TCEQ adopts ALJ recommendation to create Hays Commons MUD despite water‑quality objections

The Texas Commission on Environmental Quality voted Sept. 24 to adopt an administrative law judge's proposed order creating Hays Commons Municipal Utility District in Hays County, approving road powers and clearing the petition for district formation.

The commission's action, taken by motion and unanimous voice vote, came after lawyers for both the petitioner and multiple protestants argued over whether the record adequately addressed water quality, groundwater impacts and the reasonableness of projected construction costs. Protestants and the Office of Public Interest Counsel urged the commission to deny the petition, citing the district's location largely within the Edwards Aquifer recharge zone and unresolved questions about wastewater disposal plans.

The dispute focused on three core issues, according to the protestants' presentation: whether alternative retail water service from the city of Austin was reasonably available; whether creating the district would have an unreasonable effect on water quality and groundwater recharge given karst features over the Edwards Aquifer; and whether the petition's cost estimates were reasonable when the development plan relied on lot sizes inconsistent with Hays County rules. Victoria Rose, representing the aligned contestants, said the proposed district's petition relied on a plan with 258 lots averaging about 0.339 acres, while Hays County regulations require 0.75-acre minimum lots for properties served by a public groundwater system in the Edwards Aquifer recharge zone.

Petitioner counsel David Tuckfield said the applicant had repeatedly sought service from the city of Austin but had been unable to secure it, and he stressed that the municipal utility district creation process is distinct from the separate Texas land application permit (TLAP) process for wastewater. Tuckfield said the record included technical testimony addressing runoff, stormwater and hydrogeologic matters and reiterated that compliance with Hays County and groundwater conservation district requirements would be pursued.

Executive Director staff told commissioners the MUD creation proceeding is not the appropriate forum to resolve the merits of a TLAP permit application and recommended adoption of the ALJ's proposed order. OPIC, represented by Pranjal Mehta, disagreed and recommended denial, saying nearly 90% of the district area lies within the Edwards Aquifer recharge zone and the record contains expert testimony tying land-applied wastewater over the recharge zone to historical pathogenic outbreaks.

Despite those objections, the chair moved to adopt the ALJ's proposed order as revised and to remove a citation to 30 TAC a7 293.11(d)(5)(J) from a conclusion of law to clarify the relationship between preliminary engineering report content requirements and the statutory determination under Texas Water Code chapter 54. The motion was seconded and passed on a unanimous voice vote.

The commission's order creates the district; it does not itself authorize construction of wastewater facilities, which must later comply with permitting requirements. Commissioners noted the matter may increase scrutiny on subsequent permit reviews and that separate permitting processes remain the venue for detailed evaluation of wastewater disposal methods.

Clarifying details in the record included: the petitioner's pending TLAP application (separate permitting track); testimony that a large portion of the proposed district lies in the Edwards Aquifer recharge zone; the contested-case testimony that historical land-application practices over the recharge zone contributed to outbreaks in prior decades; the petition's plan showing 258 lots at roughly 0.339 acres each versus Hays County's 0.75-acre minimum for public groundwater service; and testimony from the applicant's engineer and hydrogeologist asserting compliance options and alternative plats could be pursued with county authorities.

Commissioners adopted the ALJ's findings and ordered creation of Hays Commons MUD as reflected in the revised proposed order.