Local Representative Files Bill to Change Pollution Public Notices

State Rep. Stan Kitzman wants to flush the requirement for polluters to publish public notices in local newspapers.

Kitzman, who represents State House District 85, which includes Fayette County, filed a bill to that effect in the House. The Federal Clean Water Act of 1972 requires entities that release pollutants into water bodies to apply for a permit under the National Pollutant Discharge Elimination System (NPDES). The Texas Commission on Environmental Quality (TCEQ) administers the NPDES permit program in Texas.

Texas law mandates entities that apply for an NPDES permit to publish a public notice twice in local newspapers that serve the area affected by the permit. The notices specify what kind of pollution will be discharged along with information about how the public can contest the application. Often, these entities are cities or other local government entities.

“This requirement is costly for permit applicants and limits public access,” Kitzman said during a public hearing for his bill at the Capitol last Tuesday. “Many of these applicants are public entities that are required to pay thousands of dollars to satisfy public notice requirements each year.”

Kitzman’s House Bill 2369 would eliminate the newspaper notice requirement.

Julie Nahrgang, executive director of the Water Environment Association of Texas, testified at the hearing that small cities that operate only one sewer plant may spend only a few hundred dollars annually in advertising costs for public notices. Utilities in large metro cities spend tens of thousands of dollars a year on public notice advertising. She said Kitzman’s bill would save money for the utilities and their rate payers.

Instead, entities that discharge pollutants would be allowed to publish notices solely on TCEQ’s website. Kitzman says that some communities do not have a newspaper. When entities in those counties need a discharge permit, they must publish the public notice in a newspaper in an adjacent county that the affected residents might not read.

“If nobody from the affected area is reading the paper from the next county over, it isn’t doing any good,” Kitzman said in an interview with the Record last Thursday.

Kitzman said entities applying for a permit could still advertise in a newspaper if they wish, but it would not be required.

“They can do what fits best for their community,” Kitzman said.

Kitzman presented his bill before the House Natural Resources Committee on March 28. During the hearing, Rep. Erin Zwiener of Hays County questioned whether entities that apply for a discharge permit have an incentive to notify the public about their plans to release pollution into waterways.

“Somebody reading the results of Friday night’s football game wouldn’t have the opportunity to look down the page and say, ‘Oh, this is going on? I had no idea. I wonder if I should ask about this?’” Zwiener said. “The happenstance involved with reading the paper and encountering things you didn’t expect to, versus switching to a website where every single person who gets information there has to have a pretty high baseline of knowledge – this is a concern to me.”

Several representatives from water utilities and associated trade groups spoke in favor of Kitzman’s bill at the hearing.

“We believe this bill is a common sense approach that brings three benefits to all Texans,” said Nahrgang. “It brings greater transparency. It reduces overall expenses to our utilities and rate payers. And it reduces a regulatory burden that the EPA has already alleviated at the federal level.”

“This is a step in the wrong direction if transparency is truly your goal,” said TPA Executive Vice President Donnis Baggett at the committee hearing.

FarmersLumber.com Baggett said Texas newspapers reach more readers today than at any point in the history of newspapers in Texas. He said TPA recently conducted a survey of Texans that found that 88 percent of the 850 respondents said newspapers are the most trusted repository for notices compared to county, city or state websites.

“How many people are going to wake up in the morning and say, ‘I think I’m going to check the TCEQ website to see if there’s some governmental activity that I need to know about’?” Baggett asked. “And if they did, could they find it?”

A recent episode in Fayette County illustrates the importance of public notice.

Last May, the Lower Colorado River Authority (LCRA) filed a request with TCEQ to amend their stormwater discharge permit for the Fayette Power Project. LCRA wanted TCEQ to relax monitoring requirements for selenium in water runoff from its coal pile. Selenium can be toxic to waterfowl and inhibits reproduction of fish and other aquatic life.

At the time, LCRA published a public notice in the Fayette County Record. The Record learned about LCRA’s plans through the public notice.

The full permit application and supporting documents comprised hundreds of pages. LCRA could have published these documents on the internet and placed a link in the notice so that the public could easily access them. Instead, the notice said the documents were available for public inspection at La Grange City Hall. When the Record went to view the documents, no one from City Hall knew anything about them.

City staff later discovered that a person from LCRA came to City Hall about a week before and placed the documents on a table in the lobby without telling anyone. City staff said LCRA never told them about the public notice or that members of the public could view the documents.

The Record published a story about this on June 7 of last year. Local officials took notice, including then-County Judge Joe Weber. Weber called for LCRA to hold a public hearing in La Grange to assure local landowners and fishermen that their plans would not harm the Colorado River and its tributaries. Instead of holding a public hearing, LCRA decided to withdraw its permit application.

The Record asked Kitzman who requested him to file the bill. Kitzman said he could not recall.

“Newspapers have done this job effectively and efficiently for almost 200 years in Texas,” Baggett said in an interview with the Record this week. “The first issue of the oldest paper still publishing in Texas, The Galveston Daily News, had a public notice on the front page. That public notice was signed by Sam Houston. It got noticed. The notice that The Fayette County Record ran about LCRA’s plan to discharge more selenium into Texas waters also got noticed. That’s what it was intended to do. That is a public service. Reducing that visibility is a public disservice.”

Some public notices regarding environmental issues, such as the one LCRA published last year, are already available on the TCEQ website, tceq.texas.gov. But good luck finding them.

“Government websites are one of the worst ways to reach people, unless they’re actively looking for the information,” Baggett told the Record. “Even then they have a hard time finding it on government websites. The website operated by (TCEQ) is notoriously hard to navigate. So the idea of posting notices of permit changes to allow discharge of pollutants into Texas waters on a government website alone is a very poor idea for engaging the public and making them aware of what the government is allowing.”

Kitzman told the Record last week that he has not searched for a permit on the TCEQ website “in a long time.”

Thankfully, Texans have a much better option when they want to find a public notice that affects their lives. The Texas Press Association (TPA) publishes every public notice placed in Texas newspapers on the website texaspublicnotices.com. The website is free. Members of the public can search for public notices by date, location or type of public notice. They can even sign up for email notices.

State Senator Lois Kolkhorst, who represents Fayette County, filed a bill this session that would essentially make texaspublicnotices.com the official repository for public notices in Texas. Rep. Todd Hunter of Corpus Christi authored a companion bill in the State House. TPA has agreed to provide this service at no cost to the State or to users viewing the website.

Kitzman said he was unaware of bills by Kolkhorst and Hunter, but he said he would look into them.

“I’m not trying to hurt the papers, I’m trying to find another way to keep the public informed,” Kitzman said. “Do we need to update what is meant for notice and accessibility to the public? That’s what I’m after.”

The bill was left pending in the House Natural Resources Committee after the public hearing last week.

“We fight these bills every session,” Baggett said. “There are various bills filed to eliminate public notice altogether or to chip away at it at the edges, just like this one does. They are invariably the result of meetings between lobbyists for special interest, i.e. entities that discharge pollutants into public waters, and a naive legislator whose being told that this will save taxpayer money. The legislation is filed without thinking through the consequences. Bad law can be the result. If this bill were to pass, it would be a bad law.”