that can only be found in nature and especially at the special place that is Barton Springs Pool. 

The combination of alcohol and swimming in bodies of water is very high risk and high liability. There is really no added value to bringing alcohol to this location. It is not fair to the pool staff,  lifeguards, and many pool guests. There will always be unsolicited drinking in the park, but we shouldn’t openly encourage more. Barton Springs Pool is not an adult vacation resort pool, it is a natural body of water providing peace, tranquility, and respite to all.  

For these reasons, please revoke this proposal to allow alcohol at the Zilker Café.

Sincerely,  

Angela Richter, Executive Director

Breaking: Developer nixes sewage plant on Barton Creek! Pending legislation would prohibit similar sewage permits.

AUSTIN – A Houston-based developer who planned to build a sewage treatment facility on Barton Creek withdrew his permit application on Wednesday, one day after intense opposition to his proposal was expressed at a public meeting held by the Texas Commission on Environmental Quality (TCEQ).
TCEQ issued a draft permit to developer Stephen Cleveland in March that would have allowed him to discharge 45,000 gallons of treated sewage into the Long Branch tributary of Barton Creek every day. Cleveland’s decision to withdraw his proposal represents one of the very few times that TCEQ hasn’t approved an application for a sewage discharge permit after receiving it.
“This was a rare win in our fight against sewage pollution,” said Brian Zabcik, wastewater campaign organizer at Save Barton Creek Association. SBCA has been organizing community opposition to the proposed sewage facility since 2017, when Cleveland filed his permit application.
SBCA held a press conference on Monday with local residents who live along Long Branch. Many landowners spoke against the permit at TCEQ’s public meeting on Tuesday night.
“We want to thank everyone who’s been involved in this fight,” said Clark Hancock, SBCA’s board president. “We especially want to thank Mr. Cleveland and his family for recognizing the importance of protecting water quality in the Barton Creek basin.”
In a Wednesday email to TCEQ, Cleveland wrote: “After hearing all the impassioned people in the meeting last night, our family has decided to ask that our application be withdrawn.”
Cleveland’s property is located at the intersection of US 290 and Sawyer Ranch Road, between Oak Hill and Dripping Springs. Sewage from his treatment facility would have flowed past many homes on Long Branch, starting with the Polo Club subdivision.
“The ponds along Long Branch in our neighborhood are home to an incredible array of aquatic life and wildlife,” said Beth McConnell, member of the board of the Polo Club & Rooster Springs Homeowner’s Association. “The ponds are also a treasured resource for our kids who fish, boat and swim in them. We’re grateful that Mr. Cleveland pulled his application. It was the right thing to do.”
“We are extremely pleased that the Cleveland family listened to the community’s concerns and opted for a no-discharge alternative,” said Kelly Davis, staff attorney with Save Our Springs Alliance (SOS). “However, there’s still much to be done in the bigger fight to keep our fragile Hill Country streams clean and clear for all to enjoy.”

Even after treatment, sewage discharge still contains high levels of nitrogen and phosphorus, two of the key ingredients in lawn and garden fertilizers. When sewage is dumped into creeks and rivers, the extra nitrogen and phosphorus that it contains can produce huge algae growths that inhibit stream use by people and wildlife.

While TCEQ included a phosphorus limit of 0.15 milligrams per liter of treated sewage in Cleveland’s draft permit, this limit was still 15 times higher than the amount of naturally occurring phosphorus in Long Branch and Barton Creek.

“Mr. Cleveland shouldn’t have been able to file his application in the first place, and TCEQ certainly shouldn’t have been able to issue him a draft permit,” said Zabcik of SBCA. “But TCEQ’s standards for sewage discharge permits are so low that there’s nothing to stop someone from applying for another permit just like this one — and nothing to stop TCEQ from issuing it.”

The Texas Legislature is currently considering HB 4146, the Pristine Streams Sewage Discharge Ban, which would bar TCEQ from issuing new discharge permits to private developers on streams with extremely low levels of phosphorus. HB 4146 and its companion bill, SB 1747, would protect more than 40 stream segments across Texas, including Barton and Onion Creeks. (See attached factsheets.)

HB 4146 was approved by the House Environmental Regulation Commission in a unanimous vote on Wednesday. The bill must be approved next by the House Calendars Committee before it can move to a floor vote. SB 1747 has yet to be scheduled for a hearing by the Senate Water, Agriculture, and Rural Affairs Committee.

“Legislation that would protect the most pristine water bodies across Texas from future wastewater discharges is being stalled by a few powerful actors, but there’s still time,” said Davis with SOS. “We urge all Texans to contact their legislators and tell them you support HB 4146 and SB 1747.”

TCEQ announced Cleveland’s withdrawal of his application on Earth Day – a coincidence that many advocates noted. “On Earth Day, we rededicated ourselves to protecting the wonders of the natural world,” said SBCA president Hancock.