Texas Commission on Environmental Quality Legal Authority

TCEQ 401 Certification Program

p. 121

CWA §401 ensures that federal discharge permits are consistent with the TSWQS. Under CWA §401, states are given the authority to review federally permitted or licensed activities that may result in a discharge of pollutants to waters of the U.S., such as the discharge of dredge or fill material.

Any federally authorized activity that may result in a discharge is subject to CWA §401 certification. The most common type of permit subject to CWA §401 certification is the U.S. Army Corps of Engineer’s CWA §404 permit for discharges into jurisdictional waters of the U.S. Applicants for CWA §404 permits are asked to avoid impacts to waters of the U.S. where possible; to minimize impacts where avoidance is not possible; and compensatory mitigation is required for unavoidable impacts. Wetland and stream mitigation can take place at mitigation banks, through in-lieu fee programs, or through permittee responsible mitigation. State and federal regulations have set a goal of no net loss of wetland functions and values.

Before issuing a federal permit in Texas, the permitting agency must receive from TCEQ or the RRC a certification, conditional certification, or waiver stating that the discharge will not violate the TSWQS. If the state denies certification, the federal permit is also denied. The TCEQ is responsible for certifying federal permits in Texas, except for those related to oil and gas exploration, development, and production, which are certified by the RRC. The RRC certified permit activities include dredging an access channel to conduct drilling or production operations in a critical area; construction of a drilling pad or installation of a production platform in a critical area; or construction, operation, or maintenance of a crude oil or natural gas pipeline facility in waters in the state.

Examples of TCEQ 401 certification projects include roads, reservoirs, shoreline stabilization, and commercial and residential developments. Short-term and long-term BMPs for soil stabilization, erosion control, and sedimentation control are typically recommended for projects during the 401 review.

The CWA §401 certification program also plays a role in protecting coastal resources under the Texas CMP. The CMP is designed to accomplish the goals set by the state legislature for coastal resource protection and to meet specific requirements for an approved plan under the federal CZMA. Certain activities, such as discharges authorized by CWA §404 permits, must be consistent with the state CMP when they occur within the coastal zone boundary and the CMP delegates some coastal consistency reviews to the two §401 agencies.

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The United States Army Corps of Engineers (Corps) is the principle authority for all dredging operations affecting bays and estuaries of Texas. While EPA has designated the Corps as the implementing agency under CWA §404, the TCEQ is responsible for completing Section 401 Water Quality Certifications. The Commission has enacted regulations in 30 TAC Chapter 279 establishing procedures and criteria for applying for, processing, and reviewing state certifications under CWA, § 401, for activities under the jurisdiction of the agency for the purpose maintaining the chemical, physical, and biological integrity of the state’s waters consistent with the TWC and the federal CWA. It is the policy of the Commission to achieve no overall net loss of the existing wetlands resource base with respect to wetlands functions and values in the State of Texas.

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