q&a+water: Jon Niermann

Chairman of the Texas Commission on Environmental Quality

In this issue’s Q&A, Texas+Water Editor-in-Chief, Dr. Todd Votteler, interviews Jon Niermann, Chairman of the Texas Commission on Environmental Quality (TCEQ).

Niermann represents the agency on the Environmental Council of the States (ECOS) and serves as Governor Abbott’s appointee to the Western States Water Council and the Good Neighbor Environmental Board federal advisory committee. He is also responsible for the administration of funds that Texas receives from the Volkswagen State Environmental Mitigation Trust.

Before his appointment, Niermann worked closely with the agency in roles at the Texas Attorney General’s office, including assistant attorney general and chief of the Environmental Protection Division. In these roles, Niermann led the Texas delegation to negotiations that resolved the state’s claims relating to the Deepwater Horizon disaster. He has also represented the state of Texas before federal appellate courts, including as the lead attorney on several petitions for review of EPA rule making actions under the federal Clean Air Act.

Before entering public service, Niermann was an environmental attorney in private practice. He began his regulatory career as the safety and environmental manager for a heavy-equipment manufacturer.

Niermann earned a bachelor’s degree in history from the University of California at Santa Barbara. He earned a master of business administration and juris doctor from the University of Oregon.

What should the public know about TCEQ’s response to the pandemic?

Our first obligation as citizens is to slow the spread of the COVID-19 virus. Even though some of the hotspots for the pandemic may be beyond their initial peaks, it is critical that we continue to follow CDC recommendations for suppressing transmission, including maintaining our physical separation, washing our hands frequently and thoroughly, avoiding touching our faces and wearing a face covering in public.

TCEQ has adapted to the pandemic by adjusting the way we serve our fellow Texans. That includes working remotely and taking other measures to encourage physical separation. I am proud of how nimble our staff has been to maintain nearly the full suite of agency services. As it relates to water, TCEQ’s watermasters and investigators remain in the field to continue our compliance counseling and enforcement functions. Our agency continues to process applications for water rights and TPDES permits, among numerous other authorizations. And we continue monitoring our drinking water supplies, receiving and reviewing over 162,000 analytical results each month.

COVID-19 is a type of virus that is particularly susceptible to disinfection. Standard treatment and disinfection processes for our drinking water are expected to be effective against it. TCEQ is emphasizing the importance of maintaining adequate disinfectant treatment at public water systems (i.e., a minimum of 0.2 mg/L free chlorine or 0.5 mg/L chloramine measured as total chlorine) to ensure continued protection, as required in Title 30 Texas Administrative Code § 290.104(f)(2).

For more information about TCEQ’s response, please see TCEQ’s COVID-19 website. It includes a wealth of information, such as guidance for public drinking water systems and wastewater treatment systems as well as details on extensions of certain reporting requirements, such as those for stormwater general permits and TPDES individual permits. Finally, whether you represent a regulated entity that would like assistance with a compliance issues or are a citizen with concerns about your water, please let us know. We are eager to help!

What is the mission and history of the Texas Commission on Environmental Quality?

Mission: The Agency’s stated mission is: “The Texas Commission on Environmental Quality strives to protect our state’s public health and natural resources consistent with sustainable economic development. Our goal is clean air, clean water and the safe management of waste.” This mission is a responsibility that all Texans share. The better we all work together and communicate with each other, even recognizing that there will be policy disagreements grounded in diverse and deeply held views, the better the environmental outcomes. TCEQ is a forum for that work and communication, consistent with the direction provided by our elected representatives.  

History: The history of TCEQ’s water program is long and varied. State regulation of water reaches back more than a century, having inherited the water law of the previous century. Water rights, water quality, and drinking water legislation in Texas all predate the landmark federal legislation of the 1970s. Over the decades, Texas water programs and agencies have formed and reformed, leading ultimately to the agency’s present-day Office of Water. Following is a timeline of major milestones along the way: 

Click on the buttons below for additional information.

Today, TCEQ’s regulation of water is organized into four divisions that comprise the Office of Water:

Click on the buttons below for additional information.

As Chairman what are your top priorities for TCEQ?

My immediate priority is to support TCEQ’s employees and the State of Texas in our response to the COVID-19 pandemic. That means emphasizing the importance of slowing the spread of the virus and encouraging compliance with the CDC’s recommendations. It also means supporting the agency’s efforts to adapt its delivery of services to protect our employees and the communities they serve—with the aim of maintaining the agency’s services.

Even as our agency responds to the pandemic, Texans can be confident that TCEQ continues its work to protect public health and the environment. That confidence is a value in and of itself. Perhaps more importantly, however, the agency’s work supports the efforts of governmental and private sector entities both to maintain critical services and to interrupt transmission of the virus.

While the entities that TCEQ regulates are likewise adapting to the restrictions imposed by the pandemic, they are also delivering safe drinking water, keeping the lights on and fueling the supply chains that restock our grocery shelves. Many have also ramped up production of materials necessary to produce sanitizing products, medical equipment and personal protective equipment. They do that in an environmental regulatory context. TCEQ’s job is to help deliver regulatory services in a manner that is both responsive and protective.

Consistent with that, but not limited to the context of the COVID-19 pandemic, I seek to maintain the sense of mission and spirit of service that is characteristic of the agency’s outstanding staff, to respect the diverse experiences and voices of our staff and the communities they serve, to improve the quality of TCEQ’s communication with and services to all Texans, and to be faithful to sound science and to the authority the legislature has given us. I am confident that these priorities will help us achieve the best public health and environmental outcomes.

What has been your most interesting water related experience since you have been at TCEQ?

In the fall of 2017, I joined our Rio Grande Watermaster and other staff from our agency’s Water Availability Division for a tour of the Rio Grande from Fort Quitman to the Amistad Reservoir. Along the way, we witnessed firsthand the characteristics and features of this river segment, an area with significant and complex water availability issues.

Fort Quitman is located about 80 miles southeast of El Paso. It marks the upper limit of the Rio Grande Watermaster’s jurisdiction. It is also the dividing point between the 1906 Convention with Mexico (upstream) and the 1944 Treaty with Mexico (downstream), which divide these waters between Mexico and the United States.

I walked out on a small dam there and surveyed a meager and slowly flowing watercourse that you would normally not recognize as a river. But it supported a thin ribbon of green vegetation against the dry sandy expanse of the Chihuahuan Desert. It was remarkable for the mosquitos, which were both unexpected and overwhelming. That green ribbon provided habitat and a highway for a vector bringing the threat of the Zika virus and other diseases all the way to El Paso.

The stretch of river from Fort Quitman downstream to Presidio, Texas, is sometimes referred to as the Forgotten Reach. Water there is scarce. The river is often dry and it is isolated from towns and people. Just north of Presidio is the confluence of the Rio Grande and the Rio Conchos. When our group visited the confluence, Mexico was releasing water into the Conchos at a volume very much recognizable as a river.

The Rio Grande, it seemed, was in fact two rivers. One with its headwaters in Colorado’s Rocky Mountains and terminating, if not in El Paso, in the Forgotten Reach; the other with its headwaters in Mexico’s Sierra Madre Occidental Mountains, feeding the Rio Conchos and then the Rio Grande from Presidio to the Gulf of Mexico. The legal regimes support the idea that there are two rivers, with the 1906 Convention with Mexico and the Interstate Compact among Colorado, New Mexico and Texas governing the Rio Grande above Fort Quitman and the 1944 Treaty and Texas’s accounting system for water rights (unique to this stretch of the Rio Grande) governing allocation below Fort Quitman.

The tour continued the next day from Presidio, through Big Bend Ranch State Park and into Big Bend National Park. That drive includes a stretch of Farm to Market Road 170, also known as River Road, just above Lajitas that is famous for its views—stark, wild and stunningly beautiful. We stopped again in the National Park where the river exits Santa Elena Canyon and saw firsthand the importance of the Rio Conchos to water users within and near the National Park.

From Big Bend, the group took the long drive and then a short break at the Pecos High Bridge on U.S. Route 90, near the confluence of the Pecos River and the Rio Grande. Unlike Rio Conchos, the flow of the Pecos River into the Rio Grande belongs entirely to the United States. The High Bridge is an engineering and scenic marvel.  

To conclude our trip, the International Boundary and Water Commission treated our group to a tour of Amistad Dam. Amistad Reservoir, together with Falcon Reservoir downriver, provide the storage capacity for this segment of the river and help ensure that Rio Grande Valley water users have an adequate supply.  

The trip was no doubt interesting. It also provided me with insights and a firsthand understanding of the geography, geology, hydrology and infrastructure, as well as a sense of the people and industry in this border region. All of this is enormously helpful in understanding the legal and policy issues that pertain there.

Finally, I have to thank our Rio Grande Watermaster, who traverses some of the most remote and rugged terrain in the nation, engages water users and sometime water thieves with charm and diplomacy, crosses paths with refugees and smugglers, clears pumphouses of their rattlesnakes, and does it with all with skill and a wonderful sense of humor.

What aspect of your previous experience has been the most valuable to you as TCEQ Chairman?

My experience working in the Office of the Attorney General was invaluable in helping prepare me for my current role. By leading the Environmental Protection Division, I was able to gain a better understanding of state government and the array of the state agencies that the office represented. More specifically, as one of several division lawyers who represented TCEQ, I had the good fortune to work with agency leaders, learn about the agency’s issues, and experience firsthand TCEQ’s culture and the impressive dedication and expertise of its staff.

Now, as the agency client, I have a deep understanding of what the Attorney General’s Office needs to best represent the Commission as well as the capabilities and skills of that Office. That helps set the Commission up for success on the defense side of the docket and expands TCEQ’s reach on the enforcement side.

As a member of the Western States Water Council, what are some of the areas where Texas is providing the model for other western states?

There are several Texas initiatives that I’m excited about. But let me begin with a few observations about the Council. The eighteen states that form the Western States Water Council tend to have arid climates. Given the history of water scarcity, this part of the county largely follows the prior-appropriation doctrine (first-in-time, first-in-right) for water rights, as opposed to riparian water rights recognized in the eastern states. The western states are also often similarly situated on water quality issues, for example how federal water quality laws pertain to lands normally bereft of water, as the West is often bereft of water. The Council zealously guards its member states’ ownership of water in their respective states. The western states share an interest in coordinating to quantify and forecast water resources, to meet need and prepare for both floods and drought. Some of our states share important watercourses with one another, the subject of interstate compacts, or internationally, by treaty. These and other commonalities bind the western states and give the Council plenty to discuss both among its membership and, collectively, with our federal agency partners and Congress.

There are also some significant differences among the western states. For example, groundwater is considered a private property right in some western states, Texas included, while others treat groundwater as state water. Management regimes therefore differ, with some states managing surface water and groundwater conjunctively. In addition, issues related to federal lands, tribal rights and Bureau of Reclamation projects have a greater profile outside of Texas. Of course, each state has its own unique geography, hydrology, history, industry, politics and laws.

Given all of that, I do not want to presume that a Texas solution will necessarily be right for its sister states. However, some of Texas’s initiatives may be a model, and here are a few of my candidates.

What do you consider to be the biggest challenge facing Texas over the next 20 years regarding water?

Texas’s greatest natural resource challenge is providing a reliable water supply for our state’s growing population. But there is quite a bit of opportunity there as well and Texans are engaged to find solutions. Our sister agency, the Texas Water Development Board, is charged with identifying the state’s water needs and planning for the infrastructure to meet those needs, which it does in coordination with local planning entities as well as the TCEQ.

Our agency’s programs have seen efforts to build and improve infrastructure, such as aquifer storage and recovery (ASR), off-channel storage, desalination facilities and improvements to capture excess flows; to develop alternative sources, such as brackish waters and reclaimed effluent, as noted above; and to amend water rights, sometimes in novel ways, to most efficiently utilize the existing water sources. For example, several major water authorities have updated and developed reservoir operations permits and plans that outline the management and use of water in a string of reservoirs, which is part of an effort to efficiently move water through and among connected impoundments to deliver water for its ultimate use. And a more robust water market is on the horizon. Whatever the means, TCEQ is energized by its mission to work with its stakeholders to meet the needs of an increasingly complex water management landscape.