Protecting Water Quality & Wetlands with Our Members: Affected Persons and Representational Standing

Bayou City Waterkeeper | November 18, 2019

This morning Bayou City Waterkeeper obtained party status in an administrative challenge designed to preserve water quality in Sims and Berry Bayous. Over the summer, Bayou City Waterkeeper’s Clean Water Act lawsuit against the City of Houston culminated in a consent decree that promises $2 billion in upgrades to local wastewater infrastructure and improvements to water quality from Buffalo Bayou to Galveston Bay. Throughout its history, Bayou City Waterkeeper has used Section 404 of the Clean Water Act to protect important wetlands across the Lower Galveston Bay watershed.

As the only organization with an active legal program dedicated to improving water quality in the greater Houston area, Bayou City Waterkeeper is uniquely suited to take on these challenges. Bayou City Waterkeeper’s ability to fight for water quality and local wetlands in court and administrative proceedings, however, ultimately depends on establishing legal status through its members. 

Reagan Lutter, legal intern with Bayou City Waterkeeper in the Summer of 2019, answers some important questions on how our members play a crucial role in protecting and preserving our watershed.

The information in this post is provided for general informational purposes and should not be construed as legal advice from Bayou City Waterkeeper or its staff.

***

State Administrative Proceedings:
Affected Persons

What kinds of challenges can Bayou City Waterkeeper bring to the TCEQ?

The TCEQ has the authority to issue permits to entities seeking environmental permits related to water quality, municipal solid waste, and more. “Affected persons” may challenge these permits by requesting a contested case hearing under Section 55.21 of the Texas Administrative Code. In a contested case hearing, the TCEQ and the person challenging the permit present evidence and argue whether the TCEQ should have granted the permit.

Who is an “affected person?” 

“Affected person” is a legal term that refers to people with a “personal justiciable interest” – like an economic interest or a legal right – that would be affected if TCEQ grants the permit. To count as a “personal justiciable interest,” an interest must differ from the interests of the general public. 

When determining whether a person is an affected person, Section 55.29 requires consideration of several factors — but a person is likely to be an “affected person” if they live within approximately a mile of a facility that is polluting a local waterway and the pollution affects their health or property.

Federal Litigation:
Representational Standing

What kind of litigation does Bayou City Waterkeeper bring in federal court?

The Clean Water Act is at the heart of our legal work to protect water quality and preserve wetlands locally. Through the Clean Water Act’s citizen suit provision, Bayou City Waterkeeper can challenge violations of federal water quality standards and unauthorized wetland fill. When federally-funded projects affect water quality and wetlands, or threaten our long-term resilience to flooding and storm surges, we may also bring federal claims under the National Environmental Policy Act or Administrative Procedure Act.

What kinds of injuries show standing?

Courts interpret the term “injury” broadly to include not only physical injuries but also aesthetic, recreational, and conservational injuries. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 183 (2000), Sierra Club v. Morton, 405 U.S. 727, 738 (1972). Thus, if any of our members engage in activities like swimming, canoeing, or birdwatching in a body of water that is or will be affected by water pollution or wetlands destruction, Bayou City Waterkeeper may have standing in federal court.

Help Us Protect Local Water & Wetlands
by Becoming a Member

How can I help Bayou City Waterkeeper protect water and wetlands in Texas?

As discussed above, Bayou City Waterkeeper’s ability to challenge permits before the TCEQ and file lawsuits in federal court depends on the way water pollution and wetlands destruction affects its members—you! If you are concerned about an issue near your home or the places you hold dear, Bayou City Waterkeeper might be able to do something about it with you as a member. Become a member of Bayou City Waterkeeper by donating in any amount today

***

Reagan is a second-year law student at the University of Houston Law Center. After graduating from the University of Oklahoma in 2016 with a bachelor’s degree in Environmental Sustainability, Reagan joined the Teach For America Corps and taught science at a Dallas ISD middle school for two years before deciding to pursue her J.D. In her spare time, Reagan enjoys baking, exploring Houston, and spending time with her friends and family. She is passionate about sustainable water management and wetlands conservation and is honored to have been a part of Bayou City Waterkeeper’s efforts.