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SWM-PS 980508Vol. 2, No. 6 May 8, 1998 Remlatory Review 603 W. 13th St., #1A -420 Austin, Tx 78701 -1796 Tele. (512) 708 -8183 Newsletter of the Texas Environmental Equity Alliance Fax (512) 708 -8165 THE CLEAN WATER INITIATIVE What would we do without the Federal Government ? Most local government officials remember when partnerships with the Fed and even State government could and would provide dividends. Back during the days of excessive grant programs, there seemed to be good relations. Federal assistance has been gone a long time. Back in the 70's and early 80's we did not fuss too much about federal or state mandates, because typically, there was funding assistance and to some degree local governments could have their cake and a little bit to eat. So, we did not think much about mandates or other initiatives at that time. In fact, when yours truly assisted Congressman Jim Wright's staff with public hearings on the 1972 Clean Water Act reau- CONTENTS Urban Stormwater ................ ..............................3 Containing Cynicism ............ ..............................3 Phantom Legislature ............. ..............................3 HB 1, Rider, Section 167 ....... ..............................4 TNRCC Executive Director ... ..............................4 thorization in and around that time, I was quite naive to the conse- quences of such a major federal program. However, naivete was easy when you could tell everyone how much money Congress had appropriated for the CWA. It seems that we were lulled into being a willing partner of accepting the carrots without really fully under- standing the consequences. By ac- cepting those EPA construction grants, the states and local govern- ments became a willing partner to Congress and the EPA's substance abuse handouts. When we were weaned of that drug, it became quite a downer. Despite the fact that most of the grants were a matching grant, they still provided enough assistance that rate shock was not a factor like it is today. As the federal money dried up, the mandates increased. What we did not know then, and have just now recently been made aware of, is the Supreme Court of the United States has ruled that the Federal Government is violating the 10th Amendment to the Con- stitution when they compel a city or state to carry out Federal regu- latory programs. I think we all re- alize there is a double -edged sword to that argument. This raises a lot of questions on issues such as the Clean Water Act, Safe Drinking WaterAct, RCRA, CleanAirAct, etc. Regardless how this argument plays out over the next several years, do not forget that the State Legislature has taken care to ensure that the environment of Texas will be safeguarded by the state statutes that mirror federal law. Read Chapters 26, 27 and 28 of the state's Natural Resources Code and you will see what we mean. Notwithstanding the fact that there are serious questions regard- ing what the Fed can or cannot do does not diminish their desire to continue to mandate more and more regulations. This past Febru- ary Vice President Gore directed the EPA to develop an Action Plan to improve and strengthen water pollution control efforts across the country. The plan will focus on three goals: (1) enhanced protec- tion from public health threats posed by water pollution, (2) more effective control measures for pol- luted runoff, (3) promotion of wa- ter quality protection on a water- shed basis. Much of the Action Plan encompasses existing regulatory programs at EPA, though they ac- celerate some of them and propose more funding for others. The Ac- tion Plan is broken down into eight areas. 2 Regulatory Review Protecting Public Health- Reduc- tion of contaminates found in fish and shellfish. Calls for a national survey of contaminants in fish and shellfish by the year 2000, and it also calls for new water quality cri- teria and state standards to ensure that beaches are safe. Controlling polluted runoff- De- velop water quality criteria for ni- trogen and phosphorous associated with runoff by the year 2000. Cri- teria will help states set site -spe- cific standards to control nutrient loadings to lakes and rivers. Incentives for private land stew- ardship- Plan calls for increased incentives and assistance to help farmers control polluted runoff and encourage conservation of critical private lands. New Resources for Watersheds - Plan calls for joint efforts with states, local communities, and tribes to identify watersheds that are not meeting clean water goals and to set restoration priorities. Restoring and protecting wet- lands- The Plan calls for a coordi- nated strategy to achieve a net gain of as many as 100,000 acres of wet- lands annually by the year 2005. Protecting coastal waters- The Plan calls for a coordinated re- sponse to support state and local efforts during events such as out- breaks of harmful algael blooms. Expanding citizens' right to know- This Plan calls for several actions to increase citizen's under- standing of the health of their wa- terways. Specifically, point source dischargers must provide standard- ized reporting and monitoring of pollution discharge information to support watershed planning. And, it also calls for a national report that will identify gaps in the monitor- ing and assessment of sources and impacts of polluted runoff. Enhanced federal stewardship - This part of the plan will require that the federal government be re- sponsible as a private landowner in protecting water quality and eco- systems on federal lands. This is a summary of the Ad- ministration Clean Water Initia- tives. In reality, there is nothing here that was truly not already be- ing discussed or even put into ac. tion by the EPA. The one excep- tion is the federal government, and particularly the EPA, discuss en- vironmental regulation in terms of a public health issues. We have noted in the past that the EPA has been criticized by Congress for try- ing to sell themselves as a public health agency. In addition they are working very hard to bring more citizen participation to the process. The same holds true for the TNRCC. Increased citizen partici- pation, coupled with the fact that these agencies now characterize themselves as public health agen- cies, create new problems for the regulated community. The administration's Clean Water Initiative is not any differ- ent than what the EPA is already May 8, 1998 doing except for one thing. If ap- proved by Congress, it will con- tinue to provide substance abuse like the old days of construction grants. In the President's 1999 bud- get, they are requesting 2.2 billion dollars for the CWI. This is a 35% increase over 1998's funding re- quest for funding of clean water and watershed restorations. They propose $115 million dollars for state grants for nonpoint source pollution, and $100 million for as- sistance to farmers for land man- agement practices. With those amounts constituting the larger amounts, the remaining monies will be divided amongst a variety of Clean Water Initiatives that would include agencies such as NOAA, Forest Service, Corps of Engineers, U.S. Geological, Fish and Wildlife, Office of Surface Mining, and USDA. While the Ad- ministration initiative is proposing a 35% increase in clean water, it also takes funds away from Drink- ing Water treatment construction and Wastewater treatment con- struction. There is no single forum in Congress, either authorizing or ap- propriating committee, where the entire Initiative will be debated. Multiple authorizing committees have jurisdiction over the depart- ments, agencies and programs in the Initiative. By structuring the Initiative this way, it will make it difficult for Congress to trade amounts from the different agen- cies and programs as is typical when this form of pork barrel fund- ing is proposed. There is already a large amount of funding earmarked 3 Regulatory Review for special projects like the Florida Everglades and the San Francisco Bay Delta program. Will the money go very far in assisting local gov- ernments in Texas? We are very doubtful. In fact, if approved by Congress, it could reduce Revolv- ing Fund programs for Drinking Water and Wastewater. More later. URBAN STORMWATER "Mama, can I ride my bicycle to the mall this weekend with Johnny and go to the matinee ?" "Ask your father." "Daddy, can I ride my bicycle to the mall this weekend with Johnny and go to the matinee ?" "Ask your mother." This may be a peculiar example, but yes, most of you have been there. Mama does not want to ap- prove it without Daddy's O.K. and vice - versa. This is kind of like "Do we do it like the TNRCC wants us to or like the EPA prefers" If del- egation comes along in the next several months, as TNRCC antici- pates, how will that affect Stormwater Phase 2 and for that matter Phase 1 ? That question was posed to those at the puzzle palace just recently by TEEA and here is the current take on that subject. Yes, the TNRCC fully expects to take Stormwater Permitting for Phase 1 and 2. All things being equal, the EPA has projected to have Phase 2 rules in place by the spring of 1999. TNRCC hopes to gradually phase the program in sometime after the spring of 1999. Phase 1 programs will be taken over after the original Phase 1 per- mit expires. Will we still have to have permission from both parents ? The state's never operated under delegation yet. Only time will tell on the degree of freedom that TNRCC has to operate delegated programs. The final run at delega- tion was passed in the 73rd Legis- lature. I am glad we didn't hold our breath. CONTAINING CYNICISM All of our members know us as an objective, straight- forward organization. Therefore we are proud to report to you the results of the TNRCC's "How we are do- ing survey ". We reported on this venture several months ago and now the results have been tabu- lated. If you recall, this was a TNRCC customer satisfaction sur- vey. First, let's see if we understand the word customer as TNRCC understands it. We somehow find choice as perhaps a byproduct or synonym or whatever, in terms of the meaning of the word customer. Perhaps "Customer Survey" is a little strong in describing the regu- lated community. Nevertheless, TNRCC reports that they mailed 8,700 surveys between November 1997 and February 1998 with a postage paid return envelope. They received 1,300 back or around lb %. Anything over 10 percent is thought to be an adequate survey. The survey asked respondents to rate the TNRCC in 10 Categories. The rankings were 1 to 5, with 5 being excellent and 1 being poor. May 8, 1998 The composite score for the ten cat- egories are Professionalism 4.4, Knowledge 4.3, Clarity of Com- munications 4.2, Timeliness 4.4, Responsiveness 4.2, Telephones answered promptly 4.3, Call re- turned in timely fashion 4.3, TNRCC rules easy to understand 3.4 and the final one TNRCC ma- terials easy to understand 3.8. Noting that Five was the top score, the TNRCC had a respectable score in terms of the questions asked. We could have thought of some more descriptive questions in terms of really getting at the intent of the legislation that placed this require- ment on the TNRCC. Which, inci- dentally was H.B. 1, the Appropria- tions Bill. And some how, consid- ering the dialogue from that com- mittee, to the TNRCC, we'would suspect that the intent of that leg- islation was not met by the ques- tions crafted by the TNRCC. PHANTOM LEGISLATURE Because of the authority and power delegated to the Executive Branch of state government, the agencies are often referred to as the "Phantom Legislature." This is because most of the agency staffs have their own agendas. However, TEEA and others are now a signifi- cant roadblock for those agendas. Subsequently, the environmental- ists that work for the TNRCC, Parks and Wildlife and other simi- lar agencies now have a local chap- ter of the National Public Em- ployees for Environmental Re- sponsibility, they now have a field 4 Regulatory Review office in Austin and are encourag- ing state employees to join the or- ganization. The local chapter, called PEER, or Public Employ- ees for Environmental Responsi- bility is currently recruiting mem- bers. The purpose of the organiza- tion is to focus attention on con- troversial agency decisions. PEER members are instructed to contact PEER regarding bad agency deci- sions or when Commissioners or upper management do not allow them to " do their job protecting the environment ". Scotty Royder, a lobbyist for the Sierra Club, has been named director of the Austin office. Royder said the organiza- tion would accept anonymous re- ports from agency employees and in some cases represent employees in legal proceedings at no cost to the employees. What will they think of next? We have said time and time again -they have their own agenda. HB 1, RIDER SECTION 167 Those that religiously read REGULATORY REVIEW , recall the pride that we had when we re- ported that the Appropriations Act, HB 1 had a rider that contained el- ements of HB 835, a bill by Rep- resentative Rob Junell of San Angelo. Representative Junell is also Chairman of the House Appro- priations Committee. HB 835 was a simple little bill that required all agencies to review and re -adopt all of their rules within the next four years. The re- adoption process would have to follow the Admin- istrative Procedures Act just like it was a new rule. Quite a bit of work for a lot of agencies. Well, the bill was never called up in House State Affairs Committee. And consider- ing the Chairman of State Affairs, that is no surprise. However, Chair- man Junell, being the resourceful elected official he is and Chairman of House Appropriations Commit- tee, just added the little booger to HB 1, the Appropriations Act. The rider requires every state agency that is funded by the Appropria- tions Act to review and consider for readoption each rule previously adopted by the agency pursuant to Chapter 2001, Government Code. The reviews at a minimum, an as- sessment by the agency as to whether the reason for adopting or readopting the rule continues to exist. Such reviews shall be con- ducted no later than four years af- ter a rule becomes final and no later than four years after a rule is re- adopted by an agency. Before the agencies begin this process they must file with the Texas Register a notice of intention to review. The notice of the intention shall include the Texas Administrative Code ci- tation to the rule to be reviewed. All rules that became final prior to September 1, 1997 must have a re- view not later than August 31, 2001. And all agencies must pub- lish their plans for review by Au- gust 31, 1998. So far, 26 state agencies have published their plans. The TNRCC has yet to do so. However, they have identified 3,794 rules in 83 chapters that they must develop a plan for by the end of August. They May 8, 1998 are not happy campers about this little project. By the fact that the review has to be conducted in ac- cordance with the Administrative Procedures Act means the process will be the same as if they are adopting a new rule. The process should prove interesting, especially considering that they will have to have hearings and public comment prior to readoption. TNRCC EXECUTIVE DIRECTOR By now most of our members are aware that Dan Pearson, Execu- tive Director of the TNRCC will be leaving that position in early June. Dan will be going to work in Governmental Relations here in Austin. Of all of the Executive Di- rector that we have dealt with, Dan Pearson, by far, has been head and shoulders better than anything that has held that position. By better, we mean he has tried to develop bet- ter relationships with the regulated community, he has been very ac- cessible and sincere in his desire to try to work out problems. Dur- ing his short tenure he has tried to manage an agency that in our opin- ion is un- manageable, yet he prob- ably did better than anybody. The agency is advertising the position and we suspect the job will be filled sometime in late summer. Happy Memorial Day May 25, 1998