With the Texas Legislature having now convened for the 2019 session, various key environmental issues are anticipated to be the subject of debate and legislative action. Based on bills filed to date, interim charges and recommendations made by the Texas Commission on Environmental Quality (TCEQ), environmental initiatives to be considered are expected to address, among others, the following subjects:

  • Hurricane Harvey and related issues. Issues involving Hurricane Harvey, the Category 4 hurricane which dealt a devastating blow to the Texas coast in 2017, its financial impacts, response and recovery efforts and preparation for future events have been the subject of extended scrutiny by lawmakers and government officials. Last session, a number of wide-ranging interim charges were made to various Senate and House committees to study Harvey-related issues. These interim charges included the following:
    • Evaluation of water infrastructure projects that would help with flood mitigation;
    • Examination of communication mechanisms for flood warnings and inclement weather forecasting systems;
    • Review of best practices for ensuring environmental safety during maintenance, startup and shutdown activities due to emergencies;
    • Identification of options to expedite debris removal including eliminating unnecessary regulation and streamlining the process;
    • Evaluation of the interaction between federal, state and local agencies in charge of responding to natural disasters; and
    • Study of the response of public entities that own or operate dams to large-scale rain events.

Among the bills filed to date addressing flooding and disaster issues are House Bill (HB) 26 authored by Representative Will Metcalf relating to the creation of an alert system to notify affected persons of certain releases from certain dams, HB 34 by Representative Richard Peña Raymond relating to a statewide disaster alert system, HB 274 by Representative Sarah Davis relating to the creation of the disaster reinvestment and infrastructure planning revolving fund and Senate Bill (SB) 179 by Senator Borris L. Miles relating to the establishment of a task force to conduct a comprehensive study on flood control infrastructure for Harris County. In addition, Senator Charles Perry, the Chair of the Senate Committee on Agriculture, Water and Rural Affairs, has indicated that he will introduce legislation detailing the creation of a State Flood Plan, along with a funding component, to include measures to prevent and mitigate flooding and minimize the impact of a flood event.

  • The Texas Emissions Reduction Program (TERP), which was created in 2001 to provide voluntary monetary incentives to reduce harmful pollutants from mobile sources and help bring Texas into compliance with federal air quality standards, was the subject of House and Senate interim charges from the last legislative session. As background, the TERP program had been previously set to expire on August 31, 2019, but legislation enacted last session extended the program to the end of the biennium in which Texas attains the national ambient air quality standards for ground-level ozone. While authorization for the TERP program was extended, the TERP funding mechanisms were not. In addition, the fees collected to fund TERP, which include certificate of title fees, vehicle registration and inspection fees, and motor vehicle taxes, have significantly exceeded the amounts currently allocated to the TERP program, and the surplus has been used to certify the state’s budget. In its November 28, 2018, report in response to interim charges, the Senate Finance Committee recommended the following: (i) consideration of ways to maximize TERP appropriations to ensure compliance with the Federal Clean Air Act and to ensure that funding achieves its intended purpose; (ii) regular review by the Texas Legislature, in collaboration with the TCEQ, of individual TERP grant programs, their value and economic benefit to the state; and (iii) review of the current TERP fee structure.
  • Expedited and streamlined environmental permitting. The Senate Committee on Natural Resources and Economic Development has reported that the possible allocation of additional resources and/or provision of additional flexibility in administering the TCEQ’s expedited air permitting program may merit further review by the Texas legislature. In addition, the TCEQ’s legislative recommendations include three proposals aimed at streamlining and expediting the processing of permits. First, with regard to the expedited processing of air applications, the TCEQ has proposed certain changes to improve permit processing timeframes. Specifically, the TCEQ has recommended that the current statute be modified to make clear that the surcharge revenue associated with expedited air applications may be used for agency employees that process only expedited air applications during the work week and to provide for double overtime pay for time worked by employees over their regularly scheduled work hours. Second, with regard to uncontested water district matters, the TCEQ has proposed changes to allow the TCEQ’s Executive Director to approve uncontested water district dissolutions and district conversions without the necessity of a hearing before the TCEQ Commissioners. Third, with regard to certain water right permit amendment applications that have no impact on the environment or senior water rights, TCEQ has recommended exempting such applications from requirements regarding technical review, notice and hearing.
  • The solid waste permitting and compliance process. In its December 2018 Interim Report to the 86th Legislature, the Senate Committee on Natural Resources and Economic Development, which had been charged with studying the permitting and compliance processes for waste disposal and a review of the allocation of municipal solid waste fees, identified a number of issues that may merit additional oversight during this legislative session. These include modifying the current notice of deficiency process to separate out non-substantive application deficiencies, adjusting the statutory fund allocation of the municipal solid waste disposal fee and possible procedural improvements in the permitting process for municipal solid waste facilities located in a floodplain.
  • Groundwater and surface water issues. Issues related to the regulatory framework of groundwater conservation districts and river authorities were also the subject of interim charges. The Senate Committee on Agriculture, Water and Rural Affairs found that having a groundwater conservation district process that is similar across neighboring districts would be beneficial.

To date, more than a 1000 bills and resolutions have been filed for consideration by the Texas legislature. Thousands more will likely follow. While school finance and property taxes are expected to figure prominently in the issues to be tackled by the Texas legislature, it is plain that a number of environmental measures will merit monitoring as the legislative session unfolds over the next several months.

Last week, the US Environmental Protection Agency (EPA) and US Army Corps of Engineers (Corps) (together, the Agencies) issued a long-awaited proposal to redefine the “waters of the US” (WOTUS) subject to federal regulation and permitting requirements under the Clean Water Act (CWA). The reach of the CWA is notoriously unclear, but knowing which areas on your property are jurisdictional and will require permits is critical to project planning and timelines. If finalized, the proposed rule would replace the Obama administration’s contentious 2015 WOTUS Rule and eliminate the regulatory patchwork that currently exists as the 2015 WOTUS Rule is being implemented in only certain parts of the country. Continue Reading EPA and Corps Release Long-Awaited Proposal to Redefine WOTUS

Responding to an EPA collection request can be costly, time consuming and stressful for the target of the request—especially because failure to submit a timely and accurate response can result in significant civil or criminal penalties. On November 21, EPA’s Office of Water (OW) and Office of Civil Enforcement (OCE) issued new policies that, if followed, promise to make the process more reasoned and less burdensome. Continue Reading New EPA Guidance Aims to Reduce Burdens, Increase Collaboration of Information Collection Process

With produced water volumes on the rise as a result of the growth in oil and natural gas production and various areas of the country experiencing water scarcity, states and stakeholders are increasingly looking for ways to reuse, recycle and beneficially use waters originating from the oil and gas industry. Two recent initiatives are likely to significantly advance policy decisions related to produced water management. Continue Reading National Dialogue on Oil and Gas Extraction Wastes Gathering Momentum

For decades, the precise scope of the Clean Water Act’s point source permitting program has been the subject of much controversy.  Over the past several years, the question of whether that program—known as the National Pollution Discharge Elimination System (“NPDES”)—regulates discharges to groundwater that is hydrologically connected to surface water has produced a number of conflicting decisions and a torrent of commentary and public debate.  The Fourth and Ninth Circuits recently concluded that the NPDES program regulates such discharges under certain circumstances, while the Sixth Circuit reached the opposite conclusion, setting up potential review of the issue in the United States Supreme Court.  See Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018); Haw. Wildlife Fund v. Cty. of Maui, 886 F.3d 737 (9th Cir. 2018); Ky. Waterways All. v. Ky. Utils. Co., No. 18-5115, 2018 WL 4559315 (6th Cir. Sept. 24, 2018); Tenn. Clean Water Network v. Tenn. Valley Auth., No. 17-6155, 2018 WL 4559103 (6th Cir. Sept. 24, 2018).

Continue Reading New Lawsuit Seeks to Expand the Reach of the Clean Water Act to Air Emissions

Continuing its vanguard approach to environmental regulation, California is poised to incorporate Total Maximum Daily Load (TMDL)-specific requirements into its industrial storm water general permit (IGP). TMDLs are pollutant- and water body-specific and establish the maximum amount of a pollutant a water body can receive while meeting water quality standards. Once effective, these new requirements will provide additional avenues of attack for the already active Clean Water Act citizen suit docket. Continue Reading TMDL Limits Are Coming To California’s Industrial Storm Water General Permit

The U.S. Court of Appeals for the Second Circuit in July issued a long-awaited decision in the case Cooling Water Intake Structure Coalition v. U.S. Environmental Protection Agency (EPA), upholding the EPA’s 2014 Rule establishing requirements pursuant to Clean Water Act (CWA) section 316(b) for cooling water intake structures (CWIS) at existing facilities. The court also upheld the biological opinion (BO) and incidental take statement (ITS) issued by the U.S. Fish and Wildlife Service and National Marine Fisheries Service (the Services) on the 2014 Rule.

The Second Circuit’s decision upholding the rule offers EPA a key victory and provides larger steam-electric power plants and manufacturing facilities more certainty regarding regulatory requirements they must satisfy to obtain a National Pollutant Discharge Elimination System (NPDES) permit under the CWA.

Click here to view the entire article, originally published in the October 2018 edition of POWER Magazine. © 2018 POWER Magazine. All rights reserved.

 

This summer, California’s State Water Resources Control Board (State Water Board) adopted amendments to the Underground Storage Tank (UST) Regulations (California Code of Regulations, title 23, division 3, chapter 16). The new regulations, which become effective on October 1, 2018, impose new design and construction, upgrading, monitoring, notification, testing, inspection, recordkeeping, training and reporting requirements on UST owners and operators in California. The State Water Board’s purpose in amending these regulations was essentially two-fold: (1) to effectively make the California UST regulations just as stringent, and consistent with, the federal UST regulations (part 280 of 40 Code of Federal Regulations); and (2) to reduce the risk of groundwater contamination resulting from UST releases. Continue Reading California State Water Board Amends Underground Storage Tank Regulations to “Reconcile” Requirements with Federal Law

As a former regulator (both as an inspector and an attorney, ensuring compliance and enforcing violations) in the environmental law enforcement space, I read EPA Assistant Administrator Susan Parker Bodine’s recent memorandum entitled Transition from National Enforcement Initiatives to National Compliance Initiatives with great interest. Having numerous facility inspections and enforcement settlements under my belt, I have seen firsthand the interplay between compliance and enforcement. To be sure, the threat of enforcement and the deterrence factor associated with resolving an enforcement action are powerful tools. But, if the end goal is compliance with environmental laws, does the road leading there have to be so scary for the regulated community? Whereas many regulated parties commonly see EPA and other environmental agencies as enforcement machines, this proposed transition to a more compliance-oriented approach may be not only a welcome change, but also an appropriate one that will actually improve compliance. After all, Ms. Bodine’s office is entitled the Office of Enforcement and Compliance Assurance (OECA). Isn’t it a good idea to have an equal focus on helping with compliance and on enforcement? And isn’t the point to maximize compliance? Shouldn’t OECA be striving for a world in which its “enforcement” arm goes out of business because it has “assured compliance?” That may be too much for the regulated community to hope for, but the notion of “compliance” initiatives over “enforcement” initiatives is not a bad way to start. Continue Reading EPA Announces Shift from National Enforcement Initiatives to National Compliance Initiatives