The Railroad Commission of Texas (Commission) has sole authority for the prevention and abatement of pollution of surface waters associated with oil and gas exploration, development, and production operations, including pipeline transportation of crude oil and natural gas. See TEX. NAT. RES. CODE, '91.101 and TEX. WATER CODE, Section 26.131.
Thus, the Commission is the 401 certifying agency for issuance of Department of the Army permits (COE) associated with oil and gas exploration, development, and production operations (E&P operations). COE permits are individual or general permits or letters of permission issued by the COE under the authority of the federal Clean Water Act, Section 404, or the Rivers and Harbor Act of 1899, Sections 9 or 10. See 16 TAC Section 3.93(a)(3).
Concurrent with the processing of a COE permit application, the Commission reviews the application under Section 401 of the Clean Water Act (CWA) and Title 16, Texas Administrative Code, Section 3.93, to determine if the proposed work would comply with applicable water quality laws and regulations.
In particular, the Commission would be the 401 certifying agency for any Corps permit required:
- to dredge an access channel to conduct drilling or production operations in critical area;
- in connection with construction of a drilling pad or installation of a production platform in a critical area;or
- in connection with construction, operation, or maintenance of a crude oil or natural gas pipeline facility in a critical area.
The Commission may waive certification in the limited instances where the proposed activity does not fall within the Commission's jurisdiction or the permitting activity involves renewal or amendment of a Corps permit and such renewal or amendment will not authorize impacts to critical areas that materially exceed those authorized under the original permit.
Under The Commission's Rule 93, no person may conduct any activity subject to the jurisdiction of the Commission pursuant to a COE permit if the activity may result in a discharge into waters of the United States within Texas unless the Commission has certified that the proposed activity will comply with all applicable water quality requirements or the Commission has waived certification. Applicable water quality requirements include, but are not limited to state water quality standards and any other applicable water quality requirements, including the enforceable goals and policies of the Texas Coastal Management Program (CMP).
The request for certification is generally submitted by the COE in the form of a public notice of the request for certification when providing the public with notice of the requested permit. The public may submit comments regarding the request for certification. The Commission may also hold a public meeting on the request for certification if the Commission determines that a public meeting is in the public interest.
After the close of the public comment period, the Commission must determine whether the proposed activity complies with all applicable water quality requirements. The Commission may waive, grant, grant conditionally, or deny certification. If the Commission grants certification or conditional certification, the Commission must prepare a statement of the basis for the determination that includes either a statement that there is a 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.