prdeY ~, 25589 APproVal ems CAUnt ~~ of $~ 'p8 es J~palit °~~2xa5 pss~l won of dun ~ the r 28r 1998 Se~~ Page 818 Vol V DRDER N0. 25589 RPPROVRL OF RESOLUTION TO JOIN THE TEXRS COUNTIES STORM WRTER CORLITION RND REMIT PAYMENT OF ~750.OD TO THE TEXRS RSSOCIATIDN OF COUNTIES On this day the 28th day of September, 1998 upon motion made by Commissioner Oehler, seconded by Commissioner^ Baldwin, the Court unanimously approved by a vote of 4-0-0, the Resolution to .join the Texas Counties Storm Water^ Coalition and r-emit payment of 5750.00 to the Texas Rssociation of Counties. TEXAS ASSOCIATIOI~I OF COUI~ITIES 1204 San Antonio • Austin, TX 77;701 P.O. Box 2131 • Austin, TX 7R768-2131 Sam D. Seale • Executive Director August 27, 1998 Deaz Judge and Commissioners: Congress has recessed for the month of August and members will be back home during the upcoming holiday. Many of the members will be visiting with their local county officials during the recess. We would kindly request that you pass on the following concerns regarding the Storm Water Phase II proposed rules. As you are aware in January the Environmental Protection Agency (EPA) issued Storm Water Phase II proposed rules. The rules as proposed will impact every county in Texas. The Texas Association of Counties legislative staff, with the assistance of the Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel law firm, submitted comments on behalf of Texas counties. Phase II seeks to expand on the existing storm water program, Phase I, which was implemented to reduce polluted runoff from major industrial facilities, large and medium city storm sewers, and construction sites that disturb five or more acres of land. Phase II picks up where Phase I left off, broadening the scope of EPA regulation of storm water discharges to include smaller municipalities and counties, as well as construction sites that disturb at least one acre of land. Thirty-eight counties have been specifically identified in the proposed regulations as owners of small municipal separate storm sewer systems (MS4s). We anticipate that several additional counties will fall within the scope of EPA's automatic designation as "urbanized azeas" following the census in 2000. Under the proposed rule, all regulated small municipal separate sewer systems must develop, implement, and enforce a storm water management program designed to reduce the discharge of pollutants to the "maximum extent practicable". As we understand the proposed rules a drainage ditch in county could be considered a one acre. counties which to to constructton acuvmes (sucn as cle obtain permits forte scharges f om The propose rules are an counties. The econormc tmpact on of another federal unfunded mandate on Texas enormous. associated with the regulation of small municipal sepazate storm sewer systems, is $2.67. EPA does acknowledge that per capita costs would be higher for Phase II municipalities. At this point we believe an estimate of $5.00 per capita for Texas counties is a very conservative number. 15121-478-8753 1-(800)-456-5974 FAX (512)-478-0519 The EPA published no Phase II construction compliance cost estimates compazable to the estimates it provided with respect to the six minimum control measures required of small municipal storm sewer systems. Another big concern included in the proposed rules is EPA's assumption that Texas counties have regulatory enforcement authority. Texas counties lack the authority to enact the ordinances and implement all of the regulatory requirements that Phase II requires. The economic burden will be felt by the tax payers in their home counties. Therefore, these concerns need to be echoed to our congressional delegation while visiting in their home counties. Please pass along the enclosed information sheet to your congressional member. Your support for this effort is greatly appreciated. Sincerely, am e Executive Director ,.:. STORM WATER PHASE II Il~IPACTS ON TEXAS COUNTIES - PLEASE SHARE WITH YOUR CONGRESSIONAL MEMEBERS 38 Counties Automatic Designation as Small Municipal Separate Storm Sewer Systems (MS4's) (Bell, Bear, Bowie, Brazoria, Brazos, Cameron, Collin, Coryell, Dallas, Denton, Ector, EI Paso, Fort Bend, Galveston, Gnysoo, Gregg, Guadalupe, Hardin, Hidalgo, Tefferson, Lubbock. McLennan, Midland, Montgomery, Nueces, Potter, Randall, Rockwall, San Patricio, Smith, Tarrant, Taylor, Tom Green, Tnvis, Victoria, Webb, Wichita, Williamson) Requires counties to obtain permits for storm water discharges from "small municipal storm sewer systems", also known as MS4's. Owners and Operators of MS4's must develop, implement, and enforce a storm water management program, with six minimum control measures; designed to reduce the discharge of pollutants to the "maximum extent practicable". Those six minimum control measures are as follows: • Public education and outreach on storm water impacts; • Public involvementlparticipation; • Dlicit discharge detection and elimination; • Construction site storm water runoff control; • Post-construction storm water management in new development and redevelopment; and • Pollution prevention/good housekeeping for municipal operations. Drainage ditch in the county right-of--way will be considered an MS4 and therefore the county will need to develop and enforce the storm water management program. The EPA has projected "per capita" costs, for implementation of the six minimum control measures associated with the regulation of small municipal separate storm sewer systems, by taking a sample of 21 permit applications from Phase I municipalities and extrapolating from that program's data. EPA estimates that the mean annual per capita cost is $2.67. EPA does acknowledge that per capita costs would be higher for Phase II municipalities. At this point we believe an estimate of $5.00 per capita for these Texas counties is a very conservative number. Construction Sites that Disturb 1 to 5 Acres (Impacts all Texas Counties) • Counties which engage in construction activities (such as clearing, grading, and excavating) will be required to obtain permits for discharges from such sites. • Counties will be required to develop, implement, and enforce programs to control runofffrom others (and their own) construction sites as one of the minimum control measures. • Counties in Texas lack this type of regulatory authority to enforce programs and control runoff from others. • This provision would include routine road maintenance. • The EPA published no Phase II construction compliance cost estimates comparable to the estimates it provided with respect to the six minimum control measures required of small municipal storm sewer systems. • Program requirements would consist of such things as temporary and permanent seeding; silt fences; vegetative buffer strips; and sediment traps. Texas Counties Lack of Regulatory Authority • Texas counties possess only such powers as aze conferred by the state constitution or state statutes. • Texas counties lack the authority to enact the ordinances and implement all of the regulatory requirements that Phase II requires. Phase II violates the Tenth Amendment • Phase II requires county owners/operators of small municipal separate storm sewer systems to enact ordinances, and to develop and implement programs to effectuate the EPA's storm water scheme. • Phase II restricts the legislative processes of the States and local governments, treating them as "regional offices" or "admirustrative agencies" of the EPA General Concerns • Designation of MS4 counties is azbitrarily based on population size not on water quality issues. • The One-Acre threshold to trigger automatic permitting of Construction Activities is capricious and not based on adverse water quality impacts. • The proposed rules are vague and appear to "paint a broad brush" over the issue of water quality. • EPA's assumption that Texas counties have regulatory authority to carry out the requirements of Phase II. • Texas counties were not covered under Phase I and the cost of implementing Phase II could be enormous to the local tax payer. ';~lson m~~ills joni ., R ~.,qcj.., ~ - ^k^Y n llYjnssB ~., .~.,i4, _ o~=*~n+~•~a ~ ,~,;; ."This is just the l~,oRESVII.E - Wilson Conn- federal mandate ty commissioners have scheduled any is unfunded a WSte today on whether to join,a coalition of-the Texas Association , +county must con ot'Counties-in iightnlg new envi- Wjth a Way t0 [7I rolunental stormwater regulations „ s lt. w . the roup iiisisis are uml , ~ nr , "g the U 5 ion 6 office" 'Qle Re , , , . . ~ ~ R W j . -~ _ g ~ eLSER Lp l Environmental Protection Agency ry , ~r Victoria County judge ' Ias1; Monday.turned pveri}8 regula- toiY authority to the state to en ' forge the -Pollutant ischarge , u+,~. stem,"'-shesald. +_, Elimin$tiort System. , r ~ :or Walker said it even wl 1~1e Texas .Natural esource every time a comty--sent Comml on will Conservation ''oat to blade a koad. It:' ~ tale over the federal>;y'1'equired width and lengkat,~totale program and the pe g Pro- ~ eac6 would be,i{lOnstdere ~ overseeing storm ` r run- Offs.; x n r. l~le Glover sookes~wo for the ' 'and permitting "Each and site of at least o coidlties"''had'°jolnedw:ijrje what is (mown as an M or ,County, Walker said, was about a 'small municipal storm :wer y100,1100peryear. _ ' ._,~„,. •,;, : .. =i. t ~ w.. -' r. ji Ill a out .that iboat ~ortto join the a=membership an the County's IOOpeople. ;-, dents have been ter t~moff fee of man"fti the 'City's I)e- °lyorks'Beid the 'pay tor,"leaning up 'eats and vegetatlon dUchea inside 'It~,`~rog