The Hill Top Café, the popular eatery located 10 miles northwest of Fredericksburg, has faced a series of violations from the Texas Commission on Environmental Quality (TCEQ) over the past four years.
Johnny Nicholas, who purchased the venue with his late wife, Brenda, 37 years ago, is fighting the current with TCEQ, which states the café is a public water supply that must have a chlorination or reverse-osmosis system in place.
“The TCEQ came a few years back, informed him he’s a public water system, and fined him over $3,000,” said Henry Novak, an Austin-based attorney who rep-resents Nicholas. “And he refuses to do it.” The water the café uses comes directly from the Ed-wards Aquifer.
“We are on the most beautiful, pristine spring water in the state of Texas,” Nicholas said. “Our system is well-above all county and state codes. There’s no reason for this. We’ve never once had an issue of anyone getting sick or any health issue at the café with the water.”
The water rule the TCEQ follows trickles down from the United States Environmental Protection Agency’s (EPA) definition of a public water system (adopted in 1975) as one that has “at least 15 service connections or serves at least 25 individuals at least 60 days out of the year.” The small, but popular Hill Top Café, a hit with foodies and blues lovers, meets those minimums.
A watered-down timeline
In March 2013, a Gillespie County Health Division (GCHD) employee requested TCEQ conduct a site visit to Hill Top. GCHD follows minimums set by the state.
“It is standard protocol to refer establishments to TCEQ if they cannot provide documentation that they have an operational public water system that is regulated by TCEQ,” Kelli Olfers, Director of Health Services for Gillespie County, said.
It was determined that the restaurant didn’t have a method for disinfecting groundwater prior to distribution. Although a commercial UV filtration system has been installed (which helps kill bacteria without alter-ing the taste of the water), the TCEQ doesn’t recognize it as applicable.
“An approved UV system is considered an alternative treatment, and the (chlorination) system is still required to ensure adequate chlorination in its distribution system to protect human health,” said Andrea Morrow, the TCEQ media relations manager.
After a site visit, Nicholas argued the fact that his restaurant was a public water supply, but the TCEQ stood their ground and on Oct. 16, 2015, found Nicholas to be in violation and ordered him to pay a $3,341 penalty. Hill Top sought judicial review of the order; however, the TCEQ court dismissed the case on May 12, 2016. Subsequently, TCEQ met with Nicholas and Novak to discuss “compliance, alternatives, and TCEQ assistance programs” to help pay the fine. Like a boulder in a Texas river, neither side has budged.
TCEQ’s side of the flow
Dating back to 1974, the TCEQ and EPA rules stream from the Safe Drinking Water Act. TCEQ writes, adopts and enforces rules that are at least as stringent as the rules created by the EPA.
“Texas is a ‘primacy state’ which through the TCEQ administers and enforces its Public Water Supply Supervision Program based on federal rules,” Morrow said.
Along with not providing disinfectant to its ground-water supply, TCEQ states that Hill Top didn’t “comply with other requirements, including those regarding coli-form analysis and public notification.”
In 1973, Texas adopted a requirement that all public water systems chlorinate.
“Chlorine is a disinfectant that kills or inactivates bacteria, viruses and other potentially pathogenic or dis-ease-causing microorganisms,” Morrow said. “It is used extensively as it is both affordable and effective. The widespread application of chlorination and filtration led to dramatic reductions in waterborne disease and child mortality rates in U.S. cities.”
Public water systems have the flexibility to treat their drinking water based on raw water quality and cost to meet state and federal requirements. The state requires the addition of chlorine as a barrier to protect against microbial and viral contamination, Morrow said.
TCEQ stands by its rules, despite the rising tide of Hill Top Café’s dissent. Nicholas’s heavy current Refusing to be steamrolled by the TCEQ, Nicholas doesn’t believe his small restaurant should be treated as a public water system.
“We need this regulation amended or struck because of the adverse effect it’s having on small businesses and our underground water re-sources,” Nicholas said. “It’s arbitrary, ridiculous and is costing my business a lot of money. This wasn’t a law created by duly elected legislators. This is legislation written by a bureaucrat.”
Since the issue began, Nicholas said he’s spent $20,000 in legal fees fighting the orders.
“We’re trying to effect some position change by way of getting this regulation struck or amended to where it makes more sense,” Nicholas said. “It’s kind of like the Alamo — we’re making a stand. We’re going to fight this all the way to Washington, if need be.”
A concern for Nicholas is the waste of water through reverse osmosis treatment. According to theperfectwater.com, about four gallons of water is needed to make one gallon of purified water. Nicholas and his customers believe the quality of the water he uses far exceeds minimum standards.
“He has great, beautiful, tasty Edwards Aquifer water, and he doesn’t want to trash it, which is what he thinks he’d be doing if he chlorinates it,” Novak said. “And he uses the same water to cook the food and he said the food won’t taste the same if he uses chlorinated water.”
The chlorination system would cost upwards of $60,000 to install, Nicholas said, and he believes the regulation deprives him of his right to freely do business.
“His position is ‘if I pay them, then I’m admitting I did something wrong and I didn’t do anything wrong. I’m not a public water system and it’s unconstitutional and it violates my due process,’” Novak said.
Furthermore, Hill Top has had its water tested multiple times by the Upper Guadalupe River Authority (UGRA), which found no traces of E. Coli, total coliforms or contaminants. The UGRA is accredited by the TCEQ, but the tests weren’t recognized by the TCEQ because a chlorination system wasn’t in place.
“We have great water at Hill Top,” Nicholas said, “despite what the TCEQ thinks.”
Let it flow
Hill Top will continue to be a staple restaurant in the Texas Hill Country.
“We’re not closing down,” Nicholas said. “There was never a foundation for the complaint. We’ve never had a problem.”
If not paid, the TCEQ enforcement division could turn the fine over to the at-torney general’s office, which could sue Hill Top for the $3,000, Novak said, and may end up with a collections agency. The idea of taking this case to the Supreme Court has been mulled.
“We kicked around the idea of challenging this as arbitrary, capricious and an unreasonable taking over of property under the civil rights 42 U.S. Code 1983, which allows a citizen to sue a state or federal agency that deprives the citizen of due process of law,” Novak said. “But right now, nothing has been filed in court.”
A notice of enforcement has been issued, and further action is pending, including referral to the attorney general. Until then, Hill Top Café blues music and Oysters Bruton will continue to flow, just like the water.