A regulatory battle is hanging up a project that would create a place to surf almost five hours away from the nearest ocean.
The NLand Surf Park is a 10-acre lagoon with a mechanism that creates rolling, ocean-like waves in Austin, Texas. The facility had planned to open by now or in early fall, but it doesn’t look like Austinites will be hanging 10 on its meticulously engineered waves anytime soon.
Austin Park, LLC., which owns the manmade surf venue, and Travis County are at odds over how this unique body of water should be operated. In fact, the parties have exchanged lawsuits.
Travis County and the Department of State Health Services filed a complaint last month in district court, alleging that Austin Park went forward with the project knowing it would not meet the state’s minimum requirements for public swimming pools. Under state code, the lagoon is classified as a swimming pool. By that definition, it must operate under the following parameters:
· It must maintain a free available chlorine (FAC) level of 1ppm
· Given the lagoon’s average depth, it would need a turnover rate of 4.8 hours
· The water must meet drinking water standards
In its complaint, the county claimed the lagoon would be in clear violation on each count. Engineering documents indicate that the 11 million gallon pool’s ozone disinfection system would only maintain an FAC of 0.5ppm; the vessel would take approximately 17 hours to recirculate; and it would be filled with rainwater runoff from a nearby highway and agricultural land — not potable water.
That last one is particularly worrisome, county officials said. In a statement to the press, the Travis County Commissioners Court cited the death of an 18-year-old woman who became infected with a brain-eating amoeba at a whitewater rafting facility in Charlotte, N.C. as one of the reasons why it was not greenlighting the project.
Early in the surf park’s development, engineers recognized that it would not satisfy public pool standards and requested that the county grant an exception, given its unique characteristics, the complaint says. The request was denied. Approximately one year later, officials issued an order to stop construction, which Austin Park allegedly ignored.
Now the county is seeking civil penalties for each day the park continues to violate the state’s specified engineering practices.
In response to Travis County’s lawsuit, Austin Park filed one of its own, claiming the county is violating its constitutional right to equal protection of the law. The developer argues that its facility is being treated differently than comparable aquatics venues. NLand Surf Park is seeking damages resulting from delaying the opening.
In the complaint, Austin Park asserts that the county’s definition of a swimming pool is “ambiguous and could apply to myriad man-made bodies of water used for recreation in Travis County, Texas …”
It goes on to cite several similar facilities in the county that it believes are not classified as swimming pools.
The developer also argues that it would be infeasible for a project of this magnitude to adhere to laws designed for pools that are “at least 45 times smaller than the lagoon at NLand Surf Park,” the complaint stated. “Some specific regulations, like the six-hour turnover requirement, would be impossible or nearly impossible to implement from an engineering, financial, and public safety perspective.”
Besides, such a turnover rate would not be necessary for such a massive body of water, the developer said. Proportionally speaking, bather load in the lagoon will be considerably smaller than that of any traditional swimming pool. To put it in perspective, a six-hour turnover rate in an 11-million-gallon pool would allow for 17,000 bathers at once, the developer said. The lagoon, however, will only accommodate 200 people at a time. Thus, 17 hours is adequate, the counter-complaint said.
“That occupancy — approximately 1 percent of what the regulations were designed to accommodate — abrogates the need to turn over the water so quickly …” the complaint says.
In a memorandum to the county, the project engineers noted that making an exception for the turnover rate is permissible under the Model Aquatic Health Code. The federal model code states that “the authority having jurisdiction may grant a turnover variance for aquatic venues with extreme volumes or operating conditions based on proper engineer justification.”
But the county hasn’t budged from its position.
Neither party would comment, citing pending litigation.
If the facility opens, it will be the first of its kind in North America that utilizes patented Wavegarden technology developed in Spain. Unlike standalone wave machines common at waterparks, Wavegarden systematically moves a mass of water over the surface of a lagoon which is lined and contoured to create waves of varying heights, according to the county's description.
Another Wavegarden surf park is planned for Australia.