Bloomberg Law quoted Principal Karen Hansen (Austin) in its December 18 article entitled "EPA to Rule on Texas Fracking Wastewater Plan Before Trump Exit." The article discusses a request by the state of Texas, made in October 2020, to the Environmental Protection Agency (EPA) to delegate Clean Water Act NPDES permitting authority for oil and gas wastewater discharges to the Texas Commission on Environmental Quality, or TCEQ. TCEQ already has delegated NPDES authority and this request by Texas, if granted by EPA, would expand TCEQ’s permitting scope. The request is the result of state legislation that seeks to consolidate oil and gas wastewater permitting with a single state agency, rather than the current process that involves two state agencies and Region 6 EPA. 

The Bloomberg article reported that environmental groups view the efforts of EPA deciding the fate of the measure the same day it closes public comment on the proposal as a rushed move intended to render a decision before the Biden administration takes office on January 20, 2021. Specifically, the article quotes the Texas director for Clean Water Action David Foster  saying “That suggests you’re really not taking public comment very seriously when they’re going to apparently issue a decision the same day that public comment ends.”

In light of this criticism, Bloomberg asked Karen what might happen next if EPA approves Texas’s request for oil and gas wastewater NPDES delegation. Karen, who co-chairs the firm's Water practice group, said it isn’t clear whether the rule would be a high priority for the Biden administration in its early days. To alter or modify the final rule, the administration could determine there were “procedural irregularities” in approval of the delegation of the permitting to Texas, “and republish for further public comment,” she said, adding that any effort to that effect would have to go through the usual legal process for modifying a final rule.

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