The Edwards Aquifer Authority (Authority) adopts new §§705.1, 705.11, 705.15, 705.17, 705.19, 705.21, 705.23, 705.25, 705.27, 705.41, 705.51, 705.61, 705.63, 705.65, 705.67, 705.69, 705.71, 705.73, 705.75, 705.77, 705.101, 705.111, 705.113, 705.221, 705.225, 705.227, 705.229, 705.231, 705.233, 705.235, 705.237, 705.239, 705.241, 705.251, 705.253, 705.255, 705.257, 705.259, 705.261, 705.263, 705.265, and 705.267, concerning substantive groundwater withdrawal permit rules. Sections 705.41, 705.51, 705.63, 705.65, 705.67, 705.69, 705.71, 705.73, 705.75, 705.77, 705.101, 705.111, 705.225, 705.229, 705.241, 705.257, 705.259, 705.261, and 705.267, are adopted with changes to the proposed text as published in the November 21, 1997, issue of the Texas Register (22 TexReg 11250). Sections 705.1, 705.11, 705.15, 705.17, 705.19, 705.21, 705.23, 705.25, 705.27, 705.61, 705.113, 705.221, 705.227, 705.231, 705.233, 705.235, 705.237, 705.239, 705.251, 705.253, 705.255, 705.263, and 705.265 are adopted without changes and will not be republished. Sections 705.13, 705.131, 705.133, 705.135, 705.137, 705.139, 705.141, 705.143, 705.145, 705.147, 705.149, 705.151, 705.153, 705.155, 705.157, 705.159, 705.161, 705.171, 705.173, 705.223, are withdrawn contemporaneously in this issue of the Texas Register .

General Reorganization of Authority Rulemaking.

Beginning in May, 1997, the Authority undertook a complete review of its rules and rulemaking process. The purpose of the review was to ensure that future rulemaking would be efficient and effectively accommodated. The review found that there was no preexisting framework or index for likely future rulemaking. In addition, the bulk of the rules were being lodged in one single chapter, while other rules were located in another chapter without an apparent numerical nexus. The placement of most of the rules in one chapter was over time likely to result in intermixing of multiple unrelated subject matters and creation of problems in the sequencing of chapters and subchapters. Accordingly, an index of probable future rulemaking was developed as a structural guide to follow. In light of the development of this index, it became necessary to reorganize the rules of the Authority to conform to the index. Adopting this new chapter 705 furthers this process and provides a chapter in which to place the future substantive rules of the Authority relating to its permit program. The complete results of the reorganization process are found in Table 1, Disposition Table, located in the Tables and Graphics section in this issue of the Texas Register .

The Disposition Table identifies where the concepts within the Authority's prior permit program rules are now located in these new permit program rules. The prior rules may be found in 31 TAC, Chapter 701 (West 1997)(repealed), (22 TexReg 1393) (1997) (to be codified in 31 TAC Subchapters C-H)(repealed), and (22 TexReg 5263) (1997)(to be codified in 31 TAC Subchapters I-K)(repealed).

Review of Permit Program Rules.

As previously stated, the rules themselves were also reviewed. The purpose was to evaluate the rules and compare them against a fully developed, integrated permit program that would be required to be developed and implemented under the Edwards Aquifer Act, Act of May 30, 1993, 73rd Legislature, Regular Session, Chapter 626, 1993 Texas Session Laws 2353-2374, as amended (Act). The rules were evaluated for completeness as to the scope of issues to be addressed, editorial style and clarity with a special focus on terminology, substantive legal conformance to the Act, the need for augmentation and expansion of discussion relative to issues already addressed in the rules, and the elimination of unnecessary provisions.

The review found that additional provisions were required in order to make the permit program rules integrated and complete. Some rules required revision to conform to the substantive legal requirements of the Act. Some rules were also augmented to more fully develop legal issues that had already been addressed.

The prior permit programs rules of the Authority are found in 31 TAC Chapter 701 (West 1997) (repealed), 22 TexReg 1393 (1997)(to be codified in 31 TAC Subchapters C-H)(repealed), and 22 TexReg 5263 (1997)(to be codified in 31 TAC Subchapters I-K) (repealed). A summary of the reasons these rules were reorganized and modified are found in Table 2, "Edwards Aquifer Authority Permit Program Rules Revision Analysis", located in the Tables and Graphics section in this issue of the Texas Register .

Authority Response to Comments not Identifying Specific Rules Within Proposed Chapter 705.

Some commenters did not correlate their comments to specific rules within proposed chapter 705. When the Authority was able to ascertain that a particular nonspecific comment was related to a particular rule, the Authority interpreted the comment as such and responds below as if the comment had identified a particular rule.

Comments.

Written comments were filed by the following commenters but were of a general nature and did not address a specific proposed rule such that no response is required or is able to formulated: The Greater San Antonio Chamber of Commerce, Petty Ranch Co., as well as various individuals.

Several individuals gave only oral comments of a general nature and did not address a specific proposed rule such that no response is required or is able to formulated.

Public hearings were held on December 10, 1997, in San Marcos, December 12, 1997, in New Braunfels, December 16, 1997, in Uvalde, December 17, 1997, in San Antonio, and on December 18, 1997, in Hondo.

Subchapter A. Purpose of Permit Program Rules, §705.1

No written comments were received concerning Subchapter A.

No oral comments were received concerning Subchapter A.

Subchapter B. Groundwater Withdrawals Not Requiring a Permit; Exempt Wells, §§705.11, 705.15, 705.17, 705.19, 705.21, 705.23, 705.25, 705.27

Written comments were filed by Southwest Independent School District, Guadalupe Blanco River Authority, San Antonio Water System, and Hutcheson & Grundy, L.L.P.

No oral comments were received concerning Subchapter B.

COMMENTS RELATED TO §705.11

One commenter recommended that §705.11 be modified to create a permit exception for school districts. The Authority declines to create this exception because there is no authority under the Act to do so.

COMMENTS RELATED TO §705.13.

There was one comment related to §705.13 recommending that this section be deleted because all wells should obtain a well construction permit. The Authority agrees and concurrent with this rulemaking has withdrawn the rule.

COMMENTS RELATED TO §705.17.

One commenter offered editorial and stylistic recommendations to §705.17 which were not adopted by the Authority.

COMMENTS RELATED TO §705.19.

One commenter opined that §705.19 unlawfully expands exempt well status, although no citation to authority is provided. The Authority disagrees. Section 705.19 is designed to address two situations: (1) provide for the status of an otherwise exempt well that may subsequently be located within a subdivision requiring platting, and (2) provide an opportunity for an otherwise non-exempt well within a subdivision requiring platter to obtain exempt well status in the event that the subdivision is vacated. In the second case, since the only reason the well is not exempt is that it is within a subdivision, the removal of the subdivision impediment should result in an option for the well owner to apply for exempt well status. In the first situation, the Authority believes that it is reasonable to protect the economic and reliance interest of a owner of a pre-existing exempt well against the subsequent placement of subdivision plat overlaying the land on which the well is located.

Subchapter C. Activities Requiring A Permit, §705.41

Written comments were filed by Hutcheson & Grundy, L.L.P.

No oral comments were received concerning Subchapter C.

One commenter offered editorial and stylistic recommendations to §705.41 which are accepted by the Authority and the rule has been modified accordingly. In addition, in light of the withdrawal of §705.13, the Authority has additionally modified §705.41 to eliminate a cross-reference to that section.

Subchapter D. Authorized Uses, §705.51

Written comments were filed by Hutcheson & Grundy, L.L.P.

No oral comments were received concerning Subchapter D. One commenter recommended that §705.51 be modified to delete "agricultural use" and "livestock use". The Authority agrees. Agricultural use is a term reserved for use in the Authority aquifer management fee program. Livestock use is duplicitous of "domestic and livestock use". The Authority has modified the rule accordingly.

Subchapter E. Permit Categories, §§705.61, 705.63, 705.65, 705.67, 705.69, 705.71, 705.73, 705.75, 705.77,

Written comments were filed by the City of San Marcos (San Marcos), the City of Kirby, Environmental Defense Fund (EDF), Sierra Club, Regional Clean Air and Water, City of Leon Valley, City of Olmos Park, United States Department of the Air Force, Aldridge Nursery, Inc., City of Alamo Heights, Guadalupe Blanco River Authority (GBRA), Living Water Artesian Springs, Ltd., San Antonio Water System (SAWS), City of Terrell Hills, Hyatt Hill Country Resort (Hyatt), Hutcheson & Grundy, L.L.P., the City of Schertz, and various individuals.

The following commenters gave only oral comments: Chemical Specialists, Inc., and one individual.

The following commenters gave oral comments but also filed written comments addressing the issues raised in their oral comments: City of San Marcos, Regional Clean Air & Water Association, San Antonio Water System, and one individual. For these commenters, because the substance of the oral and written comments are substantially similar, the Authority will respond to their written comments only.

COMMENTS RELATED TO §705.63.

The City of Leon Valley recommends that §705.63(5) be clarified to identify whether the instantaneous rate requirement applies to particular wells or the owner of the wells. The position of the Authority is that it applies to both and declines to further clarify this rule.

The City of Leon Valley and SAWS also recommend that §705.63(8) be deleted as to the monthly accounting for water withdrawn. The Authority agrees and will consider this issue in its Critical Period Management rules.

COMMENTS RELATED TO §705.65. Hutcheson & Grundy request the word "annually" be included in §705.65(3). The Authority agrees and has modified the rule accordingly.

COMMENTS RELATED TO §705.67.

One individual requested that provisions of §705.67(b) be deleted because they are inconsistent with the Act, §1.34. The Authority states no position on the validity of this argument, but does agree that subsection (b) should be reworked to eliminate the referenced provisions and to rename the subsection "transferability" and indicate that initial regular permits are transferable according to the Act and the rules of the Authority. The Authority has modified subsections (a) and (b) accordingly.

An individual and Hutcheson & Grundy also suggest that the indication in §705.67(b) of the nature of the property interest may be misleading because this issue is ultimately a question for the courts. The Authority agrees that the courts will ultimately decide this issue, but nonetheless decline to delete this reference.

One commenter through oral testimony requested that the de minimis amount of groundwater applicable to the definition of "exempt well" be incorporated into subsection (c) relating to the interruptibility of the initial regular permits. The Authority declines to accept this recommendation. The concepts of creating a de minimis withdrawal scenario for an exempt well such that it would not require a permit and the establishment of an amount of groundwater under an initial regular permit that is protected from interruptibility are entirely unrelated. To the extent there is an amount of groundwater protected from interruption under an initial regular permit, that is the proper subject matter of the Critical Period Management (CPM) program developed under the Act, §1.26. The CPM is the subject of current proposed repeal and new rulemaking. See (23 TexReg 89)(1998)(to be codified if adopted in 31 TAC §709) (proposed repeal and replacement of current interim critical period management plan at 22 TexReg 1648 (to be codified in 31 TAC §726)).

The same individual also comments that §705.67(c) discriminates against holders of initial regular permits vis-a-vis term permittees because initial regular permits are susceptible to more conditions of interruption. The Authority disagrees that any modifications are needed. The key distinction between interruptions of regular permits and term permits is that term permits are interrupted at higher index well levels. By the time any of the interruptibility triggers for initial regular permits are tripped, term permits will have already been interrupted.

The Regional Clean Air & Water group argues that actual withdrawals, rather than the face value of regular permit amounts, should govern compliance with the cap. This comment goes to §705.67(f). Section 1.14(b) and (c) (establishing the cap) refer to "permitted withdrawals" from the aquifer not exceeding the cap. The term "withdrawal" is defined by the Act. See Act, §1.03(25). The term "permitted" is not defined. "Permitted withdrawal" might reasonably have been construed in one of two ways, (1) the face value of an initial regular permit, or (2) a withdrawal that is both authorized to be made under a permit and actually made thereunder. The Authority has looked elsewhere in the Act for guidance on the proper construction of §1.14(b) and (c). Section 1.16(e) provides the guidance to resolve this issue. In the proportional adjustment context, §1.16(e) provides as follows:

If the total amount of water determined to have been beneficially used without waste under this subsection exceeds the amount of water available for permitting, the authority shall adjust the amount of water authorized for withdrawal under the permit proportionately to meet the amount available for permitting. (emphasis added)

To state this in the terminology employed in these rules, this sentence in §1.16(e) would read as follows:

If the total amount of (initial regular permits issued by the board) under (§1.16(e)) exceeds the (cap), the authority shall adjust the amount of (water authorized in the initial regular permits) proportionately to meet the (cap).

The "amount of water authorized under the permit" refers to the authorization being in the past tense, which is to say, as stated in the initial regular permit. Moreover, the proportional adjustment process is one that occurs after the permitting process is completed. Thus, the total amount authorized would be the amount of groundwater for which the board has issued final orders granting initial regular permits after contested case hearings. What is proportionately adjusted is that which has already occurred (i.e. the determination of permit amounts), not what is yet to occur (i.e. withdrawals made under permits). Also critical to this inquiry is the distinction to be made between the legal authorization to conduct an activity and the exercise of the authorization itself. If the legislature had intended the exercise of the authorization to be the benchmark for compliance with the cap and triggering the application of proportional adjustment, then the use of the word " authorized ") (past tense) would have been avoided, and the subject of proportional adjustment would have been "the amount of water withdrawn under the permit". Based on reading §1.14(b) and (c) conjunctively with §1.16(e), the Authority declines to adopt the recommendation of Regional Clean Air & Water.

SAWS recommends modifying §705.67(c)(1) and (2), or §703.1 by defining the extent of the San Antonio and the Uvalde pools. The Authority agrees and has placed definitions of these pools in new §703.1.

GBRA argues that §705.67(f) is unlawful because it only applies to initial regular permits and, in essence, requests that it be modified to make withdrawals pursuant to term and emergency permits subject to (i.e. count against) the cap. GBRA, relying on §1.14(b) and (c), believes that the cap applies to all permitted withdrawals, including those made under term and emergency permits. The Authority declines to adopt this interpretation. The Authority acknowledges that §1.14(b) and (c) provide that "the amount of permitted withdrawals from the aquifer may not exceed" 450,000 or 400,000 acre-feet for each calendar year of their respective periods of applicability. However, to rely on §1.14(b) and (c) for this proposition is insufficient. As an initial matter, the Authority notes that the word "all" is not to be found in §1.14(b) or (c). Therefore, one must also consider the application of §§1.16(e), 1.18(a), 1.19, 1.20, and 1.21(a) and (c). The cap is made applicable to §1.16 under subsection (e) where it provides that "(t)o the extent water is available for permitting", then certain permit amounts should be recognized and certain proportional adjustment procedures may need to be invoked. Section 1.16 addresses exclusively the issuance of initial regular permits. Section 1.18(a) also provides that "(t)o the extent water is available for permitting after the issuance of permits to existing users" (i.e. initial regular permits), then the Authority may issue additional regular permits. Neither §1.19 nor §1.20 concerning term and emergency permits, respectively, contain the introductory provision "to the extent water is available for permitting". The conclusion is logically derived from this comparison that the cap applies only to initial and additional regular permits, and not to term or emergency permits. Providing additional support is §1.19(b) which establishes the aquifer level conditions that must exist for withdrawals to be made under term permits; and §1.20(d) which provides that withdrawals under emergency permits may be made "without regard to its effect on other permit holders". The conclusion that the cap does not apply to term or emergency permits is also fully supported by a reading of §1.21(a) and (c). Section 1.21 concerns the retirement of permits to attain the cap. Under subsection (a) the Authority is to prepare a plan to reduce withdrawals "under regular permits" to meet the cap. Similarly, subsection (c) establishes the process to reduce withdrawals "under regular permits" and to reduce "each regular permit" to meet the cap. In the face of this legislative guidance, the Authority declines to apply the cap to withdrawals made under term or emergency permits.

GBRA, EDF, the Sierra Club, and one individual requested that §705.67(g) be modified for the same reasons set out above for §705.67(f). For the same reasons, the Authority declines to adopt this position.

Hutcheson & Grundy suggest editorial and stylistic modifications to §705.67(f) that are adopted by the Authority.

GBRA recommends that initial regular permits be issued for "presumed permit amounts" in the amount of the minimums. GBRA does not reference its comments to a particular rule, but it best fits with §705.67(i). Although the Authority does not adopt this terminology, it responds that the procedure referred to in §705.67(i) is substantially similar to that suggested.

SAWS recommends that §705.67(i)(2) be modified to include a mandatory finding of an existing users maximum historical use. The Authority agrees, but believes the more appropriate location is §705.63(6) and has modified that rule accordingly.

COMMENTS RELATED TO §705.69.

One individual and Hutcheson & Grundy also suggest that the indication in §705.69(b) of the nature of the property interest may be misleading because this issue is ultimately a question for the courts. The Authority agrees that the courts will ultimately decide this issue, but nonetheless decline to delete this reference.

Hutcheson & Grundy suggest that §705.69(c) be modified to include a requirement for a board order and protection for initial regular permits. The Authority declines to accept this recommendation pending further development of the nature of additional regular permits.

One individual suggests that §705.69(c) creates an additional grounds for interruption. The Authority disagrees that any modifications are needed. This subsection is phrased in this manner because the contours of additional regular permits have not yet been fully established by the Authority. Yet, the Authority desires to give notice that if any additional regular permits are issued, they will be interruptible.

COMMENTS RELATED TO §705.71.

Similar to the comments above of GBRA related to §705.67(f) and (g), GBRA recommends that §705.71 be modified. For the same reasons, the Authority declines to adopt this position.

San Marcos and GBRA recommend that the Authority place a moratorium on the issuance of term permits under §705.71. The Authority declines to adopt this position. Water is available for permitting for term permit applicants only when the aquifer for the San Antonio pool is higher than 665 feet above sea level, as measured at well J-17, and for the Uvalde pool, is higher than 865 feet above sea level, as measured at well J-27. See Act, §1.19(b) and (c). When the aquifer is above these levels it is generally understood that the volumes of groundwater in the aquifer at these index well levels is adequate to reasonable support term permit withdrawals. The Authority is not aware of any reasonable aquifer management objective that would be obtained by imposing a moratorium on the issuance of term permits and, therefore, declines to do so.

One individual and Hutcheson & Grundy also suggest that the indication in §705.71(b) of the nature of the property interest may be misleading because this issue is ultimately a question for the court. The Authority agrees that the courts will ultimately decide this issue, but nonetheless decline to delete this reference.

Hutcheson & Grundy suggest several editorial and stylistic changes to §705.71(c) that are adopted by the Authority.

Sixteen irrigators and one individual object to §705.71(e) because it allows for renewability of term permits. The Authority agrees that this terminology should be changed. The Authority has modified this section to eliminate the renewability feature, but to allow the holder of an expired term permit to file an application for a new term permit.

SAWS and Hutcheson & Grundy comment that §705.71(f)(6) should be modified to allow for the impact of term permit withdrawals on the rights of holders of initial regular permits. The Authority agrees and has modified this section accordingly.

San Marcos and SAWS additionally recommend that §705.71(f) be modified to add a requirement that term permits should not be issued to an applicant as his principal source of supply. The Authority agrees and has added §705.71(f)(13) requiring an applicant for a term permit to demonstrate that he has a firm supply when the index well drops below the prescribed levels, or that a firm supply is not required.

Hutcheson & Grundy recommend editorial and stylistic changes to §705.71(f)(11) that are adopted by the Authority.

The EDF and the Sierra Club also request that a "notice" system for term permittees be established. The Authority refers these commenters to §705.71(c) providing for a notice system.

EDF and the Sierra Club also argue that the failure to establish an amount of groundwater available for permitting under §705.71(g) for term permits will have the effect of enticing applicants to inappropriately apply for term permits. SAWS also opposes this open ended approach. The Authority agrees and has replaced this open ended approach with the requirement on the board to annually determine the amount of groundwater this is available for permitting during an annual cycle.

Hutcheson & Grundy recommend editorial and stylistic changes to §705.71(f)(11) that are adopted by the Authority.

The City of Leon Valley recommends that withdrawals under §705.71(g) not be chargeable to the cap. This is the position of the Authority and no modifications to this section are required.

One individual also requests that §705.71(g) be modified for the same reasons set out above for §705.67(f). For the same reasons, the Authority declines to adopt this position.

COMMENTS RELATED TO §705.73.

Similar to the comments above of GBRA related to §705.67(f) and (g) and §705.71, GBRA recommends that §705.73 be modified. For the same reasons, the Authority declines to adopt this position.

One individual and Hutcheson & Grundy also suggest that the indication in §705.73(b) of the nature of the property interest may be misleading because this issue is ultimately a question for the courts. The Authority agrees that the courts will ultimately decide this issue, but nonetheless decline to delete this reference.

SAWS recommends that the failure to establish an amount of groundwater available for permitting under §705.73(g) for emergency should be avoided. The Authority disagrees and does not adopt this recommendation.

COMMENTS RELATED TO §705.75

Hutcheson & Grundy also suggest that the indication in §705.75(b) of the nature of the property interest may be misleading because this issue is ultimately a question for the court. The Authority agrees and has deleted and reorganized this section.

The City of Leon Valley and SAWS recommend that §705.75(c) be modified to extend the term of a well construction permit from 90 to 180 days. The Authority agrees and has modified the rule accordingly.

SAWS recommends that §705.75(d)(10) be deleted as being duplicative. The Authority disagrees and declines to accept this recommendation.

SAWS recommends that §705.75(d)(11) be modified to include local, state and federal well construction standards. The Authority agrees and has modified the rule accordingly.

COMMENTS RELATED TO §705.77.

Aldridge Nursery, Inc. recommends that §705.77 be modified to include the right of appeal. The Authority responds that this issue is the subject of §707.719.

Regional Clean Air & Water, the City of Olmos Park, the City of Terrell Hills, and the City of Schertz argue that actual withdrawals, rather than the face value of regular permit amounts, should govern compliance with the cap and the proportional adjustment process. This comment goes to §705.77(b) and (c)(1), (3), (5) and (6). Based on the response of the Authority to the comments of Regional Clean Air & Water related to §705.67(f) set forth above, the Authority declines to adopt this recommendation.

SAWS recommended an editorial and stylistic change to §705.77(b) which was adopted by the Authority.

SAWS recommends that the Authority modify §705.77(c) by inserting a provision indicating that provisional proportional adjustment orders not have a bearing on final orders. Hutcheson & Grundy also offered editorial and stylistic modifications to this section. The Authority declines to accept these recommendations. As a note, the Authority has moved this subsection to §707.285(d).

SAWS recommended an editorial and stylistic change to §705.77(c)(1) which was adopted by the Authority.

SAWS also provides comments suggesting an alternative proportional adjustment formula for §705.77(c)(5) and (6). The Authority declines to adopt this formula.

Hutcheson & Grundy recommended an editorial and stylistic change to §705.77(c)(5) which was not adopted by the Authority.

Hyatt comments that the formula in §705.77(c)(6) "makes little sense" because the protection given to the initial regular permit minimum withdrawal amount "would seem to make it impossible to achieve the pumping cap." The Authority disagrees. There is nothing inherent in the calculation that makes the cap unachievable. Whether the cap is attainable through a proportional adjustment formula of any kind is entirely a function of the evidence produced at contested case hearings and the final orders of the board relative to the minimums and the total aggregate amounts of minimums that are established by the evidence. The Authority declines to prejudge the results of the contested case hearings in the development of its permitting rules.

Hutcheson & Grundy recommended an editorial correction to §705.77(c)(6) which was adopted by the Authority.

San Marcos and GBRA argue that the cap takes precedence over the initial regular permit minimum withdrawal amounts. To say it another way, they argue that an existing user may have his authorized withdrawal amount reflected by his initial regular permit proportionally adjusted below his initial regular permit minimum withdrawal amount established by the Act, §1.16(e) and new §703.1. Living Waters and Hyatt state it somewhat differently, but essentially make the same comments as San Marcos and GBRA. These commenters oppose the position taken in proposed §705.77(d) which protects the minimums against proportional adjustment. The Texas Supreme Court in Barshop v. Medina Under. Wat. Cons. Dist., 925 S.W. 2d 618, 624 n.2 (Tex. 1996) has already addressed this issue, albeit in dicta , as follows:

An existing user can avoid this downward adjustment under two circumstances. First, an existing user who has operated a well for three or more years during the historical period shall receive a permit for at least the average amount of water withdrawn annually during the historical period. (citations omitted) Second, an existing irrigation user shall receive a permit for not less than two acre-feet a year . . . for each acre of land the user actually irrigated in any one calendar year during the historical period." (emphasis added)

Until another court or the legislature provides additional guidance on this matter, the Authority will continue to defer to the Court's dicta on this issue.

SAWS and the City of Leon Valley support §705.77(d) because it prevents proportional adjustment below the initial regular permit minimum withdrawal amounts.

Similar to the position of Regional Clean Air & Water, the City of Olmos Park, and the City of Terrell Hills discussed above, an individual recommended that §705.77(d) be modified to prevent proportional adjustment "if the aggregate of the historic average use of the water under the permits is less than the cap". Section 1.16(e) expressly provides for the amount of water that triggers the application of proportional adjustment. As discussed above in response to the comment of Regional Clean Air & Water related to §§705.77(b), and (c)(1), (3), (5) and (6), and 705.67(f), the subject of proportional adjustment is "the amount of water authorized for withdrawal under the permit". In the Authority's interpretation of §1.16(e), the amount of water authorized for withdrawal under a permit is not the historic average. Instead, it is the face value of the initial regular permits. Therefore, the Authority declines to accept this recommendation.

The City of Leon Valley and SAWS recommend that §705.77(e) be modified such that groundwater that is proportionately adjusted should be subject to restoration in the event that additional groundwater supplies are made available. Hutcheson & Grundy also offered clarification on how proportionally adjusted groundwater could be managed. The Authority agrees with the recommendations of Leon Valley and SAWS and has modified the rule accordingly.

GBRA advises that §705.77(f) is unlawful for the same reasons advanced above the San Marcos and GBRA relative to §705.77(d). For the reasons expressed above, the Authority declines to adopt this position.

An Individual commented that §705.77(e) is confusing and unclear due to the existence of the cap. The Authority disagrees. The fact that the cap exists is the primarily limiting factor on how the Authority might decide to manage proportionally adjusted groundwater consistent with the Act.

Subchapter F. Standard Groundwater Withdrawal Permit Conditions, §705.101

Written comments were filed by SAWS and Hutcheson & Grundy, L.L.P.

No oral comments were received concerning Subchapter F.

Relating to §705.101(7), SAWS offers an editorial cross-reference to §707.77. The Authority declines to accept this suggestion.

Relating to §705.101(8), SAWS recommends that the reference to the permit retirement program of the Authority be clarified. The Authority declines to make this modification because the Authority's permit retirement program has not yet been developed. Any changes to this subsection should await further program development.

Relating to §705.101(2)-(12) and (14)-(18), Hutcheson & Grundy suggest several editorial and stylistic modifications. The Authority adopts some of these suggestions and has modified these paragraphs accordingly. The Authority does not accept the modification to paragraph (6) related to the meter rules, but instead deletes any reference to specific meter rules requirements and will address these issues in its meter program rules.

Subchapter G. Reporting, §705.111, §705.113

Written comments were filed by SAWS and Hutcheson & Grundy, L.L.P.

No oral comments were received regarding Subchapter G.

COMMENTS RELATED TO §705.111(a)

Relating to §705.111(a), SAWS recommends that annual water use reports be files by water users even for years in which they may not have withdrawn groundwater. The Authority agrees and has modified this subsection accordingly.

Relating to §705.111(a) Hutcheson & Grundy suggests an editorial cross-reference which the Authority declines to accept.

Relating to §705.111(b) Hutcheson & Grundy recommends owners of exempt wells be encouraged to file water use reports even though there is no legal obligation to do so. The Authority agrees and has modified this subsection accordingly.

Subchapter H. Transfers, §§705.131, 705.133, 705.135, 705.137, 705.139, 705.141, 705.143, 705.145, 705.147, 705.149, 705.151, 705.153, 705.155, 705.157, 705.159, 705.161, 705.171, 705.173

Written comments were filed by the City of San Marcos, the City of Kirby, Representative Tracy O. King, Environmental Defense Fund, Sierra Club, Clayburg Family Trust, Regional Clean Air and Water, Binford Quarter Horses, Stull Farms, Southwest Independent School District, Doran, Gulley & Etzel, Bexar County Infrastructure Services Department, City of Leon Valley, Hays County, City of Olmos Park, United States Department of the Air Force, Representative Frank J. Corte, Jr., Briscoe Ranch, Inc., Aldridge Nursery, Inc., City of Alamo Heights, BexarMet Water District, Guadalupe Blanco River Authority, Red Bird Ranch, Ltd., Hutcheson & Grundy, L.L.P., and the City of Schertz, and various individuals.

Several individuals gave only oral comments.

The following commenters gave oral comments but also filed written comments addressing the issues raised in their oral comments: City of San Marcos, Representative Tracy O. King, Clayburg Family Trust, Lone Star Growers, Regional Clean Air & Water Association, San Antonio Water System, and one individual.

Concurrently with this rulemaking the Authority has withdrawn proposed Chapter 705, Subchapter H. It will be resubmitting transfer at a later time for additional comment. Therefore, it will not respond to these comments at this time.

Subchapter I. General Prohibitions, §§705.221, 705.223, 705.225, 705.227, 705.229, 705.231, 705.233, 705.235, 705.237, 705.239, 705.241

Written comments were filed by the City of Leon Valley, SAWS and Hutcheson & Grundy, L.L.P.

Oral comments concerning Subchapter I were received by one individual.

COMMENTS RELATED TO §705.223

One individual and the City of Leon Valley commented on §705.223. The Authority makes no response to these comments because this proposed rule has been withdrawn concurrently with this rulemaking as being related to the transfer rules.

COMMENTS RELATED TO §705.225.

SAWS recommends that §705.225(b) be amended to authorize new wells based on regular permits. The Authority agrees that new wells may be based on transfers of regular permits. However, the Authority disagrees that this scenario is not already addressed by §705.225(b)(2).

Hutcheson & Grundy comment that §705.225(b)(1) and (2) be modified to insert the word "approved" in relation to transfers. The Authority agrees and has modified the rule accordingly.

COMMENTS RELATED TO §705.237.

Hutcheson & Grundy suggests an editorial cross-reference to §705.237 which the Authority declines to accept.

COMMENTS RELATED TO §705.241.

The City of Leon Valley recommends that §705.241 be modified to limit its scope the annual aggregate withdrawals and to a well system rather than individual wells. The Authority agrees that annual withdrawals should be within the scope of §705.241 and has modified the rule accordingly. It disagrees that individual wells should not be regulated by this section.

Subchapter J. Interim Authorization, 705.251, 705.253, 705.255, 705.257, 705.259, 705.261, 705.263, 705.265, 705.267

Written comments were filed by Senator Eddie Lucio, Jr., the City of San Marcos (San Marcos), Representative Mark Stiles, Representative Tracy O. King, Senator J.E. "Buster" Brown, Environmental Defense Fund, Sierra Club, E.M.W., Ltd., City of Leon Valley, Hays County, United States Department of the Air Force, Aldridge Nursery, Inc., City of Alamo Heights, City of Olmos Park, BexarMet Water District, Guadalupe Blanco River Authority (GBRA), San Antonio Water System (SAWS), and Hutcheson & Grundy, L.L.P.

One individual made an oral comment concerning Subchapter J.

COMMENTS RELATED TO §705.251

E.W.M. Ltd. recommends that the issue of "operation" be clarified in §705.251. The Authority responds that the definition of "operate a well or operating well" provides guidance on this issue.

COMMENTS RELATED TO §705.257.

One individual, the United States Department of the Air Force, and the City of Alamo Heights commented relative to §705.257(c)(1) that it was inappropriate to link 1998 withdrawals to 1996 withdrawal amounts because, among other things, it does not take into consideration the conservation efforts of existing users in 1996. The Authority disagrees. Because 1996 was a drought year and was one of the driest years of record, it should present a representative year which would manifest accurate withdrawal amounts in the quantities that are needed to approach existing users' current demand. San Marcos also supports the 1996 withdrawal amounts.

GBRA recommends that interim authorization withdrawal amounts be based on the amount that an existing user could reasonably expect to receive in his initial regular permit. This authority agrees and notes that this concept is essentially contained in §705.257(c)(3) although, the Authority disagrees as to the timing of this amount.

EDF, the Sierra Club and sixteen irrigators also question the statutory basis of using 1996 withdrawal amounts as the benchmark for individual existing user's authorized withdrawal amounts during interim authorization. The sixteen irrigators rely on the adjusted, maximum, historic beneficial use standard in §1.17(b) to support their comments. The Authority responds that, among other sections, §1.17(b) authorizes the Authority to "otherwise determine" interim authorization withdrawal amounts. The Act, §1.17(a) provides that "(a) person who, on the effective date of this article, owns a producing well that withdraws water from the aquifer may continue to withdraw . . . ." The effective date of the Act is June 28, 1996. In the Authority's opinion this provides a reasonable basis for the selection of 1996 withdrawals because it is the year when the authorization period first came into being.

E.M.W. Ltd., the City of Leon Valley, and SAWS recommend that §705.257(c)(2) be clarified to establish that if adjusted 1996 withdrawals for 1999 are less than the proposed initial regular permit minimum withdrawal amounts, then the minimums may be withdrawn. The Authority agrees and has modified this section accordingly.

Hutcheson & Grundy recommend certain editorial cross-references to §705.257(c) which the Authority declines to accept.

SAWS recommends that §705.257(c)(3) be clarified to establish that if the adjusted 1996 withdrawals for the year 2000 are less than the proposed initial regular permit minimum withdrawal amounts, then the minimums may be withdrawn. The Authority declines to modify this section because this process is controlled by §705.67(i) and §705.77.

One individual commented that §705.257(d) violates the Act, although he cites to no authority for this proposition. The Authority disagrees and believes that the specific criteria in subsection (c)(1)-(6) provides adequate protections.

Sixteen irrigators commented that §705.257(d) imposes a unique burden on irrigators to apply to increase their interim authorization withdrawal amounts if their 1996 amounts are less than their proposed initial regular permit minimum amounts. The Authority disagrees. The procedure in §705.259(e) applies to both irrigators and non-irrigators alike.

Hutcheson & Grundy recommends certain editorial and stylistic modification to §705.257(g) which the Authority adopts.

COMMENTS RELATED TO §705.259.

Senator Eddie Lucio and Representative Mark Stiles comment that the Authority may be "evading" the cap in its permit program rules. Although, Senator Lucio does not direct his comment to a specific section of the Authority's rules, the Authority has interpreted this comment as possibly applying to §705.259(a)(1) in which it authorizes withdrawals during interim authorization not to exceed 479,000 acre-feet for the year 1998. The Authority disagrees that this constitutes an "evasion" of the cap. The cap is derived from the Act, §1.14(b) and (c). Similar to the response above concerning the comments of Regional Clean Air & Water to §705.67(f), §1.14(b) and (c) refer to "permitted withdrawals" from the aquifer not exceeding the cap, the Authority interprets "permitted withdrawals" in this context to mean withdrawals made pursuant to a permit. During the interim authorization period, there are no permits. Thus, §1.14(b) and (c) do not apply and there can be no "evasion" of the cap. San Marcos also supports the 1996 withdrawal amounts.

Senator J.E. "Buster" Brown comments that the cap applies "right now" and that Authority rules violate this requirement. Hays County has filed a similar comment. Although no specific rule is cited, these comments probably relate to §705.259(a)(1). For the reason set out immediately above, the Authority declines to adopt this interpretation of §1.14(b) and (c).

SAWS supports the interim authorization transition period in §705.259(a)(1)-(3). The City of Leon Valley recommends a withdrawal limit timetable of twelve months after the permit program rules become effective. The Authority responds that this is already embodied in §705.259(a)(1)-(3).

GBRA comments that the cap may not be obtained in January, 2000, as stated in §705.259(a)(3) due to the operation of §705.259(b). The Authority responds that the withdrawal amounts in §705.259(a) speak for themselves and it will be incumbent upon the Authority to implement and enforce these amounts.

EDF and the Sierra Club recommends that 479,000 acre-feet be the "withdrawal cap" during the interim authorization period, but to allocate it to existing users based on preliminary estimates of their proposed initial regular permit amounts. The Authority agrees that 479,000 should be the cap during interim authorization, but only for the year 1998 and has embodied this concept in §705.259(a)(1). The City of Leon Valley also recommends that if the U.S.G.S. amount is know that the actual withdrawal amounts should replace the reference to U.S.G.S. The Authority has agreed and has modified the rule to replace the reference to 1996 withdrawals as determined by the U.S.G.S. with 479,000 acre-feet. The Authority believes that a five percent reduction in the cap from 479,000 acre-feet to 455,500 acre-feet for 1999, then to 450,000 acre-feet beginning in January, 2000, provides a reasonable period to adjust to limited withdrawals of the 450,000 cap during interim authorization as the amount to be carried forward into the post-interim authorization (i.e. permit) phase. The Authority declines to adopt the recommendation that the 479,000 acre-feet cap be allocated to existing users based on their preliminary estimates of their proposed initial regular permits because this cap will be in place for only the year 1998 and the Authority will not yet have issued the proposed initial regular permits prior to the beginning of 1998.

Several individuals, E.M.W. Ltd, and sixteen irrigators commented that §705.259(b) should not authorize proportional adjustments during interim authorization below the initial regular permit minimum withdrawal amounts. That is the intent of the last sentence of §705.259(b), and the Authority has made minor changes to conform the language to the definition of initial regular permit minimum withdrawal amount.

GBRA recommends that §705.259(b) authorize the proportional adjustment of interim authorization below the amount of the initial regular permit minimum withdrawal amount. The Authority declines to adopt this recommendation in order to protect existing users' reasonable expectation interests in the transition from interim authorization to the permit phase and to provide for a reasonably consistent regulatory framework between interim authorization and the permit phase as is practicable, and yet maintains the transition objectives of the Authority interim authorization program.

One individual recommended that §705.259(b) be modified to prevent proportional adjustment of interim authorization withdrawals "if the historic average use" of water is less than the cap. For the reasons discussed in Regional Clean Air & Water's comments related to §705.77(d), the Authority declines to adopt this recommendation.

COMMENTS RELATED TO §705.261

Hutcheson & Grundy recommends that §705.261 be modified to include a limitation on the total annual withdrawals under interim authorization. The Authority agrees and has modified this section accordingly.

Procedural Background.

As previously noted, the Authority conducted public hearings on December 10, 1997, in San Marcos, December 12, 1997, in New Braunfels, December 16, 1997, in Uvalde, December 17, 1997, in San Antonio, and on December 18, 1997, in Hondo. The Authority received oral comments at these hearings. It received written comments from November 21, 1997, through 5:00 p.m. on December 20, 1997. Authority staff compiled the oral and written comments and reviewed them for the purpose of developing recommendations to the Permits Committee of the Board of Directors (Board) of the Authority. On January 5, 1998 and January 12, 1998, the staff presented its recommendations to the Permits Committee. The Permits Committee made its recommendations on January 12, 1998, to the Board. On January 20, 1998, the Board considered the recommendations of the Authority staff, recommendations of the Permits Committee and other recommendations of the members of the Board at its regular Board meeting in Uvalde. These adopted rules reflect the action of the Board after review and consideration of the comments received by the Authority and staff recommendations. Subchapter A. Purpose of Permit Program

Subchapter A. Purpose of Permit Program

The Edwards Aquifer Authority (Authority) adopts new §§707.1, 707.3, 707.21, 707.23, 707.25, 707.27, 707.29, 707.31, 707.41, 707.43, 707.45, 707.47, 707.49, 707.51, 707.53, 707.57, 707.59, 707.61, 707.63, 707.65, 707.67, 707.81, 707.83, 707.85, 707.87, 707.91, 707.93, 707.121, 707.131, 707.133, 707.151, 707.153, 707.161, 707.201, 707.205, 707.207, 707.209, 707.221, 707.223, 707.225, 707.227, 707.229, 707.231, 707.233, 707.235, 707.237, 707.251, 707.257, 707.259, 707.261, 707.263, 707.281, 707.283, 707.285, 707.287, 707.289, 707.291, 707.293, 707.295, 707.297, 707.299, 707.301, 707.311, 707.313, 707.315, 707.317, 707.319, 707.401, 707.403, 707.405, 707.417, 707.425, 707.429, 707.431, 707.501, 707.509, 707.525, 707.703, 707.705, 707.709, 707.711, 707.713, 707.715, 707.717, 707.719, 707.721, and 707.723, concerning procedural groundwater withdrawal permit rules. Sections 707.41, 707.89, 707.161, 707.201, 707.231, 707.261, 707.283, 707.285, 707.287, 707.291, 707.313, 707.317, 707.401, 707.403, 707.425, 707.501, 707.509, 707.525, 707.713, and 707.715 are adopted with changes to the proposed text as published in the November 21, 1997, issue of the Texas Register (22 TexReg 11263). Sections 707.1, 707.3, 707.21, 707.23, 707.25, 707.27, 707.29, 707.31, 707.43, 707.45, 707.47, 707.49, 707.51, 707.53, 707.57, 707.59, 707.61, 707.63, 707.65, 707.67, 707.81, 707.83, 707.85, 707.87, 707.91, 707.93, 707.121, 707.131, 707.133, 707.151, 707.153, 707.205, 707.207, 707.209, 707.221, 707.223, 707.225, 707.227, 707.229, 707.233, 707.235, 707.237, 707.251, 707.257, 707.259, 707.263, 707.281, 707.289, 707.293, 707.295, 707.297, 707.299, 707.301, 707.311, 707.315, 707.319, 707.405, 707.417, 707.429, 707.431, 707.703, 707.705, 707.709, 707.711, 707.717, 707.719, 707.721, and 707.723, are adopted without changes and will not be republished. Sections 707.55, 707.181, 707.183, 707.185, 707.187, 707.189, 707.191, 707.193, 707.203, 707.407, 707.409, 707.411, 707.413, 707.415, 707.419, 707.421, 707.423, 707.427, 707.503, 707.505, 707.507, 707.511, 707.513, 707.515, 707.517, 707.519, 707.521, 707.523, 707.527, 707.529, 707.531, 707.533, 707.601, 707.603, 707.605, 707.701, and 707.707 are withdrawn contemporaneously in this issue of the Texas Register .

General Reorganization of Authority Rulemaking.

Beginning in May, 1997, the Authority undertook a complete review of its rules and rulemaking process. The purpose of the review was to ensure that future rulemaking would be efficiently and effectively accommodated. The review found that there was no preexisting framework or index for likely future rulemaking. In addition, the bulk of the rules were being lodged in one single chapter, while other rules were located in another chapter without an apparent numerical nexus. The placement of most of the rules in one chapter was over time likely to result in intermixing of multiple unrelated subject matter and the creation of structure problems related to the sequencing of chapters and subchapters. Accordingly, an index of probable future rulemaking was developed as a structural guide. In light of the development of this index, it became necessary to reorganize the rules of the Authority to conform to the index. Adopting new chapter 707 concerning the procedural groundwater withdrawal permit rules is in furtherance of this conformance process. The result of this process is the consolidation of permit program procedural rules in chapter 707, rather in various subchapters scattered throughout prior chapter 701. The results of the reorganization process are found in Table 1, Disposition Table, located in the Tables and Graphics section in this issue of the Texas Register .

The Disposition Table identifies where the concepts within the prior permit program rules are now located under these new permit program rules. The prior permit program procedural rules are found in 31 TAC §701 (West 1997) (repealed); 22 TexReg 1393 (1997) (to be codified in 31 TAC subchapters C-H) (repealed); and 22 TexReg 5263 (1997)(to be codified in 31 TAC Subchapters I-K) (repealed).

Rationale for Changes to Prior Program Procedural Rules.

As previously mentioned, the procedural rules themselves were also reviewed. The purpose of the review was to evaluate the rules to compare them against a fully developed, integrated permit program that would be required to be developed and implemented under the Edwards Aquifer Act, Act of May 30, 1993, 73rd Legislature, Regular Session, Chapter 626, 1993 Texas Session Laws 2353-2374, as amended (Act). In so doing, the rules were evaluated for completeness as to the scope of issues to be addressed, editorial style and clarity with a special focus on terminology, substantive legal conformance to the Act, the need for augmentation and expansion of discussion relative to issues already addressed in the rules, and the elimination of unnecessary provisions.

A summary of the reasons these rules were reorganized or modified are found in Table 2, "Edwards Aquifer Authority Permit Program Rules Revision Analysis", located in the Tables and Graphics section in this issue of the Texas Register .

Comments.

Written comments were filed by the following commenters but were of a general nature and did not address a specific proposed rule such that no response is required or is able to be formulated: The Greater San Antonio Chamber of Commerce, Petty Ranch Co., as well as various individuals.

Several individuals gave only oral comments of a general nature and did not address a specific proposed rule such that no response is required or is able to formulated.

Public hearings were held on December 10, 1997, in San Marcos, December 12, 1997, in New Braunfels, December 16, 1997, in Uvalde, December 17, 1997, in San Antonio, and on December 18, 1997, in Hondo.

Subchapter A. Jurisdiction of the Edwards Aquifer Authority, §707.1 and §707.3

No written comments were received concerning proposed new §707.1 and §707.3.

No oral comments were received concerning Subchapter A.

Subchapter B. General Requirements, §§707.21, 707.23, 707.25, 707.27, 707.29, 707.31

No written comments were received concerning proposed new §§707.21, 707.23, 707.25, 707.27, 707.29, 707.31

No oral comments were received concerning Subchapter B.

Subchapter C. Requirements for All Applications, 31 TAC §§707.41, 707.43, 707.45, 707.47, 707.49, 707.51, 707.53, 707.57, 707.59, 707.61, 707.63, 707.65, 707.67

One written comment was received from two individuals.

No oral comments were received concerning Subchapter C.

Authority Response to Comments:

Although no comments were received pertaining to §707.41, the Authority has made modifications therein to conform the section to the concurrent withdrawal of proposed §705.13.

The two individuals oppose the requirement in proposed §707.55 to more accurately define the location of wells in applications. The Authority agrees and concurrent with this rulemaking has withdrawn this proposed section.

Subchapter D. Declarations of Historical Use, §§707.81, 707.83, 707.85, 707.87, 707.89, 707.91, 707.93

Written comments were received from one individual as well as Hutcheson & Grundy, L.L.P.

No oral comments were received concerning Subchapter D.

Authority Response to Comments:

An individual commented on §707.89. This individual argued that the proposed rule was "changing the rules" and expressed concern that a double standard was being created for those existing users who filed early prior to November 21, 1996, and those who did not. The Authority responds that this proposed rule is derived from prior rule 31 TAC §707.22 (now repealed). However, the Authority agrees that it is unclear as to the intent of proposed §707.89. The proposed rule (and prior rule) is simply a statement that declarations that were already filed prior to the adoption of rules by the Authority do not need to be refiled again under the new rules. The Authority has modified the rules to more clearly reflect this intent.

Relative to proposed §707.91(8) one commenter recommended that the "pattern" of use also be set out in the contents of a declaration for historical use. The Authority disagrees and declines to adopt this recommendation. The Authority agrees that this information may be important during a critical period and will consider this issue under its Critical Period Management rules. The Critical Period Management Rules are the subject of current proposed repealed and new rulemaking. See 23 TexReg 89 1998 (to be codified if adopted in 31 TAC §709) (proposed repeal and replacement of Current Interim Critical Period Management Plan in 22 TexReg 1648 (to be codified in 31 TAC §726)).

Subchapter F. Additional Requirements for Additional Regular Permits, 31 TAC §707.121

No written comments were received concerning proposed new §707.121.

No oral comments were received concerning Subchapter F.

Subchapter G. Additional Requirements for Term Permits, 31 TAC §§707.131; 707.133

One written comment was received from Hutcheson & Grundy, L.L.P.

No oral comments were received concerning Subchapter G.

Authority Response to Comments:

Relative to proposed §707.131(4), one commenter recommended that the "pattern" of use also be set out in an application for an additional regular permit. The Authority disagrees and declines to adopt this recommendation. The Authority agrees that this information may be important during a critical period and will consider this issue under its Critical Period Management rules. The Critical Period Management Rules are the subject of current proposed repealed and new rulemaking. See 23 TexReg 89 1998 (to be codified if adopted in 31 TAC §709) (proposed repeal and replacement of Current Interim Critical Period Management Plan in 22 TexReg 1648 (to be codified in 31 TAC §726)).

Subchapter H. Additional Requirements for Emergency Permits, 31 TAC §§707.151; 707.153

No written comments were received concerning proposed §707.151, and §707.153.

No oral comments were received concerning Subchapter H.

Subchapter I. Additional Requirements for Well Construction Permits, 31 TAC §707.161

Written comments were received from the City of Leon Valley and Hutcheson & Grundy, L.L.P.

No oral comments were received concerning Subchapter I.

Authority Response to Comments:

One commenter recommended that proposed §707.161(9) be modified to the limit the scope of the listing of possible sources of contamination to those that are "reasonably" and to establish a 300 feet setback identifying the zone of interest for the pollution inquiry. The Authority agrees that only those sources that are reasonably possible sources of contamination should be listed. It also agrees that a setback should be established. The Authority believes that a more appropriate setback distance would be a 500 feet radius from the well. The Authority has modified paragraph (9) accordingly.

Relative to paragraph (6), one commenter recommended that the "pattern" of use also be set out in an application for a well construction permit. The Authority disagrees and declines to adopt this recommendation. The Authority agrees that this information may be important during a critical period and will consider this issue under its Critical Period Management rules The Critical Period Management Rules are the subject of current proposed repealed and new rulemaking. See 23 TexReg 89 1998 (to be codified if adopted in 31 TAC §709) (proposed repeal and replacement of Current Interim Critical Period Management Plan in 22 TexReg 1648 (to be codified in 31 TAC §726)).

Subchapter K. Registration of Wells, §§707.201, 707.205, 707.207, 707.209

Written comments were received from the City of Leon Valley, SAWS, and Hutcheson & Grundy, L.L.P.

No oral comments were received concerning Subchapter K.

Authority Response to Comments:

One commenter recommended that proposed §707.201 be deleted because all wells should be registered. The Authority agrees. However, because of the manner in which proposed §707.201 and §707.203 interact, instead of withdrawing proposed §707.201, the Authority has withdrawn §707.203 currently with this rulemaking and combined portions of §707.203 into §707.201 to accomplish the desired result.

One commenter offered certain editorial modifications which are not adopted by the Authority.

One commenter recommended that the fees in §707.209 be established at sufficient levels to recover administrative costs. While the Authority may agree in principal with this recommendation, the Authority is limited to the registration fees established in the Act, §1.29(g).

The Authority has also modified the rule to conform to modifications made to the definition of "well" related to the capability of a well to make withdrawals from the aquifer.

Subchapter L. Applications Processing, §§707.221, 707.223, 707.207, 707.225, 707.227, 707.229, 707.231, 707.233, 707.235, and 707.237

Written comments were received from the Aldridge Nursery, Inc., GBRA, SAWS, and Hutcheson & Grundy, L.L.P.

No oral comments were received concerning Subchapter L.

Authority Response to Comments:

One commenter identified in §707.231(b) a typographical error in the date March 1, 1996, instead of 1998. The Authority agrees and modifies this rule accordingly.

Also related to §707.231(b), the GBRA recommended that proposed initial regular permit be completed by the general manager by March 1, 1998. It additionally recommends that the board issues the proposed initial regular permits by July 1, 1998. The Authority agrees that the general manager should prepare the proposed initial regular permits. However, it disagrees that the board should issue the proposed permits. Rather, it is more appropriate for the general manager to issue the proposed initial regular permit than the board. This is a staff function. The Authority's position is that in order to protect its neutrality and detachment in the decision making process, the board should not issue any kind of order concerning an application prior to its final order. The Authority agrees that the deadline for issuance of the proposed initial regular permit should be extended. However, instead of July 1st, the Authority believes that April 30, 1998, will be adequate time and has modified §707.231(b) accordingly. The Authority has also modified §707.261(a) to reconcile and harmonize these two interrelated sections.

Relative to §707.231(c)(2), one commenter recommended that the "pattern" of use also be set out in the proposed initial regular permit and technical summary. The Authority disagrees and declines to adopt this recommendation. The Authority agrees that this information may be important during a critical period and will consider this issue under its Critical Period Management rules. The Critical Period Management Rules are the subject of current proposed repealed and new rulemaking. See 23 TexReg 89 1998 (to be codified if adopted in 31 TAC §709) (proposed repeal and replacement of Current Interim Critical Period Management Plan in 22 TexReg 1648 (to be codified in 31 TAC §726)).

One commenter supports the 60-day protest period. Another commenter recommends that §707.231(c)(17) be modified to extend the protest period to 90 days. In so doing, it is reasoned that a more careful review of applications may be undertaken to possibly avoid unnecessary protests. The Authority agrees and modifies the rule accordingly.

Although not directed at a specific rule, one commenter recommends that the Authority adopt a rule that requires the general manager within 30 days after the adoption of the permit program rules to "determine the maximum possible final permit amounts that users could reasonably expect to receive" with appropriate appeals processes to the board. The Authority responds that this suggested amount is the amount that is embodied in the proposed initial regular permit process under §707.231. While the issuance of the proposed permit may not be within 30 days after the rules are issued, it will occur no later than April 30, 1998, under §707.231(b). The Authority declines to allow appeal of proposed initial regular permits issued by the general manager, and instead relies on the standard appellate process stemming from the contested case hearing process.

Subchapter M. Notices Related to Groundwater Withdrawal Permit Applications, §§707.251, 707.257, 707.259, 707.261, 707.263

Written comments were received from the City of Leon Valley, GBRA, SAWS, and Hutcheson & Grundy, L.L.P.

No oral comments were received concerning Subchapter M.

Authority Response to Comments:

Relative to §707.251(c)(7), one commenter recommended that the "pattern" of use also be set out in the notice of receipt and administrative completeness. The Authority disagrees and declines to adopt this recommendation. The Authority agrees that this information may be important during a critical period and will consider this issue under its Critical Period Management rules. The Critical Period Management rules are the subject of current proposed repeal and new rulemaking. See 23 TexReg 89, 1998 (to be codified if adopted in 31 TAC §709) (Proposed repeal and replacement of current Interim Critical Period Management Plan in 22 TexReg 1648 (to be codified in 31 TAC §726).

The commenter also recommended certain editorial and stylistic modifications to §707.257(b). In light of the withdrawal of proposed §707.183, it is unnecessary to respond to this comment at this time.

Because of the modification made to §707.231(b) and changing the date from March 1, 1998, to April 1, 1998, the Authority has also modified §707.261(a) to reconcile and harmonize these two interrelated sections.

One commenter supports the 60-day protest period. Another commenter recommends that §707.261(b)(5) be modified to extend the protest period to 90 days. In so doing, it is reasoned that a more careful review of applications may be undertaken to possibly avoid unnecessary protests. The Authority agrees and modifies the rule accordingly.

One commenter requested that in §707.261(c) the number of newspapers of general circulation be reduced from three to one. The Authority agrees and has made this modification. However, because the wide dissemination of permit program information throughout the Authority is important, the Authority has also modified the rule to require that notices be published in five other newspapers that may not have general circulation throughout the Authority.

Subchapter N. Actions on Applications, §§707.281, 707.283, 707.285, 707.287, 707.289, 707.291, 707.293, 707.295, 707.297, 707.299, 707.301

Written comments were received from the City of San Marcos, Representative Tracy O. King, GBRA, and Hutcheson & Grundy, L.L.P.

No oral comments were received concerning Subchapter N.

Authority Response to Comments:

Two commenters oppose the issuance of final orders on applications for initial regular permits until the end of the contested case hearing process for all applicants. The commenter recommends that the final orders be issued as soon as possible for uncontested applications and contested applications that have been processed through the contested case hearing. The Authority agrees and has modified §707.283(1) and §707.285(a) accordingly, but has provided an option for an applicant to request that the board hold its application in abeyance and not issue a final order until requested by the applicant.

One commenter supports the 30-day issuance time for uncontested applications for initial regular permits in §707.283(a)1).

One commenter recommends that initial regular permits be issued within 30-days after a final order has been issued by the board on an application. The Authority agrees that there should be an issuance timeframe. It believes that the more appropriate triggering event is the issuance of a proposal for decision by an administrative law judge. Another commenter recommended that §707.285(a)2) be clarified to refer to the filing of the proposal of decision by the State Office of Administrative Hearings (SOAH). The Authority agrees and retains the 90-day period, but modifies §707.285(a)(2) to clarify that it is proposal for decision filed by the SOAH that triggers the timeline.

Another commenter recommended a cross-referenced citation for §707.285(b) to the proportional adjustment order procedures. The Authority agrees and has made the appropriate modification.

The Authority also identified that §705.77(c) was more appropriately characterized as a procedural rule and moved this subsection to §707.285(d) and modified §705.77(c) and §705.285 accordingly.

The commenter also recommended certain editorial and stylistic modifications to §707.291 which were not adopted by the Authority. However, in light of the concurrent withdrawal of §705.13, the Authority has eliminated the cross-reference to that section.

Subchapter O. Requests for Contested Case Hearings, §§707.311, 707.313, 707.315, 707.317, and 707.319

Written comments were received from the City of Olmos Park, Aldridge Nursery, Inc., and SAWS.

No oral comments were received concerning Subchapter O.

Authority Response to Comments:

One commenter recommends that §707.311(b)(5) be eliminated and that proportional adjustment orders should be the subject of contested case hearings. The commenter misunderstands the nature of the proportional adjustment process. The final proportional adjustment order of the board will not be entered until all final orders have been issued on all applications. Only then will the board be able to know what the extent of proportional adjustment will be. Accordingly, a proportional adjustment order cannot be the subject of contested case hearings because there will be no hearings remaining to be conducted. This is not to say, however, that a proportional adjustment order would not be appealable under §707.719.

Two commenters recommend that municipalities who are not applicants for permits be given standing under proposed §707.313(a) to protest an application for a regular permit. The reasons offered for standing are (1) a contractual relationship with the applicant, (2) potential reduction in volumes available for additional regular permits, (3) potential reduction in volumes available for term permits, and (4) potential reduction in volumes available for emergency permits. The Authority disagrees. The last two grounds cannot provide a basis to contest because the issuance of initial regular permits does not affect the amount of groundwater available for permitting for term or emergency permits. The second ground cannot provide a basis because no applicants for additional regular permits exist, nor can any exist. No application for additional regular permits are authorized to be processed until all initial regular permits are issued. See Act, §1.18(b). In the Authority's judgment the mere prospect of potentially being an applicant is an insufficient interest to support standing to contest. The contract basis for standing to contest is also insufficient because the Authority has no jurisdiction to regulate the contractual relationship between an applicant for an initial regular permit and any of its wholesale customers in permit proceedings, or through any other administrative action. Jurisdiction lies with the Texas Natural Resource Conservation Commission.

One commenter supports the 60-day protest period. Another commenter recommends that §707.313(f) be modified to extend the protest period to 90 days. In so doing, it is reasoned that a more careful review of application may be undertaken to possibly avoid unnecessary protests. The Authority agrees and modifies the rule accordingly.

Subchapter P. Contested Case, 31 TAC §§707.401, 707.403, 707.405, 707.417, 707.425, 707.429, 707.431, 707.501, 707.509, 707.525, 707.703, 707.705, 707.709, 707.711, 707.713, 707.715, 707.717, 707.719, 707.721, 707.723

No written comments were received concerning proposed new §§707.401, 707.403, 707.405, 707.417, 707.425, 707.429, 707.431, 707.501, 707.509, 707.525, 707.703, 707.705, 707.709, 707.711, 707.713, 707.715, 707.717, 707.719, 707.721, 707.723

Oral comments were received from an individual concerning proposed §707.503. As indicated below, since this proposed rule was concurrently withdrawn under this rulemaking it is unnecessary to respond to this comment.

The State Office of Administrative Hearings (SOAH) now has a duty to adopt uniform procedural rules governing hearings conducted by (SOAH). TEXAS GOVERNMENT CODE ANNOTATED §2003.050(a) (Vernon 1998). The procedural rules of the referring agency are inapplicable if SOAH fails to adopt the referring agency's rules. Id ., §2003.050(b). SOAH does not intend to adopt the Authority's contested case procedural rules. Therefore, the Authority concurrent with this rulemaking has withdrawn §§707.407, 707.409, 707.411, 707.413, 707.415, 707.419, 707.421, 707.423, 707.427, 707.503, 707.505, 707.507, 707.511, 707.513, 707.515, 707.517, 707.519, 707.521, 707.523, 707.527, 707.529, 707.531, 707.533, 707.601, 707.603, 707.605, 707.701, and 707.707.

Due to this action, the Authority has modified §§707.401, 707.403(a)-(b), 707.425(b), 707.501, 707.509(a)-(c), 707.525(c), 707.713, 707.715(b), and 707.717(a) to conform to the withdrawals and to reflect that the Authority may not direct the activities of the SOAH administrative law judges once it has referred a matter to SOAH.

Procedural Background.

As previously noted, the Authority conducted public hearings on December 10, 1997, in San Marcos, December 12, 1997, in New Braunfels, December 16, 1997, in Uvalde, December 17, 1997, in San Antonio, and on December 18, 1997, in Hondo. The Authority received oral comments at these hearings. It received written comments from November 21, 1997, through 5:00 p.m. on December 20, 1997. Authority staff compiled the oral and written comments and reviewed them for the purpose of developing recommendations to the Permits Committee of the Board of Directors (Board) of the Authority. On January 5, 1998 and January 12, 1998, the staff presented its recommendations to the Permits Committee. The Permits Committee made its recommendations on January 12, 1998, to the Board. On January 20, 1998, the Board considered the recommendations of the Authority staff, recommendations of the Permits Committee and other recommendations of the members of the Board at its regular Board meeting in Uvalde. These adopted rules reflect the action of the Board after review and consideration of the comments received by the Authority and staff recommendations.

Subchapter A. Jurisdiction of the Edwards Aquifer Authority

General Provisions