The “small city” stormwater permitting process is heating up at the Texas Commission on Environmental Quality (TCEQ).  Ongoing disputes between the TCEQ and the U.S. Environmental Protection Agency (EPA) are adding fuel to the flames and have led to delays that could affect city stormwater permits.

The Federal Clean Water Act requires the EPA to regulate stormwater discharge into bodies of water in the United States.  In Texas, the TCEQ ensures compliance with this by issuing a general permit allowing small municipal separate stormwater systems, known as Phase II MS4s, to discharge directly into surface water in Texas.  [A Phase II MS4 is one located in an urbanized area (UA) as defined by the U.S. Census Bureau, or located outside of a UA and brought into the program by the TCEQ.  The Executive Director of the TCEQ may designate any small MS4 as being required to submit an application for a Phase II permit based on certain factors.] The general permit must be approved by the EPA. 

The Phase II MS4 General Permit TXR040000 was originally issued and effective on August 13, 2007.  The TCEQ is in the process of renewing this permit, which expires on August 12, 2012.  Throughout the renewal process, the TCEQ has sought input from TML staff and Phase II MS4 cities and has used this input to negotiate with the EPA.  This process has taken longer than expected, so it is likely that the renewed permit will not yet be issued when the current one expires.  However, the Phase II MS4 cities that are covered by the current permit will continue to be covered until the new one is issued.  After the new MS4 general permit is issued, currently-regulated entities will have 180 days from the date of issuance to renew coverage by submitting  Notice of Intent for Stormwater Discharges (NOI) and a Stormwater Management Program (SWMP).

The U.S. Census Bureau recently completed the delineation of UAs based on the 2010 Census.  Information on geographic areas classified as UAs and urban clusters (UCs) across the United States is currently available on the Census Bureau’s Web site. From this information, the Census Bureau will be developing a set of digitized maps showing both existing and new UAs and UCs, which are expected to be completed in the summer of 2012.  The data is available at http://www.census.gov/geo/www/ua/2010urbanruralclass.html.

City officials should look at the list now to determine if they will be newly regulated and plan accordingly. TCEQ’s MS4 general permit allows newly-regulated entities 180 days from the date this information is published on the Census Bureau Web site to apply for an MS4 permit.  To apply, the city must submit an NOI and SWMP. The TCEQ plans on sending a notification letter to as many newly-regulated UAs as possible. But the TCEQ encourages newly-regulated UAs to take the initiative to determine their permit applicability by checking the Census Bureau’s Web site.

Please contact Heather Mahurin, TML legal counsel, at heather@tml.org with specific questions or concerns.

TML member cities may use the material herein for any purpose. No other person or entity may reproduce, duplicate, or distribute any part of this document without the written authorization of the Texas Municipal League.

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