Water/Wastewater Permitting: Maximizing Value of TCEQ Pre-Application Meetings

by Nathan E. Vassar and Jessie M. Spears

As many state and federal agencies are returning to practices and operations more akin to those experienced before March 2020, it is an optimal time to highlight one of the most important tools for any utility with water/wastewater permitting needs at the Texas Commission on Environmental Quality (“TCEQ”). Pre-application meetings afford applicants an opportunity to sketch out the proposed permit action, address critical questions before the clock is officially ticking on permit review, and engage agency staff to make the permitting process move more smoothly. As described below, TCEQ is now looking to expand use of pre-application meetings across programs and divisions, and it has emphasized the role of such discussions in reducing needs for subsequent requests for information (“RFIs”) or other impediments during application review.

TCEQ has used pre-application meetings for water rights applications for years in order to work through important technical details surrounding diversion points, accounting plan requirements, and notice triggers, among other common application pinch points. In the last few months, however, on the water quality side, TCEQ has announced that it will require pre-application meetings for certain TPDES permit applications (new applications and major amendments) as a result of its ongoing TPDES permit streamlining efforts initiated in late 2021. The requirement also applies to all non-substantial and substantial pretreatment program modifications and Clean Water Act § 401 Water Quality Certifications. This expansion is intended to help reduce review time of permit writers and the technical review teams, particularly on these types of discharge permitting applications that require a sufficient level of application detail that should be discussed in an early dialogue with the agency. Beyond new discharges and major permit amendments, many applicants – including those represented by our firm – find value in pre-application meetings even for applications that do not require it. Such practice can minimize the risk of surprise in RFIs and the delay associated with the post-application submittal back-and-forth.

As the name implies, a pre-application meeting allows applicants to meet with TCEQ permitting and technical review staff before submitting an application to discuss questions or concerns related to the permit application and process. The reason TCEQ recommends (and in some cases requires) such meetings is simple: to ensure that the applicant submits a complete and correct application the first time. Although the discussion is mostly informal, the substance covered is critical – staff can respond to questions an applicant may have while preparing an application and provide TCEQ staff a chance to point out potential issues (some of which are driven by recent developments/experiences that may not be fully captured by the application and instruction materials). Pre-application meetings also provide applicants an opportunity to describe the complexities associated with their request for a permit to TCEQ staff. TCEQ staff attending the meeting may include an attorney from the TCEQ Environmental Law Division, technical staff, the permit writer, and other permitting staff involved in reviewing the application and drafting the permit.

Prior to the pre-application meeting, the applicant should prepare the application and analyze the proposed request for any issues that may arise to address with TCEQ staff. While preparing an application, the applicant should utilize its team—often involving experienced legal and engineering consultants. Engaging the right team at the beginning of the application process can save time and resources down the road. Whether the full team appears in person or some remotely, it can be helpful for the applicant and its support group to hear TCEQ’s perspectives directly, and can lead to questions/answers all at once, which can help move a permit application to its ready-for-filing stage.

As TCEQ continues to place an emphasis on pre-application meetings as a result of issues highlighted during its Sunset Review process and with permit streamlining efforts, we expect to see more updates and changes to application procedures. To that end, we have also prepared a podcast on best practices when engaging TCEQ. That episode can be found in Season 3 of the “Listen in with Lloyd Gosselink” podcast series available at https://www.lglawfirm.com/lg-podcast.

Nathan Vassar is a Principal in the Firm’s Water Practice Group and Jessie Spears is an Associate in the Firm’s Water Practice Group. If you have any questions about pre-application meetings and how this tool can advance your permitting needs, please contact Nathan at 512.322.5867 or nvassar@lglawfirm.com, or Jessie at 512.322.5815 or jspears@lglawfirm.com.