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TCEQ National Comments Log - Comments Relating to Water Issues

TCEQ national comments relating to water issues.

 

See also: General Information on National Comments, Air Comments, Waste Comments, Multimedia and Administrative Comments

Date
Submitted
Short Title
07/10/14 The Human Health Ambient Water Quality Criteria
06/02/14 The Interpretive Rule Regarding Applicability of the Exemption from Permitting under Section 404(f)(l)(A) of the Clean Water Act (CWA) of Certain Agricultural Conservation Practices
04/23/14 Endangered and Threatened Wildlife and Plants; Special Rule for the Georgetown Salamander
01/02/14 Water Quality Standards Regulatory Clarifications
11/06/13 Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence
09/20/13 Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category
05/31/13 Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category
05/08/13 U.S. EPA draft report of the National Rivers and Streams Assessment 2008–2009 (NRSA)
03/01/13 National Pollutant Discharge Elimination System (NPDES) Permit Regulation and Effluent Limitations Guidelines Standards for Concentrated Animal Feeding Operations (CAFOs)
02/14/13 Water Supply Storage Agreements and Disposition of Return Flows
12/14/12 Revised Nonpoint Source (NPS) Program and Grants Guidelines for States and Territories
10/22/12 Endangered and Threatened Wildlife and Plants; Endangered Status for Four Central Texas Salamanders and Designation of Critical Habitat
10/18/12 Draft Environmental Impact Statement and Draft Habitat Conservation Plan for Incidental Take of 11 Federally Listed or Petitioned Species by the Edwards Aquifer Recovery Implementation Program in 8 Texas Counties
10/15/12 Proposed Listing for Six West Texas Aquatic Invertebrate Species and Designation of Critical Habitat
10/02/12 Revisions to Stormwater Regulations to Clarify that an NPDES Permit Is Not Required for Stormwater Discharges from Logging Roads
07/27/12 Request for Information on the Sharpnose and Smalleye Shiners
06/29/12 Memoranda of Agreement (MOA) between the EPA and States Governing the National Pollutant Discharge Elimination System (NPDES) Permit Program
06/22/12 Notice of Intent to Revise Stormwater Regulations to Specify that an NPDES Permit is Not Required for Stormwater Discharges from Logging Roads
05/17/12 Draft National Water Program 2012 Strategy: Response to Climate Change
05/14/12 Draft NPDES General Permit for Discharges From the Oil and Gas Extraction Point Source Category to Coastal Waters in Texas
03/19/12 Fiscal Year 2013 Draft National Water Program Guidance
01/17/12 Proposed National Pollutant Discharge Elimination System (NPDES) Concentrated Animal Feeding Operation (CAFO) Reporting Rule
10/14/11 Endangered and Threatened Wildlife and Plants; Designation of Revised Critical Habitat for Southwestern Willow Flycatcher
07/25/11 Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To List the Spot-Tailed Earless Lizard as Endangered or Threatened
07/19/11 National Pollutant Discharge Elimination System-Cooling Water Intake Structures at Existing Facilities and Phase I Facilities
07/13/11 EPA and Army Corps of Engineers Guidance Regarding Identification of Waters Protected by the Clean Water Act
07/11/11 Draft National Pollutant Discharge Elimination System (NPDES) General Permit for Stormwater Discharges From Construction Activities
05/16/11 EPA memorandum entitled "Revisions to the November 22, 2002 Memorandum Establishing Total Maximum Daily Load (TMDL) Wasteload Allocations (WLAs) for Storm Water Sources and NPDES Permit Requirements Based on Those WLAs"
05/02/11 Revisions to the Unregulated Contaminant Monitoring Regulation for Public Water Systems
12/08/10 Guidelines for Establishing Test Procedures for the Analysis of Pollutants under the Clean Water Act
07/19/10 Draft NPDES Pesticide General Permit for Point Source Discharges from the Application of Pesticides
02/26/10 Stakeholder Input; Stormwater Management Including Discharges From New Development and Redevelopment
12/19/08 Proposed Federal Requirements Under the Underground Injection Control (UIC) Program for Carbon Dioxide (CO2) Geologic Sequestration (GS) Wells
08/18/08 Clean Water Act Section 303(d): Availability of List Decisions
04/08/08 Revised NPDES Permit Regulations for Concentrated Animal Feeding Operations
01/16/08 EPA and Army Corps of Engineers Guidance Regarding Clean Water Act Jurisdiction After Rapanos
08/10/07 City of Austin - Proposed Rule Regarding Void and Water Flow Mitigation
08/09/07 Texas Water Development Board Economically Distressed Areas Program - SB3, Sec. 6.01
03/05/07 NPDES Permit Fee Incentive for Clean Water Act Section 106 Grants
12/12/06 Nominations of Drinking Water Contaminants for the Contaminant Candidate List (CCL)
12/08/06 EPA Draft Listing Waters Impaired by Atmospheric Mercury
11/07/06 EPA Draft Underground Injection Control Program Guidance
09/18/06 National Primary Drinking Water Regulations for Lead and Copper
08/29/06 National Pollutant Discharge Elimination System (NPDES) Permit Regulation and Effluent Limitation Guidelines for Concentrated Animal Feeding Operations
08/07/06 National Pollutant Discharge Elimination System (NPDES) Water Transfers
07/07/06 Compensatory Mitigation for Losses of Aquatic Resources
05/01/06 Small Drinking Water Systems Variances
04/19/06 Coastal Impact Assistance Program (CIAP) Guidance to the States
10/07/05 U.S. Fish & Wildlife Service's Proposal to Reintroduce the Silvery Minnow into the Big Bend Area of the Rio Grande
07/22/05 Application for a Presidential Permit for Pipeline Facilities to be Constructed, Operated and Maintained on the Border of the United States
03/30/05 Draft National Whole Effluent Toxicity (WET) Implementation Guidance
03/29/05 National Pollutant Discharge Elimination System--Proposed Regulations To Establish Requirements for Cooling Water Intake Structures at Phase III Facilities; Proposed Rule
03/28/05 USFWS Notice of Availability of the Draft Barton Springs Salamander Recovery Plan; Notice of Initiation of a 5-Year Status Review for the Barton Springs Salamander
03/15/05 USDA-NRCS Environmental Quality Incentive Program (EQIP)
01/10/05 EPA's Office of Water Program Activity Measures Proposed for Fiscal Year 2006
08/13/04 Nomination of Mr. Tony Bennett for Consideration to Serve a Three-year Term as a Member on the National Drinking Water Advisory Council
06/07/04 Guidelines Establishing Test Procedures for the Analysis of Pollutants Under the Clean Water Act; National Primary Drinking Water Regulations; and National Secondary Drinking Water Regulations; Analysis and Sampling Procedures
05/28/04 The Drinking Water Contaminant Candidate List CCL2: Notice
05/28/04 USFWS Notice of Availability of the Draft Karst Survey Guidance and Scientific Permit Requirements for Conducting Presence/Absence Surveys for Endangered Karst Invertebrates in Central Texas
03/17/04 Use of Composted Material for Erosion and Sediment Control
01/20/04 Stage 2 Disinfection Byproducts Rule
01/09/04 Long Term 2 Enhanced Surface Water Treatment Rule
07/18/03 Proposed Regulations to Establish Cooling Water Intake Structures at Phase II Existing Facilities; Notice of Data Availability
07/15/03 Proposed Regulations to Establish Cooling Water Intake Structures at Phase II Existing Facilities; Notice of Data Availability
05/07/03 Texas Coastal Nonpoint Source Pollution Control Program
04/16/03 Advance Notice of Proposed Rulemaking - "Waters of the U.S."
01/27/03 Proposed Comments on EPA Federal Register Notice related to Withdrawal of Revisions to the Water Quality Planning and Management Regulation and Revisions to the National Pollutant Discharge Elimination System Program in Support of Revisions to the Water Quality Planning and Management Regulation

DATE SUBMITTED:07/10/14

SHORT TITLE: The Human Health Ambient Water Quality Criteria Adobe Acrobat PDF Document

SUBMITTED TO: U.S. Environmental Protection Agency

OFFICE PREPARING: Office of the Executive Director

STAFF CONTACT: Allison Jenkins

SUMMARY OF COMMENTS:

TCEQ staff have reviewed the Updated National Recommended Water Quality Criteria for the Protection of Human Health for 94 chemical constituents. TCEQ appreciates the incorporation of latest scientific information. However, with the incorporation of updated exposure assumptions, such as body weight and drinking water intake rate, these water quality criteria are not consistent with and are, in some cases, more conservative than exposure assumptions in National Primary Drinking Water Regulations. TCEQ recommends using the drinking water Maximum Contaminant Level in the surface water quality equation. To prevent compounding conservatism, TCEQ also recommends EPA use a water intake rate that accounts for the intake of water only, rather than all sources combined (i.e., beverages, food, etc.). In 2011, Texas implemented the use of childhood exposure factors for noncarcinogens (as approved by EPA Region 6); the use of both childhood exposure factors and a 20% relative source contribution (RSC) factor, as proposed by EPA, is overly stringent and, as evidence is lacking to support the use of an assumed 20% default RSC, the use of childhood exposure factors appears more scientifically defensible.

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DATE SUBMITTED: 06/02/14

SHORT TITLE: The Interpretive Rule Regarding Applicability of the Exemption from Permitting under Section 404(f)(l)(A) of the Clean Water Act (CWA) of Certain Agricultural Conservation Practices Adobe Acrobat PDF Document

SUBMITTED TO: U.S. Environmental Protection Agency

OFFICE PREPARING: Office of Water

STAFF CONTACT: Kim Wilson

SUMMARY OF COMMENTS:

The Natural Resource Conservation Service’s (NRCS) conservation standards were not designed to be a binding regulatory instrument; they are guidance and voluntary practice. Using the NRCS conservation practices in this manner creates uncertainties that should be examined by EPA and USACE through outreach efforts. The Interpretive Rule was not anticipated by states – neither EPA nor USACE did any degree of public outreach prior to finalizing the rule. Outreach for this rule is critical, and would allow EPA and USACE to examine important compliance, enforcement, and regional variation issues. This is particularly important because the NRCS conservation standards were not developed for regulatory use. EPA and USACE should delay implementation of the Interpretive Rule until after Definition of "Waters of the United States" Under the Clean Water Act (WOTUS) is finalized, and use the interim time to conduct public outreach on the Interpretive Rule.

Additional comments/details on this position are as follows:

  1. The interpretive rule should be delayed until the WOTUS rule is finalized. EPA and USACE’s sequencing of the intertwined WOTUS and Interpretive Rule gives the impression that revisions to the WOTUS rule are unlikely to affect the Interpretive Rule. The Interpretive Rule deals with the exemption from permitting requirements for discharges of dredged or fill material into WOTUS. The proposed rulemaking to define the jurisdictional reach of WOTUS may impact the scope of the Interpretive Rule. The WOTUS rulemaking should be concluded before the Interpretive Rule is finalized so that regulated entities and individuals would know if the Interpretive Rule applies to their farming, ranching or silviculture activities. EPA and USACE should use this additional time to conduct extensive outreach to landowners and producers.
  2. NRCS conservation standards were not designed to be a binding regulatory instrument; they are guidance and voluntary practice. The Interpretive Rule identifies 56 conservation practices approved by the USDA, USACE, and EPA which would qualify for a CWA Section 404 “dredged or fill” permitting exemption under the exclusion of "normal farming" activities. The Interpretive Rule could result in making those practices binding. There will be a great deal of subjectivity in compliance determinations, contrary to EPA and USACE’s goals of creating certainty and clarity though the WOTUS and Interpretive Rule rulemaking efforts. Consistent and predicable compliance and enforcement is an essential component in any rulemaking of this type.
  3. It is unclear if farmers who previously demonstrated compliance with NRCS standards would be subject to enforcement if a particular practice is removed from the list of exempt conservation practices. EPA and USACE need to clarify how an implemented conservation practice will be treated if the practice is removed from the approved list of exempt conservation practices.
  4. There may be regional practices that would be considered “normal farming” activities yet are not included in the current list of 56 conservation practices and, therefore, would not meet the criteria for exemption. EPA and USACE should include a variance procedure in the interpretive rule to accommodate regional differences in agricultural practices. Farmers and ranchers who comply with the variance procedures with respect to practices not included in the list of exempt practices should be entitled to exemption from permitting for localized normal farming practices which are consistent, but slightly different, from the NRCS standards.
  5. Currently, public participation is not required for the addition or removal of items from the list of approved conservation practices. The Memorandum of Understanding among the USDA, the EPA, and the USACE concerning implementation of the 404(f)(1)(A) Exemption for Certain Agricultural Conservation Practice Standards (MOU), merely states that "the agencies will reach out to other interested entities, including states, as the list of exempt practices is regularly reviewed." EPA and USACE did not seek public input before it promulgated the Interpretive Rule, and the Interpretive Rule was made effective before it was made available for public comment. The TCEQ is concerned that EPA and USACE will not seek public input in updating the list of exempt conservation practices in the future, which would be of particular concern if practices are removed from the list.

The comments are also included in the letter to EPA.

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DATE SUBMITTED: 04/23/14

SHORT TITLE: Endangered and Threatened Wildlife and Plants; Special Rule for the Georgetown Salamander Adobe Acrobat PDF Document

SUBMITTED TO: U.S. Fish and Wildlife Service

OFFICE PREPARING: Office of Water

STAFF CONTACT: Joe Martin

SUMMARY OF COMMENTS:

The TCEQ reiterates that using locally controlled processes is the best way to manage protection of the salamander.

The TCEQ recommends not adding any additional provisions beyond the scope of the City of Georgetown ordinance.

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DATE SUBMITTED: 01/02/14

SHORT TITLE: Water Quality Standards Regulatory Clarifications Adobe Acrobat PDF Document

SUBMITTED TO: U.S. Environmental Protection Agency

OFFICE PREPARING: Office of Water

STAFF CONTACT: Kimberly Wilson

SUMMARY OF COMMENTS:

The proposed revisions have the potential to affect the development of the Texas Surface Water Quality Standards and implementation of the standards in wastewater permitting. Comments have been developed that address the proposal and, in general, express concern with EPA’s proposed regulation that could interfere with existing TCEQ water quality management processes. Comments on the proposed revisions include the following:

  • Administrator’s Determinations that New or Revised WQS Are Necessary: The EPA’s proposal regarding Administrator’s Determinations may increase transparency; therefore, TCEQ supports this proposal.
  • Designated Uses: The TCEQ requests that EPA continue to provide states with the flexibility to apply the most appropriate and scientifically defensible approach for the conditions within each state.
  • Requirements of Triennial Reviews: TCEQ objects to the addition of requirements to the federal regulation to specifically consider EPA-recommended water quality criteria developed at CWA Section 304(a) as part of state triennial reviews. Delegated programs should continue the broad consideration of a range of available information that is scientifically- defensible – not just EPA recommended criteria.
  • Antidegradation Implementation: TCEQ strongly opposes any changes in EPA’s regulation that would mandate implementation methods be added to the state’s water quality standards and negatively impact current TCEQ antidegradation implementation.
  • WQS Variances: TCEQ strongly opposes the proposed changes in EPA’s regulation that would negatively impact current TCEQ variance processes. Specifically, TCEQ strongly opposes defining a variance for an individual permit as a water quality standard.
  • Provisions Authorizing the Use of Permit–Based Compliance Schedule: TCEQ requests revision of the proposed regulatory provision at 40 Code of Federal Regulations Section 131.15 to address only compliance schedule authorizing provisions, not add requirements for the compliance schedules themselves.

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DATE SUBMITTED:

SHORT TITLE: Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence Adobe Acrobat PDF Document

SUBMITTED TO: U.S. Environmental Protection Agency

OFFICE PREPARING: Office of Water

STAFF CONTACT: Todd Chenoweth

SUMMARY OF COMMENTS:

The comments reiterate the TCEQ position, which was previously provided in comments on EPA/USACE’s draft guidance on identifying waters protected by the CWA, that any expansion of the CSW should be accomplished through a Congressional act. The comments state that the report should be revised to just focus on the scientific literature. The report should state that the original scientific literature was not intended to resolve legal issues. The report should be revised to remove inferences that isolated, non-navigable waters are connected to larger water bodies for purposes of the CWA. And that the report be revised to acknowledge that groundwater is not a "water of the United States."

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DATE SUBMITTED:

SHORT TITLE: Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category Adobe Acrobat PDF Document

SUBMITTED TO: U.S. Environmental Protection Agency

OFFICE PREPARING: Office of Water

STAFF CONTACT: Todd Chenoweth

SUMMARY OF COMMENTS:

The TCEQ recommends that the EPA revisit and reconsider the proposed anti-circumvention provisions that would very likely result in significant resource and cost burden to users and permitting authorities associated with permitting, compliance monitoring, and reporting; would very likely discourage water reuse if a user wanted to reuse water in a process operation that has a waste stream that would be subject to a zero discharge limit or standard; and result in a substantial increase in effort to permit steam electric stations.

TCEQ is opposed to establishing BMPs, construction standards, submittal of plans and specifications, closure plans, and annual certifications and to requiring the establishment of effluent limitations based on BPJ in lieu of BAT numerical standards under this rule. This would appear to overlap RCRA regulations and substantially increase burden on permittees and water permitting programs and possibly create enforcement challenges. TCEQ fully supports the concept of the compliance schedules proposed in the revised effluent guidelines and appreciates the flexibility for permitting authorities to determine dates that existing sources must be in compliance with standards for existing sources. TCEQ suggests revisions to the revised analytical methods guidelines to allow site specific test method and detection levels where warranted, recommends that EPA use the correct new source date of October 14, 1980 for indirect users, and suggests that EPA include a definition of "no discharge" and "zero discharge" in the specialized definitions subpart §423.11.

The TCEQ also recommends that the EPA use a format for tables such as including headings and table numbers that can be referenced in the applicable subpart and use a protocol for numbering paragraphs in PSES (§423.16) and PSNS (§423.17). Specific comments are included as Attachment 1 - COMMENTS BY THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY REGARDING THE EFFLUENT LIMITATIONS GUIDELINES AND STANDARDS FOR THE STEAM ELECTRIC POWER GENERATING POINT SOURCE CATEGORY; PROPOSED RULE; EPA DOCKET ID NO. EPA-HQ-OW-2009-0819

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DATE SUBMITTED: 05/31/13

SHORT TITLE: Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category Adobe Acrobat PDF Document

SUBMITTED TO: U.S. Environmental Protection Agency

OFFICE PREPARING: Office of Water

STAFF CONTACT: Rebecca L. Villalba

SUMMARY OF COMMENTS:

The TCEQ supports EPA proposed revisions to the 2009 C&D Final Rule. Specifically, TCEQ supports the withdrawal of the numeric effluent limit for turbidity. Further, TCEQ supports revisions to the non-numeric limitations based on the added flexibility and clarity.

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DATE SUBMITTED: 05/08/13

SHORT TITLE: U.S. EPA draft report of the National Rivers and Streams Assessment 2008–2009 (NRSA) Adobe Acrobat PDF Document

SUBMITTED TO: U.S. Environmental Protection Agency

OFFICE PREPARING: Office of Water

STAFF CONTACT: L’Oreal W. Stepney, P.E.

SUMMARY OF COMMENTS:

The report is generally credible, but TCEQ’s draft comments express several suggestions and concerns. EPA is asked to provide a clearer, more conspicuous explanation that this report is separate and independent from the states’ reports; and TCEQ expresses concern about (1) the resource-intensive, potentially duplicative efforts of EPA’s probabilistic surveys, and (2)EPA’s request for states to apply EPA’s probabilistic approach. EPA is also cautioned not to imply that their evaluations can quantify and predict the percentage recovery of aquatic life based on reduction of a single pollutant.

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DATE SUBMITTED: 03/01/13

SHORT TITLE: National Pollutant Discharge Elimination System (NPDES) Permit Regulation and Effluent Limitations Guidelines Standards for Concentrated Animal Feeding Operations (CAFOs) Adobe Acrobat PDF Document

SUBMITTED TO: U.S. Environmental Protection Agency

OFFICE PREPARING: Office of Water

STAFF CONTACT: David Galindo

SUMMARY OF COMMENTS:

    1. The EPA’s 2003 CAFO Rule expanded the number of operations covered by CAFO regulations and included requirements to address the land application of manure. The revision to the CAFO rule in December 2008 requires CAFO applicants, under both individual and general permits, to submit a Nutrient Management Plan (NMP) to the permitting authority for review and approval with an opportunity for public comment and public participation on the terms of the NMP. In addition, the terms of the NMP would be included as enforceable permit conditions. The revised rule also includes requirements related to previously submitted NMPs, including specific changes that are considered to be substantial and require an opportunity for public comment and participation (40 CFR Part 122.42(e) (6)).

      In Texas, NMPs are developed and certified by nutrient management specialists, agronomists or soil scientists, the National Resource Conservation Service (NRCS), the Texas State Soil Conservation Board, or by the Texas Agrilife Extension Service, who develop the plans under the NRCS Practice Standard 590. CAFOs are required to revise the NMPs annually when the soil test data is received and manure or wastewater application rates or cropping patterns change consistent with the NRCS 590 Standard. Crop management decisions based on the soil test data and the NMP process should be implemented quickly to ensure that manure is applied at proper agronomic rates throughout the year. Considering permit application review time and notice requirements, the growing season is likely to be over and the opportunity for land application would be missed. Not only would this negatively impact CAFOs from an operational and management standpoint, but also cause a significant and unnecessary workload for states which would need to review and approve changes. With the system that we have in Texas as described above, we fail to see the need to burden state resources that could be focused on more pressing environmental concerns. Consequently, TCEQ recommends that delegated states be given the flexibility to develop a process for determining when subsequent revisions of NMPs will require review, and of those reviewed which will require public notice.

 

    1. TCEQ uses the NRCS Practice Standard Code 590 to meet the NMP requirements of the CAFO rule. This standard involves a much more comprehensive approach to nutrient management than other currently available nutrient management tools. It was developed to limit application of Phosphorus (P) and Nitrogen (N) on sites to reduce the risk of P runoff. In order to determine if a land application site has a higher P Runoff Potential than that identified in the previous year, the output of the 590 spreadsheet tool is revised using updated soil and manure analyses. If the P Runoff Potential places a particular LMU in a higher risk category, the output will list a reduced application rate of nutrients from manure and wastewater for the growing season. The criterion to reduce P and N application to fields whose P Runoff Potential increases has been contemplated and the process to reduce P runoff is built into the spreadsheet tools developed by the NRCS and used by CAFO stakeholders in the state of Texas.

      Although the NRCS Practice Standard 590 has a process built in to reduce P application if the LMU is placed in a higher risk category for runoff, EPA appears to interpret an increase in the Phosphorus Index (PI) as an increase in the transport risk of N and P to waters of the U.S. (40 CFR Part 122.42(e) (6) (iii) (D). This interpretation of a substantial change would require all CAFOs whose annual soil and manure data indicate an increase in the PI to submit an updated NMP and allow public comment and participation regarding this change. As indicated above, the application rates determined by the 590 standards are reduced when the PI increases, thus the potential for phosphorus site runoff is unchanged. TCEQ recommends that EPA revise the rule to eliminate these criteria and provide states with the latitude to continue to use the NRCS - NMP content guidelines and procedures it has previously developed.

 

  1. General permits have traditionally been used by states and EPA to regulate large numbers of similar types of operations and their issuance includes a public notice process. The revised NMP notice requirements outlined in the federal rules, turn the CAFO general permit into something more akin to an individual permit, which creates a significant resource burden on the states. TCEQ recommends that EPA make every effort possible to return to the states the administrative benefits of using general permits and eliminate the need to review unnecessary NMP changes.

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DATE SUBMITTED: 02/14/13

SHORT TITLE: Water Supply Storage Agreements and Disposition of Return Flows Adobe Acrobat PDF Document

SUBMITTED TO: Assistant Secretary of the Army (Civil Works)

OFFICE PREPARING: Office of Water

STAFF CONTACT: Kellye Rila

SUMMARY OF COMMENTS:

  • Water in a watercourse (including impoundments) is state water that is owned by the state of Texas.
  • TCEQ comments that impoundment and diversion of state water requires a water right permit. This includes any diversion of water from surplus storage.
  • Allocation of return flows to all owners/users in a reservoir may result in water that is permitted to an existing water right being allocated in a manner that would violate state statutes and ownership of state water.
  • Regarding inflows generated from return flows, return flows are not considered in TCEQ’s water availability determinations for new appropriations for storage or diversion. Any use or REUSE of return flows requires a permit from the state and an analysis that such use of state water belonging to the state does not impair existing permitted water rights.

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DATE SUBMITTED: 12/14/12

SHORT TITLE: Revised Nonpoint Source (NPS) Program and Grants Guidelines for States and Territories Adobe Acrobat PDF Document

SUBMITTED TO: U.S. Environmental Protection Agency

OFFICE PREPARING: Office of Water

STAFF CONTACT: Daniel Ingersoll/Office of Legal Services

SUMMARY OF COMMENTS:

Attached are comments on the draft revised guidelines for the CWA § 319 grant program:

  • EPA is urged to reconsider restricting funding of the development of watershed plans to NPS program funds;
  • EPA is strongly encouraged to address the situation where states seek to fund TMDL implementation activities with §319 watershed project funds;
  • EPA is encouraged to not require additional information on state programs other than what is already required in the current Grant Reporting and Tracking System;
  • TCEQ seek clarification of Coastal Zone set aside requirements;
  • TCEQ seeks clarification on requirements for Annual Report; and
  • TCEQ requests additional specific guidance on inputting NPS §319 data in the Water Quality Data Storage and Retrieval (STORET) system.

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DATE SUBMITTED: 10/22/12

SHORT TITLE: Endangered and Threatened Wildlife and Plants; Endangered Status for Four Central Texas Salamanders and Designation of Critical Habitat

SUBMITTED TO: USFWS

OFFICE PREPARING: Office of Water

STAFF CONTACT: Todd Chenoweth

SUMMARY OF COMMENTS:

The TCEQ submits the following comments:

  • The percentage of imperious cover on which the decision to list was, in part, based on anomalies and potential biases. The percentage of imperious cover should be recalculated and the listing revaluated.
  • Land application of wastewater in the Edwards Aquifer is conducted under appropriate regulations safeguarding water quality.
  • The improvements in the regulatory and incentive programs to protect the Edwards Aquifer and spring-dependent species over the last twenty years have been dramatic, and continuing effort at the local, regional, and state level will provide a more focused and efficient approach for protecting the northern Edwards salamanders than will federal listings as an endangered species.
  • The known locations of the Austin Blind salamander are contiguous with the listed Barton Springs salamander. Therefore, all of the local and state efforts to protect the Barton Springs salamander will provide commensurate and equal protection for the Austin Blind salamander, and there is no need for the added regulatory and bureaucratic burden of a redundant federal listing.
  • USFWS is requested to further evaluate recent studies by Texas State University researchers which suggest that at least some of these four species of salamander may not be separate species.

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DATE SUBMITTED: 10/18/12

SHORT TITLE: Draft Environmental Impact Statement and Draft Habitat Conservation Plan for Incidental Take of 11 Federally Listed or Petitioned Species by the Edwards Aquifer Recovery Implementation Program in 8 Texas Counties

SUBMITTED TO: USFWS

OFFICE PREPARING: Office of Water

STAFF CONTACT: Todd Chenoweth

SUMMARY OF COMMENTS:

The Texas Commission on Environmental Quality (TCEQ) generally supports the findings of the draft Environmental Impact Statement. The TCEQ supports the Habitat Conservation Plan as the preferred alternative. The Habitat Conservation Plan was developed during a multi-year consensus based process, involving an extremely diverse group of stakeholders, and represents the best protection for the species at the least economic impact for the region. Additionally, habitat improvement and water quality protection measures that are proposed under the Habitat Conservation Plan alternative, are absent from other alternatives, and are key to ensuring the best opportunities for the recovery of the protected species.

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DATE SUBMITTED: 10/15/12

SHORT TITLE: Proposed Listing for Six West Texas Aquatic Invertebrate Species and Designation of Critical Habitat

SUBMITTED TO: USFWS

OFFICE PREPARING: Office of Water

STAFF CONTACT: Todd Chenoweth

SUMMARY OF COMMENTS:

The TCEQ submits the following comments:

  • USFWS should evaluate whether the bureaucratic burden that is imposed by the listings would add any improvements to the current regulatory framework, since all of the applicable spring sites already have other species that have been listed as endangered.
  • TCEQ notes that the agency has recently issued a general permit that requires additional record keeping and in some cases notification for applications of pesticides and herbicides on or near surface waters.

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DATE SUBMITTED: 10/02/12

SHORT TITLE: Revisions to Stormwater Regulations to Clarify that an NPDES Permit Is Not Required for Stormwater Discharges from Logging Roads

SUBMITTED TO: EPA

OFFICE PREPARING: Office of Water

STAFF CONTACT: Todd Chenoweth

SUMMARY OF COMMENTS:

The TCEQ submits the following comments:

  • The TCEQ water programs support EPA’s proposal to revise the stormwater regulations such that a permit for stormwater discharge is not required for logging roads.
  • The notice indicates that EPA will continue to evaluate available information on the water-quality impacts of stormwater discharges from forest roads, which include logging roads. The TCEQ reiterates comments made on EPA’s Notice of Intent To Revise Stormwater Regulations To Specify That an NPDES Permit Is Not Required for Stormwater Discharges From Logging Roads and To Seek Comment on Approaches for Addressing Water Quality Impacts From Forest Road Discharges published on May 23, 2012. The TCEQ had previously commented that EPA appears to be addressing a more extensive universe of roads than those addressed in the case of Northwest Environmental Defense Center v. Brown and that the TCEQ is opposed to actions which would lead to regulation of a more extensive universe. Also, TCEQ commented that EPA should address local impacts rather than taking a nation-wide approach and use non-regulatory approaches to the maximum extent possible to address water quality issues from forest roads.

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DATE SUBMITTED: 07/27/12

SHORT TITLE: Request for Information on the Sharpnose and Smalleye Shiners Adobe Acrobat PDF Document

SUBMITTED TO: U.S. Fish and Wildlife Service

OFFICE PREPARING: Office of Water

STAFF CONTACT: Todd Chenoweth

SUMMARY OF COMMENTS: The agency provided a response Word Document to the U.S. Fish and Wildlife Service request for information.

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DATE SUBMITTED: 06/29/12

SHORT TITLE: Memoranda of Agreement (MOA) between the EPA and States Governing the National Pollutant Discharge Elimination System (NPDES) Permit Program

SUBMITTED TO: EPA

OFFICE PREPARING: Office of Water

STAFF CONTACT: Todd Chenoweth

SUMMARY OF COMMENTS:

Comments on the checklist and Model MOA include the following:

  • Despite EPA assurances that the Model MOA will not have to be “matched word for word,” TCEQ is extremely concerned that the Regions will insistent on the language in the Model MOA. The Model MOA will then be a “one size fits all” agreement.
  • The Model MOA has a provision for the Regional Administrator to initiate program changes. Either the EPA or the state should be able to initiate program changes.
  • The MOA states that generally the EPA will give the state notice if the EPA decides to take direct enforcement action and the Model MOA states that EPA retains the ability to conduct inspections without notice. We comment that the MOA must be reworded to delete the wording that EPA may take enforcement action without notifying the state.
  • The MOA attempts to substitute a written request for a full 90 day review period instead of a general objection to a draft permit required by rules. This provision should be deleted.
  • Deadlines and schedules that are not specified in the rules should be negotiated with the states. The Model MOA should not contain suggested time lines.
  • Data sharing language should be negotiated state by state.

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DATE SUBMITTED: 06/22/12

SHORT TITLE: Notice of Intent to Revise Stormwater Regulations to Specify that an NPDES Permit is Not Required for Stormwater Discharges from Logging Roads

SUBMITTED TO: EPA

OFFICE PREPARING: Office of Water

STAFF CONTACT: Kelly Holligan

SUMMARY OF COMMENTS:

Comments are being provided regarding EPA’s intention to revise its stormwater regulations with respect to logging roads, to study the water quality impacts of forest roads, and to seek input from interested stakeholders. Comments on the Notice of Intent include the following:

  • The TCEQ water programs support EPA’s proposal to revise the stormwater regulations such that a permit for stormwater discharge is not required for logging roads.
  • Water quality information for Texas does not identify forest roads as an activity impacting water quality.
  • Information is provided on the programs in Texas which may be used to address water quality impacts from logging activities and forest roads.
  • EPA’s statement that stormwater discharges from forest roads should be evaluated under section 402 of the Clean Water Act is questioned and it is recommended that forest roads are better addressed as nonpoint sources.
  • Information in the Notice of Intent indicates that water quality impacts from logging activities and forest roads may be very small and localized. The EPA is encouraged to fully evaluate available data prior to taking any action regarding forest roads and water quality.
  • EPA is strongly encouraged to take an approach which is non-regulatory and provides the greatest flexibility.

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DATE SUBMITTED: 05/17/12

SHORT TITLE: Draft National Water Program 2012 Strategy: Response to Climate Change

SUBMITTED TO: EPA

OFFICE PREPARING: Office of Water

STAFF CONTACT: Kelly Holligan

SUMMARY OF COMMENTS:

TCEQ strongly recommends that EPA not move forward and, if they do, the strategic actions contained in the Strategy are to be voluntary actions. Specifically, comments are provided:

  • TCEQ’s position regarding the current uncertainty of predictions for climate change.
  • TCEQ’s concern that the specific tasks identified in the Strategy will be required under grants awarded to the agency.
  • Concerns with incorporating climate change evaluations into certain activities such as National Pollutant Discharge Elimination System permitting, the Total Maximum Daily Load Program and Water Quality Standards.

The document contains a disclaimer which states “…it cannot change or impose legally binding requirements on EPA, States, the public, or the regulated community. Further, any expressed intention, suggestion or recommendation does not impose any legally binding requirement on EPA, States, tribes, the public, or the regulated community.” Comments submitted express the TCEQ’s position that this disclaimer should be strengthened and that the activities in the Strategy should not become a requirement in the State’s water programs.

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DATE SUBMITTED: 05/14/12

SHORT TITLE: Draft NPDES General Permit for Discharges From the Oil and Gas Extraction Point Source Category to Coastal Waters in Texas

SUBMITTED TO: EPA

OFFICE PREPARING: Office of Water

STAFF CONTACT: Kimberly Wilson

SUMMARY OF COMMENTS:

While the Railroad Commission of Texas has jurisdiction over wastes generated at facilities whose business activity is associated with the exploration, development and production of oil and gas; Texas Commission on Environmental Quality (TCEQ) is responsible for establishing Texas surface water quality standards criteria for the entire state, including the bays and estuaries along the Texas gulf coast. TCEQ completes restoration plans such as Total Maximum Daily Loads (TMDLs) and their associated Implementation Plans. The comments focus on the implementation of the Texas surface water quality standards and TMDLs within the proposed general permit.

  • TCEQ disagrees with expanding the discharge prohibition to all impaired waterbodies without sufficient information or data to support the prohibition.
  • TCEQ strongly recommends EPA reconsider the proposal to prohibit discharges of produced water from stripper wells in segments where dissolved oxygen impairments exist. As documented by Region 6 in the fact sheet, there is little data available on these discharges. TCEQ recommends that Region 6 increase data collection efforts prior to establishing requirements.
  • EPA has established effluent imitations for both enteorcocci and fecal coliform bacteria for discharges to waterbodies with bacteria (oyster) impairments. Fecal coliform limits are protective of both recreational and oyster water uses and therefore should be the only limit applied for discharges to oyster waters.

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DATE SUBMITTED:

SHORT TITLE: Fiscal Year 2013 Draft National Water Program Guidance Adobe Acrobat PDF Document

SUBMITTED TO: U.S. Environmental Protection Agency

OFFICE PREPARING: Office of Water

STAFF CONTACT: L’Oreal W. Stepney, P.E.

SUMMARY OF COMMENTS:

  • The TCEQ does not concur with EPAs position on the underlying science for climate change or reference to policies or strategies in this guidance document.
  • EPA identifies FY 2013 National Water Program Priorities within this guidance document. Budget constraints are expected over the next year at both the national and state levels and states will have limited resources to address the significant goals which EPA has outlined in the 2013 guidance.

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DATE SUBMITTED: 01/17/12

SHORT TITLE: Proposed National Pollutant Discharge Elimination System (NPDES) Concentrated Animal Feeding Operation (CAFO) Reporting Rule

SUBMITTED TO: EPA

OFFICE PREPARING: Office of Water

STAFF CONTACT: Charles Maguire

SUMMARY OF COMMENTS:

TCEQ strongly requests that EPA not move forward with finalizing the proposed rule. The proposed rule is unnecessary. The text of the proposed rule makes clear that it is a calculated effort to circumvent the Fifth Circuit’s ruling in National Pork Producers Council (NPPC) v. EPA, 635 F.3d 738 (5thCir. 2011). As somewhat acknowledged in the proposed rule, this proposal arises out of an EPA Settlement Agreement with environmental groups reached after the case was assigned to the Fifth Circuit. There is a great danger in rule programs instituted through settlement agreements, particularly where in this case, it subverts the meaning and intent of the Fifth Circuit’s ruling in NPPC. EPA should be bound by the ruling. Settlements have become a pathway for jurisdictional overreach and avoidance of administrative process requirements. Accordingly, if EPA must proceed with this rulemaking, it should be limited to CAFOs that discharge in order for the 5th Circuit’s decision in NPPC to be relevant. TCEQ therefore comments that CAFOs that do not discharge should not be subject to this rulemaking.

The Fifth Circuit ruled that “there must be an actual discharge into navigable waters to trigger the CWA’s requirements and the EPA’s authority”. This is not the first time EPA has attempted to go beyond the authority given by the CWA. In 2003, EPA issued rules requiring CAFOs with a potential to discharge to apply for permits. This was struck down by the Second Circuit in the Waterkeeper Alliance v. EPA, 399 F.3d 486 (2nd Cir. 2005). In 2008, EPA issued rules requiring CAFOs that propose to discharge to apply for permits. This requirement was struck down by the recent Fifth Circuit Decision in the NPPC case. Then comes the “Settlement Agreement” and these proposed rules, which EPA states in a somewhat but telling manner that even where a facility is not discharging, EPA seeks a basis for understanding how many facilities within sectors are able to completely prevent a discharge. Since the Fifth Circuit opined that there is no jurisdiction to permit or require all facilities to file for a permit it appears that EPA is attempting to introduce another term “completely prevent discharges”. This is not a CWA term of art. This simply amounts to a deliberate rephrasing of the scenario already ruled upon by the Fifth Circuit. EPA will decide which facilities discharge or cannot completely prevent discharges. It presumes jurisdiction that the court says they don’t have.

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DATE SUBMITTED: 10/14/11

SHORT TITLE: Endangered and Threatened Wildlife and Plants; Designation of Revised Critical Habitat for Southwestern Willow Flycatcher

SUBMITTED TO: US Fish and Wildlife Service

OFFICE PREPARING: Office of Water

STAFF CONTACT: Herman Settemeyer

SUMMARY OF COMMENTS:

The TCEQ requests that the operating pool of Elephant Butte Reservoir be excluded from the revised flycatcher critical habitat. Elephant Butte Dam and Reservoir are owned and operated by the U.S. Bureau of Reclamation. The benefits of the dam and reservoir are the provision of water for power and the provision of water to irrigate 178,000 acres of land. Water from the reservoir also is a critical component of the water supply for the City of El Paso, Texas. Should USFWS include flycatcher habitat that currently occurs in the operating pool of Elephant Butte Reservoir, this would reduce the allowable storage for the reservoir and therefore decrease the yield of the reservoir. Loss of a portion of the yield of the reservoir for these purposes will have a large economic impact on the far west Texas economy. In contrast, the benefits to the flycatcher are marginal. Under the proposed revisions, critical habitat would expand by 1,350 total stream miles. The area in the operating pool of Elephant Butte Reservoir is a very small percentage of this proposed increase in habitat.

Making any changes to the operating pool in Elephant Butte Reservoir could reduce the ability of the United States to meet its treaty obligations for water deliveries under the 1906 Convention with Mexico on the equitable distribution of the water of the Rio Grande.

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DATE SUBMITTED: 07/25/11

SHORT TITLE: Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To List the Spot-Tailed Earless Lizard as Endangered or Threatened

SUBMITTED TO: US Fish and Wildlife Service

OFFICE PREPARING: Office of Water

STAFF CONTACT: Todd Chenoweth

SUMMARY OF COMMENTS:

The TCEQ is concerned because this species has a relatively large range that suggests it might not be appropriate for listing, and this large range could also cause significant regulatory impacts in Texas. TCEQ also suggests that the available information on (1) the current distribution of this species, and (2) the extent that it might be declining, are insufficient to justify further consideration for listing.

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DATE SUBMITTED: 07/19/11

SHORT TITLE: National Pollutant Discharge Elimination System-Cooling Water Intake Structures at Existing Facilities and Phase I Facilities

SUBMITTED TO: EPA

OFFICE PREPARING: Office of Water

STAFF CONTACT: Chris Linendoll

SUMMARY OF COMMENTS:

The Texas Commission on Environmental Quality (TCEQ) is of the opinion that the proposed rules do not appropriately address the man-made reservoirs specifically designed and constructed as cooling water impoundments in Texas. The aquatic species in these man-made reservoirs are not significantly impacted by the CWIS and should not be subject to the same measures as natural lakes and reservoirs.

The TCEQ is of the opinion that a significant portion of the proposed rule establishes that the permitting authority determine Best Technology Available (BTA) on a best professional judgment (BPJ) basis. It has been TCEQ’s experience that EPA Region 6 consistently questions TCEQ’s BPJ determinations and objects to draft Texas Pollutant Discharge Elimination System (TPDES) permits without clear citations to regulations. TCEQ suggests either eliminating the proposed conditions in the rule which establish BTA based on the permitting authority’s BPJ or establishing a policy that accepts the permitting authority’s (TCEQ’s) BTA determination based on BPJ without EPA regional staff’s objections to draft permits.

The proposed rule lowers the flow threshold from 50 MGD to 2 MGD for specific impingement and entrainment BTA standards and will result in an increase in the number of facilities that are subject to the 316(b) regulations that would significantly increase resources expended by TCEQ.

The proposed rule establishes species of concern impingement mortality percentage limitations without taking into account natural phenomenon that can result in significant mortality events causing a violation of the limitations. TCEQ suggests exempting regulated entities from recording impingement mortality during these events and replacing the species of concern limitation with a total impingement mortality standard. Further, the TCEQ suggests that the rules specify a total impingement mortality standard, rather than individual species limitations.

The TCEQ is of the opinion that the requirements for peer review of the various studies outlined in the rule prior to submittal, along with the requirement for regulated entities to consult with the permitting authority on the selection of a peer reviewer would establish a significant burden on TCEQ resources in implementation of these rules. The TCEQ strongly suggests eliminating peer review.

The proposed rules establish specific deadlines for submittal of information based on facility specific characteristics and thresholds which are tied to the rule effective date. TCEQ strongly suggests removing the deadlines established in § 125.95 and require submittal of information due at the time of permit application.

The TCEQ objects to the proposed BTA standard in the rules that require the permitting authority to establish BTA on a case by case basis for entrainment mortality. TCEQ suggests that there should be no BTA for entrainment mortality and that the permitting authority may establish additional conditions to control entrainment mortality on a case by case basis.

The preamble references independent suppliers that withdraw water from waters of the United States and provide cooling water to facilities by contract or other arrangement. TCEQ is concerned that regulated entities may not have the authority or ability to access the intake structure to perform the many requirements established in the proposed rules. Therefore independent suppliers may be required to obtain a TPDES permit or become a co-permittee. TCEQ is concerned with increasing the permitting universe and suggests the rules exempt CWISs that do not discharge to waters of the United States or are owned and operated by an independent supplier.

The TCEQ is of the opinion that the volume of data, studies, reports, and other requirements proposed in the rules are excessive. EPA is requiring the permitting authority to review and in most instances approve the submittals. TCEQ strongly suggests eliminating the majority of these required submittals and simplifying the rule to establish, in a more streamlined fashion, the conditions to justify BTA.

TCEQ finds the proposed rule confusing and extremely burdensome to both the regulated community and the permitting authorities. The rule establishes two means of demonstrating Best Technology Available (BTA) through intake velocity reduction or modification of existing traveling screens with fish return systems. TCEQ believes that entities meeting either should satisfy BTA without the additional impingement monitoring, effluent limitations, and additional study and report requirements.

The proposed rule requires submittal of an excessive number of reports and studies, many that are outside the scope of water quality, which places a significant burden on permitting staff while continuing to have the necessary resources to run the TPDES program. TCEQ believes EPA has significantly underestimated the administrative costs and impacts to permitting authorities.

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DATE SUBMITTED: 07/13/11

SHORT TITLE: EPA and Army Corps of Engineers Guidance Regarding Identification of Waters Protected by the Clean Water Act

SUBMITTED TO: EPA

OFFICE PREPARING: Office of Water

STAFF CONTACT: Charles Maguire

SUMMARY OF COMMENTS:

The TCEQ believes that the draft guidance will create more regulatory uncertainty because of its reliance on the “significant nexus” test to expand the definition of “waters of the United States” to include non-jurisdictional waters under the CWA.

The TCEQ asserts that for non-navigable tributaries that meet jurisdictional tests for continuous flow and connectivity, federal jurisdiction would be applied only if the non-navigable tributary has an identified water quality impairment that has caused the traditionally navigable water body to be impaired. If the non-navigable tributary has no “relatively permanent…continuous flow” and a natural and not manmade (i.e. pumped) “continuous surface connection,” there is no federal jurisdiction.

EPA and Corps should not move forward with the guidance document and they should withdraw the 2008 and draft 2011 guidance. The proposed guidance does not improve upon the uncertainty resulting from the U.S. Supreme Court decisions, and it is inconsistent with the Supreme Court’s opinions. If EPA wants to expand the jurisdiction under the Clean Water Act, EPA should seek to amend the act in Congress.

A redraft of the guidance should include a rewrite Section 4, p. 11 of the guidance to (1) consider only relatively permanent tributaries, and (2) provide objective steps to determine connectivity, and omit all implications that tributaries should more or less be presumed to be jurisdictional until shown otherwise.

EPA and Corps should rely more on Scalia's test of connectivity rather than significant nexus – particularly a significant nexus that might be established by satisfying any one of three criteria (such as local movements of ducks).

If the EPA and Corps continue with the guidance, they should rewrite the guidance to:

  1. consider only relatively permanent, standing or continuously flowing bodies of water as tributaries to waters of the United States covered by the Act,
  2. consider wetlands with a continuous surface connection to water bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands, as wetlands adjacent to waters of the United States and therefore covered by the Act, and
  3. omit all implications that tributaries and wetlands are presumed to be jurisdictional until shown otherwise.

In the context of all opinions in the Rapanos review, EPA and Corps should simply include isolated “Other Waters” in the category of waters that are not jurisdictional under the Clean Water Act.

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DATE SUBMITTED: 07/11/11

SHORT TITLE: Draft National Pollutant Discharge Elimination System (NPDES) General Permit for Stormwater Discharges From Construction Activities

SUBMITTED TO: EPA

OFFICE PREPARING: Office of Water

STAFF CONTACT: Jaya Zyman-Ponebshek

SUMMARY OF COMMENTS:

EPA’s proposed Construction General Permit (CGP) contains many prescriptive requirements that go well beyond the requirements of federal rules. TCEQ comments on preserving the flexibility allowed by the federal storm water rules as well as the need for flexibility and practicability in specific permit requirements. TCEQ additionally asserts that as the NPDES permitting authority in Texas it may opt to provide the flexibility consistent with federal rules in its own Construction General Permit.

Within the general comments section TCEQ addresses the placeholder for numeric turbidity limits included in EPA’s proposed CGP. By proposing the inclusion of a turbidity limit before EPA has a finalized limit, EPA is denying the public, states, and regulated community of the opportunity to comment on the inclusion of that limit in EPA’s CGP. EPA did previously adopt a turbidity limit which was heavily commented upon during the public comment period. After several lawsuits, the adopted limit was stayed and EPA must now re-adopt a turbidity limit. The inclusion of a placeholder for a numeric limit is not appropriate, and particularly so in this case given the history with EPA’s development of turbidity limits. TCEQ recommends that EPA abandon any attempts to include a turbidity limit in their CGP until a limit has been publically noticed and adopted as a federal rule.

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DATE SUBMITTED: 05/16/11

SHORT TITLE: EPA memorandum entitled "Revisions to the November 22, 2002 Memorandum Establishing Total Maximum Daily Load (TMDL) Wasteload Allocations (WLAs) for Storm Water Sources and NPDES Permit Requirements Based on Those WLAs"

SUBMITTED TO: EPA

OFFICE PREPARING: Office of Water

STAFF CONTACT: Katherine Nelson

SUMMARY OF COMMENTS:

TCEQ recommends rescinding the memorandum. If EPA chooses to proceed, comments are being provided specifically on:

  • TCEQ’s concern that the memorandum will come to have the force of regulation;
  • Providing numeric water quality based effluent limitations in NPDES permits for storm water discharges;
  • Disaggregating storm water sources in a WLA;
  • Using surrogates for pollutant parameters when establishing targets for TMDL loading capacity; and,
  • Designating additional storm water sources to regulate and treating load allocations as waste load allocations for newly regulated storm water sources

The TCEQ water quality and water permitting programs continue to support the use of an approach using BMPs to protect water quality rather than establishing numeric limits. Experience in Texas and knowledge of the site specific circumstances has lead the programs to conclude that establishing numeric limitations is not feasible and that BMPs provide protection of water quality while affording flexibility. It is also the experience of the programs that due to the complexity of the storm water sources it is infeasible to segregate storm water sources in a WLA or designate additional storm water sources. Agency resources are better used addressing water quality issues through reliable methods.

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DATE SUBMITTED: 05/02/11

SHORT TITLE: Revisions to the Unregulated Contaminant Monitoring Regulation for Public Water Systems

SUBMITTED TO: EPA

OFFICE PREPARING: Office of Water

STAFF CONTACT: Alicia Diehl

SUMMARY OF COMMENTS:

Overall, the TCEQ supports the use of sound science in rule development, and as such supports the general Contaminant Candidate List (CCL) and Unregulated Contaminant Monitoring Regulations (UCMR) process. However, the cost to systems comes at a time when budgets are extremely tight, and for that reason, the TCEQ recommends that the EPA limit the number of locations at which samples must be collected by removing purchased-water entry points from the study. The TCEQ recommends limiting chlorate monitoring to entry points, not distribution systems. If hexavalent chromium is to be studied, the TCEQ recommends that total chromium also be measured; however, the TCEQ recommends that hexavalent chromium be considered under UCMR4, through the next CCL process.

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DATE SUBMITTED: 12/08/10

SHORT TITLE: Guidelines for Establishing Test Procedures for the Analysis of Pollutants under the Clean Water Act

SUBMITTED TO: EPA

OFFICE PREPARING: Office of Water

STAFF CONTACT: Laurie Curra

SUMMARY OF COMMENTS:

In general, the TCEQ supports corrections to methods, the approval of the most recent version of methods published by Standard Methods, updates to technology, and a minimum set of quality control requirements. TCEQ generally supports an increased flexibility in the selection of methods. The four topics listed below convey our perspectives and concerns.

  1. Effective Date: Implementing the revisions to the analysis and sampling procedures thirty days after publication does not provide laboratories with sufficient time to modify standard operating procedures, run performance test samples, and conduct demonstrations of capability to maintain compliance with National Environmental Laboratory Accreditation Conference (NELAC) accreditations. Providing a year for implementation is consistent with the time provided under NELAC for updating procedures.
  2. Minimum Quality Control Requirements: The TCEQ supports the standardization of terminology. The use of multiple terms to describe method detection limit continues to cause confusion among the data users making decisions regarding health and environmental impacts.
  3. Additional Methods: The TCEQ supports the inclusion of additional methods, provided the methods yield comparable results. The TCEQ suggests that the ability of additional methods to yield comparable results be demonstrated through a mechanism similar to the side-by-side testing conducted for the hexane extracted oil and grease methods. TCEQ encourages this type of analysis for all parameters before they are added to the list of approved parameters.
  4. Sample Collection, Preservation and Holding Time: The TCEQ supports the revision of the footnote related to the holding time for E. coli.

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DATE SUBMITTED: 07/19/10

SHORT TITLE: Draft NPDES Pesticide General Permit for Point Source Discharges from the Application of Pesticides

SUBMITTED TO: EPA

OFFICE PREPARING: Office of Water

STAFF CONTACT: Charles Maguire

SUMMARY OF COMMENTS:

The TCEQ comments that requiring all applicators and decision makers to apply for coverage, coupled with the low treatment area thresholds that trigger NOI submittal, will result in an overwhelming number of applicants that are required to submit NOIs. The volume of NOIs would be a significant burden on state resources, especially since no funding has been distributed to states for this new program. Focusing on larger applications of pesticides will help focus resources for the greatest environmental benefit.

The TCEQ is recommending minimizing the number of entities required to submit NOIs by increasing the area size annual thresholds from 640 acres, 20 acres and 20 linear miles to 3,200 acres, 100 acres and 200 linear miles. Since typically multiple treatments are needed, changing the thresholds would allow five or more treatments (five for each side of a stream for linear miles), to be applied before triggering an NOI submit requirement. Also, the number of NOIs could be reduced by revising the definition of “operator” to exclude either applicators or decision makers, thereby requiring NOIs be submitted by one or the other, but not both.

An additional concern is that EPA is proposing issuance of its pesticide general permit in December 2010. Delegated states will not likely be able to evaluate EPA’s issued permit and develop their own by April 2011. Therefore, TCEQ recommends that EPA petition the court for an extension of the deadline by one year to allow states to develop and adopt their permits.

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DATE SUBMITTED: 02/26/10

SHORT TITLE: Stakeholder Input; Stormwater Management Including Discharges From New Development and Redevelopment

SUBMITTED TO: EPA

OFFICE PREPARING: Office of Water

STAFF CONTACT: Jaya Zyman-Ponebshek

SUMMARY OF COMMENTS:

The TCEQ regulates storm water runoff through the Texas Pollutant Discharge Elimination System (TPDES) program. In general, post construction storm water is regulated as a component of the municipal separate storm sewer system (MS4) permitting program. TPDES permits for small, medium, and large MS4s require a comprehensive storm water management program (SWMP), part of which must address discharges into the MS4 from new development and redevelopment sites. Consistent with the federal rules regulating MS4s, the TPDES MS4 program requires permits for all medium and large MS4s in Texas and for portions of small MS4s that are located within an urbanized area.

The TCEQ has the ability to require permit coverage for any small MS4 not automatically regulated if discharges from the small MS4 cause, or have the potential to cause, an adverse impact to surface water in the state. In addition, TCEQ has the flexibility within its existing TPDES permits to require additional controls as may be needed to control discharges from regulated MS4s.

The TCEQ believes that additional regulations are not needed at this time to address discharges not otherwise regulated under the existing National Pollutant Discharge Elimination System (NPDES) program. The TCEQ also believes that additional regulations would place an unnecessary burden on permitting authorities and respectfully request that the U.S. EPA not expand the existing regulations to require additional permitting for post construction site runoff beyond the existing requirements.

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DATE SUBMITTED: 12/19/08

SHORT TITLE: Proposed Federal Requirements Under the Underground Injection Control (UIC) Program for Carbon Dioxide (CO2) Geologic Sequestration (GS) Wells

SUBMITTED TO: EPA

OFFICE PREPARING: Office of Permitting and Registration

STAFF CONTACT: Ben Knape

SUMMARY OF COMMENTS:

Appropriate Level of Regulation
The tailoring of the basic regulations appropriate for injection of nonhazardous industrial waste to the unique characteristics of CO2 injection has resulted in proposed CO2-GS requirements that in many respects exceed the stringency of those for injection of hazardous waste. The 30-year history of CO2 injection for enhanced oil recovery in the Permian Basin of West Texas without negative impacts on USDWs suggests that the existing rules for enhanced recovery operations (using Class II injection wells) contain the necessary performance standards for drinking water protection, and accordingly should provide the starting point for CO2-GS requirements upon which any specially tailored requirements should be added. Recognizing mandates under the Safe Drinking Water Act (SDWA) for protection of drinking water, the proposed rules, in their inappropriate stringency, may inhibit implementation of carbon capture and storage technology.

Appropriate Financial Assurance over Long Post-Injection Timeframes
EPA is proposing that the rule only specify a general duty to obtain financial assurance (FA) acceptable to the Director (i.e., EPA regional administrator or state program director) to guarantee performance of post-injection site care, monitoring, corrective action, and closure, and will provide guidance to be developed at a later date on recommended mechanisms. Proposed TCEQ comments include recommendations for greater specificity in FA requirements consistent with the greater cost uncertainties and longer timeframes addressed by EPAs proposed FA requirements for CO2-GS projects versus those required for other classes of underground injection.

Flexibility and Streamlining in Class VI Program Primacy Considerations
According to current Texas law, the proposed new class of injection wells (Class VI) for CO2-GS will be in TCEQs jurisdiction. However, such jurisdictional lines are subject to change by state legislation. Flexibility and a streamlined approval process will be needed in federal authorization of the new Class VI well program at whichever agency is designated by the state legislature, free from constraints that EPA has traditionally imposed on state agencies program primacy applications.

Resource Needs for Regulation of the Proposed New Class of Wells
The proposed requirements for CO2-GS will need new funding through congressional or state legislative appropriations. The resource needs are most acute with respect to numbers of trained staff, tools for the important iterative process of predictive computational modeling of CO2 fate and transport, and guidance in evaluation and implementation of the various plans specified in the proposed rules which are either unique to CO2-GS projects or necessitate unique considerations under such rules.

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DATE SUBMITTED: 08/18/08

SHORT TITLE: Clean Water Act Section 303(d): Availability of List Decisions

SUBMITTED TO: EPA

OFFICE PREPARING: Office of Compliance and Enforcement

STAFF CONTACT: Laurie Curra

SUMMARY OF COMMENTS:

TCEQ finds that by identifying the entire bay as impaired the EPA is not communicating to the public that elevated levels of bacteria occur only at the urban beach sites and that by assigning the impairment to Category 5a (TMDL will be scheduled), the EPA is communicating that a TMDL is appropriate and imminent, rather than that additional information is required to determine the best way to address the listing (Category 5c). After considering public comment, should EPA take this federal action, TCEQ recommends that EPA geographically define the impairment as restricted to the urban beaches to minimize undue burden for the state and stakeholders. TCEQ would assign the impairment to Category 5c to communicate that additional information is needed to determine the most cost effective way to address the impairment. Until the Commission has considered the advice of a stakeholder workgroup and determined the appropriate use of Beach Watch program data and information, TCEQ urges that the EPA not to take this action.

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DATE SUBMITTED: 04/08/08

SHORT TITLE: Revised NPDES Permit Regulations for Concentrated Animal Feeding Operations

SUBMITTED TO: EPA

OFFICE PREPARING: Office of Permitting, Remediation, and Registration

STAFF CONTACT: Charles Maguire

SUMMARY OF COMMENTS:

The general permit process, authorized by the Texas Legislature, is an expedited approach to issue permits to protect state water resources to dischargers of similar waste and type of operations using limited state resources. TCEQ adopted the CAFO general permit in 2004 for Texas Pollutant Discharge Elimination System (TPDES) CAFOs to be consistent with the 2003 changes in federal CAFO regulations. Subsequent to the adoption of the 2004 CAFO General Permit, TCEQ issued over 750 authorizations under the general permit to the majority of the CAFOs in the state.

In its Supplemental Notice of Proposed Rulemaking (SNPRM), EPA proposes three different approaches for Nutrient Management Plan (NMPs) but did not provide rule language that would be adopted to implement these approaches. Without the ability to review specific rule language, the TCEQ cannot adequately consider how CAFO permitting in Texas would ultimately be affected by the proposal. In addition, it is unclear from the proposal whether delegated states would have the authority to choose which approach is the most appropriate method for their regulatory program.

In addition, in the SNPRM, EPA asserts that the permitting authorities have known for several years generally what will be required under the final rule . . . . Therefore, EPA is proposing to give the states only six to eight months to incorporate the changes into their regulatory programs. This SNPRM is the first time EPA has proposed three different approaches to NMPs and has provided no rule language that may be adopted to implement the approach EPA finally elects to adopt. Six to eight months is not sufficient time to address the magnitude of the changes EPA is now proposing. The TCEQ will need to initiate amendments to the Subchapter B CAFO regulations to incorporate changes adopted by the EPA in this action. EPA should allow states a minimum of one year to adopt changes and two years if a statutory change is needed as is currently allowed under the Memorandum of Agreement between EPA and the TCEQ. We urge EPA to reconsider its deadlines in light of the changes it is now proposing.

The permitting process changes described in the proposed revisions to the CAFO rule would require CAFO applicants, under both general and individual permits, to submit an NMP for agency review and approval with an opportunity for public comment and public participation on the terms of the NMP. The proposed revisions, if adopted, would require a modification to the current TCEQ general permit process and more TCEQ staff resources to implement the proposed review, notice, comment, and public participation process for over 750 CAFOs in Texas.

TCEQ needs flexibility to develop a process for determining when subsequent revisions of NMPs will require review, and of those reviewed, what will require public notice. TCEQ encourages EPA to consider providing latitude to delegated states to work within the processes they have already established. Depending on the federal CAFO amendments adopted, the NMPs for all Texas CAFOs may need to be revised annually when the soil test is received and waste/wastewater application rates or cropping patterns change. Due to limited state resources it would be nearly impossible to review these annually. TCEQs primary concern is that repeated and frequent public notice for all NMPs will unnecessarily tax state resources that could be focused on more pressing environmental concerns.

TCEQ recommends allowing the terms of the NMP to be publicly noticed when the TCEQ proposes revisions to the CAFO general permit. Each individual CAFO should provide site specific information regarding its facility with the Notice of Intent application for coverage under the general permit to comply with the approach specified in the general permit. Substantial changes to a CAFOs NMP would include those changes related to substantial increases in environmental risk instead of simple inputs for rate calculations. For example, the process could focus the public notice requirements on new and significant expansions and on CAFO operations where soil test phosphorus levels exceed the 200 parts per million (ppm) threshold. TCEQ would recommend that EPA consider this process because it focuses on the CAFOs where nutrient management changes need to be made. The required annual reporting provides the agency with a way to monitor the success of the NMPs statewide because of the soil test analysis being reported. If the CAFO is failing to hold soil test phosphorus levels below the 200 ppm threshold, then changes in nutrient management would be required based on the TCEQ approved NUP, and the public could be provided with notice and the opportunity for comment. For other existing CAFOs that have NMPs that are producing satisfactory results relative to environmental indicators, they would be monitored through the annual reporting, which is part of the public record. There would be no need to use agency resources to review and then provide notice for public review and comment on the less substantial changes in those NMPs. TCEQ recommends this option be allowed by the final rule or sufficient flexibility provided to develop a workable approach which allows states the flexibility in defining which substantial changes require notice.

TCEQ accepts the National Resource Conservation Service (NRCS) 590 practice standard to meet CAFO rule requirements. TCEQ needs the latitude to continue to use the NMP content guidelines it has previously developed, specifically the acceptance of the NRCS 590 practice standard as a complete NMP. The Effluent Limitation Guidelines items EPA includes in their NMP template are already included in the Texas CAFO's pollution prevention plan and should not need to be duplicated in the NMP.

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DATE SUBMITTED: 01/16/08

SHORT TITLE: EPA and Army Corps of Engineers Guidance Regarding Clean Water Act Jurisdiction After Rapanos

SUBMITTED TO:EPA and Army Corps of Engineers

OFFICE PREPARING: Chief Engineer's Office

STAFF CONTACT: Tom Weber

SUMMARY OF COMMENTS:

TCEQ's comments describe Texas Surface Water Quality Standards, recognizing the importance of Texas wetlands in protecting water quality and the many additional functions of wetlands. Much of Texas' streams and associated wetlands are non-navigable and, consequently, according to the draft guidance, the jurisdictional status of wetlands associated with these streams will be determined on a fact-specific (i.e., case-by-case) basis. Finally, wetland functions should be carefully considered in establishing a significant nexus in fact-specific jurisdictional determinations for wetlands with hydrologic connections to non-navigable tributaries to ensure protection of the chemical, physical, and biological integrity of downstream navigable waters.

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DATE SUBMITTED: 08/10/07

SHORT TITLE: City of Austin - Proposed Rule Regarding Void and Water Flow Mitigation

SUBMITTED TO: City of Austin

OFFICE PREPARING: Office of Compliance and Enforcement

STAFF CONTACT: Tracy Miller

SUMMARY OF COMMENTS:

The Edwards Aquifer Protection Program (EAPP) is concerned that some technical requirements proposed by the City of Austin (COA) may not provide the minimum standards necessary to protect the Edwards Aquifer. The EAPP has the following three concerns: the use of controlled low strength material encasement rather than concrete encasement of sewer lines; the plugging methods for sensitive features intercepted in the trench floor; and, the thickness of wall sealants. Without additional engineering data to support the COA's proposals for these specific methods, the EAPP will not be able to approve plans submitted with these methods.

The EAPP also has concerns with the COA's proposed Geologist Void Description and Documentation Log Sheet. The COA's proposal directs the geologist to conduct a biological survey for karst invertebrates if life signs are present. The TCEQ does not require a biological survey and the COA's proposed form does not contain all of the administrative information necessary for the Edwards Aquifer tracking database; therefore, the EAPP will not be able to accept the COA's form in lieu of current EAPP application forms.

The EAPP recognizes that the COA's rule proposal provides some feasible options for the EAPP which provide more definitive requirements for protection of sensitive features encountered during construction activities; however, providing written support of their proposal at this time would circumvent the TCEQ process for amending rules. The TCEQ intends to consider portions of the COA's proposed rule language when developing an Edwards Aquifer rule amendment in the future.

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DATE SUBMITTED: 08/09/07

SHORT TITLE: Texas Water Development Board Economically Distressed Areas Program - SB3, Sec. 6.01

SUBMITTED TO: Texas Water Development Board (TWDB)

OFFICE PREPARING: Executive Office / Intergovernmental Relations Division

STAFF CONTACT: Steve Niemeyer

SUMMARY OF COMMENTS:

The Texas Water Development Board's (TWDB) proposed rules do not specify when the request for consultation might be forwarded to TCEQ, causing the agency review to be hurried and incomplete. As written, TWDB could wait until late in the 30 day period to consult with TCEQ. Six TCEQ divisions (Environmental Law, Water Quality, Water Supply, Border Affairs, Field Operations, and Enforcement), may potentially be involved in evaluating data to determine if there should be an objection to the request to continue temporary funding. TWDB should specify in the proposed rule that they will provide the request as quickly as possible, ensuring TCEQ staff adequate time to review the data, provide an answer to TWDB, and allow TWDB time to respond to the political subdivision within the 30 day period.

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DATE SUBMITTED: 03/05/07

SHORT TITLE: NPDES Permit Fee Incentive for Clean Water Act Section 106 Grants

SUBMITTED TO: U.S. Environmental Protection Agency (EPA)

OFFICE PREPARING: Office of Permitting, Remediation, and Registration

STAFF CONTACT: Kimberly Wilson

SUMMARY OF COMMENTS:

TCEQ opposes the proposed rule due to the restriction in state discretion in allocating CWA Section 106 grants for state water quality programs and objects to proposed rule's interference in how state legislatures conduct business. Additional incentives for the effective management of state water quality programs, as proposed in the rulemaking, are unnecessary, as performance is already monitored by EPA’s Program Activity Measures.

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DATE SUBMITTED: 12/12/06

SHORT TITLE: Nominations of Drinking Water Contaminants for the Contaminant Candidate List (CCL)

SUBMITTED TO: U.S. Environmental Protection Agency (EPA)

OFFICE PREPARING: Office of Permitting, Remediation, and Registration

STAFF CONTACT: Alicia Diehl

SUMMARY OF COMMENTS:

TCEQ recommends that two potential contaminants be included on the CCL - viruses in ground water and nitrite/nitrate in chloraminated water.

Viruses have been detected in ground water in several studies, but no nationwide study of wells has been completed. Viruses can cause a wide range of diseases.

Nitrate and nitrite can be formed in systems that use chloramines for disinfection. Nitrate and nitrate may cause methemoglobinemia in infants. Although a regulatory standard exists for measurements taken at an entry point to a distribution system, no recent nationwide study on occurrence has evaluated the extent of nitrate and nitrite occurrence within distribution systems.

In addition, TCEQ encourages EPA to continue to seek new ways to reduce the cost of this research monitoring on systems. Specifically, in developing sites for CCL contaminant monitoring under any unregulated contaminant monitoring, we recommend that EPA allow representative wells or sources to be sampled, rather than every source at a selected system.

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DATE SUBMITTED: 12/08/06

SHORT TITLE: EPA Draft Listing Waters Impaired by Atmospheric Mercury

SUBMITTED TO: U.S. Environmental Protection Agency (EPA)

OFFICE PREPARING: Chief Engineer's Office

STAFF CONTACT: Tom Weber

SUMMARY OF COMMENTS:

The TCEQ is supportive of the approach outlined in the draft Guidance document, which appears to be a compromise to listing the water body in 4b.

This approach acknowledges the complexity in developing TMDLs for waters impaired primarily by atmospheric mercury.

For waters included in the 5m subcategory, EPA recognizes that the schedule of TMDLs in 13 years is not appropriate, and that States would defer mercury TMDL development beyond this recommended time frame. The TCEQ is supportive of this approach which will allow states to show progress in restoring waters, while also recognizing that it will take much longer to address mercury-impaired waters.

The document also provides guidance on the “Recommended Elements of a Comprehensive State Mercury Reduction Program” (Attachment A), that a state would need in place to support the 5m listing. TCEQ should comment that atmospheric source reductions for power generating facilities beyond CAMR may not be necessary for a 5m listing. Additionally, the requirements for 5m should be limited to source reduction strategies that are linked to impairments.

EPA should undertake air monitoring to evaluate the results of CAMR nationally, not for a given state. Also, EPA should make specific funds available to state monitoring programs for support of the strategy’s implementation.

In one of the footnotes, it is stated that "This policy does not replace existing established laws or regulations governing listing of impaired waters or development of TMDLs under Section 303(d)." The TCEQ comments that the policy could potentially open states/federal government up to litigation over the fact that mercury impairments would languish in category 5.

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DATE SUBMITTED: 11/07/06

SHORT TITLE: EPA Draft Underground Injection Control Program Guidance

SUBMITTED TO: Ground Water Protection Council

OFFICE PREPARING: Office of Permitting, Remediation, and Registration

STAFF CONTACT: Ben Knape

SUMMARY OF COMMENTS:

Except for its advocacy of a permit process, EPA's draft guidance is, in effect, an endorsement of TCEQ's lead taken in requiring more detailed and protective technical reviews and approval conditions for CO2 injection wells. Going a significant step beyond the authorization-by-rule process provided in federal regulation, the Texas UIC rules require written approval of submitted inventory information before construction and operation of any rule-authorized well. Also, the Texas rules require both permitted and rule-authorized injection wells to comply with any technical specifications necessary to safeguard against pollution of underground sources of drinking water (USDW). These two rule sections enable TCEQ to require a Class V experimental technology well to be subject to a level of technical review and approval conditions which will address the technical and public interest considerations identified in the guidance.

From TCEQ rules, therefore, the responsibility exists to impose and enforce any necessary protective requirements on a Class V rule-authorized well through specified conditions provided with the required approval letter. Any failure to comply with such conditions would be grounds for enforcement including withdrawal of the wells approval and rule authorization. In such event, federal regulations and state rules authorize the Director to require the well to apply for and obtain a permit or to undergo closure.

The above described approach has been successfully used by TCEQ in technical review, approval, and subsequent regulation of the Frio Brine Pilot Project for test injection of CO2 in Liberty County, Texas. In this case, TCEQ encouraged, and the operator (the Texas Bureau of Economic Geology) conducted, an extensive outreach program for public education during the project proposal phase. The outreach activities included meetings with local government (city and county) and the local chamber of commerce, publication in the Houston Chronicle of an article describing the proposed project, information flyers (fact sheets) provided to project-area residents and other interested persons, and a public meeting. The meeting was well attended by citizens from the Liberty County area and was covered by local news media.

In conclusion, TCEQ shares EPA's commitment to transparency of the regulatory process and unimpeded information flow. In this interest, TCEQ's UIC Program strongly supports the beneficial process of public participation in any formal rulemaking initiatives or permit processes required by regulations or by Director discretion. In response to the guidance calling for actions beyond the requirements of federal regulations, TCEQ supports the more streamlined process of Class V well approval with public information outreach, in preference to the permit process recommended in the guidance, which is not mandatory for Class V wells.

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DATE SUBMITTED: 09/18/06

SHORT TITLE: National Primary Drinking Water Regulations for Lead and Copper

SUBMITTED TO: U.S. Environmental Protection Agency (EPA)

OFFICE PREPARING: Office of Permitting, Remediation, and Registration

STAFF CONTACT: Don Thompson

SUMMARY OF COMMENTS:

EPA requests comment on seven specific rule elements and input on four areas for potential future rulemaking.

  1. Minimum Number of Samples (III.A.): EPA retains the five-sample minimum, but also solicits comment on an alternative which would let non-transient non-community water systems (NTNCWS) with fewer than five taps collect one sample tap. TCEQ supports the proposed alternative.
  2. Compliance and Monitoring Clarifications (III.B.): EPA clarifies compliance and monitoring periods. The proposal is consistent with current TCEQ implementation strategies, but also comments that states should have flexibility with schedules for new systems and systems on triennial monitoring.
  3. Reduced Monitoring Criteria (III.C.): EPA requests comment on disallowing reduced monitoring for systems with Lead Action Level exceedances even if their water quality parameters are within range. TCEQ supports the proposal; it is consistent with current TCEQ protocols.
  4. Notification and Approval of Treatment or Source Changes (III.D.): EPA proposes that state approval be required for sources or treatment changes, and also requests comment on an alternative with state notification but not approval. They also request comment on timing. TCEQ comments that source and treatment changes should not require state approval, noting that existing state approval processes should be adequate, and further comments that major, capital changes should be handled differently than operational changes.
  5. Notifying Customers of Tap-sampling Lead Results (III.E.): EPA will now require that systems send lead sample results to customers whose homes are sampled, and requests comment on the contents and timing of the notice. Generally, TCEQ comments that public notification requirements for lead should be more consistent with EPA’s Public Notice Rule, and requests additional guidance on the impact this may have on property values of the sampled houses.
  6. Public Education Requirements (III.F.): EPA’s proposal modifies the mandatory notice and Consumer Confidence Report (CCR) language, delivery methods, and timing. Generally, TCEQ comments that public notification requirements for lead should be more consistent with EPA’s Public Notice Rule, that notices should include information for consumers explaining that the most likely vector for children getting exposed to lead is through contaminated dirt or old paint, and that notices should not overstate the urgency.
  7. Lead Service Line Replacement Changes (III.G.): EPA clarifies the rule to require water systems to start up lead service line replacement programs that were suspended when sampling showed that the pipes were adequately scaled if an exceedance of lead is found in tap samples. TCEQ supports this clarification and notes that this is consistent with current implementation.
  8. Other Issues: Plumbing Component Replacement (III.H.1): EPA is requesting comment as to whether plumbing replacement should be specifically defined as a corrosion control technique. TCEQ generally comments that this should be a matter for state flexibility rather than being included explicitly in rule language.
  9. Other Issues: Point of Use Treatment (III.H.2): EPA is requesting comment as to whether use of POU (or point of entry) devices should be specifically defined as a corrosion control technique. TCEQ generally comments that this should be a matter for state flexibility rather than being included explicitly in Federal rule language. EPA should consider POU and POE treatment as part of a comprehensive distribution rule.
  10. Other Issues: Site Selection in Areas Home Treatment Units (III.H.3): EPA amends the LCR to clarify how to pick sample sites when all homes have treatment units. TCEQ comments that this is consistent with existing EPA guidance and state implementation strategies.
  11. Other Issues: Water Quality Parameter Monitoring (III.H.4): The Agency requests comment on requiring systems to synchronize required water quality parameter sampling with lead and copper tap sampling. TCEQ comments that this is consistent with guidance and current implementation strategies.

In addition, TCEQ proposes to comment that all of these revisions should be considered in the context of the overall, comprehensive Distribution Rule that EPA is currently discussing, instead of being adopted as a one-issue rule.

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DATE SUBMITTED: 08/29/06

SHORT TITLE: National Pollutant Discharge Elimination System (NPDES) Permit Regulation and Effluent Limitation Guidelines for Concentrated Animal Feeding Operations

SUBMITTED TO: U.S. Environmental Protection Agency (EPA)

OFFICE PREPARING: Office of Permitting, Remediation, and Registration

STAFF CONTACT: Charles Maguire

SUMMARY OF COMMENTS:

The general permit process, authorized by the Texas legislature, is an expedited approach to issue permits to protect State water resources to dischargers of similar waste and type of operations using limited state resources. TCEQ adopted the CAFO general permit in 2004 for TPDES CAFOs to be consistent with the 2003 changes in federal CAFO regulations. Subsequent to the adoption of the 2004 CAFO General Permit, TCEQ issued over 600 general permits to the majority of the CAFOs in the state. Depending on the federal CAFO amendments adopted, the nutrient management plans (NMPs) for all Texas CAFOs may need to be revised annually when the soil test is received and waste/wastewater application rates or cropping patterns change.

The permitting process changes described in the proposed revisions to the CAFO rule would require CAFO applicants, under both general and individual permits, to submit a NMP for agency review and approval with an opportunity for public comment and public hearing on the NMP. The proposed revisions, if adopted, would require a modification to the current TCEQ general permit process and more TCEQ staff resources to implement the proposed notice, comment, and public hearing process for over 600 CAFOs in Texas.

TCEQ needs flexibility to develop a process for determining when subsequent revisions of NMPs will require review, and of those reviewed, what will require public notice. TCEQ is in favor of public review and comment on the NMPs, but would encourage EPA to consider providing latitude to states with delegation to work within the processes they have already established. TCEQ’s primary concern is that repeated and frequent public notice for all NMPs will unnecessarily tax state resources that could be focused on more pressing environmental concerns.

TCEQ would like to work with the process previously developed. That process could focus the public notice requirements on new and significant expansions and on CAFO operations where soil test phosphorus levels exceed the 200 parts per million (ppm) threshold. For those CAFOs, TCEQ’s rules require a Nutrient Utilization Plan (NUP) to be developed and submitted to the agency for approval. TCEQ would recommend that EPA consider this model because it focuses on the CAFOs where nutrient management changes need to be made. The required annual reporting provides the agency with a way to monitor the success of the NMPs statewide because of the soil test analysis being reported. If the CAFO is failing to hold soil test phosphorus levels below the 200 ppm threshold, then changes in nutrient management would be required based on the TCEQ approved NUP, and the public could be provided with notice and the opportunity for comment. For other existing CAFOs that have NMPs that are producing satisfactory results relative to environmental indicators, they would be monitored through the annual reporting, which is part of the public record. There would be no need to use agency resources to review and then provide notice for public review and comment on the changes in those NMPs.

The contents of the NMP being proposed by EPA extend beyond what is required by TCEQ. TCEQ accepts the NRCS 590 practice standard to meet CAFO rule requirements for a NMP without the addition of the Effluent Limitation Guidelines (ELG) proposed by EPA. EPA contends that the 2nd Circuit opinion upheld their ELG requirements. The 2nd Circuit opinion did not address the requirements of an NMP, but only the issue related to public comment on the NMPs. EPA is going beyond the implementation of the 2nd Circuit decision in requiring the ELG elements as part of the NMP. TCEQ needs the latitude to continue to use the NMP content guidelines it has previously developed, specifically the acceptance of the NRCS 590 practice standard as a complete NMP. The ELG items EPA includes in their NMP template are already included in the CAFO's pollution prevention plan and should not need to be duplicated in the NMP.

In addition to TCEQ concerns with the NMP requirements in the proposed rule changes, the agency is also concerned about the technical permitting review of new source swine, poultry, and veal permit applications. The proposed review may require TCEQ staff to undergo special training on the Natural Resource Conservation Service (NRCS) SPAW & AWM software to evaluate the no discharge performance standard methodology proposed under the revised rule. Neither AWM nor SPAW software is widely utilized in Texas, which will further impede the development and issuance of permits for new operations wanting to locate in Texas, and existing operations that wish to make changes to their operations.

Another area of concern is that the enforcement program at TCEQ will assume an added workload associated with TCEQ staff entering additional information into the EPA /PCS database to establish compliance with the non-standardized NMP information being proposed as a component of the required annual report.

Finally, TCEQ will need to initiate amendments to the Subchapter B CAFO regulations to incorporate changes adopted by EPA in this action. After the adoption of the federal regulations, new TPDES CAFOs and TPDES CAFOs currently covered under the general permit will not be able to amend their authorizations until federal changes are incorporated into the state regulations. These proposed revisions to the federal CAFO rule should consider the extensive allocation of TCEQ staff resources that would be needed for permitting and enforcement of CAFOs in Texas.

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DATE SUBMITTED: 08/07/06

SHORT TITLE: National Pollutant Discharge Elimination System (NPDES) Water Transfers

SUBMITTED TO: U.S. Environmental Protection Agency (EPA)

OFFICE PREPARING: Office of Permitting, Remediation, and Registration

STAFF CONTACT: Todd Chenoweth

SUMMARY OF COMMENTS:

The TCEQ supports the proposed rule as drafted. Texas is a state of such climatic diversity that areas with a vast amount of streamflow do not necessarily have large populations. The TCEQ has a longstanding practice of utilizing water transfers to meet the needs of water-impoverished areas. Approximately 65 of the 150-plus permitted water transfers in Texas were permitted before the passage of the Clean Water Act of 1972. Under sections 101(g) and 510 of the Clean Water Act, permitting decisions regarding these water transfers should be left to the states. State law compels the TCEQ to consider and, where necessary, mitigate effects on water quality and the environment when permitting water transfers. Therefore, the TCEQ concludes that there is no need for federal regulation of water transfers.

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DATE SUBMITTED: 07/07/06

SHORT TITLE: Compensatory Mitigation for Losses of Aquatic Resources

SUBMITTED TO: U.S. Environmental Protection Agency (EPA)

OFFICE PREPARING: Office of Permitting, Remediation, and Registration

STAFF CONTACT: Mark Fisher

SUMMARY OF COMMENTS:

The general nature of the comments is to support the revisions. TCEQ uses a watershed approach and supports the proposal not explicitly defining the term. The proposal is consistent with TCEQ procedures to address functions and values, and to define consistent information requirements as part of the application process. The proposal recognizes the regional differences of aquatic resources functions and therefore the importance of partnerships with the TCEQ to protect those functions.

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DATE SUBMITTED: 05/01/06

SHORT TITLE: Small Drinking Water Systems Variances

SUBMITTED TO: U.S. Environmental Protection Agency (EPA)

OFFICE PREPARING: Office of Permitting, Remediation, and Registration

STAFF CONTACT: Anthony Bennett

SUMMARY OF COMMENTS:

TCEQ recommends a two-part approach of using both incremental costs as well as total drinking water costs within each size category and that 0.75% be used as the national level percentage.

TCEQ supports: using the 10th percentile in each size category; using the median household income as an appropriate factor of affordability; and, setting health protection levels for non-carcinogens and carcinogens.

TCEQ does not support an evaluation of affordability at the county level or any other non-national level and the listing of small system variance technology that does not fall below the affordability threshold.

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DATE SUBMITTED: 04/19/06

SHORT TITLE: Coastal Impact Assistance Program (CIAP) Guidance to the States

SUBMITTED TO: Texas General Land Office

OFFICE PREPARING: Chief Engineer's Office

STAFF CONTACT: Frank Fuller and Bruce Moulton

SUMMARY OF COMMENTS:

The comments are premised on the fact that MMS Draft Guidance is so vague it does little more than restate the legislation. Therefore, TCEQ does not know what voluntary environmental improvement efforts can be undertaken. TCEQ makes suggestions based on this premise.

In the draft comment letter, TCEQ: cites several agency programs that would benefit from the act, including the estuary programs and the TMDLs; requests that voluntary infrastructure BMPs for NPS abatement and other voluntary infrastructure projects associated with implementation of TMDLs and watershed implementation plans be exempted from a 23 percent cap on infrastructure; suggests that projects not be funded that are for mitigation and other activities required by an existing permit or regulatory action (this is consistent with other federal coastal/wetland programs); recommends that CIAP funding is unique and should be spent on projects that are only “above and beyond” normal maintenance activities; suggests that project funding be limited to coastal counties and have a direct nexus with the coastal environment; and, requests that MMS strengthen a state appeals process that is alluded to in the guidance because of the vagueness and lack of clarity in the guidance document.

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DATE SUBMITTED: 10/07/05

SHORT TITLE: U.S. Fish and Wildlife Service's Proposal to Reintroduce the Silvery Minnow into the Big Bend Area of the Rio Grande

SUBMITTED TO: U. S. Fish and Wildlife Service (FWS)

OFFICE PREPARING: Office of Permitting, Remediation, and Registration

STAFF CONTACT: Herman Settemeyer

SUMMARY OF COMMENTS:

Comments would pertain to the potential impacts for water rights administered by the TCEQ watermaster program and potential impacts on private property. If the Rio Grande silvery minnow is reintroduced there is concern that under certain flow conditions, water right holders may not be able to divert water or private property owners may not be able to utilize their lands if flows and habitat are required for the minnow without interaction with the FWS. TCEQ comments would pertain to ensuring that water right holders and private property owners would be able to divert water and utilize their property without limitations from the FWS. The FWS has indicated that there should be no impact on water right holders, however it is recommended that comments be provided to ensure that this is the case.

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DATE SUBMITTED: 07/22/05

SHORT TITLE: Application for a Presidential Permit for Pipeline Facilities to be Constructed, Operated and Maintained on the Border of the United States

SUBMITTED TO: U. S. Department of State

OFFICE PREPARING: Intergovernmental Relations Division

STAFF CONTACT: Steve Niemeyer

SUMMARY OF COMMENTS:

The letter provides general comments about the draft environmental assessment for the Valero Burgos Pipeline Project in Hidalgo County, Texas and requests an extension of time to comment on the draft EA. The draft EA lists several waterbodies, including the Rio Grande and various canals, which the pipeline must cross under. While the canals are listed, they are listed by name only with no location information. While the EA does indicate that horizontal directional drilling will be used, the draft EA does not contain any maps showing the pipeline route. As a result, we do not know where the pipelines will be located or which canals supplying water for public water supply or agricultural use could potentially be affected, should a pipeline spill or breakage occur. Further, the State Department does not know when Appendix for the EA, which was prepared by a consultant and is supposed to contain the project maps and charts, will be available. In addition, the Federal Register notice states the pipeline will deliver one million gallons/month of naphtha to the Valero terminals in Edinburg, while the EA states it will be one million gallons/day. Although TCEQ does not have regulatory jurisdiction on this project as it is currently proposed, based on the available information, the agency has an interest in the project based on the possibility that spills could occur and pipelines could break during or after construction. Should this occur, public water supplies and agricultural uses could be adversely impacted. For reasons of inconsistency and lack of information, the comment period should be extended until the Appendix containing the relevant maps is provided. We cannot comment adequately without the requested information.

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DATE SUBMITTED: 03/30/05

SHORT TITLE: Draft National Whole Effluent Toxicity (WET) Implementation Guidance

SUBMITTED TO: U. S. Environmental Protection Agency (EPA)

OFFICE PREPARING: Water Quality Division

STAFF CONTACT: Jim Davenport

SUMMARY OF COMMENTS:

The TCEQ recommends that the EPA not consider this guidance a rule and require immediate implementation; for the continued need of flexibility to define implementation procedures for WET through established EPA-state coordinated processes; and that permittees be allowed to continue to perform toxicity reduction evaluations before requiring WET permit limits.

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DATE SUBMITTED: 03/29/05

SHORT TITLE: National Pollutant Discharge Elimination System--Proposed Regulations To Establish Requirements for Cooling Water Intake Structures at Phase III Facilities; Proposed Rule

SUBMITTED TO: U. S. Environmental Protection Agency (EPA)

OFFICE PREPARING: Water Quality Division

STAFF CONTACT: Curtis Seaton

SUMMARY OF COMMENTS:

Seven facilities in Texas (The Dow Chemical Company, Freeport; ALCOA World Alumina LLC, Point Comfort; Sterling Chemicals Inc., Texas City; Oxy Vinyls LP, Deer Park; Meadweastvaco Texas LP, Evadale Mill; ALCOA Inc., Rockdale; Lone Star Steel) are subject to these regulations, depending upon the option implemented in the final rule (Option A, B, or C). TCEQ is concerned about administrative costs associated with implementing Phase III. These costs are in addition to those associated with implementing Phase II. TCEQ recommends that the EPA establish separate performance standards, monitoring, and site-specific demonstrations for industrial cooling water impoundments and strongly supports the use of restoration as a compliance option.

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DATE SUBMITTED: 03/28/05

SHORT TITLE: USFWS Notice of Availability of the Draft Barton Springs Salamander Recovery Plan; Notice of Initiation of a 5-Year Status Review for the Barton Springs Salamander

SUBMITTED TO: The United States Fish and Wildlife Service (USFWS)

OFFICE PREPARING: Chief Engineer's Office

STAFF CONTACT: Mary Ambrose

SUMMARY OF COMMENTS:

The letter provides, as attachments, information related to the evolution of the TCEQ’s Edwards Aquifer Protection Program since the original listing of the salamander as endangered. This will include the USFWS February 14, 2005 concurrence on not take if developers use the TCEQ’s Optional Water Quality Measures. The letter suggests that this joint water quality initiative be added to the list of large scale protection measures mentioned in the recovery plan. The letter points out that many of the conclusions about various threats have not been revisited since the listing of the species and that the effect of the new regulations should be evaluated by USFWS as part of the implementation of the recovery plan and as part of their evaluation of the status of the Barton Springs salamander. Due to the large volume of the attachments, they are not included in the sign off package. There is a summary at the end of the letter of the contents of each attachment. Please contact Mary Ambrose (x4813) if you would like to see the any of the information.

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DATE SUBMITTED: 03/15/05

SHORT TITLE: USDA-NRCS Environmental Quality Incentive Program (EQIP)

SUBMITTED TO: The United States Department of Agriculture-Natural Resources Conservation Service (USDA-NRCS)

OFFICE PREPARING: Chief Engineer's Office

STAFF CONTACT: Clyde Bohmfalk

SUMMARY OF COMMENTS:

Support for existing priorities with a suggestion for including water conservation/water quantity as a national priority or allowing the State Conservationist the flexibility to administer the state program such that other priorities can be considered.

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DATE SUBMITTED: 08/13/04

SHORT TITLE: Nomination of Mr. Tony Bennett for Consideration to Serve a Three-year Term as a Member on the National Drinking Water Advisory Council

SUBMITTED TO: Environmental Protection Agency (EPA)

OFFICE PREPARING: Water Supply Division

STAFF CONTACT: Buck Henderson

SUMMARY OF COMMENTS:

Texas should nominate a candidate for membership on this Council to represent the state regulatory program and ensure that Texas interests are represented. It is imperative that the state regulatory programs have a clear voice in the issues addressed by the Council A thorough and comprehensive review of Council actions and recommendations is necessary to ensure that the need for safe drinking water supplies is balanced against the ability of the regulated community to comply and the ability of regulatory agencies to provide assistance and oversight. Tony Bennett, R.S. is being nominated by TCEQ for one of the open positions on the Council.

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DATE SUBMITTED: 06/07/04

SHORT TITLE: Guidelines Establishing Test Procedures for the Analysis of Pollutants Under the Clean Water Act; National Primary Drinking Water Regulations; and National Secondary Drinking Water Regulations; Analysis and Sampling Procedures

SUBMITTED TO: Environmental Protection Agency (EPA)

OFFICE PREPARING: Policy and Regulations

STAFF CONTACT: Clyde Bohmfalk

SUMMARY OF COMMENTS:

Support recommended changes, especially those withdrawing older EPA and technically deficient methods, adding new methods, promoting use of common methods for analyzing drinking water and wastewater samples, and promoting performance-based method flexibility for the Clean Water Act. Support clarifications regarding requirements for preserving and storing samples, use of capillary columns for methods involving gas chromatography, and use of multi-analyte methods related to the Clean Water Act. Recommends correction of apparent typographical errors. Recommends approval of EPA Method 327.0 for routine daily monitoring for chlorite at the entrance to distribution systems. Supports the guidance document for alternate test procedures to determine microbiological constituents in drinking water with one recommended change and one correction.

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DATE SUBMITTED: 05/28/04

SHORT TITLE: The Drinking Water Contaminant Candidate List CCL2: Notice

SUBMITTED TO: Environmental Protection Agency (EPA)

OFFICE PREPARING: Water Supply

STAFF CONTACT: Buck Henderson

SUMMARY OF COMMENTS:

TCEQ supports the EPA for all efforts to incorporate sound science, occurrence information and health risk-based priority setting into the regulatory development process. TCEQ recommends that when EPA uses surrogate data for a contaminant that they focus not only on the release of a contaminant, but also on existing data showing the impact of that release. Depending on the contaminant, a release may have no real impact on water that is used as a drinking water source. TCEQ recommends that EPA not automatically carry over contaminants from previous CCL lists. We recommend that all occurrence and health risk data be considered when making the determination of whether to carry over a contaminant from the previous CCL. With respect to the microbiological contaminant candidates listed under Table III-2-Draft Drinking Water CCL2, the reference to "other freshwater algae", although carried over from CCL1, appears to be too general to be useful. We would encourage EPA to target specific constituents of concern (ie-specific algae or their metabolites that have a known or predicted adverse impact on drinking water) for future CCL lists, not broad groups. Those algae that are benign should not be considered contaminants. In response to the virulence factor activity relationship (VFAR) described by NRC, we question whether this approach, while promising, has current practical value for the CCL2. As an alternate solution to determining the impact of microbial contaminants, we recommend that the EPA consider practical methods for improving the correct, timely identification of actual waterborne illness for future microbial contaminants.

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DATE SUBMITTED: 05/28/04

SHORT TITLE: USFWS Notice of Availability of the Draft Karst Survey Guidance and Scientific Permit Requirements for Conducting Presence/Absence Surveys for Endangered Karst Invertebrates in Central Texas

SUBMITTED TO: U.S. Fish and Wildlife Service (USFW)

OFFICE PREPARING: Policy and Regulations

STAFF CONTACT: Mary Ambrose

SUMMARY OF COMMENTS:

The TCEQ's document was not designed to identify endangered species habitat (which is beyond the jurisdiction of the TCEQ), it was designed to facilitate compliance with our Edwards Aquifer Protection Program to protect water quality by providing guidance on how to identify sensitive karst features where a potential for hydraulic interconnectedness between the surface and the aquifer exists and where rapid infiltration of water to the subsurface may occur. While the karst features identified using this guidance may be of aid in identifying endangered species, that was not its intended purpose. The TCEQ may change our document at anytime to meet our regulatory needs and we will not maintain or distribute older versions of forms or guidance once it has been updated. The information regarding how to obtain the TCEQ's guidance and forms contained in the draft document needs to be more specific and indicate the regional office as the point of contact to answer questions on the Edwards Aquifer Program. The USFWS document is inaccurate in it's discussion of how an individual can determine when a TCEQ approved water pollution abatement plan (WPAP) is needed to conduct certain activities as part of the presence/absence surveys. Currently, the USFWS document inaccurately indicates that blasting does not need a WPAP, but the use of a backhoe does. Our rules state that clearing, excavation, or any other activities that alter or disturb the topographic, geologic, or existing recharge characteristics of a site would be considered a regulated activity under the TCEQ Edwards Aquifer Program.

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DATE SUBMITTED: 03/17/04

SHORT TITLE: Use of Composted Material for Erosion and Sediment Control

SUBMITTED TO: Texas Department of Transportation (TXDOT)

OFFICE PREPARING: Policy and Regulations

STAFF CONTACT: Clyde Bohmfalk

SUMMARY OF COMMENTS:

The letter provides clarification that compost use should be consistent with TXDOT specifications and that use of compost is restricted in the Edwards Aquifer region. It also includes references to several web sites and guidance documents for further information.

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DATE SUBMITTED: 01/20/04

SHORT TITLE: Stage 2 Disinfection Byproducts Rule

SUBMITTED TO: Environmental Protection Agency (EPA)

OFFICE PREPARING: Water Supply

STAFF CONTACT: Tony Bennett

SUMMARY OF COMMENTS:

Comments on this EPA proposed Rule Package cover these subjects: Early implementation of the initial distribution system evaluation; Health risks of disinfection byproducts (haloacetic acids and trihalomethanes); Occurrence of disinfection byproducts within distribution systems; Compliance at public water systems that purchase and re-distribute treated water (consecutive systems); Population-based monitoring requirements for disinfection byproducts; and Significant excursions in the concentration of disinfection byproducts.

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DATE SUBMITTED: 01/09/04

SHORT TITLE: Long Term 2 Enhanced Surface Water Treatment Rule

SUBMITTED TO: Environmental Protection Agency (EPA)

OFFICE PREPARING: Water Supply

STAFF CONTACT: Tony Bennett

SUMMARY OF COMMENTS:

Comments on this EPA proposed Rule Package cover these subjects: Early implementation of the rule; Raw water monitoring for cryptosporidium and e. coli; Bin classification based on raw water sampling results; Seasonal monitoring; Reclaimed water monitoring; Treatment credits for various treatment techniques and pretreatment practices; Inconsistency with existing EPA backed treatment goals.

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DATE SUBMITTED: 07/18/03

SHORT TITLE: Region 6 Draft Strategic Plan

SUBMITTED TO: U.S. Environmental Protection Agency (EPA)

OFFICE PREPARING: Strategic Assessment

STAFF CONTACT: Tom Weber

SUMMARY OF COMMENTS:

The TCEQ comments note that the proposed Region 6 Strategic Plan is new, and is still under development. The TCEQ notes that the proposed plan appears to be largely a narrative description of existing programs under the new planning headings at this point, with several sections of the plan still to be developed, most significantly those that deal with partnership agreements and regional accountability. The TCEQ comments also note that Goal 2, Clean and Safe Water, differs considerably from the rest of the draft plan in that it is still much more EPA command and control oriented than the other sections of the plan, which appear to support more partnership based approaches with the states. The TCEQ comments are generally supportive of new planning goals for homeland security.

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DATE SUBMITTED: 07/15/03

SHORT TITLE: Proposed Regulations to Establish Cooling Water Intake Structures at Phase II Existing Facilities; Notice of Data Availability

SUBMITTED TO: U.S. Environmental Protection Agency (EPA)

OFFICE PREPARING: Policy and Regulations

STAFF CONTACT: Dan Burke

SUMMARY OF COMMENTS:

TCEQ is aware of the need to mitigate the effects of entrainment and impingement of aquatic organisms in cooling water intake structures, but the agency is also concerned about implementation costs for state agencies responsible for the requirements under the National Pollutant Discharge Elimination System. The agency supports options that allow industries to either choose appropriate specific technologies or present site specific data and studies to determine the best protective approach for the site. This approach could significantly reduce compliance and administrative costs and still protect sensitive aquatic ecosystems.

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DATE SUBMITTED: 05/07/03

SHORT TITLE: Texas Coastal Nonpoint Source Pollution Control Program

SUBMITTED TO: National Oceanic and Atmospheric Administration

OFFICE PREPARING: Strategic Assessment

STAFF CONTACT: Tom Weber

SUMMARY OF COMMENTS:

TCEQ will not further expand Phase 2 TPDES storm water permit coverage to all coastal cities; TCEQ and Authorized Agents that implement our OSSF program will be unable to initiate a comprehensive inspection program; Nitrogen limited waters in the coastal area will not likely be detected within two years and upgrades or replacement of OSSFs in those areas cannot occur in this time frame; Local government assistance and outreach efforts that the agency offered in 2002 may no longer be a effective means to promote implementation of NPS controls, given the economic downturn; and Clarifications are provided relating to permit implementation tools TCEQ uses.

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DATE SUBMITTED: 04/16/03

SHORT TITLE: Advance Notice of Proposed Rulemaking - "Waters of the U.S."

SUBMITTED TO: U.S. Environmental Protection Agency (EPA)

OFFICE PREPARING: Environmental Law

STAFF CONTACT: Stephanie Bergeron

SUMMARY OF COMMENTS:

The proposed comments (1) describe the importance of Texas' tributary system; (2) discusses the role of the state's water quality standards in protecting wetlands and other waters functions and values; and (3) recommend the EPA and Corps continue with the existing regulations except where the Migratory Bird Act was the sole basis for the regulation in response to the SWANCC decision. Included as background is the Notice and responses (some in draft form) to the ANPRM from ECOS, ASWIPCA, and the Galveston Bay Council.

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DATE SUBMITTED: 01/27/03

SHORT TITLE: Proposed Comments on EPA Federal Register Notice related to Withdrawal of Revisions to the Water Quality Planning and Management Regulation and Revisions to the National Pollutant Discharge Elimination System Program in Support of Revisions to the Water Quality Planning and Management Regulation

SUBMITTED TO: U.S. Environmental Protection Agency (EPA)

OFFICE PREPARING: Policy and Regulations

STAFF CONTACT: Clyde Bohmfalk

SUMMARY OF COMMENTS:

Supports withdrawal of July 2000 regulation. Encourages EPA to continue efforts to revise the existing regulation with input from state environmental agencies. Commitment of state of Texas to develop and implement TMDLs. Offers to continue to work with EPA

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