Action to Protect Environmental Resources: Lessons from the City of Cleburne and Johnson County’s Fight to Protect Its Drinking Water

By James Parker, Maris Chambers, and Emily Linn

For cities, counties and other public utilities and districts, protecting environmental resources from pollution is a paramount concern. When a regulatory body issues a registration or permit that threatens a public resource, it is important to understand the full scope of legal tools that can be used to protect your environmental assets.

Illustrating the tools available in a recent case, the City of Cleburne (Cleburne), in conjunction with Johnson County, engaged a multiple-venue front to protect the City’s primary drinking water source. The Texas Commission on Environmental Quality (TCEQ) issued a domestic-septage registration to a Johnson County Operator (Operator) permitting the application of domestic septage on land a few miles upstream from Lake Pat Cleburne.

The most direct method of challenging a permit or regulatory action is to file an administrative appeal. An appeal of an agency’s decision can be difficult, however, as courts give deference to agencies as the subject-matter experts and the burden of proof is onerous.

Cleburne filed an appeal in Travis County District Court, challenging TCEQ’s Registration. The Court agreed with Cleburne and reversed the issuance of the Registration. But, TCEQ then appealed this decision superseding the District Court’s ruling. So despite the District Court’s decision that the Registration was improper, the Operator was still able to land apply the domestic-septage under the Registration during the pendency of TCEQ’s appeal.

To protect the City’s water during the interim-appeal period, Cleburne initiated two additional mechanisms to stop the polluter from applying domestic septage in violation of its Registration: first, a nuisance suit against the polluter, and second, an action under Texas Water Code (TWC) § 7.351.

The first mechanism involves a suit in the local district for nuisance against a polluter. An entity should request a temporary restraining order to stop the pollution immediately, a temporary injunction to prevent the pollution until a hearing on the merits, and a permanent injunction to bar action under the permit or registration all together.

Cleburne filed a nuisance suit in Johnson County and that district court granted the Temporary Injunction, holding that the health and safety of Cleburne’s water supply was at risk. As to the terms of the Temporary Injunction, the court enjoined all application of domestic septage, thus protecting the City’s water source from toxic run-off during the interim period of the TCEQ’s appeal.

The TWC provides another avenue to prevent an operator from acting in violation of a permit or registration. Under TWC
§ 7.351, a local government can institute a civil suit for injunctive relief or civil penalty against a person that violates or threatens to violate TWC, Chapter 26. Before initiating a suit under § 7.351, written notice must be sent to the Texas Attorney General and the TCEQ stating each violation, the facts that support the claim, and the relief sought. A civil suit against the polluter can be filed 90 days from the postmark date of the notice letter.

Cleburne issued a notice letter reporting the various violations of the Operator under its domestic septage Registration. At this stage, the TCEQ has stated it will take action to prevent the Operator’s continued violations under its Registration. However, if either the AG or the TCEQ had failed to act within 90 days, the City would have been able to bring an action against the Operator under TWC § 7.351. TCEQ’s action may include revoking the Registration.

While the traditional administrative appeal is often the most direct avenue for protecting a public entity’s environmental resources, there are a number of additional defenses that can be waged against a polluter. When the public’s health and safety are at stake, having an awareness of the available legal mechanisms to protect your resources is invaluable.

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James Parker is a Principal in the Firm’s Litigation and Employment Law Practice Groups. Maris Chambers is an Associate in the Firm’s Districts, Compliance and Enforcement, Energy and Utility, and Water Practice Groups. Emily Linn is an Associate in the Firm’s Employment Law and Litigation Practice Groups. If you have questions about any of the legal defenses discussed in this article or any other legal matter, please contact James Parker at 512-322-5878 or jparker@lglawfirm.com, Maris Chambers at 512-322-5804 or mchamber@lglawfirm.com, or Emily Linn at 512-322-5889 or elinn@lglawfirm.com.

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For additional news coverage on the City of Cleburne and Johnson County’s fight to protect Lake Pat Cleburne, see the links below:NBCDFW News Cleburne Times Review Cleburne Times Review