It’s Still Hot at Sunset: TCEQ’s Sunset Review

by Nathan E. Vassar

Once every 12 years, the Texas Commission on Environmental Quality (“TCEQ”) undergoes a performance review by the Texas Sunset Advisory Commission and the Texas Legislature. TCEQ is currently in the middle of such review as its processes are evaluated and scrutinized on every front from permitting to enforcement, and across programs and its charges of environmental oversight. The process, as can be the case with Sunset reviews of other agencies, has included detailed legislative and self-assessment reports, along with public comment and testimony from stakeholders, citizens, and industry groups across the state.

Ultimately the review is intended to hold up to the light TCEQ’s performance against the backdrop of its legislative charges, as established in statute. State administrative agencies that oversee the day-to-day regulation of thousands of activities across the state do not have perpetual existence – at the end of each entity’s assigned schedule, the review process takes place and as a technical matter, either the agencies are continued for another period (often with recommended changes), or the Legislature has the option to allow expiration or “sunset” of such agencies. As can be the case in Sunset reviews, it is not uncommon to see recommendations that go beyond existing statutory requirements. Outside factors and recommendations come into play that often reflect views that certain underlying statutory provisions should change. Accordingly, a continued agency existence can also dovetail with new legislation specifying requirements for the agency that did not previously exist.

Several details from the TCEQ Sunset process to date are worth highlighting. Some of the initial recommendations included adding additional public participation options, such as public meetings on the front end of a permit application. Such approach would mean additional comments for agency staff to address and potentially incorporate during the technical review processes. It is not lost on many that adding new steps in various permitting regimes that already require significant work and take months and months (or longer) to complete will extend permitting timeframes even longer. That recommendation also pulls against some of the other findings, including that TCEQ should expedite many of its internal review processes. Other recommendations – some of which are not likely to be viable – include reinstating a water right cancellation process that exists but has not been implemented for decades.

Public comments have been copious and impassioned. At a hearing in late June in Austin, citizens filled the Capitol, asked Legislators to charge TCEQ with additional authority, and offered comments about locations of certain activities, raising arguments familiar to those who have been tracking recent environmental justice initiatives. As noted above, some of the public comments effectively asked to expand TCEQ’s current charges beyond existing statutory bounds. Written comments closed in late June and Lloyd Gosselink Rochelle & Townsend, P.C. attorneys have been involved with several organizational comment letters. One undercurrent across many perspectives is the need for additional staffing in order for TCEQ to process the many activities, permits, and enforcement needs reflective of a state that continues to attract new businesses and people from elsewhere in the nation.

TCEQ is one of the primary agencies our clients, consultants, and colleagues join us in engaging with on a daily basis. The Sunset review process can be searching and difficult, at times, and we endeavor to work with the agency and its self-initiated efforts to maintain and recommend improved performance across many environmental media. As we march toward the 2023 Legislative Session, we will continue to track the TCEQ Sunset Review process and will keep The Lone Star Current readers apprised of developments.

Nathan Vassar is a Principal in the Firm’s Water Practice Group. Please reach out to Nathan with any questions about the TCEQ Sunset process and if there are ways to improve the regulatory relationship with the agency moving forward. If you would like any additional information or have questions related to these or other matters, please contact Nathan at 512.322.5867 or nvassar@lglawfirm.com.