EPA, Texas' system for protecting water is broken. Let's fix it.

Bayou City Waterkeeper
September 23, 2021

Today, twenty-one environmental groups, including Bayou City Waterkeeper and our fellow Texas-based Waterkeepers San Antonio Bay Estuarine Waterkeeper and Environmental Stewardship, filed a petition with EPA today to take over and repair Texas’ broken system of issuing permits to control water pollution, which has made it too easy for industries to contaminate waterways across the state. Water pollution is a major problem in Texas, with 9,711 miles of the state’s rivers, 590,214 acres of its lakes, and 1,248 square miles of its estuaries so polluted they are considered “impaired” under the federal Clean Water Act, according to the petition filed by the Environmental Integrity Project, Sierra Club, Clean Water Action, Public Citizen, Bayou City Waterkeeper, and 16 other allied organizations across the state.

To control this pollution, EPA delegated authority to Texas to administer a federal permitting program that sets limits for polluters. But Texas has failed in its responsibilities by not requiring that polluters document the economic or social necessity of projects that harm downstream water quality and demonstrate that there are no viable alternatives. In addition, Texas is improperly barring court challenges of bad water pollution permits from people who use waterways for recreational purposes, such as fishing or kayaking, but do not own land nearby, according to the petition filed by the 21 groups.

“Over the years, Texas has given a green light to a huge amount of contamination of our waterways by allowing developers and other polluters to shortcut the legally required permit review process that is meant to safeguard our rivers and streams,” said Ilan Levin, Texas Director of the Environmental Integrity Project. “For this reason, EPA needs step in and take over – or force Texas to fix its broken review system.”

Kristen Schlemmer, Legal Director and Waterkeeper for Bayou City Waterkeeper in Houston, said: “It is time for the EPA to step in. For far too long, Texas has played around with rules designed to protect our water and health for the benefit of polluting industries. The state’s negligence has left us with sewer overflows that happen daily, bayous and bays that don’t meet even Texas’ relaxed water quality standards, and real consequences for our collective health.” 

Alex R. Ortiz, Sierra Club Water Resources Specialist, said: “The State of Texas has continuously failed to protect its residents, wildlife, and waterways by depriving Texans of meaningful engagement and shirking its responsibility to establish and enforce protective water quality standards. It’s well past time for EPA to get involved and prevent further harm to our state.”

A key missing element to Texas’ permit review process, according to the petition, is the lack of an effective “anti-degradation policy” to protect water quality. This policy requires industries to document the economic or social necessity of projects that pollute waterways and demonstrate that there are no viable alternatives that would avoid pollution of the waters. The Texas Commission on Environmental Quality (TCEQ) allows industries and developers to skirt this permitting requirement by almost always asserting that the impact on downstream waterways will be too minor to make any real difference (exempt because it’s “de-minimis”).

The 21 environmental organizations who filed the petition argue that these incidents represent a broader pattern of Texas failing to adequately protect waterways. According to EPA enforcement data, industrial facilities in Texas exceeded wastewater discharge permits more than any other state in the nation in 2018.

Among the 9,711 miles of “impaired” rivers and 1,248 square miles of impaired bays across the state are, for example, a majority of the waterways in the Houston region, including Upper Galveston Bay, Buffalo Bayou, and several other tributaries to the San Jacinto River. “Impaired” waters like these are too polluted to fully support natural wildlife or public uses such as recreation or drinking water supply. In 2018, the Bayou City Waterkeeper documented more than 9,000 water pollution violations by the City of Houston over five years, including the release of millions of gallons of sewage and stormwater into waterways, often in Latino and Black neighborhoods. A 2021 report showed that Harris County’s Sylvan Beach Park tested unsafe for swimming 61% of the time, and 23 beaches in Galveston County were unsafe for swimming nearly a quarter of the time they were tested.

In 2012, only Indiana surpassed Texas for the amount of toxic water pollution discharged to its waterways from industrial facilities, a total of 16,476,093 pounds in the Lone Star State, according to EPA’s Toxic Release Inventory. To solve the systemic pollution control problem in Texas, the petition asks EPA to require Texas to start using the correct review and documentation process for issuing permits and allow court challenges of water pollution permits to the full extent required under the Clean Water Act. If Texas fails to implement these corrective actions, the petition asks EPA to take over the state program and fix the problems itself.

Read the petition. The 21 organizations that filed the petition with EPA today are Environmental Integrity Project, Clean Water Action, Sierra Club, Public Citizen, Save Our Springs Alliance, Bayou City Waterkeeper, Environmental Stewardship, San Antonio Bay Estuarine Waterkeeper, Ingleside on the Bay Coastal Watch Association, Greater Edwards Aquifer Alliance, Simsboro Aquifer Water Defense Fund, Wimberley Valley Watershed Alliance, Friends of the Brazos River, Granbury Fresh, Protect Our Blanco, Friends of Dry Comal Creek, Hamilton Pool Road Matters, Hillcrest Residents Association, Friends of Hondo Canyon, and Bandera Canyonlands Alliance.

Statement by Kristen Schlemmer, Legal Director and Waterkeeper

For 20 years, Bayou City Waterkeeper has worked across the greater Houston region to protect water quality, preserve wetlands, and create resilience to flooding and climate change. Our work depends on the federal Clean Water Act, which the Environmental Protection Agency has entrusted Texas to enforce since 1998.

For far too long, Texas has not done its job. Texas’ chief environmental regulator, the Texas Commission on Environmental Quality, has played around with rules designed to protect our water and our health for the benefit of polluting industries and real estate developers. That’s had real consequences for water and people in the Houston region. 

Thousands of times over the last decade, the city of Houston sent untreated sewage into our bayous and bays. Texas didn’t do enough to stop it, even after Harvey destroyed sewage treatment plants and turned national attention on our sewer problems. When we, Bayou City Waterkeeper, sued, we prompted the EPA to act and take charge, and a plan to address the problem was approved this year  – but only after millions of gallons of sewage had been spilled in our bayous and bays over several years. 

From Lake Livingston down to Galveston Bay, the Houston region has lost thousands of acres of wetlands, which has increased flooding and led to even more water pollution for local communities. Texas could have stopped it, but they didn’t.

We’re surrounded by water in Houston but can’t safely swim or fish in most of our bayous. Along the coast, our beaches have been deemed not safe for swimming more than 10% of the year. Sylvan Beach in Harris County is especially bad – it isn’t safe for swimming 61% of the time. If TCEQ had done its job over the past 23 years, we might have a different story to tell. 

There’s time for this to change. Our petition today asks the EPA to step in and give our region and our state the clean water it needs and deserves.

Using science and law, Bayou City Waterkeeper works with communities affected by flooding and water pollution toward a clean and healthy watershed. Through the Clean Water Act, Bayou City Waterkeeper holds polluters accountable and protects the waters that flow through our bayous, creeks, and neighborhoods into our coastal bays.