TCEQ National Comments Log - Comments Relating to Water Issues
Official statements of the TCEQ's position regarding national policies and activities relating to water issues.
See also: 2003-2008: TCEQ National Comments Relating to Water Issues
DATE SUBMITTED: 10/21/2019
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Water
STAFF CONTACT: Allison Woodall
SUMMARY OF COMMENTS:
TCEQ Summary 
TCEQ Comments
TCEQ’s comments provide both recommendations and concerns regarding potential impact on state authority and processes we have established with the U.S. Army Corps of Engineers (USACE) and other federal permitting and licensing agencies. In our comments, the TCEQ provides detailed input with regard to strategies to enhance coordination and efficiencies in the processing of CWA Section 401 water quality reviews.
The TCEQ is concerned that the revisions to guidance and rule will negatively impact our agency. In addition, the TCEQ is concerned that the EPA will reduce the scope of state authority laid out in CWA Section 401.
Back to topDATE SUBMITTED: 05/24/2019
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Water
STAFF CONTACT: Allison Woodall
SUMMARY OF COMMENTS:
TCEQ Summary
TCEQ Comments
TCEQ’s comments include responses to questions posed in two webinars, as well as concerns expressed with regard to potential impacts on state authority and processes coordinated with the U.S. Army Corps of Engineers (USACE). In addition, the TCEQ provides detailed input with regard to strategies to enhance coordination and efficiencies in the processing of CWA Section 401 water quality reviews. The comments also state that the 39-day public comment period is not adequate to fully review the numerous and complex issues, and to consider the impacts these revisions may have on programs of the TCEQ. The 45-page guidance handbook under review contains a substantial amount of detail that deserves a concerted and iterative review process prior to finalizing changes. The TCEQ is concerned that the revisions to guidance and rule will negatively impact our agency’s processes that have been negotiated with the USACE to conduct a review of the water quality impacts from certain CWA Section 404 applications. In addition, the TCEQ is concerned that the EPA will reduce the scope of state authority laid out in CWA Section 401.
DATE SUBMITTED: 04/15/2019
SHORT TITLE: Revised Definition of Waters of the United States
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Water
STAFF CONTACT: Jill Csekitz, Gregg Easley
SUMMARY OF COMMENTS:
TCEQ Summary
TCEQ Comments
Comments support the overall efforts by the Agencies to clarify the rule and “recognize, preserve, and protect the primary responsibilities and rights of the States to prevent, reduce, and eliminate pollution” authorized by Section 101(b) of the CWA. Specific suggestions to improve efficiency of implementation are provided in response to the Agencies’ solicitation for feedback on selected topics. The TCEQ has also provided comments and suggestions on pertinent topics that may impact state water quality management programs.
DATE SUBMITTED: 05/21/2018
SHORT TITLE: Clean Water Act Coverage of “Discharges of Pollutants” via a Direct Hydrologic Connection to Surface Water
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Water
STAFF CONTACT: Allison Woodall, Gregg Easley
SUMMARY OF COMMENTS:
TCEQ Summary
TCEQ Comments
Comments provided here take the position that EPA does not have authority under the CWA to regulate discharges to groundwater that may reach jurisdictional surface waters through a direct hydrologic connection. Groundwater regulation is the domain of the States, and each state should continue to be afforded freedom and flexibility to regulate this resource at its discretion. Texas uses a variety of legal authorities to protect groundwater in the context of both intentional and unintentional discharges of pollutants to groundwater. It is recommended that EPA revise its previous statements concerning this issue to acknowledge this important role and responsibility of the States
DATE SUBMITTED: 09/27/2017
SHORT TITLE: Request for Scientific Views: Draft Updated Aquatic Life Ambient Water Quality Criteria for Aluminum in Freshwater
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Water
STAFF CONTACT: Jill Csekitz, Gregg Easley
SUMMARY OF COMMENTS:
TCEQ Summary
TCEQ Comments
Comments provided here support the overall approach to incorporate site-specific factors into criteria development; however, additional information, justification, and guidance are needed to assist states when considering adoption of the criteria.
EPA's proposal would benefit from expanding the range of input data factored into the Multiple Linear Regression (MLR) model to increase its applicability in Texas. Justification is also needed to address technical limitations in EPA’s proposal, including the applicability of the MLR model, which was developed using results of chronic tests, to the development of the acute criterion. Additional technical limitations resulting from the use of censored data in the EPA's dataset, should be better addressed.
Additional guidance is needed to assist states when data needed to run the MLR model are lacking, particularly for rarely-monitored parameters such as dissolved organic carbon. Guidance is also needed to clarify how to address potentially-conflicting results between EPA's proposal and other procedures approved by EPA to develop site-specific toxic criteria for aluminum, such as Water Effects Ratios. Guidance should be coordinated with states prior to the finalization of the criteria.
DATE SUBMITTED: 08/28/2017
SHORT TITLE: Proposed Rule, Definition of Waters of the United States
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Water
STAFF CONTACT: Allison Woodall
SUMMARY OF COMMENTS:
TCEQ Summary
TCEQ Comments
Comments support the July 27, 2017 proposed rule to rescind the 2015 Clean Water Rule and recodify the pre-2015 regulations as an interim measure. The comments also reiterate Texas’ positions on the 2015 definition of “waters of the United States” which were expressed through comments on the Clean Water Rule. The Clean Water Rule comments included urging EPA and USACE to preserve the authority of States and support of an interpretation of the term “navigable waters” in a manner consistent with the opinion of Justice Scalia. In addition, the comments on the proposed rule urge the EPA and USACE engage the States during the subsequent review and development of a revised definition of the “waters of the United States.”
DATE SUBMITTED: 06/14/17
SHORT TITLE: TCEQ's Preliminary Response to EPA's Revision of the Clean Water Rule Adobe Acrobat PDF Document Accessible Version
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Legal Services
STAFF CONTACT: Caroline Sweeney
DATE SUBMITTED: 05/08/17
SHORT TITLE: Use of U.S. Army Corps of Engineers Reservoir Projects for Domestic, Municipal & Industrial Water Supply
SUBMITTED TO: U.S. Army Corp of Engineers
OFFICE PREPARING: Office of Water
STAFF CONTACT: Allison Woodall
SUMMARY OF COMMENTS:
TCEQ Summary
TCEQ Comments
Procedural Comment:
TCEQ recommends that the Corps rescind the portion of the rule related to storage accounting and implement a stakeholder process with the states to account for variability in state water laws, or limit the scope of the proposed storage accounting method to states where the Corps has encountered the related issues. The proposed rule does not take into account variability in state water laws and was not developed through close coordination with the states.
General Comment:
Language throughout the proposed rule conflicts with both Federal law and Texas water law. The TCEQ recommends that the Corps make it clear that states have jurisdiction over the allocation of water as authorized in the Texas Water Code and recognized in both the Flood Control Act and the Water Supply Act. The discussion of state authority should be modified throughout the preamble to ensure consistency with both state and federal statutes. The preamble is inconsistent in its discussion of uses for which states can allocate water and the authority of states to manage and permit water rights within their borders. For example, throughout the preamble the Corps refers to the states’ prerogatives to allocate water for consumptive uses. In other sections the Corps defers to state water right allocation systems. In Texas, state authority to allocate water is not limited to consumptive uses. State law allows both consumptive and non-consumptive uses to be permitted under a Texas water right permit. Further, if hydropower or other non-consumptive uses which require a state water right permit are associated with a Corps reservoir, irrespective of whether storage for consumptive uses are included in the authorization for the project, under Texas law, a state water right permit is required for the reservoir. In addition, we disagree that uses such as hydropower would be considered completely non-consumptive if they are associated with storage in a reservoir as that term is defined in the proposed rule.
Comment on Water Supply Storage Accounting:
TCEQ recommends that the Corps' water supply storage accounting accommodate state law by adopting an alternative approach to water supply storage accounting. "Made inflows" should be allocated only to the water supply storage account holder that created those flows, provided the account holder has a state issued water right permit for those “made inflows”. The section of the proposed rule related to water supply storage accounting does not take into account variability in state laws for allocation of surface water. TCEQ has jurisdiction to allocate surface water within its borders. Texas water right permits can include allocations for specific return flows and other "made inflows" such as water originating from transfers within a river basin or from another river basin. These water rights require accounting to demonstrate compliance with state water law and the terms of the state issued water right. Allocation of return flows and other "made inflows" to all users in a reservoir would result in water that is permitted to an existing Texas water right being allocated to other users in a manner that violates state statutes and ownership of state water. Under the Corps proposed storage accounting method, the Corps would not recognize state issued water rights permits, including the accounting provisions included in those water rights. Texas water right holders have made significant investments to utilize their permitted water. The proposed rule would have the effect of allocating this water to someone else and the Corps accounting would directly conflict with the terms of the state issued water rights.
In addition, not all "made inflows" would be available for storage under Texas law because a water right holder downstream of a reservoir may have a state issued water right authorizing diversion and use of those flows. The Corps would need to operate its project to ensure that those flows are passed through the reservoir to the water right holder with state authorization to divert and use those flows. "Made inflows" that are allocated to Texas water right holders under a state water right permit should not be considered available for storage unless the water right holder for those “made inflows” is also a water supply storage account holder. The proposed rule, which would authorize the Corps to allocate "made inflows" proportionally among all storage accounts, would interfere with the ability of Texas water right holders to divert and use their authorized water.
Comment on Federalism:
TCEQ disagrees with the Corps’ finding that there are no Federalism implications for the proposed rule. The proposed rule states that there are no federalism implications, defined in Executive Order 13132 as regulations that have "substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government." The Corps stated reason for this finding is that the proposed rule does not interfere with the States' allocation of water, interfere with State prerogatives, establish or determine consumptive water rights, or have a direct effect on the States. The proposed rule would directly conflict with Texas primacy in water allocation and management of state issued water rights. The rule, if adopted as written, would authorize the Corps to allocate state water under the proposed storage accounting method and deprive Texas water right holders of water authorized under their state issued water rights.
DATE SUBMITTED: 04/05/17
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Toxicology Division
STAFF CONTACT: Lindsey Jones, Joseph "Kip" Haney, Sabine Lange
SUMMARY OF COMMENTS:
TCEQ Summary
TCEQ Comments
- The EPA inappropriately terms its derived household action levels “health-based benchmarks,” thereby unnecessarily confusing the public. The EPA should revise this terminology to accurately depict the derivation and intended use of the value, or provide the necessary documentation to justify a health-based benchmark in a separate document that is available for public and peer review.
- Of the options presented in the draft report, the TCEQ recommends that the EPA use the 37/72 µg/g (ppm) geometric mean background soil/dust lead concentrations to satisfy the EPA’s National Drinking Water Advisory Council’s request.
- The EPA should revise its soil ingestion, soil/dust concentration, and outdoor air input parameters, as they currently include higher-end exposures.
- Given the complexity of the issue and supporting documentation, the EPA should have provided more than 45 days for the public to comment on this draft.
- EPA should carefully consider and respond to public comments.
DATE SUBMITTED: 03/20/17
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Water
STAFF CONTACT: Allison Woodall
SUMMARY OF COMMENTS:
TCEQ Summary
TCEQ Comments
Considerable uncertainty exists regarding how these criteria and/or advisories would be implemented in regulatory programs under the CWA, particularly since control of cyanotoxins may require the control of causal pollutants such as nutrients. The causal relationship between nutrients and production of cyanotoxins by cyanobacteria has not been well-established, and is very likely site-specific. Additional clarity, information, and guidance is needed to effectively incorporate these recommendations into state water quality management processes.
If TCEQ were to adopt the criteria published by EPA, it has the potential to affect the development of the Texas Surface Water Quality Standards (TSWQS), and implementation of the standards in monitoring, assessments, total maximum daily loads (TMDLs) and wastewater permitting. States must adopt water quality criteria that protect designated uses and, if appropriate, modify those criteria once every three years. The State of Texas has not adopted recreational criteria in the form of cyanotoxins into the TSWQS, Title 30 Texas Administrative Code (TAC), Chapter 307. Additionally, use of EPA’s recommendations as swimming advisories would require extensive coordination with agencies who are members of the Texas Toxic Substances Coordinating Committee (TSCC). This committee facilitates coordination among member agencies concerning each agency’s efforts to regulate toxic substances and harmful physical agents. State agencies who are members of the TSCC include: Texas Commission on Environmental Quality, Texas Department of State Health Services, Texas Parks and Wildlife, Texas Department of Agriculture, and the Texas Railroad Commission. Additional clarity and implementation guidance is needed to assist state natural resource and public health agencies when considering the recommended values as water quality standards or action levels to issue swimming advisories, particularly due to the need for agency cross-coordination and public notice regarding toxic substances and the protection of public health.
Comments on the draft criteria and/or advisories address the following concerns:
- EPA is requested to correct the status of state recreational water guidelines for cyanotoxins and cyanobacteria in Texas. The information presented for Texas in various portions of Section 2.0 Introduction and Background and Appendix B of EPA’s Draft Human Health Recreational Ambient Water Quality Criteria or Swimming Advisories for Microcystins and Cylindrospermopsin is incorrect. The TCEQ is not currently aware of any statewide recreational water guidelines for cyanotoxins and cyanobacteria for use in swimming advisory programs.
- EPA should clarify the type of cyanotoxins applicable to the draft recommendations. Additional clarity is needed to determine if recommendations apply to “total” microcystin or cylindrospermopsin, any of the known congeners, or if congeners may be used as surrogates for total toxins.
- EPA should reconsider the duration of recreational exposure value of 2.7 hours per day, used to develop the draft criteria and/or advisories. This value was derived from a study that included a small sample size of swimmers. A more reasonable exposure duration of 1.3 hours, based on a larger sample size of swimmers from a peer-reviewed study cited in EPA’s draft document, is recommended by TCEQ.
- EPA should reconsider the relative source contribution (RSC) of 0.8, used to develop the draft criteria and/or advisories. The use of an RSC of anything less than 1 in the draft criteria cannot be justified because there is not information to suggest that there is any significant exposure to microcystins and/or cylindrospermopsin via other routes of exposure, such as dermal exposure, inhalation, ingestion of fish/shellfish, or drinking water.
- EPA should incorporate results of the 2012 National Lakes Assessment (NLA) into the draft recommendations. The draft criteria and/or advisories include pertinent results from the 2007 NLA only. EPA should update the criteria and/or advisories with results from the 2012 NLA, which was recently published in the December 8, 2016 edition of the Federal Register.
- EPA should provide implementation guidance to accompany the draft criteria and/or advisories. Additional guidance is needed to implement these criteria, particularly for the purposes of swimming advisories, and in water quality management programs such as monitoring, assessment, TMDL development, and wastewater permitting.
- The availability and acceptability of analytical methods to determine microcystin and cylindrospermopsin in water needs to be described and provided as part of the criteria and/or advisories, or in future implementation guidance. EPA should provide additional detail and clarity regarding methods and modifications of analytical methods, particularly since EPA does not have approved methods under 40 Code of Federal Regulations Section 136 for determining microcystin or cylindrospermopsin in water.
DATE SUBMITTED: 12/12/16
SHORT TITLE: Aquatic Life Ambient Water Quality Chronic Criterion for Selenium-Freshwater
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Water
STAFF CONTACT: Allison Woodall
SUMMARY OF COMMENTS: TCEQ Summary
If TCEQ would adopt the criterion as published by EPA, it has the potential to affect the development of the Texas Surface Water Quality Standards, and implementation of the standards in monitoring and assessment, wastewater permitting, Total Maximum Daily Load development and implementation, and wastewater permitting. Due to the complex aspects included in EPA’s final selenium criterion, including the use of water column and fish tissue exposure pathways, it is expected that numerous difficulties related to adoption and implementation will be encountered. Comments on the draft technical support materials address the following concerns:
- EPA should afford states the flexibility to adopt water column concentrations as the primary component of state standards. Water column concentrations for lentic, lotic, and intermittent-exposure scenarios are already protective of fish tissue concentrations. Adoption of the water column concentrations as the primary component of state standards would increase clarity and reduce uncertainty when adopting and implementing the criterion.
- If implemented, draft guidance for fish tissue monitoring will impact existing state resources to sample fish tissue. EPA should consider existing state resources and priorities, and allow states the flexibility to adopt and implement selenium criterion aspects that consider the constraints of established fish tissue monitoring programs within each state.
- The availability and acceptability of analytical methods to determine selenium in fish tissue needs to be clarified. EPA should provide additional detail and clarity regarding methods and modifications of analytical methods, particularly since EPA does not have approved methods under 40 CFR §136 for determining selenium in fish tissue.
- If adopted, EPA’s recommended selenium criterion may result in an increase of inappropriate listings of water bodies as on the 303(d) List. EPA should allow states flexibility to develop assessment methodologies that appropriately consider the constraints of state monitoring resources, when implementing the criterion in surface water assessments and identification of impairments.
- EPA should provide additional guidance to clarify assessment methodologies, particularly the removal of impairments from the 303(d) List, once identified as impaired. Due to the complex nature of the recommended criterion, including the hierarchy established as part of the criterion, EPA should provide specific guidance to states on how to de-list impairments.
- The consideration of natural sources of selenium as part of assessment determinations is not adequately addressed. A mechanism for addressing the presence of naturally-occurring sources of selenium, when only water column data are available, is needed for assessments.
- EPA should clarify guidance regarding the use of distance and residence time thresholds to determine reasonable potential (RP). This information is needed when considering distance between sampling locations and permitted discharges, and to distinguish between lentic and lotic environments.
- EPA should provide additional clarification for key terms. Clarification is needed when determining what constitutes “noncontinuous discharges” and “elevated selenium concentrations”.
- The amount of information required to assess RP is overly burdensome, would increase timeframes to issue permits, and needs further clarification. EPA should reconsider the amount of information needed to conduct RP (such as ambient water column and fish tissue data), and clarify remaining issues so that states can conduct RP analyses according to established timeframes.
DATE SUBMITTED: 08/02/16
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Water
STAFF CONTACT: David Galindo
SUMMARY OF COMMENTS:
TCEQ Comments
The TCEQ is submitting comments on the following topics outlined in the proposed rule:
Permit Application Requirements
- The proposed requirements to submit latitude/longitude metadata in a new format and to submit NAICS codes in addition to SIC codes;
- The proposed requirement for existing discharges to submit all data from the previous 4.5 years in applications as such data is already in the EPA’s ICIS database;
- The NPDES Program Definition of "Pesticide Applications to Waters of the United States" should be removed since it is inconsistent with the pesticide general permit and the 6th Circuit Court decision;
- The deletion of the term "CIU"; The TCEQ recommends that the final rule include all terms: SIUs, CIUs, and NSCIUs.
Water Quality-Based Permitting Process
- Dilution Allowances – The proposed requirement that analysis of dilution allowances involve the use of ambient pollutant data in the receiving water. The proposed requirement to default to assessing water quality-based limits with no dilution if receiving water assimilative capacity cannot be accurately predicted will significantly change permit limits and have a significant financial impact on the regulated community;
- Reasonable Potential Analysis for New Discharges – Requiring the use of relevant qualitative or quantitative data, analysis or other information in conducting reasonable potential analysis for new discharges may result in water quality-based effluent limits being placed in the permit that are deemed to be unnecessary once actual effluent data is submitted and evaluated. Removing water quality-based limits from a permit requires a major amendment application, full public notice, and it is subject to a contested case hearings and EPA’s anti-backsliding requirements;
- Best Management Practices (BMPs) and Fact Sheet Language – The requirement to develop fact sheet rationale related to best management practices (BMP) in permits is a new requirement;
- Design Flow for Publicly Owned Treatment Works (POTW) – Requiring a POTW to meet mass-based effluent limitations based on actual flows would likely result in non-compliance with mass-based limitations even though the POTW is meeting concentration-based limitations.
Permit Objection, Documentation and Process Efficiencies
- Objection to Administratively Continued Permits – The TCEQ is opposed to the EPA designating administratively continued permits which have not been drafted/proposed for EPA review within two or five years as proposed permits. This process would provide the EPA with authority to object to conditions of the existing permit, which would result in an increased workload for the EPA, the TCEQ, and the regulated community. The EPA assuming exclusive permitting authority for a permit in this situation would result in both the TCEQ and the EPA having to issue separate permits that may contain different and contradictory permit conditions;
- Public Notice Requirements – The EPA is specifically seeking comment on an alternative option in 40 CFR 124.10(c) that would allow public notice of permit applications for NPDES classified major facilities, renewals of NPDES general permits, and hearings be provided on a state’s web site in lieu of publication in newspapers. The TCEQ recommends that EPA clarify that the Director has the discretion to choose the appropriate notice method.;
- Fact Sheet Requirements – The TCEQ does not support the following additions to minimum fact sheet requirements: reasonable potential analysis for narrative criteria, fact sheet rationale for inclusion of any best management practices, listing of all pollutants analyzed related to reasonable potential analysis, inclusion of all ambient data used in dilution analysis or justification for lack of data, and justifying effluent monitoring locations, monitoring frequencies, sample types, and test methods.
DATE SUBMITTED: 06/09/16
SHORT TITLE: Protecting Aquatic Life From Effects of Hydrologic Alteration
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Water
STAFF CONTACT: Allison Woodall
SUMMARY OF COMMENTS:
TCEQ Comments
Although the report is intended to be a technical guide, it appears to go beyond technical evaluation by including broader water policy concerns. The report states that it is intended to serve as a technical guide for resource managers to consider in the continued efforts to protect aquatic life through various programs of the Clean Water Act, and is not intended to establish any new authorities or impose any additional requirements on states. However, the report includes a review of Clean Water Act case law that does not clearly acknowledge the state’s absolute jurisdiction over water rights under 33 USC 1251(g) Authority of States over water. We suggest the report include a statement citing the authority of States over water quantity decisions.
DATE SUBMITTED: 03/21/16
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Water
STAFF CONTACT: Allison Woodall
SUMMARY OF COMMENTS:
TCEQ Comments |
Attachment 1
- TCEQ supports the Option 3 “State Choice Approach” concept described in the preamble since it would offer the greatest flexibility to the permitting authorities to choose between Option 1 and Option 2 or a hybrid of the two.
- TCEQ also supports the Option 2 “Procedural Approach” concept described to some detail in the preamble on the basis that it is the most similar to TCEQ’s current small MS4 program.
- MS4s should be allowed to publish their own public notice in the newspaper or an alternate form such as posting on the website.
- After approval of the MS4’s NOI/SWMP, necessary changes to these documents should not require public notice.
- TCEQ does not support EPA reviewing the NOIs and SWMPs prior to TCEQ’s approval. The review and approval of all the NOIs and SWMPs should rest with the delegated permitting authority.
DATE SUBMITTED: 12/30/15
SHORT TITLE: National Wetland Condition Assessment (NWCA)
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Water
STAFF CONTACT: Kelly Holligan
SUMMARY OF COMMENTS:
TCEQ Comments
The NWCA 2011 draft report was reviewed and comments were developed to address the following:
- The NWCA 2011 included multiple sites in Texas. The TCEQ requests that it be included in the list of State Agency Partners who participated in the study. The TCEQ invested staff and contracting resources in support of the NWCA.
- The NWCA used a broader definition of "wetlands" than the regulatory definition in the Clean Water Act. It is requested that the report be revised to clarify how the different definitions of "wetlands" were considered in the study and provide a discussion of the potential impacts of using different definitions.
- The data for the NWCA 2011 was collected during a time that Texas was experiencing a severe multi-year drought. It is requested that the drought conditions be considered and the report be revised to address the issue.
- The use of "reference sites" is integral to the assessment and reporting of wetland conditions in the NWCA. It is requested that the methodology used to select reference sites be clarified in the NWCA and technical reports.
- Seven wetland types were targeted for sampling in the NWCA. However, results are primarily reported on a national scale and within four aggregated ecoregions. Of the seven wetland types, only a separate summary of results for estuarine wetlands- surveyed across all ecoregions, is provided. It is requested that the results be revised to follow a consistent reporting format by wetland type and aggregated ecoregion, and to clarify report conclusions for all categorical descriptors.
- The resources required to conduct probabilistic National Aquatic Resource Surveys, like the NWCA, are substantial. TCEQ is concerned with the continuing level of effort to complete these surveys, as well as EPA's requirement for states to independently conduct statewide evaluations of data collected in the surveys for inclusion in biennial water quality assessments.
DATE SUBMITTED: 09/18/15
SHORT TITLE: Aquatic Life Ambient Water Quality Chronic Criterion for Selenium-Freshwater 2015
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Water
STAFF CONTACT: Allison Woodall
SUMMARY OF COMMENTS:
Comments
States must adopt water quality criteria that protect designated uses and review and, if appropriate, modify those criteria once every three years. The State of Texas has adopted acute and chronic selenium criteria in the Texas Surface Water Quality Standards (TSWQS), Texas Administrative Code (TAC), Title 30, Chapter 307. The current criteria, adopted in the 1991 revisions to the TSWQS, were established to protect aquatic life from toxic effects and are based upon EPA's 1987 recommendations for selenium. TCEQ uses these standards in regulatory programs of the CWA, such as wastewater permitting, surface water quality assessment, and Total Maximum Daily Loads (TMDL). Texas must consider any new or revised CWA Section 304(a) criteria during the triennial review of the TSWQS.
The proposed revisions to the draft criterion have the potential to affect the development of the Texas Surface Water Quality Standards, and implementation of the standards in wastewater permitting, TMDL development and implementation, and surface water quality assessment. EPA’s latest draft criterion does not adequately provide sufficient clarity for consideration of adoption, due in part from uncertainty and lack of guidance regarding implementation methods. Due to the complex elements included in EPA’s proposal, including the use of water column and fish tissue exposure pathways, it is expected that numerous difficulties related to implementation will be encountered. Comments on the draft proposal address the following concerns:
- EPA's statement that the criterion is comprised of four elements is misleading. The EPA states the criterion has four elements; however, a total of six different numeric aspects comprise the criterion.
- Additional guidance to implement the draft criterion in permitting, the TMDL Program and surface water quality assessment is needed. Current protocols to address toxics in water are included in EPA technical support document, guidance publications, policy memos, and other tools to facilitate implantation. Current implementation procedures to establish effluent limits for National Pollution Discharge Elimination System permits are based upon water column concentrations. Additional guidance is needed to develop water quality based effluent limits necessary to ensure attainment of the fish tissue criterion, as well as procedures for monitoring and assessment. Additional guidance is particularly critical since EPA has recommended that fish tissue elements be given precedence over the water column elements, if all data are available.
- Additional clarifications are needed prior to consideration for adoption into state water quality standards. EPA recommends states to adopt all aspects of the criterion into state water quality standards. However, due to the lack of implementation guidance and consideration of existing standards adopted by states, this expectation is not practical or reasonable.
- Guidance for monitoring and sampling target fish species, including fish eggs or ovaries is needed. Guidance standardizing the time of year, target fish species, type of sample collection and handling, appropriate fish species, and requirements for the harvesting of eggs is needed. Additionally, the monitoring of fish eggs or ovaries is costly and not practical for the state or permittees.
- Guidance on how to develop site-specific criteria to account for regional differences in naturally-occurring selenium is needed. Guidance regarding the development of site-specific bioaccumulation factors is needed to account for regional differences, particularly where background concentrations of selenium are naturally-elevated.
DATE SUBMITTED: 09/16/15
SHORT TITLE: Endangered and Threatened Wildlife and Plants
SUBMITTED TO: U.S. Fish and Wildlife Service
OFFICE PREPARING: Office of Water
STAFF CONTACT: Katherine Nelson
SUMMARY OF COMMENTS:
TCEQ Comments
Comptroller Hegar's Comments
The proposed rule revisions would provide greater specificity in the type of information which an entity must submit in a petition to list a species. The comments indicate support of the revision to improve quality of the petitions submitted as well as limiting the petition to one species. Support of the requirement to submit a copy of the petition to state agencies for review prior to submittal to the Services is also identified in the comments. However, the comments indicate that the proposed revisions should be changed to allow for a broad definition of the state agencies to which a copy of the petition must be submitted. As currently proposed, a copy of the petition would be submitted to the state agency responsible for the management and conservation of fish, plant, or wildlife resources. As proposed, the regulations could be interpreted to only require submission of a copy of the petition to the Texas Parks and Wildlife Department. The comments also request that the submission of the copy of the petition be changed from at least 30 days prior to submittal to the Services to 90 days prior to submittal.
By letter dated July 15, 2015, Texas Comptroller Glenn Hegar provided comments on the proposed revisions to 50 CFR Part 424 in his capacity as the presiding officer of the Interagency Task Force on Economic Growth and Endangered Species. The developed comments are consistent with the comments provided by the Texas Comptroller of Public Accounts. A copy of the July 15, 2015 comments is attached.
DATE SUBMITTED: 01/27/15
SHORT TITLE: NPDES Electronic Reporting Rule
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Water
STAFF CONTACT: Laurie Fleet
SUMMARY OF COMMENTS:
Comments provide TCEQ's position and recommendations on the following issues:
- the automatic designation of authorized states as the initial recipient;
- the method of initial recipient status notification to regulated entities;
- the need for and the complications resulting from dual reporting to both TCEQ and EPA concurrently;
- the required participation rate in the State Readiness Criteria;
- the use of Information Collection Requests should be for future data submittals, not duplicate submittals;
- the implementation timelines;
- the inclusion of unpermitted facility data;
- the implementation costs;
- automatic temporary waivers and permanent waivers;
- the implementation schedule for the biosolids program; and
- the overall need for this rule.
DATE SUBMITTED: 01/27/15
SHORT TITLE: Effluent Limitations Guidelines and Standards for the Dental Category
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Water
STAFF CONTACT: Kim Qilaon
SUMMARY OF COMMENTS:
- It is the TCEQ's opinion that the EPA significantly underestimated the cost and resource burden to implement the proposed rule.
- TCEQ's believes EPA used an outdated mercury removal efficiency to develop the cost/benefit analysis resulting in an overestimate of the benefit of this rule. The TCEQ recommends that EPA collect and analyze more recent POTW influent and effluent data to calculate a more representative removal efficiency of mercury and other metals from POTWs.
- The rule should require information on the responsible party for the dental facility instead of the dental license numbers because the owners of dental facilities, not the licensed dentists, are responsible for rule implementation and compliance.
- The baseline monitoring report and the 90-day compliance report should be combined for existing dental facilities to reduce administrative burden.
- The rule should require the control authority to establish a specific deadline for submitting the annual certification.
- The requirements for the annual compliance evaluation are unclear. The EPA should clarify or define what constitutes the required annual compliance evaluation.
- The rule should define what constitutes emergency removals to allow control authorities to provide meaningful input on frequencies.
- The EPA should clarify the process for dental facilities to notify the control authority when a monthly inspection identifies a non-compliance and the timeline for notifying the control authority. Additionally, the notification should include actions taken to correct the non-compliance.
- The EPA should identify what is expected of control authorities to track compliance for temporary facilities and mobile units that are not tied to a specific location.
- The rule should specifically state that all dental industrial users keep logs/documentation, and maintenance, cleaning, inspection, and implementation records and make them available to the control authority for inspection upon request.
- The EPA should clarify how the rule applies to dental facilities that began operation after the proposed rule date (October 22, 2014) and prior to the effective date of the rule.
- The EPA should consider the impact that this proposed rule would have on other Federal rules and strategies, such as the proposed NPDES Electronic Reporting Rule and the NPDES Compliance Monitoring Strategy.
DATE SUBMITTED: 11/14/14
SHORT TITLE: EPA and USACE's Definition of "Waters of the United States" Under the Clean Water Act
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Water
STAFF CONTACT: Kimberly Wilson
SUMMARY OF COMMENTS:
The TCEQ agrees with the Texas Attorney General's comments submitted August 11, 2014 on how the proposed rulemaking exceeds the EPA/USACE authority under the Constitution. Additionally, the imposition of major national policy by administrative rule is inappropriate. EPA and the USACE should seek revisions to the CWA through legislation rather than continuing with this rulemaking.
However, should EPA continue to pursue rulemaking, the TCEQ has a number of concerns with this proposal. The following concerns are most significant:
- Section 101(g) of the CWA expressly protects state-issued water rights. The proposed rule should reference Section 101(g) and clearly state that the rule will not infringe upon the states' primary authority to allocate water and administer water rights within their borders.
- There are significant items for which the EPA and the USACE are continuing to seek input through the proposed rule. The TCEQ requests that the EPA/USACE suspend the rulemaking and continue to work with stakeholders or republish the proposed rule for a second round of comments.
- Non-navigable tributaries should meet a jurisdictional test for relatively permanent, standing, or continuous flow and continuous connectivity for federal jurisdiction to be applied (following Justice Scalia's opinion in Rapanos).
DATE SUBMITTED: 10/14/14
SUBMITTED TO: U.S. Fish and Wildlife Service
OFFICE PREPARING: Office of Water
STAFF CONTACT: Kimberly Wilson
SUMMARY OF COMMENTS:
The TCEQ fully supports the comments submitted by Commissioner Patrick R. Gordon for the Rio Grande Compact Commission to the United States Fish and Wildlife Service (USFWS) dated September 17, 2014. The TCEQ has concerns that the proposed critical habitat designation does not recognize the 1906 Convention with Mexico and the 1938 Rio Grande Compact, about the inclusion of the conservation pool of Elephant Butte Reservoir within the revised critical habitat, and development of a species recovery plan
DATE SUBMITTED:07/10/14
SHORT TITLE: The Human Health Ambient Water Quality Criteria
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.
DATE SUBMITTED: 06/02/14
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:
- 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.
- 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.
- 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.
- 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.
- 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.
DATE SUBMITTED: 04/23/14
SHORT TITLE: Endangered and Threatened Wildlife and Plants; Special Rule for the Georgetown Salamander
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.
DATE SUBMITTED: 01/02/14
SHORT TITLE: Water Quality Standards Regulatory Clarifications
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.
DATE SUBMITTED:
SHORT TITLE: Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence
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."
DATE SUBMITTED:
SHORT TITLE: Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category
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
DATE SUBMITTED: 05/31/13
SHORT TITLE: Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category
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.
DATE SUBMITTED: 05/08/13
SHORT TITLE: U.S. EPA draft report of the National Rivers and Streams Assessment 2008–2009 (NRSA)
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.
DATE SUBMITTED: 03/01/13
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Water
STAFF CONTACT: David Galindo
SUMMARY OF COMMENTS:
- 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.
- 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.
- 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.
DATE SUBMITTED: 02/14/13
SHORT TITLE: Water Supply Storage Agreements and Disposition of Return Flows
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.
DATE SUBMITTED: 12/14/12
SHORT TITLE: Revised Nonpoint Source (NPS) Program and Grants Guidelines for States and Territories
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.
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.
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.
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.
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.
DATE SUBMITTED: 07/27/12
SHORT TITLE: Request for Information on the Sharpnose and Smalleye Shiners
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 to the U.S. Fish and Wildlife Service request for information.
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.
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.
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.
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 enterococci 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.
DATE SUBMITTED:
SHORT TITLE: Fiscal Year 2013 Draft National Water Program Guidance
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.
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.
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.
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.
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.
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:
- consider only relatively permanent, standing or continuously flowing bodies of water as tributaries to waters of the United States covered by the Act,
- 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
- 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.
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.
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.
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.
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.
- 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.
- 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.
- 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.
- Sample Collection, Preservation and Holding Time: The TCEQ supports the revision of the footnote related to the holding time for E. coli.
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.
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.