Part 1.
TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
Chapter 11.
CONTRACTS
Subchapter D. RESOLUTION OF CONTRACT CLAIMS
30 TAC §§11.101 - 11.108
The Texas Natural Resource Conservation Commission (TNRCC
or commission) adopts new §11.101, Definitions; §11.102, Applicability; §11.103,
Other Rules and Statutes; §11.104, Filing Notice of Claim for Breach
of Contract; Counterclaim; §11.105, Negotiation; §11.106, Settlement
of Claim; §11.107, Mediation; and §11.108, Request for Hearing.
The sections are adopted without changes to the proposed text as published
in the May 5, 2000, issue of the
Texas Register
(25 TexReg 3911) and will not be republished.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
The purpose of Chapter 11, Subchapter D, Resolution of Contract Claims,
is to implement Texas Government Code, Chapter 2260, Resolution of Certain
Contract Claims Against the State, which was created by House Bill (HB) 826,
76th Legislature, 1999. The statute requires that each unit of state government
must adopt rules to govern the negotiation and mediation of contractor claims
for breach of contract. Chapter 2260 provides that this administrative claim
procedure is a prerequisite to filing suit by the contractor. Chapter 2260
also requires the commission to define by rule the process for mediating and
settling claims against the state arising under contracts for goods and services.
The adopted rules have been drafted to be consistent with the intent and language
of HB 826, and to specifically satisfy the rulemaking requirements required
of the commission.
The adopted rules establish a procedure for the administrative processing
of contractor claims for breach of written contracts with the commission.
SECTION BY SECTION DISCUSSION
No sections were changed from the proposed version.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission has reviewed the rulemaking in light of the regulatory analysis
requirements of Texas Government Code, §2001.0225, and has determined
that the rulemaking is not subject to §2001.0225 because it does not
meet the definition of a "major environmental rule" as defined in that statute.
These are procedural rules governing the resolution of breach of contract
claims. These rules do not set any environmental standards or affect the enforcement
of environmental standards. There are no federal standards for these contracting
issues. These rules are specifically required by state law, Texas Government
Code, §2260.052(c). These rules are adopted under this specific state
statute rather than the general powers of the commission. These rules do not
exceed the requirements of state law. These rules do not relate to any delegation
agreements or contracts between the state and federal government concerning
state contracting procedures.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a takings impact assessment for these rules
under Texas Government Code, §2007.043. The following is a summary of
that assessment. The specific purpose of the rules is to implement legislation
on procedures for handling contract disputes between the commission, and persons
who enter into contracts with it. These are procedural rules governing the
resolution of breach of contract claims. These rules do not set any environmental
standards or affect the enforcement of environmental standards. These rules
do not regulate the use of private real property. Therefore, these rules will
not constitute a takings under Texas Government Code, Chapter 2007.
COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW
The commission has determined that the rulemaking does not relate to an
action or actions subject to the Texas Coastal Management Program (CMP) in
accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural
Resources Code, §§33.201 et seq.), and the commission's rules in
30 TAC Chapter 281, Subchapter B, concerning Consistency with the CMP. These
are procedural rules that do not set environmental standards or affect their
enforcement.
HEARING AND COMMENTERS
A public hearing was held in Austin on June 1, 2000. No comments were received
at the public hearing or during the public comment period which closed on
June 5, 2000.
STATUTORY AUTHORITY
The new sections are adopted under HB 826, 76th Legislature, 1999, codified
as Texas Government Code, Chapter 2260, which requires the commission to develop
rules governing the negotiation and mediation of claims for breach of contract
between the commission and a contractor.
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 July 31, 2000.
TRD-200005271
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: August 20, 2000
Proposal publication date: May 5, 2000
For further information, please call: (512) 239-0348
30 TAC §§14.1 - 14.10, 14.12, 14.15, 14.16
The Texas Natural Resource Conservation Commission (TNRCC
or commission) adopts new §14.1, Definitions; §14.2, Commission
Authority; §14.3, Applicability; §14.4, Funding; §14.5, Recipient
Eligibility; §14.6, Recipient Selection Criteria; §14.7, Solicitations; §14.8,
Direct Award; §14.9, Notices; §14.10, Payment Procedures; §14.12,
Eligible Activities; §14.15, Delegation of Authority; and §14.16,
Affect on Prior Grants. Adopted new §14.4 and §14.9 are adopted
with changes to the proposed text as published in the May 5, 2000, issue of
the
Texas Register (
25 TexReg 3913). The commission
is withdrawing §§14.11, 14.13, and 14.14. The remaining sections
are adopted without changes to the proposed text and will not be republished.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
The purpose of the new sections is to implement Senate Bill (SB) 1421 and
House Bill (HB) 3561, 76th Legislature, 1999. Senate Bill 1421, 76th Legislature,
1999, adds Texas Water Code (TWC), §5.124 and HB 3561 adds TWC, §5.125
(Session Laws, 76th Legislature, 1999, Chapter 187 (HB 3561) pages 660-662),
Authority to Award Grants. Both sections contain identical language and require
the commission to establish, by rule, procedures for awarding a grant, for
making any determination related to awarding a grant, and for making grant
payments. The adopted rules, in a new Chapter 14, respond to this requirement.
The Agency has determined that no conflict exists between these rules and
other TNRCC rules relating to certain types of grants when by their terms
those rules would also apply.
SECTION BY SECTION DISCUSSION
In §14.4, Funding, the description of possible funding has been modified
to clarify the meaning of the words "federal grant money" in §14.4(3).
Section 14.9(a) has been modified to clarify that the $25,000 threshold for
publication in the Texas Marketplace applies to TNRCC grants in the same manner
in which it applies to procurements of goods and services under Texas Government
Code, §2155.074, as added by Chapter 508, §1, Acts of the 76th Legislature,
1999. Section 14.11, Other Requirements, §14.13, Uniform Grant Management
Standards, and §14.14, Grant Awards Affecting Mexico are withdrawn because
they refer to statutes and standards which apply on their own terms to grants
awarded under this chapter and these provisions would have been redundant.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the rulemaking in light of the regulatory analysis
requirements of Texas Government Code, §2001.0225, and determined that
the rulemaking is not subject to §2001.0225 because it does not meet
the definition of a "major environmental rule," as defined in that statute.
In addition, the rulemaking is not a major environmental rule because it does
not meet any of the four applicability requirements of a "major environmental
rule" defined in §2001.0225(a). There is no federal law or federal delegation
agreement specifically applicable to these rules.
TAKINGS IMPACT ASSESSMENT
The commission prepared a takings impact assessment for the rules pursuant
to Texas Government Code, §2007.043. The specific purpose of the rules
is to implement legislation concerning the commission's authority to award
grants for resource conservation and environmental protection purposes. The
rules establish the agency's procedures for awarding grants, for making any
determination relating to awarding a grant, and for making grant payments.
The rules do not affect private real property. Therefore, new Chapter 14 will
not constitute a takings under Texas Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rulemaking and found that the rules
are not identified in the Coastal Coordination Act Implementation Rules, 31
TAC §505.11, Actions and Rules Subject to the Texas Coastal Management
Program (CMP), and will not affect any action/authorization identified in
Coastal Coordination Act Implementation Rules, 31 TAC §505.11. Therefore,
the rules are not subject to the CMP.
HEARING AND COMMENTERS
A public hearing was not convened. The written comment period closed on
June 5, 2000. No comments were received.
STATUTORY AUTHORITY
The new sections are adopted under SB 1421 and HB 3561, 76th Legislature,
1999, and require the commission to establish, by rule, procedures for awarding
a grant, for making any determination relating to awarding a grant, and for
making grant payments. Also, the new chapter is adopted under TWC, §5.103,
which authorizes the commission to adopt any rules needed to carry out its
powers and duties. This rulemaking responds to a new requirement of state
law.
§14.4.Funding.
Grants awarded by the agency under this chapter may use:
(1)
money appropriated for specific grant-making purposes;
(2)
federal money granted to the agency for making pass-through
grants; or
(3)
state funds or federal grant funds appropriated for a purpose
which the executive director determines is, and documents as being, consistent
with a purpose of the grant.
§14.9.Notices.
(a)
The executive director shall publish on the state electronic
business daily, commonly known as the Texas Marketplace, information regarding
any solicitation related to a grant or series of grants, any of which is reasonably
expected to exceed $25,000, to be awarded under this chapter.
(b)
The notice will indicate either that the executive director
is seeking proposals or applications from potential grant recipients, or that
one or more direct awards is anticipated, in accordance with §14.8 of
this title (relating to Direct Award).
(c)
If one or more direct awards is anticipated, the notice
will identify the recipients selected to receive a direct award and will describe
the objective and amount of each proposed award.
(d)
Following recipient selection and final grant award, except
in the case of a previously noted direct award, the executive director shall
file a second notice in the state's electronic business daily identifying
the successful recipients and indicating the amount of each awarded grant.
(e)
In addition, the executive director may publish or broadcast
information concerning a grant or grants in any publication, web site, or
other forum.
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 July 31, 2000.
TRD-200005269
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: August 20, 2000
Proposal publication date: May 5, 2000
For further information, please call: (512) 239-4712
Subchapter C. HEARING PROCEDURES
30 TAC §80.128
The Texas Natural Resource Conservation Commission (TNRCC
or commission) adopts new §80.128, Specific Admissibility of Evidence
for Concrete Batch Plants, without changes to the proposed text as published
in the April 21, 2000, issue of the
Texas Register
(25 TexReg 3418).
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
Senate Bill (SB) 1298, 76th Legislature, 1999, amended the Texas Health
and Safety Code (THSC), §382.058, Limitation on Commission Exemption
for Construction of Certain Concrete Plants, by adding subsection (d), to
prohibit evidence regarding air dispersion modeling from being submitted at
a hearing under THSC, §382.056, Notice of Intent to Obtain Permit or
Permit Review; Hearing, for concrete batch plants which register under THSC, §382.057,
Exemptions.
Senate Bill 766, which also passed during the 76th Legislature, 1999, amended
THSC, §382.058, to reference permits by rule and standard permits instead
of exemptions for concrete batch plants. In order to give effect to both SB
1298 and SB 766, the commission will implement the intent of the language
"adoption of exemption under §382.057" to include "issuance of standard
permit under §382.05195" and the procedures which are codified under
30 TAC Chapter 116, Subchapter F.
It is anticipated that concrete batch plants will be eligible for a standard
permit from the commission instead of an exemption. The commission has concluded
extensive research, including air dispersion modeling, to ensure that the
standard permit for concrete batch plants will be protective. Prior to the
approval of a registration for a standard permit, certain concrete batch plants
will be required to provide public notice and may be subject to a contested
case hearing. Under these circumstances, when air dispersion modeling is introduced
at a public hearing for a concrete batch plant registering under a standard
permit, it would be redundant with air dispersion modeling already conducted
by the commission. Senate Bill 1298 creates a prohibition on submittal of
evidence regarding air dispersion modeling during a public hearing when a
standard permit considering modeling and impacts review for these facilities
has been issued by the commission. This prohibition will begin to apply upon
the issuance of a standard permit for concrete batch plants by the commission
which is anticipated shortly after the adoption of this rule.
SECTION BY SECTION DISCUSSION
The new adopted §80.128 prohibits evidence regarding air dispersion
modeling to be submitted at a hearing under THSC, §382.056, if the commission
considers air dispersion modeling information in the course of adopting the
standard permit under Texas Clean Air Act (TCAA), §382.05195, for a
concrete plant.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission has reviewed the adopted rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225, and has determined
that the rulemaking is not subject to §2001.0225 because it does not
meet the definition of a "major environmental rule" as defined in that statute.
Section 80.128 contains a change in the procedural rules which prohibits the
introduction of modeling in a contested case hearing. It is not the specific
intent of this rule to protect the environment or reduce risks to human health
from environmental exposure. Since extensive modeling was performed by the
commission regarding concrete batch plants and the emissions from these plants
has been shown to be insignificant, this prohibition will not affect the protection
of the environment.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a Takings Impact Assessment for this rule under
Texas Government Code, §2007.043. The following is a summary of that
assessment. It is anticipated certain concrete batch plants will be eligible
for a standard permit from the commission. The commission has concluded extensive
research, including air dispersion modeling, to ensure that the standard permit
for concrete batch plants will be protective. Prior to the approval of a registration
for a standard permit, certain concrete batch plants will be required to provide
public notice and may be subject to a contested case hearing. When air dispersion
modeling is introduced at a public hearing, it would be redundant with air
dispersion modeling already conducted by the commission. Section 80.128 creates
a prohibition on submittal of evidence regarding air dispersion modeling during
a public hearing involving a concrete batch plant standard permit. This rule
is simply a procedural rule and does not burden private real property. Therefore,
this revision will not constitute a takings under Texas Government Code, Chapter
2007.
COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW
The commission has reviewed the rulemaking and has determined that the
adopted section is not subject to the Texas Coastal Management Program (CMP).
The adopted action concerns only the procedural rules of the commission and
general agency operations, is not substantive in nature, does not govern or
authorize any actions subject to the CMP, and is not itself capable of adversely
affecting a coastal natural resource area (Title 31 Natural Resources and
Conservation Code, Chapter 505; 30 TAC §§281.40, et seq.).
HEARING AND COMMENTERS
A public hearing on this proposal was held in Austin on May 16, 2000 and
no oral comments were received. The comment period closed on May 22, 2000.
The Residents for A Better Community, a citizen group, submitted two written
comments with suggested changes concerning §80.128.
ANALYSIS OF TESTIMONY
The Residents for A Better Community commented that there was a lack of
public notification to the changes to the TNRCC rules and regulations as required
by SB 1298.
The commission disagrees with this comment as it relates to the specific
regulatory procedure. The commission followed the procedures in accordance
with Texas Government Code, §2001.023, Notice of Proposed Rules. Section
2001.023(a) states that a state agency shall give at least 30 days notice
of its intention to adopt a rule before it adopts the rule and §2001.023(b)
states that a state agency must file notice of the proposed rule with the
secretary of state for publication in the
Texas Register
. These requirements were met. A notice regarding the proposed new
rule appeared in the
Texas Register
(25 TexReg
3418) on April 21, 2000, and a notice for a public hearing was published by
April 14, 2000 in the following newspapers: Austin American-Statesman, El
Paso Times, Fort Worth Star-Telegram, and the Houston Chronicle. This meets
the requirement for publication in the
Texas Register
as well as the 30-day requirements.
The commission also disagrees with the comment as it relates to the specific
adopted rule. Senate Bill 1298 amended the THSC, §382.058, by adding
subsection (d) which prohibits evidence regarding air dispersion modeling
to be submitted at a hearing under THSC, §382.056, for concrete batch
plants. In accordance with this amendment, the new adopted §80.128 prohibits
evidence regarding air dispersion modeling to be submitted at a public hearing,
if the commission considers air dispersion modeling information in the course
of adopting a concrete batch plant standard permit. There is no reference
to public notification in the legislation or new adopted rule, and therefore
the issue of public notice for these facilities is outside the scope of this
rulemaking.
The Residents of a Better Community commented that the new regulation should
not be retroactive.
The commission agrees with this comment. The new §80.128 will only
apply to a new standard permit for concrete batch plants once it is effective
and does not apply to existing permit applications or registrations for permit
by rule.
STATUTORY AUTHORITY
The new section is adopted under THSC, §382.058(d), to prohibit evidence
regarding air dispersion modeling submitted at a hearing under THSC, §382.056,
for concrete batch plants which register under TCAA, §382.05195; §382.011,
which authorizes the commission to administer the requirements of the TCAA; §382.012,
which provides the commission the authority to develop a comprehensive plan
for the state's air; §382.017, which authorizes the commission to adopt
rules consistent with the policy and purposes of the TCAA, §382.051,
which authorizes the commission to issue a permit for numerous similar sources; §382.0513,
which authorizes the commission to establish and enforce permit conditions
consistent with the TCAA; and §382.05195, which authorizes the commission
to issue a standard permit.
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 July 31, 2000.
TRD-200005270
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: August 20, 2000
Proposal publication date: April 21, 2000
For further information, please call: (512) 239-0348
30 TAC §§307.2 - 307.10
The Texas Natural Resource Conservation Commission (TNRCC
or commission) adopts amendments to §§307.2 - 307.10, concerning
the Texas Surface Water Quality Standards. These sections are adopted
As published in the Rule Review section in this issue of the
Texas Register
, the commission also adopts the review of Chapter 307
in accordance with Texas Government Code, §2001.039, and the General
Appropriations Act, Article IX, Section 9-10.13, 76th Legislature, 1999, which
require state agencies to review and consider for readoption each of their
rules every four years. The commission has determined that the reasons for
the rules continue to exist. The rules are readopted and amended to satisfy
Texas Water Code (TWC), §26.023, which requires the commission to set
water quality standards by rule for the water in the state and allows the
commission to amend the standards from time to time. The rules are also readopted
and amended to satisfy the federal Clean Water Act (CWA), §303, which
requires states to adopt water quality standards and review and revise those
standards at least once every three years.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
Section 303 of the Federal Water Pollution Control Act (commonly referred
to as the federal CWA, 1972, 33 United States Code (USC), §1313(c)) requires
all states to adopt water quality standards for surface water. A water quality
standard consists of the designated beneficial use or uses of a water body
or a segment of a water body and the water quality criteria that are necessary
to protect the use or uses of that particular water body. Water quality standards
must also contain an antidegradation policy. Water quality standards are the
basis for establishing discharge limits in waste discharge permits and other
regulatory actions. The standards are used to assess whether water bodies
are attaining appropriate water-quality related goals.
The states are required under the CWA to review their water quality standards
at least once every three years and revise them, if appropriate. States review
standards because new scientific and technical data may be available which
have a bearing on the review. Further, environmental changes over time may
warrant the need for a review. Where standards do not meet established uses,
the standards must be periodically reviewed to see if uses can be attained.
Additionally, water quality standards may have been established for the protection
and propagation of aquatic life and for recreation in and on the water without
sufficient data to determine whether the uses were attainable. Finally, changes
in the CWA or in the United States Environmental Protection Agency's (EPA)
regulations may necessitate reviewing standards to ensure continual compliance.
The states, in conjunction with EPA, select water bodies for which water
quality standards are to be reviewed in-depth. To make this determination,
the states and EPA are aided by: CWA, §304(l), lists of waters; CWA, §305(b),
state reports (these reports provide an assessment of the condition of waters
within the boundaries of each state); the waters identified under CWA, §303(d);
the construction grants priority list; and segments where major waste discharge
permits have expired.
States may modify non-existing designated uses when it can be demonstrated,
through a Use Attainability Analysis, that attaining the higher designated
use is not feasible. Factors affecting a water body, such as naturally high
water temperatures, physical impediments, or natural background pollutant
levels may effectively prevent a non-existing designated use from being met.
States may adopt seasonal uses as an alternative to reclassifying a water
body or segment thereof to uses requiring less stringent criteria.
Following adoption of water quality standards, the Governor or his designee
must submit the officially adopted standards to the EPA Region 6 Administrator
for review. The Regional Administrator reviews the state's standards to determine
compliance with the CWA and implementing regulations. Standards are effective
based upon state adoption, except as provided in 40 Code of Federal Regulations
(CFR) §131.21 where approval by EPA is first needed.
The Texas statewide surface water quality standards were last amended on
July 13, 1995. Amendments to §307.4, General Criteria, and §307.10,
Appendices A - E, were made in April 1997 as a result of the EPA's disapproval
of the change in presumed standards for perennial streams from an aquatic-life
use of "high" to an aquatic-life use of "intermediate" for East Texas streams.
The EPA last approved the state's standards in 1998.
The commission establishes, reviews, and revises on a periodic basis the
State of Texas' surface water quality standards pursuant to the TWC, §26.023.
The commission has adopted site-specific standards for all classified water
bodies and presumed standards for all unclassified water bodies for which
the state has not yet completed site-specific studies. The commission has
also established a program to conduct such site-specific studies, called Receiving-Water
Assessments, which consist of fish sampling, habitat assessment, chemical
analysis, and in some cases invertebrate sampling, to help determine the attainable
aquatic-life uses and dissolved oxygen criteria for unclassified streams.
A receiving-water assessment may be conducted on an unclassified stream when:
(1) a new discharge is proposed to enter a stream believed to be perennial
or intermittent with perennial pools; (2) there is a change proposed for an
existing discharge, such as an increase in flow or loading; or (3) there is
a need to better ascertain the aquatic life use of a water body. Sampling
is conducted over one or two days in an area of the stream that is not influenced
by the discharge and in most cases is relatively unimpacted. When a stream
has been individually studied, site-specific standards (uses and criteria)
may replace the presumed standards for that stream.
In addition, the commission has established a program for conducting and
evaluating Use Attainability Analyses. A Use-Attainability Analysis is the
evaluation and final determination of the appropriate water quality standards
for a water body. The analysis may be based on a receiving-water assessment
or other kind of study acceptable by the executive director, or a combination
of studies. The use-attainability procedures require the identification of
reference areas and the defining of stream reaches to be included in the assessment.
Physical evaluations of the streambeds, flow characteristics and habitat descriptions
are also categorized. Fish sampling and, in some cases, macroinvertebrate
sampling, is also conducted. The assessment, which may be included in a receiving-water
assessment, is reviewed and a final determination is made on whether the designated
aquatic life uses on a classified stream should be revised or a site-specific
standards modification to presumed aquatic life uses for an unclassified perennial
stream should be established. This final determination is presented in a formal
report known as a Use-Attainability Analysis and submitted to the EPA for
approval.
The state's surface water quality standards are necessary to protect public
health, enhance water quality, and meet the purposes of the CWA, which are
to restore and maintain the chemical, physical, and biological integrity of
the nation's waters. The commission uses intensive survey data; the CWA §304(l),
list of waters; monitoring data; CWA, §305(b), data; and other available
data for a water body to determine whether standards are appropriate. Physical,
chemical, and biological factors are examined to assess whether the criteria
are appropriate. The commission uses results from receiving-water assessments
and information from sampling and monitoring data to develop the standards.
The commission adopts editorial revisions as well as substantive changes.
Editorial revisions are adopted to improve clarity, to make grammatical corrections,
and to renumber or reletter subsections as appropriate. The commission also
adopts changes that are needed to incorporate additional information on toxic
pollutants and new data on waters in the state. The adopted changes provide
revisions to general criteria that are more consistent with current permitting
practices and with the requirements of Texas Pollutant Discharge Elimination
System (TPDES) permitting. The adopted changes also provide clarity on how
the standards apply in certain permitting situations.
In connection with the adoption of these rules, the commission is completing
revisions to its implementation procedures for applying the adopted standards
in wastewater discharge permits. Changes to the implementation procedures
incorporate the adopted changes to the water quality standards contained in
these rules. Changes are also being completed to implement the antidegradation
policy. The implementation procedures are contained in a guidance document
entitled,
Procedures to Implement the Texas Surface
Water Quality Standards
. This document provides guidance and explanation
of the general and technical procedures used in implementing the standards
in wastewater discharge permits. The document is being revised at this time,
both to be consistent with the amendments adopted in this chapter and in consideration
of public comment on the proposed revisions to the implementation procedures.
Revisions to the implementation procedures include information on endangered
and threatened species, temporary standards and variances, dissolved oxygen
modeling, antidegradation, total maximum daily loads (TMDLs), total dissolved
solids (TDS), and storm water permitting. Although not part of the regulatory
action covered by the adoption of amendments to this chapter, the revisions
to the implementation procedures were proposed at the same time as the proposed
amendments to this chapter. This allowed for a more coordinated and consistent
review by the commission and the public. These implementation procedures are
referenced as Series 23 in the commission's Continuing Planning Process which
describes the commission's water quality management program. The implementation
procedures must be approved by the commission and submitted to the EPA for
approval. The commission is expected to consider adoption of the revisions
to the implementation procedures in the upcoming months of 2000.
Implementation procedures, which address how the standards are applied
in wastewater discharge permits, provide flexibility in how affected permittees
can change treatment procedures so that their discharge will not affect a
segment's ability to maintain its water quality standards. Costs related to
these changes are site-specific and will be dependent upon the extent of the
permittee's changes to their treatment process.
SECTION BY SECTION DISCUSSION
The commission adopts amendments to §307.2, Description of Standards,
to clarify provisions and revise the sequence of steps for seeking and applying
for temporary variances, clarify that interim effluent limits may not last
longer than three years except where a temporary variance is in effect, and
provide a new provision for adopting temporary standards where a criterion
is not attained and cannot be reasonably attained for reasons listed in 40
CFR §131.10(g). The adopted amendments require preliminary information
indicating that the standards change may be appropriate to be included in
the variance request, and provide for the variance request to be included
in the public notice for the permit application. The adopted amendments also
clarify the effective date of the standards in order to reflect the current
state administrative practices and a recent court ruling related to EPA approval
and the effective date of standards.
In response to comments, amended §307.2(d)(5) now better describes
that scientific information justifying the site-specific amendment of the
standard is necessary. In response to comments, amended §307.2(d)(5)(E)
now clarifies that the commission approves a variance extension based upon
a study which supports the change in standards. In response to comments, §307.2(e)
has been amended to refer to the correct title of a guidance document which
recently underwent revision.
Provisions for the approval of temporary standards have also been adopted
as §307.2(g). These temporary standards may be approved as an alternative
to revising a use where a criterion is not attained or cannot be reasonably
attained. In response to comments, §307.2(g) has been changed to delete
the word "reasonably" when referring to attainment of a standard and the subsection
now includes a reference to the standards implementation procedures, which
includes greater detail on how the commission will use and implement temporary
standards.
The commission adopts §307.2(h), which specifies the effective date
of these amendments and manner in which the effective date is affected by
EPA review and approval. The commission adopts §307.2(i), which includes
a severability clause.
The commission adopts amendments to §307.3, Definitions and Abbreviations,
to include amendments to the definitions for "ambient," "background," "best
management practices," "discharge permit," "fecal coliform," "method detection
limit," "minimum analytical level," "noncontact recreation," "seven-day two-year
low-flow," "standards," "standards implementation procedures," "sustainable
fisheries," and "water-effects ratio." New definitions have been adopted for
"attainable use;" "bioconcentration factor;" "biological integrity;" "classified;"
"designated use;" "
E. coli
" and "enterococci
bacteria;" "existing use;" "incidental fishery;" "intermittent stream with
perennial pools;" "point source;" "presumed use;" "public drinking water supply;"
"seagrass propagation;" "segment;" "significant aquatic life use;" "storm
water;" "storm water discharge;" "tidal;" "to discharge;" "total maximum daily
load (TMDL);" and "wetland water quality functions." In response to comments,
the commission has changed the definition of several terms in the adoption
of the amendments to this section. The revised definitions are for the terms
"bioconcentration factor," biological integrity," "chronic toxicity," "mixing
zone," "public drinking water supply," "seagrass propagation," "standards
implementation procedures," "storm water discharge," "surface water in the
state," "toxicity biomonitoring," "water effects ratio," and "water quality
management program."
In response to comments, the commission also has deleted its proposal to
include a definition of "pollutant" and instead adopts a definition of "pollution,"
as that term is used in this chapter. Attainable, designated, existing, and
presumed uses have all been individually defined to provide for a more accurate
description of each use. In response to comments, the proposed definitions
of "attainable use" and "existing use" have been revised in the adoption of
amendments to this section. In response to comments, the commission has deleted
the terms "commission," "general contact recreation," and "high use contact
recreation."
The adopted changes add new abbreviations in §307.3(b) for Chemical
Abstracts Service Registry number (CASRN), maximum contaminant level (for
public drinking water) (MCL), municipal separate storm sewer system (MS4),
total maximum daily load (TMDL), Texas Pollutant Discharge Elimination System
(TPDES), and total suspended solids (TSS).
The commission adopts amendments to §307.4, General Criteria, to clarify
in §307.4(b)(3) that the provision for settleable solids does not prohibit
dredge and fill activities under the federal CWA, §404. The adoption
includes changes which were incorporated in response to comments.
The revisions also clarify in adopted amendments to §307.4(d) that
acute toxic criteria apply to all water in the state, and that chronic toxicity
criteria apply to surface waters with a significant aquatic life use of limited,
intermediate, high, or exceptional. In response to comments, the adoption
of this subsection includes changes to cross-reference §307.8(a)(2) and
includes correction of a typographical error.
Amendments to the salinity provisions in §307.4(g) have been adopted
to indicate that concentrations of dissolved minerals such as chlorides, sulfates,
and TDS will be maintained such that existing, designated, and attainable
uses will not be impaired, and that absence of numerical salinity criteria
shall not preclude evaluations and regulatory actions based on estuarine salinity.
In response to comments, the amendments to §307.4(g)(3) have been changed
to more clearly reflect that attainable uses will be protected.
The commission adopts amendments to §307.4(h) to clarify the general
provision that dissolved oxygen concentrations shall be sufficient to support
existing, designated, and attainable aquatic life uses. The adopted amendments
more clearly address the general criteria for dissolved oxygen for all waters
in the state regardless of whether the water is classified or unclassified.
The amendments also clarify that perennial waters not listed in Appendix A
or D are presumed to have a high aquatic life use and corresponding dissolved
oxygen criteria, while intermittent streams must maintain a 24-hour dissolved
oxygen mean of at least 2.0 milligrams per liter (mg/L) and an absolute minimum
dissolved oxygen concentration of 1.5 mg/L. The revisions on perennial waters
clarify distinctions between presumed aquatic life uses for different water
body types. In response to comments, the adoption of amended §307.4(h)(4)
includes changes to reflect that higher uses will be protected where they
are attainable. The commission determined it was unnecessary to reference
the standards implementation procedures and has deleted the reference in §307.4(h)(4).
The commission adopts §307.4(i), relating to aquatic life uses and
habitat. In response to comments, the adoption of this subsection includes
a change that deletes reference to protection of "existing" uses.
The commission adopts §307.4(j), relating to aquatic recreation. In
response to comments, the adoption of this subsection includes changes which
delete the proposed criteria of "general" and "high use" as contact recreation
subcategories. Also, the adopted language includes changes to note that contact
recreation is a presumed use, except where otherwise specified for specific
water bodies.
The commission adopts amendments to §307.5, Antidegradation, to clarify
that the development and implementation of TMDLs are actions subject to the
antidegradation policy. The amendments also more closely follow the federal
regulations, reflecting the "tier" approach to describing the antidegradation
policy. The antidegradation policy affords three tiers or levels of protection
to the waters in the state.
In response to comments, adopted amendments to §307.5(a), (b)(4),
and (c) include references to pollution and loadings, rather than pollutants
or pollutant loadings. Changes also include corrected references to "agency"
and "commission," as appropriate. Also in response to comments, adopted amendments
to §307.5(b)(1) reflect that Tier 1 antidegradation reviews consider
existing uses.
The commission adopts amendments to §307.5(b)(4) to further clarify
that antidegradation review procedures apply to TPDES permits for wastewater,
permits relating to dredge and fill projects, and other permitting and regulatory
activities which may increase pollution. In response to comments, the adopted
amendments to paragraph (4) include changes to better describe the scope of
the commission's antidegradation policy.
The commission adopts amendments to §307.5(c) to also specify the
manner in which the agency will implement its antidegradation policy, including
the consideration of public input. In response to comments, the adopted amendments
to §307.5(c)(2)(E) include a change which makes it clear that public
comment will be considered on decisions concerning antidegradation for specific
regulatory actions.
The commission adopts amendments to §307.6, Toxic Materials, to clarify
that acute numerical aquatic-life criteria for toxic substances apply above
low-flow conditions (1/4 of 7Q2). The adopted amendments also include the
addition of human health criteria for acrylonitrile and 1,3-Dichloropropene
to Table 3, relating to Human Health Protection. The commission adopts amendments
to the numerical criteria for human health protection in Table 3. The amendments
remove Mirex from Table 3 due to a lack of national data for determining criteria
for human health. The standards will continue to address Mirex through aquatic
life criteria. Amendments to Polychlorinated Biphenyls (PCBs) numerical criteria
have been adopted. Amendments have been adopted to Table 1, concerning Toxic
Criteria to Protect Aquatic Life, and Table 2, concerning Total Hardness and
pH Values. The amendments to Table 1 include: (1) adjusting criteria for dissolved
metals in accordance with new EPA data; and (2) adding water-effects ratios
to metals criteria to address site-specific differences in toxicity due to
water chemistry. Adopted amendments to Table 2 include updating basin pH and
hardness values in response to new data received. Chemical Abstracts Service
Registry Numbers (CASRN) have also been added for each substance in Tables
1 and 3.
In response to comments on §307.6(b)(4), the commission adopts amendments
that include changes to clarify the scope of the protection of terrestrial
wildlife. In response to comments on §307.6(c)(9), the commission adopts
amendments that include changes to specify that a wastewater discharge permit
application will include public notice of a proposed water-effects ratio which
affects an effluent limitation in a permit. In response to comments on §307.6(d)(8)(C),
the commission adopts amendments that include changes which clarify that technically
valid information is used by the agency in deriving numerical criteria when
toxic criteria are not listed in Table 3. Also, throughout this section, the
amendments include appropriate revisions to cite actions by the "agency,"
rather than by the executive director or commission.
In response to comments on §307.6 (Table 3), the commission adopts
amendments that include changes to delete its proposed numerical criteria
for perchlorate and for atrazine. Additionally, the commission adopts several
amendments to Table 3 which were not specifically proposed, but which are
necessary changes for editorial clarity or to resolve contradictions within
the existing rule.
The commission adopts amendments to §307.7, relating to Site-Specific
Uses and Criteria. The adopted amendments to this section include a change
in the recreational indicators to
E. coli
and enterococcus.
E. coli
and enterococcus
have been identified as being more indicative of assessing risk of illness
due to ingestion of water. The commission adopts amendments which retains
fecal coliform as an indicator for noncontact recreational waters. Additionally,
the commission adopts amendments which include changes to clarify the units
of measurement in indicator bacteria tests. In response to comments on §307.7(b)(1),
the commission has deleted the proposal to subcategorize contact recreation
into general and high uses. Additionally, paragraph (1) has been changed to
adopt single sample maximums for all three indicator bacteria and to clarify
the manner in which compliance with these standards will be evaluated.
In response to comments, the commission adopts amendments to §307.7(b)(1)(B)(i)
with changes from the proposal to refer to all bodies of saltwater rather
than to tidal streams and rivers. Also in response to comments, the commission
adopts amendments to §307.7(b)(1)(D) with changes from the proposed language
referring to local swimming advisory programs.
The commission adopts amendments to Table 5, concerning critical low-flow
values for dissolved oxygen for the eastern and southern Texas ecoregions.
These amendments clarify how dissolved oxygen criteria for East Texas streams
are applied to all water bodies, including segments, at lower flow ranges,
and how the critical low-flow values can be adjusted by relating site-specific
dissolved oxygen concentrations with other stream characteristics. Throughout §307.7(b)(3)(A),
the amendments include appropriate revisions to cite actions by the "agency,"
rather than by the commission.
The commission adopts amendments to §307.7(b)(5) which specify wetland
water quality functions and seagrass propagation as uses to be maintained
and protected.
The commission adopts amendments to §307.8, Application of Standards,
to clarify the stream flow conditions where acute toxic criteria apply. The
adopted rule specifies that acute toxic criteria apply at stream flows above
1/4 of 7Q2. The adopted amendments to §307.8(b)(5) describe the context
of mixing zones specified in permits issued by state and federal agencies.
In response to comments, the adopted amendments to paragraph (5) include changes
to better reference the agencies which issue the permits.
The commission adopts §307.8(e), relating to storm water discharges,
to specify that pollutants in storm water shall not impair existing or designated
uses. This subsection includes new provisions to describe how the quality
of storm water discharges are controlled and how the evaluation of instream
monitoring data occurs. In response to comments, the adopted amendments to
this subsection include changes to the title of the subsection and references
to "pollution" rather than to "pollutants." The commission has deleted its
proposal to describe when specific numerical criteria are not applicable due
to short-term effects of storm water.
The commission adopts amendments to §307.9, Determination of Standards
Attainment. The amendments to §307.9(a) include updating references to
guidance documents which the agency considers when assessing standards attainment.
In response to comments, the adopted amendments to §307.9(a) include
changes to the title of the subsection. Also, in this subsection and in the
other subsections of §307.9, references to particular guidance documents
have been changed to either the "latest version" or the "latest approved version,"
as appropriate. The remarks in §307.9 alluding to various guidance documents
and other reference materials are included to inform those using these rules
of some of the resources that may be consulted in designing or reviewing studies
and of data to assess standards attainment. They are advisory and not exclusive.
Standards attainment is determined by the executive director's staff and by
the commission on a case-by-case basis.
The commission adopts amendments to §307.9(b) to update procedures
for approval by the agency of sampling locations and for consideration of
representativeness of samples. Adopted amendments to §307.9(b) include
changes to delete the proposed title of "Sampling locations."
The commission adopts amendments to §307.9(c) and (d) to update the
procedures for the collection, preservation, and analysis of water samples--for
assessing instream standards compliance. These amendments provide for enhanced
consistency and quality assurance in reporting.
The commission adopts amendments to §307.9(e) to update the manner
in which the number and periodicity of water samples is evaluated. In response
to comments, the commission adopts amendments that include changes from the
proposal. These adopted changes from the proposal include correction of the
standards attainment method for chloride, sulfate, and TDS. Also, as an addition
to the proposal, the adopted amendments address how single sample maximums
are assessed for the attainment of bacteria criteria. Finally, the commission
adopts changes to the proposal in §307.9(e)(6)(B) to clarify how minimum
dissolved oxygen values are assessed from single sample measurements.
The commission adopts new provisions in §307.9(f) for measuring biological
integrity which is assessed by sampling of aquatic organisms. In response
to comments, the adopted provision includes changes to refer to sampling of
the aquatic community, rather than sampling of the presence and abundance
of aquatic organisms.
The commission adopts new provisions in §307.9(g) which address how
attainment of narrative criteria in the water quality standards will be assessed.
Throughout §307.9, the adoption of the amendments include appropriate
revisions to cite actions by the "agency," rather than by the commission or
executive director.
Adopted changes to §307.10, Appendices A - E, include changes in Appendix
A to aquatic life uses for the lower Pease River (new segment 0230) from high
to intermediate, the upper arm of Sam Rayburn reservoir (new segment 0615)
from high to intermediate, and the Nueces River Tidal (segment 2101) from
exceptional to high in Appendix A. These adopted changes are based on the
results of use attainability analyses that have been performed. Adopted changes
in Appendix A also include (1) the creation of two new segments (1256--Brazos
River/Lake Brazos and 1257--Brazos River Below Whitney Lake) from existing
segment 1242 which has been renamed to Brazos River Above Navasota River,
and (2) the creation of segment 1802--Guadalupe River Below San Antonio River
from existing segment 1803--Guadalupe River Below San Marcos River to account
for different hydrological conditions and dissolved minerals (TDS, chlorides,
and sulfates) gradients and different ambient concentrations. Another new
segment, segment 0502--Sabine River Above Tidal, has been created from the
upper portion of segment 0501--Sabine River Tidal and the lower portion of
segment 0503--Sabine River Below Toledo Bend Reservoir, which has been renamed
Sabine River Above Cagey Creek, to account for different hydrological conditions.
Dissolved minerals criteria revisions are adopted for 108 segments in Appendix
A based on new calculations using updated information. The following segments
have had one or more of the dissolved minerals (chloride, sulfate and TDS)
revised: 0105, 0228, 0229, 0401, 0408, 0409, 0503, 0504, 0505, 0507, 0512,
0602, 0603, 0604, 0605, 0606, 0609, 0610, 0611, 0612, 0613, 0818, 0819, 0820,
0838, 0902, 1002, 1003, 1004, 1008, 1009, 1010, 1011, 1012, 1015, 1016, 1108,
1212, 1217, 1221, 1226, 1229, 1233, 1240, 1242, 1243, 1244, 1246, 1247, 1248,
1249, 1250, 1251, 1252, 1255, 1302, 1402, 1403, 1404, 1405, 1406, 1407, 1408,
1409, 1414, 1415, 1416, 1427, 1428, 1429, 1430, 1432, 1434, 1502, 1602, 1604,
1605, 1803, 1804, 1805, 1806, 1809, 1811, 1812, 1813, 1814, 1815, 1816, 1817,
1818, 1905, 1908, 1911, 1912, 1913, 2004, 2110, 2111, 2112, 2113, 2114, 2115,
2303, 2309, 2310, 2312, and 2313. Other adopted changes to Appendix A include
the addition of the aquifer protection use to 14 existing segments (1243--Salado
Creek, 1244--Brushy Creek, 1248--San Gabriel/North Fork San Gabriel River,
1249--Lake Georgetown, 1250--South Fork San Gabriel River, 1251--North Fork
San Gabriel River, 1804--Guadalupe River Below Comal River, 1806--Guadalupe
River Above Canyon Lake, 1809--Lower Blanco River, 1810--Plum Creek, 1811--Comal
River, 1814--Upper San Marcos River, 1815--Cypress Creek, and 1903--Medina
River Below Medina Diversion Lake). The protection of these segments is included
in the Chapter 213 Edwards Aquifer rules and noted in Appendix A. The pH range
for segment 0507--Lake Tawankoni has been revised as a result of additional
data. Adopted new indicator bacteria and criteria for recreational uses are
also included in Appendix A.
Adopted changes to Appendix B include a recalculation of critical-condition
flows to incorporate more recent instream flow data.
Appendix C adopted changes include descriptions for new segments, and revised
descriptions for those segments affected by the creation of the new segments
in Appendix A. Segment boundary revisions are also adopted for segments 0608--Village
Creek, 0823--Lewisville Lake, 0839--Elm Fork Trinity River Below Ray Roberts
Lake, 1013--Buffalo Bayou Tidal, 1107 and 1108--Chocolate Bayou Tidal and
Above Tidal, 1245--Oyster Creek, and 2003 and 2004--Aransas River Tidal and
Above Tidal. Other segment description revisions are adopted to clarify or
to correct clerical errors in existing descriptions of segments found in Appendix
A.
Adopted changes to Appendix D include the addition of 100 sites with designated
aquatic life uses and dissolved oxygen criteria. The water bodies are tributaries
within the listed segment numbers as follows: 0202, Bois d'Arc Creek; 0202,
Pine Creek, 0203, Big Mineral Creek; 0203, Little Mineral Creek; 0303, Morrison
Branch; 0402, Hughes Creek; 0404, Dry Creek; 0404, Sparks Branch; 0404, Tankersley
Creek; 0404, Unnamed tributary of Okry Creek; 0407, Beach Creek; 0503, Caney
Creek; 0505, Little Rabbit Creek; 0505, Rocky Creek; 0505, Wall Branch; 0506,
Giladon Creek; 0506, Unnamed tributary of Grand Saline Creek; 0506, Unnamed
tributary of Sabine River (Ninemile Creek); 0506, Wiggins Creek; 0510, Adaway
Creek; 0510, Mill Creek; 0513, Trout Creek; 0604, Caddo Creek; 0604, Cedar
Creek; 0604, Graham Creek; 0604, Unnamed tributary of Caddo Creek; 0605, Little
Duncan Branch; 0606, Prairie Creek; 0607, Boggy Creek; 0607, Cotton Creek;
0610, Ayish Bayou; 0611, Henshaw Creek; 0701, Green Pond Gully; 0701, Mayhan
Gully; 0704, Willow Marsh Bayou; 0802, Choates Creek; 0802, Long King Creek;
0803, Harmon Creek; 0803, Parker Creek; 0803, Turkey Creek; 0804, Box Creek;
0804, Mims Creek; 0815, Waxahachie Creek; 0818, One Mile Creek; 0827, Cottonwood
Creek; 0827, White Rock Creek; 0836, Pin Oak Creek; 1001, Gum Gully; 1001,
Jackson Bayou; 1001, Rickett Creek; 1002, Tarkington Bayou; 1004, East Fork
White Oak Creek; 1004, Unnamed tributary; 1004, West Fork White Oak Creek;
1008, Mill Creek; 1008, Panther Branch (two reaches); 1009, Dry Creek (two
reaches); 1009, Dry Gully (two reaches); 1012, Robinson Creek; 1012, Town
Creek; 1014, Buffalo Bayou; 1014, Horsepen Creek; 1014, Langham Creek, 1014,
South Mayde Creek; 1014, Turkey Creek; 1101, Magnolia Creek; 1102, Marys Creek/North
Fork Marys Creek; 1105, Flores Bayou; 1202, Beason Creek; 1202, Unnamed oxbow
slough; 1206, Kickapoo Creek; 1206, Rock Creek; 1206, Unnamed Tributary of
Rock Creek; 1209, Wickson Creek; 1221, Indian Creek; 1221, Pecan Creek; 1230,
Palo Pinto Creek; 1242, Thompson Creek; 1246, Comanche Springs Spring Brook;
1246, Harris Creek; 1305, Hardeman Slough; 1402, Allen Creek; 1402, Buckners
Creek; 1402, Cummins Creek; 1404, Hamilton Creek; 1412, Deep Creek; 1412,
North Fork Champion Creek; 1418, Hord Creek; 1434, Cedar Creek; 1434, Gazley
Creek; 1602, Big Brushy Creek; 1604, East Mustang Creek; 1605, West Navidad
River; 1810, Town Branch; 2201, Perennial drainage ditches; 2202, Perennial
drainage ditches; 2422, Anahuac Ditch; 2432, Mustang Bayou; 2491, Perennial
drainage ditches; and 2494, Perennial drainage ditches. Other adopted changes
in Appendix D include a revision of the site description for Wards Creek (tributary
to segment 0505), an addition of a seasonal dissolved oxygen criterion and
site-specific flow for Rabbit Creek (tributary to segment 0505), a revision
of dissolved oxygen criteria from 3.0 mg/L to 5.0 mg/L for Alto Branch and
Larisson Creek in segment 0604, a revision of the site description for Mud
Creek in segment 0611 which extends the high aquatic life use designation
upstream to the confluence of Prairie Creek, a revision from 4.0 mg/L to 3.0
mg/L of the dissolved oxygen criterion for Jefferson County canals in segment
0702, and clarification of the site descriptions for Bear Creek, South Mayde
Creek, Horsepen Creek, and Mason Creek in segment 1014. Aquatic life use for
the portion of Brushy Creek upstream of the segment 1244--Brushy Creek boundary
has been revised from intermediate to high based on a recent receiving water
assessment using current commission protocols for field collections.
Adopted changes to Appendix E include the addition of site-specific toxic
criteria for 20 sites. The sites and the affected toxic criteria are: Dixon
Creek in segment 0101, selenium; Welsh Reservoir in segment 0404, aluminum;
segment 0501 in Orange County, copper; segment 0505, from SH 149 in Gregg
County downstream to the confluence of Brandy Branch, copper; segments 1001,
1005 (upper reach), 1006, 1007, 1013, and 2427, copper; segment 1005 (lower
reach), copper; Tucker Bayou in segment 1006, copper; Greens Bayou tidal in
segment 1006, copper; segment 1201 and tidal tributaries, copper; segment
1236, aluminum; Lake Creek Reservoir in segment 1242, copper; Linneville Bayou
in segment 1304, selenium; Red Draw Reservoir in segment 1412, selenium; Kinney
Bayou tidal and Jewel Fulton Canal tidal in segment 2481, copper and zinc;
and a portion of segment 2484, selenium. Criteria in Appendix E have been
recalculated to incorporate EPA conversion factors for metals.
The adopted changes in Appendices A - E were made to incorporate results
of numerous studies, water quality monitoring activities and sampling assessments
on individual water bodies conducted by the commission, river authorities,
and in some cases, individual permittees.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the rulemaking in light of the regulatory analysis
requirements of Texas Government Code, §2001.0225, and determined that
the amended rules may meet the definition of a major environmental rule as
defined in that statute. "Major environmental rule" means a rule the specific
intent of which is to protect the environment or reduce risks to human health
from environmental exposure and that 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. The adopted amendments to Chapter 307 will require some cities and
may require certain agricultural and industrial wastewater dischargers to
change or employ new treatment methods or techniques in order to comply with
the adopted standards. These changes or methods may range from developing
new techniques or changing best management practices to renovating, expanding,
or building an entirely new treatment facility. The adopted rules are intended
to protect the environment or reduce risks to human health and safety from
environmental exposure and may have adverse effects on certain wastewater
dischargers which could be considered a sector of the economy. Although the
amended rules may meet the definition of a major environmental rule as defined
in the Texas Government Code, the adopted rules do not meet any of the four
applicability requirements listed in §2001.0225(a) which states that
this section applies only to a major environmental rule, the result of which
is to: exceed a standard set by federal law, unless the rule is specifically
required by state law; exceed an express requirement of state law, unless
the rule is specifically required by federal law; exceed a requirement of
a delegation agreement or contract between the state and an agency or representative
of the federal government to implement a state and federal program; or adopt
a rule solely under the general powers of the agency instead of under a specific
state law.
Specifically, the standards and requirements within these rules were developed
in order to conform to the CWA and the TWC. The adopted amendments do not
exceed a standard set by federal law, exceed an express requirement of state
law, nor exceed a requirement of a delegation agreement. The amendments were
not developed solely under the general powers of the agency but were specifically
developed to comply with the directive of the TWC, §26.023, and to meet
water quality standards required to be established under federal and state
law. The standards are adopted under authority of the TWC, which authorizes
and requires the commission to set water quality standards by rule. The TWC
directs the commission to consider the existence and effects of nonpoint source
pollution, toxic materials, and nutrient loading in developing water quality
standards.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a takings impact assessment for these rules
pursuant to Texas Government Code, §2007.043. The following is a summary
of that assessment. The Texas Surface Water Quality Standards (30 TAC Chapter
307) establish instream water quality standards for Texas streams, rivers,
lakes, estuaries, and other waterbodies such as wetlands. The commission is
required to establish water quality standards in TWC, §26.023. The federal
CWA requires states to publicly review and revise the state's surface water
quality standards every three years. The adopted rules and revisions will
satisfy federal requirements for a triennial review. The adjustments of criteria
for dissolved metals and consideration of new procedures for human health
criteria are needed to incorporate new EPA requirements. These revised criteria
will be more protective of human health and provide a public benefit. The
site-specific standards are needed to incorporate new sampling data and to
establish the appropriate revisions in the rules so that permit issues related
to specific waterbodies may be resolved. Site-specific standards more accurately
describe the ambient quality of the water body. These site-specific standards
also provide more accurate permit requirements that are protective of human
health, in most cases economically affordable, and enhance water quality.
The specific purpose of this action is to satisfy state statute requirements,
TWC, §26.023, and requirements of federal CWA, §303(d), and to more
accurately assess water quality in the state and revise requirements to protect
human health and water quality. The adopted rules substantially advance this
stated purpose by establishing water quality criteria and requirements that
are supported by site-specific studies, federal and state research, and statewide
monitoring and sampling data. Promulgation and enforcement of these rules
will not burden private real property which is the subject of the rules because
the amendments revising the state's surface water quality standards do not
limit or restrict a person's rights in private real property.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The executive director has determined that this rulemaking will affect
an action/authorization identified in the Coastal Coordination Act Implementation
Rules, 31 TAC, §505.11, and has considered applicable goals and policies
of the Texas Coastal Management Plan (CMP) during the rulemaking process.
The commission has prepared a consistency determination for the adopted
rules pursuant to 31 TAC, §505.22 and has found that the rulemaking is
consistent with the applicable CMP goals and policies. The following is a
summary of that determination. The rulemaking is consistent with the CMP goal
of protecting, preserving, restoring and enhancing the diversity, quality,
quantity and functions, and values of coastal natural resources by establishing
standards and criteria for instream water quality for Texas streams, rivers,
lakes, estuaries, and other waterbodies such as wetlands. These adopted water
quality standards and criteria will provide parameters for permitted discharges
that will protect, preserve, restore, and enhance the quality, functions,
and values of coastal natural resources. The rulemaking will also provide
for clearer and more protective conditions for variances that will ensure
sound management of all coastal resources by allowing for compatible economic
development and multiple human uses of the coastal zone. These variance conditions
will allow dischargers an opportunity to examine options for upgrades while
maintaining water quality that will allow for human uses of the coastal waters.
The rulemaking will require wastewater discharge permit applicants to provide
information and monitoring data to the commission so that the commission may
make an informed decision in authorizing the discharge permit. Submission
of such information and data will help ensure that the authorized activities
in the permit comply with all applicable requirements. Thus, the rulemaking
is consistent with the administrative policies of the CMP. The rulemaking
also provides clarity and identifies the circumstances in which the commission
will consider and grant variances from the standards.
The rulemaking considers information gathered through the yearly assessments
of water quality in the commission's Water Quality Inventory to prioritize
those coastal waters for studies and analysis in reviewing and revising the
state's surface water quality standards. The standards are established to
protect designated uses of coastal waters including protection of uses for
recreational purposes and propagation and protection of terrestrial and aquatic
life. The rulemaking is consistent with the CMP's policies for discharges
of municipal and industrial wastewater to coastal waters and how they relate
to specific activities and coastal natural resource areas.
The adopted revisions to §307.2, Description of Standards; §307.3,
Definitions and Abbreviations; §307.4, General Criteria; §307.5,
Antidegradation; §307.6, Toxic Materials; §307.7, Site-specific
Uses and Criteria; §307.8, Application of Standards; and Appendices A
- E, as they pertain to designated tidal segments within the CMP boundary,
will be submitted to the Coastal Coordination Council for recertification.
HEARING AND COMMENTERS
A public hearing was held in Austin, Texas on March 21, 2000 to receive
public comments on the proposed revisions to Chapter 307. TNRCC staff members
were available before and after the hearing to address specific questions
from those who attended the hearing. It was also noted that the comment period
for the proposed revisions would close at 5:00 p.m. on March 31, 2000.
The National Wildlife Federation, Texas Association of Metropolitan Sewerage
Agencies, Texas Chemical Council (TCC), Texas Clean Water Action, Texas Committee
on Natural Resources, Texas Municipal League, and several individuals complimented
the work of the stakeholder workgroup which assisted the agency staff with
the development of the proposed revisions.
The following commenters presented testimony in support of the proposed
revisions which would create Segment 0615 in the Angelina River Basin with
an intermediate aquatic life use designation: AFL-CIO of Texas; Angelina County;
Angelina County Chamber of Commerce; Deep East Texas Development Association;
Donohue Paper Company; Freshwater Anglers Association; City of Huntington;
International Association of Machinists and Aerospace Workers; City of Lufkin;
Lufkin Independent School District; Paper, Allied Chemical, and Energy Workers;
Texas Forestry Association; Texas Forest Landowners Council; and Texas Logging
Council. Six individuals also presented oral testimony in support of this
proposed change.
The following commenters presented oral comments expressing opposition
to the proposed revisions which would create Segment 0615 in the Angelina
River Basin with an intermediate aquatic life use designation: Clean Water
Action of Texas; Lone Star Chapter of Sierra Club; National Wildlife Federation;
Texas Association of Bass Clubs; and Texas Committee on Natural Resources.
Six individuals also presented testimony in opposition to the proposed change.
Some of these commenters also voiced a concern about a proposed change in
the criterion for aluminum and the potential this might have on water quality
of Sam Rayburn reservoir.
The Colorado Municipal Water District expressed some concern about the
proposed criteria for selenium in Red Draw Reservoir, but reserved comment
as to support or opposition.
A representative of Lakeway Parents Concerned about Sewage Spray made comments
expressing support of proposed changes related to aquatic habitat and wetlands.
They were opposed to any changes to the rule which were interpreted as lower
standards with particular concern expressed about proposed changes related
to bacterial indicators.
The National Wildlife Federation, the Texas Committee on Natural Resources,
and Texas Clean Water Action expressed concerns about the proposed revision
related to contact recreation, both the procedure for determination of standards
attainment and the proposed change in indicator organisms.
The TCC presented testimony which expressed support for proposed revisions
related to temporary variances, temporary standards, and inclusion of the
water effects ratio for site-specific conditions with respect to metals criteria.
They expressed concern about the inclusion of human health criteria for several
compounds and recommended that information related to hardness and pH values
be moved from the rule to implementation procedures as guidance. The TCC also
made comments related to specific issues included in the implementation procedures
guidance documents including use of whole effluent toxicity testing, once-through
cooling water discharges, and screening for TDS.
The Texas Committee on Natural Resources expressed opposition to any changes
in standards that represented a lowering of criteria, particularly as it relates
to Sam Rayburn Reservoir, the Nueces River Tidal, and the Pease River. They
and Texas Clean Water Action supported the proposed revisions related to inclusion
of habitat and wetland protection, as well as the listing of seagrass propagation
as a designated use in coastal waters.
The Texas Municipal League and the Texas Association of Metropolitan Sewerage
Agencies registered a concern about the method in the proposed rule to determine
standards attainment and procedures used to establish a screening guidance
document. They also expressed opposition to the inclusion of habitat criteria
in the proposed rule and concern about procedures used for the development
and application of the implementation procedures guidance document, particularly
as it relates to stormwater permitting.
ANALYSIS OF TESTIMONY
In addition to the oral and written testimony presented at the public hearing
summarized in the preceding section, other written comments were received
before the close of the public comment period. The majority of the comments
from individuals were received in the form of cards and form letters or petitions.
These comments are addressed in the discussion which follows. The companies
and organizations which submitted comments are listed along with the appropriate
acronym used in the following discussion with respect to each of their comments.
Companies and organizations that submitted comments included: Department
of Air Force (AF), Angelina County, Angelina County Chamber of Commerce (ACCC),
Angelina & Neches River Railroad Company (A&NR), Aristech, City of
Arlington (Arlington), Arthur Temple College of Forestry at Stephen F. Austin
University (ATCF), City of Austin (Austin), City of Baytown (Baytown), City
of Canyon (Canyon), Canyon Regional Water Authority (CRWA), City of College
Station (CS), Colorado River Municipal Water District (CRMWD), Consultants
in Epidemiology & Occupational Health (CEOH), City of Corpus Christi (Corpus
Christi), Deep East Texas Council of Labor (DETCL), Deep East Texas Development
Association (DETDA), City of Dennison (Dennison), Diamond-Koch (D-Koch), Donohue
Industries (Donohue), Dow Chemical Company (DOW), East Harris County Manufacturers
Association (EHCMA), Eastman Chemical Company (Eastman), Eastman Kodak (EK),
El Paso Public Service Board (El Paso PSB), Environmental Defense Fund (EDF),
EPA, Fairbanks & Associates (F&A), United States Forest Service (USFS),
Freshwater Angler Association (FAA), Friends United for a Safe Environment
(FUSE), Galveston Bay Estuary Program (GBEP), Galveston Bay Foundation (GBF),
Greater Houston Partnership (GHP), Gulf Coast Waste Disposal Authority (GCA),
City of Henderson (Henderson), Houston Chronicle (HC), United States International
Boundary & Water Commission (USIBWC), International Brotherhood of Electrical
Workers (IBEW), City of Jacksonville (Jacksonville), Jones & Carter, Inc.
(J&C), Kerr-McGee Corporation (Kerr), City of Kerrville (Kerrville), Lakeway
Parents Concerned About Sewage Spray (LPCASS), Lloyd, Gosselink, Blevins,
Rochelle, Baldwin, et al (Lloyd Gosslink), Louisiana Pacific Corporation (LP),
Lower Colorado River Authority (LCRA), Lower Neches Valley Authority (LNVA),
City of Lubbock (Lubbock), City of Lufkin (Lufkin), Lufkin/Angelina County
Ecomonic Development Partnership (LACO), Lufkin Coca-Cola Bottling Company
(LCCBC), Lufkin Convention & Visitors Bureau (LCVB), Lufkin Daily News
(LDN), Main Street Lufkin (Lufkin), Martindale Water Supply Corporation (MWSC),
City of Missouri City (Missouri City), Motiva Enterprises LLC (Motiva), City
of Nacogdoches (Nacogdoches), Nacogdoches County Chamber of Commerce (NCCC),
Nacogdoches Economic Development Corporation (NEDC), National Wildlife Federation
(NWF), New Century Energies (NCE), City of North Richland Hills (NRH), Novartis,
City of Odessa (Odessa), Paper, Allied-Industrial Chemical & Energy Workers
(PACE), City of Pearland (Pearland), Perchlorate Study Group (PSG), Photo
Marketing Association International (PMAI), City of Plainview (Plainview),
Port of Corpus Christi Authority (POCCA), Public Interest Council of TNRCC
(PIC), Rhodia, Inc. (Rhodia), Sabine River Authority (SRA), San Antonio Water
System (SAWS), San Marcos River Foundation (SMRF), City of Schertz (Schertz),
City of Sherman (Sherman), Sierra Club Houston Regional Group (SC-Houston),
Sierra Club Lone Star Chapter (SCLS), Solutia, Inc. (Solutia), City of Sulphur
Springs (Sulphur Springs), Tarrant Coalition for Environmental Awareness (TCEA),
City of Temple (Temple), Texas AFL-CIO (TXAFL-CIO), Texas Association of Business &
Chambers of Commerce (TABCC), Texas A & M University--Corpus Christi (TAMU-CC),
Texas Center for Policy Studies (TCPS), Texas Chemical Council (TCC), Texas
Coalition for Environmental Awareness (TCEA), Texas Committee on Natural Resources
(TCONR), Texas Comptroller of Public Accounts (Comptroller), Texas Corn Producers
Board (TCPB), Texas Department of Agriculture (Agriculture), Texas Department
of Economic Development (TDED), Texas Department of Transportation (TXDOT),
Texas Farm Bureau (TFB), Texas Forest Industries Council (TFIC), Texas Forestry
Association (TFA), Texas General Land Office (TGLO), Texas Logging Council
(TLC), Texas Metropolitan Sewerage Agencies (TAMSA), Texas Municipal League
(TML), Texas Parks and Wildlife Department (TPWD), Texas Shrimp Association
(TSA), Texas State Soil and Water Conservation Board (TSSWCB), Texas Utilities/Reliant
Energy/Central & Southwest Services (Utilities), Texas Water Conservation
Association (TWCA), TXU Electric and Gas (TXU), University of Texas Health
Science Center--Houston (UTHSC), University of Texas at Tyler (UT-Tyler),
City of Vernon (Vernon), City of Wichita Falls (WF).
Comments were also received from Senator Phil Gramm, Senator Kay Bailey
Hutchison, Senator Drew Nixon, Congressman Jim Turner, and Representative
Jim McReynolds. Comments were also received from the mayor and city council
members of the City of Lufkin.
GENERAL COMMENTS
A variety of general comments were received which addressed broader or
additional concerns than single sections of the proposed revisions to the
water quality standards.
Several comments pertained to other rules, procedural documents, or water
quality management activities of TNRCC.
UT-Tyler requested that water bodies listed as impaired under the federal
CWA, §303(d), be left on the list until we are certain that the water
is safe.
The commission responds that changes in water quality standards which affect
the list of impaired waters will continue to be subject to a use-attainability
analysis, public comment, and approval by EPA. In addition, the commission
will seek substantial public input on changes to the list of impaired waters.
Lufkin requested that TNRCC continue to monitor the watershed of Sam Rayburn
Reservoir for abuses from out-of-compliance septic systems, wastewater treatment
plants, and other sources of chemical spills.
The commission responds that TNRCC will continue to obtain as much monitoring
in the watershed as available resources will allow, and that such monitoring
will include effluent sampling during inspections and additional measures
of regulatory compliance.
An individual opposed additional regulations, associated fees, and other
regulatory actions which are driving small business people out of business.
The commission acknowledges that care is needed to address any potential
burden that environmental regulations impose on small businesses and other
affected entities. The commission also notes that water-quality goals set
by the standards apply broadly to water bodies in the state, and the revisions
to the water quality standards do not impose specific, direct costs to small
businesses such as additional fees. The potential indirect economic impact
of the proposed standards were evaluated to the extent possible, and these
evaluations were included in the preamble to the proposed revisions.
Several of the comments were recommendations for new additions to the standards.
These recommendations included the development of numerical criteria for nutrients
(TCONR), salinity standards for bays and estuaries (TCONR), toxic criteria
for MTBE (LCRA), a new narrative criterion for assessing the biological conditions
of water bodies (EPA), and adoption of regional indices of biological integrity
for fish (LCRA).
The commission responds that narrative nutrient criteria will be considered
for the next triennial revision of the water quality standards in coordination
with the ongoing development of EPA guidance and requirements. Salinity criteria
and freshwater inflow needs for bays and estuaries remains a broader issue,
which may be considered for future revisions of the water quality standards
in accordance with recommendations from ongoing interagency task forces. Toxic
criteria for MTBE were preliminarily considered for the current standards
revisions, but additional information and federal guidelines are needed before
proposing and adopting criteria for MTBE. The commission will continue to
use 15 micrograms per liter of MTBE for general screening purposes in drinking
water sources. This aesthetic criterion is based on studies which indicate
that MTBE can cause detectable taste and odor in water at concentrations greater
than 15 micrograms per liter. New information will be evaluated and considered
for screening purposes as it becomes available. With respect to assessing
biological conditions, the commission notes that the adopted addition of biological
integrity as a means of assessing standards compliance in §307.9(f) does
establish consideration of biological conditions. The development of regional
indices of biological integrity will be considered in updates of the procedures
for conducting receiving water assessments and related documents.
Several commenters asked that the commission not lower water quality standards
and continue to protect water quality. Thirty-five of these comments were
from individuals who submitted a form letter. The NWF commented that reference
sites for evaluating appropriate standards in individual water bodies did
not adequately reflect background conditions, and that many reference sites
were impacted by human-induced point and nonpoint sources of pollution. One
commenter thanked the commission for controlling pollution.
The commission responds that the adopted revisions include major provisions
which result in more stringent water quality standards, such as most of the
adopted changes to statewide toxic criteria to protect human health criteria.
Most of the other changes in statewide standards are clarifications of existing
provisions or the addition of new provisions which do not decrease the stringency
of the water quality standards. A number of the adopted changes in site-specific
standards in Appendices A, D, and E of §307.10 do establish criteria
which are less stringent. The great majority of these changes use site-specific
information and/or the results of use-attainability analyses. The use-attainability
analyses in these specific instances rebut the conservative presumptions which
apply "across-the-board" until such site-specific information is available.
In order to implement protective statewide presumed standards, such as the
presumed "high aquatic-life use" for perennial steams in §307.4(h)(3),
the standards include reasonable provisions and mechanisms for addressing
water bodies where standards cannot be reasonably attained under relatively
unimpacted conditions. Criteria for particular water bodies are changed only
if sufficient scientifically valid data confirms that the existing site-specific
or presumed standards are inappropriate. With respect to the validity of reference
sites to establish relatively unimpacted background conditions, the commission
will continue to devote substantial resources to establish the best reference
conditions available for use attainability analyses and continue to improve
and clarify sampling procedures and evaluations to assign site-specific standards.
Additional discussion concerning site-specific standards changes is provided
in the response to comments on §307.10.
The NWF expressed concern that key components of the water quality standards
were being moved to the implementation procedures and that because of this,
there would be less public input. TCONR commented that the standards implementation
procedures should be considered as a rule.
The commission responds that the standards implementation procedures contain
a comprehensive level of detail and guidance which is not generally appropriate
for the water quality standards. The commission's view is that the implementation
procedures should be less prescriptive and more flexible than the rules set
forth in Chapter 307. In the concomitant revisions of the standards implementation
procedures, numerous changes are being considered to reduce and avoid inflexibility
in the guidance. Significant opportunity for public input into revisions to
the implementation procedures was provided and will continue to be provided
in the future.
The NWF expressed concern that changes in site-specific standards to reflect
actual aquatic-life uses of less than high quality also involve a corresponding
loss of "Tier 2" antidegradation protection for these water bodies; and this
loss of antidegradation protection was not considered when evaluating the
changes.
TNRCC responds that specifying categories of water bodies for Tier 2 protection
under the antidegradation policy is in accordance with EPA regulation in 40
CFR Part 131, as further explained in the Advanced Notice of Public Rulemaking
in 40 CFR Part 131 (
Federal Register
, July
7, 1998). The commission notes that coupling the applicability of the antidegradation
policy with designating aquatic-life uses in §307.4 and §307.10
ensures that the great majority of the perennial waters in the state are afforded
Tier 2 protection and that a change in the applicability of Tier 2 is determined
through a use-attainability analysis and site-specific standards revision
in §307.10. The commission will continue to evaluate the applicability
of Tier 2 of the antidegradation policy, in order to ensure that appropriate
water bodies are included. Additional discussion is provided in responses
to comments on §307.10--Appendix A.
Several commenters, in addition to their own comments, indicated their
support of other organizations' comments. Six commenters (Cities of Odessa,
Pearland, Canyon, Jacksonville, Kerrville, and North Richland Hills) supported
comments made by TML and TAMSA. Two commenters (SAWS and Vernon) supported
the technical comments of TAMSA. Sulphur Springs supported the TML's comments.
DOW supported the comments of the TCC. TCEA echoed the comments made by TCONR.
SECTION 307.2
GCA, EHCMA, GHP, DOW, the Utilities, EPA, TCC, and Solutia commented that
they support the proposed revisions to §307.2 since it allows temporary
variances and temporary standards. Some of these commenters described the
processes as a way to resolve permitting problems in limited, problematic
situations.
The commission agrees with these commenters.
The EPA mentioned that it will continue to review and approve variances
and variance extensions.
The commission acknowledges this comment and notes that EPA and the commission
have a formal memorandum of agreement which describes this oversight requirement,
as part of the existing TPDES permitting program. This agreement is described
in §307.2(d)(5)(C).
The SC-Houston recommended that the commission not allow extensions to
variances and indicates opposition to the proposal for temporary standards,
since temporary standards encourage the commission to lower standards for
industry or large polluters.
No change to the rules has been made based on these comments, because temporary
variances are needed to avoid unfair imposition of final effluent limits in
a permit when evidence exists that the current standard is inappropriate.
The allowance for a variance, when justified, is particularly important when
presumed standards are stringent. An example is the presumed standard of high
quality aquatic life for perennial, unclassified streams. In those cases where
this standard can't be attained even under relatively unimpacted conditions,
it would be unfair to use this presumed standard to set a final permit limit
that might be irrevocable under the antibacksliding provisions of the federal
CWA. Extensions to variances are sometimes necessary to allow time for the
commission to adopt site-specific revisions to the surface water quality standards.
Typically, this is done on a triennial basis requiring a substantial investment
of time and commission resources. Therefore, extensions to variances are needed
when a permittee has conducted a study with due diligence and the results
support a less stringent standard. The results supporting the less stringent
standard cannot be put into effect until completion of the revisions to the
water quality standards. The commission is unaware of any administrative procedures
it could use as an alternative to accomplish the same result of authorizing
discharges while a site-specific standard is being considered and formally
proposed. The provision allowing for temporary standards is consistent with
federal water quality regulations. The commission anticipates situations where
the provision may be a necessary administrative process to resolve complex
permitting issues. For instance, technology may not have advanced to the point
where any discharger into a water body can practically meet a standard. However,
at regular intervals, the ability to attain the standard must be reviewed
and renewed. This affords all interested parties the ability to participate
in the process to renew or remove any temporary standard. The commission agrees
that extensions to variances should be provided only in cases where justified
and where needed to allow time for revisions of the standards.
The SC-Houston recommended that §307.2(d)(5)(E) be revised to indicate
that a compliance schedule "must" be specified in a successive permit.
The commission responds that the option to disallow an additional compliance
period is needed. As proposed, a compliance schedule will not be allowed when
the permittee has not complied with the permit terms relating to the temporary
variance.
The SC-Houston recommended that the commission, rather than the executive
director, make the decision on a temporary variance. In this manner, the decision
is subject to a more open forum.
The commission agrees with the commenter and notes that the proposed rule,
as well as the existing practice of the commission is consistent with the
commenter's recommendation. This requirement in §307.2(d)(5) states that
"...the commission may allow a temporary variance to the water quality standards
in a permit for a discharge of wastewater."
The Utilities recommended that proposed §307.2(d)(5)(B) be modified
to clarify which public notices will include the proposal of a temporary variance.
The Utilities noted that some variance requests will occur after an application
is administratively complete and the "Notice of Application and Preliminary
Decision" public notice is the most appropriate time for soliciting comments
on a proposed variance.
The commission agrees with the general intent of the commenter. However,
the specific term "Notice of Application and Preliminary Decision" may not
be applicable to all pending and future permit actions, so the proposed language
is slightly changed to indicate that a variance request will be included in
a public notice during the permit application process.
The GBF and NWF recommended that §307.2(d)(5) be modified to strengthen
the proposed language to indicate that a variance request must be justified
based upon scientific information.
The commission agrees with the commenters and has made the requested change.
The NWF recommended that §307.2(d)(5)(A) be modified to clearly preclude
a temporary variance in a permit which would be amended to allow for an expansion
and further loading in a discharge to which the variance pertains. NWF suggested
it is unclear what the term "existing" discharge means.
The commission responds that the term "existing discharger" refers to a
discharger that is discharging at the time of a permitting action. This could
include a discharger seeking an expansion in its pollutant discharge authorization.
It is atypical for the commission to process or to approve a variance that
would allow an increase in loading in the interim while the appropriate water
quality standard is under investigation. Granting such a variance places a
higher risk both on existing water quality, which might deteriorate relative
to the existing standard, and on the discharger, who will construct facilities
that may or may not be able to meet the eventual water quality goal. However,
the commission disagrees that "existing discharger" should be narrowed to
include only existing authorized loadings. Also, a measure of flexibility
is appropriate. For example, there may be a need to address expansion caused
by municipal growth, where there is a preliminary determination that the existing
standard is not appropriate. Therefore, the commission retains the flexibility
to address specific situations. Due to the potential risk to water quality,
this type of case-by-case determination will necessarily be used only in rare
instances where other administrative or technical remedies are not feasible
and where adverse consequences to water quality are not anticipated.
The TML/TMSA recommended that §307.2(d)(5)(C) be modified to strike
the wording that indicates the EPA must approve temporary variances.
The commission responds that EPA approval remains in the adopted rule.
EPA and the commission have a formal memorandum of agreement which describes
this oversight requirement, as part of the existing TPDES permitting program.
The NWF and TPWD recommended that §307.2(d)(5)(D) be modified to specify
that any permit which is the subject of a variance must protect existing uses
under Tier 1 of the antidegradation provisions.
The commission notes that such protection is afforded under its existing
and proposed antidegradation policy. However, the commission agrees that further
clarification of its intent is needed and has modified the language to incorporate
the request.
The NWF recommended that §307.2(d)(5)(D) be modified to specify that
a permit containing a temporary variance not be administratively continued
when a permittee has failed to comply with the variance provisions of an expired
permit.
The commission must comply with the Texas Government Code, §2001.054(b),
of which prevents a permit from expiring if a permittee makes timely and sufficient
application to renew a permit or for a new permit for an activity of a continuing
nature. Commission rules §305.63(a)(4) and §305.65(a)(4) reflect
this statutory requirement. These provisions could result in a permittee's
authorization to discharge, under a permit containing a variance, to continue
in effect until a final decision is made on the renewal application. The commission
plans to take action to avoid or minimize this type of administrative continuance
when a permittee has failed to comply with the terms of its variance.
Under §305.63 and §305.65, a permittee must apply to renew its
permit at least 180 days before the permit's expiration date. When renewal
applications are received, it has been the agency's historical practice to
promptly process the applications. The agency plans to continue this practice.
The commission views the failure to adhere to the variance requirements as
a serious matter, considering the potential impact of a discharge which could
degrade existing water quality in receiving waters. The commission believes
the response to this situation should be to promptly process the application
to renew the permit with the effluent limitations based on the existing standard
and to also consider enforcement action against the discharger due to noncompliance
with the variance permit requirements.
The commission amended this section to revise the variance procedures in
a manner that complements the assumption of National Pollutant Discharge Elimination
System (NPDES). The terms and procedures for variances changed slightly with
NPDES delegation. The commission no longer sets final effluent limitations
into a permit with a variance, but the rule has been amended to specify that
in the subsequent permit, a permittee will not receive a compliance period
and an extension of interim effluent limitations when the requirements of
the variance are unfulfilled.
The NWF recommended that §307.2(d)(5)(E) be clarified to describe
that a variance extension must be approved only when a study supporting the
request has been completed by the permittee and the commission agrees the
study shows the standards change is justified. TPWD commented similarly and
stated that language is needed to make it clear that the extension of a variance
requires commission approval.
The commission agrees with these comments and notes that both provisions
currently exist and are retained in the adopted amendments. The commission
has modified the adopted language to make it clear that the extensions are
approved by the commission and that the basis of the approval is a completed
study supporting the standards change.
The EPA recommended that §307.2(e) and (g) be revised to include up-to-date
references to the standards implementation procedures.
The commission agrees and the appropriate wording changes to both subsections
have been made, as requested by the commenter.
The NWF recommended that the commission revise proposed §307.2(f)
to specify that interim effluent limitations are not allowable in situations
where a permittee is requesting an increase in loading or discharge volume.
The language referred to in this subsection was not proposed for revision,
and the existing language is reasonable and appropriate. The existing rule
identifies that interim discharge limits
may
be established upon permit amendment or permit renewal. The commission establishes
interim effluent limitations only when necessary to allow time for construction
of new, more stringent treatment which might be necessary when a new standard
or a revised standard is imposed by commission requirements. It does not allow
interim effluent limitations when a permit amendment for an expansion is the
sole purpose for the construction of new treatment. However, the existing
rule language addresses situations where the following two situations occur
at the same time: (1) a permittee must expand its treatment capability, for
instance due to population growth, and (2) the commission must implement a
new, more stringent standard requiring additional treatment capability. For
these reasons, the commission has not revised the rule based upon this comment.
The NWF suggested that the commission revise proposed §307.2(f) to
specify that the "executive director and the commission, as appropriate" be
named as decision makers who may establish interim effluent limitations. Austin
suggested that the term "executive director" be defined in the rule.
In response, the subsection has been revised to note that either the executive
director or the commission will act to establish interim effluent limitations.
The term "executive director" has not been added to the definitions, since
this term is already defined in Chapter 3 of this title (relating to Definitions).
There, all general terms used throughout commission rules are established.
Austin recommended that proposed §307.2(g) specify that a temporary
standard has certain geographical boundaries.
The rule as proposed does describe this mechanism as applying to particular
water bodies. However, to better clarify how the mechanism will be implemented,
the commission has revised the subsection to indicate that specific reasons
and additional procedures for justifying a temporary standard are provided
in the standards implementation procedures.
The SC-Houston requested that proposed §307.2(g) define what is meant
by "reasonably attained."
The commission responds by removing the word "reasonably." The question
of whether a standard under question can be attained is already described
in detail in federal regulations cited in this subsection of the rule. Also,
to better clarify how the mechanism will be implemented, the commission has
revised the subsection to indicate that specific reasons and additional procedures
for justifying a temporary standard are provided in the standards implementation
procedures.
SECTION 307.3
Numerous comments were received on proposed changes to the definitions
in §307.3.
With respect to the definition of "attainable use" in §307.3(3), Austin
and POCCA requested additional guidance and procedures to be used to determine
and review attainable use. SC-Houston asked that the term "reasonably achieved,"
which is used in the definition, also be defined. TML/TAMSA suggested adding
an additional clause to the definition to indicate that the attainable use
is " ... the designated use contained in the standards unless it is determined
that attaining the designated use is not feasible because of the factors identified
in 40 CFR Section 131.10(g)."
The commission responds that guidance and procedures to determine and review
attainable use, including how to determine what can be "reasonably achieved,"
are described in the standards implementation procedure and related documents.
The wording of the adopted definition has been changed in order to note that
the attainable use may not be equivalent to the designated, existing, or presumed
use.
DOW, Eastman, TML/TAMSA, and TCC commented on the proposed revision of
the definition of "best management practices" (BMPs) in §307.3(a)(6).
GHP and TCC requested that examples of BMPs be removed. Novartis specifically
requested examples of agricultural BMPs. Eastman and TACC stated that BMPs
are site-specific, and Sulphur Springs stated that BMPs should be based on
demonstrated measures. SC-Houston wanted "maximum extent possible" to be defined.
GHP, TCC, and Utilities requested the removal of "maximum extent possible"
from the definition of best management practices.
In response, the commission concurs that BMPs are site-specific and are
based on industry standards. Which BMPs are used by the discharger are normally
at the discretion of the discharger, as long as the BMP achieves the standard.
If a BMP is proven ineffective, alternatives or additional BMPs may be recommended
by the commission. BMPs are a preventative measure and do not necessarily
require a demonstrated corrective need. The term "maximum extent practicable"
is retained, since it is intended to provide for flexibility and effectiveness
of BMPs and to note that BMPs should be reasonably attained. The definition
of best management practices is adopted as proposed.
For the definition of "bioconcentration" factor in §307.3(a)(8), EPA
requested that the definition state that the mechanism for uptake in bioconcentration
is only through water.
In response, the commission adopts a definition which indicates that a
bioconcentration factor applies to a chemical "... which is absorbed directly
from the water."
Austin requested the term "biological integrity" in §307.3(a)(9) be
related to the species composition, diversity, and functional organization
of a community of organisms that would occur if a water body were relatively
unaffected by human activities. TPWD requested that biological integrity be
related to "that of the natural habitat of the region."
In order to address these requests, the phrase "contributes to overall
stability and ecological vitality" was replaced by "in an environment relatively
unaffected by pollution" in the adopted definition of biological integrity.
Concerning the definition of "chronic toxicity" in §307.3(a)(10),
EPA recommended that the last sentence be modified to more explicitly indicate
that seven or more days is applicable to "some chronic toxicity tests" rather
than to "chronic toxicity."
In response, the commission has changed the definition of chronic toxicity
as requested, since toxicity tests are the primary means of measuring chronic
toxicity.
The EPA recommended using 7Q10 or 4Q3 streamflow in defining "critical
condition" in §307.3(a)(15).
The commission responds that the critical condition for many of the numerical
criteria is specified in §307.8 to be 7Q2 streamflows (which are low
flow conditions that recur for a seven-day period once every two years instead
of once every ten). A 7Q2 critical condition is appropriate for streams in
Texas for several reasons: (1) the Texas Surface Water Quality Standards apply
relatively stringent criteria for toxicants, dissolved oxygen, and other substances
to any perennial stream, and the conservative assumptions of these criteria
mitigate exceedances at low stream flows with a recurrence at two-year intervals;
(2) assumptions for dissolved-oxygen models are also relatively stringent;
(3) procedures to calculate toxic effluent limits are also stringent--particularly
with respect to incorporating effluent variability; (4) major discharges in
Texas are required to pass 24-hour biomonitoring tests with undiluted effluent;
(5) streams and rivers where major discharges occur are typically effluent
dominated during average dry-weather flows, and even using 7Q2 as the critical
condition, major discharges in Texas are frequently required to achieve highly
advanced treatment for biochemical oxygen demanding substances and for ammonia,
and to pass effluent biomonitoring for chronic toxicity with little or no
instream dilution allowed; and (6) intermittent streams are defined in the
water quality standards as streams having a 7Q2 flow of less than 0.1 cfs,
and less stringent criteria for dissolved oxygen and toxicants apply to intermittent
streams; logically, the frequency at which numerical criteria may be exceeded
should be the same as the frequency of near-zero flows which are used to define
when streams are intermittent.
The TPWD recommended modification of the definitions of "
E. coli
," "Enterocci," and "fecal coliform" in §307.3(a)(19),
(21), and (24) to note that these bacteria indicate "the potential presence
of pathogens" rather than "potential pathogens."
The commission agrees that the suggested phrase is more accurate, and this
change has been made in the adopted definitions of
E. coli
, Enterococci, and fecal coliform.
The EPA, NWF, SC-Houston, TCONR, and TPWD commented on the definition of
"existing use" in §307.3(23). Commenters were particularly concerned
that the definition as proposed did not clearly indicate that existing uses
should be those uses which exist on or after November 28, l975 as specified
in EPA regulations.
The adopted definition of "existing use" has been reworded as suggested
by these comments.
Numerous comments were received concerning the definitions of "general
recreation" in §307.3(a)(26) and "high-use recreation" in §307.3(a)(29).
The NWF, TCPS, and TPWD, Austin, and EPA expressed concern about the imposition
these categories for contact recreation, and Austin, EPA, NWF, and TPWD expressed
concern about how these new categories of recreational suitability would be
determined. The Utilities supported the new recreational use categories.
In response, the commission notes that the approach of measuring recreational
indicators only during periods when recreation is physically and hydrologically
suitable will continue to be developed for a future revision of the water
quality standards. However, the definitions of general and high-use recreation
have been deleted from the adopted rule for this triennial revision. A more
detailed presentation of comments and the commission's responses on recreational
uses and indicators is provided in the following discussion concerning §307.7(b)(1).
For the proposed definition of "incidental fishery" in §307.3(a)(30),
GHP and TCC requested that evidence of an existing or potential fishery be
demonstrated as a requirement of an incidental fishery. Utilities and Solutia
specified that evidence of a commercial or recreational fishery be a requirement
for incidental fishery. DOW suggested that the definition of incidental fishery
should be applied only to waters which are open to the public, and that ditches
and waste streams on private land are not meant for recreational or commercial
fishing.
The commission responds that the existence of an aquatic life "use" is
a reasonable determination of water bodies that constitute an incidental fishery,
and this approach provides a practical means of assessing when criteria to
protect an intermittent fishery should be applied. Streams which are large
enough to have clear evidence of recreational fishery would be subject to
the more stringent criteria that apply to a sustainable fishery. Because of
the mobility of fish, it is difficult to protect fish tissue from contamination
in waters with public access without protecting an incidental fishery which
doesn't have public access. Therefore, the definition of incidental fishery
is adopted as proposed.
The SC-Houston opposed inclusion of the proposed definition of "intermittent
with perennial pools" in §307.3(33). TML/TAMSA requested that a quantitative
basis for the determination that perennial or persistent pools are present.
The commission responds that this definition was proposed in the standards
because more stringent criteria are applicable to intermittent streams with
perennial pools that create an aquatic life use. The commission does note
that further evaluation is needed of procedures to better define perennial
pools. However, this evaluation is not sufficiently well defined to add to
the water quality standards at this time, and the definition of intermittent
with perennial pools is adopted as proposed.
In the proposed revisions to the definition of "mixing zone" in §307.3(37),
EPA asked that the definition specify that chronic toxic criteria may be exceeded
in the mixing zone but not beyond it. The NWF commented that the definition
creates ambiguity about which criteria are not applicable in mixing zones.
The commission agrees with the comments, and the adopted definition of
mixing zone defines the applicability of chronic toxic criteria and also includes
a more specific reference to the section of the standards where standards
applicability in mixing zones is described.
Austin supported the proposed removal of the definition of "no significant
aquatic life use" in §307.3.
The commission responds that the term "no significant aquatic life use"
is removed, and that the corresponding proposed definition of "significant
aquatic life use" will remain in the adopted rule.
Concerning the definitions of "pollutant" in §307.3(42) and "storm
water discharge" in §307.3(58), there were a multitude of comments opposing
the exclusion of agricultural runoff in the definitions. Commenters opposed
to the exclusion of agricultural runoff from the definition of pollutant included
Austin, CS, Corpus, Dennison, EPA, Henderson, NWF, SC-Houston, Sulphur Springs,
Plainview, Missouri City, and WF. CS, Corpus, Dennison, Sulphur Springs, and
WF opposed the exclusion of agriculture from the definition of storm water
discharge. The majority of the comment letters indicated that the exclusion
of agriculture from these definitions would result in an unfair burden to
municipalities, particularly for water bodies listed as impaired, to control
nonpoint source pollution and reduce loading. TCEA and TCONR also suggested
that the definition of pollutant was too narrow and provided broader, more
inclusive definitions. POCCA suggested excluding decant water from dredged
material placement areas in the definition of pollutant. NWF commented that
the definition of storm water discharge should be excluded from the standards.
The commission responds that the proposed definition of pollutant is consistent
with the definition in TWC, §26.001, which includes the agricultural
runoff exclusion. However, that definition is not appropriate for the term
as it is used in the water quality standards. The term pollutant was not defined
in the TWC until the agency assumed the NPDES program on September 14, 1998,
and "pollutant" has not been defined in this chapter. As used in Chapter 307,
"pollutant" has never excluded agricultural runoff.
The commission agrees with the commenters that the statutory definition
of "pollutant" that was adopted in 1998 to delineate the limits of the NPDES
permitting program is too narrow in scope for use in this chapter. The exclusion
of agricultural runoff is inappropriate due to its inconsistency with existing
TWC, §26.023, which states "...the commission shall consider the existence
and effects of nonpoint source pollution...in developing water quality standards...."
Therefore, the definition of pollutant has been deleted from Chapter 307.
In its place, the commission is adopting the definition of "pollution" as
it is stated in TWC, §26.001. Additionally, the term "pollutant" has
been replaced with "pollution" in all appropriate places throughout this chapter.
The term was suggested in comments on proposed §307.5, and is included
in these definitions for convenience and clarity.
With respect to other comments, the commission responds that the proposed
specificity of the definitions provides a useful tool for the permitting process,
and the definition is included in the adopted revisions. Decant water from
dredged material cannot reasonably be excluded from the definition of pollutant
due to the potential to contribute total suspended solids in runoff.
The NWF commented that the proposed definition of "point source" in §307.3(43)
is not necessary.
The commission responds that although this term is defined in the TWC, §26.001(21),
the inclusion of the definition provides a convenient reference in §307.3,
and the proposed definition of point source is adopted.
The NWF requested that the proposed definition of "public drinking water
supply" in §307.3(45) be broadened to also include water bodies that
are designated for this purpose (even if a drinking water intake is not yet
in existence).
The commission agrees and the suggestion was incorporated into the adopted
definition of public drinking water supply.
The NWF commented that the proposed definition of "saltwater" in §307.3(46)
is overly broad and should be worded so that measurable tidal influence constitutes
saltwater, that is provided that water bodies with a salinity of less than
two parts per thousand are not normally considered to be saltwater.
The commission responds that the two measures of saltwater (tidal influence
plus salinity) need to be available independently in order to adequately assess
water bodies with limited data, and the proposed definition of saltwater is
adopted.
The EPA, FUSE, GBF, UT-Tyler, TCEA, TCONR, TCPS, and TPWD supported the
definition of "seagrass propagation" in §307.3(48) as an aquatic life
use. One hundred twenty-three individuals submitted letters supporting the
inclusion of "seagrass propogation" as an aquatic life use. An additional
287 individuals included support of this use as one of the proposed changes.
The EPA, GBF, NWF, and TCPS suggested that this use be designated for specific
water bodies in Appendix A of §307.10. EPA, GBF, NWF, TCPS, and TPWD
recommended protection of seagrass use where seagrass historically occurred.
SC-Houston requested clarification of the term "significant stand."
The commission responds that the term "existing use" is added in the adopted
definition of seagrass propagation. The term "existing" incorporates consideration
of historical uses, since existing uses are defined in §307.3 as those
occurring since November 28, 1975. Inclusion of seagrass propagation in Appendix
A will be considered in the next triennial revisions due to the timing of
request late in the revision process and to allow time for full public review
and comment. The term "significant stand" is left in the adopted definition
as proposed, since additional experience with applying seagrass use is needed
before a more quantified definition of "significant" can be developed.
The TPWD commented that the definition of "significant aquatic life use"
in §307.3(53) should include the provision that "some provision to protect
aquatic life applies to every water body in the state" without noting exceptions
to this provision.
The commission responds that the intent of citing exceptions to protection
of aquatic life was to note that criteria for acute toxicity may be exceeded
in zones of initial dilution at discharge points. However, the commission
concurs that the general statements in this definition will not contradict
the exemption afforded to zones of initial dilution, and this suggestion is
incorporated into the adopted definition of "significant aquatic life use."
With respect to the definition of "surface waters in the state" in §307.3(60),
EPA requested that the territorial limits of surface waters be more clearly
explained.
In response, the commission adds a note in the definition of "surface waters
in the state" that territorial limits of the state are from the mean high
water mark out to 10.36 miles into the gulf. The commission acknowledges that
EPA contends the state's delegated NPDES permitting authority extends only
three miles offshore. Even if this is true, and the commission does not agree
that it is, that is a matter of the boundaries of the administrative powers
delegated under a particular statute; it does not change or limit the state's
territorial jurisdiction.
With respect to the proposed definition of "total maximum daily load" (TMDL)
in §307.3(64), EPA considered the definition acceptable but noted that
a previous draft of the revised standards contained a more descriptive definition.
TPWD and USIBWC commented that the term "limit" in the definition should be
changed to "load."
In response, the commission has changed "limit" to "load" in the adopted
definition of total maximum daily load, but the definition is not expanded
in order to avoid possible contradictions with other, more detailed state
and federal definitions of the same term.
The EPA suggested that the definitions of "total toxicity" in §307.3(67),
"toxicity" in §307.3(68), and "toxicity biomonitoring" in §307.3(69)
are confusing and should be consolidated.
The commission responds that these definitions are needed to explain the
different terms which are in common usage to describe effluent toxicity testing.
Several comments addressed proposed revisions to the definition of "water-effects
ratio" in §307.3(70). Eastman, TCC, and Utilities suggested that the
term "lab toxicity tests" in the definition would be more accurately stated
as "synthetic laboratory dilution water." POCCA suggested deleting the sentence
which stated that "the water-effects ratio can be used to establish site-specific
acute and chronic criteria to protect aquatic life from toxicity."
The commission responds that the sentence describing the general use of
water-effects ratio is useful to provide a basic context for the purpose of
the test. The commission concurs that the term "synthetic laboratory dilution
water" is more accurate than "lab toxicity tests." This change is incorporated
in the adopted definition but without the term "synthetic" because it would
preclude the use of other dilution water that was not synthetic.
With respect to the proposed definition of "wetlands water quality functions"
in §307.3(73), SCLS, Austin, TCONR, GBF, FUSE, TCPS, NWF, SC, TCEA, TGLO,
TPWD, UT Tyler, and 287 individuals supported adding the definition. DOW,
GHP, POCCA, TWCA, and Utilities objected to adding the definition indicating
that it was unnecessary, since wetlands are already explicitly included in
the standards. There were also concerns about the implications of habitat
protection, lack of defined criteria for wetlands, and whether there was adequate
authority to regulate water quality by regulating land use. SC-Houston suggested
that shading be included as a wetlands water quality function. TCPS suggested
that the definition should apply to existing, designated, and attainable uses.
NWF suggested that the definition be expanded by including habitat for terrestrial
life (in addition to aquatic life). POCCA suggested that the definition note
that wetland water quality functions are affected by size, location, degree,
and type of cover and proximity to other similar landscape features.
The commission responds that wetlands are statutorily classed as waters
in the state and serve important water quality functions that are justifiably
protected under the water quality standards. The definition describes many
of those functions, which directly and indirectly, protect and maintain water
quality. Habitat beneficial to aquatic and aquatic-dependent organisms is
an attribute of intact, functional wetlands. Wetlands are waters in the state,
and as with other water bodies, their protection requires thoughtful planning
of surrounding land use. The commission also responds that suggestions for
further additions or qualifications may have merit for further public evaluation,
but the definition as proposed is reasonably inclusive of primary wetland
functions. The proposed definition of wetland water quality functions is adopted.
Several commenters suggested definitions of terms which were not in the
proposed revisions of 307.3. SC-Houston suggested that "riparian habitat"
and "habitat protection" be defined, and that a broader definition of "fishery"
be included. NCE suggested that "geometric mean" be defined. TCC and Utilities
suggested a definition for "ephemeral stream." EPA suggested that a definition
of "osmotic imbalance" be added with respect to effects of dissolved salts
on toxicity tests.
The commission responds that these suggestions for new definitions may
be potentially useful. However, the existing and proposed definitions establish
an adequate explanation of terms for this triennial revision of the water
quality standards. After additional development, definitions for these terms
can be publicly considered at the next revision of the standards.
The commission adopts §307.3 with the previously noted changes and
the definitions renumbered appropriately.
SECTION 307.4
The NWF objected to the language used to indicate that properly authorized
dredge and fill activities were not a violation of the aesthetic parameter
for settleable solids at §307.4(b)(3). They argued that the proposed
language clarified that dredge and fill activities were exempt from the requirements
of §307.4(b)(3), without providing for the evaluation, minimization,
and mitigation of impacts as appropriate. The Utilities commented that the
language was ambiguous and implied that activities authorized by a 404 permit
might still violate water quality standards. They expressed concern that this
raised issues of finality of a 404 permit.
The commission agrees with these comments and has modified the language.
It is the commission's intent to indicate that activities authorized under
Section 404 of the federal CWA be evaluated for compliance with the mitigation
sequence of avoidance, minimization and compensatory mitigation. The mitigation
sequence is a federal requirement under the 404(b)(1) Guidelines. The state
also has adopted those criteria for evaluating whether a proposed Section
404 permit should be certified under Section 401 of the CWA as consistent
with the antidegradation policy of this chapter. Since both the federal and
state processes are triggered by the federal CWA and include the mitigation
sequence, the revised §307.4(b)(3) simply states that this section does
not prohibit dredge and fill activities that are permitted in accordance with
the federal CWA.
The EPA and NWF recognized a typographical error in the §307.4(d)
reference to §307.4(k).
Section 307.4(k) was changed to §307.4(l). Section 307.4(d) has been
corrected to reflect this change.
The NWF suggested making it clear in §307.4(d) that "additional" toxic
criteria are identified in other sections of these rules.
The commission agrees with this and, consistent with the existing rule
language, has retained "additional" in the description of other toxic substance
requirements.
The SC-Houston supported the proposed language relating to acute and chronic
toxicity in §307.4(d). Utilities and TCC supported the changes to §307.4(d)
with some suggested modifications to address mixing zones and the zone of
initial dilution. Eastman, GHP, EPA, Utilities, and TCC raised issues with
the applicability of acute criteria to all waters in §307.4(d). NWF suggested
that all references to aquatic life in this section be changed to terrestrial
or aquatic life to be consistent with the first sentence of the section.
A reference to the detailed discussion of acute criteria at §307.8(a)(2)
was added to §307.4(d) to make the two sections consistent. The commission
disagrees with changing all references to aquatic life to include terrestrial
life. The first sentence of this section establishes the general criteria
for toxic substances. Numeric criteria for aquatic life and human health are
specified in §307.6. While these criteria are generally protective of
terrestrial or aquatic life, the commission reserves the opportunity to make
case specific determinations of the necessary level of protection for specific
toxic substances for terrestrial life under the general criteria established
in the first sentence.
The EPA suggested adding a reference in §307.4(e), concerning the
general narrative criteria for nutrients, to the TNRCC screening guidance
for assessing instream compliance with the water quality standards.
The commission responds that assessment of nutrient conditions is an important
component of applying the narrative protections of §307.4(e). However,
instream assessment of the other potential pollutants in the general criteria
is also important, and the applicability of the guidance document to narrative
parameters is noted in §307.9(g).
The EPA recommended adding language to §307.4(f) to address temperature
requirements for cooling water impoundments.
The commission responds that the existing narrative provides an appropriate
approach for cooling water impoundments. Existing language of this section
states that cooling water impoundments are exempt from temperature requirements,
and must not interfere with the reasonable use of such waters. The commission
did not propose changes to this language and cannot consider changes of this
nature for adoption.
The SC-Houston expressed concern over the term "balanced and desirable"
in §307.4(g)(3). They commented that it was arbitrary and would be used
as a weasel phrase. They requested definition of the term.
The commission agrees that there is a need for consistent use of terms
relating to aquatic life uses. The commission has modified the language in
this section to make it clear that salinity gradients in estuaries will be
maintained to support attainable estuarine dependent aquatic life uses.
J&C opposed the presumption in §307.4(h)(3) that perennial streams
have high aquatic life uses. They acknowledged the opportunity to set site
specific standards where the presumption can be rebutted but suggested that
effluent dominated streams, particularly in the Houston area, be presumed
to have limited aquatic life uses. NWF commented that the term "maintained"
in the last sentence of §307.4(h)(3) created ambiguity regarding attainable
uses and suggested the term should be replaced with "protected."
The commission disagrees with changing the presumption of high aquatic
life use for perennial streams. The aquatic life use presumptions are based
on statewide ecoregion studies. While the presumption language is shown as
a new section, this presumption is not changed from the existing rule. To
help address streams where attainable life uses are less than high, TNRCC
has conducted a number of receiving water assessments and established site-specific
standards in Appendix D in §307.10. The commission agrees that the term
protected is more appropriate because it includes attainable uses and existing
uses. This change has been made to the rule.
The SC-Houston commented that they were opposed to the presumption that
intermittent streams have no significant life. TPWD raised concerns whether
the presumption that intermittent streams with perennial pools have limited
aquatic life uses affords sufficient protection for those streams. TPWD also
questioned whether the presumption regarding intermittent streams with perennial
pools had been validated by studies and data. NWF commented that the term
"maintained" in the last sentence of §307.4(h)(4) created ambiguity regarding
attainable uses and suggested the term should be replaced with "protected."
The commission disagrees with changing the presumption for intermittent
streams. While the presumption language is shown as a different section, this
presumption is not changed from the existing rule. The definition of significant
aquatic life use recognizes that some aquatic life is expected to be present
in water bodies not designated for a specific category of aquatic life use.
However, it also identifies some provisions to protect aquatic life in any
water body. These aquatic life use presumptions are based on statewide ecoregion
studies. The commission agrees that the term "protected" is more appropriate
because it includes attainable uses and existing uses and this change has
been made to the rule. The reference to development of additional definitions
of significant aquatic life, perennial pools, and seasonal uses in the standards
implementation procedures has been deleted.
Austin, EPA, F&A, FUSE, GBF, NFW, SCLS, TCEA, TCONR, TCPS, TPWD, and
287 individuals supported the adoption of the proposed habitat criteria in §307.4(i).
Many of these commenters identified the proposal as meeting the federal CWA's
goal for restoring and maintaining the physical and biological integrity of
water. Several commenters also identified the proposal as a clarification
of existing procedures which include consideration of habitat in determining
aquatic life uses.
The commission agrees that the proposed habitat language is consistent
with the goal of the federal CWA regarding the physical and biological integrity
of water in the state. The commission also agrees that the language is a better
description of existing procedures which consider habitat in determining aquatic
life uses, not a new feature. Since the mid-1980s, habitat has been a consideration
in determining appropriate aquatic life uses, such as in a use attainability
analysis (UAA). The commission points out that habitat is the determining
factor that justifies many of the proposed site specific aquatic life classifications
proposed in Appendix D of §307.10.
Several commenters expressed concern that the proposed language only addressed
"existing" uses and suggested that it should be consistent with other sections
of the rule by addressing designated and attainable uses also.
The commission agrees that the term "existing" as a modifier of aquatic
life uses is too narrow and has deleted that term from §307.4(i). However,
because habitat can be mitigated, the commission is not including the phrase
"existing, designated, and attainable" as modifiers to the aquatic life use
in this section.
A number of commenters expressed concern that the proposal was limited
to only Section 404 permits. Many comments supported the proposal to recognize
that aquatic habitat is a necessary component for supporting aquatic life.
The proposed habitat language is not limited to dredge and fill activities.
The statement in the preamble regarding questions about the role of habitat
in dredge and fill activities was intended to identify the origin of the need
for the proposed clarification. This background information was not a statement
of the limit of the existing policy. The statement in the proposed and adopted
rule regarding the procedures for dredge and fill activities is to make it
clear that the state's role in 401 certifications is administered under a
separate rule (30 TAC Chapter 279). The commission agrees that habitat is
a necessary component for supporting aquatic life and adopts the amendment
as modified.
The cities of Arlington, College Station, Corpus, Dennison, Henderson,
Jacksonville, Missouri City, Odessa, Plainview, Schertz, Sherman, Sulphur
Springs, and Temple, GHP, Lloyd-Gosselink, SAWS, TCC, TML/TAMSA, TWCA, Utilities,
and WF opposed the adoption of the proposed habitat criteria in §307.4(i).
Most of these commenters were concerned that the proposed language would limit
the flexibility of dischargers regarding regionalization of treatment facilities,
reuse of effluent, water conservation, and storm water management. The commenters
stated that the proposed language would require regulation of both increases
and decreases in discharge flows.
The commission agrees that the language should not add a new provision
to require wastewater discharges permitted under Chapter 26 to continue. The
commission issues Chapter 26 authorizations only to set the terms and conditions
under which a discharger can discharge. The rules do not and, as amended today,
will not, require an existing discharger to continue an historical volume
of discharge as a condition for renewing or amending a permit issued under
TWC, Chapter 26. Therefore, the commission disagrees with the concerns of
these commenters that the proposal will result in the consequence that a discharger
permitted under Chapter 26 will be required to continue its prior discharge
for the maintenance of artificially created habitat. The commission emphasizes
that there are independent obligations on some discharges that require continued
habitat maintenance, such as mitigation commitments, other contractual agreements,
and the requirements of their authorizations under TWC, Chapter 11, which
require protection of environmental in-stream uses of water in the context
of a permit or an amendment to a permit to use state water.
Many of the commenters expressed that the TNRCC failed to comply with the
procedural requirements imposed by Texas Government Code, §2001.0225,
in proposing §307.4(i), and that a full regulatory implementation analysis
must be prepared.
The commission disagrees with the commenters' assertion that the commission
is required to prepare a full regulatory impact analysis (RIA). First, the
addition of §307.4(i) does not create a new use to the water quality
standards. The section merely further articulates what has consistently been
the antidegradation policy of previous rules. The antidegradation policy in
Chapter 307 has always stipulated that water quality will be maintained so
that aquatic life and other existing "uses" will be protected (see 30 TAC §307.5(b)(1)).
Major disturbances of aquatic habitat affect both water chemistry (the most
direct component of water quality) and the capacity of an aquatic ecosystem
to sustain aquatic life. Thus, maintaining aquatic habitat is an important
component of protecting and maintaining aquatic life, which is required by
the antidegradation policy (see 30 TAC §307.5 and 40 CFR §131.12).
Because this provision is not a new requirement, the commission is not required
to prepare a full RIA.
Second, the Texas Government Code, §2001.0225, does not require the
commission to prepare a RIA because §307.4(i) does not exceed a standard
set by federal law, state law, or any requirements of the TPDES delegation
agreement between the TNRCC and EPA, and it is not adopted solely under the
commission's general powers.
The proposed rule does not exceed standards set by federal law. Federal
law requires states to establish water quality standards ". . .to protect
the public health or welfare, [and] enhance the quality of water . . . ."
CWA, §303(c), 33 USC, §1313(c). The standards are to account for
the water's use and value for public water supplies, propagation and protection
of fish and wildlife, recreational purposes, and agricultural, industrial,
and other purposes (
id
. See 40 CFR §131.10).
As stated above, aquatic habitat is necessary and important for aquatic life
propagation and protection. To protect and maintain these uses, like aquatic
life use and habitat, the states are required to develop and adopt statewide
antidegradation policies and to include the policy in their water quality
standards (see 40 CFR §131.6(d)). A state's antidegradation policy must,
at a minimum, protect existing instream water uses (see 40 CFR §131.12(a)(1)).
Because, federal law requires states to protect and maintain instream water
uses, including the aquatic life and habitat use, §307.4(i) does not
exceed a standard set by federal law.
Similarly, §307.4(i) of the rules does not exceed a requirement set
by state law. Section 26.003 states that the purpose of Chapter 26 is ". .
.to maintain the quality of water in the state consistent with . . . the propagation
and protection of terrestrial and aquatic life . . . ." The water quality
standards developed under TWC, §26.023, are the mechanisms by which the
commission maintains the quality of water for the propagation and protection
of terrestrial and aquatic life. Aquatic habitat is necessary and important
for aquatic life propagation and protection. Therefore, the commission is
required to protect and maintain aquatic life use and habitat of a water body
and accomplishes this goal through its antidegradation policy. Because state
law provides for the protection and maintenance of aquatic life use and habitat,
these rules do not exceed a standard set by state law.
The proposed rule does not exceed the requirements of the TPDES delegation
agreement between the TNRCC and EPA. Under the agreement, the commission is
required to operate the TPDES program in accordance with the CWA and applicable
federal requirements (see Memorandum of Agreement (MOA) between the Texas
Natural Resource Conservation Commission and the U.S. Environmental Protection
Agency concerning the National Pollutant Discharge Elimination System, page
2). As part of that agreement, the TNRCC will include water quality based
effluent limitations in TPDES permit to ensure compliance with EPA approved
water quality standards (MOA, page 24). Thus, because the water quality standards
are consistent with the CWA, they do not exceed a requirement of the TPDES
MOA.
Finally, the proposed rule is not adopted solely under the commissions
general powers. Rather, this rule is adopted under TWC, §26.023, which
specifically requires the commission, by rule, to set water quality standards
for the water in the state.
Because the rule did not meet any of the four applicability standards in
Texas Government Code, §2001.0225(a), the TNRCC is not required to prepare
a full RIA.
Several commenters claimed the addition of this section is not within the
jurisdiction of the TNRCC, including comments that the vegetative and physical
components are not water quality parameters.
The commission disagrees with the commenters. The commission has authority
and the statutory mandate to protect the aquatic life and habitat use of a
water body.
Section 26.003 states that the purpose of Chapter 26 is ". . .to maintain
the quality of water in the state consistent with . . . the propagation and
protection of terrestrial and aquatic life ... ." The water quality standards
developed under TWC, §26.023, are the mechanisms by which the commission
maintains the quality of water for the propagation and protection of terrestrial
and aquatic life. Major disturbances of aquatic habitat affect both water
chemistry (the most direct component of water quality) as well as the capacity
of an aquatic ecosystem to sustain aquatic life. Thus, maintaining aquatic
habitat is an important component for the propagation and protection of aquatic
life and is required by state law.
Further, federal law requires that states establish water quality standards
"to protect the public health or welfare, [and] enhance the quality of water
. . . ." CWA, §303(c), 33 USC, §1313(c). The standards are to account
for the water's use and value for public water supplies, propagation and protection
of fish and wildlife, recreational purposes, and agricultural, industrial,
and other purposes (
id
. See 40 CFR §131.10).
Aquatic habitat is necessary and important for aquatic life propagation and
protection. To protect and maintain these uses, like aquatic life use and
habitat, the states are required to develop and adopt statewide antidegradation
policies and to include the policy in their water quality standards (see 40
CFR §131.6(d)). The water quality standards developed by the commission
are intended to implement these federal requirements, which are an important
component of the TPDES permitting process (see TWC, §5.102 and §26.027(a)).
Thus, protecting aquatic life use and habitat is within the jurisdiction of
the commission.
Several commenters opposed the proposal because they believed it violates
the legislative intent of Rider 27 of the House Bill 1, General Appropriations
Act of 1999.
The water quality standards do not violate the legislative intent of Rider
27. Rider 27 prohibits the expenditure of funds to conduct CWA, §401
certifications in the 2000/2001 biennium except when necessary for a federally
delegated program or to comply with a requirement of federal law. Rider 27
is limited to 401 certifications and does not apply to the adoption of the
water quality standards. The water quality standards are used to set effluent
limits in TPDES permits among other things and are not limited to 401 certifications
of dredge and fill projects.
Several commenters stated the language was unclear and that if the intent
was to only address dredge and fill activities, it should be clearly stated
that way.
The proposed habitat language is not limited to dredge and fill activities.
The statement in the preamble regarding questions about the role of habitat
in dredge and fill activities was intended to identify the origin of the need
for the proposed clarification. This background information was not a statement
of the limit of the existing policy. The statement in the proposed rule regarding
the procedures for dredge and fill activities is to make it clear that the
state's role in 401 certifications is administered under a separate rule (30
TAC Chapter 279).
Several commenters requested criteria for the implementation of the habitat
provisions. Several commenters opposing the proposal stated it was unnecessary
because habitat characteristics are already a factor in determining the aquatic
life use of a water body.
The proposed implementation procedures for this chapter provide information
on the current practice of habitat assessment for aquatic life use determination.
The commission is not proposing any additional habitat criteria in this revision,
but will consider additional criteria as appropriate in the future. The commission
agrees with the comments that habitat is already a factor in determining the
aquatic life use of a water body. As identified in the preamble to this proposed
rule, there has been considerable discussion about the existing role of habitat
in water quality standards, specifically for dredge and fill activities. This
amendment is intended to clarify the commission's existing policy.
One commenter stated that the proposed language could be interpreted as
imposing "Tier 3 like" provisions to physical and vegetative components.
The commission responds that general narrative to protect habitat does
not invoke the prescriptive protection of water quality in Tier 2 and Tier
3 of the antidegradation policy in §307.5. The narrative on habitat protects
uses for aquatic life, and use-protection is the fundamental level of protection
afforded throughout the general criteria.
Several commenters expressed concern about the proposed general criteria
for aquatic recreation in §307.4(j). Austin requested clarification on
how to distinguish "lakes, reservoirs, and saltwater bays" from other similar
categories of water bodies, since high-use contact recreation is presumed
for lakes, reservoirs, and saltwater bays. NWF expressed opposition to applying
different levels of recreational use to different categories of water bodies.
NWF also noted that applying these presumptions to water bodies "not specifically
listed in Appendix A" is not accurate, and that any presumptions should apply
to "all water bodies for which a use category is not specifically listed in
Appendix A." TCONR, TPWD, and TCPS also expressed concerns about presuming
different levels of recreational use for different types of water bodies.
Conversely, TSSWCB recommended that "general contact recreation" be assumed
for lakes, reservoirs, and saltwater bays. These commenters provided additional
comments which are reviewed in the discussion concerning §307.7(b)(1),
where the details of recreational criteria are presented in the water quality
standards.
In response to concerns about the proposed recreational categories, the
commission has deleted the different categories of contact recreation from
the general criteria, and a single category of "contact recreation" is adopted
as a presumed use for all water bodies except where specifically listed for
a different recreational use in Appendix A. A more detailed presentation of
comments and the commission's responses on recreational uses and indicators
is provided in the discussion concerning §307.7(b)(1).
The NWF commented that in §307.4(h)(4)(l) that the "commission," in
addition to the "executive director," should be noted as potentially taking
regulatory action that could affect a particular water body.
The commission concurs and both terms are included.
SECTION 307.5
Solutia and TCC expressed support for the revisions to §307.5. SC-Houston
expressed disagreement with the provision allowing Tier 2 degradation of water
quality for important economic or social development.
The existing language in §307.5(a)(2) is consistent with federal requirements
for the antidegradation policy in 40 CFR §131.12. The commission notes
that §307.5(c)(2)(F) allows interested parties to provide comments and
additional information regarding the necessity of the discharge for important
economic or social development if degradation of water quality is expected
under Tier 2. The commission has made no changes to §307.5(a)(2) and
retains the existing language of the rule.
The TSSWCB recommended that TMDL terminology be removed from §307.5
on the grounds that inclusion of TMDLs would lead to confusion regarding the
purpose of a TMDL and may hinder the stakeholder process if the antidegradation
policy supplants the load allocation power from the stakeholders group. If
the term must remain, TSSWCB concurs with including the language in §307.5(c)(2)(G).
The commission responds that inclusion of TMDLs in the antidegradation
section is appropriate and has retained TMDLs in this section since they are
subject to the antidegradation provisions. TMDLs are included in the antidegradation
policy to clarify that the TMDL must be consistent with the antidegradation
policy. The commission also notes that the antidegradation policy applies
only to authorized increases in loading. Many TMDLs will require a reduction
in existing loading. Permits issued consistent with an approved TMDL would
not require additional, individual review for potential degradation concerning
the permit loadings of the constituents in the TMDL. Nothing in the antidegradation
policy will limit the stakeholder process for TMDL development. This approach
to TMDLs is consistent with the commission's practice of approval of traditional
waste load evaluations.
The GBF and NWF requested that "existing uses," in addition to "water quality
sufficient to protect existing uses," be included in §307.5(b)(1) to
achieve consistency with federal requirements.
The commission agrees with these comments and has modified the language
to make the policy consistent with §307.(c)(2)(A). This modified language
is also consistent with the federal antidegradation policy requirements of
40 CFR §131.12(a)(1).
A request to define
de minimus
in §307.5(b)(2)
was submitted by EPA. Austin commented that the rule should specify criteria
for what statistically constitutes a greater than
de minimus
effect.
The commission agrees that additional guidance is needed for the implementation
of this term and has attempted to provide more detail on the range of parameters
considered for degradation in the standards implementation procedures. This
approach is more feasible than a statistical definition, given the natural
variability of water bodies in the state.
Austin expressed concern that no designations for outstanding national
resource waters (ONRW) were proposed for addition to the standards in §307.5(b)(3)
and suggested that Barton Creek (Segment 1430) would fit the description of
an ONRW.
The commission responds that valid public and legislative concern was expressed
over previous draft proposals for designating outstanding national resource
waters. EPA has indicated in guidance for ONRWs (e.g., in the second edition
of the EPA Water Quality Standards Handbook), that the prohibition of any
increased pollutant loadings to ONRWs is to be stringently applied. However,
there is still substantial uncertainty about how federal requirements for
ONRW protection would be implemented on a case-by-case basis, and no designations
were considered for this revision of the standards.
The GBF and NWF commented that the term "pollution" rather than "pollutant"
should be used in the general description of the antidegradation policy in §307.5(b)(4),
and (c)(1) and (2). The use of the term "pollutant" limits the state's ability
to protect waters through the antidegradation policy.
The commission agrees that the term "pollution" is consistent with TWC, §26.023.
The definition of pollution in the TWC, §26.001, has also been included
in §307.3 for clarity. Additional discussion on this issue is provided
in the commission's response to comments on 307.3.This change of terms has
been made throughout §307.5.
The GHP commented that the rule needs to clarify in §307.5(c)(1)(B)
that 401 reviews are limited to those aspects of United States Army Corps
of Engineers actions that affect water quality.
The commission responds that 401 Certifications are an opportunity for
the state to review a proposed federal discharge permit for consistency with
the state water quality standards. The evaluation of uses is not limited to
protection of water chemistry. The purpose of §307.5(c)(1)(B) is to show
that for state certification of federal permits to allow the discharge of
fill material under Section 404 of the federal CWA, the antidegradation policy
is implemented according to Chapter 279. The uses and criteria of the water
quality standards remain applicable to 401 Certifications of 404 permits.
The NWF suggested that the requirement for standards to be attained in §307.5(b)(4)
should not be limited only to discharges authorized by the TWC and the federal
CWA. The scope of activities subject to the water quality standards is controlled
through statutes and external rules. The language in the water quality standards
rules should use more expansive language to avoid unnecessary, and potentially
unanticipated, limitations on their scope.
The commission agrees with this suggestion and has clarified that discharges
which cause pollution that are "authorized by other applicable law" are also
subject to §307.5(b)(4).
With respect to §307.5(e)(2)(E), EPA indicated that evidence regarding
the implementation of the antidegradation policy could be introduced through
the public comment process.
The commission responds that explicit allowance of public comment on specific
regulatory actions under the antidegradation policy is appropriate and intended,
and language to this effect is added to §307.5(e)(2)(E).
SECTION 307.6
A variety of comments were received concerning proposed revisions to water
quality standards for toxic pollutants in §307.6.
One individual indicated that the fiscal note did not reflect the impact
that changes in Tables 1 and 3 would have on pretreatment programs and suggested
that the changes not be adopted until the impacts were recognized, understood,
and evaluated.
The commission responds that the potential impacts of the proposed revisions
on dischargers to municipal sewerage systems, which might be affected by pretreatment
programs, were analyzed in the section of the preamble to the proposed rule
entitled Small Business and Micro-business Analysis. Facilities that discharge
into municipal waste systems are required to pre-treat their waste prior to
discharge. Complying with more stringent water quality standards is the responsibility
of the city holding the TPDES permit. Since the revisions to the toxic criteria
are not expected to affect municipalities, it is anticipated that small and
micro-businesses will not be directly affected by the proposed amendments.
The SC-Houston expressed concern that there were too few herbicides on
the toxic materials list (in Tables 1 and 3 in §307.6).
The commission acknowledges that criteria are not listed for some herbicides,
but the development of these criteria is dependent on the availability of
sufficient technically valid data on the toxicity of specific herbicides.
Such data and EPA guidance criteria are not always available, particularly
for newer herbicides. The provisions in §307.6(c)(7) and (d)(8) for developing
criteria that are not in Tables 1 and 3 can be applied when criteria are needed
for specific cases when sufficient information is available. EPA guidance
criteria have also not been established.
The EPA questioned why criteria values were rounded and recommended that
the commission retain the unrounded criteria. The EPA stated that the rounding
makes it more difficult for readers to determine which criteria are based
on EPA recommended values and which criteria have been recalculated.
The commission reevaluated the rounding and is retaining three significant
digits for criteria where appropriate.
The NCE indicated that TNRCC needed to better explain the basis and reasons
for the proposed changes which were made to Tables 1, 2, and 3 of §307.6
and also Table 5 in §307.7, so that the public could comment on the changes.
The commission notes that specific calculations of toxic criteria in Tables
1 and 3 were too detailed to include in the preamble of the proposed rule,
although these calculations are available. The procedures for these calculations
are already described in the text of §307.6. With respect to justification
and evaluation, the commission responds that the preamble for the proposed
changes did contain substantial discussion and evaluation. Effects of the
changes were evaluated to the extent that available information would reasonably
allow in the fiscal note.
The NCE, USIBWC, and NWF indicated that the proposed reference to "five"
kinds of toxic exposure routes in §307.6(b)(4) was incorrect.
The commission agrees and the reference to number in the adopted language
has been changed to "three."
The NWF questioned whether the general narrative provisions in §307.6(b)(4)
were sufficiently inclusive of various categories of wildlife which could
be exposed to toxic pollutants in water. The question was raised since the
commission had proposed to add the term "birds" along with the existing term
"terrestrial wildlife."
The commission clarifies the narrative protection by removing the proposed
term "birds" from the adopted language in §307.6(b)(4). The term "terrestrial
wildlife" remains, and the commission intends that this term includes birds
and other forms of wildlife which can fly.
The TCC noted a typographical error in Table 1, in which the exponential
portion of the metals criteria was printed with a "1" instead of an "e."
The commission responds that this error has been corrected in the adopted
version of the rule.
D-Koch proposed using the biotic ligand model, rather than pH and hardness,
to determine the bioavailability and toxicity of metals instead of pH and
hardness in §307.6(c)(1).
The commission notes that the biotic ligand model or similar approaches
might eventually improve estimates of changes in the toxicity and bioavailability
of metals with respect to water chemistry. However, current EPA guidance criteria
and toxicity databases are still largely based on hardness and other variables.
This comment can be considered for development of future revisions of the
water quality standards.
With respect to the water-effects ratio proposed for the copper criteria
in Table 1 in §307.6(c)(1), and with respect to the site-specific criteria
for copper in Appendix E of §307.10, one individual expressed opposition
to increases in copper criteria anywhere in the state.
The commission responds that site-specific criteria for copper and other
metals are appropriate when sufficient data is available to incorporate local
effects of water chemistry. These adjustments of the statewide criteria as
noted in Table 1 and the proposed additions to Appendix E are supported by
EPA guidance.
The EPA supported the proposed changes in §307.6(c)(1) (Table 1) to
the criteria for metals, in order to compensate for expressing these criteria
as the dissolved portion. The EPA noted corrections needed for CAS numbers
for chromium (tri and hex) and for endosulfan I and II.
The commission responds that the CAS numbers have been corrected, and the
numerical criteria for metals in Table 1 are adopted as proposed.
The EPA commented with respect to §307.6(c)(4) that chemical specific
criteria would be appropriate for ammonia and chlorine toxicity, since direct
measurements of chemical concentration avoid chemical degradation during whole
effluent toxicity testing, and since some streams may not be protected from
minor discharges by whole effluent testing.
The commission responds that whole effluent testing, in conjunction with
typical permitting requirements for dechlorination, remains a reasonable approach
for assessing toxicity from chlorine and ammonia. No change was proposed for
this standards revision, and the appropriate controls for ammonia and chlorine
toxicity may be subject to review during the next revision of the water quality
standards.
Austin objected to a proposed change in §307.6(c)(6), which indicated
that acute toxic criteria to protect aquatic life may be exceeded at extremely
low streamflow conditions (one-fourth of critical low-flow conditions). Similarly,
NWF commented that acute criteria should apply during all flow conditions.
The EPA interpreted the change as a clarification which would not affect permitting,
and more information would be needed if this is not the case. The EPA also
recommended adding language to state that any exceedances of acute criteria
in the zone of initial dilution will not affect compliance with permit limits.
The commission responds that the implementation of a critical low-flow
for acute criteria is needed in order to establish an instream design flow
for calculating effluent limits for wastewater discharge permits. In addition,
this proposed change is compatible with the existing water quality standards,
which already state in §307.8(b)(2)(A) that ". . .ZIDs (zones of initial
dilution) in streams and rivers shall not encompass more than 25 percent of
the volume of stream flow at or above seven-day, two-year low-flow stream
conditions." The proposed change will create internal consistency within the
standards. It is not intended to change current permitting procedures, nor
to change measures of compliance with existing permits. The commission notes
that this change, and the commensurate change in §307.8(a)(2), is in
accordance with the EPA's guidance document,
Technical
Support Document for Water Quality-based Toxics Control
(1991). This
guidance indicates that water quality standards should protect water quality
for designated uses in critical low-flow situations, and the guidance document
also recommends the kinds of extremely low stream flow conditions below which
numerical toxic criteria do not apply. The commission agrees that in establishing
water quality standards, states may designate a critical low-flow below which
numerical criteria do not apply. The commission does note, however, that exceedances
of acute criteria may occur only "below" rather than "at" one-fourth of critical
low-flow conditions. With this editorial correction, the change is adopted
as proposed.
Eastman, GHP, and TCC suggested moving Table 2 in §307.6(c)(8), which
contains average hardness and pH values for major river basins, to the Implementation
Procedures.
The commission acknowledges that the values in Table 2 are default values
that are generally used as screening tools. However, there is utility in having
these regulatory default values in the rules, in order to provide a uniform
reference value, in the absence of better information, for the magnitude of
toxic criteria that vary with hardness or pH.
The GCA, EHCMA, TCC, Kodak, Utilities, and GHP supported the proposed inclusion
of a variable for water-effects ratios in the criteria for metals in Table
1, as described in §307.6(c)(9). The TPWD indicated that adequate public
notice is needed when a site-specific water-effects ratio is used, and NWF
commented that §307.6(c)(9) should ensure that opportunity is provided
for public comment and hearing.
The commission responds that the water-effects ratio will be included in
criteria for metals in Table 1 as proposed. In §307.6(c)(9), a sentence
was added to indicate that public notice will be provided during the permit
application process which will note water-effects ratios which affect the
effluent limit of the permit and which have not yet been incorporated into
Appendix E of §307.10.
The UTHSC requested that TNRCC clarify whether the test toxicant for a
water-effects ratio in §307.6(c)(9) is added to stream water or if only
stream water is used for a comparison bioassay.
The commission responds that water-effects ratio analyses are conducted
using EPA guidelines, and these procedures are documented in EPA's
Interim Guidance on Determination and Use of Water-Effect Ratios for Metals
. Current procedures do specify that the toxicant of concern is added
in various concentrations to instream water for conducting the comparison
bioassays.
The NCE suggested that more explanation of the proposed addition of perchlorate
and a related footnote to Table 3 in §307.6(d)(1) is needed for public
comment. PSG, USAF, CEOH, and Kerr-McGee commented that it was premature to
adopt a criterion for perchlorate in Table 3 to protect drinking water sources,
because a federal review is currently being conducted to develop federal guidance
criteria, and because the appropriate reference dose for perchlorate remains
under debate in the federal review process. The EPA supported the addition
of criteria for perchlorate.
The commission responds that procedures which were used to calculate the
proposed criterion for perchlorate were in accordance with procedures which
were used by the commission to develop a recommended general criterion for
drinking water sources. The commission acknowledges that federal guidance
has still not been completed, and that some changes may eventually occur in
the applicable reference dose for perchlorate. Therefore, the proposed criterion
for perchlorate is not adopted in Table 3 of the rule at this time. However,
the commission emphasizes the relevance of §307.6(d)(8), which establishes
provisions for applying criteria to regulatory actions of the agency when
toxic substances are not in Table 3. For such regulatory actions, the commission
will continue to use the agency guideline criterion of 22 micrograms per liter
of perchlorate until and unless better information indicates that a different
criterion is appropriate. In response to questions about the assumptions that
were used for the proposed perchlorate criteria, the commission revised proposed
language in §307.6(d)(8)(A) and (B) to note that site-specific guideline
criteria for protecting surface sources of drinking water may default to the
agency's calculations and guidelines for general protection of drinking water
sources in addition to an adopted MCL for drinking water.
With respect to Table 3 in §307.6(d)(1), Agriculture, Novartis, TCPB,
TFB, and TSSWCB suggested that the TNRCC postpone adopting criteria for atrazine
until EPA completes their review using the newest risk assessment and data,
because preliminary data indicates that the current federal MCL for atrazine
to protect drinking water will be raised. EPA supported the addition of criteria
for atrazine.
The commission acknowledges that federal guidance has still not been completed,
and that some changes may eventually occur in the federal drinking water MCL,
which was the basis for the proposed criterion. Therefore the proposed criterion
for atrazine is not adopted in Table 3 of the rule at this time. As with perchlorate,
however, the commission emphasizes the relevance of §307.6(d)(8), which
establishes provisions for applying criteria to regulatory actions of the
agency when toxic substances are not in Table 3. For such regulatory actions,
the commission will continue to use the existing MCL of three micrograms per
liter as the criterion for surface water sources of drinking water until and
unless better information indicates that a different criterion is appropriate.
DOW, Utilities, and TCC suggested that the proposed human health criteria
for 1,3-dichloropropene and acrylonitrile in Table 3 of §307.6(d)(1)
are unnecessary and unjustified. Commenters know of no water quality problem
with the use of these chemicals in Texas and stated that they are not discharged
in sufficient amounts in Texas or found in ambient waters to justify including
them in the standards. Similarly, Solutia was opposed to including acrylonitrile,
and TSSWCB was opposed to including 1,3-dichloropropene. Conversely, EPA supported
the addition of 1,3-dichloropropene and acrylonitrile.
The commission agrees that numerical criteria are not needed for substances
which do not occur in pollutant sources or in surface waters. However, the
agency's review indicated that permittees are already required to test for
1,3-dichloropropene and acrylonitrile in applications for wastewater discharge
permits. Therefore, the proposed criteria will not impose an additional requirement
for effluent screening by permit applicants. In addition, both of these toxicants
are already included in monitoring of surface waters that is conducted by
TNRCC. Detections of these substances are indeed very infrequent, as is the
case with most volatile compounds, but a water quality standard for them is
still appropriate to ensure that localized impacts are precluded, and the
criteria for 1,3-dichloropropene and acrylonitrile are adopted as proposed.
The EPA suggested that in Table 3 in §307.6(d)(1) the toxic equivalency
factors for 1,2,3,4,8-PeCDD should be adjusted from 0.5 to 1.0, OCDD and OCDF
should be included in the list of dioxin/furan congeners.
The commission responds that the proposed dioxin/furan criteria, which
already contain toxicity equivalency factors for seven congeners, are reasonably
protective. The proposed changes in the criteria, which are expressed as the
summed TCDD equivalents, are substantially more stringent than in the previous
standards. The suggested adjustments in equivalency factors were not proposed,
but they can be evaluated at the next standards revisions. The proposed changes
for the criteria for dioxins/furans in Table 3 are adopted as proposed.
Several changes are adopted in Table 3 in §307.6(d)(1) which were
not specifically proposed, but which are needed for editorial clarity or to
resolve a contradiction in the existing rule. The criterion for chloroform
for drinking water sources (Column A in Table 3) was proposed to be 181 micrograms
per liter. However, the existing criterion for the sum of total trihalomethanes,
which includes chloroform, is 100 micrograms per liter. In order to maintain
internal consistency in Table 3, the proposed criterion of 181 micrograms
per liter for chloroform is changed to 100 micrograms per liter in the adopted
rule. The criterion for pentachlorophenol for drinking water sources (Column
A in Table 3) was proposed to be changed from 129 to 19.1 micrograms per liter.
However, the current drinking water MCL is 1.0 micrograms per liter. Section
307.6(d)(3)(G) in the water quality standards indicates that the drinking
water MCL supercedes if the calculated criterion is greater than the drinking
water MCL; therefore, the MCL value of 1.0 micrograms per liter is adopted
for pentachlorophenol in Column A of Table 3. The name "nitrate-nitrogen"
in Table 3 is changed to "nitrate-nitrogen as total nitrogen" to clarify that
the way in which the nitrate for this criterion is expressed. The commission
also notes that a lower MCL for arsenic is under consideration by EPA; and
if adopted in federal and state drinking water regulations, the MCL value
may be appropriate as a surface water criterion for specific regulatory actions
that affect drinking water sources.
The TPWD pointed out an editorial error in §307.6(d)(5), with respect
to the phrase "...water in the state which have...."
This phrase was changed to "...water in the state which has ..." in the
adopted rule.
The TCC, Solutia, and GHP expressed concern that the proposed procedures
in §307.6(d)(8) for developing criteria for substances not listed in
Table 3 are too broad. Comments indicated that data quality objectives for
"available information" should be specified, and at a minimum, the data used
for human health criteria must be peer-reviewed scientific studies published
in reputable scientific journals with general circulation.
The commission acknowledges that care is needed in selecting appropriate
data for developing toxic criteria, but the specific restrictions that were
recommended may be too restrictive to allow potentially useful sources such
as manufacturer's tests on a new pesticide. The importance of considering
data adequacy is noted in general by changing "available information" to "technically
valid available information" in the adopted rule.
With respect to §307.6(e)(2)(C), EPA supported the proposed addition
which notes that approval by the executive director and by EPA is needed for
the use of alternate procedures for conducting biomonitoring (whole effluent
testing).
This change is adopted as proposed.
The EPA indicated that in §307.6(e) the terms "lethality" and "toxicity"
are sometimes used interchangeably and assumes that the proposed language
is to clarify the existing provision in the current standards. The EPA assumed
that lethality is still prohibited at all flows including those below one-fourth
of the critical low flow.
The terms are not used interchangeably. Lethality is used in reference
to passage through a ZID and at flows below one-fourth of the critical low
flow. EPA's assumption is correct in that lethality is still prohibited at
all flows.
SECTION 307.7
307.7(b)(1)
Numerous comments were received on proposed changes in the criteria for
recreation in §307.7(b)(1). A variety of commenters, including EPA, Eastman,
SAWS, Solutia, TCC, UTHSC, and GHP supported the change to
E. coli
and Enterococci as bacterial indicators for recreation. However,
many commenters, including FUSE, GBF, LPCASS, NWF, TCEA, TCONR, SC-Houston,
SCLS, USIBWC, and 110 individuals expressed concern that the transition to
different indicators will result in difficulties in assessing standards attainment,
and these commenters generally recommended that dual sampling be conducted
of current and proposed bacterial indicators before incorporating the proposed
indicators in the water quality standards. NWF also expressed concern that
the change in indicators would cause a loss in the ability to track long-term
trends, and TPWD suggested that dual sampling of old and new indicators should
be conducted in order to allow development of trend analyses.
The commission acknowledges that the change will have some adverse effect
in the continuity of the data on indicator bacteria. However, epidemiology
studies indicate that the new indicators provide an improved estimation of
the relative risk of swimmer illness. The new indicators are in accordance
with current federal guidance, and an independent evaluation by a commission
workgroup has recommended switching to the alternative indicator bacteria.
In addition, the utility of trend analyses with fecal coliform is already
limited by interference with non-fecal sources of bacteria, high sampling
variability, and changes in sampling procedures and analytical methods over
the years.
E. coli
and Enterococci are therefore
adopted as bacterial indicators for recreation. The commission recognizes
that some difficulties will be inherent during the transition period. Sampling
of both indicators will be conducted for a two- to three-year period where
monitoring resources allow, but dual sampling for both indicators at an extensive
number of sites is not feasible whether the new criteria are adopted now or
whether they are postponed until the next triennial revision of the standards.
The commission intends to continue to assess support of recreational uses
for approximately the same water bodies. The proposed changes include the
use of fecal coliform as a bacterial indicator until such time as sufficient
data is obtained for minimum requirements of assessment with the new indicators.
Currently, minimum requirements are nine samples, and one to five years of
data are used for the assessment. At sites where monitoring is conducted only
for the new indicators, the historically available data for fecal coliform
will continue to be used for assessing long-term standards attainment until
an adequate data set is obtained for the new applicable indicator. The gap
in assessment for sites where this approach is needed will generally be about
two years. To facilitate the transition, the commission adopts the proposed
language which specifically allows the continued use of fecal coliform as
an indicator until sufficient data is available for the new indicators. The
commission also adopts the proposed language which allows the long-term continued
use of fecal coliform for some purposes, such as in oyster waters.
The proposed criteria were expressed as a geometric mean, but the preamble
for proposal also requested specific comments on whether to apply any recreational
criteria to shorter time frames, such as the single-sample criteria in current
federal guidance. The EPA, F&A, NWF, TCONR, and nine individuals requested
that a criterion for a single sample be included if the new recreational criteria
are adopted.
The commission notes that adding a single-sample criterion has the disadvantage
of complicating the evaluation of standards attainment for recreational use.
However, a single-sample criterion does provide a better indication of potential
short-term problems than the geometric mean, and there is substantial public
support for a short-term indicator. Therefore, the commission adopts single-sample
criteria for recreational indicators. The single-sample criterion for contact
recreation in freshwater is an
E. coli
concentration
of 394 per 100 milliliters, which is based on an upper confidence level of
82% and a log standard deviation of 0.52. The upper confidence level of 82%
is taken from the current federal guidance for applying
E. coli
criteria to moderate full body contact recreation, and the
log standard deviation is the average of the log standard deviations which
were calculated individually for 126 sampling stations in Texas waters. The
single-sample criterion for contact recreation in saltwater is an Enterococci
concentration of 89 per 100 milliliters, which is based on an upper confidence
level of 82% and a log standard deviation of 0.7. The upper confidence level
of 82% is taken from current federal guidance for applying Enterococci to
moderate full body contact recreation, and the log standard deviation is the
default value in the current federal guidance. The single-sample indicator
for fecal coliform for contact recreation is set at 400 per 100 milliliters,
as it was in the previous standards. Standard deviations and other information
used to establish these general-purpose single-sample indicators are subject
to re-evaluation upon the next triennial revision of the standards. Both the
criteria for geometric mean and the criteria for single samples are applicable
to evaluations of standards attainment. Appropriate sample size and the frequency
of exceedance of single-sample criteria which constitutes an impairment of
a recreational use are addressed in
TNRCC Guidance
for Screening and Assessing Texas Surface and Finished Drinking Water Quality
Data
. The commission also adopts the proposed narrative concerning
areas where local jurisdictions provide public notice or closure based on
water quality at designated swimming areas. However, the adopted narrative
does not specify a single-sample criterion for the purpose of providing notice
or closure at designated swimming areas. Instead, the adopted narrative allows
substantial local flexibility and alternative measures, such as turbidity
or local rainfall that can be related to bacteria levels. Examples of applicable
criteria for designated bathing beaches and similar designated swimming areas
are noted in documents such as EPA's
Ambient Water
Quality Criteria for Bacteria--1986
, which recommends a single-sample
criterion for
E. coli
in freshwater of 235
per 100 milliliters, and a single-sample criterion for Enterococci in saltwater
of 61 per 100 milliliters.
In addition to the change in indicator bacteria for contact recreation,
the commission received substantial comments on the proposed change in the
way that data is used to assess standards attainment for recreation. For water
bodies designated for general recreation, attainment would be assessed by
including only those samples which were collected when contact recreation
was considered to be suitable in terms of flow, depth, and weather. For water
bodies designated for high-use contact recreation, samples collected at all
conditions would be included in assessing attainment. General contact recreation
would apply to rivers and streams, and high-use contact recreation would apply
to lakes, reservoirs, saltwater bays, and the Gulf of Mexico. The UTHSC specifically
expressed support for this change, but numerous commenters, including Austin,
FUSE, LPCASS, NWF, SC-Houston, TCONR, TPWD, and 227 individuals objected to
or expressed concerns about the way that attainment would be assessed for
general recreation. Concerns were expressed that the methodology for determining
when recreation was considered suitable was not established, and that general
recreation would be inappropriately applied to some rivers which were extensively
used for contact recreation under a variety of conditions. The EPA commented
that procedures for designating additional water bodies for high-use contact
recreation should be developed. The LCRA and SC-Houston requested that specific
riverine areas be designated for high-use contact recreation. The TCONR recommended
a designation of high-use contact recreation for riverine areas in or adjacent
to state parks, local parks, and other locations known to be used frequently
for contact recreation.
In response to these numerous comments and concerns, the commission deleted
the proposal to assess contact recreation only when conditions are suitable.
Similarly, the proposal to divide contact recreation into general and high-use
categories was deleted from §307.7(b)(1) and from the presumed application
of these categories to unclassified water bodies in §307.4(j); and the
proposed definitions of these two categories were deleted from §307.3.
However, the commission affirms the merit of assessing recreational criteria
only when conditions are suitable for recreation. The EPA guidance criteria
were developed entirely from data at swimming beaches in good weather and
with suitable swimming conditions; therefore, the criteria were not designed
to effectively address streams during the very high or low flows that are
included in routine monitoring. Inaccurate assessments of recreational impairment
can occur without a procedure to consider flow variability, physical conditions,
and the high bacteria concentrations common even in relatively unpolluted
rainfall runoff. Procedures to implement this approach will continue to be
developed, so that it can be fully considered in the next revision of the
water quality standards. To the extent possible, the agency will obtain additional
information during sampling of bacterial indicators in the interim period,
so that recreational suitability can be estimated from available data when
and if this approach is adopted.
Numerous commenters expressed concern that the proposed changes in recreational
criteria might inappropriately remove water bodies from the state list of
impaired waters which is established under Section 303(d) of the federal CWA.
F&A, NWF, and 287 individuals requested that the commission provide an
evaluation of how the proposed changes to recreational criteria would affect
the state list of impaired waters. The TCONR requested that the commission
provide written assurance that water bodies would not be removed from the
list without adequate supporting data to indicate that the new criteria are
met, and TCONR also requested that the criteria for fecal coliform continue
to be used to add new water bodies to the list until sufficient data for the
new indicators is available. Two hundred eighty-seven individuals requested
that the water bodies not be removed from the state list of impaired waters
until they are cleaned up.
The commission responds that water bodies which are listed as impaired
for recreational use will not be removed from the list solely because of the
change in bacterial indicators. As indicated in previous responses, the assessment
of recreational attainment will continue to use fecal coliform as the criterion
for recreation until sufficient data is available to apply the newly adopted
indicators. However, the commission anticipates a water body will be delisted
if and when adequate data using the new indicator demonstrates the standard
is met under the new indicator.
The TCONR requested that additional specificity be added to the water quality
standards, rather than in a guidance document, concerning the minimum number
of samples and other data requirements for assessing attainment of recreational
uses. The TCONR also suggested that the geometric mean criterion be evaluated
with five or more samples collected over a 30-day period. The TML/TAMSA suggested
that the annual geometric mean of
E. coli
be based on a minimum of nine samples taken during conditions that are representative
of flow and seasonal variations.
The commission responds that the adopted standards establish a reasonable
framework for the criteria, and further details on recommended procedures
for assessing standards attainment are provided in
TNRCC Guidance for Screening and Assessing Texas Surface and Finished Drinking
Water Quality Data
. Additional discussion concerning the appropriate
role of this guidance document in assessing standards attainment is provided
in the responses to comments on §307.9.
Austin suggested that the provisions for assessing recreational indicator
bacteria should not include the requirements that five samples be collected
in 30 days.
The commission concurs and notes that the proposed and adopted procedures
for assessing criteria do not include a requirement for five samples collected
in 30 days.
The EPA requested clarification concerning if and how permit limits for
fecal coliform,
E. coli
, or Enterococci would
be established for various averaging periods.
The commission responds that the recommended procedures for determining
permit limits for indicator bacteria will be considered in revisions of the
standards implementation procedures. The commission notes that recreational
criteria are not presumed to be directly applicable to discharge effluent
at "the end of pipe." In addition, averaging periods and other permit conditions
may be different than those specified for instream criteria. Consideration
of permit conditions for recreational bacteria may also consider the same
kinds of factors that are considered for assessing instream compliance, such
as evaluating a frequency of exceedance for single-sample indicators. Limits
for the geometric mean and individual grab samples may also reflect performance
expectations for a particular type of discharge and expected instream conditions
during discharge.
In §307.7(b)(1), SC-Houston requested that the term "reasonably controlled"
be defined in the statement that "Classified segments are designated for contact
recreation unless elevated concentrations of indicator bacteria frequently
occur due to sources of pollution which cannot be reasonably controlled by
existing regulations or contact recreation is considered unsafe for other
reasons such as ship or barge traffic."
The commission responds that a specific definition of this term is not
necessary. In practice, the designation of noncontact recreation has only
been applied in very limited circumstances, and a use-attainability analysis
and a site-specific revision in §307.10 would be required for this designation.
The TCONR requested that the commission acknowledge that additional or
different recreational indicators may be considered in future rulemaking as
more information on pathogens in the water becomes available.
The commission acknowledges that the adopted recreational indicators are
still imperfect, and future scientific evidence may eventually provide better
indicators. The commission will consider incorporating improved indicators
in future revisions of the water quality standards. Better indicators are
unlikely to be readily available in the near future, however, and the adopted
indicators are expected to be the best available for an extended period of
time.
Solutia and TCC requested an additional sentence which stipulates that
standards for contact recreation do not apply to navigation areas such as
barge slips and turning basins, since these areas are not safe for recreation.
The commission responds that the following statement, which is now in §307.7(b)(1),
adequately addresses noncontact recreation: "Classified segments are designated
for contact recreation unless ... contact recreation is considered unsafe
for other reasons such as ship or barge traffic." In accordance with EPA requirements
in 40 CFR §131, designations of noncontact recreation for individual
water bodies will require a use-attainability analysis and a site-specific
revision in §307.10.
In conjunction with the above responses, the commission also updates the
reference to recreational criteria in buffer zones of oyster waters in §307.7(b)(3)(B).
SECTION 307.7(b)(3)
The NWF opposed application of Table 5 to classified segments as proposed
in §307.7(b)(3)(A) and expressed the following concerns. The proposal
would expand calculating dissolved oxygen (DO) concentrations in streams to
all waters in east Texas and would override segment criteria. The study of
least impacted streams is not applicable to larger streams, such as those
which are classified segments. In §307.7(b)(3)(A)(iv), TNRCC is allowing
further, apparently unlimited, deviation from the provisions of the standards
by allowing further modification of Table 5 factors which could be used to
modify designated criteria. The commenter proposed that the commission delete
proposed §307.7(b)(3)(A)(iv). NCE stated that an explanation for the
changes in Table 5 is needed for public comment.
The commission disagrees and responds that the application of Table 5 flow
values to classified and unclassified water bodies will be limited to streams
and rivers that have 7Q2 flows that fall within the range of flows shown in
Table 5 for an applicable aquatic life use. There are several segments in
the eastern portion of the state that have 7Q2 flows within the flow range
covered by Table 5. Twelve percent of the ecoregion streams sampled in the
eastern portion of Texas are classified segments. The application of the regression
equation is therefore equally valid for classified streams as it is for unclassified
streams since the data is from least impacted streams, regardless if the streams
were classified or unclassified. The ability to adjust factors at a particular
site is justified since the original regression equation uses data from multiple
streams to predict average DO. Also Table 5 is actually a simplified version
of the regression equation depicting expected average DO at a given bedslope
and stream flow, with a third factor being held constant. When investigating
a particular site, other factors such as local hydrology or temperature may
become important factors in determining DO concentrations. These factors are
consistent with those used in TNRCC water quality simulation models. The commission
responds that the changes in Table 5 were summarized in the preamble to the
proposed revisions, and the explanation of how Table 5 is employed is adequately
explained in §307.7(b)(3)(A) and in the standards implementation procedures
and adopts the revisions as proposed.
The TPWD wondered if the language in the third to the last sentence in §307.7(b)(3)(A)(ii)
should state "...at or above an assigned, designated or presumed aquatic life"
use rather than ". . .at or below . . .."
The commission responds that the wording is correct as stated in the proposed
revisions. The level of dissolved oxygen which is specified in Table 5 is
applicable at the assigned, designated or presumed aquatic life use at the
indicated stream flows; and the dissolved oxygen criteria applicable for lower
aquatic life uses are applicable at the lower indicated stream flows.
SECTION 307.7(b)(5)
Numerous comments were received on proposed §307.7(b)(5) concerning
additional uses. The ED, EPA, F&A, FUSE, GBEP, GBF, LPCASS, NWF, SCLS,
TAMU-CC, TCEA, TCONR, TCPS, TGLO, TML/TAMSA, TPWD, TSA, UT-Tyler, and 410
individuals expressed general support of the proposed language to add seagrass
propagation as an additional use and FUSE, GBF, NWF, TML/TAMSA, UT-Tyler,
and 287 individuals expressed general agreement to add wetland water quality
functions as an additional use. TAMU-CC, TCONR, TCPS urged the commission
to adopt stronger language to protect seagrass by establishing water quality
criteria for seagrass. POCCA and TSSWCB did not agree with the proposed seagrass
language and DOW, TWCA, and Utilities did not agree with the proposed language
for wetland water quality functions. TML/TAMSA suggested that seagrass propagation
and wetland water quality functions be maintained where these uses occur naturally.
EPA recommended that seagrass be established as a designated use similar to
the oyster waters use under the subcategory of aquatic life use and also recommended
that seagrass propagation be included as a designated use and described segment
by segment in Appendix A in §307.10.
Seagrass propagation and wetland water quality functions are important
uses that need to be protected. The commission agrees that seagrass propagation
should be a separate use but is not proposing specific numerical water quality
criteria for seagrass at this time. The commission may consider additional
numerical criteria needed to support the seagrass use in future water quality
standards revisions. The adopted additions of separate uses for seagrass propagation
and wetland water quality functions apply to existing significant stands of
submerged seagrass and wetlands. Existing uses are defined in §307.3(23).
The commission recognizes the utility of designating seagrass as a use under
the subcategory of aquatic life use and including the designated use in Appendix
A. However, additional evaluation is needed before designating seagrass uses
to specific water bodies in Appendix A, and these designations may be considered
in future revisions of the water quality standards.
SECTION 307.8
Austin, D-Koch, and NWF suggested that the condition to preclude acute
criteria at flows less than one-fourth of the 7Q2 in §307.8(a)(2) should
be removed and that acute criteria should apply at all flows. D-Koch also
commented that not applying acute criteria below one-fourth 7Q2 would not
provide for a zone of passage for aquatic organisms. The EPA noted that they
interpreted the standards as indicating that lethality is prohibited at all
stream flows.
The commission responds that the implementation of a critical low-flow
for acute criteria is needed in order to establish an instream design flow
for calculating effluent limits for wastewater discharge permits. In addition,
this proposed change is compatible with the existing water quality standards,
which already state in §307.8(b)(2)(A) that ". . .ZIDs (zones of initial
dilution) in streams and rivers shall not encompass more than 25 percent of
the volume of stream flow at or above seven-day, two-year low-flow stream
conditions." The proposed change will create internal consistency within the
standards. It is not intended to change current permitting procedures, nor
to change measures of compliance with existing permits. The narrative existing
language for protection of zones of passage in §307.8(b)(6), and for
protection from lethality in zones of initial dilution in §307.8(b)(2)
still apply. The commission notes that this change, and the commensurate change
in §307.6(c)(6), is in accordance with the EPA's guidance document,
The NWF stated that the inapplicability of numerical criteria to storm
water as stated in the second sentence in §307.8(e) may provide for a
specific regulatory exception. The EPA suggested that the statement, "numerical
criteria are frequently not applicable to the short term effects of storm
water" could be changed to "may be temporarily exceeded."
The commission agrees that this statement is unclear, and this sentence
has been removed. In addition, descriptive language dealing with the short-term
effects of storm water on water quality does not apply to this specific rule
and is more suitable within regulatory guidance, and this proposed language
is also removed from §307.8(e) in the adopted rule.
The CS, Lloyd, Gosselink, NWF, TML/TAMSA, and SC-Houston indicated that
the determination of water quality violations based upon the presence or absence
of human activity as stated in §307.8(e) would be difficult and creates
ambiguity when assessing water quality exceedances. Many of the watersheds
that are assessed are impaired to some degree by human activity. Therefore,
determinations of violations due to these influences would not appear to be
realistic. The NWF suggested that the determination as to whether the exceedance
is caused by human activity creates an obstacle for the protection of water
quality. It would be difficult to discern whether the exceedance was due solely
to human activity and thus would prevent the commission from taking action
when a violation did indeed occur.
The commission agrees that this statement introduces confusion and as a
result the sentence concerning violations and human activity has been removed.
Violations will be determined based upon the implementation of best management
practices, technology based effluent limitations, or both in combination with
instream monitoring.
The TML/TAMSA suggested that the violation should not be considered unless
the exceedance is caused by human activity and persists during normal flow
periods.
The commission responds that this approach could potentially allow designated
or existing uses to be impaired as a result of additional discharges during
high flow events. References to storm water and human activity have been removed
from this section, as discussed in previous comments and responses.
The NWF suggested that a definition should be included for "wet weather"
as it pertained to storm water discharge.
Due to other changes in response to comments in this section, the words
"wet weather" have been removed and thus, does not require definition.
Austin stated that the applicability of standards is unclear in §307.8(e)
and that the
Guidance for Screening and Assessing
Texas Surface and Finished Drinking Water Quality Data
states that
screening may also include data collected at high-flow periods.
The application of standards during storm water conditions refers to instream
standards and not to storm water discharges. Any exceedances of water quality
standards would be determined by instream monitoring during low-flow periods.
Corpus Christi objected to the imposition of best management practices
to protect water quality uses, and stated that there is no basis for a city
to demonstrate when a particular BMP is inappropriate, nor are there safeguards
to prevent TNRCC from imposing requirements affecting land use management
and development. SAWS commented that implementation of BMPs is proposed without
fully identifying criteria for assessing need, efficacy, or cost/benefits.
Conversely, TXDOT and TCC supported the use of BMPs in storm water permitting.
The commission responds that the potential use of BMPs is an important
option for storm water permitting, particularly as one alternative to storm
water outfall effluent limits, which are extremely difficult to develop and
which may not be achievable. Compliance with the requirements of BMPs to control
pollution during high-flow events will be done through the use of instream
monitoring during normal-or low-flow periods. The commission also notes that
this approach is in accord with current federal NPDES storm water permits,
and these provisions do not establish new regulatory authority or requirements.
SECTION 307.9
Several commenters stated that the TNRCC guidance for screening and assessing
Texas surface water quality data (referred to in the proposed rule as the
most recently adopted edition of
TNRCC Guidance for
Screening and Assessing Texas Surface and Finished Drinking Water Quality
Data
) should not be used for determining standards attainment. They
argued that the document should be used only for screening purposes and not
for assessing standards compliance. Most all of these commenters also made
the specific recommendation that the document be subject to a formal public
review, comment period, and rule making process. TCC commented that the information
contained in the document needs to be adopted by rule, arguing that the procedures
for adopting the document currently do not require a response to comments.
TML/TAMSA commented that frequency, duration, and magnitude of exposure to
a pollutant are important components to a determination of standards attainment
which should be described in the agency rule rather than a guidance document.
TML/TAMSA also raised the concern that the guidance document changes too often
for those affected by it to be able to keep abreast of the commission's methods.
The commission disagrees with the commenters who suggest that the guidance
document must be adopted by rule. The commission responds that the adopted
standards rule provides the framework for regulatory determination of standards
attainment. The latest adopted version of the guidance document is used to
provide additional details concerning how numerical criteria can be compared
to instream conditions. In most instances, instream criteria are compared
to numerical criteria established in the water quality standards. In the case
where sufficient monitoring data for exact comparisons do not exist or where
numeric criteria have not yet been developed, compliance is sometimes estimated
using screening levels. Screening levels are intended to provide the best
comparisons that can be reasonably attained with available data and numerical
criteria in the water quality standards. The guidance document has resulted
from the available science; it is not intended to be exclusive or unchanging.
The commission believes it represents the best use of available data and current
assessment methodologies.
It would be unreasonable to revise the water quality standards at the frequency
necessary to keep information current in the guidance document. The recent,
typical pattern has been to revise the document cyclically, prior to completing
the assessment of surface water quality conditions in the state. The cycle
has run either annually, corresponding to the commission's basin cycle, or
once every two years, corresponding to the federal minimum requirements for
a surface water quality inventory. An additional consideration is the need
to adjust the guidance to allow for evaluation and possible incorporation
of changes evolving at the federal level. In the past few years, the EPA has
placed considerable focus on the methods which each state should use to assess
attainment of water quality standards. For all these reasons, making the more
flexible guidelines into a rule is not a practical solution to the concerns
commenters may have with the current guidance.
The commission recognizes the high level of stakeholder interest in guidance
for assessing standards attainment.
The guidance document has received external public review, particularly
by Clean River Program partners and other monitoring entities. However, the
commission responds that it agrees with the commenters that additional public
participation is desirable and has already initiated a process to implement
improvements on the next update of the guidance document. This year, the commission
is convening an
ad hoc
work group composed
of a broad spectrum of interests to receive input into an amended guidance
document. The next revision of the guidance document will be subject to more
public review and comment than have past versions. A response to comments
will be developed. If there are comments which reveal the need for rule making,
they will be considered by the commission for incorporation into the water
quality standards. In deciding whether to prepare a CWA §303(d) List
for submittal in April, 2001, the commission will consider the need for additional
time to develop this enhanced process of public involvement. It is important
to take the necessary time for greater involvement of stakeholders and the
general public before proceeding with a new assessment of impaired water bodies.
The commission has adopted revised language in this section in the various
references to the guidance document. Rather than referring to
TNRCC Guidance for Screening and Assessing Texas Surface and Finished Drinking
Water Quality Data
as the "latest version" or the "latest adopted version,"
all references now refer to it as the "latest approved version." What this
means administratively is that before the executive director begins using
a revised guidance, it will have been approved by the commission, after completion
of the public participation process described above.
The LCRA suggested that the procedures manual referenced in §307.9,
entitled
TNRCC Receiving Water Assessment Procedures
Manual
, needs incorporation into rules. LCRA commented that the document
needs a process for the river authorities and other Clean Rivers Program partners
to review and recommend changes to TNRCC. TCC commented that it does not object
to this procedures manual being referenced in the rule, since it pertains
to methods used to collect and analyze samples.
In response to these comments, the commission believes that procedures
for collection and analysis of scientific data falls outside of the scope
of the water quality standards and need not be identified by rule. Nonetheless,
since river authorities like LCRA are often asked to follow the procedures
in the
TNRCC Receiving Water Assessment Procedures
Manual
, the commission does agree with the comment that there should
be efforts to receive and incorporate appropriate comments into the document
before it is finalized. The commission will do so on future revisions of the
existing procedures manual.
The SRA stated that the guidance document entitled
TNRCC Guidance for Screening and Assessing Texas Surface and Finished Drinking
Water Quality Data
does not include methods for determining compliance
with the new proposed contact recreation standards.
The commission acknowledges this comment and responds that it has awaited
the final adoption of revised water quality standards before it will proceed
with revisions to the guidance document. Indeed, the adopted version of the
contact recreation standards includes several modifications from what was
proposed, to incorporate substantial public comment, as described earlier
in this preamble.
The SRA commented that the guidance document entitled
TNRCC Guidance for Screening and Assessing Texas Surface and Finished Drinking
Water Quality Data
describes the support or nonsupport of the contact
recreation standard in contradictory terms, when comparing the guidance document
to proposed §307.9.
The commission responds that with the adoption in the water quality standards
of a single sample maximum for contact recreation use attainment, the new
criterion will be implemented more accurately into the guidance document.
As previously described, the commission is seeking to revise the guidance
this year and will ensure it is consistent with the water quality standards
prior to completing the April, 2002 list of impaired waters.
Austin stated that the revised language in §307.9(b) needs clarification
to include the technical staff in decisions to accept samples collected from
unapproved locations.
The commission agrees and has revised the language to clarify that the
agency will review alternate sample locations. The commission notes that it
is a crucial role of the agency to determine the appropriateness of surface
water quality sampling locations. The agency puts considerable effort into
setting up a coordinated monitoring schedule each year. Approved monitoring
locations must be consistent with data needs and represent the water body
being assessed. Also, after further evaluation of the proposed amendment of
this subsection, the commission believes the proposed title of the subsection
"Sampling Locations" narrowed the scope beyond what the existing standards
specified. For this reason, the proposed title has been deleted to make it
clearer that the agency is responsible for judging both the representativeness
of samples and their location of collection.
The EPA commented that procedures for assessing the vertical extent of
a mixed surface layer for tidal waters and non-tidal flowing streams should
be included in the rule.
The commission responds that recommended procedures for assessing the extent
of the mixed surface layer in tidal waters is more appropriately included
in the guidance document, as referenced in §307.9(c)(2). In the current
guidance, a mixed surface layer for a tidally-influenced water body is described
as the portion of the water column from the surface to the depth at which
the specific conductance is 6,000 µmhos greater than the conductance
at the surface. For reservoirs, it is described as the portion of the water
column from the surface to a depth at which the water temperature decreases
by greater than 0.5 degrees Celsius. However, this recommendation for the
mixed layer has been changed several times in the guidance as additional statewide
data on vertical stratification is collected and evaluated, and the same recommendation
for the mixed layer may not always be appropriate for every water body. Therefore,
these guidelines for determining the mixed layer are currently presented in
the guidance document rather than in the standards.
The EPA commented that the rule should clarify where in a water column
the dissolved oxygen minima apply. Also, EPA and NWF commented on §307.9(c)(3)
that dissolved oxygen criteria should be applied to the whole water column,
not just the mixed surface layers of tidal water and non-tidal flowing streams.
The NWF commented that the wording changes proposed for non-tidal flowing
streams and tidal waters is a lowering of the existing standards since a mixed
surface layer would be expected to have a higher dissolved oxygen concentration.
The commission responds the proposed language, the revisions it has made
to §307.9(e)(6)(B), and the definitions of mixed surface layer, taken
together describe where and how the dissolved oxygen minima are to be applied
for standards attainment purposes. The commission disagrees that the changes
to §307.9(c)(3) result in a lowering of the standards and has adopted
the proposed changes. For non-tidal flowing streams, thermal stratification
is only likely to occur, if at all, when stream discharge, velocity, and turbulence
are low. The commission concludes that in such a situation, the conditions
in the mixed surface layer are representative of the stream's aquatic life
use attainment. This corresponds to dissolved oxygen profiles in a reservoir
when stratification occurs and oxygen is consumed through respiratory processes
in the hypolimnion. The commission's proposal for tidal waters represents
a rewording of the previous requirements that separately described bays and
tidal streams. The previous standard included consideration of only the mixed
surface layer in a tidal stream with density stratification. For bays, the
revision replaced a standard that did not consider unnaturally-occurring bottoms
(dredged channels) in bays as subject to the dissolved oxygen criteria. The
commission also notes that bays in Texas are shallow and generally well-mixed.
Stratification occurs in association with deeper and less mixed dredged channels.
For these reasons, the commission believes these changes to the rule do not
lessen the stringency of how the dissolved oxygen criteria are applied and
the revisions improve and clarify the commission's procedures for measuring
attainment.
Austin, EPA, and TML/TAMSA commented that the sampling periodicity and
evaluation for chloride, sulfate, and TDS, as proposed in §307.9(e)(1),
is unclear and may cause non-representative sampling.
The commission agrees and has revised the language to provide clarity to
reflect sampling periodicity and evaluation procedures. Additional details
beyond the basic framework of the water quality standards are provided in
the guidance document.
The NWF and TCEA commented that they object to the absence of a single
sample maximum as a measure of standards attainment for contact recreation
uses.
The commission agrees with the commenters, as previously described in the
commission's response to comments on §307.7(b)(1). Additionally, §307.9(e)(3)
has been adopted with revised wording to correspond to §307.7(b)(1).
The TML/TAMSA commented on §307.9(e)(4) and §307.9(f) with specific
proposals for measurement of standards attainment for numerical acute toxic
criteria, numerical chronic toxic criteria, determinations of total toxicity
attainment, attainment of numerical human health criteria, and determinations
of biological integrity.
The commission responds that it appreciates the comments and the effort
taken to develop these suggested measures. These comments are useful in the
dialogue the commission will begin this year with interested parties to refine
and revise the current guidance established in
TNRCC
Guidance for Screening and Assessing Texas Surface and Finished Drinking Water
Quality Data
. However, the commission believes it would be inappropriate
to adopt any suggested measures at this time since specific proposals must
first be considered and receive public comment.
The TPWD, EPA, and NWF commented on proposed §307.9(e)(6)(B) that
the proposed language removes the requirement to measure dissolved oxygen
during the periods when it will be at its lowest. They suggest that an effort
should be made to assess 24-hour dissolved oxygen or take instantaneous measurements
in the early morning hours.
The commission responds that over the years it has collected extensive
data which has assisted in evaluating diel trends of dissolved oxygen in Texas
waters. While early morning may generally result in observations of a dissolved
oxygen minimum, the minimum can occur later in the day as well. For instance,
this occurs in streams with heavily shaded banks. It is for this reason that
the proposed language deleted the phrase referring to collections within two
hours after sunrise. Nonetheless, the comments have led the commission to
further evaluate this issue. In response, the commission has adopted language
which clearly states its protocol for dissolved oxygen attainment. The language
states that it will compare a 24-hour average dissolved oxygen criterion to
the average of values measured over a diel period. The commission will compare
a minimum dissolved oxygen criterion to the result obtained from a single
sample measurement.
The commission notes that time of day is an important factor in evaluation
of instream dissolved oxygen values. However, it is but one of several considerations
in the evaluation of these type data. Other important considerations determine
how representative a dissolved oxygen sample may be. These include, but are
not limited to, sample location within a water body which has a variety of
habitats, depths, and mixing, the range of values by depth, the discharge
flow of a stream, whether the discharge flow is at or below its assessed seven-day,
two-year low flow, the percent saturation of dissolved oxygen, and the extent
to which the water body has been assessed. For these reasons, it is critical
that any person, group, or monitoring entity evaluating any one criterion
or data set should be cautious in making a binding attainment decision based
on the data set.
The GBF, SC-Houston, and NWF commented on proposed §307.9(f) and stated
that the inclusion of biological integrity to the components being assessed
is a positive step, but the commenters expressed concern with the possible
manner in which the commission might apply biological integrity to assess
aquatic life use attainment. The commenters urged the commission to undertake
further public participation before proceeding with the rule's adoption. NWF
questioned the manner in which the commission will use biological integrity
as an assessment tool. The commenter expressed concern that the commission
will use biological integrity as one of many factors in evaluation of aquatic
life use attainment, with a weight of evidence approach. For instance, determining
aquatic life use is attained due to the biological integrity assessment, in
spite of numeric dissolved oxygen criteria showing nonattainment.
The commission responds that it is a positive step to formalize biological
integrity in the water quality standards as an assessment tool. This approach
is consistent with the existing permitting program which uses receiving water
assessments to characterize the aquatic life use which can be attained in
receiving waters. The commission's intent is to note that biological integrity
is an additional measure for assessment of water quality standards compliance.
The commission has adopted the new subsection and will use this new framework
as a starting point. The commission will seek the refinement of the guidance
document entitled
TNRCC Guidance for Screening and
Assessing Texas Surface and Finished Drinking Water Quality Data,
which
will include a broad-based effort to describe guidelines for assessing biological
integrity. Simple inclusion of this measure is not intended to contravene
compliance with other existing requirements of the water quality standards.
The SC-Houston and TPWD commented that the proposed language in §307.9(f)
describes species abundance and diversity but precludes other aspects of biological
integrity such as the health of organisms. The commenters suggested a more
broad definition.
The commission agrees and has amended the language to avoid conflict with
the definition of biological integrity as provided in §307.3 of this
title (relating to Definitions and Abbreviations).
The NWF commented on proposed §307.9(g) by indicating that the method
for making narrative criteria meaningful is through the determination of standards
attainment. The commenter urges the commission to make the process of approval
of guidance such as
TNRCC Guidance for Screening
and Assessing Texas Surface and Finished Drinking Water Quality Data
more participatory.
The commission has responded to the concern, as is previously described.
SECTION 307.10--APPENDIX A
Numerous comments were received relating to proposed site-specific revisions
in §307.10 Appendix A. The LPCASS expressed opposition to downgrades
for individual stream segments. Fifty-six individuals expressed opposition
to all downgrades. Some individual commenters, NFW, and TPWD expressed concern
that the downgrades have removed some water bodies from Tier 2 degradation
consideration. The GCA, EHMCA, and TCC supported all proposed site-specific
criteria and use designations.
The commission responds that water quality standards and criteria were
originally established to provide a high level of protection to most waters
in the state based on a limited amount of data. The commission used conservative
presumptions where information was lacking, so as to ensure that the highest
uses which could occur were protected. As more data are collected and evaluated,
it is appropriate to establish revised site-specific standards from time-to-time
to reflect actual existing and attainable uses and criteria. When such revisions
occur, they do not downgrade water quality, but rather set standards that
reflect actual stream conditions in relatively unimpacted areas. The commission
will continue to evaluate the applicability of Tier 2 of the antidegradaton
policy, in order to ensure that appropriate water bodies are included. The
site-specific revisions are based on additional and more accurate data, and
the commission is adopting them as proposed.
The PIC supported public participation in the Use Attainability Analyses
process.
The commission responds that the public hearing on the proposed water quality
standards provides an opportunity for public participation regarding the results
of use attainability analyses.
The SC-Houston expressed opposition to any weakening of water quality standards
for chloride, sulfate, TDS, or other criteria in §307.10, Appendix A.
The TPWD expressed concern that the criteria are being changed to accommodate
pollution and would like more information on the rationale of the changes.
The commission discussed the issue of dissolved minerals (chloride, sulfate
and TDS) with the Water Quality Standards workgroup and stated that those
criteria that are less than the secondary constituent levels for public drinking
water as specified in 30 TAC §290.113 would be grouped into classes.
No overt opposition to this approach was raised during the workgroup sessions.
The commission chose the following groups for chloride and sulfate criteria
(all values in mg/L):50, 100, 150, and 200. TDS criteria were generally grouped
by 100 mg/L increments from a minimum of 200 mg/L to 1,000 mg/L. Criteria
were calculated from period of record data for each segment using the commission's
procedure for deriving dissolved mineral criteria and then assigned to the
appropriate group. Segments with very low existing criteria were assigned
proposed criteria based on the general groups. The secondary constituent levels
are: chloride (300 mg/L); sulfate (300 mg/L); and TDS (1000 mg/L). Current
federal guidance contained in the EPA document entitled
Ambient Water Quality Criteria for Chloride-1988
recommends 230 mg/L
of chloride for chronic protection of freshwater aquatic life. A concentration
of 230 mg/L of chloride is protective of most aquatic invertebrate and vertebrate
communities. Of the 107 segments with a proposed change to at least one of
the dissolved mineral criteria, only six segments (0229, 1217, 1242, 2004,
2310, and 2312) were proposed with one or more of the dissolved mineral criteria
higher than the secondary constituent levels or a chloride criteria higher
than 230 mg/L. Of these, only Segments 1242 and 2310 are designated as public
water supplies. The justification for the revision to Segment 2310 is presented
in the response to comments provided by USIBWC. The proposed criteria for
Segments 1242 and 2312 are all lower than the existing criteria. The other
three segments did not exhibit any trends of increasing concentrations since
1987. The existing chloride criteria for all six segments already exceeds
230 mg/L; however, the proposed criteria are reflective of ambient chloride
concentrations in the segments and are protective of the aquatic life that
exists in these segments. The proposed change in the sulfate criteria to 500
mg/L for Segment 0613 was a typographical error as it should have been 50
mg/L which is being adopted. Data was supplied by the LCRA and Austin on segments
in the Colorado River Basin and some changes in the proposed criteria were
made after the commission reviewed the data. These changes are discussed under
the responses to LCRA and Austin comments. The sulfate criteria for Segment
2115 is revised back to the existing criteria. The proposed criteria are adopted
as modified.
The EPA supported the addition of aquifer protection in Appendix A to 14
segments in the Brazos, Guadalupe, and San Antonio River basins.
The commission adopts the revisions as proposed.
The EPA accepted the changes in Appendix A for Segments 0501, 0502, 0503,
1242, 1256, 1257, 1802, and 1803. It also accepts the more protective criteria
for minerals in Segments 1242 and 1256.
The commission adopts the revisions as proposed.
The EPA recommended that the seagrass propagation use be designated for
appropriate water bodies.
The commission did not propose this change because additional evaluation
is needed in order to assign a seagrass propagation use to specific water
bodies. These designations can be developed and considered for subsequent
revisions to the standards.
The TCONR, TCPS, and NWF expressed opposition to the proposed intermediate
aquatic life use for new Segment 0230, Pease River, which currently is a portion
of Segment 0220, Upper Pease River/North Fork Pease River. Rhodia supported
the proposed intermediate aquatic life use for new Segment 0230, Pease River.
The commission responds that the proposed creation of Segment 0230 with
an intermediate aquatic life use and associated dissolved oxygen criteria
is supported by a use attainability analysis. The use attainability analysis
determined that physical habitat and biological community characteristics
upstream of the City of Vernon were indicative of a limited aquatic life use.
Naturally occurring elevated concentrations of chlorides, sulfates and TDS
may also limit the biological community. Downstream of the waste water discharges,
both physical habitat and biological community characteristics improved to
intermediate quality. The commission concludes that an intermediate aquatic
life use is an appropriate attainable use for segment 0230 and adopts the
revision as proposed.
General opposition to the creation of Segment 0615 with an intermediate
aquatic life use was expressed in post cards and letters from over 1,109 individuals.
Petitions with over 3,000 signatures were also received which expressed opposition
to this change. The FUSE, F&A, TCEA, UT-Tyler, LPCASS, PIC, SC-Houston,
TCONR, and TCPS opposed the creation of Segment 0615 and the change in aquatic
life use from high to intermediate. SC-Houston opposed the intermediate aquatic
life use designation for the upper reaches of Sam Rayburn Reservoir. The TPWD
expressed opposition to intermediate aquatic life use designation for proposed
Segment 0615 and stated that the UAA was inadequate. They recommended that
more sampling is necessary before the proposed change is adopted and that
TNRCC should explore options that would limit the scope of the downgrade in
permitting decisions. The NWF expressed opposition to the proposed revision
because it sets a precedent to lower small portions of streams when dischargers
have difficulty meeting standards, that Tier 2 of the antidegradation no longer
applies, and that the studies do not support lowering the aquatic life use.
They also stated that the proposed change seems to be based more on economic
considerations than on science.
One individual, a biologist, commented that the study to support the change
in aquatic life use from high to intermediate was flawed and should not be
used to support the change. Several individuals wrote in opposition to lowering
water quality standards on the riverine portion of Sam Rayburn Reservoir.
Several individuals are local fishermen and expressed concern about the fishery.
Some of these commenters requested that TNRCC not lower the standards to accommodate
industry. Two individuals commented that if standards are lowered the water
quality and fishing industry will suffer and asked that TNRCC protect the
lake. One individual requested that TNRCC not let anyone pollute water of
the state and that TNRCC do the right thing. Another individual requested
that the TNRCC stop the dumping of waste into Sam Rayburn Reservoir. One individual
commented that they wanted Sam Rayburn Reservoir off the impaired list and
urged TNRCC to bring industrial and septic tank polluters into compliance.
One commenter requested that the pollution laws be strengthened. Another,
in opposition to the lowering of aquatic life use and creation of Segment
0615, also opposed any variances for the paper mill.
Seven hundred nine individuals submitted post cards which expressed opposition
to the proposed change in aquatic life use from high to intermediate in the
upper arm of Sam Rayburn Reservoir. They noted that Sam Rayburn Reservoir
was listed on the 303d list and expressed added concern that this change would
allow additional aluminum to be discharged to the reservoir.
Seventy-five individuals submitted form letters which included the same
language as on the post cards listed above to express their opposition to
the creation of the new segment in the Angelina River Basin.
Twenty-nine individuals submitted form letters which referenced three documents
available to the commission as evidence that the proposed change in designated
use for Segment 0615 of the Angelina River is not supported. They also expressed
concern that Sam Rayburn Reservoir has been identified as having water quality
impairments and the proposed change is not consistent with water quality improvement
goals of the agency.
Twenty-two individuals submitted form letters which strongly opposed the
proposed change in designated use and the creation of a new segment for the
upper portion of Sam Rayburn Reservoir.
Concerned Citizens for Clean Water provided a petition with 2,763 signatures
opposing the proposal to establish Segment 0615 in the Angelina River Basin
with an intermediate aquatic life use. The statement on this petition also
expressed concern that Sam Rayburn Reservoir was being considered for listing
on the 303d list as an impaired water.
Another petition with 241 signatures was received which expressed opposition
to the establishment of an intermediate aquatic life use for a portion of
Sam Rayburn Reservoir and about the proposed changes to criteria for aluminum
as it relates to Segments 0611 and 0615 in the Angelina River Basin. It also
expressed concern about the listing of Sam Rayburn Reservoir on the 303d list.
Under current federal regulations states have the primary responsibility
for establishing surface water quality standards for waters in the state within
the boundaries of the federal and state regulations and guidelines. In earlier
versions of the standards rule uses and criteria for some segments were established
without sufficient on-site water quality data and were based on limited information
available at the time. The statute provides for a three-year cycle for review
to allow appropriate revisions to be made that more accurately reflect existing
water quality and attainment goals for a particular body of water. Current
federal regulations also include provisions which outline procedures by which
states can develop information to support revisions to standards which more
accurately reflect appropriate site-specific conditions and goals. Approved
approaches that states may use to evaluate water body specific standards include
a determination of site-specific criteria that more accurately reflect peculiar
characteristics of the water body (primarily related to water effects ratios
dealing with toxic criteria), a use attainability analysis to determine water
body specific conditions which determine uses that can reasonably be expected
to be achieved, and an evaluation of significant economic and social circumstances
which may require standards adjustment. The State of Texas has focused on
the first two approaches because these are based on recognized technical evaluations
of the water bodies in question.
The use attainability analysis conducted for the upper reaches of Sam Rayburn
reservoir was conducted to determine the highest use that could be achieved
in that water body if it were relatively unimpacted by pollution. The study
achieved this by examining reference sites, as explained in the next comment.
The study resulted in a proposal to adjust the standards by creating a new
segment with uses and criteria which more appropriately reflect conditions
in this water body. The study was conducted exclusive of economic and significant
social circumstances in accordance with state and federal guidelines and regulations
related to quality control and quality assurance. Procedures used to conduct
the analysis are recognized as technically sound and have been used in other
areas of the state, such as segment 0704 Hillebrandt Bayou, segment 0841--Lower
West Fork Trinity River, segment 1245--Upper Oyster Creek, segment 1255--Upper
North Bosque River and several others to develop standards which more appropriately
reflect local conditions and water quality goals.
The study conducted by Donohue Industries Inc. (previously Champion International
Corp.) was conducted in accordance with a work plan developed in 1994 using
existing sampling protocols which were acceptable to the executive director
at that time. The sampling technique (boat electrofishing) selected by Donohue's
consultant was in their professional opinion the most suitable for use at
all the sites so that a representative comparison of the data could be made.
In 1996, after Donohue's study was complete, the executive director revised
the sampling protocols to stress that fish sampling should be conducted using
both electrofishing and seines, when possible. As indicated in the consultant's
report to the commission, seining was not possible at all of the sites sampled
during their study. Starting in 1998, the commission began sampling the Angelina
River at two sites located upstream and one site located downstream of the
Paper Mill Creek confluence. Although these sites were not at the same locations
as those used in the Donohue study, the commission personnel were able to
use both boat electrofishing and seining at the sites. The commission collections
averaged three more species per sampling event as compared to the Donohue
study for the upstream Angelina River sites. The majority of the fish species
collected in the commission samples was by the electrofishing technique. Overall,
the results of the sampling at the upstream Angelina River sites in both studies
are similar based on the average scores of the Index of Biotic Integrity.
The commission data also indicate that a high aquatic life use is not attained
at the upstream Angelina River site. The commission has reviewed data collected
from several sources, including substantive and extensive public comment,
and concludes that it is appropriate to create Segment 0615 in the Angelina
River basin with a designated aquatic life use of intermediate. The commission
further makes clear that this revision affects only a limited, riverine portion
of the watershed where the Angelina River enters Sam Rayburn Reservoir. The
amendment which is adopted does not affect the existing, designated high aquatic
life use for the main body of Sam Rayburn Reservoir.
Individual commenters challenged the validity of the scientific study conducted
to provide data to lower the aquatic life use and pointed out short comings
of the study. The commenters used other documents and information to indicate
that the reference sites were not appropriate. Some commenters requested more
information to help them understand how TNRCC determines the adequacy of reference
sites.
Much of the criticism of the Donohue study centers on the lack of seining
and the assumption that electrofishing tends to under represent smaller species
such as minnows and darters which are important components of the Index of
Biotic Integrity (IBI). It should be noted that the electrofishing effort
in the Donohue study considerably exceeded the effort normally considered
adequate in the TNRCC sampling protocols. Comparing the three Donohue samples
at the upstream Angelina River site to seven TNRCC samples at upstream Angelina
River sites, the TNRCC samples averaged one more minnow species and one less
darter species than the Donohue samples. The individual scores of the IBI
at the Angelina River site of the Donohue study fell within the range of scores
of the IBI at the Angelina River site of the TNRCC study. Therefore, the TNRCC
concludes that the Donohue sampling effort was adequate and comparable to
the TNRCC sampling effort. Reference sites are always used to determine aquatic
life use where there is an existing discharge. Reference sites are chosen
in two ways, either a site upstream or an adjacent watershed. A site is chosen
that is as similar as possible in hydrology, habitat, geology, and water chemistry.
The goal is to select a site that would be representative of the area downstream
of the discharge if the discharge were not present. For Segment 0615, sample
sites were located both upstream of Donohue's discharge and on an adjoining
watershed, Attoyac Bayou. Rarely are reference sites identical to those to
which they are to correspond. Attoyac Bayou is similar in hydrology and habitat
to that of the Angelina River, and therefore, serves as an adequate reference
site in conjunction with the upstream Angelina River sites.
One individual indicated that he had reviewed the report "Site-Specific
Dissolved Oxygen Criteria Development for the Riverine Reach of Segment 0610"
and offered questions concerning the relationship of water quality to desired
species and commented on holding times of samples. The individual believes
that the study should not be used to lower water quality standards because
of its short comings.
The studies collected fish and benthic invertebrates to determine aquatic
life use, but were not used and are not intended to be used to determine if
conditions were ideal for any particular species. The method for determining
aquatic life use takes into consideration feeding characteristics, numbers
and types of fish or benthic invertebrates, tolerance to stressful conditions,
hybridization, and diseases. The chemical and physical characteristics also
play a role in the types of fish and benthic invertebrates that would be expected
to occur. The proposed change in dissolved oxygen criteria would not alter
the types of organisms the agency would expect to occur in the newly proposed
segment. The agency has documented naturally occurring dissolved oxygen concentrations
of less than 5.0 mg/L as a 24-hour average in many East Texas streams which
still maintain a diverse fishery. The commission is unable to respond to the
comment concerning deterioration of samples because the comment did not state
what type of samples. The alleged shortcomings of the study noted by TPWD,
TNRCC regional staff, and others are responded to in the previous paragraph.
Some individual commenters raised concerns that the report "Site-Specific
Dissolved Oxygen Criteria Development for the Riverine Reach of Segment 0610"
indicates certain data collected at one of the reference sites was not used
and the commenters questioned the validity of not using this data.
The commission reviewed all of the data collected by Donohue and the regional
staff and used all of the data in determining the appropriate aquatic life
use to assign to Segment 0615.
One individual commenter with a mathematics background questioned the results
from Table 19 in the study "Site-Specific Dissolved Oxygen Criteria Development
for the Riverine Reach of Segment 0610" and commented that the results indicate
the reference sites support high aquatic life uses.
The method for determining aquatic life use in Table 19 was not used in
determining aquatic life use for Segment 0615. The TNRCC used the IBI, which
is widely used to assess fish communities and was adapted to Texas streams
and fish communities. This method of measuring biotic integrity directly evaluates
characteristics of a fish community, which provides a better picture of the
community than dissolved oxygen and habitat. The results from the two methods
would not necessarily be the same. The commission also evaluated the data
using a draft regional IBI developed by TPWD, which also resulted in a calculation
of an intermediate aquatic life use.
One individual expressed opposition to the creation of Segment 0615 and
the change from high to intermediate aquatic life use. This individual opposed
breaking up the existing segment into parts and commented that it was irresponsible
to alter the segment boundaries.
The new segment separates the riverine portion of the Angelina River from
Sam Rayburn Reservoir proper. The hydrology of Segment 0615 is different from
that of the reservoir. The new segment water levels fluctuate from riverine
to lake-like depending on the level of the reservoir, and therefore the creation
of the new segment is appropriate.
Some individual commenters noted that chemical measurements in the study
"Site-Specific Dissolved Oxygen Criteria Development for the Riverine Reach
of Segment 0610" and other data indicate the reference sites exhibit a dissolved
oxygen concentration above 5.0 and questioned why that information does not
result in TNRCC concluding the appropriate aquatic life use as high.
The commission bases aquatic life use on aquatic communities, not on dissolved
oxygen levels. Fish and benthic invertebrates are collected to assess those
communities. As previously noted, East Texas streams can have uncharacteristically
low dissolved oxygen levels but still support a diverse fish and invertebrate
community.
Some individual commenters cited letters and memoranda from technical staff
at TNRCC and at TPWD, which they stated supports a conclusion that the high
aquatic life use is appropriate. A TPWD letter in 1996 indicated that water
quality upstream from the Paper Mill Creek confluence is indicative of a high
aquatic life use. A 1996 interoffice memorandum from the TNRCC Beaumont Region
critiqued the study done for Donohue paper mill and recommended the standard
not be revised.
Subsequent sampling by TNRCC regional staff on the Angelina River addressed
the comments and concerns in both the letter from TPWD and the memorandum
from TNRCC technical staff.
Some individual commenters also included or referenced correspondence from
the United States Forest Service from 1996, which opposed downgrading of water
quality standards for East Texas waters.
The commission responds that the letter cited was one in opposition to
a proposal by the Donohue paper mill's predecessor. This request (to revise
the aquatic life use of the now adopted Segment 0615 to "low" with a corresponding
dissolved oxygen criteria of 3.0 mg/L) was not approved by the executive director.
The referenced letter also states a strong support for retaining a presumed
standard of high aquatic life use, and a corresponding dissolved oxygen criterion
of 5.0 mg/L. The commission responds and notes that it has no disagreement
with the statements in the letter, when in the context of denoting general
environmental conditions in streams in the state. However, this presumption
is modified when streams are accurately assessed and assigned actual or attainable
designated uses.
One individual submitted data from samples collected in the receiving waters
below the discharge of the Donohue paper mill and provided discharge information
from Donohue. Concerns were raised over the water quality conditions resulting
from the discharge into Paper Mill Creek, Angelina River, and Sam Rayburn
Reservoir. Several individuals opposed to the revision charged that the creation
of Segment 0615 was so that Donohue can continue to pollute Sam Rayburn Reservoir.
The comments included data collected on the Angelina arm of Sam Rayburn Reservoir
by two masters degree candidates. One individual commented that the upper
end of Sam Rayburn Reservoir and the Angelina River were dying due to drought
and poor water quality. The commenter stated that only gar (fish) were able
to survive and that there was black sludge filling in the lake. This individual
indicated that he provided the paper mill with information on ways to improve
water quality. The commenter has seen ducks stained by the black water and
fish dead because of the lack of oxygen. A commenter submitted a picture of
the confluence of Paper Mill Creek with the Angelina River which notes a black
plume of water associated with the paper mill effluent. One commenter provided
pictures of Sam Rayburn Reservoir following heavy rains in 1999 and the impact
of releases from sludge ponds at the paper mill. The commenter stated that
previous efforts to stop dumping into the river by the paper mill had been
unsuccessful. The individual mentioned that some plant and bird life had disappeared
and attributed it to the discharges from the paper mill. One individual commented
that TNRCC should not allow discharges into the lake, suspend any discharges,
and require those that have polluted Sam Rayburn Reservoir to pay for studies
and clean up and restoration, and stated that other industries as well as
individuals have to pay to clean up their pollution and so should the paper
mill.
The commission responds that it does not intend to allow surface water
pollution and that its goal is maintaining and improving the water quality
of Sam Rayburn/Angelina River watershed. Designation of uses and criteria
are made on the basis of specific quality-assured data collected to indicate
attainable uses. Significant water quality assessments of the watershed have
been performed by commission staff and by regional staff and private entities.
The TNRCC Beaumont regional office regularly monitors permit compliance and
effluent quality from the Donohue paper mill. The commission actively responds
to noncompliances with enforcement actions.
Water quality maintenance is achieved through permitting and enforcement.
A permit for discharge must include effluent limitations that will cause the
stream to meet or exceed the water quality standards. The Donohue paper mill
does not currently discharge at a quality that is necessary meet dissolved
oxygen requirements in the warm weather months. But, since the paper mill
currently operates under a variance from the current aquatic life use designation,
the adoption of the intermediate aquatic life use will result in a permit
amendment request. In the amended permit, the executive director will draft
final effluent limitations, a schedule for construction of wastewater treatment
facilities, and a deadline for completion not to exceed three years.
The executive director's draft amended permit is expected to include significantly
more stringent requirements compared to the current variance and is expected
to reduce biochemical oxygen demand (BOD) loading into the river and headwater
area of the reservoir. Consequently, the commission disagrees with commenters
who believe that existing water quality will degrade as a result of the standards
change. Based on current modeling protocol, the executive director expects
it will recommend the 30-day BOD daily average loading from the paper mill
will be reduced in the warm weather months by greater than 50%. The commission
suggests that the public and interested parties should participate in the
anticipated permitting process when the paper mill requests a permit amendment.
However, several individual commenters expressed concerns over stream conditions
outside the scope of today's rule amendments. The commission is not amending
these rules to revise its standards relating to color. As described elsewhere
in this response to comments, the commission is not adopting a site-specific
aluminum water-effects ratio. There are no Angelina River/Sam Rayburn Reservoir
site-specific revisions to the dioxin criteria being adopted.
One individual stated that the standard revision would result in an adverse
fiscal impact to the fishing industry because of the pollution in the reservoir.
As detailed above, the commission responds that its adoption of the intermediate
aquatic life use will likely result in the improvement of existing water quality.
The worsening of pollution would not likely occur. The commission disagrees
there would be a negative fiscal impact, because water quality is expected
to improve, and the reservoir will continue to support a healthy fishery.
One individual requested that TNRCC table the change in aquatic life use
or creation of a new segment until after the presidential election, and requested
that TNRCC talk to local individuals living in the area about the water quality,
and use local skills in making a decision. Another individual commented that
TNRCC should delay a change in the segment until after the modernization of
the paper mill was completed.
The commission responds that it has enough information supporting its decision
to adopt the standards change. However, it will continue to assess water quality
in the watershed and will continue to work closely with regional and local
governments in the area. Opportunities for interaction between the agency
and interested parties in the watershed exist for exchanging information,
setting water quality priorities, coordinating surface water quality monitoring
schedules, and targeting monitoring. Through the Angelina & Neches River
Authority, the agency implements many stakeholder participation efforts, associated
with the Clean Rivers Program, identification of water quality impairments,
and in development of TMDLs.
The commission disagrees that the paper mill should be modernized before
the standard is revised. Consistent with federal and state environmental requirements,
construction of required wastewater treatment facilities occurs once all commission
and EPA approvals for a standard change occur and the construction and proposed
discharge are authorized.
One individual commented that with modernization of the plant, jobs will
be lost, and the jobs that support the fishing and recreation on the lake
outweigh those that will be lost from the paper mill. Another individual suggested
a change in the standard be delayed until an economic study of the reservoir
is prepared by the TPWD. One individual commented that the paper mill would
remain profitable even if the aquatic life use remained high and that it would
just cost them more money to comply with the use. The commenter also questioned
why the Donohue paper mill would continue to spend $230 million if the mill
didn't think they could get the aquatic life use lowered. Several individuals
opposed to the change commented that retaining the high aquatic life use would
not result in closure of the paper mill, but would only reduce the profit
from the mill. Some individuals supplied references and other information
on zero discharge systems that should be an option for Donohue paper mill
instead of revision of the standard.
The commission responds that the decision to revise the standard is based
upon the results of the scientific studies carried out. The Donohue paper
mill did provide information on the feasibility of various treatment alternatives.
However, the commission's decision is not the result of an economic analysis
of options for management and disposal of wastewater at the Donohue paper
mill. The commission has not analyzed profitability of the paper mill. The
commission notes that other commenters on this rule amendment also offer points
of view on the issue of the paper mill's viability. The commission disagrees
there would be a negative fiscal impact on the fishing industry from this
adoption. The amendment of this rule will not result in a lowering of the
existing water quality.
The Cities of Lufkin and Nacogdoches, Agriculture, Angelina County, DETCL,
DEC, DETDA, Donohue Industries, the Honorable Jim Turner, LP, LCVB, LCCBC,
Lufkin Daily News, TXAFL-CIO, TFA, and TFIC, expressed support of the creation
of Segment 0615 and the assignment of an intermediate aquatic life use. Twenty-eight
commenters sent in a form letter which supported the new segment. One thousand
seven hundred ninety-nine commenters sent in post cards which supported the
segment creation and assignment of intermediate aquatic life use. One commenter
who supported the segment creation included a history of the paper mill in
Angelina County. Several commenters indicated that the commission was assigning
the appropriate aquatic life use to this section of the Angelina River. One
commenter who supported the new segment and criteria included extensive technical
information on the paper mill's biomonitoring, discharge, and permit limits
and on ambient conditions of dissolved oxygen and aluminum in Sam Rayburn
Reservoir. Nine commenters, including the Honorable Phil Graham and the Honorable
Kay Bailey Hutchison, requested that the commission consider science and/or
all of the facts when considering whether to adopt Segment 0615 and an intermediate
aquatic life use. One individual requested that the commission reclassify
the segment to reflect the studies performed. The chairman and executive director
of the Freshwater Angler Association supported the commission's use of sound
science in designating the segment and its aquatic life use. A large number
of commenters discussed the economic support the paper mill provides Angelina
County. Eight commenters supported Donohue Industries, Inc. Three commenters,
including LNVA, stated that they had never seen any evidence of ecological
concern in the portion of the Angelina River being designated Segment 0615.
One individual pointed out that the paper mill was very important to Angelina
County and that there should be a way to accommodate all sides of the issue.
One individual requested that the commission take a realistic look at the
paper mill and what it means to the City of Lufkin. One individual requested
that the commission consider the people of Lufkin as well as the scientific,
economic, and environmental data to create Segment 0615 and assign it an intermediate
aquatic life use. TLC requested that the commission aid Donohue in whatever
technical endeavors they are pursuing.
The Angelina County Chamber of Commerce submitted a petition with 128 names
and the International Brotherhood of Electrical Workers submitted a petition
with 60 names in support of the proposal to establish Segment 0615 in the
Angelina River Basin with an intermediate aquatic life use.
The commission appreciates the support for the proposed revision.
Comptroller provided comments relating to the economy of Angelina County
and notes that the county has been designated as a "Strategic Investment Area"
for the year 2000. This means that the county's unemployment rate is higher
than the statewide average and per capita personal income is lower than the
statewide average. The commenter stated that if the paper mill halts operations,
there would be an immediate loss of sales and employment in that industry,
plus indirect loss to businesses supported by the employees and operations
of the paper mill, particularly the services, retail trade, forestry and construction
industries. The loss of approximately 850 jobs at the paper mill would result
in a total loss of 4,300 jobs statewide within the first year of the paper
mill closing. The loss in employment would also result in the reduction in
Texas personal income of approximately $217 million.
The commission appreciates the receipt of the economic information.
Diamond-Koch supported the change in TDS from 400 to 700 milligrams per
liter on Segment 0902, Cedar Bayou Above Tidal.
The commission adopts the revision as proposed.
The EPA recommended that an aquatic life use be adopted for Segments 1006
(Houston Ship Channel Tidal) and 1007 (Houston Ship Channel/Buffalo Bayou
Tidal), and that the dissolved oxygen criteria be changed from 1.0 to 2.0
mg/L for Segment 1007 and from 2.0 to 3.0 mg/L for Segment 1006.
The commission responds that the existing uses and dissolved oxygen criteria
for Segments 1006 and 1007 are based on an EPA-approved use attainability
analysis. Furthermore, the EPA approved waste load evaluation does not indicate
that higher dissolved oxygen criteria can be achieved. Therefore, the commission
does not agree that reliable data indicates that the dissolved oxygen criteria
for Segments 1006 and 1007 should be raised at this time.
The LCRA expressed opposition to the increases in chloride, sulfate, and
TDS for the majority of the segments in the lower Colorado River. The LCRA
expressed concern that the proposed revisions do not include segment-specific
criteria for Segment 1433 for dissolved minerals and recommend a UAA for the
segment.
The commission responds that the LCRA provided data and recommendations
for revising some of the proposed dissolved minerals (chloride, sulfate, and
TDS) criteria for 14 segments (1402-1408, 1414-1417, 1428, 1429 and 1434)
in the Colorado River Basin. LCRA agrees with the proposed revisions for two
segments (1409 and 1427). After review of the LCRA data, the commission agrees
with some of the LCRA recommendations for changing the proposed criteria and
modifies some others. One or more of the dissolved minerals criteria are revised
from the proposal and adopted for the following segments: 1402-1408, 1414-1416,
1428, 1429, and 1434. The commission did not propose any change for Segment
1417 or Segment 1433, and therefore, cannot make any changes at this time
because the public would not be afforded an adequate comment period. Revision
of dissolved mineral criteria for Segment 1417 may be considered during the
next revision of the standards. Currently, a TMDL project relating to dissolved
minerals is underway for Segment 1411 and associated segments. Results of
the TMDL and other data will be used to develop criteria, as appropriate,
for these segments, including 1426 and 1433, in future standards revisions.
Odessa provided data on O.H. Ivie Reservoir, Segment 1433; E.V. Spence
Reservoir, Segment 1411; Lake J.B. Thomas, Segment 1413; and Moss Creek. The
city requested that the commission take this data into consideration in proposing
criteria for these water bodies.
The commission did not propose changes for these segments, and therefore
will not make the changes at this time because the commission has not fully
considered the proposals, and because the public has not been given the opportunity
to comment. Currently, a TMDL project relating to dissolved minerals is underway
for Segment 1411 and associated segments. Results of the TMDL and other data
will be used to develop criteria, as appropriate, for these segments, including
1426 and 1433, in future standards revisions.
Austin commented that it opposed the changes in chloride (Cl), sulfate
(SO
4
), and TDS criteria for Barton Creek and
Onion Creek and that separate historical data should be used to evaluate Barton
Creek. The changes are higher than the upper 95th percentile confidence limit
above the mean and changing the criteria would suggest that degradation could
occur. Data indicates that the increased values are associated with development.
As some development impacts are already being observed in Onion Creek, its
assessment should evaluate the baseline conditions as defined for antidegradation.
If lack of variability in the data provides tighter confidence limits, the
upper confidence limit should be implemented as the criteria for that segment
rather than a number exceeding it. The city also objected to raising criteria
concentrations in streams with Aquifer Protection designated uses. These values
exceed those currently found in springs in Barton and Onion creeks. The proposed
standards will allow degradation of recharge to an extent that the aquifer
protection use may be impaired.
The commission responds that neither the public water supply or aquifer
protection uses for Onion or Barton creeks would be affected by the proposed
revisions to the dissolved minerals criteria. The criteria are well below
secondary constituent levels as specified in §290.113. The commission
calculated Cl and SO
4
criteria from data provided
by the city on Barton Springs and will revise proposed criteria for Segment
1430, Barton Creek, to 50 mg/L for Cl and SO
4
.
Commission data on Onion Creek was re-evaluated and stations downstream and
upstream of I-35 were pooled into two groups. Based on separate calculations
on the two sets of data, the proposed criteria are appropriate for Onion Creek
downstream of I-35. A footnote will be added to Appendix A indicating that
the aquifer protection reach of the creek will have the following criteria:
50 mg/L for Cl and SO
4
, and 400 mg/L for TDS.
The commission adopts the proposed revisions as modified.
The CRWA objected to the increase in parameters applicable to stream segments
in the Guadalupe River Basin (Segments 1804 and 1814) from which they draw
water for drinking water.
The commission responds that the proposed criteria for dissolved minerals
are well below the commission's secondary constituent levels for drinking
water. The proposed criteria are protective of both the high aquatic life
use and the public water supply designations for the Segment 1804, and of
the exceptional aquatic life use and aquifer protection designations for Segment
1814. As an example, the proposed criteria are substantially below the current
federally recommended criterion of 230 mg/L of chloride for chronic protection
of freshwater aquatic life. The commission adopts the revisions as proposed.
The EPA supported the proposed temperature change for the Comal River,
Segment 1811.
The commission appreciates the support of the proposed revision and adopts
the revision as proposed.
The MWSC objected to increases in Cl, SO
4
,
and TDS criteria given in Appendix A which are applicable to stream segments
in Basin 18 from which they draw water for drinking water. They have a diversion
on the San Marcos River four miles below the confluence of the Blanco River.
The SMRF opposed the changes because existing historical data indicates that
the existing criteria are appropriate. The SMRF expressed concern about a
proposed power plant and how the change in criteria and the effect the proposed
discharge may have on endangered species. The SMRF also expressed opposition
to setting one criteria for the watershed since the source and quality of
the various rivers in the watershed differ.
The commission notes that no changes were proposed for Segment 1808-Lower
San Marcos River where MWSC will divert water, and that the criteria proposed
for chloride for Segment 1814-Upper San Marcos River is lower than the existing
criteria for Segment 1808. The proposed criteria for sulfate and TDS for Segment
1814 are identical to the existing criteria for Segment 1808. The proposed
criteria for dissolved minerals are also well below the commission's secondary
constituent levels for drinking water. The commission notes that current federal
guidance contained in the EPA document entitled
Ambient Water Quality Criteria for Chloride-1988
recommends 230 mg/L
of chloride for chronic protection of freshwater aquatic life. Therefore,
the proposed criteria are protective of both the exceptional aquatic life
use and the aquifer protection designations for Segment 1814. The executive
director has instituted procedures to carefully scrutinize discharges to waters
that contain endangered species and can require additional control measures,
as necessary, to protect endangered species. The commission adopts the revisions
as proposed.
The SAWS requested that the public water supply designation for Segment
1906, Leon Creek, be removed since there are no drinking water intakes in
this segment. They stated that the use was assigned when Applewhite Reservoir
was proposed to be built and since the reservoir was not built, the use is
not necessary.
The commission did not propose a change to the designated public water
supply use for Segment 1906; therefore, the change will not be made at this
time because the commission has not evaluated this change and because the
public has not been given the opportunity to comment. The comment may be considered
in subsequent revisions to the standards. It should be noted that the current
designation for public water supply does not apply to the lower reaches of
the segment.
The SAWS recommended that a notation be added that the public water supply
and aquifer protection use designations apply to those portions of Segment
1910 which are upstream of the southern boundary of the Edwards Aquifer Recharge
Zone.
The commission did not propose a change to the designated public water
supply use for Segment 1910--Salado Creek; therefore, the change will not
be made at this time because the commission has not evaluated this change
and because the public has not been given the opportunity to comment. The
comment may be considered in subsequent revisions to the standards. The aquifer
protection use is limited to that portion of the segment that can potentially
affect the Edwards Aquifer.
Corpus Christi supported the change to Segment 2101, Nueces Tidal, from
exceptional aquatic life use to high aquatic life use. The TCPS, TCONR, and
PIC expressed opposition to the revision. F&A and two individuals opposed
the changes to Segment 2101, particularly because the EPA Office of Pollution
has ranked Texas as number one in 1) pollution released by manufacturing plants
and 2) pollution by industrial plants in violation of the Texas Clean Air
Act. The TPWD also opposed the revision from exceptional to high aquatic life
use for Segment 2101 and provided details in support of their opposition.
The NWF expressed opposition to the change in aquatic life use.
The proposed change in the aquatic life use designation for Segment 2101--Nueces
River Tidal is based on a use attainability analysis which compared the physical
and biological characteristics of the Nueces River to four other tidal segments.
The weight of evidence presented indicates that the appropriate classification
of the Nueces River Tidal is high aquatic life use. A river can be ecologically
unique and still have a high aquatic life use classification. A review of
the TPWD list of ecologically unique rivers and streams reveals that many
of the streams so listed have a high aquatic life use designation and some
even have an intermediate aquatic life use designation. EPA considers the
commission's high aquatic life use designation as meeting the §101(a)
goals of the federal CWA. The commission adopts the revision to Segment 2101
as proposed.
The USIBWC opposed the changes in Cl, SO
4
,
and TDS for Segment 2303, Falcon Reservoir and stated that the data indicates
that the average concentrations of these constituents exceed the current criteria.
The USIBWC also recommended that additional data be gathered to address the
increasing salinity gradient and account for drought conditions.
The commission responds that the proposed criteria for dissolved minerals
are well below the commission's secondary constituent levels for drinking
water. The proposed criteria are protective of the high aquatic life use and
the public water supply designations for Segment 2303. As an example, the
proposed criteria are below the current federally recommended criterion of
230 mg/L of chloride for chronic protection of freshwater aquatic life. The
commission adopts the revisions as proposed.
The EPA supported the addition of public drinking water supply in Segment
2308, Rio Grande Below International Dam. El Paso PSB and USIBWC expressed
opposition to adding a public drinking supply use to the segment.
The use was proposed because the commission had information that a drinking
water supply was established on the Riverside Diversion Canal which diverts
water from Segment 2308. Based on information provided by the USIBWC and El
Paso PSB, the commission concludes that this information is no longer accurate.
Since the completion of the Rio Grande American Canal Extension in 1999, the
drinking water supply is on the American Canal which obtains its water from
Segment 2314. Segment 2314 is already designated as a public water supply.
The proposed addition of a public water supply to Segment 2308 is withdrawn.
The USIBWC is opposed to increasing the Cl and SO
4
criteria for Segment 2309, Devils River. They stated that the five-year
averages are below the current criteria and that there have been no exceedances
of these criteria in the five years from 1993 to 1998.
The commission responds that the proposed criteria for dissolved minerals
are well below the commission's secondary constituent levels for drinking
water. The proposed criteria are protective of both the exceptional aquatic
life use and the public water supply designations for Segment 2309. As an
example, the proposed criteria are substantially below the current federally
recommended criterion of 230 mg/L of chloride for chronic protection of freshwater
aquatic life. The commission adopts the revisions as proposed.
The USIBWC expressed opposition to changing the Cl, SO
4
, and TDS criteria for Segment 2310, Lower Pecos River until further
data collection is performed. The data indicates a decreasing trend in average
concentrations of Cl, SO
4
, and TDS in the river.
The commission responds that Segment 2310 exhibits a decreasing trend of
dissolved minerals from the upstream portion of the segment to the downstream
portion due to dilution flows from springs and tributaries. The commission
data base contains records from the downstream portion of the segment since
1968; however, the upstream portion of the segment has been sampled only since
the mid-1980s. The segment boundary was extended upstream in the 1995 water
quality standards revision but the criteria were not revised to account for
the higher concentrations of dissolved minerals that occur in the upper end
of the segment. The proposed criteria are adopted to reflect the addition
of the newer data from the upstream portion of the segment.
The USIBWC supported the lowering of criteria for Cl, SO
4
, and TDS for Segment 2312, Red Bluff Reservoir.
The commission adopts the revisions as proposed.
The USIBWC expressed opposition to changing the Cl and SO
4
criteria for Segment 2313, San Felipe Creek because the averages
of available data are below the current criteria which are adequate. The USIBWC
supported the lowering of TDS criteria.
The commission responds that the proposed criteria for dissolved minerals
are well below the commission's secondary constituent levels for drinking
water. The proposed criteria are protective of both the high aquatic life
use and the public water supply designations for Segment 2313. As an example,
the proposed criteria are substantially below the current federally recommended
criterion of 230 mg/L of chloride for chronic protection of freshwater aquatic
life. The commission adopts the revisions as proposed.
SECTION 307.10--APPENDIX B
Eastman, GHP, and TCC suggested that Appendix B should be removed from
the rule and placed in the implementation procedures. They noted that the
low-flow criteria are updated by the commission periodically, and therefore,
the flow data used in permit actions might not correspond with those in the
rule.
The commission acknowledges that the values in Appendix B represent default
criteria, in that they apply until better information becomes available. They
are included in the rules so that there will be a regulatory default value
in effect for all segments for which they remain pertinent.
One commenter noted that some gage numbers in Appendix B are identified
as being in Segment 1242 when they should be in new Segments 1256 or 1257.
The commission appreciates the comment. The segment numbers in Appendix
B were not changed inadvertently. The United States Geological Survey (USGS)
gage number 08093100 and 08092600 are changed from Segment 1242 to new Segment
1257. Also, USGS gage number 08030500 is changed from Segment 0503 to new
Segment 0502. The commission adopts the proposed revisions as modified.
SECTION 307.10--APPENDIX C
The EPA accepted the changes to Segments 0501, 0502, 0503, 1242, 1256,
1257, 1802, and 1803 and stated that other changes to clarify boundaries of
18 segments were also acceptable. The EPA commented that the UAAs for segments
0230 and 0615 are under review.
The commission adopts the revisions as proposed.
The SAWS pointed out that the current description for Medio Creek, Segment
1912, was in error because the stream actually originates several miles to
the northwest instead of a point only 0.6 mile upstream of IH-35.
It is typical for the commission to classify only portions of streams,
as it has in this situation. The TNRCC is not proposing a change to the description
for Segment 1912--Medio Creek; therefore, the change will not be made at this
time because the commission hasn't fully evaluated it, and because the public
has not had an opportunity to comment. The comment may be considered in subsequent
revisions to the standards.
SECTION 307.10--APPENDIX D
The SC-Houston requested that the upstream boundary for Harmon Creek (0803)
be applicable to the boundary line of Sam Houston National Forest before the
confluence with East Fork Creek. They also requested that the boundary for
Tarkington Bayou (1002) be extended beyond the City of Cleveland to include
the Sam Houston National Forest to the headwaters of Tarkington Bayou.
The commission responds that requested extensions of the designated boundaries
for Tarkington Bayou and Harmon Creek would require additional sampling and
analysis. A presumed high aquatic life use in accordance with §307.4
applies to perennial portions of the streams not otherwise designated in Appendix
D. The commission adopts the revision as proposed.
The SCLS, TCONR, and an individual opposed all of the proposed revisions
that are less than a high aquatic life use with a 5.0 mg/L dissolved oxygen
criteria. They stated that the revisions just define away the problem and
want the highest level of protection, instead.
The commission responds that all of the proposed revisions with aquatic
life uses less than high for perennial streams in Appendix D are based on
use attainability analyses conducted in accordance with EPA regulations (40
CFR §131.10(g)). The revisions are adopted as modified as noted in the
response to EPA's comments.
Motiva requested that the aquatic life use for Alligator Bayou (Main Canal
D in Segment 0702) be lowered to limited. They also request that Alligator
Bayou be listed as a stand-alone water body with the following description:
perennial canal from confluence with JCDD 7 Main Canal A to north of Savanna
Avenue at the Port Arthur city limits.
The commission responds that the use attainability analyses conducted on
the Jefferson County Drainage District Canals support an intermediate aquatic
life use as a reasonably attainable use with a 3.0 mg/L 24-hour average dissolved
oxygen concentration. The commission adopts the revision as proposed.
The EPA submitted comments noting which use attainability analyses they
have reviewed and those which they have not yet completed reviewing. They
also noted that there were a few proposed revisions for which they have not
yet received a use attainability analysis from the commission and they also
noted that a use attainability analysis for Spring Branch in Segment 0801
was reviewed but is not in the proposed revision.
The commission appreciates EPA's review of the numerous use attainability
analyses that have been submitted by the commission. The commission will submit
the outstanding use attainability analyses prior to submitting an adopted
standards package to EPA for approval. The revision for Spring Branch, an
unclassified tributary within the drainage basin of Segment 0801, was inadvertently
left out of the proposed revision to the water quality standards. It will
be included in the next revision to the standards. After discussions with
EPA and further review, the commission changes the proposed aquatic life use
for East Fork White Oak Creek in Segment 1004 from limited to intermediate.
Also, as the result of discussions with EPA, the description of where the
proposed aquatic life use for Box Creek applies in Segment 0804 is changed
from the ". . .confluence of the Trinity River. . ." to the ". . .confluence
of Elkhart Creek. . ." to limit the linear extent to which the intermediate
use applies. Also, the commission proposed the addition of Wards Creek in
segment 0505; however, the proposal should have only been a modification of
the site description for the existing Wards Creek. Therefore, the revision
for Wards Creek affects only the site description rather than the addition
of a new stream. The commission withdraws the proposed revision to the site
description for the existing Prairie Creek in segment 0606 since the revision
conflicts with the site description for the new proposed reach of Prairie
Creek. The commission adopts the proposed revisions as modified.
The TCC supported the proposed revisions to Appendix D.
The commission adopts the revisions as modified.
SECTION 307.10--APPENDIX E
DOW and TCC expressed support of the proposed site-specific toxic criteria
and the corresponding water-effects ratios in Appendix E in §307.10.
The commission responds that these proposed changes are adopted, with the
noted clarifications and corrections.
Eastman noted that the description for the proposed site-specific criterion
for copper for Segment 0505, Sabine River above Toledo Bend Reservoir, was
incorrectly attributed to an unnamed tributary in Appendix E in §307.10.
The site-description should define the portion of the Sabine River where this
criterion should apply.
The commission responds that the site description for the proposed site-specific
standard for copper for Segment 505 is corrected as requested in the adopted
revisions.
the TCONR, seven individuals, and a number of individuals who signed a
petition opposed the change in site-specific aluminum criterion for Segments
0611 and 0615 of the Angelina River in Appendix E in §307.10. One of
the individuals opposed any resulting change in aluminum permit limits for
Donohue Industries, Inc., TPDES Number 00368. One commenter supported the
site-specific aluminum criterion for Segments 0611 and 0615.
The commission responds that the proposed site-specific criterion for aluminum
was supported by substantial instream testing of toxicity to aluminum in this
area. However, additional evaluation of this data has indicated that the pH
in some of the laboratory toxicity tests using synthetic lab water was outside
the acceptable range. Therefore, further toxicity testing and determination
of the appropriate "water-effects ratio" is needed to complete a site-specific
criterion for aluminum for Segment 0611, Segment 0615 or Papermill Creek;
and this proposed change is not adopted by the commission. The commission
notes that future incorporation of site-specific toxic criteria based on water-effects
ratios do not require prior revision of Appendix E in §307.10 of the
water quality standards. If adequate information is developed for a site-specific
criterion for aluminum in this area, it will be included in public notices
about affected permit applications. Additional responses on incorporating
site-specific standards for metals are provided in this preamble in the discussion
concerning §307.6(c)(9).
The GCA, EHCMA, and Arstech supported the site-specific criteria for copper
in the Houston Ship Channel (Segments 1005, 1006, and 1007) and San Jacinto
Bay (Segment 2427) in Appendix E in §307.10.
The commission responds that the proposed site-specific criteria for copper
for these segments, which were supported by extensive sampling and toxicity
testing throughout the Houston Ship Channel complex, are adopted as proposed.
In addition, the commission includes Segments 1001 and 1013 in the segments
listed since data was collected in these segments also.
In addition to these responses to specific comments concerning §307.10,
the commission corrects several sections of Chapter 307 to refer to site-specific
standards in Appendices A, D, and E, rather than to site-specific standards
only in Appendix A. The commission also incorporates changes in Appendix E
based on the EPA's review of the studies to set site-specific standards for
selenium and to set water-effects ratios (WER). The site specific standard
for selenium has been changed from 220 to 219 based on a rounding error in
the original publication that provided information on the standard. For Segment
0501, the WER was changed to 1.9. The results of one of the test series greatly
exceeded the others and was deleted. Segment 0505 WER was changed to 6.7.
Water for the first test series was collected when the Sabine River flow was
81.6 times greater than the 7Q2 flow. The data from this series was deleted.
Segments 1001, 1005, 1006, 1007, 1013, and 2427 WER changed to 1.8 when it
was recalculated after removing data from samples that were held too long
before testing commenced. Footnote 5, which is now 6, was never referenced
in the table, but applies to Segment 1201.
STATUTORY AUTHORITY
These amendments are adopted under the TWC, §26.023, which provides
the commission with the authority to make rules setting water quality standards
for all waters in the state; §5.103, which authorizes the commission
to adopt any rules necessary to carry out its powers and duties under the
TWC and other laws of this state; and §5.105, which authorizes the commission
to establish and approve all general policy by rule.
No other codes or statutes will be affected by this adoption.
§307.2.Description of Standards.
(a)
Contents of the Texas Surface Water Quality Standards.
(1)
Section 307.1 of this title (relating to General Policy
Statement) contains the general standards policy of the commission.
(2)
This section lists the major sections of the standards,
defines basin classification categories, describes justifications for standards
modifications, and provides the effective dates of the rules.
(3)
Section 307.3 of this title (relating to Definitions and
Abbreviations) defines terms and abbreviations used in the standards.
(4)
Section 307.4 of this title (relating to General Criteria)
lists the general criteria, which are applicable to all surface waters of
the state unless specifically excepted in §307.8 of this title (relating
to Application of Standards) or §307.9 of this title (relating to Determination
of Standards Attainment).
(5)
Section 307.5 of this title (relating to Antidegradation)
describes the antidegradation policy and implementation procedures.
(6)
Section 307.6 of this title (relating to Toxic Materials)
establishes criteria and control procedures for specific toxic substances
and total toxicity.
(7)
Section 307.7 of this title (relating to Site-specific
Uses and Criteria) defines appropriate water uses and supporting criteria
for site-specific standards.
(8)
Section 307.8 of this title sets forth conditions under
which portions of the standards do not apply--such as in mixing zones or below
critical low-flows.
(9)
Section 307.9 of this title describes sampling and analytical
procedures to determine standards attainment.
(10)
Section 307.10 of this title (relating to Appendices A
- E) lists site-specific standards and supporting information for classified
segments (Appendices A - C), partially classified water bodies (Appendix D),
and site-specific criteria that may be derived for any water in the state
(Appendix E). Specific appendices are as follows:
(A)
Appendix A--Water Uses and Numerical Criteria;
(B)
Appendix B--Low-Flow Criteria;
(C)
Appendix C--Segment Descriptions;
(D)
Appendix D--Site-specific Receiving Water Assessments;
and
(E)
Appendix E--Site-specific Criteria.
(b)
Applicability. The Texas Surface Water Quality Standards
apply to surface waters in the state--including wetlands.
(c)
Classification of surface waters. The major surface waters
of the state are classified as segments for purposes of water quality management
and designation of site-specific standards. Classified segments are aggregated
by basin, and basins are categorized as follows:
(1)
River basin waters. Surface inland waters comprising the
major rivers, their tributaries, including listed impounded waters, and the
tidal portion of rivers to the extent that they are confined in channels.
(2)
Coastal basin waters. Surface inland waters, including
listed impounded waters but exclusive of paragraph (1) of this subsection,
discharging, flowing, or otherwise communicating with bays or the gulf, including
the tidal portion of streams to the extent that they are confined in channels.
(3)
Bay waters. All tidal waters, exclusive of those included
in river basin waters, coastal basin waters, and gulf waters.
(4)
Gulf waters. Waters which are not included in or do not
form a part of any bay or estuary but which are a part of the open waters
of the Gulf of Mexico to the limit of the state's jurisdiction.
(d)
Modification of standards.
(1)
The commission reserves the right to amend these standards
following the completion of special studies.
(2)
Any errors in water quality standards resulting from clerical
errors or errors in data may be corrected by the commission through amendment
of the affected standards. Water quality standards not affected by such clerical
errors or errors in data remain valid until changed by the commission.
(3)
The narrative provisions, designated uses, and numerical
criteria of the Texas Surface Water Quality Standards may be amended for a
specific water body to account for local conditions. A site-specific standard
is an explicit amendment to this title, Chapter 307 (Texas Surface Water Quality
Standards), and adoption of a site-specific standard requires the procedures
for public notice and hearing established under the Texas Water Code, §26.024
and §26.025. An amendment which establishes a site-specific standard
will require a use-attainability analysis which demonstrates that reasonably
attainable water-quality related uses will be protected. Upon adoption, site-specific
amendments to the standards will be listed in §307.10 of this title.
(4)
Factors which may justify the development of site-specific
standards are described in §§307.4, 307.6, 307.7, and 307.8 of this
title.
(5)
Temporary variance. When scientific information indicates
that a site-specific standards amendment is justified, the commission may
allow a corresponding temporary variance to the water quality standards in
a permit for a discharge of wastewater.
(A)
A temporary variance is only applicable to an existing
discharge.
(B)
A permittee may apply for a temporary variance prior to
or during the permit application process. The temporary variance request shall
be included in a public notice during the permit application process. An opportunity
for public comment will be provided, and the request may be considered in
any public hearing on the permit application.
(C)
A temporary variance for a TPDES permit will also require
review and approval by the EPA during the permitting process.
(D)
The permit shall contain effluent limitations that protect
existing uses and preclude degradation of existing water quality, and the
term of the permit shall not exceed three years. Effluent limitations that
are needed to meet the existing standards will be listed in the permit and
will go into effect immediately as final permit effluent limitations in the
succeeding permit, unless the permittee fulfills the requirements of the conditions
for the variance in the permit.
(E)
When the permittee has complied with the terms of the conditions
in the temporary variance, then the succeeding permit may include a permit
schedule to meet standards in accordance with subsection (f) of this section.
The succeeding permit may also extend the temporary variance in accordance
with subsection (f) of this section in order to allow additional time for
a site-specific standard to be adopted in this title. This extension can be
approved by the commission only after a site-specific study that supports
a standards change has been completed and the commission agrees the completed
study supports a change in the applicable standard(s).
(F)
Site-specific standards which are developed under a temporary
variance will be expeditiously proposed and publicly considered for adoption
at the earliest opportunity.
(e)
Implementation procedures. Provisions for implementing
the water quality standards are described in a document entitled
Procedures to Implement the Texas Surface Water Quality Standards
.
(f)
Permit schedules to meet standards. Upon permit amendment
or permit renewal, the executive director or commission, as appropriate, may
establish interim effluent limitations to allow a permittee time to modify
effluent quality in order to attain final effluent limitations. The duration
of any interim effluent limitations may not be longer than three years from
the effective date of the permit issuance, except in accordance with a temporary
variance as described in subsection (d)(5) of this section.
(g)
Temporary standards. Where a criterion is not attained
and cannot be attained for one or more of the reasons listed in 40 Code of
Federal Regulations (CFR) §131.10(g), then a temporary standard for specific
water bodies may be adopted in §307.10 of this title as an alternative
to changing uses. A criterion which is established as a temporary standard
must be adopted in accordance with the provisions of subsection (d)(3) of
this section. Specific reasons and additional procedures for justifying a
temporary standard are provided in the standards implementation procedures.
A temporary standard shall identify the water body or water bodies where the
criterion applies. A temporary standard will identify the numerical criteria
that will apply during the existence of the temporary standard. A temporary
standard does not exempt any discharge from compliance with applicable technology-based
effluent limits. A temporary standard shall expire no later than the completion
of the next triennial revision of the Texas Surface Water Quality Standards.
When a temporary standard expires, subsequent discharge permits will be issued
to meet the applicable existing water quality standards. If a temporary standard
is sufficiently justified in accordance with the provisions of subsection
(b)(3) of this section, it can be renewed during revisions of the Texas Surface
Water Quality Standards. A temporary standard cannot be established which
would impair an existing use.
(h)
Effective date of standards. Except as provided in 40 CFR §131.21
(EPA review and approval of water quality standards), these rules shall become
effective 20 days after the date on which they are filed in the office of
the secretary of state. As to actions covered by 40 CFR §131.21, the
rules shall become effective upon approval by EPA.
(i)
Effect of conflict or invalidity of rule.
(1)
If any provision of this chapter or its application to
any person or circumstances is held invalid, the invalidity does not affect
other provisions or applications of the provisions contained in this chapter
which can be given effect without the invalid provision or application, and
to this end the provisions of this chapter are severable.
(2)
To the extent of any irreconcilable conflict between provisions
of this chapter and other rules of the commission, the provisions of this
chapter shall supersede.
§307.3.Definitions and Abbreviations.
(a)
Definitions. The following words and terms, when used in
this chapter, shall have the defined meanings, unless the context clearly
indicates otherwise.
(1)
Acute toxicity--Toxicity which exerts a stimulus severe
enough to rapidly induce an effect. The duration of exposure applicable to
acute toxicity is typically 96 hours or less. Tests of total toxicity normally
use lethality as the measure of acute impacts. (Direct thermal impacts are
excluded from definitions of toxicity.)
(2)
Ambient--Refers to the existing water quality in a particular
water body.
(3)
Attainable use--A use which can be reasonably achieved
by a water body in accordance with its physical, biological, and chemical
characteristics whether it is currently meeting that use or not. Guidelines
for the determination and review of attainable uses are provided in the standards
implementation procedures. The designated use, existing use, or presumed use
of a water body may not necessarily be the attainable use.
(4)
Background--Refers to the water quality in a particular
water body that would occur if that water body were relatively unaffected
by human activities.
(5)
Bedslope--Stream gradient, or the extent of the drop in
elevation encountered as the stream flows downhill. One measure of bedslope
is the elevation decline in meters over the stream distance in kilometers.
(6)
Best management practices--Schedules of activities, maintenance
procedures, and other management practices to prevent or reduce the pollution
of water in the state from point and nonpoint sources, to the maximum extent
practicable. Best management practices also include treatment requirements,
operating procedures, and practices to control plant site runoff, spillage
or leaks, sludge or waste disposal, or drainage from raw material storage.
(7)
Bioaccumulative toxic--A chemical which is taken up by
aquatic organisms from water directly or through the consumption of food containing
the chemicals.
(8)
Bioconcentration factor--A unitless value describing the
degree to which a chemical can be concentrated in the tissues of an organism
in the aquatic environment and which is absorbed directly from the water.
The bioconcentration factor is the ratio of a chemical's concentration in
the tissue of an organism compared to that chemical's average concentration
in the surrounding water.
(9)
Biological integrity--The species composition, diversity,
and functional organization of a community of organisms in an environment
relatively unaffected by pollution.
(10)
Chronic toxicity--Toxicity which continues for a long-term
period after exposure to toxic substances. Chronic exposure produces sub-lethal
effects, such as growth impairment and reduced reproductive success, but it
may also produce lethality. The duration of exposure applicable to the most
common chronic toxicity test is seven days or more.
(11)
Classified--Refers to a water body that is listed and
described in Appendix A or Appendix C in §307.10 of this title (relating
to Appendices A - E). Site-specific uses and criteria for classified water
bodies are listed in Appendix A.
(12)
Contact recreation--Recreational activities involving
a significant risk of ingestion of water, including wading by children, swimming,
water skiing, diving, and surfing.
(13)
Criteria--Water quality conditions which are to be met
in order to support and protect desired uses.
(14)
Critical low-flow--Low-flow condition (e.g., 7Q2 flow)
below which some standards do not apply. The impacts of permitted discharges
are analyzed at critical low-flow.
(15)
Designated use--A use which is assigned to specific water
bodies in Appendix A or in Appendix D in §307.10 of this title. Typical
uses which may be designated for specific water bodies include domestic water
supply, categories of aquatic life use, recreation categories, and aquifer
protection.
(16)
Discharge permit--A permit issued by the state or a federal
agency to discharge treated effluent or cooling water into waters of the state.
(17)
EC
50
--The concentration of
a toxicant that produces an adverse effect on 50% of the organisms tested
in a specified time period.
(18)
E. coli
--
Escherichia coli
, a subgroup of fecal coliform bacteria that is present
in the intestinal tracts and feces of warm-blooded animals. It is used as
an indicator of the potential presence of pathogens.
(19)
Effluent--Wastewater discharged from any point source
prior to entering a water body.
(20)
Enterococci--A subgroup of fecal streptococci bacteria
(mainly
Streptococcus faecalis
and
Streptococcus faecium
) that is present in the intestinal tracts and
feces of warm-blooded animals. It is used as an indicator of the potential
presence of pathogens.
(21)
Epilimnion--The upper mixed layer of a lake (including
impoundments, ponds, and reservoirs).
(22)
Existing use--A use which is currently being supported
by a specific water body or which was attained on or after November 28, 1975.
(23)
Fecal coliform--A portion of the coliform bacteria group
which is present in the intestinal tracts and feces of warm-blooded animals;
heat tolerant bacteria from other sources can sometimes be included. It is
used as an indicator of the potential presence of pathogens.
(24)
Freshwaters--Inland waters which exhibit no measurable
elevation changes due to normal tides.
(25)
Halocline--A vertical gradient in salinity under conditions
of density stratification that is usually recognized as the point where salinity
exhibits the greatest difference in the vertical direction.
(26)
Harmonic mean flow--A measure of mean flow in a water
course which is calculated by summing the reciprocals of the individual flow
measurements, dividing this sum by the number of measurements, and then calculating
the reciprocal of the resulting number.
(27)
Incidental fishery--A level of fishery which applies to
water bodies that are not considered to have a sustainable fishery but which
have an aquatic life use of limited, intermediate, high, or exceptional.
(28)
Industrial cooling impoundment--An impoundment which is
owned or operated by, or in conjunction with, the water rights permittee,
and which is designed and constructed for the primary purpose of reducing
the temperature and removing heat from an industrial effluent.
(29)
Intermittent stream--A stream which has a period of zero
flow for at least one week during most years. Where flow records are available,
a stream with a 7Q2 flow of less than 0.1 ft
3
/s
is considered intermittent.
(30)
Intermittent stream with perennial pools--An intermittent
stream which maintains persistent pools even when flow in the stream is less
than 0.1 ft
3
/s.
(31)
LC
50
--The concentration of
a toxicant that is lethal (fatal) to 50% of the organisms tested in a specified
time period.
(32)
Method detection limit--The minimum concentration of a
substance that can be measured and reported with 99% confidence that the analyte
concentration is greater than zero and is determined from analysis of a sample
in a given matrix containing the analyte. The method detection limit (MDL)
is estimated in accordance with 40 CFR 136, Appendix B.
(33)
Minimum analytical level--The lowest concentration at
which a particular substance can be quantitatively measured with a defined
accuracy and precision level, using approved analytical methods. The minimum
analytical level is not the published method detection limit for an EPA-approved
analytical method, which is based on laboratory analysis of the substance
in reagent (distilled) water. The minimum analytical level is based on analyses
of the analyte in the matrix of concern (i.e., wastewater effluents). The
executive director will establish general minimum analytical levels that will
be applicable when information on matrix-specific minimum analytical levels
is unavailable.
(34)
Mixing zone--The area contiguous to a discharge where
mixing with receiving waters takes place and where specified criteria, as
listed in §307.8(b)(1) of this title (relating to Application of Standards),
can be exceeded. Acute toxicity to aquatic organisms is not allowed in a mixing
zone, and chronic toxicity to aquatic organisms is not allowed beyond a mixing
zone.
(35)
Noncontact recreation--Aquatic recreational pursuits not
involving a significant risk of water ingestion; including fishing, commercial
and recreational boating, and limited body contact incidental to shoreline
activity.
(36)
Nonpersistent toxic--A toxic substance that readily degrades
in the aquatic environment, exhibits a half-life of less than 96 hours, and
does not have a tendency to accumulate in organisms.
(37)
Oyster waters--Waters producing edible species of clams,
oysters, or mussels.
(38)
Persistent toxic--A toxic substance that is not readily
degraded and exhibits a half-life of 96 hours or more in an aquatic environment.
(39)
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 the public health, safety, or welfare,
or impairs the usefulness or the public enjoyment of the water for any lawful
or reasonable purpose.
(40)
Point source--Any discernible, confined and discrete conveyance,
including but not limited to any pipe, ditch, channel, tunnel, conduit, well,
discrete fissure, container, rolling stock, concentrated animal feeding operation,
or vessel or other floating craft, from which pollutants or wastes are or
may be discharged into or adjacent to any water in the state.
(41)
Presumed use--A use which is assigned to generic categories
of water bodies (such as perennial streams). Presumed uses are superceded
by designated uses for individual water bodies in Appendix A or Appendix D
of §307.10 of this title.
(42)
Public drinking water supply--A water body designated
to provide water to a public water system as defined in Chapter 290 of this
title (relating to Public Drinking Water).
(43)
Saltwater--A coastal water which has a measurable elevation
change due to normal tides. In the absence of tidal information, saltwater
is generally considered to be a coastal water which typically has a salinity
of two parts per thousand or greater in a significant portion of the water
column.
(44)
Salinity--The total dissolved solids in water after all
carbonates have been converted to oxides, all bromide and iodide have been
replaced by chloride, and all organic matter has been oxidized. For most purposes,
salinity is considered equivalent to total dissolved salt content. Salinity
is normally expressed in parts per thousand.
(45)
Seagrass propagation--A water-quality-related existing
use which applies to saltwater with significant stands of submerged seagrass.
(46)
Segment--A water body or portion of a water body which
is individually defined and classified in the Texas Surface Water Quality
Standards. A segment is intended to have relatively homogeneous chemical,
physical, and hydrological characteristics. A segment provides a basic unit
for assigning site-specific standards and for applying water quality management
programs of the agency. Classified segments may include streams, rivers, bays,
estuaries, wetlands, lakes, or reservoirs.
(47)
Settleable solids--The volume or weight of material which
will settle out of a water sample in a specified period of time.
(48)
Seven-day, two-year low-flow (7Q2)--The lowest average
stream flow for seven consecutive days with a recurrence interval of two years,
as statistically determined from historical data. As specified in §307.8
of this title, some water quality standards do not apply at stream flows which
are less than the 7Q2 flow.
(49)
Shellfish--Clams, oysters, mussels, crabs, crayfish, lobsters,
and shrimp.
(50)
Significant aquatic life use--A broad characterization
of aquatic life which indicates that a subcategory of aquatic life use (limited,
intermediate, high, or exceptional) is applicable. Some aquatic life is expected
to be present even in water bodies which are not designated for specific categories
of aquatic life use. Some provisions to protect aquatic life applies to any
water body in the state whether an aquatic life use is assigned or not. These
provisions include the general criteria in §307.4 of this title (relating
to General Criteria), the numerical acute aquatic life criteria in §307.6(c)
of this title (relating to Toxic Materials), and the whole effluent toxicity
requirements to preclude acute toxicity to aquatic life in §307.6(e)
of this title.
(51)
Standard Methods for the Examination of Water and Wastewater--A
document describing sampling and analytical procedures, which is published
by the American Public Health Association, American Water Works Association,
and Water Environment Federation. The most recent edition of this document
is to be followed whenever its use is specified by these rules.
(52)
Standards--The designation of water bodies for desirable
uses and the narrative and numerical criteria deemed necessary to protect
those uses.
(53)
Standards implementation procedures--Procedures entitled
(54)
Storm water--Rainfall runoff, snow melt runoff, surface
runoff, and drainage.
(55)
Storm water discharge--A point source discharge that is
composed entirely of storm water associated with an industrial activity, a
construction activity, a discharge from a municipal separate storm sewer system,
or other discharge designated by the agency.
(56)
Stream order--A classification of stream size, where the
smallest, unbranched tributaries of a drainage basin are designated first
order streams. Where two first order streams join, a second order stream is
formed; and where two second order streams join, a third order stream is formed,
etc. For purposes of water quality standards application, stream order is
determined from USGS topographic maps with a scale of 1:24,000.
(57)
Surface water in the state--Lakes, bays, ponds, impounding
reservoirs, springs, rivers, streams, creeks, estuaries, wetlands, marshes,
inlets, canals, the Gulf of Mexico inside the territorial limits of the state
(from the mean high water mark (MHWM) out 10.36 miles into the Gulf), and
all other bodies of surface water, natural or artificial, inland or coastal,
fresh or salt, navigable or nonnavigable, and including the beds and banks
of all water-courses and bodies of surface water, that are wholly or partially
inside or bordering the state or subject to the jurisdiction of the state;
except that waters in treatment systems which are authorized by state or federal
law, regulation, or permit, and which are created for the purpose of waste
treatment are not considered to be water in the state.
(58)
Sustainable Fisheries--Descriptive of water bodies which
potentially have sufficient fish production or fishing activity to create
significant long-term human consumption of fish. Sustainable fisheries include
perennial streams and rivers with a stream order of three or greater; lakes
and reservoirs greater than or equal to 150 acre-feet and/or 50 surface acres;
all bays, estuaries, and tidal rivers. Water bodies which are presumed to
have sustainable fisheries include all designated segments listed in Appendix
A unless specifically exempted.
(59)
Tidal--Descriptive of coastal waters which are subject
to the ebb and flow of tides. For purposes of standards applicability, tidal
waters are considered to be saltwater. Classified tidal waters include all
bays and estuaries with a segment number that begins with 24xx, all streams
with the word tidal in the segment name, and the Gulf of Mexico.
(60)
To discharge--Includes to deposit, conduct, drain, emit,
throw, run, allow to seep, or otherwise release or dispose of, or to allow,
permit, or suffer any of these acts or omissions.
(61)
Total Maximum Daily Load (TMDL)--The total amount of a
substance that a water body can assimilate and still meet the Texas Surface
Water Quality Standards.
(62)
Total dissolved solids--The amount of material (inorganic
salts and small amounts of organic material) dissolved in water and commonly
expressed as a concentration in terms of milligrams per liter. The term is
equivalent to the term filterable residue, as used in the publication entitled,
(63)
Total suspended solids--Total suspended matter in water,
which is commonly expressed as a concentration in terms of milligrams per
liter. The term is equivalent to nonfilterable residue, as used in the publication
entitled,
Standard Methods for the Examination of
Water and Wastewater
.
(64)
Total toxicity--Toxicity as determined by exposing aquatic
organisms to samples or dilutions of instream water or treated effluent. Also
referred to as whole effluent toxicity or biomonitoring.
(65)
Toxicity--The occurrence of adverse effects to living
organisms due to exposure to toxic materials. Adverse effects caused by conditions
of temperature and dissolved oxygen are excluded from the definition of toxicity.
With respect to the provisions of §307.6(e) of this title, which concerns
total toxicity and biomonitoring requirements, adverse effects caused by concentrations
of dissolved salts (such as sodium, potassium, calcium, chloride, carbonate)
in source waters are excluded from the definition of toxicity. Source water
is defined as surface water or groundwater that is used as a public water
supply or industrial water supply (including a cooling-water supply). Source
water does not include brine water that is produced during the extraction
of oil and gas, or other sources of brine water that are substantially uncharacteristic
of surface waters in the area of discharge. In addition, adverse effects caused
by concentrations of dissolved salts which are added to source water by industrial
processes are not excluded from the requirements of §307.6(e) of this
title, except as specifically noted in §307.6(e)(2)(B) of this title,
which concerns requirements for toxicity testing of 100% effluent. This definition
of toxicity does not affect the standards for dissolved salts in this chapter
other than §307.6(e) of this title. The standards implementation procedures
contain provisions to protect surface waters from adverse effects of dissolved
salts and methods to address the effects of dissolved salts on total toxicity
tests.
(66)
Toxicity biomonitoring--The process or act of determining
total toxicity. Documents which describe procedures for toxicity biomonitoring
are cited in §307.6 of this title. Also referred to simply as biomonitoring.
(67)
Water-effects ratio--The water-effects ratio is calculated
as the toxic concentration (LC
50
) of a substance
in water at a particular site, divided by the toxic concentration of that
substance as reported in laboratory dilution water. The water-effects ratio
can be used to establish site-specific acute and chronic criteria to protect
aquatic life. The site-specific criterion is equal to the water-effects ratio
times the statewide aquatic life criterion in §307.6(c) of this title.
(68)
Water quality management program--The agency's overall
program for attaining and maintaining water quality consistent with state
standards, as authorized under the Texas Water Code, the Texas Administrative
Code, and the Clean Water Act, §§106, 205(j), 208, 303(e) and 314
(33 United States Code, §§1251 et seq.).
(69)
Wetland--An area (including a swamp, marsh, bog, prairie
pothole, or similar area) having a predominance of hydric soils that are inundated
or saturated by surface or groundwater at a frequency and duration sufficient
to support and that under normal circumstances supports the growth and regeneration
of hydrophytic vegetation. The term "hydric soil" means soil that, in its
undrained condition, is saturated, flooded, or ponded long enough during a
growing season to develop an anaerobic condition that supports the growth
and regeneration of hydrophytic vegetation. The term "hydrophytic vegetation"
means a plant growing in: water or a substrate that is at least periodically
deficient in oxygen during a growing season as a result of excessive water
content. The term "wetland" does not include irrigated acreage used as farmland;
a man-made wetland of less than one acre; or a man-made wetland for which
construction or creation commenced on or after August 28, 1989, and which
was not constructed with wetland creation as a stated objective, including
but not limited to an impoundment made for the purpose of soil and water conservation
which has been approved or requested by soil and water conservation districts.
If this definition of wetland conflicts with the federal definition in any
manner, the federal definition prevails.
(70)
Wetland water quality functions--Attributes of wetlands
that protect and maintain the quality of water in the state, which include
storm water storage and retention and the moderation of extreme water level
fluctuations; shoreline protection against erosion through the dissipation
of wave energy and water velocity, and anchoring of sediments; habitat for
aquatic life; and removal, transformation, and retention of nutrients and
toxic substances.
(71)
Zone of initial dilution--The small area at the immediate
point of discharge where initial dilution with receiving waters occurs, and
which may not meet certain criteria applicable to the receiving water. A zone
of initial dilution is substantially smaller than a mixing zone.
(b)
Abbreviations. The following abbreviations apply to this
chapter:
(1)
AP--aquifer protection.
(2)
BMP--best management practices.
(3)
AS--agricultural water supply.
(4)
CASRN--Chemical Abstracts Service Registry number.
(5)
CFR--Code of Federal Regulations.
(6)
Cl
-1
--chloride.
(7)
CR--contact recreation.
(8)
DO--dissolved oxygen.
(9)
E--exceptional aquatic life use.
(10)
EPA--United States Environmental Protection Agency.
(11)
degrees F--Degree(s) Fahrenheit.
(12)
ft
3
/s--cubic feet per second.
(13)
H--high aquatic life use.
(14)
I--intermediate aquatic life use.
(15)
IS--industrial water supply.
(16)
L--limited aquatic life use.
(17)
MCL--maximum contaminant level (for public drinking water
supplies).
(18)
mg/L--milligrams per liter.
(19)
ml--milliliter.
(20)
MS4--municipal separate storm sewer system.
(21)
N--navigation.
(22)
NCR--noncontact recreation.
(23)
NPDES--National Pollutant Discharge Elimination System,
as set out in the Clean Water Act, §402 (33 United States Code 1342).
(24)
O--oyster waters.
(25)
PS--public water supply.
(26)
7Q2--seven-day, two-year low-flow.
(27)
SO
4
-2
--sulfate.
(28)
TDS--total dissolved solids.
(29)
TMDL--total maximum daily load.
(30)
TPDES--Texas Pollutant Discharge Elimination System.
(31)
TSS--total suspended solids.
(32)
USFDA--United States Food and Drug Administration.
(33)
USGS--United States Geological Survey.
(34)
WF--waterfowl habitat.
(35)
WQM--water quality management.
(36)
µg/L--micrograms per liter.
(37)
ZID--zone of initial dilution.
§307.4.General Criteria.
(a)
Application. The general criteria set forth in this section
apply to surface water in the state and specifically apply to substances attributed
to waste discharges or the activities of man. General criteria do not apply
to those instances in which surface water, as a result of natural phenomena,
exhibit characteristics beyond the limits established by this section. General
criteria are superseded by specific exemptions stated in this section or in §307.8
of this title (relating to the Application of Standards), or by site-specific
water quality standards for classified segments. Provisions of the general
criteria remain in effect in mixing zones or below critical low-flow conditions
unless specifically exempted in §307.8 of this title.
(b)
Aesthetic parameters.
(1)
Concentrations of taste and odor producing substances shall
not interfere with the production of potable water by reasonable water treatment
methods, impart unpalatable flavor to food fish including shellfish, result
in offensive odors arising from the waters, or otherwise interfere with the
reasonable use of the water in the state.
(2)
Surface water shall be essentially free of floating debris
and suspended solids that are conducive to producing adverse responses in
aquatic organisms or putrescible sludge deposits or sediment layers which
adversely affect benthic biota or any lawful uses.
(3)
Surface waters shall be essentially free of settleable
solids conducive to changes in flow characteristics of stream channels or
the untimely filling of surface water in the state. This provision does not
prohibit dredge and fill activities which are permitted in accordance with
the Federal Clean Water Act.
(4)
Surface waters shall be maintained in an aesthetically
attractive condition.
(5)
Waste discharges shall not cause substantial and persistent
changes from ambient conditions of turbidity or color.
(6)
There shall be no foaming or frothing of a persistent nature.
(7)
Surface waters shall be maintained so that oil, grease,
or related residue will not produce a visible film of oil or globules of grease
on the surface or coat the banks or bottoms of the watercourse; or cause toxicity
to man, aquatic life, or terrestrial life in accordance with subsection (d)
of this section.
(c)
Radiological substances. Radioactive materials shall not
be discharged in excess of the amount regulated by Chapter 336 of this title
(relating to Radioactive Substance Rules).
(d)
Toxic substances. Surface waters will not be toxic to man
from ingestion of water, consumption of aquatic organisms, or contact with
the skin, or to terrestrial or aquatic life. Additional requirements and criteria
for toxic substances are specified in §307.6 of this title (relating
to Toxic Materials). Criteria to protect aquatic life from acute toxicity
apply to all surface waters in the state except as specified in §307.8(a)(2)
of this title. Criteria to protect aquatic life from chronic toxicity apply
to surface waters with a significant aquatic life use of limited, intermediate,
high, or exceptional as designated in §307.10 of this title (relating
to Appendices A - E) or as determined on a case-by-case basis in accordance
with subsection (l) of this section. Toxic criteria to protect human health
for consumption of fish apply to waters with a sustainable or incidental fishery,
as described in §307.6(d) of this title. Additional criteria apply to
water in the state with a public drinking water supply use, as described in §307.6(d)
of this title. The general provisions of this subsection do not change specific
provisions in §307.8 of this title for applying toxic criteria.
(e)
Nutrients. Nutrients from permitted discharges or other
controllable sources shall not cause excessive growth of aquatic vegetation
which impairs an existing, attainable, or designated use. Site-specific nutrient
criteria, nutrient permit limitations, and/or separate rules to control nutrients
in individual watersheds will be established where appropriate after notice
and opportunity for public participation and proper hearing.
(f)
Temperature. Consistent with §307.1 of this title
(relating to General Policy Statement) and in accordance with state water
rights permits, temperature in industrial cooling lake impoundments and all
other surface water in the state shall be maintained so as to not interfere
with the reasonable use of such waters. Numerical temperature criteria have
not been specifically established for industrial cooling lake impoundments,
which in most areas of the state contribute to water conservation and water
quality objectives. With the exception of industrial cooling impoundments,
temperature elevations due to discharges of treated domestic (sanitary) effluent,
and within designated mixing zones, the following temperature criteria, expressed
as a maximum temperature differential (rise over ambient) are established:
freshwater streams--5 degrees Fahrenheit; freshwater lakes and impoundments--3
degrees Fahrenheit; tidal river reaches, bay and gulf waters--4 degrees Fahrenheit
in fall, winter, and spring, and 1.5 degrees Fahrenheit in summer (June, July,
and August). Additional temperature criteria (expressed as maximum temperatures)
for classified segments are specified in Appendix A of §307.10 of this
title.
(g)
Salinity.
(1)
Concentrations and the relative ratios of dissolved minerals
such as chlorides, sulfates, and total dissolved solids will be maintained
such that existing, designated, and attainable uses will not be impaired.
(2)
Criteria for chlorides, sulfates, and total dissolved solids
for classified freshwater segments are specified in Appendix A of §307.10
of this title.
(3)
Salinity gradients in estuaries will be maintained to support
attainable estuarine dependent aquatic life uses. Numerical salinity criteria
for Texas estuaries have not been established because of the high natural
variability of salinity in estuarine systems, and because long-term studies
by state agencies to assess estuarine salinities are still ongoing. Absence
of numerical criteria shall not preclude evaluations and regulatory actions
based on estuarine salinity, and careful consideration will be given to all
activities which may detrimentally affect salinity gradients.
(h)
Aquatic life uses and dissolved oxygen.
(1)
Dissolved oxygen concentrations shall be sufficient to
support existing, designated, and attainable aquatic life uses. Aquatic-life
use categories and corresponding dissolved oxygen criteria are described in §307.7(b)(3)
of this title (relating to Site-specific Uses and Criteria).
(2)
Aquatic life use categories and dissolved oxygen criteria
for classified segments are specified in Appendix A of §307.10 of this
title. Aquatic life use categories and dissolved oxygen criteria for other
specific water bodies are specified in Appendix D of §307.10 of this
title. Where justified by sufficient site-specific information, dissolved
oxygen criteria which differ from §307.7(b)(3) of this title may be adopted
for a particular water body in §307.10 of this title.
(3)
Perennial streams, rivers, lakes, bays, estuaries, and
other appropriate perennial waters which are not specifically listed in Appendix
A or D of §307.10 of this title are presumed to have a high aquatic life
use and corresponding dissolved oxygen criteria. In accordance with results
from statewide ecoregion studies, unclassified perennial streams in southeast
and northeast Texas are assigned dissolved oxygen criteria as indicated in §307.7(b)(3)(A)(ii)
of this title. Higher uses will be protected where they are attainable.
(4)
When water is present in the streambed of intermittent
streams, a 24-hour dissolved oxygen mean of at least 2.0 mg/L and an absolute
minimum dissolved oxygen concentration of 1.5 mg/L will be maintained. Intermittent
streams which are not specifically listed in Appendix A or D of §307.10
of this title are considered to not have a significant aquatic life use except
as indicated below in this subsection. For intermittent streams with seasonal
aquatic life uses, dissolved oxygen concentrations commensurate with the aquatic
life uses will be maintained during the seasons in which the aquatic life
uses occur. Unclassified intermittent streams with significant aquatic life
uses created by perennial pools are presumed to have a limited aquatic life
use and corresponding dissolved oxygen criteria. Higher uses will be protected
where they are attainable.
(i)
Aquatic life uses and habitat. Vegetative and physical
components of the aquatic environment will be maintained or mitigated to protect
aquatic life uses. Procedures to protect habitat in permits for dredge and
fill activities are specified in Federal Clean Water Act, §404 and in
Chapter 279 of this title (relating to Water Quality Certification).
(j)
Aquatic recreation. Existing, designated, and attainable
uses of aquatic recreation will be maintained, as determined by criteria that
indicate the potential presence of pathogens. Categories of recreation and
applicable criteria are established in §307.7(b)(1) of this title. Contact
recreation is presumed as a use for all water bodies except where listed otherwise
for specific water bodies in Appendix A of §307.10 of this title.
(k)
Antidegradation. Nothing in this section shall be construed
or otherwise utilized to supersede the requirements of §307.5 of this
title (relating to Antidegradation).
(l)
Assessment of unclassified waters. Waters which are not
specifically listed in Appendices A or D of §307.10 of this title are
designated for the specific uses that are attainable or characteristic of
those waters. Upon administrative or regulatory action by the executive director
or commission which affects a particular unclassified water body, the characteristics
of the affected water body will be reviewed by the agency to determine which
aquatic life uses are appropriate. Additional uses so determined shall be
indicated in public notices for discharge applications. Uses which are not
applicable throughout the year in a particular unclassified water body will
be assigned and protected for the seasons in which such uses are attainable.
Initial determinations of use shall be considered preliminary, and in no way
preclude redeterminations of use in public hearings conducted under the provisions
of the Texas Water Code. For unclassified waters where the presumed minimum
uses or criteria specified in this section are inappropriate, site-specific
standards may be developed in accordance with §307.2(d) of this title
(relating to Modification of Standards). Uses and criteria will be assigned
in accordance with this section and with §307.7(b)(3) of this title.
Procedures for assigning uses and criteria are described in the standards
implementation procedures.
§307.5.Antidegradation.
(a)
Application. The antidegradation policy and implementation
procedures set forth in this section shall apply to actions regulated under
state and federal authority which would increase pollution of the water in
the state. Such actions include authorized wastewater discharges, TMDLs, waste
load evaluations, and any other miscellaneous actions, such as those related
to man-induced nonpoint sources of pollution, which may impact the water in
the state.
(b)
Antidegradation policy. In accordance with the Texas Water
Code, §26.003, the following provisions establish the antidegradation
policy of the agency.
(1)
Tier 1. Existing uses and water quality sufficient to protect
those existing uses will be maintained. Categories of existing uses are the
same as for designated uses, as defined in §307.7 of this title (relating
to Site-specific Uses and Criteria).
(2)
Tier 2. No activities subject to regulatory action which
would cause degradation of waters which exceed fishable/swimmable quality
will be allowed unless it can be shown to the commission's satisfaction that
the lowering of water quality is necessary for important economic or social
development. Degradation is defined as a lowering of water quality by more
than a de minimis extent, but not to the extent that an existing use is impaired.
Water quality sufficient to protect existing uses will be maintained. Fishable/swimmable
waters are defined as waters which have quality sufficient to support propagation
of indigenous fish, shellfish, and wildlife and recreation in and on the water.
(3)
Tier 3. Outstanding national resource waters are defined
as high quality waters within or adjacent to national parks and wildlife refuges,
state parks, wild and scenic rivers designated by law, and other designated
areas of exceptional recreational or ecological significance. The quality
of outstanding national resource waters will be maintained and protected.
(4)
Discharges which cause pollution that are authorized by
the Texas Water Code, the Federal Clean Water Act, or other applicable laws
will not lower water quality to the extent that the Texas Surface Water Quality
Standards are not attained.
(5)
Anyone discharging wastewater which would constitute a
new source of pollution or an increased source of pollution from any industrial,
public, or private project or development will be required to provide a level
of wastewater treatment consistent with the provisions of the Texas Water
Code and the Clean Water Act (33 United States Code, §§1251 et seq.).
As necessary, cost-effective and reasonable best management practices established
through the Texas Water Quality Management Program shall be achieved for nonpoint
sources of pollution.
(6)
Application of antidegradation provisions shall not preclude
the commission or executive director from establishing modified thermal discharge
limitations consistent with the Clean Water Act, §316(a) (33 United States
Code, §1326).
(c)
Antidegradation implementation procedures.
(1)
Implementation for specific regulatory activities.
(A)
For TPDES permits for wastewater, the process for the antidegradation
review and public coordination is described in the standards implementation
procedures.
(B)
For federal permits relating to the discharge of fill or
dredged material under Federal Clean Water Act, §404, the antidegradation
policy and public coordination is implemented through the evaluation of alternatives
and mitigation under Federal Clean Water Act, §404(b)(1). State review
of alternatives, mitigation, and requirements to protect water quality may
also be conducted for federal permits which are subject to state certification,
as authorized by Federal Clean Water Act, §401 and conducted in accordance
with Chapter 279 of this title (relating to Water Quality Certification).
(C)
Other state and federal permitting and regulatory activities
which increase pollution of water in the state are also subject to the provisions
of the antidegradation policy as established in §307.5(a) and (b) of
this title (relating to Antidegradation).
(2)
General provisions for implementing the antidegradation
policy.
(A)
Tier 1 reviews will ensure that water quality is sufficiently
maintained so that existing uses are protected. All pollution which could
cause an impairment of water quality is subject to Tier 1 reviews. If the
existing uses and criteria of a potentially affected water body have not been
previously determined, then the antidegradation review will include a preliminary
determination of existing uses and criteria. Existing uses will be maintained
and protected.
(B)
Tier 2 reviews apply to all pollution which could cause
degradation of water quality where water quality exceeds levels necessary
to support propagation of fish, shellfish, wildlife, and recreation in and
on the water (fishable/swimmable quality). Guidance for determining which
water bodies exceed fishable/swimmable quality is contained in the standards
implementation procedures. For dissolved oxygen, analyses of degradation under
Tier 2 will utilize the same critical conditions as are used to protect instream
criteria. For other parameters, appropriate conditions may vary. Conditions
for determining degradation will be commensurate with conditions for determining
existing uses. The highest water quality sustained since November 28, 1975
(in accordance with EPA Standards Regulation 40 CFR 131) defines baseline
conditions for determinations of degradation.
(C)
Tier 3 reviews apply to all pollution which could cause
degradation of outstanding national resource waters. Outstanding national
resource waters are those specifically designated in this chapter.
(D)
When degradation of waters exceeding fishable/swimmable
quality is anticipated, a statement that the antidegradation policy will be
pertinent to the permit action will be included in the public notice for the
permit application or amendment. If no degradation is anticipated, the public
notice will so state.
(E)
Evidence can be introduced in public hearings, or through
the public comment process, concerning the determination of existing uses
and criteria; the assessment of degradation under Tier 1, Tier 2, and Tier
3; the social and economic justification for lowering water quality; requirements
and conditions necessary to preclude degradation; and any other issues which
bear upon the implementation of the antidegradation policy.
(F)
Interested parties will be given the opportunity to provide
comments and additional information concerning the determination of existing
uses, anticipated impacts of the discharge, baseline conditions, and the necessity
of the discharge for important economic or social development if degradation
of water quality is expected under Tier 2.
(G)
The antidegradation policy and the general provisions for
implementing the antidegradation policy apply to the determination of TMDLs
and to waste load evaluations which allow an increase in loading. If the TMDL
or waste load evaluation indicates that degradation of waters exceeding fishable/swimmable
quality is expected, the public hearing notice will so state. Permits which
are consistent with an approved TMDL or waste load evaluation under this antidegradation
policy will not be subjected to separate antidegradation review for the specific
parameters that are addressed by the TMDL or waste load evaluation.
§307.6.Toxic Materials.
(a)
Application. Standards and procedures set forth in this
section shall be applied in accordance with §307.8 of this title (relating
to Application of Standards) and §307.9 of this title (relating to Determination
of Standards Attainment).
(b)
General provisions.
(1)
Water in the state shall not be acutely toxic to aquatic
life in accordance with §307.8 of this title.
(2)
Water in the state with designated or existing aquatic
life uses shall not be chronically toxic to aquatic life, in accordance with §307.8
of this title.
(3)
Water in the state shall be maintained to preclude adverse
toxic effects on human health resulting from contact recreation, consumption
of aquatic organisms, consumption of drinking water or any combination of
the three. Water in the state with sustainable fisheries and/or public drinking
water supply uses will not exceed applicable human health toxic criteria,
in accordance with subsection (d) of this section and §307.8 of this
title.
(4)
Water in the state shall be maintained to preclude adverse
toxic effects on aquatic life, terrestrial wildlife, livestock, or domestic
animals, resulting from contact, consumption of aquatic organisms, consumption
of water, or any combination of the three.
(c)
Specific numerical aquatic life criteria.
(1)
Numerical criteria are established in Table 1 for those
specific toxic substances for which adequate toxicity information is available,
and which have the potential for exerting adverse impacts on water in the
state.
Figure: 30 TAC §307.6(c)(1)
(2)
Numerical criteria are based on ambient water quality criteria
documents published by EPA. EPA guidance criteria have been appropriately
recalculated to eliminate the effects of toxicity data for aquatic organisms
which are not native to Texas, in accordance with procedures in the EPA guidance
document entitled
Guidelines for Deriving Numerical
Site-specific Water Quality Criteria
(EPA 600/3-84-099).
(3)
Specific numerical acute aquatic life criteria are applied
as 24-hour averages, and specific numerical chronic aquatic life criteria
are applied as seven-day averages.
(4)
Ammonia and chlorine toxicity will be addressed by total
toxicity biomonitoring requirements in subsection (e) of this section.
(5)
Specific numerical aquatic life criteria for metals and
metalloids in Table 1 apply to dissolved concentrations where noted. Dissolved
concentrations can be estimated by filtration of samples prior to analysis,
or by converting from total recoverable measurements in accordance with procedures
approved by the commission in the latest revision of the standards implementation
procedures. Specific numerical aquatic life criteria for non-metallic substances
in Table 1 apply to total recoverable concentrations unless otherwise noted.
(6)
Specific numerical acute criteria for toxic substances
are applicable to all water in the state except for small zones of initial
dilution (ZIDs) at discharge points. Acute criteria may be exceeded within
a ZID and below extremely low streamflow conditions (one-fourth of critical
low-flow conditions) in accordance with §307.8 of this title (relating
to Application of Standards). There shall be no lethality to aquatic organisms
which move through a ZID, and the sizes of ZIDs are limited in accordance
with §307.8 of this title. Specific numerical chronic criteria are applicable
to all water in the state with designated or existing aquatic life uses, except
inside mixing zones and below critical low-flow conditions, in accordance
with §307.8 of this title.
(7)
For toxic materials for which specific numerical criteria
are not listed in Table 1, the appropriate criteria for aquatic life protection
may be derived in accordance with current EPA guidelines for deriving site-specific
water quality criteria. When insufficient data are available to use EPA guidelines,
the following provisions shall be applied in accordance with this section
and §307.8 of this title:
(A)
acute criteria will be calculated as 0.3 of the LC
(B)
concentrations of non-persistent toxic materials shall
not exceed concentrations which are chronically toxic (as determined from
appropriate chronic toxicity data or calculated as 0.1 of acute LC
50
values) to the most sensitive aquatic species; LC
50
x (0.1) = chronic criteria;
(C)
concentrations of persistent toxic materials that do not
bioaccumulate shall not exceed concentrations which are chronically toxic
(as determined from appropriate chronic toxicity data or calculated as 0.05
of LC
50
values) to the most sensitive aquatic
species; and
(D)
concentrations of toxic materials that bioaccumulate shall
not exceed concentrations that are chronically toxic (as determined from appropriate
chronic toxicity data or calculated as 0.01 of LC
50
values) to the most sensitive aquatic species.
(8)
For toxic substances where the relationship of toxicity
is defined as a function of pH or hardness, numerical criteria are presented
as an equation based on this relationship. Appropriate pH or hardness values
for such criteria are listed for each basin in Table 2. Site-specific values
for pH and hardness, are used where available. Site-specific values for each
segment are given in the standards implementation procedures.
Figure: 30 TAC §307.6(c)(8)
(9)
Criteria for most metals are multiplied by a water-effects
ratio in order to incorporate the effects of local water chemistry on toxicity.
The water-effects ratio is assumed to be equal to one except where sufficient
site-specific data are available to determine the water-effects ratio for
a particular water body or portion of a water body. A water-effects ratio
is only applicable to those portions of a water body which are adequately
addressed by site-specific data. Water-effects ratios and resulting site-specific
criteria which have been determined for particular water bodies are listed
in Appendix E when standards are revised. A site-specific water-effects ratio
which affects an effluent limitation in a wastewater discharge permit, and
which has not been incorporated into Appendix E of §307.10 of this title
(relating to Appendices A - E), will be noted in a public notice during the
permit application process. An opportunity for public comment will be provided,
and the water-effects ratio may be considered in any public hearing on the
permit application.
(10)
Additional site-specific factors may indicate that the
numerical criteria listed in Table 1 are inappropriate for a particular water
body. These factors are applied as a site-specific standards modification
in accordance with §307.2(d) of this title (relating to Modification
of Standards). The application of a site-specific standard must not impair
an existing, attainable, or designated use. Factors which may justify a temporary
variance or site-specific standards amendment include the following:
(A)
background concentrations of specific toxics of concern
in receiving waters, sediment, and/or indigenous biota;
(B)
persistence and degradation rate of specific toxic materials;
(C)
synergistic, additive, or antagonistic interactions of
toxic substances with other toxic or nontoxic materials;
(D)
measurements of total effluent toxicity;
(E)
indigenous aquatic organisms, which may have different
responses to particular toxic materials;
(F)
technological or economic limits of treatability for specific
toxic materials;
(G)
bioavailability of specific toxic substances of concern,
as determined by water-effect ratio tests or other analyses approved by the
agency; and
(H)
new information concerning the toxicity of a particular
substance.
(d)
Specific numerical human health criteria.
(1)
Numerical human health criteria are established in Table
3.
Figure: 30 TAC §307.6(d)(1)
(2)
Categories of human health criteria:
(A)
concentration criteria in freshwaters to prevent contamination
of drinking water, fish and other aquatic life to ensure that they are safe
for human consumption. These criteria apply to freshwaters which are designated
or used for public drinking water supplies. (Column A in Table 3);
(B)
concentration criteria in freshwaters to prevent contamination
of fish and other aquatic life to ensure that they are safe for human consumption.
These criteria apply to freshwater which have sustainable fisheries, and which
are not designated or used for public water supply (Column B in Table 3);
(C)
concentration criteria in saltwaters to prevent contamination
of fish and other aquatic life to ensure that they are safe for human consumption.
These criteria apply to saltwaters which have a sustainable fishery (Column
C in Table 3).
(3)
Specific assumptions and procedures (except where noted
in Table 3).
(A)
Sources for the toxicity factors to derive criteria were
derived from EPA's Integrated Risk Information System (IRIS); EPA Health Effects
Assessment Summary Tables (HEAST); Assessment Tools for the Evaluation of
Risk (ASTER); and the computer program, CLOGP3. Bioconcentration factors were
converted to an average lipid concentration in fish tissue of 3%, except where
noted.
(B)
For known or suspected carcinogens (Types A, B, B
(C)
Consumption rates of fish and shellfish were estimated
as 10 grams per person per day for people living inland, and 15 grams per
person per day for people living near the coast.
(D)
Drinking water consumption rates were estimated as 2.0
liters per person per day.
(E)
For carcinogens, a body-weight scaling factor of 3/4 power
is used to convert data on laboratory test animals to human scale. Reported
weights of laboratory test animals are used, and an average weight of 70 kg
is assumed for humans.
(F)
Numerical human health criteria were derived in accordance
with the general procedures and calculations in the EPA guidance documents
entitled
Technical Support Document for Water Quality-based
Toxics Control
(EPA/505/2-90-001); and
Guidance
Manual for Assessing Human Health Risks from Chemically Contaminated Fish
and Shellfish
(EPA/503/8-89-002).
(G)
If a calculated criterion to prevent contamination of drinking
water and fish to ensure they are safe for human consumption (Column A in
Table 3) was greater than the applicable maximum contaminant level (MCL) in
Chapter 290 of this title (relating to Public Drinking Water), then the MCL
was used as the criterion.
(H)
If the concentration of a substance in fish tissue used
for these calculations was greater than the applicable United States Food
and Drug Administration Action Level for edible fish and shellfish tissue,
then the acceptable concentration in fish tissue was lowered to the Action
Level for calculation of criteria.
(4)
Human health criteria for additional toxic materials will
be adopted by the commission as appropriate.
(5)
Specific human health concentration criteria for water
are applicable to water in the state which has sustainable fisheries, and/or
designation or use as a public drinking water supply, except within mixing
zones and below harmonic mean stream flows, in accordance with §307.8
of this title. The following waters are considered to have sustainable fisheries:
(A)
all designated segments listed in Appendix A of §307.10
of this title, unless specifically exempted;
(B)
perennial streams and rivers with a stream order of three
or greater, as defined in §307.3 of this title (relating to Definitions
and Abbreviations);
(C)
lakes and reservoirs greater than or equal to 150 acre
feet and/or 50 surface acres;
(D)
all bays, estuaries, and tidal rivers; and
(E)
any other waters which potentially have sufficient fish
production or fishing activity to create significant long-term human consumption
of fish.
(6)
Waters which are not considered to have a sustainable fishery,
but which have an aquatic life use, will be considered to have an incidental
fishery. Consumption rates assumed for incidental fishery waters are 1.0 gram
per person per day for inland waters, and 1.5 grams per person per day for
saltwaters. Numerical criteria applicable to incidental fishery waters are
therefore ten times the criteria listed in Columns B and C of Table 3.
(7)
Specific human health criteria are applied as long term
average exposure criteria designed to protect populations over a life time
(70 years). Attainment measures for human health are addressed in §307.9
of this title.
(8)
For toxic materials of concern for which specific human
health criteria are not listed in Table 3, the following provisions shall
apply.
(A)
For known or suspected carcinogens (Types A, B, B
(B)
For toxic materials not defined as carcinogens, the most
recent numerical criteria adopted by EPA and published in the
Federal Register
shall be applicable. If an MCL or equivalent agency
guideline for protection of drinking water sources is less than the resulting
criterion, then the MCL shall apply to public drinking water supplies in accordance
with paragraph (3)(G) of this subsection.
(C)
In the absence of available criteria, numerical criteria
may be derived from technically valid information and calculated in accordance
with the provisions of paragraph (3) of this subsection.
(9)
Numerical criteria for bioconcentratable pollutants will
be derived in accordance with the general procedures in the EPA guidance document
entitled,
Assessment and Control of Bioconcentratable
Contaminants in Surface Waters
(March 1991). The commission may develop
discharge permit limits in accordance with the provisions of this section.
(10)
Numerical human health criteria are expressed as total
recoverable concentrations for nonmetals, mercury, and selenium and as dissolved
concentrations for other metals and metalloids.
(11)
Additional site-specific factors may indicate that the
numerical human health criteria listed in Table 3 are inappropriate for a
particular water body. These factors are applied as a site-specific standards
modification in accordance with §307.2(d) of this title (relating to
Modification of Standards). The application of site-specific criteria shall
not impair an existing, attainable, or designated use or affect human health.
Factors which may justify a temporary variance or site-specific standards
amendment include the following:
(A)
background concentrations of specific toxics of concern
in receiving waters, sediment, and/or indigenous biota;
(B)
persistence and degradation rate of specific toxic materials;
(C)
synergistic or antagonistic interactions of toxic substances
with other toxic or nontoxic materials;
(D)
technological or economic limits of treatability for specific
toxic materials;
(E)
bioavailability of specific toxic substances of concern;
(F)
local water chemistry and other site-specific conditions
which may alter the bioconcentration, bioaccumulation, or toxicity of specific
toxic substances;
(G)
site-specific differences in the bioaccumulation responses
of indigenous, edible aquatic organisms to specific toxic materials;
(H)
local differences in consumption patterns of fish and shellfish
or drinking water, but only if any changes in assumed consumption rates will
be protective of the local population that frequently consumes fish, shellfish,
or drinking water from a particular water body; and
(I)
new information concerning the toxicity of a particular
substance.
(e)
Total toxicity.
(1)
Total (whole-effluent) toxicity of permitted discharges,
as determined from biomonitoring of effluent samples at appropriate dilutions,
will be sufficiently controlled to preclude acute total toxicity in all water
in the state with the exception of small zones of initial dilution (ZIDs)
at discharge points and at extremely low streamflow conditions (one-fourth
of critical low-flow conditions) in accordance with §307.8 of this title.
Acute total toxicity levels may be exceeded in a ZID, but there shall be no
lethality to aquatic organisms which move through a ZID, and the sizes of
ZIDs are limited in accordance with §307.8 of this title. Chronic total
toxicity, as determined from biomonitoring of effluent samples, will be precluded
in all water in the state with existing or designated aquatic life uses except
in mixing zones and at flows less than critical low-flows, in accordance with §307.8
of this title.
(2)
General provisions for controlling total toxicity.
(A)
Dischargers whose effluent has a significant potential
for exerting toxicity in receiving waters will be required to conduct whole
effluent toxicity biomonitoring at appropriate dilutions.
(B)
In addition to the other requirements of this section,
the effluent of discharges to water in the state shall not be acutely toxic
to sensitive species of aquatic life, as demonstrated by effluent toxicity
tests. Toxicity testing for this purpose shall be conducted on samples of
100% effluent, and the criterion for acute toxicity shall be mortality of
50% or more of the test organisms after 24 hours of exposure. This provision
does not apply to mortality that is a result of an excess, deficiency, or
imbalance of dissolved inorganic salts (such as sodium, calcium, potassium,
chloride, or carbonate) which are in the effluent and are not listed in Table
1 in subsection (c) of this section or which are in source waters.
(C)
The latest revisions of the following EPA publications
provide methods for appropriate biomonitoring procedures:
Methods for Measuring the Acute Toxicity of Effluents and Receiving Waters
to Freshwater and Marine Organisms
,
Short-term
Methods for Estimating the Chronic Toxicity of Effluents and Receiving Waters
to Freshwater Organisms
,
Short-term Methods
for Estimating the Chronic Toxicity of Effluents and Receiving Waters to Marine
and Estuarine Organisms
, and the
Technical
Support Document for Water Quality-based Toxics Control
. The use of
other procedures approved by the agency and EPA is also acceptable. Toxicity
tests must be conducted using representative, sensitive aquatic organisms
as approved by the agency, and any such testing must adequately determine
if toxicity standards are being attained.
(D)
If toxicity biomonitoring results indicate that a discharge
is exceeding the restrictions on total toxicity in this section, then the
permittee shall conduct a toxicity identification evaluation and toxicity
reduction evaluation in accordance with permitting procedures of the commission.
As a result of a toxicity reduction evaluation, additional conditions may
be established in the permit. Such conditions may include total toxicity limits,
chemical specific limits, and/or best management practices designed to reduce
or eliminate toxicity. Where sufficient to attain and maintain applicable
numeric and narrative state water quality standards, a chemical specific limit
rather than a total toxicity limit may be established in the permit. Where
conditions may be necessary to prevent or reduce effluent toxicity, permits
shall include a reasonable schedule for achieving compliance with such additional
conditions.
(E)
If a permittee demonstrates, using the toxicity identification
evaluation and toxicity reduction evaluation procedures, that diazinon is
the primary cause of total toxicity, and that diazinon is ubiquitous within
the wastewater system, the toxicity will be addressed in clauses (i) and (ii)
of this subparagraph. If diazinon is not the primary cause of total toxicity,
or if the permittee does not proceed with due diligence in controlling and
investigating toxicity, or if diazinon is not ubiquitous within the wastewater
system, the toxicity may be addressed in accordance with subparagraph (D)
of this paragraph.
(i)
the permittee will be required to implement a public education
and awareness campaign designed to control the introduction of diazinon into
the wastewater system, and the permittee will be required to conduct an investigation
into the sources of diazinon; and
(ii)
the permittee will be required to monitor for diazinon.
(F)
Discharge permit limits based on total toxicity may be
established in consideration of site-specific factors, but the application
of such factors shall not result in impairment of an existing, attainable,
or designated use. These factors are applied as a site-specific standards
modification in accordance with §307.2(d) of this title. A demonstration
that uses are protected may consist of additional effluent toxicity testing,
instream monitoring requirements, and/or other necessary information as determined
by the agency. Factors which may justify a temporary variance or site-specific
standards amendment include the following:
(i)
background toxicity of receiving waters;
(ii)
persistence and degradation rate of principal toxic materials
which are contributing to the total toxicity of the discharge;
(iii)
site-specific variables which may alter the impact of
toxicity in the discharge;
(iv)
indigenous aquatic organisms, which may have different
levels of sensitivity than the species used for total toxicity testing; and
(v)
technological, economic, or legal limits of treatability
or control for specific toxic materials.
§307.7.Site-specific Uses and Criteria.
(a)
Uses and numerical criteria are established on a site-specific
basis in Appendices A, D, amd E of §307.10 of this title (relating to
Appendices A - E). Site-specific uses and numerical criteria may also be applied
to unclassified waters in accordance with §307.4(h) of this title (relating
to General Criteria) and §307.5(c) of this title (relating to Antidegradation).
Site-specific criteria apply specifically to substances attributed to waste
discharges or the activities of man. Site-specific criteria do not apply to
those instances in which surface waters exceed criteria due to natural phenomena.
The application of site-specific uses and criteria is described in §307.8
of this title (relating to the Application of Standards) and §307.9 of
this title (relating to the Determination of Standards Attainment).
(b)
Appropriate uses and criteria for site-specific standards
are defined as follows.
(1)
Recreation. Recreational use consists of two categories--contact
recreation waters and noncontact recreation waters. Classified segments are
designated for contact recreation unless elevated concentrations of indicator
bacteria frequently occur due to sources of pollution which cannot be reasonably
controlled by existing regulations or contact recreation is considered unsafe
for other reasons such as ship or barge traffic. In a classified segment where
contact recreation is considered unsafe for reasons unrelated to water quality,
a designated use of noncontact recreation may be assigned criteria normally
associated with contact recreation. A designation of contact recreation is
not a guarantee that the water so designated is completely free of disease-causing
organisms. Indicator bacteria, although not generally pathogenic, are indicative
of potential contamination by feces of warm blooded animals. The criteria
for contact recreation are based on these indicator bacteria, rather than
direct measurements of pathogens. Criteria are expressed as the number of
"colony forming units" of bacteria per 100 milliliters (ml) of water. Even
where the concentration of indicator bacteria is less than the criteria for
contact recreation, there is still some risk of contracting waterborne diseases.
Additional guidelines on minimum data requirements and procedures for evaluating
standards attainment are specified in the latest approved version of the
(A)
Freshwater
(i)
Contact recreation. The geometric mean of
E. coli
should not exceed 126 per 100 ml. In addition, single samples
of
E. coli
should not exceed 394 per 100 ml.
Contact recreation applies to all bodies of freshwater except where specifically
designated otherwise in §307.10 of this title.
(ii)
Noncontact recreation. The geometric mean of
E. coli
should not exceed 605 per 100 ml.
(B)
Saltwater.
(i)
Contact recreation. The geometric mean of Enterococci should
not exceed 35 per 100 ml. In addition, single samples of Enterococci should
not exceed 89 per 100 ml. Contact recreation applies to all bodies of saltwater,
except where specifically designated otherwise in §307.10 of this title.
(ii)
Noncontact recreation. The geometric mean of Enterococci
should not exceed 168 per 100 ml.
(C)
Fecal coliform bacteria. Fecal coliform bacteria can be
used as an alternative instream indicator of recreational suitability until
sufficient data are available for
E coli
or
Enterococci. For segments designated as oyster waters in §307.10 of this
title, fecal coliform can continue to be used as an indicator of recreational
suitability because fecal coliform is used as the indicator for suitability
of oyster water use as described in paragraph (3)(B) of this subsection. Fecal
coliform can also continue to be used as a surrogate indicator in effluent
limits for wastewater discharges. Fecal coliform criteria are the same for
both freshwater and saltwater, as follows.
(i)
Contact recreation. The geometric mean of fecal coliform
should not exceed 200 per 100 ml. In addition, single samples of fecal coliform
should not exceed 400 per 100 ml.
(ii)
Noncontact recreation. Fecal coliform shall not exceed
2,000 per 100 ml as a geometric mean. In addition, single samples of fecal
coliform should not exceed 4,000 per 100 ml.
(D)
Swimming advisory programs. For areas where local jurisdictions
or private property owners voluntarily provide public notice or closure based
on water quality, the use of any single-sample or short-term indicators of
recreational suitability are selected at the discretion of the local managers
of aquatic recreation. Guidance for single-sample bacterial indicators is
available in the EPA document entitled
Ambient Water
Quality Criteria for Bacteria--1986
. Other short-term indicators to
assess water quality suitability for recreation--such as measures of streamflow,
turbidity, or rainfall--may also be appropriate.
(2)
Domestic water supply.
(A)
Use categories. Domestic water supply consists of two use
subcategories--public water supply and aquifer protection.
(i)
Public water supply. Segments designated for public water
supply are those known to be used or exhibit characteristics that would allow
them to be used as the supply source for public water systems, as defined
by Chapter 290 of this title (relating to Water Hygiene).
(ii)
Aquifer protection. Segments designated for aquifer protection
are capable of recharging the Edwards Aquifer. The principal purpose of this
use designation is to protect the quality of water infiltrating into and recharging
the aquifer. The designation for aquifer protection applies only to those
portions of the segments so designated that are on the recharge zone, transition
zone, or contributing zone as defined in Chapter 213 of this title (relating
to the Edwards Aquifer). Chapter 213 of this title establishes provisions
for activities in the watersheds of segments which are designated for aquifer
protection.
(B)
Use criteria. The following use criteria apply to both
domestic water supply use subcategories.
(i)
Radioactivity associated with dissolved minerals in the
freshwater portions of river basin and coastal basin waters should not exceed
levels established by drinking water standards as specified in Chapter 290
of this title unless the conditions are of natural origin.
(ii)
Surface waters utilized for domestic water supply shall
not exceed toxic material concentrations that prevent them from being treated
by conventional surface water treatment to meet drinking water standards as
specified in Chapter 290 of this title.
(iii)
Chemical and microbiological quality of surface waters
used for domestic water supply should conform to drinking water standards
as specified in Chapter 290 of this title.
(3)
Aquatic life. The establishment of numerical criteria for
aquatic life is highly dependent on desired use, sensitivities of usual aquatic
communities, and local physical and chemical characteristics. Five subcategories
of aquatic life use are established. They include limited, intermediate, high,
and exceptional aquatic life and oyster waters. Aquatic life use subcategories
designated for segments listed in Appendix A of §307.10 of this title
recognize the natural variability of aquatic community requirements and local
environmental conditions.
(A)
Dissolved oxygen.
(i)
The characteristics and associated dissolved oxygen criteria
for limited, intermediate, high, and exceptional aquatic life use subcategories
are indicated in Table 4.
Figure: 30 TAC §307.7(b)(3)(A)(i)
(ii)
The dissolved oxygen criteria and associated critical
low-flow values in Table 5 apply to streams which have significant aquatic
life uses, and to streams which are specifically listed in Appendix A or D
of §307.10 of this title. The criteria in Table 5 apply to streams in
Texas which are east of a line defined by Interstate Highway 35 and 35W from
the Red River to the community of Moore in Frio County, and by U.S. Highway
57 from the community of Moore to the Rio Grande. The critical low-flow values
in Table 5 (at the appropriate stream bedslope) will be utilized as headwater
flows when the flows are larger than applicable 7Q2 flows, in order to determine
discharge effluent limits necessary to achieve dissolved oxygen criteria.
For streams which have bedslopes less than the minimum bedslopes in Table
5, the flows listed for the minimum bedslope of 0.1 m/km will be applicable.
For streams which have bedslopes greater than the maximum bedslope in Table
5, the flows listed for the maximum bedslope of 2.4 m/km will be applicable.
The required effluent limits will be those necessary to achieve each level
of dissolved oxygen (as defined in clause (i) of this subparagraph, Table
4) at or below an assigned, designated, or presumed aquatic life use. Presumed
aquatic life uses will be in accordance with those required by §307.4(h)
of this title. The dissolved oxygen criteria in Table 5 do not apply to tidal
streams.
Figure: 30 TAC §307.7(b)(3)(A)(ii)
(iii)
The dissolved oxygen criteria in Table 5 are based upon
data from the agency's least impacted stream study (Texas Aquatic Ecoregion
Project). Results of this study indicate a strong dependent relationship for
average summertime background dissolved oxygen concentrations and several
hydrologic and physical stream characteristics--particularly bedslope (stream
gradient) and stream flow. The dissolved oxygen criteria in Table 5 are derived
from a multiple regression equation for the eastern portion of Texas as defined
in clause (ii) of this subparagraph. Further explanation of the development
of the regression equation and its application will be contained in the standards
implementation procedures.
(iv)
The critical low-flow values in Table 5 may be adjusted
based on site-specific data relating dissolved oxygen concentrations to factors
such as flow, temperature, or hydraulic conditions in accordance with the
standards implementation procedures. Site-specific, critical low-flow values
require approval by the agency. EPA will review any site-specific, critical
low-flow values that could affect permits or other regulatory actions that
are subject to approval by EPA. Critical low-flow values which have been determined
for particular streams are listed in §307.10 of this title when standards
are revised.
(B)
Oyster waters.
(i)
A 1,000 foot buffer zone, measured from the shoreline at
ordinary high tide, is established for all bay and gulf waters, except those
contained in river or coastal basins as defined in §307.2 of this title
(relating to Description of Standards). Recreational criteria for indicator
bacteria, as specified in §307.10(b)(1) of this title, are applicable
within buffer zones.
(ii)
Median fecal coliform concentration in bay and gulf waters,
exclusive of buffer zones, shall not exceed 14 colonies per 100 ml, with not
more than 10% of all samples exceeding 43 colonies per 100 ml.
(iii)
Oyster waters should be maintained so that concentrations
of toxic materials do not cause edible species of clams, oysters, and mussels
to exceed accepted guidelines for the protection of public health. Guidelines
are provided by U. S. Food and Drug Administration Action Levels for molluscan
shellfish.
(4)
Additional criteria.
(A)
Chemical parameters. Site-specific criteria for chloride,
sulfate, and total dissolved solids are established as averages over an annual
period for either a single sampling point or multiple sampling points.
(B)
pH. Site-specific numerical criteria for pH are established
as absolute minima and maxima.
(C)
Temperature. Site-specific temperature criteria are established
as absolute maxima.
(D)
Toxic materials. Criteria for toxic materials are established
in §307.6 of this title (relating to Toxic Materials).
(5)
Additional uses. Other basic uses, such as navigation,
agricultural water supply, industrial water supply, seagrass propagation,
and wetland water quality functions will be maintained and protected for all
water in the state in which these uses can be achieved.
§307.8.Application of Standards.
(a)
Low-flow conditions.
(1)
The following standards do not apply below seven-day, two-year
low-flows:
(A)
site-specific criteria, as defined in §307.7 of this
title (relating to Site-specific Criteria and Uses) and listed in Appendices
A, D, and E of §307.10 of this title (relating to Appendices A - E);
(B)
numerical chronic criteria for toxic materials as established
in §307.6 of this title (relating to Toxic Materials);
(C)
total chronic toxicity restrictions as established in §307.6
of this title;
(D)
maximum temperature differentials as established in §307.4(f)
of this title (relating to General Criteria);
(E)
dissolved oxygen criteria for unclassified waters, as established
in §307.4(h)(1) of this title; and
(F)
aquatic recreation criteria for unclassified waters, as
established in §307.4(j) of this title and in §307.7(b)(1) of this
title.
(2)
Numerical acute criteria for toxic materials and preclusion
of total acute toxicity as established in §307.6 of this title are applicable
at stream flows which are equal to or greater than one-fourth of seven-day,
two-year low-flows (7Q2).
(3)
Low-flow criteria in Appendix B of §307.10 of this
title are solely for the purpose of defining the flow conditions under which
water quality standards apply to a given water body. Low-flow criteria listed
in Appendix B of §307.10 of this title are not for the purpose of regulating
flows in water bodies in any manner or requiring that minimum flows be maintained
in classified segments.
(4)
Low-flow criteria defined in this section and listed in
Appendix B of §307.10 of this title apply only to river basin and coastal
basin waters. They do not apply to bay or gulf waters or reservoirs or estuaries.
(5)
Seven-day, two-year low-flows (7Q2) and harmonic mean flows
in Appendix B of §307.10 of this title were calculated from historical
U.S. Geological Survey (USGS) daily streamflow records. The low-flow criterion
was set at 0.1 of one cubic foot per second (ft
3
/s)
when the calculated 7Q2 was equal to or less than 0.1 of one ft
3
/s.
(6)
Flow values will be periodically recomputed to reflect
alterations in the hydrologic characteristics of a segment, including reservoir
construction, climatological trends, and other phenomena.
(7)
The general criteria are applicable at all flow conditions
except as specified in this section or in §307.4 of this title.
(8)
Specific human health criteria for concentrations in water
to prevent contamination of fish and shellfish so as to ensure safety for
human consumption, as established in §307.6 of this title do not apply
at stream flows below the harmonic mean flow.
(b)
Mixing zones. A reasonable mixing zone will be allowed
at the discharge point of permitted discharges into surface water in the state,
in accordance with the following provisions.
(1)
The following portions of the standards do not apply within
mixing zones:
(A)
site-specific criteria, as defined in §307.7 of this
title and listed in Appendices A, D, and E of §307.10 of this title;
(B)
numerical chronic aquatic life criteria for toxic materials
as established in §307.6 of this title;
(C)
total chronic toxicity restrictions as established in §307.6
of this title;
(D)
maximum temperature differentials as established in §307.4(f)
of this title;
(E)
dissolved oxygen criteria for unclassified waters, as established
in §307.4(h)(1) of this title;
(F)
dissolved oxygen criteria for intermittent streams, as
established in §307.4(h)(2) of this title;
(G)
aquatic recreation criteria for unclassified waters, as
established in §307.4(j) of this title and in §307.7(b)(1) of this
title;
(H)
specific human health criteria for concentrations in water
to prevent contamination of drinking water, fish and shellfish so as to ensure
safety for human consumption, as established in §307.6 of this title.
(2)
Numerical acute aquatic life criteria for toxic materials
and preclusion of total acute toxicity as established in §307.6 of this
title are applicable in mixing zones. Acute criteria and acute total toxicity
levels may be exceeded in small zones of initial dilution (ZIDs) at discharge
points, but there shall be no lethality to aquatic organisms which move through
a ZID. ZIDs shall not exceed the following sizes:
(A)
60 feet downstream and 20 feet upstream from a discharge
point in a stream and river, and in addition, ZIDs in streams and rivers shall
not encompass more than 25% of the volume of stream flow at or above seven-day,
two-year low-flow conditions;
(B)
a 25-foot radius in all directions (or equivalent volume
or area for diffuser systems) from a discharge point in a lake or reservoir;
and
(C)
a 50-foot radius in all directions (or equivalent volume
or area for diffuser systems) from a discharge point in a bay, tidal river,
or estuary.
(3)
Provisions of the general criteria in §307.4 of this
title remain in effect in mixing zones unless specifically exempted in this
section.
(4)
Water quality standards do not apply to treated effluents
at the immediate point of discharge--prior to any contact with either ambient
waters or a dry streambed. However, effluent total toxicity requirements may
be specified to preclude acute lethality near discharge points, or to preclude
acute and chronic instream toxicity.
(5)
Where a mixing zone is defined in a valid permit of the
Texas Natural Resource Conservation Commission, the Railroad Commission of
Texas, or the EPA, the mixing zone defined in the permit will apply.
(6)
Mixing zones shall not preclude passage of free-swimming
or drifting aquatic organisms to the extent that aquatic life use is significantly
affected, in accordance with guidelines specified in the standards implementation
procedures.
(7)
Mixing zones will not overlap unless it can be demonstrated
that no applicable standards will be violated in the area of overlap. Existing
and designated uses will not be impaired by the combined impact of a series
of contiguous mixing zones.
(8)
Mixing zones will not encompass an intake for a domestic
drinking water supply. Thermal mixing zones are excepted from this provision
unless elevated temperatures adversely affect drinking water treatment.
(9)
Mixing zones will be individually specified for all permitted
domestic discharges with a permitted monthly average flow equal to or exceeding
one million gallons per day and for all permitted industrial discharges to
water in the state (excepting discharges which consist entirely of storm water
runoff). For domestic discharges with permitted monthly average flows less
than one million gallons per day, a small mixing zone will be assumed in accordance
with guidelines for mixing zone sizes specified in the standards implementation
procedures; and the executive director or commission may require specified
mixing zones as appropriate.
(10)
The size of mixing zones for human health criteria may
vary from the size of mixing zones for aquatic life criteria.
(c)
Minimum analytical levels. The specified definition of
permit compliance for a specific toxic material will not be lower than established
minimum analytical levels, unless that toxic material is of particular concern
in the receiving waters, or unless an effluent specific method detection limit
has been developed in accordance with 40 CFR 136. Minimum analytical levels
are listed in the standards implementation procedures.
(d)
Once-through cooling water discharges. When a discharge
of once-through cooling water does not measurably alter intake concentrations
of a pollutant, then water-quality based effluent limits for that pollutant
are not required. For facilities which intake and discharge cooling-water
into different water bodies, this provision only applies if water quality
and applicable water quality standards in the receiving water are maintained
and protected.
(e)
Storm water discharges. Pollution in storm water shall
not impair existing or designated uses. Controls on the quality of storm water
discharges shall be based on best management practices, technology-based limits,
or both in combination with instream monitoring to assess standards attainment
and to determine if additional controls on storm water quality are needed.
The implementation procedures describe how water quality standards will be
applied to TPDES storm water discharges. The evaluation of instream monitoring
data for standards attainment shall include the effects of storm water, as
described in §307.9 of this title (relating to the Determination of Standards
Attainment).
§307.9.Determination of Standards Attainment.
(a)
General standards attainment sampling and assessment procedures.
Unless otherwise stated in this chapter, additional details concerning sampling
procedures for the measurement, collection, preservation and laboratory analysis
of water quality samples are provided in the latest version of the
TNRCC Surface Water Quality Monitoring Procedures Manual
, the most
recently published edition of the book entitled
Standard Methods for the Examination of Water and Wastewater
, 40 CFR
136, or other reliable sources acceptable to the executive director. Unless
otherwise stated in this chapter, additional details concerning how sampling
data are evaluated to assess standards compliance are provided in the latest
approved version of the
TNRCC Guidance for Screening
and Assessing Texas Surface and Finished Drinking Water Quality Data
.
(b)
Representative samples to determine standards attainment
will be collected at locations approved by the agency. Samples collected at
non-approved locations may be accepted at the discretion of the agency.
(c)
Collection and preservation of water samples.
(1)
To ensure that representative samples are collected and
to minimize alterations prior to analysis, collection and preservation of
attainment determination samples will be in accordance with procedures set
forth in the most recently published edition of the book entitled
Standard Methods for the Examination of Water and Wastewater
, the latest
version of the
TNRCC Surface Water Quality Monitoring
Procedures Manual
, 40 CFR 36, or other reliable procedures acceptable
to the agency.
(2)
Bacterial and temperature determinations will be conducted
on samples or measurements taken approximately one foot below the surface.
Depth collection procedures for chloride, sulfate, total dissolved solids,
dissolved oxygen, and pH to determine standards attainment may vary depending
on the water body being sampled. Where standards apply to the mixed surface
layer, the depth of this layer is determined in accordance with procedures
in the latest approved version of the
TNRCC Guidance
for Screening and Assessing Texas Surface and Finished Drinking Water Quality
Data
. Standards for chloride, sulfate, total dissolved solids, and
pH are applicable to the mixed surface layer, but a single sample taken near
the surface normally provides an adequate representation of these parameters.
(3)
For dissolved oxygen, the following procedures are generally
applicable:
(A)
Non-tidal flowing streams. The dissolved oxygen criteria
is applicable to the mixed surface layer, but a single sample taken near the
surface normally provides an adequate representation of this parameter.
(B)
Impoundments. Representative samples shall be collected
from the entire water column in the absence of thermal stratification. Collection
of representative samples shall be confined to the epilimnion when an impoundment
is thermally stratified.
(C)
Tidal waters. Representative samples shall be collected
from the entire water column in the absence of density stratification. Under
conditions of density stratification, a composite sample collected from the
mixed surface layer shall be used to determine standards attainment.
(4)
For toxic materials, numerical aquatic life criteria are
applicable to water samples collected at any depth. Numerical human health
criteria are applicable to the average concentration from the surface to the
bottom. For the purposes of standards attainment for aquatic life protection
and human health protection, samples which are collected at approximately
one foot below the water surface will also be acceptable for comparison to
numerical criteria.
(d)
Sample analysis.
(1)
Numerical criteria. Procedures for laboratory analysis
will be in accordance with the most recently published edition of the book
entitled
Standard Methods for the Examination of
Water and Wastewater
, the latest version of the
Texas Surface Water Quality Monitoring Procedures Manual
, 40 CFR 136,
or other reliable procedures acceptable to the agency.
(2)
Radioactivity. Measurements will be made on filtered samples
to determine radioactivity associated with dissolved minerals in accordance
with current analytical methodology approved by the EPA.
(3)
Toxicity. Bioassay techniques will be selected as testing
situations dictate but will generally be conducted using representative sensitive
organisms in accordance with §307.6 of this title (relating to Toxic
Materials).
(e)
Sampling periodicity and evaluation.
(1)
Chloride, sulfate, total dissolved solids (TDS). Standards
attainment determinations shall be based on the average of measurements taken
over a period of at least one year. Results from all monitoring stations within
the segment will be averaged to allow for reasonable parametric gradients.
TDS determinations may be based on measurements of specific conductance.
(2)
Radioactivity. The impact of radioactive discharges on
the surface waters in Texas will be evaluated utilizing information developed
by the Sanitary Engineering Research Laboratory at the University of Texas
and presented in the June 30, 1960, report entitled,
Report on Radioactivity--Levels in Surface Waters--1958-1960
.
(3)
Bacteria. Standards attainment will be based on a geometric
mean of applicable samples and based on a single sample maximum, and data
will be evaluated in accordance with the provisions of §307.7(b)(1) of
this title (relating to Site-specific Uses and Criteria).
(4)
Toxic materials. Specific numerical acute toxic criteria
are applied as 24-hour averages, and specific numerical chronic toxic criteria
are applied as seven-day averages. Human health criteria are applied as long-term
average exposure criteria designed to protect populations over a life time
of 70 years. Refer to the latest approved version of the
TNRCC Guidance for Screening and Assessing Texas Surface and Finished Drinking
Water Quality Data
for sampling periodicity and evaluation applicable
to standards. Standards attainment for human health criteria will be based
on the average of a minimum of four samples collected over at least a one
year period.
(5)
Temperature and pH. Standards attainment based on single
measurements will be evaluated according to the latest approved version of
the
TNRCC Guidance for Screening and Assessing Texas
Surface and Finished Drinking Water Quality Data
.
(6)
Dissolved oxygen.
(A)
Criteria for daily (24-hour) average concentrations will
be compared to a time-weighted average of measurements taken over a 24-hour
period.
(B)
Criteria for minimum concentrations will be compared to
individual measurements. When data are collected over a 24-hour period, any
single measurement may be compared to the applicable minimum criterion.
(f)
Biological integrity. Biological integrity, which is an
essential component of the aquatic life categories defined in §307.7(b)(3)
of this title, is assessed by sampling the aquatic community. Attainment of
aquatic life use may be assessed by indices of biotic integrity which are
described in publicly available documents such as in the latest version of
the
TNRCC Receiving Water Assessment Procedures Manual
.
(g)
Additional parameters. Assessment of narrative criteria
parameters shall be performed in accordance with the latest approved version
of the
TNRCC Guidance for Screening and Assessing
Texas Surface and Finished Drinking Water Quality Data
.
§307.10.Appendices A - E.
The following appendices are integral components of this chapter of
the Texas Surface Water Quality Standards.
(1)
Appendix A--Site-specific Uses and Criteria for Classified
Segments:
Figure: 30 TAC §307.10(1)
(2)
Appendix B--Low Flow Criteria:
Figure: 30 TAC §307.10(2)
(3)
Appendix C--Segment Descriptions:
Figure: 30 TAC §307.10(3)
(4)
Appendix D--Site-specific Receiving Water Assessments:
Figure: 30 TAC §307.10(4)
(5)
Appendix E--Site-specific Criteria:
Figure: 30 TAC §307.10(5)
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 July 28, 2000.
TRD-200005225
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: August 17, 2000
Proposal publication date: February 4, 2000
For further information, please call: (512) 239-0348
Subchapter A. GENERAL PROVISIONS
Chapter 14.
GRANTS
Chapter 80.
CONTESTED CASE HEARINGS
Chapter 307.
TEXAS SURFACE WATER QUALITY STANDARDS
Chapter 312.
SLUDGE USE, DISPOSAL, AND TRANSPORTATION