Texas Becomes Its Own Pollution Cop

EPA lets state do its own monitoring of water discharges, but critics worry it will lead to lax oversight.

Texas has never been a state preoccupied with conformity. The right to secede remains a cherished tenant of the Texas constitution even today. But many environmentalists say a new deal with the US Environmental Protection Agency that gives the Lone Star State the right to oversee the health of its own waterways goes a step too far.

Texas is not the first state to get this authority. But its agreement with the EPA has a number of special exceptions and legal loopholes, say some observers, that could echo across the United States.

By allowing looser environmental rules in Texas, they say, the deal not only endangers state waterways, but also could sully lakes and rivers nationwide as other states lower their water-quality standards to compete for new businesses.

Strong currents

"This is a very important precedent," says Ken Kramer, executive director of the Sierra Club's Lone Star Chapter. "This could lead other states to renegotiate their current [water-quality standards] with the EPA, and may have implications for the delegation of other types of environmental programs as well."

To Texas officials, however, the pact is just reward after 19 often-bitter years of struggle with the EPA.

Now that Texas has complied with EPA standards and hammered out a deal with the agency, it will receive almost full oversight of the estimated 6,300 factory, feedlot, and waste-water dischargers on the state's rivers and streams. The change will be phased in during the next two years. This means that state industries will no longer have to go through the tedious process of securing water permits from both state and federal agencies.

The EPA maintains that no special exceptions were made under the Texas deal.

"Each state has a little different rules, but there are certain minimums they must meet, and Texas demonstrated that it meets the standard," EPA spokeswoman Cheryl Hochstetler says.

If the state meets the standard, she adds, the EPA must delegate the oversight of water quality.

But 11 state and national environmental groups, including the Sierra Club and the National Wildlife Federation, have voiced dismay at what they perceive as special treatment.

Fewer inspections

For example, they note that Texas is required to inspect only 80 percent of the 575 largest discharge facilities in the state. The EPA requires the other 42 states with this oversight authority to inspect all the large facilities in their borders.

Perhaps the greatest concern, though, is a pro-business, red-tape-slicing measure enacted by the Texas Legislature last year. The provision, called "regulatory flexibility," lets state agencies waive almost all the regulations of the Texas Natural Resource Conservation Commission (TNRCC) on a case-by-case basis.

For example, an environmental agency could allow a sewage-treatment plant to legally operate at levels in excess of clean-water guidelines - possibly in return for the plant's agreeing to provide some other benefit, such as an enhanced water-testing program or a community center. Or it may ask for nothing in return.

During negotiations with the EPA, the TNRCC promised to pass a rule that would make it illegal under state law to use regulatory flexibility. But days before the pact was signed, the TNRCC reneged.

"They've basically said, 'Trust us not to use regulatory flexibility,' " says Rick Lowerre, a lawyer who represents the environmental groups.

"But the first thing they've done is broken their promise to make it illegal. So trust is not running real high right now."

Costly to go back

Under the agreement, any use of the flexibility power by Texas to ease water rules is grounds for a return to federal oversight. But in practical terms, abuses of regulatory flexibility would have to be egregious in order for the EPA to return, says Mr. Lowerre.

He adds it is likely that at least one of the groups will sue to get the EPA delegation overturned. But the cost of victory - transferring water oversight in the state for the second time in two years - could be prohibitive.

"We would be taking it out of the hands of a state agency that's just getting settled in the job and giving it back to a federal agency that will likely have reassigned all its people or let them go," Lowerre says. "So we have to decide, how much chaos is this worth?"