During the past few decades, the spotlight in the Houston-Galveston area has largely been on the region’s air pollution problems. Many are familiar enough with the issues to know that the Gulf Coast Region has long been struggling to meet the federal National Ambient Air Quality Standard for ozone. Something similar and equally of consequence is going on with respect to water quality, and it is about to be brought to the forefront as the impact to the region becomes more widely known.

In a nutshell, an urban area known for its many meandering bayous and streams is faced with polluted waters that have bacteria levels beyond what Texas considers safe for recreational activities such as swimming. Mandated by the Federal Clean Water Act (CWA),1 Texas’s environmental agency is tasked with tackling this problem. To date, agency studies and reports indicate that there will be a need for large bacteria reductions from area sources to achieve the state’s water quality standards.

But like the ozone problem, it is a complex issue and there is no easy fix. However, what is known is that there will be some very real legal, fiscal, and social impacts on local governments, businesses, and the area’s residents.

 

Backdrop of the Federal Clean Water Act: A Few Basics

The CWA was enacted with the objective “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”2 To meet this directive, the CWA limits the discharge of pollutants from “point sources” through the National Pollutant Discharge Elimination System (NPDES) permitting program by requiring technology-based effluent limitations on discharges from industrial and municipal wastewater treatment plants.3

Following the 1987 CWA amendments, the regulatory program was expanded to include a two-step approach for stormwater discharges.4 Phase I introduced permit requirements for stormwater discharges from large and medium municipal separate storm sewer systems (MS4), large construction activities (five acres or greater), and industrial activities.5 This brought into the regulatory scope entities such as Harris County, City of Houston, Harris County Flood Control District, and the Texas Department of Transportation, which now jointly hold an MS4 permit.6

In 1999, Phase II included permit requirements for small MS4s serving populations of less than 100,000 within urbanized areas as defined by the most recent U.S. census and certain other non-urban systems, and for stormwater discharges from construction sites that disturb one to five acres.7 The effects of this program have recently begun to be felt in this state with the issuance of a general permit for small MS4s.8

This combined NPDES program regulating stormwater and wastewater discharges was delegated to Texas in 1998 and now the Texas Commission on Environmental Quality (TCEQ) administers the Texas Pollutant Discharge Elimination System (TPDES) program.9

Alongside the permitting scheme, the Federal Water Pollution Control Amendments of 1972 also require states to set ambient water quality standards for all water bodies and to develop plans to achieve those standards.10 This water quality-based approach links into the permitting program through the CWA requirement that when existing technology-based effluent controls required under NPDES have failed to sufficiently restore the impaired waters, each state must identify and rank its impaired waterways that do not meet the state’s established water quality standards for the pollutant of concern.11

Impaired waters are placed on what is known as the “303(d) List,” and based on an EPA-approved schedule, the state is required to develop technical analyses known as Total Maximum Daily Loads (TMDLs) for each impaired water segment.12 Using data collection and complex modeling, the state first identifies point and non-point sources of the identified pollutant into a particular impaired water body, then allocates among those sources the amount of pollutant each source contributes and ultimately determines the total amount of the pollutant the water body can receive on a daily basis without exceeding the state’s water quality standards.13

The TMDL has to be approved by the Environmental Protection Agency (EPA) and the state must incorporate the TMDL into the state’s Water Quality Management Plan.14 If the EPA finds a particular TMDL to be inadequate, the EPA can always disapprove the state submission and establish its own TMDL.15 Once a TMDL is adopted, point sources in the area with NPDES permits relating to a pollutant of concern must contain effluent limits and compliance schedules consistent with the requirements found in the TMDL.16

 

The Texas Two-Step

The TCEQ follows the CWA closely, but the program has evolved with distinct Lone Star State flavoring, with added emphasis on stakeholder participation and input.17 For instance, the TMDL analysis and calculations are required to go through the EPA for approval but once that is done, the TCEQ is entrusted with the second step to implement the pollution reduction called for by the TMDL without additional program approval from the EPA.18

The TMDL that is approved by the EPA may contain estimates of how much the pollutant load must be reduced from current levels for each source in order to achieve water quality standards. But the TCEQ’s TMDL submittals do not describe how those reductions will be achieved; rather, that step occurs through the development of a TMDL Implementation Plan (I-Plan) with robust input from stakeholders.19 The EPA, however, retains some backdoor authority because many TPDES permits require review and approval by the federal agency.20 This can be one mechanism through which the EPA can flex its muscles if it is not satisfied with the way the state is achieving reductions required by a TMDL.

 

The Problem at Hand

To put all of this into context, most of the region’s water bodies are designated for recreational activity uses “involving a significant risk of ingestion of water, including wading by children, swimming, water skiing, diving, and surfing.”21 Bacteria are the indicator species selected to measure whether the water quality is safe enough for contact recreation use. While there are many types of bacteria, the ones chosen by the TCEQ based on EPA guidance are Escherichia Coli (E. coli) and Enterococci depending on whether the water body is defined as fresh water or salt water.22 These specific types of bacteria were chosen because although not generally pathogenic, they are found in the wastes of warm-blooded animals and their presence in the water indicates potential fecal contamination.23

For fresh water, the bacteria standard is the geometric mean of 126 colony forming units (cfu) of bacteria per 100 milliliters (ml) of water based on several samples or for single samples, 394 cfu per 100 ml.24 Simply put, the regulatory agency assumes that if the level of E. coli in a fresh water body exceeds this standard, it may be possible to swim in waters without adverse effects but “the probability of becoming ill is higher than it would be if bacteria levels were lower.”25

In the Houston-Galveston region, many of the water bodies designated for contact recreation exceed this state standard.26 The actual monitoring data indicates that elevated levels of bacteria are widespread and in many instances greatly exceed the bacteria limit.27 Some of the exceedances can average as much as 12,983 cfu per 100 ml of water in the Buffalo Bayou Tidal Watershed making it 103 times higher than the standard.28 The list of culprits includes usual suspects such as runoff from stormwater, wastewater treatment plant discharges, sanitary sewer overflows, and failing on-site sewage facilities.29 Among the more colorful offenders are unsuspecting waterfowl, animal wildlife, and domestic pets.30

Since 2002, the TCEQ has redoubled its efforts to roll out the pending TMDLs, including the bacteria TMDLs. The TCEQ has grouped the area’s bacteria impaired watersheds into four projects: 1) Clear Creek and its tributaries; 2) Buffalo and White Oak Bayous and their tributaries; 3) Lake Houston; and 4) Houston Metropolitan Area comprising Brays, Greens, Halls, Hunting, Sims Bayous, and certain unclassified segments draining into the tidal Houston Ship Channel.31 These impaired watersheds cover most of Harris County with portions located in Brazoria, Fort Bend, Galveston, Grimes, Montgomery, Liberty, San Jacinto, Walker, and Waller Counties and together are composed of 68 stream segments32 that traverse approximately 1,524 miles.33

The four TMDL projects are on varying timelines for completion with the Clear Creek TMDL recently adopted by the TCEQ in September 2008, and awaiting EPA approval. The Buffalo and White Oak Bayous TMDLs have been proposed for public comment. The remaining area TMDLs are in the process of being developed over the next few years. Regardless of these timeframes, what is known from state reports completed so far is that these TMDLs will require hefty pollution reductions of greater than 95 percent from both permitted and non-permitted sources.34

And how will these reductions come about? TCEQ has initiated an effort with the help of the Houston-Galveston Area Council (H-GAC) to create a stakeholder-led group known as the Bacteria Implementation Group.35 By 2010, this group is tasked with coming up with an area-wide I-Plan that will identify the required and voluntary implementation actions necessary to achieve the reduced pollutant loading goals of the TMDLs.36 Targeted measures could require more stringent numeric effluent limits for most domestic wastewater treatment plant dischargers.37 The EPA already has set the tone on this subject by emphasizing the need for the TCEQ to develop bacteria limits and representative monitoring for all domestic wastewater permits.38 As the EPA has pointed out, Texas is the only state without standard bacteria effluent limits and monitoring requirements in its permits, and that needs to change.39

For TPDES-regulated stormwater discharges, there is potential room for flexibility. EPA guidance recognizes that “storm water discharges are due to storm events that are highly variable” and “not easily characterized,” and that associated “effluent limits should be expressed as best management practices (BMPs) or other similar requirements rather than as numeric limitations.”40 Key players such as Harris County and Harris County Flood Control District have already undertaken efforts in this area by adopting a bacteria reduction plan for stormwater discharges.41 In the future, the region can expect to see additional monitoring requirements to track changes in water quality, phased permitting requirements, increased focus on public education and pollution prevention, and possibly watershed-specific legislation and rulemaking.

Another issue that throws a wrench into the process is that the TCEQ is currently in the process of amending its contact recreation standard and is likely to increase the bacteria “speed limit.”42 A very likely scenario is that the TCEQ will hold off on adopting the Buffalo and White Oak TMDLs and other area TMDLs until these standards are revised. A change in the standards could also potentially have an impact on the extent of reductions in pollution that are needed for compliance.

And even if all the implementation efforts are embarked upon, many stakeholders feel that requiring such large pollution reductions is not attainable; particularly given that bacteria is a living organism prone to flourish in this region’s sub-tropical humid climate, and that there is a limited understanding of how these natural conditions, coupled with the ever-present nutrients in the waters, play a role in the growth-regrowth cycle of bacteria.43

The Water Environment Association of Texas also points out that while the proposed TMDLs are designed to meet the contact recreation standard that presumes swimming with a large risk of water ingestion, census studies have found that “even at riparian parks during favorable weather conditions, there are no swimmers in White Oak or Buffalo Bayous.”44 The question that is frequently brought up is whether the area’s resources are being unnecessarily directed to carry out cleanup efforts to bring the water to a safe swimmable level when the current and future uses of these water bodies indicate otherwise.

 

What the Future Holds

There are, of course, no simple solutions. If there is something we can learn from the ozone pollution strategies, it is that the path toward achieving better water quality in the bayous is likely to be long and drawn out with calls for steep reductions in bacteria pollution tempered by social and economic realities. As the struggle begins to improve water quality in the bayous, we can contemplate the resolute steel boat sculptures scattered along downtown Buffalo Bayou with their lofty but apt etchings reminding us that “water is the most faithful mirror of voices.”45

 

Snehal R. Patel is a Senior Assistant County Attorney in the Harris County Attorney’s Office where she represents Harris County and Harris County Flood Control District in environmental matters including regulatory compliance, permitting, and enforcement issues. Patel is a 1997 JD/M.P.Aff. graduate of the University of Texas School of Law and LBJ School of Public Affairs.

 

Endnotes

1. 33 U.S.C. §§ 1251-1387.   2.Id. § 1251(a).   3.See 33 U.S.C. §§ 1311, 1312, 1314(b), 1342, 1362 (11)-(12), (14).   4.Id. § 1342(p)(2); 55 Fed. Reg. 47,990 (Nov. 16, 1990); 64 Fed. Reg. 68,722 (Dec. 8, 1999).   5. 33 U.S.C. § 1342(p)(2); 55 Fed. Reg. 47,990.   6. NPDES Permit No. TXS001201; Proposed TPDES Permit No. WQ0004685000.   7. 64 Fed. Reg. 68,722.   8.See TCEQ General Permit TXR040000 Relating to Storm Water Discharges Associated with Small Municipal Separate Storm Sewer Systems (Aug. 13, 2007).   9. Memorandum of Agreement Between the Texas Natural Resource Conservation Commission [now re-named TCEQ] and the U.S. Environmental Protection Agency, Region 6, Concerning the National Pollutant Discharge Elimination (Sept. 14, 1998) [hereinafter TPDES MOA].   10. 33 U.S.C. § 1313.  11.Id. § 1313(d)(1)(A).   12.Id. § 1313(d)(1)(C).   13. See id. § 1313(d)(1)(D).   14.Id. § 1313(d)(2).   15.Id.   16.See Memorandum from Robert H. Wayland, III, Director, Office of Wetlands, Oceans and Watersheds, & James H. Hanlon, Director, Office of Wastewater Management, EPA, to Water Division Directors, EPA Regions 1 – 10, (Nov. 22, 2002) [hereinafter Wayland Memorandum] (citing 40 C.F.R. § 122.444(d)(1)(vii)(B)), available at http://www.epa.gov/npdes/pubs/final-wwtmdl.pdf.   17.See generally TCEQ, Preserving and Improving Water Quality (2006), available at http://www.tceq.state.tx.us/files/gi-351.pdf_4234276.pdf.   18.Id. at 20.   19.Id. at 20-23.   20. See TPDES MOA, supra note 9, at 24-28.    21. 30 Tex. Admin. Code § 307.3(a)(12). The Houston Ship Channel is one of the few water bodies not assigned for contact recreation use because of safety reasons due to heavy ship and barge traffic. Id. § 307.7(b)(1), 307.10.    22.Id. §§ 307.3(a)(24), (43), 307.7(b)(1)(A), (B); see also 25 Tex. Reg. 7,722 (Aug. 11, 2000).   23. 30 Tex. Admin. Code § 307.7(b)(1).   24.Id. § 307.7(b)(1)(A)(i).   25.TCEQ, Texas Surface Water Quality: What is it, and How is it Measured? (2005), available at http://www.tceq.state.tx.us/assets/public/implementation/water/tmdl/whatisquality05.pdf. The standard assumes a risk level of 0.8% (i.e., 8 illnesses per 1000 swimmers). See EPA, Ambient Water Quality Criteria for Bacteria (1986), available at http://www.epa.gov/waterscience/beaches/files/1986crit.pdf.   26.TCEQ, 2008 Texas 303(d) List (2008), available at http://www.tceq.state.tx.us/assets/public/compliance/monops/water/08twqi/2008_303d.pdf.   27.See generally TCEQ, Nine Total Maximum Daily Loads for Bacteria in Clear Creek and Tributaries (adopted Sept. 10, 2008) [hereinafter Adopted Clear Creek TMDL]; TCEQ, Eighteen Total Maximum Daily Loads for Bacteria in Buffalo and White [O]ak Bayous and Tributaries (proposed for public comment May, 2008) [hereinafter Proposed Buffalo and White Oak TMDLs].   28.Proposed Buffalo and White Oak TMDLs, supra note 27, at 8-9 (based on the geometric mean of several samples).   29.See, e.g., Adopted Clear Creek TMDL,supra note 27, at 17-27.   30.See id. at 27-30.   31.See id. at 57; see TCEQ, TMDL Projects for Bacteria in Waters Used for Contact Recreation, available at http://www.tceq.state.tx.us/implementation/water/tmdl/nav/parameters/bacteria_recreation.html (Aside from these four main projects which are being handled through one implementation process, there are also other TMDLs being currently developed in area watersheds such as Dickenson Bayou with separate implementation plans).   32.See, e.g., Adopted Clear Creek TMDL, supra note 27, at 57.   33. H-GAC, Clean Rivers Program, Geographic Information System (data accessed on Oct. 8, 2008).   34.See Proposed Buffalo and White Oak TMDLs, supra note 27, at 3, 95.   35. Bacteria Implementation Group, available at http://www.hgac.com/community/water/tmdl/BIG/default.aspx.   36.See Adopted Clear Creek TMDL, supra note 27, at 57.   37. See id. at 48-49, 60.   38. Letter from Miguel L. Flores, Director, Water Quality Prot. Div., EPA, to Dan Eden, Deputy Dir., Office of Permitting, Remediation, & Registration, TCEQ (July 22, 2008).   39.Id.   40. Wayland Memorandum, supra note 16, at 4; see also Adopted Clear Creek TMDL, supra note 27, at 48-49.   41. Harris County & Harris County Flood Control District, Interim Bacteria Reduction Plans, adopted by Harris County Commissioners Court (July 8, 2008).   42.See Adoption of Clear Creek TMDL: Hearing Before the TCEQ (Sept. 10, 2008) (statement of Jim Davenport, TCEQ).   43. Adopted Clear Creek TMDL, Response to Public Comment (Aug. 20, 2008); see, e.g., Letter from Arthur L. Storey, Executive Director, Harris County Public Infrastructure Department, to Ron Stein, Chief Engineer’s Office, TCEQ (July 3, 2008) (Comments on Eighteen Total Maximum Daily Loads for Bacteria in Buffalo and White Oak Bayous and Tributaries Submitted on Behalf of Harris County and Harris County Flood Control District).   44.Adopted Clear Creek TMDL, Response to Public Comment at 14-15.   45. Courtesy of John Runnels’ “dream.boats” sculptures displayed at Sabine Promenade, Houston, Texas.