The Municipal Setting Designation (MSD) has become a valuable tool for both cities and property owners in fostering brownfield redevelopment and reducing the need to investigate and remediate contaminated potable water sources.
An MSD is a state designation given to a property, certifying that designated groundwater at the property cannot be used as potable water because the groundwater is contaminated in excess of the applicable potable-water protective concentration level. The purpose of the MSD is to provide a faster and less costly alternative to the existing state environmental regulations covering investigation and remediation of groundwater.
However, the application process can vary greatly depending on which municipality is involved and whether the municipality has set up a formal MSD program. The TCEQ has the job of ultimately certifying an MSD, but this happens only if the applicant has the support of the city in the form of a resolution or restrictive covenant. A city is not required to accept or support any MSD application, and without municipal support, the TCEQ is statutorily required to deny the MSD application.
Cities are not prohibited from imposing additional requirements and application procedures, and they must also confirm the status of the public drinking water availability with the TCEQ. Therefore, when contemplating an MSD, it is imperative to determine whether one or multiple municipalities will be involved (based on a water-well search within a five-mile perimeter of the property boundary) and to discuss the potential MSD with the municipality.
Making the effort to contact the city at the beginning of the application process to discuss the potential MSD and to determine what, if any, past MSDs have been approved by the city will save time and money, not to mention will be well-received by the city once it comes time to apply.