Environmental Protection Agency Water Regulation:
Issues of Interest for Texas
The Texas Comptroller of Public Accounts is following multiple proposed and implemented regulations impacting Texas’ water resources that could have an impact on the state’s economy.
Pesticide General Permit
As of October 31, 2011, water quality permits are required for the use of biological pesticides or chemical pesticides that may leave a residue in “waters of the U.S.” This permit is required because the U.S. Sixth Circuit Court of Appeals vacated EPA’s 2006 Final Rule on Aquatic Pesticides, which had previously exempted pesticides from Clean Water Act permitting.
In Texas, individuals or organizations may need to obtain a Texas Pollutant Discharge Elimination System (TPDES) general permit from the Texas Commission on Environmental Quality (TCEQ) before using pesticides in areas where the spray may leave a residue in a water body.
To determine whether your activities require a permit, download TCEQ’s summary of the Pesticide General Permit. (PDF)
Additional information on the permit can be found on the TCEQ website.
Concentrated Animal Feeding Operations Reporting Rule
On Oct. 21, 2011, EPA proposed a rule requiring concentrated animal feeding operations (CAFOs) to submit site specific information to the EPA. On July 20, 2012, EPA proposed withdrawing that proposed rule, electing instead to collect CAFO information by working with federal, state, and local partners instead of adopting the new rule.
Expansion of Clean Water Act Jurisdiction
In May 2011, the U.S. Environmental Protection Agency (EPA) released a draft “Clean Water Protection Guidance” document that would aggressively expand the Clean Water Act's jurisdiction over surface waters, giving it authority over “almost anything that could be deemed to drain into a navigable water,” as one commentator puts it — including some ditches.1 The EPA has been criticized for skirting the formal rulemaking process required by federal law.
- If adopted, the proposal may require the U.S. Army Corps of Engineers and EPA to issue permits for many projects affecting waterways and wetlands previously considered outside federal jurisdiction.
- It could also lead to project delays and redesign and mitigation costs.
View Comptroller Combs’ comments on the proposed guidance in a letter sent to the EPA dated July 26, 2011.
Update: The EPA Science Advisory Board (SAB) Panel will hold a public meeting on Dec. 16-18, 2013, in Washington, D.C. to review of the draft EPA report, Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence. This report summarizes the current understanding about the connectivity of streams and wetlands relative to large water bodies, the factors that influence them, and the mechanisms by which connected waters affect downstream waters. Interested parties should submit comments pertaining to the draft report for the SAB Panel to consider by Nov. 6, 2013.
The EPA released a proposed Cooling Water Intake Structures Rule affecting power plants and manufacturing facilities in March 2011. The rule is intended to reduce damage to fish in cooling water systems and applies to about 1,260 facilities nationwide (670 power plants and 590 manufacturing and industrial facilities).2 On May 31, 2012, EPA announced the availability of new information it has received and collected since the proposed rule was published, along with a discussion of possible revisions to the final rule that EPA is considering. EPA expects to finalize the Cooling Water Intake Structures Rules by June 27, 2013.
Most facilities would be subject to limits on fish kills. Some would be required to conduct studies to help determine what site‐specific fish mortality controls, if any, would be required. Depending on the results of these studies, existing facilities may be required to install closed-cycle cooling (cooling towers).
New generating units at existing facilities would be required to use closed-cycle cooling (cooling towers), or equivalent, low-fish mortality designs.
According to Entergy:
- The construction and integration of cooling towers typically costs hundreds of millions of dollars.
- The initial cost to consumers for implementing cooling towers at U.S. nuclear plants alone is estimated at $37 billion to $122 billion.3
ERCOT estimates the imposition of closed-loop/cooling tower requirements could result in the retirement of more than 8,000 MW of gas-fired generation in Texas.4
The National Association of Manufacturers estimates that the Cooling Water Intake Structures Rule will cost $8 billion costs per year with $149 billion in upfront capital spending.
Coal Combustion Residuals (CCR) Rule
Large quantities of CCR are beneficially used, or recycled, in products such as concrete, wallboard, and as mineral filler instead of being disposed in impoundments or landfills.
In June 2010, EPA announced two proposals for regulating CCR under the Resource Recovery and Conservation Act (RCRA). One option would regulate CCR as a hazardous waste under Subtitle C. The other option would regulate it under Subtitle D for State or Regional Solid Waste Plans.
Both options retain an exemption for beneficial uses of CCR, but industry representatives expressed concern that regulating CCR as a waste would discourage beneficial use regardless of the exemption.
The CCR rule is pending and EPA has made no announcement regarding the future of this proposal.
Proposed legislation: On October 14, 2011, the U.S. House of Representatives passed the Coal Residuals Reuse and Management Act. This bill would allow states to develop their own program to facilitate CCR recycling and the proper management and disposal of CCR.
Natural Gas Wastewater Standards
On October 20, 2011, EPA announced plans to develop standards for wastewater discharges produced by natural gas extraction from underground coalbed and shale formations.
The EPA announcement stated that “some shale gas wastewater is transported to treatment plants, many of which are not properly equipped to treat this type of wastewater.”
EPA will develop standards for shale gas wastewater that must be met before the water can be sent to a wastewater treatment facility.
In addition, EPA plans to propose rules for coalbed methane in 2013 and shale gas in 2014.
Hydraulic Fracturing and Drinking Water
Hydraulic fracturing is a process that increases the production of oil and gas from low permeability formations such as shale. It has played an important role in making the production of oil and gas from shale formations economically feasible.
However, concerns have been expressed by some that hydraulic fracturing operations could pose a threat to drinking water.
In November 2011, EPA’s Office of Research and Development released a plan to review this issue entitled, “Plan to Study the Potential Impacts of Hydraulic Fracturing on Drinking Water Resources.” (PDF) The study is designed to address five questions regarding the possible impact of hydraulic fracturing operations on drinking water:
- Water Acquisition: What are the potential impacts of large volume water withdrawals from ground and surface waters on drinking water resources?
- Chemical Mixing: What are the possible impacts of surface spills on or near well pads of hydraulic fracturing fluids on drinking water resources?
- Well Injection: What are the possible impacts of the injection and fracturing process on drinking water resources?
- Flowback and Produced Water: What are the possible impacts of surface spills on or near well pads of flowback and produced water on drinking water resources?
- Wastewater Treatment and Waste Disposal: What are the possible impacts of inadequate treatment of hydraulic fracturing wastewaters on drinking water resources?
EPA plans to release a preliminary report in 2012 which will contain the agency’s analysis of existing data, results from cases studies, and initial results from scenario evaluations, laboratory studies, and toxicological assessments. The final report will be released in 2014.
More information about this study can be found at EPA’s website on hydraulic fracturing.
The University of Texas Energy Institute released a preliminary study in November 2011 indicating no direct link between use of hydraulic fracturing in shale gas development and reports of groundwater contamination.
- 1 U.S. Environmental Protection Agency, “Clean Water Act Definition of ‘Waters of the United States’”; and Jim.Praytech.com, “EPA and USACE Propose Clean Water Protection Guidance on Jurisdictional Waters.” (Last visited August 26, 2011.)
- 2 U.S. Environmental Protection Agency, “Proposed Regulations to Establish Requirements for Cooling Water Intake Structures at Existing Facilities.” (Last visited August 26, 2011.)
- 3 Entergy, “Hot Topics.” (Last visited August 26, 2011.)
- 4 PowerNews, “ERCOT: Proposed EPA Rules Could Shutter 8,000 MW of Gas-Fired Generation in Texas.” (Last visited August 26, 2011.)