g ,. .. 
TEXAS CITIES COALITION ON STORMWATER PO Box 1568 Austin, Texas 78768-1568 (512) 404·7800 Fax (512\ 703-2785 MEMORANDUM TO: PARTICIPANTS, TEXAS CITIES COALITION ON STORMWATER FROM: JIM
MATHEWS JOE FREELAND RE: STATUS REPORT -NINTH cmcuIT DECISION, GENERAL PERMIT DATE: JANUARY 31, 2003 Executive Summary • Ninth Circuit ruled against us in a split opinion holding that
Cities are not forced to regulate because they have the "option of not discharging stormwater." Opinion also requires that permitting authorities review NOIs for compliance with MEP
standard and provide public notice and opportunity for hearing for each NOr. Motion for rehearing is due February 28. Steering Committee will meet on February 14 to decide whether to
continue to pursue. • Deadline for obtaining permit coverage for MS4 is March 10, 2003. TCEQ general permit will not be issued until late-May at earliest. Regulated SmaJl MS4s will be
liable for discharging without a permit until general permit is issued and NOI filed. Recommend that Coalition members contact TCEQ and EPA Region 6 to ask EPA to extend deadline. •
Municipally owned industrial facilities (wastewater treatment plants; vehicle maintenance facilities, landfills, construction) must obtain permit coverage by March 10,2003. These facilities
can use TCEQ's Multisector General Permit and Construction General Permit. l. Ninth Circuit Decision On January 14, 2003, the Ninth Circuit Court of Appeals in San Francisco finally
issued an opinion regarding the lawsuits challenging EPA's Phase II Storm Water Rules. (The opinion can be viewed at htlj;!:lIwww.mandf.com/Opinion.pdf). The Court rttiected our challenges
and those made by the National Homebuilders Association and agreed with the challenges made by the Environmental Groups. While this news is disappointing, we do not believe that it represents
the final word on the subject. 2 to 1 Decision -The case was decided by a vote of2 judges to 1 judge (with a published dissent). The majority opinion was authored by the judge that was
not present at oral argument and was joined by the judge that is considered by many to be the most liberal judge on the 
Federal bench who has written opinions holding that the Pledge of Allegiance is unconstitutional and that the right to bear arms is not an individual right. The majority decision uses
tortured reasoning to conclude that EPA's rule does not coerce cities to regulate their citizens. In contrast, the dissenting opinion is clear, concise and well reasoned. These factors
increase the potential to overturn the decision of the three judge panel through a motion for rehearing to the full Ninth Circuit or an appeal to the Supreme Court. Reasoning of the
Majority -The majority's opinion rests on the belief that municipalities can avoid EPA's requirement to regulate third persons by either (1) electing not to discharge storm water into
waters of the United States, or (2) obtaining an individual permit under the Phase I rule. The futility of both of these alternatives relied on by the majority were exposed and dismissed
by the dissent. The dissent notes the impossibility of cities ceasing their discharge ofstormwater or refusing to accept discharges from third persons: "The law of gravity is inflexible;
the storm water will run downhill through the municipalities into federal waters whether the sewer system is .open .or blocked. No matter how much we may want to .uphold EPA's regulatory
scheme, we cannot change the law ofgravity." The dissent also notes that the alternative permit option compels cities to regulate third parties and is not qualitatively different from
the Phase II general permit requirements. "Under the Phase I rule, a petitioner must submit description ofprograms that accomplish essentially the same regulation ofthird parties as
do the three minimum measures of the Phase II rule." Decision Regarding NOI Review & Public Notice -In addition to ruling against us, the majority of the judges agreed with the Environmental
Groups and ruled that the EPA erred in allowing a city to be covered by merely filing a Notice of Intent ("NOI"). The Court held that EPA's approach constituted an impermissible failure
to regulate. The Court held that NOIs are the same as permit applications, and that EPA (or the NPDES Permitting Authority) must review every NOI to determine whether the SWMP will reduce
discharges ofpollutants to the maximum extent practicable. Additionally, the Court held that EPA and the states must make NOls publicly available and subject to public hearings. The
Court remanded the rule to EPA to fix these two problems. This part ofthe decision creates a problem for EPA and the states because it will force them to commit additional. resources
and funds to the program. Given the current federal and state budget crises, EPA and the states may not want to take on this additional load. Because the rule has been remanded to EPA,
EPA could suspend application of the rule and take a different (non-permitting) approach to implementing the rule. By doing so, EPA could also fix the constitutional problems with its
current approach. Phase I Permit Appeals The Cities of Abilene and Irving appealed their Phase I permits on on many of the same grounds as those raised by the Coalition in the Ninth
Circuit. These appeals will be argued before the Fifth Circuit next month. If the Fifth Circuit rules that EPA lacks authority to compel a Phase I city to use its police powers to regulate
others, such a split in interpretation of the Clean Water Act could provide the Supreme Court with a reason to hear an appeal ofthe Ninth Circuit decision. Next Steps -Procedurally,
the next step in this litigation would be to file a motion for rehearing by the panel and by a panel of ten judges from the Ninth Circuit (rehearing en banc). This motion must be filed
by February 28. The Ninth Circuit currently has 17 cases pending for which it has granted en banc review of panel decisions. Additionally, filing a motion for rehearing would provide
more time to appeal the decision to the Supreme Court, possibly even enough time to allow the Fifth Circuit to issue its opinion. 2 
The Coalition's Steering Committee will meet by conference call on February 14 to decide whether to authorize the filing of a motion for rehearing. Given the Coalition's current funding
level, however, we do not believe that we will be able to continue the litigation much further without contributions to the Coalition. Some members of the Coalition have suggested that,
if the full Coalition is unwilling to proceed, they would be interested in creating a subgroup of the Coalition to press on with the appeal. 􀀭􀀭􀀭􀀽􀀭􀀭􀁾􀁾􀁾􀁾􀁾􀁾􀀭􀀭􀀭􀀭􀀭􀀭􀁾􀁾􀁾􀀭􀀭􀁾􀁾Ifyou
frel strongly about the Coalition proceeding with this litigation, please let the Steering Committee or us know before February 14. II. Obligation to obtain permit authorization for
MS4 discharges EPA's Phase II rule recommended using general permits that authorized Phase II stormwater discharges. The rules established a deadline of December 8, 2002 for the permitting
authority to issue general permits and a deadline ofMarch 10, 2003 for regulated small MS4s to obtain permit authorization. EPA's Phase II rule expressly stated, "EPA believes that the
dates (in the proposed rule) allow sufficient time for completion of both the NPDES permitting authority's and the permittee's program responsibilities." Neither EPA Region 6 nor TCEQ
have adopted a general permit for small MS4s. EPA Region 6 (which is the Permitting Authority for New Mexico) has not even proposed a general permit. TCEQ has informed us that their
general permit for small MS4s will not be considered by the commission before the end of May at the earliest. Additionally, the general permit program proposed by TCEQ was developed
prior to the Ninth Circuit's decision and does not appear to be legally sufficient under the Ninth Circuit's ruling that NOls be treated as permit applications. This means that regulated
small MS4s will not be able to meet EPA's deadline ofMarch 10, 2003 to obtain permit coverage, unless they file an individual permit application (for which no application form exists)
and pay an individual permit application fee of $2,050. Failure to obtain permit authorization by March 10, 2003 will leave small MS4s subject to legal liability and citizen suits under
the Clean Water Act. The most sensible and straightforward solution to this problem would be for EPA to extend the deadline required by its rule. We have discussed the issue of an extension
of the deadline with TCEQ staff and believe that a broad based request for this action could be successful. We urge each of you to write a letter or email to TCEQ inquiring about the
status of the Small MS4 general permit. asking how you can obtain legal authorization by March 10,2003 and asking that the deadline be extended. We recommend that these letters be addressed
to Steve Ligon (TCEQ staff member in charge of storm water permits) and that copies be provided to TCEQ Executive Director Margaret Hoffiuan, TCEQ Chairman Robert Huston, EPA Region
6 Regional Administrator Lawrence Starfield, and to us. Names, addresses and email addresses are at the end ofthe memo. III. Permits for Municipal Industrial Sources Municipally owned
industrial sources subject to Phase I permits (such as wastewater treatments plants larger than IMGD or required to have a pretreatment program, vehicle maintenance facilities, landfills
and construction activities disturbing more than 1 acre) owned 3 
·. by municipalities with populations less than 100,000 must obtain permit coverage by March 10, 2003. For sources other than construction, submitting an NO! to be covered by TCEQ's
Multi-Sector General Permit and complying with the terms ofthat permit will provide coverage. Construction activities where more than 5 acres of soil will be disturbed can be covered
under TCEQ's Construction General Permit, and construction activities disturbing between 1 and 5 acres will be covered eventually under TCEQ's Phase II Construction General Permit, which
is scheduled for adoption in early March 2003. For more information on these general permits, see the TCEQ web page http://www.1m:c.sIlIte.tx.ustglllittimdwafmxm¥WWP9m/tpdes!oon.h1m
CONTACT LIST TCEQ Steve Ligon Mail Code 148 P.O. Box 13087 Austin, TX 7871 1-3087 Fax: (512) 239-4114 Email: sligon@tceq.state.tx.us TCEQ Margaret Hoffinan Executive Director Mail Code
109 P.O. Box 13087 Austin, TX 7871 1-3087 Fax: (512) 239-3939 TCEQ Chairman Robert Huston Mail Code 100 100 P.O. Box 13087 Austin, TX 7871 1-3087 Fax: (512) 239-5533 Email: 􀂣􀀧􀀨􀀩􀁭􀁭􀁩􀁳􀁳􀁲􀁀􀁴􀁾
􀀮􀁳􀁴􀁡􀁴􀁥􀀮􀁴􀁸􀀮􀁵􀁾􀀠 Jim Mathews Joe Freeland Mathews & Freeland, LLP POBox 1568 Austin, TX 78767 Fax: (512) 703-2785 Email: jmathews@mand£com lfi'eeland@mandf.com • Email: mhoffin!!!l@tceg.sta
te.tx.us execdiI@tceg .state.tx. 􀁵􀁾􀀠Mr. Lawrence Starfield 6RA USEP A Region 6 1440 Ross A venue Suite 1200 Dallas, TX 75202 Fax: (214) 665-6648 Email: starfield.lawrence@epa.gov
4 
jD 2002 Automatically Designated (;ities Ci!E. City of Addison City of Aldine City of Azle City of Barrett City of Bedford City of Belton City of Blue Mound City of Brownsville City
of Burleson City of Cedar Hill 􀀭􀁾..City of Cibolo City of Cloverleaf City of Colleyville City of Coppell City of Crosby City of Dalworthington Gardens City of Denton City of Donna
City of Edgecliff Village City of Elsa City of Fairview City of Flower Mound City of Friendswood City of Galveston City of Glenn Heights City of Groves City of Harlingen City of Helotes
City of Highland Park City of Hill Country Village City of Hollywood Park City of Humble City of Hutchins City of Katy City of Kennedale City of Krum City of La Marque 􀂷􀀬􀁟􀀧􀀽􀀭􀀮􀁾􀀮􀀬􀀭􀀺􀀾􀀺􀀻�
�􀀧􀁌􀀠􀁾􀀬􀁾􀀺􀀧􀀠_.:,-,;;.,. : 􀀬􀁟􀀢􀀬􀀬􀀭􀀬􀁾...., 􀁏􀀻􀀢􀁖􀀢􀀢􀀢􀀧􀁾􀀠.:,<""""-' '"-,;_, Wedllesday,' October 23, 2002 City of Alamo City of Allen City of Balch Springs City of
Bayou Vista City of Bellaire City of Benbrook City of Briaroaks City of Bryan City of Carrollton City of Cedar Park City of Clear Lake Shores City of Cockrell Hill City of Combes City
of Copperas Cove City of Crossroads City of Deer Park City of DeSoto City of Double Oak City of Edinburg City of Euless City of Farmers Branch City of Forest Hill City of Frisco City
of Galv-eston City of Grand Prairie Ci.ty of Haltom City City of Hebron City of Hewitt City of Highland Village City of Hilshire Village City of Horizon City City of Hunters Creek Village
City of Jacinto City City of Keller City of Killeen City of La Feria City of La Porte City of Alamo Heights City of Alton City of Balcones Heights City of Baytown City of Bellmead City
of Beverly Hills City of Brookside Village City of Bunker Hill Village City of Castle Hills City of China Grove City of Clint City of College Station City of Converse City of Corinth
City of Crowley City of Denison City of Dickinson City of Duncanville City of EI Lago City of Everman City of First Colony City of Fresno City of Galena Park City of Garden Ridge City
of Grapevine City of Harker Heights City of Hedwig Village City of Hickory Creek City of Highlands City of Hitchcock City of Howe City of Hurst City of Jersey Village City of Kemah City
of Kirby City of La Joya City of La Villa 􀀬􀀬􀀬􀀻􀀺􀀺􀁾􀁟􀀬􀀭􀁾􀀢􀀺􀀺􀀧􀀼􀀧􀁟􀀧􀀬􀀢􀀬􀀬􀀢􀀮􀀬􀀠.•􀀺􀀧􀀭􀀬􀁾􀀮􀀧􀀠Page 1 oJ2 
.-CiQ! City of Lacy Lakeview City of Lake Dallas City of 􀁾􀀿􀁫􀁥􀀠Worth City of Lakeside City City of Lancaster City of League City Cily of League City City of Leander City of Leon
Valtey City of Lewisville City of Live Oak City of Live Oak City of Longview City of Los Fresnos City of Lumberton City of Mansfield City of McAllen Cily of McKinney City of Meadows
Place City of Midland City of Mi,sslon Cily of Mission City of Missouri City City of Morgan's Point City of Morgan's Point Resort City of Nash City of Nassau Say City of Nederland Cily
of Nofanville City of North Richland Hills Cily of Northcrest City of Oak Point City of Odessa City of Olmos Park City of Ovilla City of Palm Valley City of Palmhurst City of Palmview
Clly of Pantego City of Parker City of Peartand City of Pecan Grave City of Pecan Hili City or Penitas City of Pflugerville City of Pharr City of Piney Point Village City of Port Arthur
City of Port Neches City of Portland City of Primera City of Progreso City of Rancho Viejo City of Red Oak City of Richardson City of Richland Hills City of River Oaks City of Robinson
City of Rockwall City of Rollingwood City of Rose Hill Acres City of Rowlett City of Sachse City of Saginaw City of San Angelo City of San Benito City of San Juan City of San Leanna
City of Sansom Park City of Santa Fe City of Spnta Rosa City of Schertz CIty of Seabrook City of Seagoville City of Selma City of Shady Shores City of Shavano Park City of Shavano Park
City of Sheldon City of Sherman City of Shoreacres CUy of Socorro City of South Houston City of Southlake City of Southside Place City of Spring Valley City of Stafford City of Sugar
Land City of Sunnyvale City of Sunset Valley City of Taylor Lake Village Clly of Temple City of Terrell Hills City of Texarkana City of Texas City City of The Colony City of Trophy Club
CltyofTye City of Tyler City of Universal City City of University Park City of Victoria City of Vinton City of Wake Village City of Watauga Clly of Webster City of Weslaco City of West
Lake Hills City of West University Place City of Westlake City of Westover Hills City of Weotworth Village City of White Oak City of White Setuement City of Wlchi!3 Falls City or Wilmer
City of Windcrest City of Woodway Town of Lakeside 􀁾􀀢􀁏􀀧􀁾􀀡􀀧􀀻􀁾􀀢􀁈􀁴􀀧􀀻􀀮􀀮􀀺􀁾􀀮􀀠'"",' " '-􀀮􀀢􀀮􀀬􀀮􀀢􀀢􀀬􀀻􀀧􀀺􀀻􀀺􀀢􀀧􀀮􀀧􀀧􀀧􀁩􀀺􀀧􀀧􀀧􀀭􀀧􀀧􀀧􀀽􀀻􀁾􀀺􀀧􀀾􀀼􀀧􀁾􀁨􀀧􀀮􀀼􀀧􀀮􀀺􀁵􀀻􀀮􀀬􀀮
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􀀼􀀢􀀧􀁩􀀮􀀧􀀧􀁃􀀺􀀧􀀧􀀧􀂷􀀺􀀮􀁾􀀬􀀻􀀧􀀧􀀧􀀺􀀧􀀧􀁾􀀢􀁟􀀧􀁜􀁏􀀮􀀧􀀱􀀧􀁲􀀮􀀧􀀧􀀧􀀧􀀢􀀺􀀭􀀢􀀧􀀧􀀠Wednesday, October 23, 2001 Page 2 oJ2 
" TEXAS CITIES COALITION ON STORMWATER PO Box 1568 Austin, Texas 78768-1568 15121404-7800 Fax 15121703-2785 NOTICE OF MEETING TO DISCUSS TCEQ'S PROPOSED GENERAL PERMIT FOR SMALL MS4S
DATE: November 7, 2002 1:30 pm PLACE: Texas Municipal Center, 1821 Rutherford Lane, Austin INFO: Call Jim Mathews or Joe Freeland (512) 404-7800 If your city is on the enclosed list
you will be required to obtain permit authorization for stormwater discharges from your municipal separate storm sewer system (MS4) by March 10, 2003. Even if your city is not on the
attached list you may be required to obtain a stormwater permit upon designation by the Texas Commission on Environmental Quality (TCEQ). You should attend this meeting if you are concerned
about what your city will be forced to do to comply with stormwater permitting requirements or if you want the opportunity to join with others in influencing those requirements. TCEQ
has proposed a general permit for stormwater discharges from designated small MS4s, A small MS4 is any system designed or used for conveying stormwater including storm sewers, roads,
ditches, or curbs and gutters owned or operated by a city, county, district, or other public body. TCEQ's proposed general permit is an unfunded mandate compelling cities to regulate
their citizens. Among other things it will requiTe cities to: • Develop regulatory programs and enact ordinances for controlling stormwater runoff from construction sites and industrial
facilities even though those sites and facilites must obtain their own permit authorization from TCEQ, • Enact ordinances to regulate stormwater runoff from land development activities,
• Develop and implement a public education program to educate "all constituents" about the adverse effects of stormwater runoff, 
During the TML annual meeting the Steering Committee of the Texas Cities Coalition on Stormwater (TCCDS) met to develop comments on TCEQ's proposed"general permit for stormwater discharges
from municipal separate storm sewer systems (MS4). Because TCEQ's proposed general permit will affect most cities in Texas and because the March 10, 2003 deadline for permit coverage
is imminent, the TCCDS Steering Committee decided to call this \ meeting. Purposes of the meeting include: • Provide information concerning TCEQ's proposed general permits for small
MS4s. • Review the coalitions draft comments on the proposed permit. • Coordinate the submittal of comments by individual members of the coalition. • Explore other opportunities for
improving the draft permit. • Consider possible future coalition activities. TCEQ can and should prevent the stormwater permitting program from becoming an unfunded mandate. Please join
us in developing and sending a loud and clear message in support of rational stormwater programs that do not unnecessarily burden Texas cities. 
TEXAS CITIES COALITION ON STORMWATER PO Box 1568 Austin, Texas 78768-1568 (512) 404-7800 Fax (512) 703-2785 MEMORANDUM To: Texas Cities Previously Participating in the Coalition From:
TCCOS Steering Committee Re: Municipal Storm Water Permitting for Small Texas Cities Date: September 7,2001 Status of Municipal Storm Water Permitting On December 8, 1999, EPA promulgated
its final Phase II Storm Water Rule. Pursuant to this rule, municipalities with populations less than 100,000 are now subject to EPA's storm water program for discharges from their municipal
separate storm sewer systems ("MS4s"), which includes discharges from all streets and ditches as well as from constructed storm sewers. All cities located in Urbanized Areas (as defined
by the Census Bureau) will be required to apply for an NPDES permit (like a wastewater discharge permit) for storm water discharges by March 2003. These cities are known as "automatically
designated" cities. Additionally, all cities not in Urbanized Areas, but with populations greater than 10,000 and population densities greater than 1,000 people per square mile, must
be reviewed by the NPDES permitting authority to determine whether they should also be permitted. These cities are known as "potentially designated" cities. All designated cities are
known as "regulated small MS4s." EPA has listed your city as either an automatically designated or as a potentially designated city. EPA's lists ofcities can be viewed in the December
8, 1999, Federal Register or at the Coalition'S web page -http://.www.mandf.comJAffectedTexasCities.htm. Thus, your city will either have to apply an NPDES permit prior to March 2003,
or be assessed by the 1NRCC to determine the need for a permit by December 2002. EPA has delegated the Phase II NPDES permit program to the 1NRCC. The 1NRCC will develop a permit program
for regulated small MS4s in Texas. The 1NRCC will also develop criteria to assess all other small MS4s and for applying these criteria, at a minimlUll, to all potentially designated
cities. In the last few months, the 1NRCC has started its process for developing a permit program for regulated smaIl MS4s and for developing the criteria to be used to assess whether

I. potentially designated cities will have to also obtain NPDES pernrits. On July 19, 2001, the TNRCC convened the first meeting of a workgroup for stakeholders for the TNRCC's development
of Phase II MS4 Storm Water Permits. The TNRCC plans on having the next meeting of the workgroup in late September or early October. This workgroup will playa significant role in determining
whether Texas will have a reasonable and appropriate permit program for regulated small MS4s and in determining the criteria the TNRCC will use to assess potentially designated cities.
Regardless of whether your city is automatically or potentially designated, it will be affected by the new permitting program that the TNRCC is developing. About the Coalition AI!, you
may recall, the Texas Cities Coalition on Stormwater is a group of about 90 Texas cities who joined together in early 1998 to address issues relating to EPA's Phase II Storm Water Program
as it relates to municipal separate storm sewer systems ("MS4s''), including the implementation of the program by the TNRCC. Your city participated in the Coalition's initial efforts,
but decided to discontinue its participation. A list of the remaining Coalition members and the Steering Committee members is attached. The participating cities represent a broad geographic
and demographic cross-section of small Texas cities, including cities listed by EPA as "automatically designated" and "potentially designated." The Coalition's primary goal has been
to ensure that the municipal storm water programs being developed by EPA and TNRCC are reasonable and appropriate. The Coalition's efforts are intended to benefit all Texas Cities affected
by EPA's Phase II storm water program and have been closely coordinated with the Texas Municipal League. To date, the Coalition has been reasonably successful in achieving this goal.
Through its comments and meetings with EPA on EPA's proposed rule, the Coalition significantly improved EPA's final rule. The Coalition also worked with the TNRCC in developing a general
permit rule that did not unnecessarily restrict the TNRCC's ability to develop a General Pernrit for regulated small MS4s. Additionally, the Coalition is currently challenging EPA's
final rule on Constitutional grounds in the United States Court of Appeals for the Ninth Circuit. This case has been briefed and is awaiting submission to the court. The Coalition's
efforts are now focused primarily on working with the TNRCC to develop an acceptable storm water permitting program for regulated small MS4s that is both effective and cost-efficient.
Additionally, the Coalition plans to develop guidance and other materials to assist the participating cities with the implementation ofthe permitting program. Rejoin the Coalition The
Coalition is committed to working with all affected Texas Cities and the TNRCC to develop a Phase II MS4 program that is both workable and effective. The Coalition's Steering Committee
will meet in Austin on September 21,2001, to refine its strategy for working with the TNRCC in the the development of the TNRCC's Phase II MS4 program. A copy of the proposed 2 
Agenda for this meeting is attached. You are invited to this meeting to provide your input to the Coalition on the approach the TNRCC should use. Your city is ruso invited to rejoin
the Coalition. Our records show that your city paid the initial assessment for participation in the Coalition in 1998, but not the second assessment in 2000. We ask that your city seriously
consider i:enewing its participation in the Coalition at this important juncture. The shape of Texas' MS4 program for small cities will be determined in the next few months, and it is
critical that the small cities ofTexas work together to help the TNRCC design a workable and cost-effective MS4 program. By renewing its participation in the Coalition, your city will
be working with many other small and medium-sized Texas cities in their quest for a scientifically sound and fiscally responsible storm water program, while at the same time gaining
access to wealth of information regarding the implementation of and compliance with municipal storm water regulation. If you are interested in attending the Steering Committee meeting
on September 21't, in rejoining the Coalition, or if you want additional information on storm water permitting, please contact Jim Mathews or Joe Freeland by phone at (512) 404-7800
or by email at jmathews@mandf.com or jfreeland@mandf.com. 3 
TEXAS CITIES COALITION ON STORMWATER PO Box 1568 Austin, Texas 78768-1568 15121404-7800 Fax 15121703-2785 Meeting of the Steering Committee September 21, 2001 Proposed Agenda 1. Status
Report a. Status ofCoalition b. EPA Activities i. Model General Pennit ii. MenuofBMPs lll. Other c. TNRCC Activities d. Challenge to EPA's Final Rule i. Status ofBriefinglIssues Raised
ii. Expected Timeline ll. Additional Participation in the Coalition a. Efforts to Recruit Additional Participants b. Tenns of Participation ID. TNRCC Workgroup on Small MS4 Pennitting
a. Review EPA Model General Pennit· and Proposed Rewrite of Model General Pennit b. Review Draft Positions for TNRCC Subgroups c. Develop and Approve TCCOS Positions for TNRCC Workgroup
d. Coordinate Participation in TNRCC Subgroups IV. Other Business 
TEXAS CITIES COALITION ON STORMWATER PARTICIPATING CITIES City of Addison City of Balcones Heights City of Brenham City of Bunker Hill Village City of Castle Hills City of Conroe City
of Corsicana City of Denison City of Galveston City of Grapevine City of Harlingen City of Hill Country Village City of Howe City of Katy City of Killeen City of Lake Jackson City of
Leon Valley City of Longview City of Mount Pleasant City of North Richland Hills City of Pflugerville City of Port Arthur City of Rockwall City of Selma City of Sunnyvale City of Texarkana
City of Vernon City of West Lake Hills City of Woodway City of Alamo Heights City of Bay City City of Brownwood City of Burkburnett City of Cleburne City of Copperas Cove City of Deer
Park City of Gainesville City of Gatesville City of Groves City of Hedwig Village City of Hitchcock City of Hurst City of Keller City of La Marque City of Lakeside City City of Levelland
City of Lufkin City of Nacogdoches City of Odessa City of Pharr City of Port Lavaca City of Rosenberg City of Sherman City of Temple City of Texas City City of Victoria City of West
University Pia Town of Lakeside City of Angleton City of Belton City of Bryan City of Canyon City of College Station City of Corinth City of Del Rio City of Galena Park City of Georgetown
City of Harker Heights City of Hewitt City of Hollywood Park City of Jersey Village City of Kennedale City of La Porte City of Lancaster City of Lewisville City of McAllen City of Nederland
City of Pampa City of Plainview City of Port Neches City of Seabrook City of South Houston City of Terrell Hills City of Tyler City of Webster City of Windcrest Page 1 of 1Friday, September
07,2001 02:15 PM 
TEXAS CITIES COALITION ON STORMWATER City of Cleburne Larry Barkman Director of Public Works P.O. Box 677 Cleburne, TX 76033 Phone: (817) 645-0942 FAX: (817) 645-0926 City of Denison
Tom Akins . City Attorney P.O. Box 347 Denison, TX 75021 Phone: (903)465-2720 FAX: (903) 464-4499 City of La Marque Gary Rose Director of Utilities 1500 Municipal Drive La Marque. TX
77568 Phone: (409) 938-9287 FAX: (409) 938-9216 City of Pflugerville Ken Martin City Engineer P.O.Box 589 Pflugerville, TX 78691 Phone: 252-8469 FAX: 251-8525 City of Port Arthur Leslie McMahen. P.E. Public Works Manager P.O. Box 1089 Port Arthur, TX 77641-1089 Phone: (409)983-8182
FAX: (409) 983·8294 Friday. September 07,200102:12 PM STEERING COMMITTEE LIST City of Deer Park Ron Crabtree City Manager P.O. Box 700 Deer Park, TX 77536-0700 Phone: (281) 478-7245
FAX: (281) 478-7217 City of Grapevine Matt Singleton Manager of Operations P.O. Box 95104 Grapevine. TX 76099 Phone: (817) 410-3328 FAX: (817) 410-3051 City of Longview David Pullen
Director Director of Public Works P.O Box 1952 Longview. TX 75606 Phone: (903) 237-1010 FAX: (903) 237-1064 City of Pharr Fred Sandoval Assistant City Manager P.O. Drawer B Pharr. TX
78577-1202 Phone: (956) 787-7951 FAX: (956) 783-4688 City of Sherman Charles Rowland City Attorney 405 N. Rusk Sherman. TX 75090 Phone: (903) 892-7304 FAX: (903) 892-7394 City of Del
Rio Rudy Palafox Director of Streets & Drainage P.O. Box 4239 Del Rio. TX 78840 Phone: (830) 774-8631 FAX: (830) 774-8542 City of Killeen Bruce A Butscher. P.E. Director of Public Works
P.O. Box 1329 Killeen. TX 76540-1329 Phone: (254) 501-7620 FAX: (254) 634-2484 City of McAllen Lamberto Balli, P.E. Engineering Dept: Box 220 McAllen, TX 78505c 0220 Phone: (956)972-7070
FAX: (956) 972-7089 City of Plainview Jim Jeffers City Manager 901 Broadway Plainview. TX 79072 Phone: (806) 296-1100 FAX: (806) 296-1125 City of Temple Jonathan Graham City Attorney
#2 North Main Temple, TX 76501 Phone: (254) 298-5674 FAX: (254) 298-5711 
TEXAS CITIES COALITION ON STORMWATER PO Box 1568 Austin, Texas 78768-1568 (512) 404-7800 Fax (512) 703-2785 MEMORANDUM TO: TCCOS PARTICIPATING CITIES FROM: MATHEWS & FREELAND, LLP DATE:
JULY 5, 2000 RE: COMMENTS ON TNRCC'S PROPOSED GENERAL PERMIT RULE The Coalition is currently working with the TNRCC to develop a workable Phase II program. One of the critical parts
of a workable program will be the development of an acceptable general permit for MS4 discharges. Attached are the Coalition's comments on the TNRCC's proposed revisions to its general
permit rule, This is the first step in the process. These rules provide some of the basic provisions for all general permits, The next step will be for the TNRCC to develop specific
general permits for MS4 discharges, which may begin as soon as this fall, The TNRCC's proposed rule suggests that we need to educate the TNRCC staff about the complex issues surrounding
MS4 permitting, particularly for smaller cities. We must make sure that the TNRCC staff recognizes that the regulation of municipalities in their governmental capacities is far different
than the regulation of industrial sources. As the cornments suggest, fee issues are shaping up to be a major point of contention between municipalities and the TNRCC. Realistically under
the TNRCC's proposal, small cities could be facing annual storm water permitting fees of between $2,000 to $10,000 depending on a number of factors. This number seems extremely high
given the EPA's strueture of this program. TNRCC's proposed rule as well as the Coalition's comments can be viewed on the Coalition's web page (http://www.mandf.comlnews.htm). If you
have any questions regarding these comments or on the TNRCC's proposal, please call Joe Freeland at (512) 404-7800. 
THE TEXAS CITIES COALITION ON STORMWATER COMMENTS ON TNRCC'S PRPOSED GENERAL PERMITS FOR WASTE DISCHARGES RULE (Rule Log Number 1999-034-205-WT) Background/General Comment These comments
are filed by the Texas Cities Coalition on Stormwater ("TCCDS" or the "Coalition"), The Coalition is a group of 93 Texas cities who have joined together to address issues relating to
EPA's Phase II Storm Water Program as it relates to municipal separate storm sewer systems ("MS4s"), including the implementation of the program by the TNRCC. A list of Coalition members
is attached as Exhibit A. The participating cities represent a broad geographic and demographic cross-section of small Texas cities, including cities listed by EPA as "automatically
designated" and "poteritially designated." The Coalition's members are required by EPA to obtain coverage under a general permit for their MS4 discharges on or before March 10,2003.
The TNRCC will have to develop these general permits before December 8, 2002. These general permits will be unprecedented in the TNRCC's history because they will cover a vast number
of outfalls and will raise a number of significant legal and practical issues. These permits have the potential to raise significant issues regarding the scope of the TNRCC's legal authority
to compel local govermnents to regulate their citizens in a manner prescribed by the TNRCC. These permits will also determine how implementation and enforcement responsibility for the
statewide storm water program will be shared between the TNRCC and local govermnents. TCCDS anticipates that, in many ways, these will not be traditional permits, but will more closely
resemble cooperative agreements between the TNRCC and local govermnents. To date, the TNRCC has not really begun the difficult task of developing this completely new and comprehensive
program. The Coalition is concerned that these proposed rules are intended to be applied to general permits for MS4 discharges as if they were any other discharge. The Coalition has
informed the TNRCC that it is committed to working with the TNRCC to develop an acceptable MS4 program. Until the complicated and difficult issues relating to general permits for MS4
discharges have at least been identified, the TNRCC should not take actions now that would create problems that would have to fixed later. The Coalition recognizes that the TNRCC needs
to proceed with this rulemaking to be able to issue general permits for storm water discharges associated with industrial activities in the near term. However, because the TNRCC has
until December 2002 to adopt a general permit for MS4 discharges, and to avoid prejudging how general permits for MS4 discharges will be addressed, the Coalition recommends that the
TNRCC exclude general permits for MS4 discharges from the scope of the currently proposed rule. Once the issues relating to the MS4 
pennits have been resolved, the TNRCC can amend this role to include such pennits within the scope of the rule and modify the role to the extent necessary. Specific Comments Introduction
The Coalition is providing the following specific comments for two reasons. First, these comments address some problems that are of obvious concern regarding general pennits for MS4
discharges (without even knowing what those pennits might look like), and second, these comments address problems associated with general penn its for stonn water discharges associated
with industrial activities that the Coalition members will also be subject to in the future. Fees The Coalition's primary concerns regarding the proposed role relate to the issue of
fees. The proposed role (§ 20SA(g)) states that the TNRCC through general pennits may require a person seeking authorization by general penni! to snbmit an application fee of between
$100 and $2,000. Additionally, the proposed rule (§ 205.6) states that a person authorized by a general general pennit shall pay an annual waste treatment inspection fee of at least
$900 per year and may be subject to an annual watershed monitoring and assessment fee of between $300 and $40,000. With regard to MS4 general pennits, the Coalition's concerns regarding
these fee provisions are summarizes as follow: • The TNRCC lacks statutory authority to require application fees for general pennits. Texas Water Code § 26.040(k) states that the TNRCC
may impose a reasonable and necessary fee under Texas Water Code § 26.0291 (waste treatment fees) on a discharger covered by a general penni!, but does not authorize the charging of
application fees under Texas Water Code § 5.235. Moreover, the lNRCC lacks the authority to charge application fees of more than $100. The only authorization to charge a greater fee
is from Rider 5 of the current appropriations act. However, the Texas Supreme Coun has roled that the fixing of official fees is a matter of general legislation and that a rider may
not embody matters of general legislation because of the constitutional prohibition of Article III §35 of the Texas Constitution. Moore v. Shepard, 198 S.W.2d 559 (Tex. 1946). Also see
DM-93. Thus, Rider 5 cannot validly amend the $ 100.00 limit on wastewater pennit fees imposed by water code §5.235. • Local governments should not be required to submit application
fees for discharges associated with MS4 penn its. There is nothing about the NOls and associated stonn water management plans that will require the TNRCC to expend any funds for review.
As envisioned by EPA, the TNRCC will be under no obligation to review and approve a city's management plan. Without any obligation to review and affinnatively approve or deny, the Coalition
sees no reason why the TNRCC should collect an application fee. 2 
• Cities should not be required to submit waste treatment fees for MS4 discharges authorized by a general permit. The Coalition believes that this issue in particular is premature because
the resolution of this issue will depend upon how the general permits for MS4 discharges are ultimately structured. As proposed, these fees are mandatory for all general permits. Given
the uncertainty relating to the structure of the general permits for MS4 discharges, the 1NRCC should consider changing the language in the rule from the mandatory "shall" to the discretionary
"may." Such a change will allow the 1NRCC to assess such fees against general permittees where appropriate but will not prejudge that these fees will be assessed against all general
permittees. Alternatively, the rule should state that such fees may be charged for MS4 pennits and shall be charged for all other general permits. • The Coalition is unsure of the amount
of annual waste treatment fee that a small MS4 would be required to pay. The Coalition is unsure whether existing 1NRCC rule 30 TAC § 30S.503(g)(2) would require a payment of $900 per
permit or $900 per outfall. Each city will have numerous storm water outfalls (every storm drain outfall, every street outfall). If the existing rule requires a fee of $900 for each,
the amount for an MS4 permit could be astronomical and far in excess of the $25,000 cap placed on such fees by Texas Water Code § 26.0291(b). This would compel each small Texas city
subject to storm water permits to pay the 1NRCC $ 25,000 for the luxury of receiving rainfall. • The 1NRCC lacks statutory authority to require watershed monitoring and assessment fees
for general permits. Texas Water Code § 26.040(k) states that the 1NRCC may impose a reasonable and necessary fee under Texas Water Code § 26.0291 (waste treatment fees) on a discharger
covered by a general permit, but the statute does not authorize the charging of watershed monitoring and assessment fees under Texas Water Code § 26.0135(h). • The 1NRCC lacks statutory
authority to assess municipalities for costs of efforts that duplicate water quality management activities described in Texas Water Code § 26.177. If the 1NRCC's general permits for
MS4 discharges contain activities that resemble activities described in §26.177, the 1NRCC will lack the authority to assess fees for such costs against municipalities. With regard to
non-MS4 general permits, the Coalition's concerns regarding these fee provisions are summarizes as follow: • The 1NRCC lacks statutory authority to require application fees for general
permits. Texas Water Code § 26.040(k) states that the 1NRCC may impose a reasonable and necessary fee under Texas Water Code § 26.0291 (waste treatment fees) on a discharger covered
by a general permit, but the statute does not authorize the charging of application fees under Texas Water Code § 5.235. Moreover, the 1NRCC lacks the authority to charge application
fees of more than $100. The only authorization to charge a greater fee is from Rider S of the current appropriations act. However, the Texas Supreme Court has ruled that the fixing of
official fees is a matter of general legislation and that a rider may not embody matters of general legislation because of 3 
the constitutional prohibition ofArticle III §35 of the Texas Constitution. See Moore v. Shepard, 198 S.W.2d 559 (Tex. 1946). Also see DM-93. Thus, Rider 5 cannot validly amend the $100.00
limit on wastewater permit fees imposed by water code §5.235. • The TNRCC should not assess water treatment fees against municipal discharges associated with industrial activity that
are also discharges from the municipal separate storm sewer system. In essence, the TNRCC would be recovering double fees for the same discharge. • The TNRCC lacks statutory authority
to require watershed monitoring and assessment fees for general permits. Texas Water Code § 26.040(k) states that the TNRCC may impose a reasonable and necessary fee under Texas Water
Code § 26.0291 (waste treatment fees) on a discharger covered by a general permit, but the statute does not authorize the charging of watershed monitoring and assessment fees under Texas
Water Code § 26,0135(h). Based on the foregoing comments, the Coalition recommends the following: • The TNRCC should either delete proposed § 205.4(g) in its entirety or should exclude
local governments from the scope ofthe provision, • The TNRCC should either modify the language in proposed § 205.6 relating to annual waste treatment inspection fees to be discretionary
instead of mandatory or should exclude local governments from the scope ofthe provision. • The TNRCC should either delete the language in proposed § 205.6 relating to annual watershed
monitoring and assessment fees or should exclude local governments from the scope of the provision. Sharing ofFees with MS4s The Coalition recommends that the TNRCC include language
in this rule that acknowledges that the TNRCC may share fees with local governments with MS4 permits. The TNRCC is directed by Texas Water Code § 26.0291 to use the fees generated by
the waste treatment fund to pay its expenses in inspecting waste treatment facilities and enforcing the provisions ofTexas Water Code Chapter 26. Texas Water Code § 26.175 provides that
the TNRCC may transfer money or property to a local government for the purpose of water quality management, inspection, enforcement, technical aid and education, and the construction,
ownership, purchase, maintenance, and operation of disposal systems. If the general permits for MS4 discharges require that local governments carry out some of the water quality management,
inspection, education and enforcement functions that the TNRCC would otherwise have to perform, those municipalities will be eligible for funds collected by the TNRCC under §26.0291,
and the TNRCC should expressly recognize through this rule that such transfers may take place. 4 
Eligibility Conditions The Coalition believes that the provisions of the proposed rule relating to eligibility conditions for use of general permits may be unnecessarily strict when
considered in context of MS4 general permits. Under proposed §§ 20S.4(c)(2) and 20S.4(d)(4), the TNRCC must deny or suspend authorization to use a general permit for a number of reasons
including the following: (1) if the discharge is a significant contributor of pollutants impairing the quality of surface or groundwater in the state; and (2) the discharger has failed
to pay any portion of a delinquent fee or charge assessed by the executive director, or is the subject or an unresolved agency enforcement action in which the executive director has
issued written notice that enforcement has been initiated. With respect to the first mandatory ineligibility condition, the Coalition believes that this language could be interpreted
to prevent many of the MS4s in the state from using general permits. For example, the Trinity River downstream of the DallaslFort Worth Metroplex has been identified as being impaired
because ofpollutants from urban runoff. Would TNRCC staff interpret this rule to prohibit any of the small MS4s in the DFW area (which number in the tens if not hundreds) from using
he MS4 general permit for meeting permitting responsibilities? The Coalition recommends that the TNRCC modifY this provision to make the eligibility condition discretionary (such as
those in §§ 20S.4(c)(3) and 205.4(d)(S). With respect to the second mandatory ineligibility condition, the Coalition believes that these provisions will have the unfortunate and potentially
unlawful effect of depriving local governments of their statutory and due process rights to contest decisions made by the Executive Director and to have these issues addressed by the
Commission. Under the proposed rule, a local goveniffient that disagrees with the Executive Director's determination on a fee issue would be denied the opportunity to use a general permit
merely for contesting the Executive Director's decision. To solve this problem, the Coalition recommends that proposed §§ 20S.4(c)(2)(E)(i) and 20S.4( d)( 4)(C) be deleted. If these
rules are not modified, it is essential that the rules define "delinquent fee or charge" and "assessed by the executive director" since these terms have varying interpretations. More
importantly, under the proposed rule, a local government would be denied the opportunity to use a general permit merely for exercising its right to have the Commission review the Executive
Director's allegations. This provision creates an untenable dilemma -if the Executive Director commences an enforcement action against any operation of a local government, the local
government will have to choose between contesting the Executive Director's allegations or continuing to discharge storm water (a reality that will be governed by a power higher than
a local government). The TNRCC should not create such a Hobson's choice by rule. Denial or suspension of use of a general permit because of a contested enforcement action is not required
by statute. In fact, the statute (Texas Water Code § 26.040(h» states that the TNRCC may deny or suspend a discharger's authorization to discharge under a general permit if, after hearing,
the TNRCC determines that the discharger's compliance history contains violations constituting a recurring pattern of egregious conduct that demonstrates a consistent disregard for the
regulatory process. This provision has been incorporated into the proposed rule 5 
at § 205.4( e). Given the presence of this provision, the Coalition does not see the need for §§ 205.4(c)(2)(E), 205.4(c)(3)(D), 205.4(d)(4)(C), and 205.4(d)(5)(E) and requests that
these provisions not be included in the final rule. If the proposed provisions are not modified, it is essential that the rules better clarifY what specific actions of the Executive
Director will justifY the automatic suspension of use of a general permit. Does "an unresolved agency enforcement action in which the executive director has issued written notice that
enforcement has been initiated" mean a notice of violation, or is it an executive director's preliminary report? Notices of Change Requirements Given the scope of the storm water management
programs that will be required by MS4 general permits, and the workings of internal municipal govemment, the Coalition questions whether it will be practical for a local govemment to
give the TNRCC notice of changes in the program at least ten days before the change i.s made as would would be required by proposed § 205.4(h). This is complicated issue that deserves
greater study. For MS4 general permits, the Coalition recommends that the specific provisions regarding notice of changes be addressed in the MS4 general permit rather than in this general
permit rule. Notification ofMS4s Proposed § 205.4(i) states that when requested by a county or municipality, the TNRCC may establish a provision in a general permit for notification
by the discharger to a county judge or mayor of NOIs that would allow discharges within their respective jurisdictions. The Coalition believes that this provision should be a mandatory
requirement of all general permits. Local governrnents need to know ofthe presence of waste discharges within their boundaries and EPA's storm water rules require tbat regulated storm
water dischargers within an MS4 provide a copy of the dischargers NOI to the MS4. Therefore, the Coalition recommends that the TNRCC modifY this rule as follows: Section 205.4(i) When
re<ft!estetl ey a BOunty OF fl\lInieillatity, fue-nUl commission ffia';-shull establish a provision in a general permit I", l1olitielilioe by reqlliring the discharger to notifY it,he
county jUd68 or mayor of a municipality of >1015 tilal would 0118\\ discharges mll"orbcd b,' (f gellem/perm;1 within their respective jurisdiction .... Time to File Individual Permit
Renewal Application Proposed § 205.5(d) states that if the Commission has not proposed to renew a general permit at least 90 days before its expiration date, dischargers authorized under
the general permit must submit an individual permit application before the expiration of the general pennit. In essence, this will require local governrnents to prepare and submit individual
MS4 applications within a 90-day time period. Given the breadth of the existing individual MS4 permit application, no local governrnent would be able to meet this application requirement.
Therefore, the Coalition recommends that the TNRCC modifY its proposaJ to exempt MS4 permits from this 90-day limitation. The Coalition recommends that the TNRCC modifY the proposed
rule as follows: 6 
Section 20S.S(d) If the commission has not proposed to renew a general permit at least 90 days before its expiration date, dischargers authorized under the general permit shall submit
an application for an individual permit before the general permit's expiration. If an application for an individual permit is submitted before the general permit's expiration, authorization
under the expired general permit remains in effect until the issuance or denial of an individual permit. II OJ} uPJ,/iculioll /;w Ull ;nc!h"id!ful th'/'mil lo}' sloi'f!} \l't/ler r/f..,c/wrges
)i'olll municipal .\'Cjh:ra/(' 􀁾􀀧􀁉􀀨􀁽􀁲􀁭􀀠.\t'll'cr _'.l'S/(}ii/S is \Uh"fiflcti Il'ifhiu one yeoI' 􀁬􀁾􀀯􀁩􀀨􀀧􀁬􀀧􀀠fhe general lieFmil \ e.\"/J,raliol7. (fwiwri:::aliofl fflule/'
lilt! ('ypir('(/general pel'mil "ellwins in 􀀨􀁾􀁪􀁫􀀨􀀧􀁦􀀠wuilfhe is."-UUJ}('(, or deniui o(UJJ iJlc/h'lduu//1(,l'mil, 7 
12/01/99 14:23 FAX 512 703 2785 !lATHEWS & FREELAND LLP ., ADDISON IgJ001/009 TEXAS CITIES COALITION ON STORMWATER PO Box 1568 Austin, Taxas 78768-1568 (512) 4Q4.7BOO F•• (512) 703-2785
FAXTRANSNUTTALSHEET FROM: Steering COllll1littee --Texas Cities Coalition on Stonnwater DATE: December 1, 1999 TO: City of Addison -James C. Pierce, Jr., P.E., DEE City of Angleton --Ruth
Hertel City ofBay City •• Clark H. Young City of Belton -Jeff Holberg City of Brownwood -Gary Butts City of Bunker Hill Village --Ruthie Sager City of Canyon --Glen Metcalf City of Clebum"
-Larry Barkman City o( Conroe --Dean Towery City ofCorsicana --Connie Standridge City ofDel Rio --Robert Nettleton Oity ofGainesville --Mike Land City of Galveston .-Robert Gervais City
ofGrapevine •• Matt Singleton City ofHarke, Heights •• Jerry Atkinson City ofHedwig Village --Paul Addington City of Hill Country Village --Terry Lively City ofHowe --Ray Bledsoe City
ofKaty -Johnny Nelson City ofKilleen --Marcus Norris City ofLake Jackson -WIlliam P. Yenne City ofLancaster •• Ashley Slathatos City ofLevelland --Greg Ingham City 'of Longview •• David
PUllen City ofMidland -Rene Franks City ofNacogdoches .-David Smith Cliy ofNOj'Ih Richland Hills _. Grcg Dickens city of Pampa --Bob Eskridge City ofPharr -Fred Sandoval City ofPort
Arthur _. Leslie McMahen, P.E. City ofPort Neches·· A.R. Kimler City of Rosenberg -Jeff Braun City of Selma -Margie Lubianski City ofTemple -Jonathan Graham City ofTexas City -Tom Kessler
City of Vernon _. Jim Murray City of Webster -Roger D. Carlisle City of West University Place -Edward R. MenviUe 􀁔􀁯􀁴􀁾􀁬􀀠Pages Sent -8 + Cover ' ..., City of Alamo Heights --Paul
Sontag City ofBalcones Heights --Roy L. Miller City of Baytown _. Howard W Welispring, IIT, P.E. City ofBrenham --Doug Baker City of Bryan --Bruce Karr City ofBurkbumett --Milee Slye
City,of Castle Hills --D.R. McLaughlin City ofCollege Station --Kathryn Anthony City ofCopperas Cove --Paul M, Boyer, P.E. City ofDeer Park --Ron Crabtree City ofDenison -Tom Akins City
of Galena Park _. Iohn Cooper City ofGatesville --Bob Stevens City ofGroves --Davis Brinson City ofHarlingen --Jacinto Garza City ofHewitt --Paul Holroyd City of Hollywood Park --Roy
D. Lemons City ofJersey Village --R. Dale Brown City afKeoer --Michael H. Barnes, P.E. City ofLa Porte •• Steve Gillett City'ofLakeside -Bill Mohr City ofLeen Valley·-Hank Brummett City
ofLewisville --Steven L. Bacchus City ofLufkin -Debra Cassidy City ofMount Pleasant·· Michael H. Boles, P,E. City ofNederland .-Steve Hamillon City ofOdessa _. Matthew S, Squyres, P.R.
City ofPflugerville --Ken Martin City of Plainview --Jim Jeffers City ofPort Lav.ca _. Thomas J, Blazek City of Rockwall·· Rick Crowley City afSeabrook --Gary Iones City ofSunnyvale
--R.J. Ewalt City ofTexarkan. --Philip M. Ball City ofTyler --Gregory M. Morgan, P.E. City of Victoria --John A. JohnslOu, P.E, City ofWest Lake Hills --Stump Sow.d. City ofWindcrcst
--Nancy Cain 
12/01199 14:24 FAX 512 703 2785 MATHEWS & FREELAND LLP 4 ADDISON I4i 002/009 TEXAS CITIES COALITION ON STORMWATER PO Box 1568 Austin, Texas 78768-1568 (512) 404·7800 Fax (512) 703-2785
MEMORANDUM To: Participating Cities From: TCCOS Steering Committee Re: EPA's Final Phase II Rule Date: November 30"1999 EPA's Final Phase II Rule EPA signed the final Storm Water Phase
II Rule on October 29, 1999. The rule bas not yet been published in the Federal Register, but should be published soon along with EPA's response to comments. Attached is a brief summary
ofthe basic provisions ofthis very complex rule. Mathews and Freeland will prepare a detailed summary of the [mal rule after it is published. This should be distributed to Coalition
members around the first ofthe year. Future Activities of the Coalition The Coalition was originally formed in February 1998 to provide an effective and efficient way for Texas cities
to comment on EPA's Phase II Rule and to work with EPA in the development ofthe rule. As noted above, this work is nearly complete. After the Coalition was formed, TNRCC proposed its
ruleS implementing Section 26.177 ofthe Texas Water Code, the monicipai storm water program mandated by the Texas Legislature. The Coalition was able to work effectively with TNRCC in
developing rules that appear to be reasonable and workable for Texas cities. The Steering Committee met io Dallas on November 18, 1999, during TML's atlllual meeting. The Steeriog' Committee
received a report from Mathews & Freeland and AJan Plummer & Associates, and began discussiog possible future activities for the Coalition. 
12/01/99 14:24 FAX 512 703 2785 MATHEWS & FREELAND LLP 􀁾􀀠ADDISON I4J 003/009 Currently, ilie Steering Committee is studying ilie following possible actions: Challenging EPA's final
rule by judicial review and/or congressional review or independent legislation to amend the Clean Water Act; • Working wiili TNRCC and oilier interested participants to develop an acceptable
state approach for Phase II; • Working wiili ilie Texas Legislature to develop an acceptable approach for Phase II; • Providing Phase II guidance and compliance assistance to Coalition
members; • Coordination wiili ilie Texas Public Works Association. The Steering Committee plans to meet again in January to decide wheilier to pursue any or all of ilie actions listed
above. The Steering Committee would like your ilioughts on iliese issues. Please contact any of the Steering Committee members, or Jim Mailiews to discuss possible future actions by
the Coalition. Congressional Review Feasibility Under Federal law, Congress can disapprove of a major EPA rule, such as ilie Storm Water Phase II Rule, by enacting a joint resolution
within 60 days after the rule's promulgation: Aliliough Congress has never disapproved of a major EPA rule, we believe iliat strong grounds exist for congressional disapproval of EPA's
Phase II Storm Water Rule and would like to assess ilie willingness ofilie current Congress to undertake that review. We know that members of ilie Texas Congressional Deiegation calion
many municipal leaders during ilie longChristmas break. The more cities that raise stormwater issues wiili Congress, ilie more likely it is iliat Congress might be willing to disapprove of EPA's rule, or to make needed changes
in the Clean Water Act. We have attached a briefing paper for use by your city's leaders when meeting wiili members of the Texas Congressional Delegation. It provides the reasons why
we believe that Congress should disapprove of EPA's rule. Please provide copies of tl1is briefing paper to iliose city leaders that may meet with members of of the Texas Congressional
Delegation during ilie break. The Steering Committee will attempt to assess the willingness ofilie Texas congressional delegation to undertake congressional review of EPA's Phase II
Storm Water Rules when we meet in January. We would appreciate any feedback that you can offer to us. Again, please feel free to contact any of the Steering Committee members or Jin!
Mailiews if you have any questions, information or comments. 2 
12/01/99 14:25 FAX 512 703 2785 MATHEWS & FREELAND LLP 􀁾􀀠ADDISON I4J 004/009 TEXAS CITIES COALITION ON STORMWATER PO Box 1568 Austin, Texas 78768-1568 (512) 404-7800 Fax (512)703-2785
BRlEFING PAPER ON WHY CONGRESS SHOULD DISAPPROVE OF EPA'S PHASE II STORMWATER PROGRAM FOR SMALL CITIES November 30, 1999 1. Congress is authorized to disapprove of EPA's Phase II Storm
Water Rules through the Congressional Review Act. o EPA must submit its Phase II Storm Water Rule to each house of Congress. Congress has sixty (60) days (excluding adjournment for more
than three days), to disapprove ofEPA's rule. • A rule shall not take affect ifCongress enacts a joint resolution of disapproval. • A congressional joint resolution of disapproval is
subject to a presidential veto. 2. Congress has not authorized EPA to require permits for stormwater discharges from cities under 100,000 in population ("Small Cities"). • When Congress
amended the Clean Water Act in 1987, it specified that only cities with a popUlation greater than 100,000 were required to obtain stormwater discharge perm.its. • The 1987 amendments
authorized EPA to issue regulations establishing a program to regulate stormwater discharges other than those expressly identified as needing to obtain a permit. These regulations were
to be based on two studies that the 1987 amendments directed EPA to prepare and submit to Congress. In specifying the' minimum requirements for this new program, Congress never used
the word "permit." • The studies mandated by the 1987 amendments were: (1) by October 1, 1988, EPA was directed to report to Congress about the nature and extent ofpollutants in stormwater
discharges from Small Cities; and (2) by 􀁏􀁣􀁴􀁯􀁢􀁾􀀠1, 1989, EPA was directed to report to Congress about the procedures and methods to control stormwater discharges to the extent
necessary to mitigate imp.acts on water quality. • EPA failed to follow congressional intent. No reports were submitted to Congress in 1988 or 1989. Instead, EPA submitted a report to
Congress concerning the procedures and methods it proposed to control stormwater discharges in 1994 
12/01/99 14:25 FAX 512 703 2785 MATHEWS & FREELAND LLP 􀁾􀀠ADDISON 􀁾005/009 before submitting its report in 1995 identifying stonnwater discharges that were not required to obtain a
pennit and detennining the nature and extent of pollutants in such discharges. Simply put, EPA proposed a solution before it had studied the problem as directed by Congress. • EPA now
asserts that "it does interpret the Congressional reporting requirements of Clean Water Act Section 402(P)(5) to be the sole basis for detennining sources to be regulated" under" EPA's
Phase II rule. • Congress has not reauthorized the Clean Water Act or afflnnatively agreed or disagreed with EPA's decision to use the NPDES pennit program to regulate stonnwater discharges
from Small Cities. 3. The NPDES permit program is an inappropriate regulatory mechanism to regulate stormwater discharges from Small Cities. • NPDES permits are too inflexible. NPDES
pennits are subject to a very complex administrative process. The experience of larger cities under Phase I stormwater rules and EPA's administration of NPDES permits for wastewater
discharges suggest that these permits will be very difficult for Small Cities to change or amend once issued. • loe use of a "command and control" program such as the NPDES pennit program
will not further a cooperative effort between Federal, State and local governments to work as partners in protecting the environment. EPA is forcing Small Cities to do EPA's job (regulate
activity that is already subject to EPA's permit requirements). • The use ofNPDES permits will subject Small Cities to enforcement by TNRCC, EPA and citizen suits. Such enforcement of
permit provisions requiring Small Cities to regulate the acts of its citizens is inequitable given that the states and EPA are not subject to comparable enforcement provisions for their
failures to regulate. Moreover, citizen suit enforcement of a Small City's failure to regulate violates the fundamental notion ofa representative democracy. 4. EPA's program violates
tbe United States Constitution. • EPA's approach violates the Tenth Amendment. The United States Supreme Court has held that the United States Constitution does not authorize the Federal
government (including a federal agency like the EPA) to compel State or local governments to enact or administer a Federal regulatory program. • EPA does not have the authority to coerce
cities to do that which EPA and the States are unwilling or unable to do themselves -regulate those activities of the public that have the potential to impact stonn water quality. Although
EPA's water quality goals may be worthy and in fact are shared by cities, EPA's method 2 
12/01/99 14:26 FAX 512 703 2785 MATHEWS & FREELAND LLP 4 ADDISON Im006/009 of achieving these goals distorts the concept of Federalism embodied in the United States Constitution and
infringes upon the Constitution's Tenth Amendment reservation ofpowers in the States and their political subdivisions. 5. EPA's program constitutes Federal land-use planning. • EPA's
goal for this program is to dictate land-use decisions for Small Cities. EPA characterizes this as "pollution prevention" rather than land-use, but the results are the same -EPA will
use this program to dictate reductions in the amount of imperviousness in urban areas. • Congress did not intend fur EPA to intrude into local land-use planning, an area traditionally
reserved to State and local governments, as shown by the text of the Clean Water Act, and the legislative history behind it. In overriding President Reagan's veto of the 1987 Clean Water
Act Amendments, Congress repeatedly stated that the provisions of the bill were not intended to achieve achieve Federal land-use planning. • EPA's approach will have a disasterous effect
on land-use planning as developers flee local regulations in "urbanized areas," resulting in additional urban sprawl. This is likely to result in more detrimental impact on streams as
rural land is cleared and septic tanks constructed. 3 
12/01/99 14:26 FAX 512 703 2785 MATHEWS & 􀁆􀁒􀁨􀁾􀁌􀁁􀁎􀁄􀀠LLP 􀁾􀀠ADDISON I4i 007/009 TEXAS CITIES COALITION ON STORMWATER POBox Austin, Texas 78768-1568 (512) 404-7800 Fax (512) 703·2785
OVERVIEW OF EPA'S FINAL PHASE II STORM WATER RULE What cities are affected? • All cities located in Urbanized Areas (1990 or 2000 census) will be automatically required to obtain permits
for discharges from their municipal separate storm sewer systems (MS4s). • Cities outside of Urbanized Areas with populations greater than 10,000 and population densities greater than
1,000 per square mile may be required to obtain . permits for discharges from their MS4s. The permitting authority (TNRCC) must develop and apply criteria, by December 2002, to determine
whether these cities must obtain permits. • Other cities as designated by TNRCC or EPA for water quality reasons. Are there any waivers or exemptions? • TNRCC may waive permit coverage
fur cities with populations less than 1,000 if the city is not contributing substsntialJy substsntialJy to the polJutsnt loadings of a physically interconnected MS4 and if the receiving
stream has not been identified as bemg· impaired by urban runoff. Generally, the TNRCC will be required to establish that a city cannot use this waiver. • TNRCC may waive permit coverage
for cities with populations less than 10,000 if the TNRCC has evaluated all waters of the United States that receive a discharge from the city, and if the TNRCC haS determined that storm
water controls are not needed based on wasteload allocations. Generally, the city will be required to prove their eligibility fur this waiver. What are the deadlines under the rule?
• October 2000 -EPA issues model permit and "tool box" with fact sheets, guidances, and menu ofBMPs. • December 2000 -TNRCC modifies its NPDES programs ifno statutory changes are required.
• October 2001 -EPA issUes guidance on measurable goals. 
01/99 14:27 FAX 512 703 2785 MATHEWS & FREELAND LLP 4 ADDISON 􀁾􀀰􀀰􀀸􀀱􀀰􀀰􀀹􀀠• December 2001 • TNRCC modifies its NPDES programs if statutory changes are required. • December 2002
-TNRCC issues general permit. TNRCC designates small cities not located in urbanized areas based on criteria developed by the TNRCC. • March 2003 -Regulated small cities submit permit
applicatioll!l or NOls; Small Cityowned industrial sources (landfills, wastewater treatment plants, vehicle shops) submit permit applicatioll!l or NOIs. • March 2008 • Regulated small
cities' programs fully developed and implemented. What permit options are available? • General permit implementing EPA's six minimum measures including ordinances to regulate coll!ltruction
sites, development and illicit discharges. • Alternative individual permits for those small cities that refuse to waive their cOll!ltitutional rights by accepting a permit mandating
the adoption of local ordinances to regulate activity that is already subject to EPA permit requirements. These permits require the submission of a two-part pennit application containing
a significant amount of monitoring data. What will the general permit require? • Will contain at least the following six minimum control measures. • Public education and outreach A permittee
must develop a program to distribute educational materials to the community or conduct eqnivalcnt outreach activities about the impacts of stonn water disebarges on water bodies and
the steps the public can talce to reduce pollutants in stonn water discharges. A measurable goal for this control measure could be the achievement ofa certain percentage reduction in
litter or animal waste detected in discharges. • Public involvement and participation A pennittee must, at a minimum, comply with State, and local public notice requirements. A measurable
goal for this control measure could be obtaining a certain percentage of community to participate in community clean-ups. • llIicit discharge detection and elimination A permittee must
develop, implement and enforce a program to detect and eliminate illicit discharges. A measurable goal for this control measure could be getting a certain percentage ofhouseholds to
participate in household hazardous waste collection events. • Construction site storm water runoff contrul -A permittee must develop, implement and enforce a program to reduce pollutants
in any storm water runoff from construction activities that result in land disturbance of greater than or equal to one acre. A measurable goal for this control measure could be obtaining
an increase in the numbers ofsensitive aquatic organisms in local waterbodies. 2 
12/01/99 14:28 FAX 512 703 2785 MATHEWS & FREELAND LLP 􀁾􀀠ADDISON 􀁾009/009 • Post-construction storm water management -A permittee must develop, implement, and enforce a program to
address storm water runoff from new development and redevelopment projects tbat disturb greater than or equal to one acre. The program must ensure that controls are in place tbat would
prevent or minimize water quality impacts. The permittee must develop and implement strategies which include a combination of structural and/or non-structural best management practices,
use an ordinance to address post-construction runoff, and ensure adequate long-term operation and maintenance of BMPs A measurable goal for this control measure could be the achievement
of a reduced percentage of new impervious surfaces associated with new development projects. • Pollution prevention/good housekeeping for municipal operations -A permittee must develop
and implement an operation and maintenance program that includes a training component and has the the ultimate goal of preventing or reducing pollutant runoff from municipal operations
from activities such as park and open space maintenance, fleet and building maintenance, new construction and land disturbances, and storm water system maintenance. A measurable goal
for this control measure could be obtaining a certain percentage reduction in floatables discharged. How quickly do these programs have to be developed? • The mRCC can give a permittee
up to five years from the date of permit issuance to fully develop and implement a storm water program. What monitoring, recordkeeping and reporting will be required? • macc will be
allowed to reqnire monitoring, but EPA is not requiring any monitoring of storm water runoff. • Records are reqnired to be kept for at least 3 years and must be made available to the
public upon request. • Permittee must submit an annual report that includes: (1) status of compliance with permit conditions, and assessment of the appropriateness of the identified
BMPs and progress towards achieving identified measurable goals; (2) results of information collected and analyzed, including monitoring data, if any; (3) a summary of the storm water
activities to be undertaken during the next year; (4) changes in any identified BMPs or measurable goals; and (5) notice that the permittee is relying on another governmental entity
to satisfy some ofthe permit obligations. How much will it cost to comply with this rule? • EPA estimates that it will cost small cities approximately $9.16 per household per year to
comply with the rule. • For comparison purposes, the City of Austin spends about $22.70 per capita per year (without considering capital costs) on their storm water program. 3 
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TEXAS CITIES COALITION ON STORMWATER PO Box 1568 Austin, Texas 78768-1568 (512) 404-7800 Fax (512) 703-2785 October 18,1999 James C. Pierce, Jr., P.E., DEE Assistant City Engineer City
ofAddison P.O. Box 9010 Addison, 'IX 75001-9010 Re: Contributions Dear Mr. Pierce: According to the Coalition's records, your city requested to participate in the Texas Cities Coalition
on Stormwater, but we have not yet received your contribution. On behalfofthe Steering Committee, I urge you to make this payment now to ensure that the Coalition can continue its work
on the development of rational and cost-effective stormwater regulatory programs on both the state and federal levels. To date, the Coalition has made great strides toward achieving
its goals. The Coalition has submitted comments to EPA on its proposed Phase II storm watertule. Also, the Coalition successfully worked with the lNRCC to make necessary improvements
in the lNRCC's storm water rule. However, there remains much that the Coalition needs to do. EPA's final Phase II storm water rule will be promulgated by October 29, 1999. The Coalition
needs additional funds to be able to thoroughiy analyze and explain the rule for the participating cities. Ifnecessary, the Coalition needs funds to be able to lay the foundation for
any legal challenge to EPA's [mal rule. Additionally, numerous bills have been filed in Congress to revise the existing storm water program. The Coalition needs additional funds to participate
in the development ofany new storm water program. As you should recall, the Steering Committee, at its initial meeting, decided to set the contribution level for participating in the
Coalition at 10¢ per capita. These contributions are deposited directly into a client trust account established on behalfofthe Coalition by the law firm ofMathews & Freeland, L.L.P.
All work authorized to be performed on the Coalition's behalf by its consultants is billed on a tiroe and materials basis, and all bills are reviewed and approved by me, as Chairman
ofthe Steering Committee. Ifyour city does not want to pay its contribution, please let us know so that we can remove your city from the list ofCoalition participants. 
Mr. Jonathan Graham October 18 Page 2 Please make payment ofyour contribution to Mathews & Freeland, L.L.P., at the Coalition's address shown on the preceding page as soon as possible
to ensure that the Coalition's efforts will continue. Ifyou need a Federal Tax ID number for your payment, please use 74-2862896. Ifyou have any special billing needs (such as an invoice
for a specific amount), please call Joe Freeland at the number shown on the preceding page. If you have any questions, please feel free to call me at (254) 298-5674 or Jim Mathews or
Joe Freeland at the number shown on the preceding page. Sincerely, Jonathan Graham City Attorney, City ofTemple Chairman, Texas Cities Coalition on Stormwater 
: TEXAS PHASE II STORM WATER CITIES PARTICIPATION AGREEMENT The City listed below 􀁡􀁧􀁲􀁾to participate in ajoint effort ofTexas cities to address legal and regulatory issues relating
to the Environmental ProteCtion Agency's Phase II storm Water Program. This joint effort will be led by a Steering Committee made up of representatives ofsome of the participating cities.
The City authorizes the law finn ofMathews & Freeland, L.L.P. to perform legal and regulatory services on bebaIfofthe group at the direction ofthe Steering Committee. The City's contribution
to this joint effort will be determined by-the Steering Committee, but this contribution will not exceed ten cents (l0¢) per capita. 1--Ij>-rr a ofAuthoriZed 􀁾􀀠ntative Date 􀁦􀁢􀁳􀁬􀁾􀁾􀁟􀁇􀁾Ul/fte
s C. f{eYce.; Jr:, Printed Name -Title t CITY: /own of-􀁾􀁬Se>V1 CONTACT PERSONIPOSITJON: 􀁊􀁁􀀮􀁾􂂬􀀵􀀠C AeV'&..€l dr. I P'e-.'I DE£ ,I 􀀦􀁓􀁌􀀧􀁩􀀧􀀾􀁾􀀠􀁡􀀮􀁾􀀠M,ne-Rr ADDRESS: £0.
Box: qt!)ID Return this form by mail or fax by February 20, 1998*, to the following address: Mathews & Freeland, L.L.P. Fax: (512) 703-2785 P.O. Box; 1568 Austin, Texas 78768-1568 *
Byretuming this form before Februazy 20, 1998, you will be able to receive a copy ob Briefing Paper and Draft Comments, which will be circulated to Participating Cities prior to the
scheduled March 2, 1998, Steering Committee meeting. However, failure to return this form by February 20, 1998, will not preelude your ability to subsequentlyjoin the group. TOTAL P.01