Texas Register
(23 TexReg 11072). These sections
will form a new Subchapter B under Chapter 216.
EXPLANATION OF RULES
The rules implement revisions to Texas Water Code, §26.177 made by
House Bill 1190 (1997) passed during the 75th Texas Legislature. The bill
revised Texas Water Code, §26.177 and made the development and submission
of a water pollution control and abatement plan permissive for any community
regardless of population. However, a plan is required for cities with populations
of 10,000 or greater where the Clean Rivers Regional Assessment of Water Quality
or other commission assessments or studies demonstrate a water pollution impact
attributable to non-permitted sources. The rulemaking also provides flexibility
in allowing affected cities the opportunity to correct the problem before
the commission determines whether to require the submission of a plan as provided
by 26.177. Such opportunity will be for a reasonable time, but not to exceed
five years, to reflect resources available to an affected city and to coordinate
this program with the five-year basin cycle water quality management program
provided under Texas Water Code, §26.0285.
In developing the rules, program staff has also considered other matters
such as: federal permitting under Phase II of the storm water permitting program;
delegation of the National Pollutant Discharge Elimination System (NPDES)
permitting program to the state; revision of state and federal water quality
standards to address wet weather conditions; evolving federal policy on Total
Maximum Daily Loads (TMDLs); and the development of a state coastal nonpoint
source management program in compliance with the Coastal Zone Management Act,
§6217.
New §216.21, relating to Purpose and Policy, explains that the purpose
of these rules is to establish procedures and measures to address water pollution,
identified in cities of 10,000 or more, that is attributable to non-permitted
sources. This section also establishes that this subchapter is not intended
to prevent the commission from abating or preventing the pollution of water
through permits, orders, or other actions.
New §216.22, relating to Applicability, explains that the rule applies
to cities with populations of 10,000 or more in which a water quality assessment
report has identified a water pollution problem that is attributable to non-permitted
sources.
New §216.23, relating to Definitions, includes definitions that apply
to this subchapter and are not included in 30 TAC Chapter 3.
New §216.24, relating to Water Quality Assessments and Studies, specifically
identifies the related water quality assessments and studies which may be
used by the executive director to identify water pollution that is attributable
to non-permitted sources. Water quality assessments and studies which may
be used by the executive director to identify water pollution that is attributable
to non- permitted sources include, but are not limited to, the commission's
program to develop TMDLs in accordance with the federal Clean Water Act, §303(d).
In this scenario, cities and other stakeholders located in watersheds of waterbodies
that do not meet applicable water quality standards would be encouraged and
given an opportunity to work with the commission in the development and implementation
of TMDLs for the segment. TMDLs are technical analyses performed to determine
how much pollution a waterbody can receive without violating its water quality
standards. If, during the development of a TMDL, non-permitted sources in
a city are determined to be contributing to water pollution, the city will
be notified by the executive director and given a reasonable amount of time
to correct the problem. Actions undertaken by the city to correct the problem
will need to be coordinated with the TMDL Implementation Plan adopted for
the waterbody.
New §216.25, relating to Notice of Initial Determination, explains
that the executive director will notify a city if it is determined that an
assessment or study has identified water pollution that is attributable to
non-permitted sources.
New §216.26, relating to Final Determination of Applicability, explains
that unless the executive director and the city agree that the city will develop
and implement a water pollution control and abatement program after expiration
of a specified time period, the commission at a regularly scheduled commission
meeting shall evaluate and take action on the executive director's recommendation.
The section further explains that the commission may find that if the city
continues to meet the criteria and needs to implement a program, refer the
matter to the State Office of Administrative Hearings (SOAH), determine that
the city is not required to develop a Water Pollution Control and Abatement
Program, or issue any other order the commission deems appropriate. The section
also explains that the executive director will incur the burden of demonstrating
that the city meets the criteria in §216.22(a).
New §216.27, relating to Water Pollution Control and Abatement Program,
explains that a water pollution control and abatement program under this subchapter
shall encompass areas within the city's municipal boundaries and its extraterritorial
jurisdiction and explains the elements of such a program.
New §216.28, relating to Submittal of Water Pollution Control and
Abatement Programs, details the process for a city submitting a water pollution
control and abatement program to the commission.
New §216.29, relating to Amendment Procedures for Water Pollution
Control and Abatement Programs, details the process for the city to submit
an amendment to the program for commission review and approval. The rule also
provides that the commission may, on its own motion or in response to a petition
by the executive director, require the city to amend its program.
New §216.30, relating to Appeals, explains that any person outside
the corporate city limits, but within the extraterritorial jurisdiction (ETJ)
affected by any ruling by a city related to waste pollution control and abatement,
may appeal such an action to the commission or the appropriate state district
court.
FINAL REGULATORY IMPACT ANALYSIS
The commission has reviewed the rulemaking in light of the regulatory analysis
requirement of Texas Government Code (the Code), §2001.0225, and has
determined that the rulemaking is not subject to §2001.0225 because the
rules are not a "major environmental rule" as defined in that section of the
Code and do not exceed any standard, requirement, or authority set by federal
or state law or delegated agreement. Although the rules are intended to protect
the environment, they do not meet the other requirements that must be met
for the definition to apply. The rulemaking will not adversely affect in a
material way the economy, a sector of the economy, productivity, competition,
jobs, the environment, or the public health and safety of the state or a sector
of the state. Furthermore, the rules are not adopted solely under the general
powers of the commission, but are adopted under the specific authority of
Texas Water Code, §26.177.
The rules are intended to assist the commission in identifying water pollution
from non-point sources and to improve the quality of surface water resources
in the state. In order for the commission to ameliorate the adverse affects
of non-point source pollution to surface waters in the state, it must be able
to identify water pollution from non-point sources affecting not only the
surface water, but the environment generally. Enacting these rules will provide
an overall benefit to the economy, sectors of the economy, productivity, competition,
jobs, the environment, and the public health and safety of the state and affected
sectors of the state because by identifying the existence of non-point source
pollution and tracing it back to a source which can be regulated beneficially
affects the entire state, especially the public health and the public safety,
because the ultimate goal is to abate a source of pollution that is contaminating
the surface water in the state.
The identification of non-point source pollution costs the state and affected
municipalities less in the long run because the more polluted water courses
become from non-point source pollution, the fewer municipalities and industrial
users the commission will be able to permit for discharges into waters in
the state. Obtaining a permit will only become more difficult over time because
stream segment assimilative capacities will not be available for additional
discharges. This in turn will affect a municipality's ability to accommodate
a burgeoning population demanding additional services from the city. A detailed
response to specific comments submitted on the Regulatory Impact Analysis
(RIA) is found elsewhere in this preamble.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a Takings Impact Assessment (TIA) for these
rules pursuant to Texas Government Code, §2007.043. The following is
a summary of that assessment. A detailed response to specific comments submitted
on the TIA is found elsewhere in this preamble. The specific purpose of the
rules is to implement requirements of Texas Water Code, §26.177. The
rules will substantially advance this specific purpose by establishing procedures
to address water pollution that is attributable to non-permitted sources in
cities with populations of 10,000 or more. Promulgation and enforcement of
these rules will not burden private real property which is the subject of
the rules because the rules govern actions a city must take to abate and/or
prevent water pollution occurring within its jurisdiction. The rules require
cities to identify and regulate discharges into waters in the state which
are non-permitted and may be contributing to the pollution of a water body.
To the extent a municipality must enact an ordinance, rule, regulatory requirement,
resolution, policy, guideline, or similar measure to address the issue of
non-permitted discharges which might have an effect on real private property,
Texas Government Code, §2007.003(b)(4) exempts a municipality from application
of the Private Real Property Act.
COASTAL MANAGEMENT PROGRAM
The executive director has reviewed the rulemaking and found that the rules
do not govern specific actions identified in the Coastal Management Plan subject
to consistency with the Coastal Management Program (CMP), including air pollution
emissions, on-site sewage disposal systems, underground storage tanks, or
other specific non-point source control related actions expressly identified
under Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2),
relating to Actions and Rules Subject to the CMP. Nor does it govern or authorize
actions listed in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(a)(6).
Therefore, the rules are not subject to the CMP. However, the development
and implementation of water pollution control and abatement plans, where appropriate,
will provide significant protection for coastal natural resources and will
be an integral part of the state's coastal non-point source pollution control
program, and have been included in the state's submission to the National
Oceanic and Atmospheric Administration (NOAA) for purposes to meeting the
requirements of the federal Coastal Zone Management Act, §6217.
HEARING AND COMMENTERS
A public hearing was held on November 10, 1998 in Austin. Oral comment
was presented by Texas Cities Coalition on Stormwater (TCCOSW). Written comments
were received from TCCOSW, the City of Fort Worth (COFW), City of Vernon (COV),
City of Pflugerville (COP), City of Cleburne (COC), City of Dallas (COD),
City of Arlington (COA), City of North Richland Hills (CONRH), Texas Coastal
Management Program (TGLO), and the Texas Municipal League (TML).
GENERAL COMMENTS
COFW commented that the proposed rules do not take into account the work
done and the money spent by municipalities having to comply with the National
Pollutant Discharge Elimination System. COC commented that the proposed rules
do not state how these rules affect the Texas Pollutant Discharge Elimination
System (TPDES) and asked if designation under these rules constitutes designation
under the TPDES program and requires a permit. COC also asked if a Water Pollution
Control and Abatement Plan (WPCAP) serves to comply with TPDES requirements.
COD commented that abatement programs under the United States Environmental
Protection Agency (EPA) Municipal Separate Storm Sewer System (MS4) Permits
required of Phase I and Phase II cities should be acceptable water pollution
control and abatement programs and that the commission should not duplicate
efforts through the proposed rules. COD further commented that if these rules
are proposed to be TNRCC's new storm water permit program, then the City of
Dallas would support the change. However, if this is another program in addition
to the present storm water permit program, the City of Dallas opposes the
proposal. COA commented that Phase I NPDES permittees that have a Storm Water
Management Program in place should be exempt from the proposed §216.22
(Applicability). COA also commented that §216.27(b)(5) imposes more restrictive
planning or a duplication of plans already in place on Phase I NPDES MS4 cities
that have storm sewer discharge permits. TCCOSW commented that the rule should
also address the relationship between the federal stormwater permitting program
for municipal separate storm sewer systems (MS4) and the proposed rule as
mentioned in the RIA.
The rules implementing Texas Water Code, §26.177 do not duplicate
or otherwise affect NPDES or TPDES stormwater permitting, nor place duplicative
or unnecessary burdens on cities. Discharges covered by the rules address
non-permitted sources of water pollution. NPDES permits, Phase I or Phase
II Stormwater, seek to address permitted sources and therefore, would not
be duplicated by the §26.177 program. Rather, the program seeks to address
pollution not covered by a permitting program.
TCCOSW argued that the commission should implement §26.177 as an integral
part of its ongoing Statewide Watershed Management Approach. TCCOSW described
the Statewide Management Approach as resulting in a Watershed Action Plan
for each water quality limited waterbody in the state and cited 40 Code of
Federal Regulations (CFR) Part 130 as a reference.
The commission disagrees with the comment that §26.177 should only
be implemented as part of the Statewide Watershed Management Approach described
by TCCOSW. The Watershed Management Approach recommended by TCCOSW is the
TMDL program prescribed by the federal Clean Water Act and over which EPA
has ultimate oversight and approval authority. The commission believes that
TMDLs are a valid approach to §26.177 and is pursuing the development
of TMDLs in accordance with EPA directives. However, the commission believes
that relying solely upon the TMDL program for §26.177 is inconsistent
with the statute, which specifically identifies a state initiated program
among a range of assessments and studies to be used to support activities
under §26.177.
TGLO commented that in order for the state's §6217 (Coastal Zone Act
Reauthorization Amendments) coastal non-point source pollution control program
to meet federal approval, the measures under subsection (g) of that provision
("g" measures) must be implemented to restore and protect coastal water quality.
TGLO suggested that "g" measures should only apply to cities in which the
TNRCC identifies pollution to coastal waters; water pollution problems would
be conclusively presumed corrected once the city demonstrated that it had
widely implemented "g" measures or when a WPCAP is required, if the program
provides for widespread implementation of the "g" measures. TGLO also commented
that the reference to "the Coastal Management Act, Chapter 6217" in §216.23(4)
should be changed to "§6217 of the Coastal Zone Act Reauthorization Amendments
of 1990."
The commission responds that NOAA guidance provides that a state implement
"g" measures for the category of non-point source pollution or alternatives
that are as effective as the "g" measures. NOAA also allows states to focus
their non-point source programs on areas with known non-point source water
quality problems. The state has submitted the §26.177 program as part
of its urban non-point source pollution control strategy and believes that
it meets NOAA criteria as part of an effective and focused program. For urban
non-point source problems that exist outside the scope of the §26.177
program, the commission will rely on other statutory authorities including,
but not limited to, Texas Water Code, §26.121. The reference raised by
the commenter will be changed in the rule.
COFW commented that it was not given the opportunity to participate in
the development of the rules.
In addition to considering written and oral comments submitted during the
public comment period, the commission and its staff are always willing to
meet with any person or entity on a proposed rulemaking. The Texas Municipal
League, which represents municipalities and their interests, and the Texas
Cities Coalition on Stormwater, a group of 86 Texas cities that present and
address concerns related to water quality in the state, asked to meet with
staff to discuss the proposed rules. At their request, commission staff provided
these groups with versions of the proposed rule as it was being developed.
Updates on the development of the rule were also presented to the public at
large at various regulatory forums. Commission staff pursued rulemaking using
the standard provision of working with organizations and associations representing
potentially impacted parties.
TCCOSW requested that the commission consider an alternative version of
the rule that it submitted. COV also encouraged the alternative rule proposed
by the TCCOSW over the commission proposed rule.
The commission responds that the alternative version of the rule proposed
by TCCOSW has been considered and the specific recommendations contained in
the alternative version of the rule are addressed individually in the commission's
responses to comments on the proposed rule.
COP commented that "City" and "city's jurisdiction" are used interchangeably
in the rules and asked whether the scope of compliance is limited to the city
limits, the city's ETJ, or to regulatory jurisdiction.
The scope of applicability of Chapter 216 is limited to a city's corporate
city limits. Compliance with a city's plan is applicable to the city's ETJ
as well as within its corporate limits. However, to trigger the review, the
pollution identified must be within the city's corporate boundaries. In accordance
with §216.27(a), the city's efforts to alleviate the problem by submitting
a water pollution control and abatement program may involve the city's ETJ
to the extent the city deems necessary. Section §216.27(a) provides that
if non-permitted pollution is identified within the city's corporate limits
and the source of the non-permitted pollution is coming from the city's ETJ,
the city may involve the ETJ to the extent necessary to control the source
of non-permitted pollution that is identified within the city's boundaries.
COC commented that the city's costs of water quality and compliance monitoring
should be included in the fiscal note.
The commission acknowledges that some cities could incur certain monitoring
costs; however, monitoring would only be required of cities that have a population
of at least 10,000 and where the commission has found water pollution attributable
to non-permitted sources and have not corrected the water pollution problem
on their own since the initial notice was provided five years earlier and
must now submit a water pollution control and abatement plan. Monitoring would
only be required of those discharges that the city deemed significant or as
reasonably required by the commission which may vary from size, amount of
discharge, and type of pollutant discharged. The costs to any one city that
meets the applicability requirements will vary according to the plan the city
submits, the level and extent of the non-permitted source pollution problem,
size of the city, and the complexity of the plan. The actual costs to any
affected city can only be determined on a site-specific basis. Staff cannot
predict in advance how many cities would fall into this category of monitoring;
however, staff does not anticipate the number being great. No changes will
be made to the fiscal note.
TML commented that a city's actions to ensure compliance or bring legal
enforcement could have a significant impact upon the economy, productivity,
competition, jobs, or environment in a sector of the state. TCCOSW asserts
that the commission's conclusions that the rulemaking is not a major environmental
rule because the rule will not adversely affect the economy of the state,
a sector of the economy, productivity, competition, jobs, the environment,
or the public health and safety of the state or a sector of the state are
in error, and that the commission must prepare a full RIA as part of the final
rulemaking. TCCOSW maintains that the rulemaking is clearly a major environmental
rule, since it's specific intent is to protect the environment. As a result
of the rule, cities may be forced to stringently regulate land development
and construction activities. This regulation will impose additional costs
on development that could be significant. The change from pollution attributable
to non-permitted sources to pollution not attributable to permitted sources
alters the balance of and greatly exceeds the requirements of the statute.
The commission also states that the rule is limited to cities with populations
over 10,000 that have water pollution problem attributable to non-permitted
sources, and do not have a federal stormwater permit; however, the text of
the proposed rule does not provide an exemption for cities with federal stormwater
permits.
The commission maintains that the rules do not meet the full definition
of a "major environmental rule." The requirements of Government Code, §2001.0225,
apply only to rules that meet the definition of a "major environmental rule."
This definition contains two separate requirements that must both be met for
the definition to apply: 1) the specific intent of the rule is to protect
the environment or reduce risks to human health from environmental exposure;
and 2) the rule may adversely affect in a material way the economy, a sector
of the economy, productivity, competition, jobs, the environment, or the public
health and safety of the state or a sector of the state. Although the rule's
intent is to protect the environment, this is not a major environmental rule
because there is a reasonable expectation that the provisions of the rule
will not adversely affect in a material way any of the sector's identified
in the definition. The use of the word "may" indicates that whether the rule
has an effect on the economy, a sector of the economy, productivity, competition,
jobs, the environment, or the public health and safety of the state or a sector
of the state is not a positive determination one way or the other. Rather,
the inquiry is whether there is a reasonable expectation that the rule will
result in a material adverse effect. A material adverse effect is one having
real importance or great consequence. It is not a foregone conclusion that
a city's actions in complying with this rule will be of great consequence
or real importance. The mere possibility that a city's actions could have
an impact on the economy of business or industry does not qualify this rule
as a major environmental rule. Even if this rule qualified as a major environmental
rule because it meets the definition and could be determined to positively
have a material adverse effect on the economy, a sector of the economy, productivity,
competition, jobs, the environment, or the public health and safety of the
state or a sector of the state, §2001.0225 would still not apply. This
proposed rule does not exceed a standard set by federal law, exceed an express
requirement of state law, exceed a requirement of a delegation agreement,
or propose to adopt a rule solely under the general powers of the agency.
This proposal does not exceed a standard set by federal law because there
is no federal law requiring or preempting the commission in its adoption of
this rule. This proposal does not exceed an express requirement of state law
because the rule and the water control and abatement program contemplated
under §216.27 mirrors Texas Water Code, §26.177. This proposal does
not exceed a requirement of a delegation agreement because there is no delegation
agreement applicable to this issue. And, this proposal does not adopt a rule
solely under the general powers of the agency, e.g., Texas Water Code, §5.103
and §5.105, but rather under a specific state law, i.e., Texas Water
Code, §26.177. In light of the foregoing, the commission maintains that
a full RIA is not required for this rule.
The adopted version of Chapter 216 now uses the phrase "pollution attributable
to non- permitted sources" in accordance with §26.177 in order to avoid
any confusion in the meaning or interpretation of the statute.
While the text of the rule does not contain a provision that expressly
exempts cities with federal stormwater permits, the commission believes that
§26.177 is aimed at non-permitted sources of water pollution. NPDES permits,
Phase I or Phase II Stormwater, seek to address permitted sources. This state
program shall not overlap or duplicate federal stormwater permitting programs
to the extent that the federal program addresses sources of pollution.
TML commented that if a city must employ compliance and legal measures
against private waste dischargers and employ land use restrictions, the rule
has the potential to create a burden on private real property. COP commented
that the rule will have an impact on private property that will place the
burden directly on property owners or taxpayers. TCCOSW commented that the
commission's evaluation is not limited to only burdens directly caused by
the TNRCC's action; rather, the commission must evaluate direct and indirect
burdens. Also, that because the commission acknowledges that cities may be
required to regulate the activities of the general public, the commission
is also acknowledging that the rule may impose burdens on private real property.
Both TML and TCCOSW commented that a full TIA is required.
This rule does not impose a burden on private real property because private
real property is not the subject of the regulation. This rule is aimed at
requiring a city with non-permitted sources of pollution within its corporate
boundaries to ameliorate the effects of that pollution. The commission has
incorporated verbatim §26.177(b) in §216.27 of the rule. If and
when non-permitted sources of pollution are identified, the city is free to
craft any type of solution to remedy the problem within the confines of the
rule, which is a reiteration of the statute. Land use restrictions are not
mandated by the statute or the rule; therefore, the commission disagrees with
the TML comment that the city must employ land use restrictions to achieve
the objectives of the rule.
The commission also disagrees that a full TIA is required. Section 2007.043(b)
requires the TIA to identify the burdens imposed on private real property
and the benefits to society resulting from the proposed rule. The inquiry
for the commission in preparing a TIA is whether the action will place a burden
on private property that affects the right the property owner had before the
existence of the regulation and which is the producing cause of a reduction
of at least 25% in the market value of the affected property. The adoption
of this rule does not place a burden on private property that restricts or
limits the owner's right to property that would otherwise exist in the absence
of Chapter 216. There is no existing right to conduct activities or use private
property in a manner that results in an unauthorized discharge of waste into
or adjacent to waters of the state. A preexisting limitation on the use of
all real property in this state is found in Texas Water Code, §26.121.
Section 26.121 prohibits the discharge into or adjacent to any water in the
state of sewage, municipal waste, recreational waste, agricultural waste,
or industrial waste or any other waste which in itself or in conjunction with
any other discharge or activity causes, continues to cause, or will cause
pollution of any water of the state in the state. The commission rules in
Chapter 216 do not exceed this preexisting prohibition; rather, they articulate
measures that the city may be required to take to ensure compliance with Water
Code, Chapter 26.
Many rules ultimately and indirectly burden property owners, but they do
not burden property. Land use restrictions placed on property by a city is
the decision of the city, not a mandate of Chapter 216 and this rule is not
aimed at prohibiting a landowner from making use of his or her property.
The Private Real Property Preservation Act (the Act) specifically exempts
actions taken by a municipality with the exception set out in §2007.003(a)(3).
That is, except when a municipality takes action that has effect in the extraterritorial
jurisdiction of the municipality that does not impose identical requirements
or restrictions in the entire extraterritorial jurisdiction, it is exempt
from the Act (Texas Government Code, §2007.003(b)). There is also an
exemption from the Act under §2007.003(b)(4) which excludes from coverage
an action of a political subdivision that is reasonably taken to fulfill an
obligation mandated by state law. As this rule will articulate measures the
city must take to fulfill an obligation mandated by state law, the city is
exempt from a challenge under the Act.
§216.21. PURPOSE AND POLICY COMMENTS
TML commented that the proposed rule changes the language of the statute
and that this shifts the burden of proof from the TNRCC to the city and this
result was not intended nor authorized by the statute. TML commented that
the statute places the burden on the TNRCC--that the source of the problem
be identified by TNRCC and that the TNRCC determine that the source is not
already covered by a permit. TCCOSW also objected to the rules applicability
as set out in §216.21(a) and §216.22(a). The change of the language
found in the statute of the triggering finding from "water pollution is attributable
to non-permitted sources" to the proposed rule language of "water pollution
that is not attributable to permitted sources" could, it maintains, have serious
consequences for the cities since under the proposed rule the commission could
require preparation of a program if there was water pollution of unknown origin,
unless the city could show that the pollution was not caused by a permitted
source.
The commission responds that the proposed language does not literally nor
intentionally shift the burden of proof onto cities. However, to avoid any
confusion, the rule language will track the language contained in the statute.
The commission's intent has always been that the executive director maintains
the burden of proof in identifying the source of the water pollution and asserting
that the source is not covered by a permit. The executive director will use
all of the commission's water quality related programs and their data to make
the determination related to this subchapter.
TCCOSW objected to the sentence in proposed §216.21(b) that states
that an "unauthorized discharge is a violation of the Texas Water Code, §26.121."
TCCOSW maintains that, generally, §26.121 of the Texas Water Code prohibits
the discharge of "waste" and "pollutants"; unauthorized discharges not containing
waste or pollutants are generally not violations of the Texas Water Code.
Therefore, the sentence should be deleted.
The commission responds that it will amend the rule to clarify that an
unauthorized discharge relates to a discharge of waste and pollutants as it
is defined in the Texas Water Code.
§216.22. APPLICABILITY COMMENTS
TCCOSW urged the commission to articulate a clear and objective test for
the applicability of these rules. To do this, TCCOSW commented that clear
and objective criteria are needed to ensure consistency and predictability
in applying the rules. TCCOSW also suggested that the TNRCC use a test that
is based on language that has a more developed meaning, such as language from
40 CFR Part 130, and that is consistent with other water quality related programs
such as the commission's Statewide Watershed Management Approach. The alternative
rule proposal by TCCOSW specifies that §26.177 would be implemented when
pollutant loadings from unpermitted sources in a city exceed the load allocation
for such sources specified in a Watershed Action Plan for the waterbody.
The commission disagrees with the comment that specific criteria to be
used to trigger the requirements of §26.177 should be stated in the rule.
The criteria to be used to trigger the requirements of §26.177 will depend
upon the circumstances that are present in a particular city. In individual
circumstances, the commission will rely on the definition of pollution as
set forth by the Texas Legislature. The commission will utilize available
scientific methods to identify instances of pollution and to make determinations
as to the causes and sources of pollution.
The commission also disagrees with the comment because it presumes that
the federal TMDL requirements are the sole basis for §26.177, which the
commission believes to be inconsistent with the statute. The commission further
disagrees with the comment as it pertains to implementing the provisions of
§26.177 based upon the development of TMDLs. The procedures recommended
by TCCOSW are not consistent with procedures specified in EPA guidance on
TMDLs. The TCCOSW procedures provide for §26.177 to be implemented when
pollutant loadings from non-permitted sources exceed allocations for these
sources specified in Watershed Action Plans. TMDL procedures specify that
management programs such as §26.177 be used to achieve the load allocations
established by a TMDL. Pollutant loadings from non-permitted sources which
exceed the allocations established in a Watershed Action Plan would be cause
for amending a water pollution control and abatement program established under
§26.177 or other appropriate action.
TCCOSW objected to the language in §216.22(a) which states that "cities
meeting applicability shall be required to satisfy applicable provisions of
this subchapter upon receipt of notice issued by the executive director...."
TCCOSW commented that this language could be interpreted to mean that municipalities
must develop and implement programs immediately after the executive director
determines applicability and long before the commission enters an order requiring
the development of a program.
The commission disagrees with the comment. The rule establishes the procedures
to be used by the commission to determine if a city should be required to
develop and implement a water pollution control and abatement program. These
procedures provide an opportunity for a city to correct the problem and a
public hearing prior to requiring a city to develop and implement a water
pollution control and abatement program.
TCCOSW further commented that applicability should not be triggered by
the presence of sources over which a city has no regulatory jurisdiction.
COC commented that a city should not be held responsible for pollutant loading
caused for example by agricultural runoff. TML commented that a statement
be added to the proposed rule stating that a program will not require a city
to take action which it lacks authority to take. COP commented that the rule
will place too much of a burden on cities by making cities responsible for
stormwater runoff from areas that the city may not have control over, including
agriculture.
The commission disagrees with the comment. These rules will not impose
any requirement on a municipality for which the municipality has no statutory
authority to implement or enforce. The commission recognizes that additional
language in §216.22(a), relating to Applicability, will make the requirements
clearer.
COC commented that the definitions provided in these proposed rules and
the wording of §26.121(a)(2)(B) makes it unclear how a WPCAP differs
from a Water Pollution and Abatement Plan.
A Water Pollution and Abatement Plan relates to a plan that a landowner
must submit for review and approval prior to the commencement of construction
on the Edwards Aquifer Recharge Zone to protect the quality of water in the
aquifer. It would not cover surface water pollution from non-permitted sources
across the state as provided by Texas Water Code, §26.177.
§216.23. DEFINITIONS COMMENTS
TCCOSW commented that "Non-Permitted Sources" should be defined in the
rule and that the Legislature intended "non-permitted sources" to mean "non-point
sources." TCCOSW recommended the following definition: "Non-Permitted Sources-Sources
of water pollution that are not required to obtain water quality permits under
Chapter 26 of the Texas Water Code, including generalized discharges of waste
that are not traceable to a specific source, such as storm sewer discharges
and urban runoff from rainwater." COC commented that the definition for "Permitted
sources" should be changed to "A source that discharges into or adjacent to
waters." TCCOSW commented that the definition suffers from a number of serious
problems and makes no sense at all. TCCOSW commented that Chapter 26 of the
Water Code generally regulates the discharge of "waste" or "pollutants" not
the discharge of "pollution." TCCOSW further commented that the definition
does not make clear whether sources that are required to have permits, but
do not, are considered "permitted sources."
The commission disagrees with the comments. Chapter 26 of the Texas Water
Code, and specifically, §26.121, may relate to either a point or non-point
source of water pollution. Therefore, a non-point source other than agricultural
and silvacultural activities managed by the State Soil and Water Conservation
Board may be required to obtain a permit under Chapter 26 of the Water Code.
The commission responds that non-permitted source means a source for which
there is no permit and over which a the city has jurisdiction to control.
To reflect this, the commission has added a definition for non-permitted sources
which explicitly states that the definition does not include discharges authorized
by an NPDES or TPDES permit for municipal stormwater discharges but does include
non-point sources of pollution, as those sources are defined in Chapter 220
of this title (relating to Regional Assessments of Water Quality), the federal
Clean Water Act, and the Coastal Zone Act Reauthorization Amendments of 1990.
These same references have been deleted from the definition of "Pollution"
to avoid redundancy.
COC commented that the definition of "Pollution" should spell out whether
the effects of agricultural runoff from farm fields, pastures, and other agricultural
practices are to be included in this rule. TCCOSW objected to the definition
and stated that although the definition tracks the Texas Water Code definition,
the definition should either be deleted or refined for purposes of this rule.
TCCOSW stated that the determination of whether water pollution exists should
be made in reference to the surface water quality standards, which require
a minimum amount of robustness in the assessment of water quality data in
order to define pollution. TCCOSW recommended that if the TNRCC is to define
"pollution" in the rules they should use the following: "Pollution: an excursion
or numeric surface water quality criteria as established in Chapter 307 of
this title (relating to Water Surface Quality Standards)."
The commission disagrees with the comments. Texas Water Code, §26.001
defines the terms used in Chapter 26 of the Code, including the term "Pollution"
as it used in Texas Water Code, §26.177. For this reason, the rule tracks
the statutory language.
COFW, COC, and COA commented that the definition of "Significant waste
discharge" is too vague and broad. COFW also commented that the broadness
of the definition could include an enforcement audit by the commission. COFW
and COA also commented that prioritization criteria need to be established
for determining what discharges are considered significant. COC also commented
that the definition would make it difficult for a city to develop a method
for identifying all of the significant waste discharges within a city. TCCOSW
also objected to the definition because it is too vague. The term controls
the scope of most of the substantive requirements imposed on cities, but yet
provides no objectives test so that cities will know whether they are in compliance.
Defining the term as in the proposed rule could extend the term to such things
as runoff from residential yards and parking lots making identifying, monitoring,
sampling, and controlling such a broad array of discharges unduly burdensome.
The TCCOSW believes that the Legislature did not intend to include generalized
discharges of waste, and so suggested that the term be limited to point sources
that have been specifically identified as significant by a Watershed Action
Plan.
The commission has reviewed the statutory language with attention being
given to the comments on "Significant waste discharge." Although the term
is not specifically defined in the statute, the commission has determined
that the intent of the statute was to have this section relate to point sources,
and that the inventory and monitoring required by the statute should relate
to point source waste discharges that have or could have a significant impact
in the quality or amount of total discharge into a receiving water. The definition
has been changed, and the suggested definition provided by the TCCOSW has
been used. The definition for "Significant waste discharge" will read: "Significant
waste discharge-Point source discharges of waste or pollutants to a receiving
water that have been identified to cause pollution without regard to whether
or not the discharges are authorized by the commission."
TCCOSW objected to the definition of "water pollution control and abatement
programs," since it does not track the statutory language describing a water
pollution control and abatement program. The definition goes beyond the requirements
of the statute and requires cities to "prevent or correct water pollution
problems." The scope of the required program is adequately described in proposed
216.27. The definition should be deleted.
The commission agrees with the comment and has deleted the definition of
"Water pollution control and abatement program" from the final rule.
§216.24. WATER QUALITY ASSESSMENTS AND STUDIES COMMENTS
COFW and COA commented that atmospheric deposition of pollutants needs
to be evaluated before cities are required to develop specific constituent
programs, that it is important that the complexities of non-point water pollution
are addressed in the rule, and that cities have the problems accurately defined
prior to investing large amounts of time and money to solve problems. COA
commented that water quality assessments and studies should produce accurate
and sufficient data that will justify requiring a city to implement a WPCAP.
The commission agrees with the comments. The commission will utilize available
scientific information, such as that cited in the comments, to identify instances
of pollution and to make determinations as to the causes and sources of pollution.
CONRH commented that the rules do not adequately describe the conditions
that would trigger a city to implement a WPCAP.
The commission disagrees with the comment. The conditions which could require
a city to develop and implement a water pollution control and abatement program
depend on the circumstances that are present in the city. The commission will
rely on the definition of pollution as set forth by the Texas Legislature.
The commission will utilize available scientific methods to identify instances
of pollution and to make determinations as to the causes and sources of pollution.
TCCOSW objected to §216.24 because the proposed rule fails to appropriately
limit the studies that can be used to trigger the WPCAP requirement. TCCOSW
believes that only high quality, peer-reviewed, quantitative studies that
focus a link between urban non-point source runoff and instream pollution
such as a load allocation performed under 40 CFR §130.7 should be used
to trigger the requirement. The rule should clearly point out that the studies
must be quality assured and must link observed water quality impairment to
non-permitted sources within a city. TCCOSW recommended that the TNRCC only
use studies that serve as the basis for Watershed Action Plans, or other studies
that establish TMDLs as the basis for triggering applicability.
The commission disagrees with the comment in part. The rule identifies
specific commission programs and certain criteria that will be used by the
executive director as the basis for requiring cities to develop and implement
water pollution control and abatement programs. The commission believes that
using TMDLs as the sole basis for §26.177 is inconsistent with the statute.
The commission agrees that high-quality, quality assured studies should be
used as the basis for §26.177.
The alternative rule proposed by TCCOSW recommended deleting provisions
for including assessments and studies performed under the commission's State
Water Quality Inventory, State Nonpoint Source Assessment, and TMDL programs
to be used by the executive director to identify water pollution that is attributable
to non-permitted sources in a city.
The commission disagrees with the comment. The programs omitted by the
TCCOSW provide valuable information to support decisions by the executive
director pertaining to 26.177.The TMDL program in particular has as its objective
the generation of information on pollutant sources necessary to identify water
pollution that is attributable to non-permitted sources in a city.
§216.25. NOTICE COMMENTS
TCCOSW commented that the heading of §216.25 should be changed from
"Notice" to "Notice of Initial Determination"; such a heading would better
describe the executive director's action. The TCCOSW also objected to §216.25(a)(4),
which limits to five years the time period in which a city has to correct
the problem. TCCOSW believes that the executive director's discretion to allow
for a longer period of time should not be limited by regulation, and that
voluntarily implemented programs will far surpass any requirement forced on
cities by the commission. The TCCOSW recommended that a minimum time frame
of at least five years be established by the rule.
The commission agrees with the comment, in part, and will change the heading
as suggested to better describe the executive director's action of the notice.
However, the executive director maintains that the five-year time period in
which a city has to correct the problem on its own was established to be consistent
with the commission's five-year basin cycle approach to water quality management
that includes permitting, monitoring, and studying of water quality in water
basins across the state provided under Texas Water Code, §26.0285, relating
to Expiration of Permits Within Same Watershed, as well as a reasonable amount
of time for any affected city to address non-permitted sources of pollution.
The five-year basin cycle has been accepted by permittees in river basins
as the method for best using the commission's resources for gathering information
and data for processing permits in specific river basins. This cycle will
also allow the commission to gather further information for determining whether
the problems continue to exist or whether the city's actions have improved
the situation. The executive director does recognize that certain case-by-case
conditions may exist that my require an extension of time such as city's actions
that are producing an improvement in water quality or the development of a
TMDL in the water segment. In order to provide for this flexibility and clarify
its intent, the commission has changed the wording in the second sentence
of §216.25(a)(4) to read: The executive director may "extend" this time
period when new or additional information or circumstances warrant such an
"extension."
COC commented that additional water quality assessments to determine that
a WPCAP is needed should fall on the state.
The additional water quality assessments and studies noted in §216.25(a)(3)
are voluntary and performed by the impacted party at its own discretion. These
studies--as long as they meet the executive director's approved quality assurance
requirements that are common for all commission water quality studies--can
be used by a city to demonstrate its position that a water pollution control
and abatement program is not needed for the city. The executive director may
undertake additional studies on its own as authorized by §216.25(a)(3).
The commission has made no change in response to this comment.
§216.26. PUBLIC MEETING HELD BY THE COMMISSION COMMENTS
TCCOSW commented that the heading of §216.26 should be changed from
"Public Meeting Held by Commission" to "Final Determination of Applicability."
TCCOSW also objected to §216.26(a) because the commission should require
the executive director to only use studies conducted after the city has taken
steps to correct the water quality problem
The commission agrees that the heading of §216.26 should be changed
to "Final Determination of Applicability." Regarding the comment that the
commission should require the executive director to only use studies conducted
after the city has taken steps to correct the water quality problem, the commission
believes that the rule accommodates this concern. Section 216.26(a) provides
that the determination that a city still meets the criteria in §216.22(a)
will be based on studies performed subsequent to the initial studies undertaken
and from which the initial notice of pollution was generated. Logically, the
commission would use subsequent studies to ensure that any efforts made by
the city to ameliorate the problem would be evident. Moreover, the executive
director will consider any measures taken by the city, but that may not be
readily apparent or revealed in the subsequent studies performed. This will
likely require a case-by-case analysis of a city's effort under the rule,
but the commission believes the rules allow for this.
The alternative rule proposed by TCCOSW specifies considerations to be
used by the executive director in determining if a city meets the criteria
for developing and implementing a water pollution control and abatement program.
The commission disagrees with the comment. Considerations to be used by
the executive director in determining if a city meets the criteria for developing
and implementing a water pollution control and abatement program will depend
upon the circumstances that are present in a particular city. In individual
circumstances, the commission will rely on the definition of pollution as
set forth by the Texas Legislature. The commission will utilize available
scientific methods to identify instances of pollution and to make determinations
as to the causes and sources of pollution.
TCCOSW suggested that the TNRCC consider its version of proposed §216.26
as an alternative to the rule proposed by the commission. Under the TCCOSW
version, §216.26(a) would require the commission to give consideration
to improvements that have resulted and that will result from the full implementation
of the steps taken by the city after the initial determination of applicability
to correct the problem; §216.26(d) would require that the executive director
bear the burden of demonstrating that the city meets the criteria set forth
in §216.22(a); and §216.26(f) would require the commission to enter
an order specifying the pollutants and non-permitted sources of concern and
the deadline for the submission of a Water Pollution Control and Abatement
Program.
The commission agrees with the commenter in part and has changed the adopted
version to reflect: that the commission will consider any improvements that
have resulted or will result from allowing full implementation of steps taken
by the city in its efforts to correct the problem; that the executive director
shall bear the burden of demonstrating that the city meets the criteria set
forth in §216.22(a); and that any order issued by the commission pursuant
to §216.26 shall be specific as to the pollutants and non-permitted sources
of concern and the deadline for the submission of a water pollution control
and abatement program.
TCCOSW and COC commented that §216.26(d), which requires the city
to publish notice of the TNRCC's public meeting, should be changed to require
the commission to prepare and publish the notice. Also, that commission rules
in 30 TAC §39.5 and §39.7 should not apply because the city is not
an applicant in this situation.
The commission agrees that the TNRCC should bear the responsibility of
publishing notice of the public meeting and has changed the rule to reflect
that the notice will be published in the
Texas Register
. The reference to §39.5 and §39.7 has also been removed
because the city is not an applicant in these proceedings.
TML urged the commission to change the wording of the rule to reflect that
a public hearing shall be held and states that the commission has unilateral
authority to refer the question of whether a water pollution control and abatement
program should be required to SOAH, but does not grant authority to a city
to contest the factual basis for the executive director's determination. TML
also stated that the Texas Administrative Procedure Act (APA) requires that
the city be given the opportunity to have this matter adjudicated by SOAH
and that failure to conduct a contested case hearing would result in inadequate
administrative record for any judicial review.
TCCOSW expressed the same concerns as the TML and believes that Texas law
demands that cities be given an opportunity for a hearing because the rights
of a city are being determined by an administrative agency based on specific
factual determinations. TCCOSW echoed TML's concern regarding the lack of
an administrative record available for judicial review.
CONRH is concerned that the city is deprived of an opportunity to request
a contested case hearing.
Section 26.177, on its face, does not provide any guidance as to whether
the public hearing mentioned is a contested case hearing. However, after reviewing
the comments submitted by TML, TCCOSW, and CONRH, the commission believes
that the use of the term "public meeting" in the rule is imprecise. The commission
believes that the intent of the statute is to provide the city with the opportunity
to appear before the commission at a commission agenda and have this matter
considered by the commissioners of the TNRCC. To that end, the commission
has changed the adopted version to reflect that the commission can, at a regularly
scheduled meeting, upon its own motion or at the request of a party, conduct
a contested proceeding and consider evidence and hear oral argument of the
parties or refer the issue to SOAH for a contested case hearing conducted
pursuant to the APA. The need for and the extent of information taken into
consideration by the commissioners will be determined on a case-by-case basis
by the Office of General Counsel.
All final decisions of the commissioners are appealable to District Court
under Texas Water Code, §5.351, but §5.351 does not restrict these
appeals to SOAH proceedings. There is not always an administrative record
stemming from a SOAH proceeding to accompany the appeal. This does not preclude
an adequate record from being developed such that meaningful judicial review
would be impossible.
TCCOSW objected to the provision of proposed §216.27(b) that states
"or as may be reasonably required by the commission." This does not provide
sufficient notice of what these additional requirements may be. TCCOSW further
commented that reasonable requirements should be part of the rule.
The commission disagrees with the comment. The language in the rule is
consistent with the statutory language. The requirements of a water pollution
control and abatement program in a particular city will depend on the circumstances
that are present in that city and what is necessary to address non-permitted
sources of pollution. The statute imposes a test of "reasonableness" on the
actions of the commission. Accordingly, the requirements specified by the
commission will have to be "reasonably" related to the services and functions
specified in the statute to be included in a water pollution control and abatement
program for a city.
COFW commented that each city should be primarily responsible for determining
which dischargers are placed in the inventory, and that the responsibility
needs to be spelled out in the regulations. COA commented that cities should
be primarily responsible for determining the inventory. COC commented that
cities should not be required to take over the responsibilities of the state
with regard to state or federally issued discharge permits or programs as
would be required by this section requiring the development of an inventory.
The commission disagrees with the comment. The language in the rule is
consistent with the statutory language in giving both the city and the commission
a role in the development of the inventory of significant waste dischargers.
COFW and COA commented that each city should be primarily responsible for
determining which dischargers are to be monitored. COA further commented that
cities should also be primarily responsible for determining the nature and
frequency of the monitoring. COC commented that the rule should specify how
often and how monitoring should be done and what types of parameters should
be monitored.
The commission disagrees with the comment. The language in the rule is
consistent with the statutory language in giving both the city and the commission
a role in determining which dischargers are to be monitored. The frequency
of monitoring and the parameters to be monitored by a city implementing a
water pollution control and abatement program will depend on the nature of
the discharge. The magnitude of the discharge and the variability of the discharge
will be considered in determining the frequency of the monitoring. Flow rates
and constituent concentrations in the discharge will be considered in determining
the types of parameters to be monitored.
COP argued that the requirement of cities to monitor sites "without regard
to whether or not the discharges were authorized by the commission" will put
the cities in a position to deal with dischargers that the commission has
authorized, creating a double jeopardy situation for dischargers. COP continues
that the rule ignores the issue of inadvertent or illegal wastewater dischargers.
COP requested that the rules either exempt wastewater discharges from monitoring
and sampling and from anything associated with a water pollution abatement
plan or for the commission to clearly state its intent to mirror the EPA position
and let the cities provide water quality protection from wastewater treatment
plants that do not meet the requirements of their discharge permits.
The commission disagrees with the comment. The language in the rule is
consistent with the statutory language in requiring cities implementing water
pollution control and abatement programs to monitor significant waste discharges
within their jurisdiction.
COC commented that the commission should take the responsibility for determining
permit requirements and coverage. COC continued that the rule does not specify
what types of tests must be done. COA commented that cities should have authority
to classify dischargers and to define "periodic" inspections for each class.
The commission disagrees with the comment. The language in the rule is
consistent with the statutory language in giving both the commission and cities
implementing water pollution control and abatement programs a role in determining
the sampling, inspecting, and testing requirements for significant waste discharges
within the jurisdiction of the affected city.
TCCOSW objected to provisions in §216.27(b)(4) which exceed the requirements
set out in the statute requiring cities to cooperate with the commission in
developing procedures to obtain compliance.
The commission agrees with the comment. Section 216.27(b)(4) has been modified
to be more consistent with the language in the statute.
TCCOSW commented that clarification is needed on how much cooperation will
be achieved.
The commission disagrees with the comment. The cooperation needed to obtain
compliance by significant waste discharges will depend on the circumstances
that are present in a particular city. The commission and affected cities
will cooperate to the extent necessary to obtain compliance by the discharger
using available scientific and administrative procedures.
TCCOSW believes that "cooperation" referenced in Texas Water Code, §26.177
is a reference to §26.175 (Cooperative Agreements) and to §26.0136
(Water Quality Management).
The commission disagrees with the comment. The commission believes that
the reference to "cooperation" in §26.177 refers to the provisions in
a water pollution control and abatement program for a city.
TCCOSW believes that the primary responsibility for investigating and
obtaining compliance rests with the commission and not the city. COC commented
that enforcement should remain the responsibility of the state.
The commission disagrees with the comment. The language in the rule is
consistent with the statutory language in giving both the commission and cities
implementing water pollution control and abatement programs a role in obtaining
compliance for significant waste discharges.
COC commented that "reasonable and realistic plans" are too vague and that
an approved method for developing plans with the commission is desirable.
The commission disagrees with the comment. Methods for developing plans
to control and abate pollution from generalized discharges in a city will
depend on the circumstances that are present in that city and that are necessary
to abate non-permitted sources in accordance with §26.177. Cities should
consider available scientific and engineering methods in the development of
these plans. Cities would be expected to utilize available technical literature
and relevant regulatory guidance in the development of these plans.
TCCOSW objected to §216.27(b)(6), which states that the TNRCC may
impose "other requirements as may be prescribed by commission rule," as this
is the rule in which TNRCC should be imposing requirements. COA commented
that the powers of commission are not defined.
Section 216.27(b)(6) tracks the language of the statute with the exception
of the added words "to effectuate the purposes of the subchapter." The commission
interprets the statutory language to be a general provision clause which acknowledges
that there are other commission rules which may overlap or at some point affect
persons complying with Chapter 216. For example, §216.26(d) of the proposed
rule mentioned commission rules in §39.5 and §39.7. While the reference
to those sections has been removed from §216.26(d), it illustrates that
there may be other commission rules that are applicable to persons which may
not be identified here.
COFW, COC, and COA asked why a WPCAP had to be signed and sealed by a registered
professional engineer. COC asked how an engineer could certify that the plan
is designed to abate and prevent water pollution. COC further commented that
the requirement of having an engineer seal the program implied that cities
will have to develop structural controls to storm water pollution prevention
or abatement, and that unless structural controls are needed, an engineer's
expertise may not be needed to develop a program. TCCOSW objected to the requirement
that a registered professional engineer certify a city's program and recommended
that this requirement be deleted from the rules or at least changed to a certification
that the rules have been developed in accordance with the applicable rules.
COC commented that the commission should provide a method to review the program
with the city to confirm that the program is sufficient. COC continued that
§216.27(b)(5) leaves too much room for interpretation by individual regulator
and commented that a review and approval of a city program should be performed
by the commission. COC also commented that a process for reviewing proposed
"reasonable and realistic plans" plans for controlling generalized discharges
with the commission would be desirable. TCCOSW commented that the heading
for §216.8 should be changed from "Submittal of Water Pollution Control
and Abatement Programs" to "Review and Approval of Water Pollution Control
and Abatement Programs." TCCOSW objected to §216.28 because the rule
does not provide for a review and approval process as required by §26.177(c).
TCCOSW recommended a procedure similar to the review and approval of permit
applications that addresses what happens if the executive director determines
that a program is deficient and the city's recourse if it disagrees with the
executive director's determination. TCCOSW continued that §216.8 should
have the standards by which the executive director will judge a program.
The commission responds that a seal is required in order to accommodate
the need to expedite the review and approval of the plans with limited agency
resources and ensure that the plan is designed to meet applicable performance
standards. The seal also ensures that the plan has been reviewed at a proper
level of expertise, and that such expertise is evidenced by the state's licensing
board. The rule has been clarified that the seal is applicable to only those
engineering designs to abate water pollution. Cities that have professional
engineering staff design their plans may indicate this and avoid hiring outside
consultants.
§216.29. AMENDMENT PROCEDURES FOR WATER POLLUTION CONTROL AND ABATEMENT
COMMENTS
TCCOSW objected to the amendment procedures. It further commented that
cities should be given flexibility to change programs quickly and efficiently
and that rules should spell out the procedure that the executive director
must use to force a city to amend it's program. TCCOSW suggested that an amendment
procedure similar to TNRCC's current procedure for a TNRCC initiated amendment
to a water quality permit be developed for the rules.
The commission agrees that a city must be allowed flexibility in amending
its program so that changing pollution problems and local budgetary constraints
can be accommodated. The commission's proposed rule allows a city to amend
its water pollution control and abatement program at any time by submitting
an amended program to the executive director.
However, the commission also believes that the proposed rule is correct
in stating that the executive director may require a city to amend its water
pollution control and abatement plan if it is not adequately addressing non-permitted
sources of pollution within the scope of the program. An order to amend would
likely be the result of a petition filed by the executive director based on
new or additional information or circumstances warranting an amendment. The
rule has been changed to accommodate some TCCOSW's suggestions and to clarify
the amendment procedures.
§216.30. APPEALS COMMENTS
Upon staff review of the proposed rule, the appeal provisions have been
clarified to better identify who can appeal a city's action. The adopted version
of §216.30 clarifies that persons affected by any ruling, order, decision,
program, resolution, or other act of a city are those persons outside the
corporate limits but limited to the extraterritorial jurisdiction of a city.
STATUTORY AUTHORITY
The new sections are adopted under Texas Water Code, §5.103 and §26.011,
which provide the commission with the authority to adopt rules necessary to
carry out its powers and duties under the provisions of the Texas Water Code,
and under §26.177, which provides the commission with the authority to
establish rules providing the criteria for the establishment of water pollution
control and abatement programs and the review and approval of those programs.
§216.21.Purpose and Policy.
(a)
The purpose of this subchapter is to establish procedures
and measures in accordance with Texas Water Code, §26.177(a) to address
water pollution that is attributable to non-permitted sources in cities that
have a population of 10,000 or more persons.
(b)
An unauthorized discharge is a violation of Texas Water
Code, §26.121. An unauthorized discharge relates to a discharge of waste
and pollutants as it is defined in the Texas Water Code. Nothing in this subchapter
is intended to limit or prevent the commission from abating or preventing
the pollution of water in the state through permits, orders, or other enforcement
actions authorized under the Texas Water Code, Chapter 26, or other applicable
state or federal law.
§216.22.Applicability.
(a)
This rule applies to any city with a population of at least
10,000 persons, based on the most recent federal decennial census, and in
which a water quality assessment report required by Texas Water Code, §26.0135
or other commission assessment or study, as described in §216.24 of this
title (relating to Water Quality Assessments and Studies), has identified
water pollution that is attributable to non-permitted sources, excluding sources
over which a municipality does not have regulatory jurisdiction. Cities meeting
applicability shall be required to satisfy applicable provisions of this subchapter
upon receipt of notice issued by the executive director pursuant to §216.25
of this title (relating to Notice of Initial Determination).
(b)
A city whose population falls below 10,000, based on the
most recent federal decennial census, will no longer have a duty to satisfy
the applicable provisions of this subchapter upon the executive director's
receipt from the city of the most recent federal decennial census indicating
that the population has fallen below 10,000.
(c)
A Water Pollution Control and Abatement Program submitted
under this subchapter is not a Water Pollution and Abatement Plan as provided
by Texas Water Code, §26.121(a)(2)(B).
§216.23.Definitions.
Terms defined in Chapter 3 of this title (relating to Definitions)
will have the same meaning when used in this subchapter unless the definition
is specifically modified in this section.
(1)
City--A municipality or city existing, created, or organized
under the general, home rule, or special laws of this state.
(2)
Extra territorial jurisdiction-An area outside the
corporate limits of a municipality as defined in Local Government Code, §42.021.
(3)
Non-permitted sources--Sources of water pollution
that are not authorized to discharge pollution into or adjacent to waters
in the state by a valid permit, general permit, or rule pursuant to Texas
Water Code, Chapter 26, the federal Clean Water Act, or other applicable state
or federal law. This definition includes, but is not limited to, non-point
sources of pollution as those sources are defined and identified pursuant
to Chapter 220 of this title (relating to Regional Assessments of Water Quality),
the federal Clean Water Act, the Coastal Zone Act Reauthorization Amendments
of 1990, §6217, and other applicable state and federal statutes, regulations,
policies, and guidance. This definition does not include discharges authorized
by an NPDES or TPDES permit for municipal stormwater discharges.
(4)
Pollution--The alteration of the physical, thermal,
chemical, or biological quality of, or the contamination of any water in the
state that renders the water harmful, detrimental, or injurious to humans,
animal life, vegetation, or property, or to public health, safety or welfare,
or impairs the usefulness or the public enjoyment of the water for any lawful
or reasonable purpose.
(5)
Significant waste discharge--Point source discharges
of waste or pollutants to receiving water that have been identified to cause
pollution without regard to whether or not the discharges are authorized by
the commission.
§216.24.Water Quality Assessments and Studies.
Water quality assessments and studies that may be used by the executive
director to identify water pollution that is attributable to non-permitted
sources shall consist of one or more of the following.
(1)
State water quality inventory. The state program which
assesses the quality of surface and ground waters resulting in a report describing
the status of water quality in the state in accordance with the Federal Clean
Water Act, §305(b).
(2)
Clean rivers program. Watershed water quality assessments
conducted in accordance with Texas Water Code, §26.0135.
(3)
State nonpoint source assessment. The state program
implemented in compliance with Federal Clean Water Act, §319(a), which
identifies surface and ground waters in the state which cannot reasonably
be expected to attain or maintain applicable water quality standards or the
goals and requirements of the federal Clean Water Act without additional controls
for nonpoint sources of pollution.
(4)
Total maximum daily load. Pursuant to Clean Water
Act, §303(d), states are required to develop total maximum daily loads
for waters within the state for which the effluent limitations required by
the Clean Water Act, §301(b)(1)(A) and (B) are not stringent enough to
implement any water quality standard applicable to such waters.
(5)
Other. Special studies, pilot projects, reports, or
other quality assured assessments of water quality in the state prepared,
approved, or accepted by the executive director that identify non-permitted
sources of water pollution within cities, including information used by the
executive director for the purpose of updating the state's list of impaired
waters prepared in accordance with the federal Clean Water Act, §303(d).
§216.25.Notice of Initial Determination.
If it is determined by the executive director that a city has met the
criteria set forth in §216.22(a) of this title (relating to Applicability)
or the executive director is requiring the city to amend an existing water
pollution control and abatement program, the executive director shall notify
the city. This notice shall specify the following:
(1)
the basis for the executive director's determination;
(A)
that the city meets the criteria set forth in §216.22(a)
of this title; or
(B)
that the city's existing Water Pollution Control and Abatement
Program should be amended;
(2)
that the executive director may undertake additional
water quality assessments and studies in the impacted area as set out in §216.24
of this title (relating to Water Quality Assessments and Studies);
(3)
that the city may undertake additional water quality
assessments and studies in the impacted area within its jurisdiction which
comply with quality assurance requirements of the executive director; and
(4)
the time period (not to exceed five years) within
which the city may try to correct the problem. The executive director may
extend this time period when new or additional information or circumstances
warrant such an extension.
§216.26.Final Determination of Applicability.
(a)
After expiration of the time period specified in §216.25(a)(4)
of this title (relating to Notice of Initial Determination) , the executive
director shall determine whether a city still meets the criteria set forth
in §216.22(a) of this title (relating to Applicability) based on water
quality assessments and studies set out in §216.24 of this title (relating
to Water Quality Assessments and Studies) performed subsequent to the initial
determination, taking into consideration any measures taken and improvements
that have resulted or that will result from allowing full implementation of
the city's efforts to correct the problem.
(b)
If the executive director determines that a city continues
to meet the criteria set forth in §216.22(a) of this title, the executive
director at a regularly scheduled meeting held by the commission shall recommend
that the city be required to submit a Water Pollution Control and Abatement
Program or, when appropriate, amend an existing Water Pollution Control and
Abatement Program.
(c)
Consideration at a regularly scheduled meeting of the commission
shall not be required if the executive director and the city agree that the
city will develop and implement a Water Pollution Control and Abatement Program,
or amend an existing Program. In lieu of a public meeting, the city, based
on an agreement with the executive director, may request that the commission
issue an agreed order to submit a Program as described in §216.27 of
this title (relating to Water Pollution Control and Abatement Programs) or
an amendment to an existing Program as described in §216.29 of this title
(relating to Amendment Procedures for Water Pollution Control and Abatement
Programs).
(d)
The burden of demonstrating that the city meets the criteria
set forth in §216.22(a) of this title shall rest on the executive director.
(e)
The executive director shall cause notice of the regularly
scheduled meeting to be published in the
Texas Register
informing the public of the meeting and that the public has 30 days
prior to the regularly scheduled commission meeting to provide written comment
to the commission on whether the city should be required to develop and implement
a Water Pollution Control and Abatement Program or amend an existing Water
Pollution Control and Abatement Program.
(f)
In considering the matter at the regularly scheduled meeting,
the commission may:
(1)
upon its own motion or upon the request of a party, conduct
a contested case proceeding and consider evidence and hear oral argument of
the parties, or refer the matter to SOAH for a contested case hearing conducted
pursuant to the Administrative Procedure Act (APA) to determine whether the
city continues to meet the criteria set forth in §216.22(a) of this title;
(2)
determine that the city is not required to submit
a Water Pollution Control and Abatement Program;
(3)
determine that the city continues to meet the criteria
set forth in §216.22(a) of this title and approve the executive director's
recommendation that the city be required to develop, or where appropriate
amend, and implement a Water Pollution Control and Abatement Program; or
(4)
issue any other order the commission deems appropriate.
(g)
Should the commission determine under subsection (f)(3)
of this section that a Water Pollution Control and Abatement Program is required,
the commission order shall specify the pollutants and non-permitted sources
of concern and the deadline for the submission of a Water Pollution Control
and Abatement Program.
(h)
The regularly scheduled meeting held by the commission
pursuant to this section shall satisfy the requirement of the public hearing
mandated by Texas Water Code, §26.177.
(i)
A commission order issued pursuant to subsection (f) of
this section is a final and appealable order under Texas Water Code, §5.351.
As a prerequisite to appeal, a motion for rehearing under §80.271 of
this title (relating to Motion for Rehearing) must be filed within 20 days
after the date the city or the city's attorney of record is notified of the
commission's final decision or order under this subchapter.
§216.27.Water Pollution Control and Abatement Programs.
(a)
The Water Pollution Control and Abatement Program of a
city shall encompass the area within a city's municipal boundaries and, subject
to Texas Water Code, §26.179 (relating to Designation of Water Quality
Protection Zones in Certain Areas), may include areas within its extra-territorial
jurisdiction which in the judgment of the city should be included to enable
the city to achieve its objectives for the area within its territorial jurisdiction.
(b)
The city shall include in the Program the services and
functions which, in the judgment of the city or as may be reasonably required
by the commission, will provide effective water pollution control and abatement
for the city to address water pollution attributable to non-permitted sources,
including the following services and functions:
(1)
the development and maintenance of an inventory of all
significant waste discharges into or adjacent to the water within the city
and, where the city so elects, within the extraterritorial jurisdiction of
the city, without regard to whether or not the discharges are authorized by
the commission;
(2)
the regular monitoring of all significant waste discharges
included in the inventory prepared pursuant to paragraph (1) of this subsection;
(3)
the collecting of samples and the conducting of periodic
inspections and tests of the waste discharges being monitored to determine
whether the discharges are being conducted in compliance with this chapter
and any applicable permits, orders, or rules of the commission, and whether
they should be covered by a permit from the commission;
(4)
in cooperation with the commission, a procedure for
obtaining compliance by the waste dischargers being monitored, including where
necessary the use of legal enforcement proceedings;
(5)
the development and execution of reasonable and realistic
plans for controlling and abating pollution or potential pollution resulting
from generalized discharges of waste which are not traceable to a specific
source, such as storm sewer discharges and urban runoff from rainwater; and
(6)
any additional services, functions, or other requirements
as may be prescribed by commission rule to effectuate the purposes of this
subchapter.
§216.28.Submittal of Water Pollution Control and Abatement Programs.
A Water Pollution Control and Abatement Program shall be submitted
to the executive director of the commission in accordance with the order issued
pursuant to §216.26 of this title (relating to Final Determination of
Applicability). Those elements requiring engineering design in the Water Pollution
Control and Abatement Program for the city shall be signed and sealed by a
professional engineer licensed in the State of Texas who shall certify that
the city's Program is designed to abate and prevent water pollution attributable
to non-permitted sources located within the city.
§216.29.Amendment Procedures for Water Pollution Control and Abatement Programs.
(a)
A city may amend the Water Pollution Control and Abatement
Program for that city at any time by submitting an amended Water Pollution
Control and Abatement Program to the executive director of the commission.
Those elements requiring engineering design in the amended Water Pollution
Control and Abatement Program for the city shall be signed and sealed by a
professional engineer licensed in the State of Texas who shall certify that
the city's Program is designed to abate and prevent water pollution attributable
to non-permitted sources located within the city.
(b)
The commission, upon its own motion or in response to a
petition filed by the executive director, may require a city to amend a Water
Pollution Control and Abatement Program for that city when new or additional
information or circumstances warrant such changes to effectuate the purposes
of this subchapter.
(c)
The provisions for notice of initial determination under
§216.25 of this title (relating to Notice of Initial Determination) and
final determination of applicability under §216.26 of this title (relating
to Final Determination of Applicability) shall apply to an amendment of a
Water Pollution Control and Abatement Program.
§216.30.Appeals.
Pursuant to Texas Water Code, §26.177(d), any person affected
by any ruling, order, decision, ordinance, program, resolution, or other act
of a city relating to water pollution control and abatement outside the corporate
limits, within the extraterritorial jurisdiction of such city adopted pursuant
to this subchapter or any other statutory authorization may appeal such action
to the commission or district court. An appeal must be filed with the commission's
chief clerk within 60 days of the enactment of the ruling, order, decision,
ordinance, program, resolution, or act of the city. The issue on appeal is
whether the action or program is invalid, arbitrary, unreasonable, inefficient,
or ineffective in its attempt to control water quality, and the commission's
order on the appeal will be based on whether the city's actions or programs
meet these criteria. The commission or district court may overturn or modify
the action of the city. If an appeal is taken from a commission ruling, the
commission ruling shall be in effect for all purposes until final disposition
is made by a court of competent jurisdiction so as not to delay any permit
approvals.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February
17, 1999.
TRD-9900977
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 9, 1999
Proposal publication date: October 30, 1998
For further information, please call: (512) 239-1966