On the Water Front

Republished here by permission of Texas Lawyer ©1998


Unlike the Marlon Brando character in On the Waterfront, Texas is a “contendah.”  This Fall EPA Region 6 finally approved the application of the State of Texas to administer and enforce the National Pollutant Discharge Elimination System (“NPDES”) program for regulating discharges of pollutants into waters of the State.  With the exception of discharges regulated by the Railroad Commission, the Texas Natural Resource Conservation Commission (“TNRCC”) now is authorized to regulate virtually all discharges into waters of the State of Texas.  As a result, dischargers in Texas no longer will be required to obtain separate permits from EPA and TNRCC, with a few exceptions.  EPA, for example,  will continue to regulate stormwater discharges until Texas develops its own general permit.  With its assumption of responsibility for the NPDES program, Texas has covered the waterfront, having assumed responsibility for virtually every federal pollution control program.
Although there now is a bridge over previously-troubled waters, fights over issues of federalism still may arise.  EPA can object to the issuance of  State permits to a particular discharger and can issue its own permits for those dischargers.  EPA also can file its own enforcement action if it determines the State has not taken timely or appropriate enforcement action.  Finally, EPA continues to maintain that the Texas Audit Privilege Law, which protects from discovery certain environmental audits and  confers certain immunities, does not apply to both EPA enforcement actions and citizen suits under the federal Clean Water Act.
The relationship between Texas and EPA  has not always been smooth sailing.  The two agencies had to contend with significant political and legal obstacles to reach agreement.  The fact that the EPA Regional Administrator, Gregg Cooke, and the Chairman of the TNRCC, Barry McBee, had a relationship of trust over the years likely played a major role in the success of these negotiations.  As to whether we are entering into a new era of federal-state cooperation, the water remains muddy, especially now that Chairman McBee has announced that he is leaving the agency in January to work for Lt. Governor Perry.

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