SECTION 3.93. Water Quality Certification Definitions

(a) The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

(1) 401 certification--A certification issued by the commission, under the authority of the Federal Clean Water Act, §401, that a federal permit that may result in a discharge to waters of the United States is consistent with applicable state and federal water quality laws and regulations.

(2) Commission--The Railroad Commission of Texas or its designee.

(3) Department of the Army permits--Individual or general permits or letters of permission issued by the U.S. Army Corps of Engineers under the authority of the Federal Clean Water Act, §404, or the Rivers and Harbors Act of 1899, §9 and §10, United States Code, Title 33, §402 and §403.

(4) District engineer--The U.S. Army Corps of Engineers representative responsible for administering and enforcing federal laws and regulations, including processing and issuance of permits, under the jurisdiction of the U.S. Army Corps of Engineers.

(5) Federal Clean Water Act--United States Code, Title 33, Chapter 26.

(6) NPDES permit--A permit issued by the regional administrator under the authority of the Federal Clean Water Act, §402, Title 33, United States Code, §1342. NPDES permits can either be individual or general permits.

(7) Permitting agency--Any agency of the federal government to which application is made for any permit to conduct an activity that may result in any discharge into waters of the United States.

(8) Person--A natural person, corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, or any other legal entity.

(9) Pollutant--Any constituent that contaminates or alters the physical, thermal, chemical, or biological quality of water so as to be harmful, detrimental, or injurious to humans, animal life, vegetation, or property or to the public health, safety, or welfare, or that impairs the usefulness or the public enjoyment of the water for any lawful purpose.

(10) Regional administrator--The administrator of the United States Environmental Protection Agency, Region 6.

(11) Water quality standards--Texas Surface Water Quality Standards, Title 30, Texas Administrative Code, Chapter 307.

(12) Waters of the United States--Interstate waters, the territorial seas, and waters that would or could affect interstate commerce, including tributaries of such waters and adjacent wetlands, as defined in Title 33, Code of Federal Regulations, Part 328.

(b) Certification Required. No person may conduct any activity subject to the jurisdiction of the commission pursuant to a Department of the Army permit or an NPDES permit if the activity may result in a discharge into waters of the United States within the boundaries of the State of Texas, unless the commission has first issued a certification or waiver of certification under this section.

(c) Request for Certification. The regional administrator, district engineer, or the permit applicant may submit a request for certification to the commission.

(1) Request by Applicant. If the permit applicant requests certification, the applicant shall submit to the commission:

(A) a copy of the completed permit application and any amendments thereto;

(B) a list on a map or on a separate sheet attached to a map of the names and addresses of owners of tracts of land adjacent to the site where the proposed activity would occur and, where the activity may result in a discharge to watercourse other than the Gulf of Mexico or a bay, the owners of each waterfront tract between the potential discharge point and 1/2 mile downstream of the potential discharge point, except for those waterfront tracts within the corporate limits of an incorporated city, town, or village;

(C) a request for certification; and

(D) for Department of the Army permits in the coastal zone, as described in 31 TAC §503.1 (Coastal Management Program Boundary), a description of the acreage proposed to be filled, if any.

(2) Request by EPA or the Corps. Except as provided in subsection (d)(1) of this section, a request for certification submitted by the regional administrator or the district engineer shall contain the information specified in this paragraph:

(A) a copy of the public notice;

(B) a request for certification;

(C) for NPDES permits, a copy of the draft permit, if available; and

(D) for Department of the Army permits in the coastal zone, as described in 31 TAC §503.1 (Coastal Management Program Boundary), a description of the acreage proposed to be filled, if any.

(3) Request for Additional Information. Where the commission believes more information is required to accomplish review of a request for certification, the commission shall notify the applicant or the permitting agency and request such information. In response to such a notification from the commission, the applicant or the permitting agency shall submit such materials as the commission finds necessary for review of the request for certification. Except as otherwise provided, such information shall be provided within ten days of issuance of a request for additional information by the commission.

(d) Notice of Request for Certification.

(1) Joint Notice. Notice of a request for certification shall be made using a joint mailed notice issued by the U.S. Army Corps of Engineers or the U.S. Environmental Protection Agency after agreements with those agencies have been reached regarding the content of the notice and the persons entitled to notice in Texas. When a joint notice is issued by either the U.S. Army Corps of Engineers or the U.S. Environmental Protection Agency, the requirements of subsection (c) (2) of this section do not apply.

(2) Notice by Applicant. If a joint notice is not used as provided in paragraph (1) of this subsection, the applicant must mail notice of the request for certification on or before the date the request for certification is filed with the commission. Such notice shall include the information required in paragraph (3) of this subsection. The applicant shall provide notice by first class mail to:

(A) the owners of land adjacent to the tract upon which the activity is proposed to take place, and where the activity may result in a discharge to a watercourse other than the Gulf of Mexico or a bay, the surface owners of each waterfront tract between the potential discharge point and 1/2 mile downstream of the potential discharge point, excluding owners of those waterfront tracts within the corporate limits of an incorporated city, town, or village;

(B) the mayor and health authorities of any city or town in which the proposed activity will be located or that is within 1/2 mile downstream of the potential discharge;

(C) the county judge and health authorities of any county in which the proposed activity will be located or that is within 1/2 mile downstream of the potential discharge;

(D) the Texas Commission on Environmental Quality (TCEQ) or its successor agencies;

(E) the Texas Parks and Wildlife Department;

(F) the U.S. Environmental Protection Agency, Region 6;

(G) the U.S. Fish and Wildlife Service; and

(H) for a proposed activity within the coastal management program boundary as defined under Title 31, Texas Administrative Code §503.1 (Coastal Management Program Boundary), the Secretary of the Coastal Coordination Council.

(3) Contents of Notice. Any notice provided as required in paragraph (2) of this subsection shall contain:

(A) the applicant's name and mailing address, together with the name and mailing address of the party conducting the activity, if different from the applicant;

(B) a brief written description of the activity;

(C) a statement that the applicant is seeking certification from the commission under the Federal Clean Water Act, §401;

(D) a statement that any comments concerning the request for certification may be submitted in writing to the assistant Director of Environmental Services, Railroad Commission, 1701 North Congress Avenue, P.O. Box 12967, Austin, Texas 78711-2967, on or before the deadline for submission of written public comments, which, absent special circumstances, shall be at least 30 days after the date notice is mailed; and

(E) a statement that a copy of the permit application is available for review in the office of the federal permitting agency.

(4) Emergency Actions. When the division engineer for the U.S. Army Corps of Engineers authorizes emergency procedures and it is in the public interest to provide a certification in less than 30 days, the commission may waive the notice and hearing requirements under this section and issue a final determination. For emergency actions within the coastal zone, as described in 31 TAC §503.1 (Coastal Management Program Boundary), the commission may only issue a final determination if the emergency action is consistent with the provisions of 31 TAC §501.14(j)(7) (Policies for Specific Activities and Coastal Natural Resource Areas).

(e) Public Comments.

(1) Written Comments. The commission shall consider all comments related to the water quality impacts of the proposed activity that are submitted to the commission in writing prior to the deadline for submission of comments.

(2) Public Meetings. The commission shall hold a meeting to receive public comment on a request for certification if the commission finds that such a meeting is in the public interest. If the commission holds a meeting to receive public comment on a request for certification, the commission shall notify the applicant by first class mail not less than ten days before the date set for the public meeting that a meeting to receive public comment will be held on the request for certification. The commission will also provide notice by first-class mail or by personal service to all of the persons identified under subsection (d)(2) of this section and the federal permitting agency at least ten days prior to the public meeting. The notice of public meeting shall identify the federal permit application; the date, time, place, and nature of the public meeting; the legal authority and jurisdiction under which the public meeting is to be held; the applicant's proposed action; the requirements for submitting written comments; the method for obtaining additional information; and such other information as the commission deems necessary. The notice to the federal permitting agency shall also estimate the additional time necessary to consider the request for certification and shall state that the commission is not waiving certification.

(f) Commission Review of Requests for Certification. After expiration of the time for receipt of public comments, the commission shall determine whether the proposed activity for which a request for certification has been received will result in any discharge into waters of the United States within the boundaries of the State of Texas, and if so, whether the proposed activity will comply with all applicable water quality requirements. Applicable water quality requirements include, but are not limited to, state water quality standards, and any other applicable water quality requirements. For an activity within the boundary of the Texas Coastal Management Program (CMP), applicable state water quality requirements include the enforceable goals and policies of the CMP, Title 31, Texas Administrative Code, Chapter 501.

(g) Final Action.

(1) Issuance of Final Determination. A final determination on a request for certification of an NPDES or Department of the Army permit shall be issued by the commission within 15 days from the close of the public comment period, unless the regional administrator or the district engineer, in consultation with the commission, finds that unusual circumstances require a longer time. If the commission does not act upon the request for certification within 15 days from the close of the public comment period or within a longer time granted by the regional administrator or the district engineer, the commission will be deemed to have waived certification. Notwithstanding any contrary provisions of this paragraph, in unusual circumstances the commission may elect to delay acting upon a request for certification of an NPDES permit until after a review of the draft permit.

(2) Notification of Final Determination. The commission shall notify the applicant, the regional administrator or district engineer, and any person so requesting of its final determination. Such final determination shall waive, grant, grant conditionally or deny certification. The notification of a final determination shall be in writing and shall include:

(A) the name and address of the applicant;

(B) a statement of conditions that are necessary to ensure compliance with the applicable water quality requirements;

(C) when the state certifies a draft permit instead of a permit application, any condition required to ensure compliance with applicable water quality requirements shall be identified, citing the federal or state law references upon which that condition is based. Failure by the commission to provide such a citation waives its right to certify with respect to that condition;

(D) for NPDES permits, a statement of the extent to which each condition of the draft permit can be made less stringent without the concurrence of the commission; and

(E) a statement of the basis for the commission's determination to waive certification, grant certification, grant conditional certification, or deny certification.

(3) Statement of Basis.

(A) If a waiver of certification is made, the statement of basis for the commission's determination shall explain that the waiver is based on a determination that no discharge will result from the activity or that the activity does not fall within the commission's jurisdiction or that the commission expressly waives its authority to act on a request for certification for other reasons.

(B) If a certification or conditional certification is made, the statement of basis for the commission's determination shall include either a statement that there is reasonable assurance that the activity will be conducted in a manner which will not violate any applicable water quality requirements or a statement of conditions, including monitoring conditions, that the commission deems necessary to assure that the discharge will not violate applicable water quality requirements.

(C) If a denial of certification is made, the statement of basis for the commission's determination will explain why the commission has determined that the proposed activity will result in a violation of applicable water quality requirements.

(4) Limitation. The commission shall not condition or deny certification of an NPDES permit on the grounds that state law allows a less stringent permit condition.

(5) Request for Hearing. If the commission's final determination denies certification, the applicant may request a hearing on the final determination. If the commission's final determination grants a conditional certification and the applicant disagrees with one or more of such conditions, the applicant may request a hearing on the final determination. A request for a hearing must be filed within 15 days after the commission issues its final determination. The commission shall provide notice of the hearing to each of the parties provided notice of the final determination as provided in paragraph (2) of this subsection. After hearing, the examiner shall recommend a final action by the commission.

(h) Penalties. Violations of this section may subject a person to penalties and remedies specified in the Texas Natural Resources Code, Title 3, and any other statutes administered by the commission. The certificate of compliance for any oil, gas, or geothermal resource well may be revoked in the manner provided in §3.73 of this title (relating to Pipeline Connection; Cancellation of Certificate of Compliance; Severance) (Statewide Rule 73) for violation of this section.

Source Note: The provisions of this §3.93 adopted to be effective October 25, 1995, 20 TexReg 8445; amended to be effective August 25, 2003, 28 TexReg 6816; amended to be effective November 24, 2004, 29 TexReg 10728