Folks at state agencies like the Texas Water Development Board (TWDB) and Texas Commission on Environmental Quality (TCEQ) have been busy this summer…the Texas legislature meets for only 180 days on odd-numbered years in sessions that generate headlines as bills are debated, but the off-year between sessions is just as exciting. This is when much of the work is done to implement the bills that have been passed. Importantly, some aspects of this work – such as updates to rules in the Texas Administrative Code – involve processes in which opportunities for public comment are required by law, and others – such as TWDB’s plans for implementing new funding allocations – reflect the value agency staff place on public input.
Texas Living Waters’ coalition members have responded to several calls for public comments this summer, and we expect the trend to continue over the next few months:
In May, we submitted comments on Phase I of the 2027 State Water Plan that emphasized the importance of conservation and reuse in achieving long-term water security, suggested stronger planning for water for the environment, and highlighted the need to consider data centers and other fast-growing industrial water demands.
This is the first time TWDB has used a two-phase approach. The Board’s adoption of the final plan will take place in a public meeting where public comments are welcome, but at that point it will be difficult for staff to incorporate good ideas or constructive criticism. The two-step process helps address this dilemma by allowing staff to gather and incorporate input earlier in the process while continuing to crunch numbers for a fully comprehensive second draft. We look forward to evaluating and commenting on Phase II before the end of the year.
In June, we commented on TWDB’s Flood Infrastructure Fund Intended Use Plan (FIF IUP) and rulemaking at TCEQ related to the land application of produced water.
The FIF is TWDB’s financial assistance program for implementation of the state flood plan, and each new project solicitation is accompanied by an IUP outlining eligibility requirements, ranking criteria, due dates, and other details. We were pleased to note several adjustments that improve the accessibility of FIF funding for Nature-based Solutions (NbS) projects, such as less stringent benefit/cost requirements and a simplified set of qualifiers for grant funds. These are positive changes, but our letter points out the importance of effective outreach and technical assistance to ensure life-saving flood mitigation funding is accessible to the communities that need it most.
The disposal of produced water – a waste product generated through oil & gas extraction processes that can include a wide variety of very toxic constituents – is currently a subject of legislative interest. Existing TCEQ rules govern the disposal of wastewater, which often involves extensive treatment requirements and regulated discharge into streams and rivers while other standards apply specifically to the land application of wastewater for purposes such as crop irrigation. Senate Bill 1145 (89-R) directed the TCEQ to develop specific standards and a process for safe land application of produced water. Given the variability and potential toxicity of produced water, that requires rules specifically designed to address those problematic constituents. Unfortunately, TCEQ proposed rules that would shoehorn land application of produced water and other industrial waste streams into a set of existing rules designed to govern land application of domestic wastewater. Our detailed comments call out the inadequacy of that approach for protecting surface and groundwater as directed by the legislation. In addition to suggesting some enhanced protections to improve the proposal, we urged TCEQ to slow down and develop a more comprehensive and protective approach… TCEQ received about 500 comments on this proposed rule. Staff must prepare a response to the comments and consideration of adoption of rules currently is projected for one of November TCEQ agenda sessions. The response to comments and any changes to the proposed rule will be available approximately three weeks in advance of the agenda session.
In July, the TWDB released Nature-Based Solutions for Flood Resilience in Texas (a guidance manual for implementing NbS). We are pleased to see resources like this made available, but our comments stress that its success can only be measured by its actual effect on the wider implementation of NbS in Texas. This means engaging in intentional outreach and supporting technical assistance efforts to familiarize practitioners with the manual and connect NbS projects with financial assistance through FIF and other state or federal programs.
Also in July, NWF and Bayou City Waterkeeper commented on a long list of potential rule updates posted by the TCEQ. The list was developed through a process spearheaded by the Texas Regulatory Efficiency Office to review agency rules and make recommendations for increased efficiency. State agencies should consider efficiency when developing or reviewing their administrative rules, but it must be balanced with fair consideration of the real-life implications of each change. For example, some of the proposed changes involve replacing language with statutory citations. Although this results in a more “efficient” set of agency rules, it also means more time and effort is required for readers who have to consult two sources instead of one. Sometimes “efficiency” translates into reduced levels of protection. Other suggestions can have transparency impacts, such as changes to public notice requirements. Formal rulemaking processes have not been initiated yet for any of the ideas on the list, and it’s not clear whether all the changes will be pursued. For those that do move forward, there will be additional public comment opportunities before final language is adopted.
We work hard to support the passage of sensible legislation during each session, but good bills must also be implemented well to deliver the results we expect from them. And, bills that are less good must be implemented very carefully. That means the job of supporting good policy doesn’t stop at sine die, as state agencies are busy implementing new laws during the interim. By engaging constructively and thoughtfully with these processes, Texas Living Waters’ members are helping ensure our values remain part of the conversation and, as much as possible, improve actual outcomes.,
