In 2003, the Texas Legislature passed a bill that created the Texas Municipal Setting Designation statute. The Texas Municipal Setting Designation (“MSD”) program provides a means to address the problem of contaminated shallow urban groundwater by authorizing the Texas Commission on Environmental Quality (“TCEQ”) after approval from local governments to create municipal setting designations to restrict the consumption of the contaminated groundwater.
We have prepared this set of answers to the Frequently Asked Questions we receive in our Municipal Setting Designation Practice, with the hope that it will help those not knowledgeable about the program to realize its benefits.
What are the risks of drinking urban groundwater?
Shallow urban groundwater can be contaminated by a variety of industrial sources, gas stations, dry cleaners, or other commercial activities, as well as disease vectors from various sources such as leaking private sewer lines and public sanitary sewer systems. In most cases, shallow urban groundwater should not be consumed without testing and perhaps treatment.
What is a Municipal Setting Designation or MSD?
A Municipal Setting Designation identifies an area of contaminated groundwater that is not being used for drinking water purposes and ensures that the groundwater underneath that designation is not consumed in the future. Before the TCEQ will issue an MSD, the groundwater has to be either deed restricted so it cannot be consumed or a city must have passed an ordinance restricting the use of the groundwater.
What does an MSD do?
Once issued, an MSD certificate restricts the ability of people to drink or otherwise use groundwater for potable purposes under the designated area. Because shallow urban groundwater is rarely used at all let alone for drinking, it makes little sense to clean up this water to drinking water standards. With an MSD, the cleanup level is changed so cleanup does not have to meet drinking water standards. Since the area is supplied with a public drinking water source, the groundwater in these urban areas is very rarely used.
What does an MSD not do?
An MSD does not address any other environmental risks associated with urban groundwater. For example, if the groundwater discharges to a creek or water body, the TCEQ would still require the responsible party to address any adverse impact to the surface water. The same is true where there might be a risk of vapor from the groundwater rising into a building or other structure to such an extent that it created a human health risk. Again, the TCEQ would require the responsible party to address those risks.
Where can an MSD be used?
An MSD can only be issued in cities that have a population of 20,000 or more in areas that have a public drinking water supply.
Does the MSD cover the entire area where groundwater may be found?
An MSD can cover one or many properties. The City of Dallas generally requires that its properties be included in an MSD if they are adjacent to another property where an MSD application has been submitted. We have pioneered the use of an MSD to address a large area of groundwater contamination covering 42 acres and numerous properties owned by six different parties.
What is the first step in applying for an MSD?
The first step in applying for an MSD is to submit an application to the city where the property is located and request approval of the application from the city council. The city council must either issue an ordinance restricting the use of groundwater under the property or approve a deed restriction on the use of the groundwater.
What is the second step in applying for an MSD?
Once approval is obtained from the city, an application must be submitted to the TCEQ. The TCEQ actually approves and issues the MSD certificate.
Is there an opportunity for public participation?
Yes, most of the cities provide for a public meeting and then meeting before the city council. In the City of Dallas for example, owners of land within one-half mile receive notice of the public meetings. The initial public meetings provide the community with an informal setting to learn about the MSD process and a particular MSD application and to ask any questions they may have. The TCEQ also requires that owners of registered wells within five miles of the MSD property receive notice of an MSD application.
