| (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 |
