The Wise Report Henry M. Wise, P.G. December 12, 2010
On September 9, 2010, the Texas Parks and Wildlife Department submitted a petition for rulemaking which requested an exemption for discharges associated with pesticide applications authorized by the Texas Commission on Environmental Quality (TCEQ) or exempted from permit requirements by federal or state statutes from discharge prohibitions currently found in Chapter 213, Subchapters A and B; and in 30 TAC Chapter 311, Subchapters A, B, and F. On November 3, 2010, the TCEQ recommended approval of the petition for rulemaking.
A recent decision from the Sixth Circuit Court of Appeals overturned the United States Environmental Protection Agency's (EPA) rule which provided that National Pollutant Discharge Elimination System (NPDES) permits were not required for pesticide applications into, over, or near waters of the United States (National Cotton Council of America v. U.S. EPA, 553 F.3d 927). As a result of the Sixth Circuit Court of Appeals decision and because Texas is a delegated state, the discharge of pesticides must now be regulated through the Texas Pollutant Discharge Elimination System (TPDES). By court order, applications of pesticides into, over, or near water in the United States must be authorized under the NPDES program by April 9, 2011. Currently, because the discharge of pesticides is not a point source, Chapters 213 and 311 allow the application of pesticides. However, on April 9, 2011, pesticide application will be prohibited within the Highland Lakes area (Lakes Travis, Austin, Inks, Buchanan, Lyndon B. Johnson, and Marble Falls) and Edwards Aquifer recharge, contributing, and transition zones.
This proposed rulemaking would allow the application of pesticides to continue within these areas for protection of human health and the environment. The inability to control pests could impact public health by preventing mosquito control, restricting recreational activities in the regulated areas due to invasive aquatic vegetation or invasive animals, restrict state and federal agencies from administering programs within their jurisdiction, restrict the volume of water flow in surface waters overlying the aquifer due to invasive aquatic vegetation, and increase the potential for public water supply systems to experience taste and odor problems due to excessive vegetation and algae in surface waters overlying the aquifer. For more information go to: http://www.sos.state.tx.us/texreg/sos/PROPOSED/30.ENVIRONMENTAL%20QUALITY.html#47
The proposed rule for pesticide application within the Highland Lakes area (Lakes Travis, Austin, Inks, Buchanan, Lyndon B. Johnson, and Marble Falls) and Edwards Aquifer recharge, contributing, and transition zones can be found at: http://www.sos.state.tx.us/texreg/sos/PROPOSED/30.ENVIRONMENTAL%20QUALITY.html#78
The TCEQ proposes amendments to implement federal regulations pertaining to the safety of drinking water from groundwater and surface water sources. Federal rules controlling levels of the metals lead and copper in drinking water have been in place since 1991. Lead and copper can leach into drinking water from pipes or solder under corrosive conditions. The federal rules require public water systems to monitor for lead and copper; monitor for water quality parameters related to corrosivity; perform corrosion control studies; install optimum corrosion control treatment; meet lead and copper action levels; and, when action levels are exceeded, educate the public. The United States Environmental Protection Agency (EPA) adopted the National Primary Drinking Water Regulations for Lead and Copper: Short-Term Regulatory Revisions and Clarifications (LCSTR) on October 10, 2007. Under 40 Code of Federal Regulations (40 CFR) §142.10, the TCEQ must adopt rules at least as stringent as the federal rules to maintain primary enforcement authority (primacy) over public water systems in Texas. This rulemaking proposes to incorporate the federal rules for lead and copper and to make minor changes for consistency with the adopted federal rules to retain primacy for the Safe Drinking Water Act and its amendments (SDWA). In addition, staff proposes to repeal and replace the rule language for lead and copper to reorganize the rules to match the organizational structure for other chemicals in drinking water. The intent of this proposal is to assist the regulated community by making the rules easier to use. No part of the proposed rulemaking differs from the federal requirements or existing Texas requirements in stringency.
This rulemaking also proposes to make minor changes to Chapter 290 for consistency with the federal Long Term 2 Enhanced Surface Water Treatment Rule (LT2), Stage 2 Disinfectants and Disinfection Byproducts Rule (DBP2), and Ground Water Rule (GWR). Rule Project Number 2006-045-290-PR incorporated the major requirements of the federal LT2, DBP2 and GWR on December 19, 2007. In the time since that adoption, as part of the EPA's primacy review, the EPA identified some rule elements inadvertently omitted from that rulemaking. These omissions are proposed to be corrected in the current rulemaking. These changes, though important in order to meet primacy, are relatively minor in terms of extent and scope. For more information go to: http://www.sos.state.tx.us/texreg/sos/PROPOSED/30.ENVIRONMENTAL%20QUALITY.html#52
Henry M. Wise, P.G.The Wise Report1271272010