By Ender Reed
TAC Legislative Staff
The Texas Commission on Environmental Quality (TCEQ) is considering making changes to its permitting requirements regarding “small municipal separate storm sewer systems” (MS4s). These changes, if implemented, could result in extremely prescriptive permit conditions, such as requiring frequent catch basin cleaning. These changes define the type of street sweepers that must be used, the purchase of which could be very costly for local governments.
Currently, the state requires in accordance with the federal Clean Water Act (CWA) that operators of MS4s apply for a permit in order to ensure that they are properly managing the discharge of storm water into the state surface water. Under the current permit structure, MS4s are allowed to select best management practices and measurable goals and define their own programs to implement six pollutant reduction programs.
However, TCEQ is considering adding provisions to the current permit structure in an effort to conform to recommendations from a recent publication, the MS4 Permit Improvement Guide, produced by the Environmental Protection Agency (EPA). The purpose of the MS4 Permit Improvement Guide, according to the purpose section of the document, is “to facilitate the creation of MS4 permits which are clear, consistent with applicable regulations, and enforceable.” The document goes on to say that the guide “was created by reviewing numerous MS4 permits and fact sheets from around the country,” or “in instances where existing language that meets the purpose of this document was not available, EPA has crafted new language.”
As the guide itself suggests, the recommendations within were cobbled together from a variety of jurisdictions or drawn up in the halls of the EPA. The guide was not created with Congressional input, nor was it issued in conformance with the Administrative Procedures Act. As a result, the guide’s recommendations do not include enough public input from those who must comply with its recommendations.
Counties have expressed concern that the recommendations in the guide are overly prescriptive and will be costly for counties to implement. Given the current economic climate and the budgetary demands being placed on counties by the state, any potential changes should be given thorough consideration before being mandated. Counties are also concerned that the new permit process will harm flexibility to manage storm water issues at the local level.
TAC legislative staff will continue to monitor this issue and notify readers of any significant developments.