I am here today to voice our concerns with the EPA proposed Storm Water Phase II rules and to explain why this is not a manageable rule. Although I am from Texas, this is not solely a Texas problem. Counties in your home states will also be severely impacted by these rules.
As you are aware EPA, initially proposed Phase II in January 1998 to regulate two types of storm water discharges: (1) those from small municipal separate storm sewer systems and (2) those associated with construction activities that disturb between one and five acres of land.
The EPA has made population the basis for the Phase II regulatory scheme, which means that"urbanized" areas (as defined by the census) will be covered by the rule whether or not they present any water quality concerns. In the proposed rules EPA automatically identifies 38 counties in Texas as owners and operators of small municipal separate storm sewer systems (MS4s) based on this population definition. We anticipate that 10 more counties, in Texas, will meet the "urbanized" definition after the 2000 census. Several of these counties are in West Texas, which is very arid and receives little precipitation. However, because the rule is based on population and not water quality, these arid counties will be required to administer the same type of program as those entities which might truly have water quality impairments.
In these approximately 48 Texas counties, roadside vegetated ditches will be considered MS4s under EPA's current definitions. Counties and cities with identified MS4s will be required to enact ordinances and enforce those ordinances to comply with the six minimum control measures, required for MS4s entities. Counties in Texas as well in many other states lack the authority to enact these ordinances and implement all of the regulatory requirements that Phase II requires. Further, these vegetated ditches serve as a natural treatment system and should not be considered an MS4.
The proposed rule does provide for co-permitting among entities. In Texas we can see this as a real advantage. Since the "urbanized" area is not the entire county, but a donut around the city, co-permitting could be advantageous to the city and the county. The city in many areas has the capability to meet all the necessary permit requirements and therefore, the county, which does not, would be interested in co-permitting. The problem with the proposed rule is that liability for noncompliance remains with all entities. For example, if a county contracts with the city to co-permit and the city obtains the permit and has agreed to comply with all necessary Best Management Practices requirements, but the city fails to do so, the liability remains with both the city and the county. In this instance the county relied on the city to administer the program, but could be subjected to fines and penalties along with the city.
All 254 counties in Texas as well as counties in other states with the responsibility of road construction and maintenance of county roads will be impacted by the construction provision of the rule. As the rule is proposed counties would be required to obtain permits for a multitude of core county activities, such as routine road maintenance, drainage ditch clearance, and pothole repair. In Texas alone there are thousands of county road miles. An acre threshold is not very large and would include almost every county road project. Many of these roads are gravel roads and again many of these counties are located in arid areas of the state Mat receive little rain. They would be required to obtain the permits and comply with the requirements regardless of the water quality impacts.
Senator Hutchison has filed legislation, which addresses many of our concerns. S. 1706 would:
1) Exclude from consideration as regulated MS4s, the thousands of miles of vegetated county road ditches which already serve as a natural treatment system and should not be covered by the Clean Water Act;
2) eliminate permitting of construction sites less than five acres; EPA chose the five acre threshold for permitting under the Phase I regulation.
3) exclude routine road maintenance from being considered as a construction activity;
4) protect counties from liability for not complying with Phase II regulations that require actions exceeding the authority vested in counties under State law. (Many counties across the nation do not have ordinance making or enforcement authority); and
5) enhance the ability of counties to rely on another governmental entity's implementation of MS4 measures by protecting counties from liability if the implementing entity fails to comply with Phase II.
As a local elected official I know better than most that clean water is a precious commodity. Clean Water is the key to a successful community and that is why congress in its wisdom passed the Clean Water Act. However, we believe that this proposed rule goes well beyond the Act and is not aimed at truly improving water quality. If it was, then it would be based on areas -with water quality problems, instead of being based on population thresholds. The EPA has opted to paint with a broad brush and in loose language that assumes that everyone is the same. Everyone is not the same. Cities and counties across the nation have different regulatory and statutory authorities.
I am certain there are areas of the country that have severe water quality problems. Accordingly, those areas should be singled out with a proven solution to address those problems. We believe that these rules are based largely on assumptions. The rule assumes that if you have a population of 50,000 you must have water quality problems; it assumes that if you are involved in a construction activity of one acre you must be contributing to water quality problems. These assumptions are evident because EPA is issuing a Phase II rule without ever analyzing the Phase I data. The Phase I rule was issued in the early 1990's and applied to large cities of 100,000 or more as well as large industrial sites. Was Phase I program successful in improving water quality? This question has not been answered with any proven data other than the assumption that if you have a program it must work.
Senator Hutchison's bill takes a- logical approach at correcting the broad brush approach. We believe that if this legislation is passed, it will help local governments throughout the nation. This is an opportunity for Congress to make clear to EPA the intent of the Clean Water Act and to further the goal of cleaning up our water.
Again, I thank you for this opportunity and will be glad to answer any questions.