EPA investigates TCEQ as a result of BCWK action

Kristen Schlemmer
February 2, 2023

The U.S. Environmental Protection Agency (EPA) officials are conducting an investigation into whether Texas’s environmental regulators are fully carrying out their delegated duties under the Clean Water Act and Clean Air Acts. The investigation into the Texas Commission on Environmental Quality’s (TCEQ) failure to carry out the protections required by the Clean Water Act is the direct result of a complaint filed by Bayou City Waterkeeper and 20 other groups last year.

In a letter dated January 24, 2023, the EPA’s Region 6 Acting Regional Deputy Administrator Charles Maguire states, “If proven to be true, the allegations outlined in the Petition are concerning. As noted in our discussions, CWA § 402(c)(3) provides that whenever the EPA ‘determines after public hearing that a state is not administering a program approved under this section in accordance with requirements of this section, he shall so notify the State and, if appropriate corrective action is not taken within a reasonable time, not to exceed 90 days, the Administrator shall withdraw approval of such program.’”

The letter highlights several elements of concern:

  • TCEQ places the burden on members of the public to prove that a permit violates legal requirements rather than requiring that parties applying to pollute prove that they will be doing so at legally acceptable levels;
  • TCEQ creates unlawful barriers to public participation and judicial review of permitting decisions; and
  • TCEQ fails to recognize large volume water-polluting projects as “major facilities and subsequent denial of consideration for wastewater effluent discharge as pollution that can degrade receiving waters.

The Texas legislature is in the position to take corrective action now. The legislature may adopt recommendations made by the Sunset Review Staff intended to improve transparency and public input and allocate funds toward more robust enforcement.

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