In the 1990s we took on two Endangered Species Act (ESA) cases with monumental, long-lasting impacts for both wildlife and people in a diverse bioregion with unique flora and fauna found nowhere else on the planet: Central Texas.

In 1991, the Fountain Darter (Etheostoma fonticola) was in trouble. This small, speckled fish’s fate was tied to the health of San Marcos Springs and Comal Springs, its only homes. Unregulated groundwater pumping in the Edwards Aquifer, the source of the springs, had led to a reduction in spring flow, in turn shrinking critical habitat for the Darter and other endangered species.

On behalf of the Sierra Club, we brought suit against the U.S. Fish and Wildlife Service (FWS) in federal court in May 1991, and thus began Sierra Club v. Babbitt. Sierra Club, alongside plaintiff-intervenors Guadalupe-Blanco River Authority and the City of San Marcos, alleged that FWS had failed to protect endangered species when it neglected to determine the minimum spring flows necessary for their survival. Without that determination to guide regulations, groundwater pumping of the Edwards was a free-for-all, with devastating impacts on spring flows at Comal and San Marcos.

The case was assigned to Judge Lucius D. Bunton, in U.S. District Court for the Western District of Texas, Pecos Division. After a bench trial, Judge Bunton issued comprehensive findings and conclusions in February 1993. He found that FWS had not fulfilled its non-discretionary duty under the ESA to develop and implement plans for the recovery of the four endangered species in question. The court therefore enjoined FWS to develop and disseminate information about the spring flows necessary to sustain the endangered species at San Marcos and Comal Springs.

The litigation and court order also forced the Texas Legislature to finally place restrictions on pumping from the Edwards. And in May 1993, on the last day of the legislative session, a new regulatory agency was created in the Edwards Aquifer Authority. This conservation district continues to serve a key role in environmental protection to this day. The Fountain Darters thriving in the springs are living proof.

A few years later, in 1996, another endangered species was facing imminent threat; this time, in the heart of Texas’ capital city. When City of Austin biologists that summer surveyed Austinites’ favorite swimming spot for the Barton Springs Salamander (Eurycea sosorum), they found fewer than forty individuals. A zoologist from the University of Oklahoma called it the “the most endangered vertebrate in North America” at the time. The Salamander’s tiny range was considered to be restricted to the Barton Springs segment of the Edwards Aquifer, depending on unpolluted, fresh flowing water to survive.

Back in February of 1994, FWS had belatedly proposed the Barton Springs Salamander for endangered status. After more than two years of delays and litigation to secure a final determination for the species, the Service was prepared to publish its rule in August of 1996. But Texas agencies, rushing to the aid of concerned private developers, entered into an agreement with FWS late that month. In return, the Service withdrew the proposal to list the salamander in September of 1996.

We joined forces with Save Our Springs Alliance, a local environmental non-profit that had been leading the fight to protect Barton Springs from overdevelopment throughout the decade. Again, we filed suit against the FWS, in October 1996: the case was Save Our Springs v. Babbitt. And we returned to Judge Bunton’s courtroom in the Western District of Texas.

We alleged, and the court agreed, that Fish and Wildlife acted in violation of the Administrative Procedure Act. Its decision to withdraw the listing proposal—and to place the fate of the Salamander in the hands of state agencies “with no proven track record for success” —was arbitrary and capricious, Judge Bunton concluded.

The successful litigation forced the Service to revisit its decision, and the Barton Springs Salamander was finally listed as endangered in April of 1997. While still endangered, the species remains in Barton Springs, and has since been found in additional cave and spring sites in Travis and Hays counties.

In the mid-90s, we worked with a low-income Hispanic community fighting environmental injustice in a small town in west Texas.

The federal Low-Level Radioactive Waste Policy Amendments Act of 1985 had forced states to take responsibility for the disposal of their low-level radioactive waste, or to enter into regional compacts and send their waste elsewhere. Maine and Vermont planned to transport their waste to Texas, per agreement with the Texas Low-Level Radioactive Waste Disposal Authority.

Various political and corporate interests involved in the project sought a destination, as they always do, that would—in their view—provide the path of least resistance. They landed on Sierra Blanca, a small, majority-Hispanic and underdeveloped town 80 miles east of El Paso in Hudspeth County. By May of 1995, the Disposal Authority had identified a proposed site and had submitted a complete permit application to the TCEQ’s predecessor agency, the Texas Natural Resource Conservation Commission (TNRCC).

But they hadn’t counted on the locals getting organized. The Sierra Blanca Legal Defense Fund was formed, and along with the City of El Paso and numerous other affected parties, sought a contested case hearing on the matter in the summer of 1996. It was granted by the State Office of Administrative Hearings.

The Administrative Law Judge on the case recommended denial because the applicant had failed to address fundamental issues relating not only to site suitability and geologic considerations, but also socioeconomic effects on surrounding communities. The Commissioners agreed; and in October of 1998, they denied the permit.  It was a hard-earned victory for Sierra Blanca.

In the early 2000s, we worked with a tiny town near Caddo Lake to ensure it got a fair shake in a water rights amendment process.

The City of Marshall applied to the TCEQ in 2001 to amend its municipal water permit to add industrial uses of non-potable water. The Commission granted Marshall's application in 2002, without performing an environmental analysis and without providing notice to the public or an opportunity for a hearing.

But the City of Uncertain, Texas—with a population of no more than 100 people—recognized that this change in use would have negative impacts on the watersheds on which its local economy depended. Uncertain, along with several other affected parties, asserted that the amendment would impair existing water rights and adversely affect the public welfare.

We sued the Commission in Travis County District Court in March 2003. Our clients won, and that decision was mostly affirmed at the Third Court of Appeals in Austin. The Texas Supreme Court accepted the petition for review and heard the case in October of 2004.

In June of 2006, through an opinion written by Justice Harriet O’Neill, it decided that the TCEQ erred in granting Marshall’s application with no consideration of other factors. The Court held that the Commission must at least make a determination as to whether a water use amendment application would adversely impact statutorily enumerated public interest factors, and if that determination is not clear on its face, the Commission should hold a contested case hearing. These factors have since been known in practice as the “Marshall criteria.”

Sitting: Bill Bunch, Michele Bacon (Legal Assistant). Standing: Chloe Leiberknecht (Legal Assistant), Kelly Haragan, Stuart Henry, Mary Kelly, Amy Johnson, Mark Trowbridge (Office Manager), David Frederick, Wendi Hammond, Eric Allmon, Myron Hess, ??, Jim Robertson, Melinda Taylor, Rick Lowerre.

In the mid-2000s we represented two environmental groups taking on a major polluting facility in east Texas. Air pollution from power plants, especially particulate matter, has been shown to have significant negative health impacts in neighboring communities—including increased rates of asthma in children, and lower life expectancies overall due to higher risk of lung cancer and heart disease.

The Welsh Power Plant is a coal-fired power plant near Pittsburg, Texas, in Titus County. It is operated by Southwest Electric Power Company (SWEPCO), a subsidiary of American Electric Power (AEP), one of the largest utilities in the country.

In 2004, a whistleblower employee reported a series of ongoing illegal acts at the plant. For instance, the three boilers at Welsh frequently exceeded their allowable heat input limits, in violation of the facility’s Title V permit. The plant also exceeded its maximum allowable emissions rates for particulate matter and for carbon monoxide, as well as its required smokestack opacity limits.

We represented Public Citizen and the Sierra Club, bringing a citizen enforcement action under the Clean Air Act. We filed suit in March 2005, in U.S. District Court for the Eastern District of Texas, Texarkana Division. AEP tried and failed to get the case dismissed multiple times in the subsequent years of litigation. Then, in February 2008, the Environmental Protection Agency provided AEP with a Notice of Violation echoing some of the plaintiffs’ allegations in our case.

Faced with the prospect of a trial in tandem with EPA enforcement, AEP ultimately settled and submitted to a court-ordered Consent Decree. The settlement agreement resulted in cleaner, better operating conditions at Welsh.

More than a decade later, in 2020, with coal’s economic outlook continuing to decline, AEP/SWEPCO announced plans to finally shut down the Welsh Plant by 2028.

Through national, statewide and local efforts, we have worked to protect Texas rivers and steams.  The Firm had a key influence on the original approval of Texas’ wastewater permitting system by the EPA, and is currently pursuing a petition with the Environmental Protection Agency seeking to require Texas to fix the State’s broken wastewater permitting program.  At the state level, the Firm played a key role in passage of Texas’ statutory ban on domestic wastewater discharges into the Highland Lakes.  We have likewise pursued numerous challenges to individual permits.

For example, in the mid-2000s, we teamed up with a local community near Lake Conroe to stop construction of a new wastewater treatment plant near their homes that would have also destroyed prime wetland habitat.

Far Hills Utility District provides water and sewer service to several subdivisions near Willis, TX, in Montgomery County. In 2004, with its service population increasing, Far Hills decided it would rather build an entirely new treatment plant rather than expand an existing facility, and so applied to the TCEQ for a discharge permit.

Residents of the Capps neighborhood—organized into the Capps Concerned Citizens group—opposed the construction of the facility. We represented them in the ensuing contested case hearing process at the State Office of Administrative Hearings (SOAH), which concluded in a three-day hearing on the merits in June 2006.

We argued, and Administrative Law Judge Carol Wood agreed, that not only was there no need for the facility, but it actually contravened the Texas Water Code’s explicit policy goals of regionalization of wastewater treatment. Additionally, we convinced Judge Wood—through the testimony of a highly credible expert witness—that Far Hills had violated the prohibition on the location of wastewater treatment plants with in a wetland.

In light of the clear evidence and argument, the Commission followed Judge Wood’s recommendation to deny the permit application.

Then and former Firm members in 2008. Standing: Tom Mason, Amy Johnson, Jim Robertson, Melinda Taylor, Rick Lowerre, Mary Kelly, Bill Bunch, Kelly Haragan, Ilan Levin, Myron Hess. Seated: Stuart Henry.

In more recent years, we have stood with residents in the Corpus Christi area against an onslaught of polluting industrial development facilitated by proposed desalination projects. The City of Corpus Christi is planning for a facility in the Inner Harbor and another in the La Quinta channel, while the Port of Corpus Christi is separately planning for one in the La Quinta channel as well as one on Harbor Island.

These desal plants have been pitched as necessary to supply drinking water for Corpus Christi, but they are in fact only justifiable as supply for major new oil, gas and petrochemical facilities on the coast – needs able to be served by other water supply options. The desalination facilities with applications pending threaten the health of sensitive bay ecosystems through both seawater intake and briny wastewater discharge, as well as human health through increased toxic air emissions. In several cases, they also raise serious issues of civil rights and environmental justice for which the local community has filed formal complaints with the federal government.

Our firm has represented a number of clients fighting back against these projects, including: Port Aransas Conservancy, Ingleside on the Bay Coastal Watch Association, and Hillcrest Residents Association. Helping them navigate a vast array of complex permitting processes, we have worked tirelessly to secure citizen access to written comments, public meetings, contested case hearings, and judicial review of improper agency decisions.

In the case of the Port of Corpus Christi’s proposed Harbor Island facility, as just one example, two Administrative Law Judges initially recommended that a wastewater permit be denied; and yet, the Commission attempted to grant the permit anyway. But, the applicants’ failure to adequately assess the environmental impacts of the desal project has now drawn the scrutiny of the EPA. In January 2023, EPA sent a letter to TCEQ emphasizing that the permit the Commission “granted” to the Port was – from a federal perspective - only a draft permit, and any discharge under that draft permit would be a violation of the Clean Water Act. We are now working with our clients, the Port Aransas Conservancy, to challenge the permit in District Court in Travis County.