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