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:
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Until 1840, water rights were governed by Spanish and Mexican civil law, which recognized the governor’s ownership of water and domestic and livestock riparian rights. In 1840, the Republic of Texas adopted English common law, which included riparian rights for irrigation, domestic and livestock use, while recognizing historical uses.
Beginning in 1889 and extending through the 1920s, the Legislature enacted several irrigation statutes that established the state’s ownership of surface water and recognized declared appropriations of water, leaving uncertainty about how to reconcile riparian rights.
Legislature enacted the Texas Irrigation Act to form the Texas Board of Water Engineers, which was tasked with establishing procedures for determining surface water rights. Legislature also established a public health program within the State Board of Health to educate Texans on the prevention of water borne disease.
Beginning around 1917 and extending through 1929, the Legislature authorized the creation of conservation and reclamation districts, freshwater supply districts, water control and improvement districts, and the first river authority.
Texas Department of Heath developed regulations for public water systems that are the foundation for our current public water system regulations.
Legislature authorized the Texas Department of Health to enforce drinking water standards for public water systems.
Legislature declared that groundwater is private property and authorized the creation of underground water conservation districts.
Legislature created the Texas Water Pollution Control Advisory Council within the Department of Health to focus on controlling water pollution.
Legislature established the Texas Water Development Board to forecast water supply needs and fund water supply and conservation projects.
Legislature established the Texas Water Pollution Board, the state’s first pollution-control agency, to replace the Water Pollution Control Advisory Council.
Texas Water Commission replaced Texas Board of Water Engineers.
Texas Water Rights Commission replaced Texas Water Commission
Legislature enacted the Water Rights Adjudication Act, merging the riparian rights system into the prior appropriation system and requiring any person claiming a riparian water right to file a claim. Legislature enacted the Texas Water Quality Act to address water pollution and establish the Texas Water Quality Board, replacing the Water Pollution Control Board. The Water Quality Board adopted the first Texas Water Quality Standards, approved the following year by the Secretary of the Interior.
Congress passed the Clean Water Act to address surface water pollution nationally.
Congress passed the Safe Drinking Water Act to regulate safe drinking water nationally.
Legislature created the Texas Department of Water Resources, combining the functions of Texas’s three water agencies: the Water Rights Commission, the Water Development Board, and the Water Quality Board. EPA approved Texas’s primacy for the regulation of public water supply systems under the Safe Drinking Water Act.
Texas Water Commission replaced Department of Water Resources. Texas Water Development Board is recreated to plan for and fund water supply projects.
Legislature transferred responsibility for drinking water and municipal solid waste from the Department of Health to the Texas Water Commission.
Legislature established the Texas Natural Resource Conservation Commission (TNRCC), combining the regulation of air, water and waste into a single agency.
TNRCC is renamed the Texas Commission on Environmental Quality.
Today, TCEQ’s regulation of water is organized into four divisions that comprise the Office of Water:
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Water Availability Division
Processes water right permits and amendments, ensures compliance through its watermaster program, supports the interagency Texas Groundwater Protection Committee, and supports Texas’s five interstate river compact commissions.
Water Quality Division
Issues wastewater authorizations under the Texas Pollutant Discharge Elimination System and the Texas Land Application Permit program, implements the Texas Surface Water Quality Standards, conducts state water quality certifications for Clean Water Act Section 404 dredge and fill permits, and issues authorizations for reuse of treated wastewater effluent.
Water Quality Planning Division
Runs Texas’s Nonpoint Source Pollution Program, Total Maximum Daily Load Program, Water Quality Standards Program, Surface Water Quality Monitoring Program, Clean Rivers Program, Galveston Bay Estuary Program, and Coastal Bend Bays and Estuaries Program.
Water Supply Division
Oversees the production, treatment, quality, and delivery of drinking water for the public by implementing the Safe Drinking Water Act for more than 7,000 public water systems that provide drinking water to approximately 28 million Texans and provides technical and operational assistance to avoid and minimize outages.
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.
Water Rights Viewer
TCEQ recently developed an online, map-based water rights viewer that provides access to water rights information, including images of source documents, and that allows the user to query based on either location or type of authorization. It is a great tool for transparency and simplifying research on water rights in Texas.
As water systems search for new sources of water, some are considering reclaiming effluent from municipal wastewater treatment plants not only for non-potable irrigation or industrial uses, but for potable uses as well. TCEQ’s engineers and scientists have the expertise to guide public water systems through the process of selecting appropriate treatment technologies and receiving approval for these technologies—ensuring the treated water is safe for human consumption.
Texas was the first state to authorize and implement a direct potable reuse project. The state now has several projects in the planning and development stages. This is a complex endeavor and requires a great deal of expertise as well as careful evaluation. Texas’s approach requires a pilot program where each supplier proves that its system will meet Safe Drinking Water Act requirements under a variety of conditions.
The search for alternate water sources has increasingly led communities to consider using their brackish groundwater. In 2015, the agency revised its rules to streamline construction approval for public water systems seeking to build brackish-water desalination facilities. Historically, the use of reverse osmosis membranes or other desalination techniques required time-consuming, site-specific pilot testing. The streamlined approach in the new rules allows the use of now-proven desalination technologies without the hurdles of TCEQ’s process for approving innovative or alternative treatment technologies.
Drinking Water Assistance
Turning from permitting to operations, TCEQ’s drinking water program has organized several initiatives to support public drinking water systems. These include:
Drought Response Task Force – Established during the drought of 2009-2015 to assist troubled systems with limited or stressed water supplies, the Task Force helps identify options for protecting infrastructure and extending limited water supplies. The TCEQ intensively monitors a targeted list of public water systems experiencing emergency drought conditions, those with either a limited (180 days or less) or an unknown supply of water remaining. Public water systems self-report their status and identify problems as a result of drought conditions to TCEQ through an on-line drought reporting form or direct contact with TCEQ staff. Systems may also report infrastructure malfunctions such as surface water intakes no longer being submerged due to declining reservoir levels or wells that have stopped producing due to declining groundwater levels. These situations require immediate attention, not only to address water shortage but also to protect infrastructure, such as pumps, that may suffer damage if operated without water.
Financial, Managerial, & Technical Assistance (FMT) – The TCEQ contracts with the Texas Rural Water Association to assist systems with financial, managerial, and technical (FMT) expertise. Through the contract, the TCEQ provides public water systems assistance with infrastructure assessments, alternate source evaluations, water loss, and water treatment optimization. During Fiscal Year 2019, FMT assistance contractors completed 830 assignments.
The Texas Optimization Program (TOP) — TOP is a voluntary, nonregulatory program that TCEQ implements to improve the performance of surface water treatment plants without major capital improvements. The goal of optimization is to lower the risk of waterborne disease by reducing the number of pathogenic organisms that could pass through a treatment plant. Optimization of a surface water treatment plant is achieved by identifying and addressing the various factors that limit its performance. TOP has made dramatic improvements. During Fiscal Year 2019, the Program assisted over 57 public water systems with targeted technical assistance assignments and over 40 technical trainings at various Texas Water Utility Association district meetings.
Compliance Monitoring — Texas has implemented a system to ensure collection of drinking water samples from all public water systems in the state on a regular basis. The agency oversees a contract for the monitoring of 102 constituents in drinking water at over 7,000 public water systems. On a monthly basis, TCEQ migrates over 162,000 analytical results which are then evaluated for compliance with state and federal drinking water standards
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.