The commission cannot impose sewer-overflow rules, permits, or enforcement that are stricter than the national policy or demand more than its minimum requirements.
Sec. 26.049. SANITARY SEWER OVERFLOWS. (a) The commission may not adopt a rule governing sanitary sewer overflows, issue a permit regarding sanitary sewer overflows, or initiate any enforcement action related to a sanitary sewer overflow or a threatened overflow that: (1) is stricter than the national policy for sewer overflows; or (2) seeks compliance in a manner that exceeds the minimum requirements of that policy. (b) If the commission adopts a rule governing sanitary sewer overflows, the commission shall: (1) employ the maximum flexibility allowed under the national policy for sewer overflows; (2) allow alternative strategies for the control of sanitary sewer overflows; (3) consider the financial conditions and constraints of local governments that own separate sanitary sewer systems; and (4) allow local governments that own separate sanitary sewer systems sufficient time to design and develop cost-effective methods for controlling sanitary sewer overflows before the commission begins an enforcement action to control sanitary sewer overflows. (c) Until a national policy for separate sanitary sewer system overflows is finally adopted and if the commission adopts a rule governing sewer overflows, the commission may use the national combined sewer overflow policy as the basis for working with local governments to develop cost-effective programs to control sewer overflows. Implementation schedules developed may be based on the national combined sewer overflow policy. (d) The commission may require a local government that substantially complies with the national policy for sewer overflows to provide additional controls only if the commission documents a water quality problem attributable to the local government that threatens human health, safety, or the environment. (e) In this section: (1) "National combined sewer overflow policy" means the Combined Sewer Overflow Control Policy of the United States Environmental Protection Agency dated April 8, 1994, and published April 19, 1994, as amended or superseded. (2) "National policy for sewer overflows" means the Combined Sewer Overflow Control Policy of the United States Environmental Protection Agency dated April 8, 1994, and published April 19, 1994, as amended or superseded, or another national policy that is finally adopted by the United States Environmental Protection Agency after September 1, 1995, governing separate sanitary sewer system overflows. (3) "Separate sanitary sewer system" means a wastewater collection system, separate and distinct from a storm sewer system, that conveys domestic, municipal, commercial, or industrial wastewaters to a publicly owned treatment plant. (4) "Sanitary sewer overflow" means a discharge of wastewater, stormwater that has entered a separate sanitary sewer system, or a combination of wastewater and stormwater from a separate sanitary sewer system at a point or points before the water enters a publicly owned treatment plant. (f) Notwithstanding any other provision of this section, the commission shall establish criteria for evaluating whether to initiate an enforcement action related to sanitary sewer overflows that occur as the result of a blockage due to grease. The criteria shall include consideration of whether the discharge: (1) could reasonably have been prevented; (2) was minimized; and (3) was reported and the notice required by Section 26.039(e) was given. (g) The adoption and enforcement by a separate sanitary sewer system of model standards for grease management recognized by the executive director shall be considered by the commission to be evidence tending to show that reasonable measures have been taken to prevent or minimize sanitary sewer overflows that occur as a result of blockage due to grease. (h) When a home-rule municipality has a plan to control or minimize sanitary sewer overflows, Section 552.901, Local Government Code, does not limit the power of a home-rule municipality, in exercising its home-rule powers under Section 5, Article XI, Texas Constitution, to maintain, repair, relocate, or replace a water or sanitary sewer lateral or service line on private property without making an assessment against the property or a person. Added by Acts 1995, 74th Leg., ch. 925, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 2003, 78th Leg., ch. 1086, Sec. 1, eff. Sept. 1, 2003. Amended by: Acts 2007, 80th Leg., R.S., Ch. 885 (H.B. 2278), Sec. 3.77(31), eff. April 1, 2009.