Texas NPDES Permit (14-TX-b)
Section 402 of the Clean Water Act required the Environmental Protection Agency (EPA) to establish the National Pollutant Discharge Elimination System (NPDES) to regulate discharge of pollutants from point sources into waters of the United States. In Texas, the Texas Commission on Environmental Quality (TCEQ) has authority from the EPA to administer NPDES. However, under the Memorandum of Understanding between the Railroad Commission of Texas (RRC) and the Texas Commission on Environmental Quality 16 TAC 3.30 the RRC has jurisdiction to regulate discharges related to oil, gas, and geothermal. Unlike the TCEQ, the RRC does not have EPA authority to administer NPDES, so a developer must apply to both the EPA and the RRC in order to properly permit a point source pollutant discharge.
Waters of the United States
The definition of waters of the United States is applicable to the NPDES permit process through 40 C.F.R. § 122.2. Waters of the United States for purposes of the Clean Water Act, 33 USC 1251 et. seq. and its implementing regulations is defined in 40 CFR 230.3(o), establishing the jurisdictional waters under the Act. The definition of waters of the United States includes all waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; all interstate waters, including interstate wetlands; and the territorial seas; as well as all tributaries to such waters.
The definition of waters of the United States extends to certain waters associated with jurisdictional waters (see 40 CFR 230.3(o)(1)(iv) through (vii). The definition includes all impoundments of jurisdictional waters. The definition includes waters adjacent to jurisdictional waters within a minimum of 100 feet and within the 100-year floodplain to a maximum of 1,500 feet of the ordinary high water mark. The definition also includes waters with a significant nexus to jurisdictional waters including, Prairie potholes, Carolina & Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands; and those waters within the 100-year floodplain of a traditional navigable water, interstate water, or the territorial sea, as well as waters within 4,000 feet of jurisdictional waters.
The waters of the United States do not include numerous sources of water even where they otherwise meet the terms of 40 CFR 230.3(o)(1)(iv) through (vii). Generally not included are waters associated with waste treatment systems, prior converted cropland, ditches, numerous types of artificial features, groundwater, stormwater control features, and structures related to wastewater recycling (for a detailed description see 40 CFR 230.3(o)(2)).
"Waters of the United States" is defined broadly by regulation under the Clean Water Rule as developed by the EPA and USACE. The effective date for this new rule is August 28, 2015. The new rule modifies the regulatory definition to more precisely define jurisdictional waters under the CWA. In most states the rule took effect immediately, however, a number of states have initiated litigation to challenge implementation of the new rule.
On August 27, 2015, the District Court of North Dakota issued a preliminary injunction halting the implementation of the new rule (see North Dakota, et al. v. EPA, Memorandum Opinion and Order Granting Plaintiffs' Motion for Preliminary Injunction). In light of the order, EPA and USACE will continue to implement the CWA through the prior regulatory definition under 40 CFR 230.3(s) in the following States: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming.
On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit issued a stay halting implementation of the new rule nationwide pending its own determination of its own exclusive jurisdiction to review the rule (see Ohio, et al. v. EPA, Order of Stay). If the court determines it has exclusive jurisdiction the stay will likely remain in place pending a determination on the merits of the case. The court anticipates it will make a jurisdictional determination within a few weeks of the date of its order to stay. Given this uncertainty, developers should anticipate continued litigation on this matter and continue to monitor the issue at the state and national level. The EPA provides information on the ongoing effort to implement the EPA Clean Water Rule Website.</div>
NPDES Permit Process
14-TX-b.1 to 14-TX-b.2 – Initiate EPA NPDES and RRC Discharge Permitting Process
Since the RRC is not authorized to administer NPDES a developer must receive an EPA NPDES permit in addition to a state permit from the RRC.
If the discharge falls under one of the general permits issued by EPA Region 6 then a developer will have to file a Notice of Intent with the EPA. If the discharge is not covered by a general permit, a developer will have to apply for an Individual NPDES Permit with the EPA.
For either a general permit or an individual permit the developer will have to submit a Letter of Request to the RRC to get state authorization.
14-TX-b.3 to 14-TX-b.6 – RRC Letter of Request Process
Applications for point source discharges are made to the RRC by Letter of Request. Letters of Request require:
- The appropriate fee or fees
- Developer's name, address, and telephone number.
- The county, field(s), lease name(s), lease number(s), and well number(s) producing the pollutant to be discharged. Include any wells that are currently shut in, but may contribute to the discharge sometime in the future.
- The latitude - longitude coordinates to the nearest second for the discharge point, the treatment facility, and each wellhead associated with this discharge. If the latitude - longitude coordinates are not readily available, a complete original U.S. Geological Survey 7 1/2 minute quadrangle map of the area may be submitted with the exact location of each well, the treatment facility, and the discharge point clearly marked.
- The location of the treatment facility, the proposed discharge point, and the route the discharged pollutant will take to the nearest watercourse (creek or river). Indicate locations on a county highway map, or include the locations on the U.S. Geological Survey (noted above).
- In the event the pollutant is delivered into a flood control ditch or similar waterway, written permission must be filed with the RRC from the authority having jurisdiction.
- A certification stating: “I certify that I am authorized to make this application, that this application was prepared by me or under my supervision and direction, and that the data and facts stated herein are true, correct, and complete to the best of my knowledge.”
- Note: additional materials and information will be required depending on type of general permit or individual permit used.
If the disposal of the pollutant is into a watercourse, 16 TAC 3.8(d)(6)(C) requires a developer give proper notice to the surface owner at the point of discharge and to the surface owner of each waterfront tract between the discharge point and 1/2 mile downstream of the discharge point. If any of these water front tracts are within an incorporated city, town, or village, then notice must be given to the city clerk. Notice of the permit application must consist of a copy of the application together with a statement that any protest to the application should be filed with the RRC within 15 days of the date the application is filed with the RRC. The developer must mail or deliver the required notice to the surface owners on or before the date the application is mailed or delivered to the RRC in Austin, TX. After giving the required notice, the developer must file with the RRC a statement setting out the names and addresses of persons notified and the dates they were notified, and stating the listed persons are all the persons required by Rule 8 (16 TAC 3.8) to be notified.
The RRC will review the Letter of Request for completeness.
14-TX-b.7 – Public Comments and Protest
Affected parties, defined in Rule 8 (16 TAC 3.8), have 15 days after a completed application is filed with the RRC to submit comments or protest the permit.
14-TX-b.8 to 14-TX-b.10 – Public Hearing
If an affected party formally protests the discharge permit the RRC will hold a public hearing.
Prior to the hearing the RRC will give adequate notice to any affected parties and the public.
14-TX-b.11 – RRC Notification of Permit Grant or Denial
The RRC will notify the developer if the permit is granted, granted with conditions, or denied.
A permit to dispose of oil and gas or geothermal wastes by any method, including disposal into a pit, may only be issued if the RRC determines that the disposal will not result in the waste of oil, gas, or geothermal resources or the pollution of surface or subsurface water.
Permits issued by the RRC will contain conditions reasonably necessary to prevent the waste of oil, gas, or geothermal resources and the pollution of surface and subsurface waters.
14-TX-b.12 to 14-TX-b.15 – Developer Appeal of Denial or Conditional Permit
If the RRC denies a Discharge Permit or grants the permit with conditions then the developer may appeal by requesting a hearing with the RRC.
Following the hearing between the RRC and the developer, the RRC may elect to modify or grant the discharge permit.
14-TX-b.16 – RRC Discharge Permit
The RRC issues state Discharge Permits. The developer is required to comply with all conditions imposed by the RRC and the EPA.
A permit granted by the RRC, may be modified, suspended, or terminated by the commission for good cause after notice and opportunity for hearing.
A finding of any of the following facts shall constitute good cause:
- Pollution of surface or subsurface water is occurring or is likely to occur as a result of the permitted operations;
- Waste of oil, gas, or geothermal resources is occurring or is likely to occur as a result of the permitted operations;
- The developer has violated the terms and conditions of the permit or RRC rules;
- The developer misrepresented any material fact during the permit issuance process;
- The developer failed to give the notice required by the RRC during the permit issuance process;
- A material change of conditions has occurred in the permitted operations, or the information provided in the application has changed materially.
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