Desalination: The Chemical Industry’s Demand for Water in Texas

With names like Cheniere, Exxon, Sabic, Flint Hills Resources involved in these proposals, why would anyone have a need to worry? Well, the answer is that everyone that lives within the greater Nueces River Basin has been extremely worried about these desal proposals and their likely impact on the quality and quantity of water available to them, the region’s prized fisheries, and the ecological jewel of the region, the Aransas Wildlife Refuge, home to the last refuges of the Whooping Crane and Pink Spoonbill (the latter’s viability long-term is already extremely tenuous and well documented). Another example of how these facilities would greatly compromise the region and its estuaries is the fact that effluent from just one of these desalination plants on Harbor Island “…will be discharged via pipe directly to Corpus Christi Bay in Segment No. 2481 of the Bays and Estuaries. The designated uses for Segment No. 2481 are primary recreation, exceptional aquatic life use, and oyster waters.”

The desalination proposals would have a combined intake of 317 billion gallons per year and a brine discharge volume of 213 billion gallons dramatically altering the volume of the water in the bay as well as, and maybe more importantly, the salinity of an already fragile ecosystem.

Even in the face of significant resistance the Texas Commission on Environmental Quality (TCEQ) in concert with the former President Trump’s EPA was in the process of fast tracking all these proposals under the guise of economic progress and reducing the friction that was in place in other parts of The Gulf and the country for petrochemical expansion. However, with a change in administration, the US EPA pivoted and decided to send the TCEQ a “Notice of Termination – Permit Review Waiver for Desalination Facility Permits” almost a year ago to the day. For a review of this notice please refer to our analysis of this development last November. 

According to CAPE lead organizer Errol Summerlin, the primary issue is the fact that TCEQ considers every single discharge into the waters of Texas as minor. This treatment of massive industrial discharges as “minor” by TCEQ was the primary aspect of these projects that sparked the ire of the EPA. Those in opposition to this permit are suggesting that TCEQ must change its policy so that all discharge rates are not rubber stamped as minor. The determination of whether a discharge is major or minor can be distilled down to the following six factors according to CAPE’s Errol Summerlin (For more on these factors and the TCEQ scoring of the this project refer to the file labeled “1 – TCEQ Completed Major Minor WS (1)” in the relevant documents Box folder listed below):

1. Toxic potential of “process wastewater” (Roughly how toxic would a given source of wastewater be given the industrial process involved)
   1. Opponents point out that this score of 0 is dubious at best.
2. Flow Volume
   1. Opponents contest the flow volume assumptions being limited to Type III Flow > Million Gallons Per Day (MGD) (See Page 1 of 1 – TCEQ Completed Major Minor WS (1)).
3. Amount of “conventional pollutants” (amount of certain pollutants particularly statutorily recognized in the 1972 Clean Water Act Amendments)
4. Public health impact (Is there a drinking water supply nearby?)
5. Water quality factors (prior problems of receiving waters)
6. Proximity to certain protected estuaries
   1.  Opponents contest this score of 4.5 primarily because this factor is almost entirely a function of Flow Volume above and the fact that this proposal would have a dramatic impact on the “Coastal Bend Bays and Estuaries Program” which is one of 28 designated estuaries that are part of the EPA’s own “National Estuary Program Study Areas” (See National Estuary Program (NEP) map here).  

Those that are in opposition to the TCEQ permitting process for desalination facilities have pointed out that, “EPA regulations basically say that ‘in coordination with the state’ the EPA regional administrator can exercise discretion to declare any discharge he or she wants to as a ‘major’ source.  That’s part of what renders TCEQ’s position so ridiculous on this. As we see it, if the EPA Regional Administrator says a source is major, then it’s major. Period.”

For more detail on the points being raised by the groups opposing this process read a brief, non-technical explanation of the major/minor classification issues written by Errol Summerlin at the folder below labeled “Email_CorpusChristi_Desalination_MajorMinor” and for a detailed outline of the US EPA’s criteria for major and minor discharges refer to the document labeled “EPA_Major_Minor_Discharge_Worksheet_Instructions.pdf” in the link at the bottom of this piece.

Needless to say, this letter had a chilling effect on the petrochemical’s assumed route of the Corpus Christi area in the name of plastics production, LNG export, and all manner of related profit streams. It is an example of what the federal government has a mandate to do in actually flexing that muscle in the face of overwhelming industry lobbying and financial might especially in a state where nearly every agency has been extremely cozy with the industry since their inception.

Now we have the latest missive from the EPA to the TCEQ in the form of a letter written at the close of business just over a week ago today. In her letter to the TCEQ chairman Jon Niermann EPA Region 6 administrator Dr. Earthea Nance wrote:

As noted in our March 1, 2022, letter, if the TCEQ issues TPDES Permit No. TX0138347 (WQ0005253000) to the POCC without responding to the EPA’s Interim Objection or providing the EPA an opportunity to review the proposed permit in violation of the provisions of CWA Section 402, the implementing regulations at 40 C.F.R. Part § 123, and the Memorandum of Agreement, the EPA’s position will be that it is not a validly issued final National Pollutant Discharge Elimination System permit.

As you may be aware, Section 316(b) of the CWA and its implementing regulations establish requirements and conditions for cooling water intake structures where water is withdrawn from a water of the United States for cooling purposes. These requirements address the design, construction, and location of intake structures and technology used to minimize adverse environmental impacts to aquatic life. It is the EPA’s understanding that the TCEQ concluded that the facility does not propose to use water for cooling purposes and therefore is not subject to the requirements of CWA § 316(b). However, the EPA has questions/concerns regarding the current and/or future use of water withdrawals from the facility’s intake structure and its continued compliance with CWA § 316(b).

Dr. Nance knows of what she writes having already had an exemplary career as a researcher, prior to being named Region 6 administrator by President Biden, at Texas Southern and the University of New Orleans looking at “the intersection of environmental hazards, community participation, and urban infrastructure in complex settings such as vulnerable communities, developing countries, and high-hazard areas.”

As CAPE lead organizer Errol Summerlin wrote in an email to concerned citizens regarding Region 6’s suggestion that Bluewater Texas Terminals withdraw and revise its permit application:

“This second statement addresses the issue that we have been raising about all of the Water Rights Permits being sought by the Port and the City and which they refuse to acknowledge…the water from these desal operations will go to industry, which will use the region’s “new” water supply for cooling and purposes.” 

During the TCEQ Commissioners hearing on September 7, 2022, Craig Bennett, the lawyer for the protestants including the Port Aransas Conservancy (PAC) and CAPE, pointed out that nine of the state’s most highly qualified aquatic ecologists and water quality experts have testified that the Bluewater proposal, and by association all industry desalination proposals in the region, is a horrible idea. Even the state’s own Office of Public Insurance Counsel stressed its continued opposition to the Bluewater desalination proposal (51:30 here) as did Texas’ Parks and Wildlife Department.

After several hours of debate and hearing from lawyers in favor of and opposed to the permit, the commission voted for a two-week continuation on this particular issue. Interestingly, towards the end of this hearing, PAC lawyer Craig Bennett indicated that PAC would stand down if the discharged brine were piped offshore and while this would do much to address the impacts of brine on The Bay and its fragile estuaries not all opponents are united with PAC in viewing such a concession as enough.