Items in the June 6, 2017 Railroad Commission of Texas Open Meeting Agenda concerning 2 letters to the Environmental Protection Agency are as follows:

1) 303 – Letter to the United States Environmental Protection Agency regarding Subtitle D (regarding non-hazardous waste) of the federal Resources Conservation and Recovery Act (RCRA).

a) This letter references an earlier letter from the EPA to Governor Abbott requesting input of the Railroad Commission of Texas on the proposal to revise the definition of waters of the United States (Clean Water Rule: Definition of “Waters of the United States.” In this letter, the RRC asserts its role in regulating the oil and gas industry in the State of Texas since 1919.

• The letter urges the EPA to uphold Justice Scalia’s Rapines v. United States, 547 U.S. 715 (2006) that found the Clean Water Act jurisdiction to include relatively permanent waters and wetlands with a continuous surface connection to relatively permanent waters. Justice Scalia further determined that the term “relatively permanent” should not include dry channels “through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.” This term should not include only those waters that flow year-round or continuous seasonally and should be determined based in site-specific characteristics, according to Justice Scalia.
• “Continuous surface connection” was determined by Scalia to make it “difficult to determine where the ‘water’ ends and the ‘wetland’ begins,” thereby asserting that there should be no clear distinction between the ‘waters’ and the ‘wetlands.’
• The RRC agrees with Justice Scalia’s opinion that any rule adopted by the Agencies should not include the concept of aggregation of similarly situated “other waters,” and that Congress did not envision federal Clean Water Act jurisdiction over any land feature that could possibly hold water.

b) The RRC argues that adherence to Justice Scalia’s opinion would “protect property gets and encourage economic development” and “would ensure that the regulatory burden is proportionate to reasonable water protection benefits.”

c) The RRC does not anticipate any changes at this time to the scope of their programs regarding Clean Water Act jurisdiction.

2) 304 – Letter to the United States Environmental Protection Agency regarding the definition of “waters of the United States” under the Clean Water Act.

a) This letter references a settlement of litigation over the EPA’s alleged failure to update its rules for management of oil and gas drilling waste under the Resource Conservation and Recovery Act (RCRA). The RRC states that this settlement commits the EPA to propose revisions or to determine that it does not need to revise state plan guidelines for oil and natural gas production wastes under Subtitle D of RCRA (40 CFR Part 256).

b) The RRC encourages the EPA to determine the Subtitle D regulations are not necessary. The RRC states that in its 1988 Regulatory Determination, the EPA stated that exempt oil and gas wastes pose no significant threat to public health or the environment when managed in accordance with existing federal and state programs. The Commission also asserts that the EPA further determined that these existing programs are generally adequate for exempt oil and gas wastes.