Texas's Data Center Permit Freeze Now Reaches Construction Stormwater

On September 23, two days into Gov. Greg Abbott's pause on data center permits, the Texas Commission on Environmental Quality (TCEQ) granted construction stormwater coverage for Abilene Data Center Buildings 9 and 10 the same day DPR PCL Joint Venture, LLC, applied for it.

Public Citizen's TCEQ Watchdog Campaign listed that coverage in its summary of data-center-related permit actions TCEQ took after September 21, compiled from what the advocacy group calls a limited search of TCEQ records. FracTracker says it worked with the campaign on the review. Eight of the summary's entries are construction stormwater coverages, which it calls "one of the first permits a data center needs to begin site clearing, grading or excavation that disturbs one acre or more of land."

On October 20, the Texas Tribune reported, paraphrasing TCEQ spokesman Ryan Vise, that the stormwater permits Public Citizen flagged had been suspended. TCEQ's construction stormwater page now halts data center applications for coverage under the Construction General Permit (CGP), the statewide permit for construction stormwater, until further notice. On October 21, a second Tribune story reported, TCEQ announced that STEERS, the system where operators file notices of intent (NOIs) for that coverage, had temporarily shut down automatic-authorization filing for staff review. The CGP authorizes a large site once TCEQ confirms an electronic filing. TCEQ has now shut that lane to data center projects, but it hasn't published a list of the coverage it suspended, said on what authority, or defined which projects count.

Our September piece, written before TCEQ's October 19 report to the governor, found permits a TCEQ writer reviews one at a time, such as major air permits, water rights and individual discharge permits, clearly caught by the pause. Authorizations that come from filing a notice, such as permits by rule, standard permits and TXR150000 coverage under the CGP, sat in an unresolved middle. For new data center stormwater filings, that middle is now resolved. But a major air permit, the kind the piece found clearly caught, kept moving through public notice.

What's on the stormwater list

Seven of the eight entries name six sites:

• Caldwell Valley Technology Park, Maxwell (September 22, TXR1574ZM per FracTracker), issued to Ranger Excavating, L.P., at a data center park FracTracker identifies as Tract's.
• Abilene Data Center Buildings 9 and 10 (September 23, TXR1536ZN), at the site Public Citizen labels Stargate/Crusoe Abilene.
• Two Barstow entries Public Citizen labels NScale, both issued September 28 (404 Media gives TXR1548ZO for a Barstow permit).
• Royse City (September 29, TXR1570YU per 404 Media), a Hunt County project Public Citizen labels BT Gateway and lists as a modification of coverage that predated the pause.
• Milam Data Center Building 1, Burlington (October 2), which Public Citizen labels Stargate Milam/OpenAI.
• Google DFW 1.0, Fort Worth (October 8, issued to Everon Data Center Construction), though a state filing for a similarly named logistics facility describes an interior battery-room and office modification.

The eighth, a Guadalupe County site, comes with no explanation of its data center connection. Counts differ by source. Public Citizen's October 19 release says TCEQ "issued at least seven new construction stormwater authorizations for data centers and amended one other," and FracTracker counted 11 approved through October 16.

What the October 19 documents say

TCEQ's five-paragraph reply to the governor says TCEQ has paused issuing "all permits related to the construction or development of infrastructure directly supporting data centers." It adds that TCEQ "is screening claimed authorizations that do not require the agency to affirmatively issue a permit and, where possible, is suspending such authorizations for data center activities." Bracewell's September alert noted that permits by rule may be "claimed" or require a "registration" with TCEQ, with no other action from the agency.

The letter never mentions stormwater. The explicit NOI halt is on TCEQ's construction stormwater page, last modified October 19. It says the governor's directive "includes the halt of applications for construction projects in association with a data center seeking coverage under the TPDES Construction General Permit," until further notice from the Office of the Texas Governor. The halt notice doesn't mention coverage already granted or notices of termination, the filings that end coverage.

As of October 21, the STEERS login page says the shutdown is "to ensure all applications are reviewed by agency staff to determine if they are related to data centers." Vise said in a statement, the Tribune reported, that "applications must be physically provided to TCEQ" so staff can check each one for data center ties. Neither the page nor Vise says how long staff review takes, or whether an NOI with no data center connection is authorized once it clears.

Why the CGP was the fast lane

On our reading of the permit and rules, same-day coverage at Abilene wasn't a loophole TCEQ staff opened; the permit is built that way. TPDES General Permit TXR150000, the 2023 permit running to March 2028, is issued under the Texas Pollutant Discharge Elimination System (TPDES), the state's water discharge permit program, and is the state's counterpart to EPA's construction general permit.

Under Part II.E.5(b), a primary operator of a large construction activity (five or more acres) filing an electronic NOI is "authorized immediately following confirmation of receipt of the electronic form by the TCEQ, unless otherwise notified by the executive director." The executive director is TCEQ's top staff official. The "unless otherwise notified" clause is the provision's only stated qualifier, and the provision calls for no staff review between filing and coverage. By Public Citizen's account, every post-pause stormwater coverage on its list came through the day it was filed.

Under the permit, suspending coverage already granted is a separate step. Part II.H.3 lets the executive director require an otherwise eligible operator to apply for an individual TPDES permit in listed circumstances, such as an approved total maximum daily load on the receiving water, an activity with a reasonable potential to cause or contribute to a water quality violation, or any other consideration in Chapter 205 of TCEQ's rules (Title 30, Texas Administrative Code). The permit sends suspensions for reasons other than compliance history through that chapter, whose 30 TAC § 205.4 handles suspension separately from denial. Under subsection (d)(1), the executive director's written notice must state, among other things, the basis, whether the discharger must immediately stop discharging, and a deadline for an individual permit application. Unless the commission provides otherwise or the executive director has required immediate cessation, suspension takes effect when the commission acts on that application. Subsection (d)(2) says a suspended discharger must stop discharging immediately, except for certain stormwater suspensions. None of the rule's listed mandatory or discretionary grounds mentions a governor's directive by name.

Coverage already granted

TCEQ's public statements on suspension name no permits and give no basis. The ones we found are the October 19 letter's line about suspending claimed authorizations "where possible," Vise's statement as the Tribune reported it, and TCEQ's statement in the Tribune's October 21 story that it suspended the permits the groups identified. We found no public list, and Public Citizen's count is a third-party account. Its October 22 release says TCEQ "has suspended at least 17 permits issued to data center developers," including water quality permits, and FracTracker's Sam Law, quoted in the release, describes TCEQ "retroactively suspending construction stormwater approvals." The release places the suspension of water quality permits and the STEERS closure on "Tuesday," while the Tribune reports TCEQ's website announcement on Wednesday, October 21. TCEQ hasn't said whether the suspensions rest on Chapter 205, on II.E.5(b) or on the directive alone.

EdgeConneX, a data center developer building in Cedar Creek, appears under TXR1533ZR, an authorization FracTracker counted and Community Impact reported still listed as active at press time on October 20. The story's October 22 update says the permits suspended in TCEQ's review include a permit for EdgeConneX's second data center campus in Bastrop County, based on a list provided by Public Citizen and verified by Community Impact. Community Impact's story also carried TCEQ spokesperson Victoria Cann's statement that the commission has not issued any data center permits. Cann's statement and the Tribune's paraphrase of Vise's fit together most easily, we think, if TCEQ doesn't count CGP coverage as a permit it issued, since the general permit does the authorizing. If so, the agency's "no permits issued" statements don't answer the status of a TXR number.

"Directly supporting" has no definition

Neither the letter's "directly supporting" nor the stormwater page's "in association with a data center" is defined in those documents or in any alert we found. One test case is a substation.

The Misty substation, a Lower Colorado River Authority (LCRA) project in Caldwell County that FracTracker says LCRA describes as costing $111.6 million, got stormwater coverage October 8. FracTracker cites Bluebonnet Electric and Tract connections but notes that nothing in the stormwater record calls it a data center project.

Bracewell's alert raised a broader case, in which "a separate legal entity is developing a power generation facility to primarily support the operations of a data center." TCEQ hasn't said where such projects fall.

Approval versus processing

Andrew Mahaleris, the governor's press secretary, said "No permits have been approved," KUT reported, adding that TCEQ "has not taken and will not take any proactive actions related to the approval of data center permits."

FracTracker's figure tallies 14 gas plant and generator applications fast-tracked or assigned to an engineer, 11 stormwater coverages, 7 air emission certifications and 3 major-source air notices between September 21 and October 16, 35 TCEQ actions in all by our sum. In its October 19 release, Public Citizen's Kathryn Guerra, director of its TCEQ Watchdog Campaign, said "[t]he TCEQ's own data indicates that it's business as usual for data centers."

The governor's office speaks to approvals, and TCEQ's letter to issuing permits. FracTracker's tally includes processing steps.

One air permit already in public notice kept moving. TCEQ records Public Citizen reproduced show TCEQ mailed its notice of preliminary decision on Nexus Hubbard Power's major-source air application on September 22, the day after the directive. The comment period opened September 24 and was set to close October 23. A hearing was requested October 13.

Public Citizen says the project would authorize 24 million tons of pollution a year. It sits in Hill County, which passed and then rescinded its own data center moratorium earlier this year. Public Citizen's release says a top TCEQ staffer told the group that "residents should act as though the comment deadline is in effect." No TCEQ document we found says the pause stops a notice period that's already running.

What TCEQ hasn't said

If a suspended operator is sent to an individual permit, the § 205.4(d) notice sets the application deadline. For comparison, for individual coverage sought before construction, Part II.H.1 says applications "must be submitted at least 330 days prior to commencement of construction activities to ensure timely authorization." We found no TCEQ statement on whether any operator has received such a notice.

TCEQ's Water Quality General Permits Search looks up a general permit authorization by permit number, but we couldn't confirm it would show a suspension.

One of the governor's conditions for ending the pause is finishing the audit by ERCOT, the state grid operator, and the audit reports are due December 10, per ERCOT's September board update.

The general permit lets a large site's coverage start once TCEQ confirms an electronic filing. For now, STEERS's automatic-authorization filing is shut down for staff review, and data center applications for CGP coverage are halted until further notice from the governor's office. The coverage TCEQ says it suspended still has no published list.