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Texas 401 Water Quality Certification (14-TX-d)

Section 401 of the Clean Water Act (CWA) requires a Water Quality Certification (401 Certificate) for any federal license or permit that is issued to construct or operate a facility, which may result in any fill or discharge into the navigable waters of the United States, any potential discharge that requires a Rivers and Harbors Act §9 or §10 permit, or which requires an Environmental Protection Agency (EPA) NPDES permit. In Texas, the Railroad Commission of Texas (RRC) or the Texas Commission on Environmental Quality (TCEQ) reviews and issues Water Quality Certificates. Under the Memorandum of Understanding between the Railroad Commission of Texas and the Texas Commission on Environmental Quality 16 TAC 3.30, the RRC has jurisdiction to issue and review Water Quality Certifications for industrial geothermal projects. Pursuant to 16 TAC 3.93, Water Quality Certificates issued by the RRC apply to both the construction and operation of the project for which a federal license or permit is required.

401 Water Quality Certification Process

14-TX-d.1 - Request 401 Certification

The Texas 401 certification process is initiated by the federal agency that has jurisdiction under the CWA; the U S Army Corps of Engineers (Corps) for 404 dredge and fill permits and the EPA for NPDES permits. In such situations the developer is not required to contact the RRC to initiate 401 certification.

14-TX-d.2 - Issue Joint Public Notice

The RRC has entered into agreements with the EPA and Corps regarding joint notice. Therefore, when EPA issues notice of a draft NPDES permit, or when the Corps issues notice of an application for a dredge and fill permit, the notice issued by the federal agency will also notify recipients that a request and certification has been filed with the RRC.

14-TX-d.3 - Public Written Comment Period

Following joint public notice issued by the RRC and EPA or Corps, the public has 30 days to submit written comments to the RRC.

14-TX-d.4 to 14-TX-d.6 – Public Hearing

If the RRC finds sufficient public interest in the 401 Certification or if the RRC believes a hearing is in the public interest, the RRC will hold a public hearing.

Prior to the hearing the RRC will give adequate notice to any affected parties and the public; including at least 10 days notice to the developer by first class mail.

14-TX-d.7 – RRC Certification or Denial

The RRC will issue a final determination on certification within 15 days of the close of the public comment period, unless the regional administrator or the district engineer, in consultation with the RRC, 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. The RRC may grant, grant with conditions, deny, or waive 401 certification.

14-TX-d.8 to 14-TX-d.11 – Developer Appeal of Denial or Conditional Certification

If the RRC denies 401 certification or grants certification with conditions then the developer may appeal by requesting a hearing with the RRC. The developer has 15 days to request a hearing after the RRC’s final determination. The RRC will provide notice of the hearing to each affected party defined by 16 TAC 3.93 (d)(2)

Once a 401 certification is administratively granted, third party protesters cannot request a hearing with the RRC.

Following the hearing between the RRC and the developer, the RRC may elect to modify or grant the 401 certification.

14-TX-d.12 – 401 Certification

The RRC issues 401 Certificates. The developer is required to comply with all conditions imposed by the RRC.

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Contact Information

Edit Railroad Commission of Texas
Discharge Permitting and Water Quality Certification Contact 512.463.7308 Visit Website

Edit Railroad Commission of Texas
General Phone Number for Environmental Permitting Department 512.463.3840 Visit Website

Edit Texas Commission on Environmental Quality
401 Water Quality Certification Contact 512) 239-6622 Visit Website