Part I.
General Land Office
Chapter 19.
Oil Spill Prevention and Response
Subchapter E. Vessels
31 TAC §19.61
The General Land Office (GLO) proposes amendments to §19.61
(relating to Response Plans). The current §19.61(c) (relating to IMO
vessels) is being renumbered as §19.61(b). The current §19.61(b)
(relating to OSPRA vessels) is being renumbered as §19.61(c). This amendment
is being proposed pursuant to the statutory requirements for contingency plans
for vessels under the Oil Spill Prevention and Response Act (OSPRA), Tex.
Nat. Resources Code §40.114. Section 40.114 requires that any vessel
with a capacity to carry 10,000 gallons or more of oil as fuel or cargo and
that operates in coastal waters or waters adjoining and accessible from coastal
waters shall maintain a written vessel-specific discharge prevention and response
plan. The proposed amendment applies to all vessels that carry 10,000 gallons
or more of oil as fuel or cargo and that operate in coastal waters and that
are not currently required to have an OPA plan, described in §19.61(a),
or an IMO plan, described in renumbered §19.61(b). Thus, the proposed
amendment applies to, for example, tugboats, offshore supply vessels, larger
Gulf shrimping vessels, commercial fishing vessels, recreational vessels and
public vessels among others. Pursuant to Tex. Nat. Res. Code §40.114,
dedicated response vessels or any other vessel used for activities within
state waters related solely to the containment and cleanup of oil, including
response-related training or drills, are not subject to the contingency plan
requirement. Any vessel which has an existing discharge prevention and response
plan that meets the intent of the proposed amendment may be deemed to be in
compliance with it. If a vessel owner or operator with an existing plan is
unsure whether that plan satisfies this proposed amendment, the GLO will,
upon request, conduct a review of its existing plan.
The proposed amendment does not require submission of information to the
GLO; rather it requires affected vessels to maintain certain information onboard
the vessel. The information should be in an easily accessible location onboard
the vessel. The format for organizing the information is at the vessel owner
and operator's discretion; however, the GLO is providing a form, OS-100, for
use in complying with the proposed amendment. The basic purpose of the proposed
amendment is to ensure that vessel crew members or shoreside personnel have
access to the information needed to make proper notifications and promptly
initiate spill response actions which will ensure protection of Texas' coastal
natural resources.
The proposed §19.61(c)(1) contains definitions applicable to OSPRA
vessels. All of the definitions applicable to the rule amendments are located
in §19.61(c)(1) for ease of use, even though some of them are defined
elsewhere in 31 TAC Chapter 19. The definition of "Person in Charge" in proposed
subsection 19.61(c)(1) has been abbreviated, but contains the essential elements
of the definition found in §19.16 of this title (relating to Person in
charge). The GLO has decided to adopt best management practices, defined in
§19.61(c)(1), to encourage voluntary adoption of oil spill prevention
measures. Best management practices is a term generally used to refer to operational
procedures that can prevent spills or minimize environmental impacts. In the
context of the proposed amendment, best management practices refer to measures
that vessel owners and operators can implement in an effort to reduce the
risk of an oil spill. Proposed §19.61(c)(2) contains requirements for
information about the vessel, such as the vessel name and number, oil storage
capacity and name of owner and operator. The vessel information must be onboard
the vessel at all times and must be presented, upon request, to the GLO personnel
who respond to spills, conduct harbor patrols, and otherwise act to enforce
the proposed amendment. The proposed §19.61(c)(3) requires vessels to
maintain onboard spill response information. The required spill response information
describes the steps for proper notification and prompt response to unauthorized
discharges of oil. Section 19.61(c)(3)(A) lists the initial steps that should
be taken by vessel crew upon discovery of an unauthorized discharge of oil.
The information listed in §19.61(c)(3)(A) may be adapted, as appropriate,
for the particular OSPRA vessel; however, the adapted information should contain
actions that address the items listed in §19.61(c)(3)(A). Section 19.61(c)(3)(B)
contains required notification information such as names and phone numbers
of persons whom the vessel crew must contact in the event of an unauthorized
discharge of oil. The prompt notification of governmental and private response
entities can minimize the costs of cleaning up an oil spill and lessen the
environmental impact. The mandatory requirements of the proposed amendment
are in §19.61(c)(2) (relating to vessel information) and §19.61(c)(3)(A)
and (B) (relating to notification and response actions). The notification
and response action information must be onboard the vessel at all times and
must be presented, upon request, to the GLO personnel who respond to spills,
conduct harbor patrols, and otherwise act to enforce the proposed amendment.
Section 19.61(c)(4) contains a list of best management practices for preventing
oil spills. The GLO has determined, through an analysis of oil spill data,
that a significant percentage of oil spills from vessels are preventable.
GLO spill data shows that in 1996, 48.7% and in 1997 through November 1, 1997,
47.5% of the spills from vessels were caused by human factors. Spills from
OSPRA vessels during the same time period accounted for 26.5% and 27.7%, for
each respective year, of spills caused by human factors reported to the GLO.
These spills could be prevented by introduction of best management practices,
such as monitoring fuel transfers, following maintenance schedules, proper
disposal of oily bilge water, regularly checking valves, plugging scupper
holes, monitoring fueling, using drip pans, and training crew members in safe
practices. The GLO has determined that the most cost effective measure for
small vessel owners and operators is prevention of oil spills. The list of
best management practices in §19.61(c)(4) is illustrative and completely
voluntary.
Section 19.61(c)(4) is designed to encourage vessel owners and operators
to explore appropriate prevention measures based upon the particular vessel's
operational practices. In the event of a spill, GLO personnel will determine
whether the vessel owners and operators have voluntarily adopted spill prevention
measures and whether those measures, if properly implemented, could have prevented
or did, in fact, minimize the spill's impact.
Section 19.61(c)(5) provides a description of the enforcement policy related
to OSPRA vessels. OSPRA vessels will be required to have vessel information,
§19.61(c)(2)(A) through (D), and spill response information, §19.61(c)(3),
onboard the vessel. Failure to have the information onboard may result in
the assessment of a penalty. The GLO will not penalize vessel owners and operators
who do not adopt best management practices for spill prevention, nor will
spill response actions by those persons be deemed inadequate because of the
lack of such practices. However, vessel owners and operators are strongly
encouraged to consider the benefits of best management practices. If the best
management practices were implemented, then the GLO will consider that fact
in deciding whether to assess a penalty as the result of any particular incident.
Section 19.61(c)(6) provides for a one time exception in complying with
§19.61(c)(2) and §19.61(c)(3). The proposed subsection emphasizes
the educational purpose of the rule by allowing vessels a one time exception
to compliance. The GLO will have a phase-in implementation period for the
rule. The one time exception in §19.61(c)(6) is in addition to the phase-in
period prior to full enforcement. The rule will not be enforced until September
1, 1998. After September 1, 1998, the GLO will enforce the rule through its
routine spill response, harbor patrol and other enforcement programs. During
a spill response, GLO personnel will determine whether the OSPRA vessel has
the required documentation onboard and whether the notification and initial
spill response measures have been followed.
The GLO is aware of the competitive economic environment affecting some
small vessel owners and operators. Therefore the proposed amendment requires
only essential information for initiating spill response and notification
and places an emphasis on prevention and voluntary measures. Through this
simplified rule, the GLO minimizes the costs and burdens associated with complying
with the law. The cost to the regulated community is the time required to
compile information in an accessible format (as an option, GLO form OS-100
may be used), put the information onboard the vessel, advise the vessel crew
of its existence, and provide explanations of the minimal steps required for
notification and emergency response. The GLO will assist vessel owners and
operators, upon request, in compiling the information. The GLO will also assist
vessel owners and operators by discussing effective methods of educating vessel
crew on how to comply with the proposed amendment.
The GLOþs Division of Oil Spill Prevention and Response (Division)
has undertaken several initiatives to assist owners and operators of OSPRA
vessels. The purpose of these actions is to reduce oil spills into coastal
waters without increasing the economic burden on the regulated community.
One example is the small spill education program which has participated in
the financing and construction of an oily bilge water reclamation facility
in Port Isabel. Plans are underway to construct more of these facilities along
the Texas coast. After fourteen months of operation, 14,000 gallons of oil
have been recovered from the Port Isabel oily bilge water reclamation facility.
This oil would otherwise have been discharged into Texas coastal waters. There
are also environmental benefits in properly disposing of oily bilge water.
Shrimp larvae, juvenile fish and seagrasses are particularly sensitive to
oil. The cost of oil spill cleanup, even for a relatively small oil spill,
far exceeds the cost of educating crew members about their legal responsibilities
and initial spill response measures. Prompt notification of an oil spill to
the GLO, the National Response Center, and to private spill response contractors
minimizes the impacts of the spill incident because abatement, containment
and removal can occur before the spill spreads and becomes uncontrollable
or impacts a sensitive environment.
The GLO plans to conduct an extensive education program for OSPRA vessel
owners and operators subject to this rule. During the public comment period
on the proposed amendment, the GLO will conduct public hearings which will
be informal so that vessel owners and operators may fully understand the
proposed amendment. Persons fluent in Spanish and Vietnamese will be present
at the hearings to assist vessel owners and operators. The hearings will
be advertised in local newspapers and trade publications. The GLO specifically
solicits suggestions about effective methods of reaching affected owners
and operators. There will be a phase-in period for compliance with the rule.
After the rule is adopted, the GLO proposes to allow vessel owners and operators
until September 1, 1998 to fully comply. GLO oil spill prevention and response
personnel will work with vessel owners and operators by explaining the rule
requirements, providing a form for use onboard vessels and offering assistance
in compiling the information required to be onboard.
The GLO has analyzed this amendment pursuant to Government Code, Chapter
2007 relating to governmental action affecting private property rights. Pursuant
to Government Code §2007.003(b)(9), the chapter does not apply to an
action taken under a state mandate to prevent pollution related to oil and
gas activities. This rule is promulgated pursuant to the state law mandate
of Tex. Nat. Res. Code §40.114 which requires vessels to have a written
discharge prevention and response plan. Therefore, in the opinion of legal
counsel of the GLO, the promulgation of this rule is exempt from Government
Code, Chapter 2007.
Pursuant to Nat. Res. Code §33.2051, the GLO shall comply with Nat.
Res. Code §33.205(a) and (b) when adopting or amending a rule governing
the prevention of, response to, or remediation of a coastal oil spill. Sections
33.205(a) and (b) require a state agency that takes an action that may adversely
affect a coastal natural resource area to comply with the goals and policies
of the Texas coastal management plan, and to determine whether rules applicable
in coastal areas are consistent with the coastal management program goals
and policies. The Division has reviewed these proposed amendments to determine
whether they are consistent with the goals and policies of the coastal management
program. The Texas coastal management program is designed to ensure that coastal
natural resource areas are not adversely impacted by state agency actions.
The Division has determined that the proposed amendments are consistent with
the goals and policies of the coastal management program because they are
designed to protect coastal natural resources from oil spills. In addition,
the rule encourages voluntary prevention measures that will minimize the adverse
impact to coastal natural resources that may occur in the event of an unauthorized
discharge of oil.
Russel Lutz, Deputy Commissioner for the Division has determined that for
the first five years the rule will be in effect, there will not be any additional
costs to state and local governments. Local governments are not impacted by
the proposed amendment because they are not required to perform any functions
or expend any resources as a result of the rule. The proposed amendment will
not result in any cost reductions to local governments because they are not
presently expending any resources on vessel discharge prevention and response
plans. The state will not incur additional costs as the result of this rule
because the implementation, administration and enforcement of the rule will
be performed using existing GLO staff and resources. State government may
benefit from reduced spills from OSPRA vessels. The Coastal Protection Fund
is used to pay for the cleanup of oil spills when a responsible person cannot
be identified or when a responsible person is unable or unwilling to pay for
oil spill cleanup. To the extent that this proposed amendment causes a more
prompt response to oil spills from OSPRA vessels, the cost of cleaning up
oil spills may be reduced. This may result in a cost benefit for OSPRA vessel
owners. To the extent that the proposed amendment prevents an oil spill, there
will be a savings to the state because state personnel and equipment will
not be called to respond to an oil spill, no natural resources will be injured,
and there will be no attendant administrative expenses.
Mr. Lutz also has determined that the public benefits of the rule will
be enhanced protection of Texas coastal waters and the natural resources therein
and adjacent to those waters. The public benefits are expected because the
adoption of the proposed amendment will be accompanied by a public education
and outreach program to inform OSPRA vessel owners and operators about ways
to prevent oil spills and minimize their impact through prompt response. Further,
training of vessel crew about prevention measures will benefit vessel owners
and operators because they will not be burdened by the costs of cleaning up
an oil spill. Finally, there is benefit to the general public when oil spills
are prevented or responded to quickly. The impact on natural resources not
only affects the resources themselves, but also adversely impacts persons
whose livelihood depends on those resources. Texas is becoming a popular destination
for birdwatchers and other ecotourists. Many small communities derive significant
revenue from these tourists. Similarly, Texas beaches and commercial and recreational
fishing attract persons who contribute to the local economies. Fewer oil spills
and more prompt response to oil spills minimize the economic costs to the
public. The probable economic cost to vessel owners and operators required
to comply with this rule is an investment of time. The rule does not require
submission of documentation to the GLO, or to any other governmental entity;
nor does it require particular expertise since the GLO is supplying a form
that can be used by vessel owners and operators. Furthermore, the GLO will,
upon request, assist vessel owners and operators in complying with the proposed
amendment. The investment of time represents some cost to the vessel owner
and operator, but it is minimal and should not present an economic cost that
represents a serious impact.
This rule has been reviewed by legal counsel and found to be within the
legal authority of the GLO to adopt. Section 40.007 authorizes the commissioner
of the GLO to promulgate rules necessary and convenient to the administration
of the Oil Spill Prevention and Response Act. Section 40.114(a) requires vessels
with a capacity to carry 10,000 gallons or more of oil as fuel or cargo that
operate in coastal waters to maintain a written vessel-specific discharge
prevention and response plan that satisfies rules promulgated under §40.007.
The GLO invites comments on the substance of the proposed amendments, on
the proposed outreach, education, implementation processes and on the economic
impact of the proposed amendment. Interested parties may submit their comments
to Carol Milner, General Land Office, Legal Services Division, 1700 North
Congress Avenue, Room 626, Austin, Texas 78701-1495. Comments must be received
by 5:00 p.m. on March 3, 1998.
Tex. Nat. Res. Code §40.007, relating to general powers
and duties, and §40.114, relating to contingency plans for vessels, provide
the legal authority for the GLO to propose this rule and these sections are
affected by this proposed amendment.
§19.61. Response Plans.
(a)
(No Change)
(b)
[
(1)
Compliance with Regulation 26 of Annex I of MARPOL. IMO
vessels that enter Texas coastal waters must have onboard a shipboard oil
pollution emergency plan pursuant to Regulation 26 of Annex I of MARPOL 73/78.
The IMO vessel must be operating in compliance with the approved plan to gain
entry into a Texas port, pursuant to §19.63 of this title (relating to
Entry into Port). Vessels subject to OPA and to IMO are only required to submit
their OPA plan to the GLO.
(2)
Submission of Information to GLO. The plan prepared
pursuant to Regulation 26 of Annex I of MARPOL is not required to be submitted
to the GLO. Every owner, operator or manager of an IMO vessel that intends
to traverse Texas coastal waters shall submit to the GLO, 60 days after this
rule becomes final:
(A)
a copy of its flag state or authorized organization approval
of the IMO Regulation 26 Shipboard oil pollution emergency plan; and
(B)
IMO Vessel Form. Every owner, operator or manager of an
IMO vessel that intends to traverse Texas coastal waters shall submit to
the GLO the information listed in this subsection. This information is required
by Regulation 26, §2.5.4. The information must be submitted on IMO Vessel
Form.
Figure 1: 31 TAC 19.61(b)(2)(B)
(i)
Vessel Information. The registered name, flag state, port
of registry of the vessel, international call sign, official number and issuer
of the number, IMO number, gross tonnage, overall length, breadth and summer
draught. Any previous registered names of the vessel shall also be provided
and if the vessel has not previously been registered under another name,
such fact shall be affirmatively stated. The owner, operator or manager of
an IMO vessel shall also submit a general arrangement plan showing the location
and tank capacities for those tanks which carry oil.
(ii)
Notification Information. The name, address, telephone
number, and facsimile number of the owner, operator and manager of the vessel.
The telephone number provided shall be a 24-hour contact number for the person
named as owner, operator and manager.
(iii)
Vessel Personnel Information. Every owner, operator
or manager of an IMO vessel that intends to traverse Texas coastal waters
shall designate a:
(I)
Authorized Person: who is responsible for and in control
of all oil spill response operations on behalf of the vessel. This person
must be available 24 hours a day to ensure prompt response to oil spills in
Texas coastal waters. This person need not be onboard the vessel but must
have independent authority to deploy response equipment and to expend funds
necessary for response actions. This information is required pursuant to Regulation
26, §2.2.4. Further responsibilities of the person in charge are delineated
at §19.16 of this title (relating to Person in Charge).
(II)
Preparedness Manager: who is responsible for ensuring
that personnel aboard an IMO vessel are properly trained in mitigation and
control of an unauthorized discharge of oil. This information is required
pursuant to Regulation 26, §2.5.1.
(iv)
Vessel Response Organization. Every owner, operator or
manager of an IMO vessel that intends to traverse Texas coastal waters shall
maintain onboard the name and telephone numbers of two oil spill response
organizations identified as capable of providing a timely response to an unauthorized
discharge of oil from the vessel, at her intended port of call and at any
portion of the route of said vessel to and from the port of call.
(C)
(D)
(c)
[
(1)
Definitions. The following words, terms
and phrases, when used in this subsection only, shall have the following meanings,
unless the context clearly indicates otherwise.
(A)
Best management practices -practices that,
when used consistently, help to prevent discharges of oil
(B)
Official number - the vessel number as
it appears on the vessel's Certificate of Documentation issued by the United
States Coast Guard, pursuant to 46 CFR Part 67, or the vessel number issued
by the flag state with which the vessel is registered
(C)
Oil - "oil" of any kind or in any form,
including but not limited to crude oil, petroleum, fuel oil, sludge, oil refuse,
and oil mixed with wastes other than dredged spoil, but does not include petroleum,
including crude oil or any fraction thereof, which is specifically listed
or designated as a hazardous substance under Subparagraphs (A) through (F)
of section 101(14) of the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (42 U.S.C. Sec. 9601 et seq.) and which is subject
to the provisions of that Act, and which is so designated by the Texas Natural
Resource Conservation Commission
(D)
Person in charge -- the person designated
by name and job title for purposes of ensuring that the General Land Office
is notified of unauthorized discharges of oil from the vessel, who can initiate
and direct the emergency actions to be taken in response to an actual or threatened
unauthorized discharge of oil and who has independent authority to deploy
response equipment and personnel and to expend funds for response actions
(E)
State registration number --the vessel
number as it appears on the Certificate of Number issued by the Texas Parks
and Wildlife Department, pursuant to Texas Parks and Wildlife Code, Title
4 §31.024 or the vessel number as issued by any other state with which
the vessel is registered
(F)
Total oil storage capacity--the total capacity,
in gallons, of all tanks onboard the vessel designed to carry oil as fuel
or cargo
(G)
Vessel name -- the name of the vessel as
it appears on the vessel's Certificate of Documentation issued by the United
States Coast Guard pursuant to 46 CFR Part 67 or the common name of the vessel
(H)
Vessel owner/operator --any person owning,
operating, or chartering by demise a vessel
(2)
Vessel Information. OSPRA vessels
must maintain vessel information onboard that is readily accessible to the
vessel crew; the information shall include, at a minimum, the information
listed on OSPRA vessel form OS-100 and as described in subparagraphs (A)
- (D) of this paragraph; however, any format may be used to include the information
listed herein:
Figure 2: 31 TAC 19.61 (c)(2)
(A)
the name, address, and 24 hour contact
number of the vessel owner/operator
(B)
the vessel name
(C)
the official number or state registration
number
(D)
the total oil storage capacity of the
vessel
(3)
Spill Response Information.
OSPRA vessels must maintain onboard spill response information that is readily
accessible to the vessel crew; the information shall contain, at a minimum,
the information listed on OSPRA vessel form OS-100 and as described in subparagraphs
(A) and (B) of this paragraph; however, any format may be used to include
the information listed herein:
(A)
Emergency Action Information. OSPRA vessels
must maintain information outlining initial steps that must be taken by vessel
personnel to respond to an unauthorized discharge of oil. Vessel owners/operators
should prescribe, if necessary, more specificity for this information in order
to conform to the particular operations of the vessel and its crew. The emergency
action information shall include, at a minimum, instructions for:
(i)
shutting down operations
(ii)
securing the source of the spill
(iii)
assessing the spill situation and evaluating
for potential safety hazards to vessel personnel
(iv)
taking immediate action for reducing
the potential for future spillage
(v)
assessing the condition of the vessel and
taking action to prevent further vessel damage
(vi)
making notifications as described in
subparagraph (B) of this paragraph and taking reasonable steps to abate, contain,
and remove the unauthorized discharge of oil
(B)
Notification Information. The person in
charge shall notify the GLO at 1-800-832-8224 of an unauthorized discharge
of oil and shall include the information required under §19.32 relating
to reporting an unauthorized discharge of oil. OSPRA vessels must maintain
24-hour contact numbers for each geographic area in which the vessel operates
for each of the following:
(i)
person in charge
(ii)
vessel owner/operator
(iii)
cleanup contractors
(iv)
vessel salvage contractors
(v)
government agencies
(4)
Spill Prevention Information.
OSPRA vessels are encouraged to maintain best management practices for spill
prevention onboard the vessel. In the event of an oil spill, the GLO will
consider whether the vessel owners/operators had spill prevention measures
in place and whether vessel personnel were familiar with and executed those
measures. The following categories are suggested for use by vessel owners/operators
in the development of spill prevention measures:
(A)
best management practices to prevent discharges
of oily bilge water
(B)
best management practices to prevent discharges
from oil transfer operations
(C)
best management practices to prevent discharges
from hydraulic system failures
(D)
best management practices to prevent discharges
of oil due to improper vessel maintenance
(E)
best management practices to prevent discharges
of oil due to improper handling and disposal of petroleum products
(5)
Enforcement. The information
required under paragraphs (2) and (3) of this subsection must be presented
to (GLO) personnel upon request. Any vessel owner/operator who violates this
subsection is liable to the GLO for civil penalties in accordance with the
provisions of OSPRA §40.251. In the event of an unauthorized discharge
of oil, use of spill prevention best management practices by the vessel owner/operator
prior to and during the time of the spill will be considered by GLO personnel
in determining whether to assess penalties. Penalties may be reduced or waived
if appropriate spill prevention measures were in practice prior to and at
the time of the spill.
(6)
Exception to Compliance With This
Subsection. A one time only exception from the requirements of this subsection
shall be granted by GLO personnel to a vessel owner/operator who is found
to have violated the requirements of this subsection. Any vessel owner/operator
using this exception shall comply with the requirements of this subsection
within 30 days of the date the exception is granted by GLO personnel. Any
vessel owner/operator shall be subject to penalties for any violation of this
subsection, after being granted the one time exception by GLO personnel.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Issued in Austin, Texas, on December 22, 1997.
TRD-9717068
Garry Mauro
Commissioner
General Land Office
Proposed date of adoption: March 3, 1998
For further information, please call: (512) 305-9139
Chapter 709.
Critical Period Management Rules
31 TAC §§709.1, 709.3, 709.5, 709.7, 709.9, 709.11, 709.13, 709.15, 709.17, 709.19, 709.21, 709.23, 709.25, 709.27, 709.29, 709.31, 709.33, 709.35, 709.37, 709.39, 709.41, 709.43, 709.45
The Edwards Aquifer Authority (EAA) proposes new §§709.1,
709.3, 709.5, 709.7, 709.9, 709.11, 709.13, 709.15, 709.17, 709.19, 709.21,
709.23, 709.25, 709.27, 709.29, 709.31, 709.33, 709.35, 709.37, 709.39, 709.41,
709.43, and 709.45, concerning the critical period management rules.
Senate Bill 1477, §1.25 requires that the EAA implement a critical
period management plan. The original plan was adopted on February 18, 1997
on an interim basis.
The adoption of Chapter 709 is part of the Authority's rules reorganization
initiative.
Gregory M. Ellis, General Manager, Edwards Aquifer Authority, has determined
that for the period the sections will be in effect there will be no additional
costs for the State or local governments related to the administration of
these rules. Mr. Ellis has determined there will be no estimated reductions
in costs for the State or local governments related to the administration
of these rules. Mr. Ellis has determined there will be no loss or increase
in revenues to the State or local governments related to the enforcement of
these rules. Mr. Ellis has determined there could be a loss in revenue to
local governments related to the enforcement of these rules. Municipal suppliers
are subject to critical period management fees, and possibly other governmental
users of water may be subject to administrative penalties ($100 to $1,000
per day per violation) and civil penalties ($100 to $10,000 per day per violation).
It is not possible to estimate what fees or penalties may be levied against
local governments at this time.
Mr. Ellis also has determined that for the period the sections will be
in effect the public benefit anticipated as a result of enforcing the rules
will be the Authority's reorganization initiative of implementing new Chapter
709.
Comments on the proposal may be submitted to Gregory M. Ellis, General
Manager, Edwards Aquifer Authority, P. O. Box 16830, 1615 North St. Mary's
Street, San Antonio, Texas 78212-9030.
The new sections are proposed under Senate Bill 1477, §1.11(a),
which requires the board of directors of the EAA to adopt rules necessary
to carry out the EAA's powers and duties, including critical period management
rules.
The following section of Senate Bill 1477 is affected by the proposed new
sections: §1.26.
§709.1.Applicability.
This chapter applies to all applicants for regular permits, the customers
of all applicants who are retail public utilities, and owners of exempt wells.
§709.3.Nondiscretionary Uses.
Unless required under §709.27 of this title (relative to Stage
V Restrictions), no applicant is required to reduce any amount of groundwater
withdrawn from the aquifer for a nondiscretionary use.
§709.5.Critical Period Stages-East Area.
These critical period stages listed in paragraphs (1)-(5) of this section
apply within the boundaries of the Authority that are in the counties of Bexar,
Comal, Hays, Caldwell, and Guadalupe.
(1)
Stage I. Stage I applies on any day following a day when
the J-17 level is at or below 650 ft. m.s.l. and above 642 ft. m.s.l.
(2)
Stage II. Stage II applies on any day following a
day when the J-17 level is at or below 642 ft. m.s.l. and above 636 ft. m.s.l.
(3)
Stage III. Stage III applies on any day following
a day when the J-17 level is at or below 636 ft. m.s.l. and above 632 ft.
m.s.l.
(4)
Stage IV. Stage IV applies on any day following a
day when the J-17 level is at or below 632 ft. m.s.l. and above 628 ft. m.s.l.
(5)
Stage V. Stage V applies on any day following a day
when the J-17 level is at or below 628 ft. m.s.l.
§709.7.Critical Period Stages-Medina Area.
These critical period stages listed in paragraphs (1)-(3) of this section
apply within the boundaries of the Authority that are in the counties of Medina
and Atascosa, when the Medina well level reaches the following levels.
(1)
Stage I. Stage I applies on any day following a day when
the Medina well level is at or below 670 ft. m.s.l. and above 660 ft. m.s.l.
(2)
Stage II. Stage II applies on any day following a
day when the Medina well level is at or below 660 ft. m.s.l. and above 655
ft. m.s.l.
(3)
Stage III. Stage III applies on any day following
a day when the Medina well level is at or below 655 ft. m.s.l.
§709.9.Critical Period Stages-Uvalde Area.
These critical period stages listed in paragraphs (1)-(2) of this section
apply within the boundaries of the Authority that are in the County of Uvalde,
when the J-27 level reaches the following levels.
(1)
Stage I. Stage I applies on any day following a day when
the J-27 level is at or below 845 ft. m.s.l. and above 840 ft. m.s.l.
(2)
Stage II. Stage II applies on any day following a
day when the J-27 level is at or below 840 ft. m.s.l.
§709.11.Beginning and End of Critical Period Stages.
(a)
The general manager will post by 10:00 a.m. every business
day the most recently available index well levels, the ten-day rolling average
of those levels, and the applicable critical period stage as established
by §§709.5, 709.7, and 709.9 of this title (relating to Critical
Period Stages-East Area; Critical Period Stages-Medina Area; Critical Period
Stages-Uvalde Area).
(b)
If a well index is not available on a particular day,
the stage in effect in the applicable area will continue to the next day.
(c)
A critical period stage will remain in effect for at least
ten days unless a more restrictive stage is implemented and will not be rescinded
until the ten-day rolling average of the applicable well index triggers a
less restrictive stage. (For example, if Stage III is in effect in the East
area of the Authority, Stage II cannot be triggered in that area until the
ten-day rolling average of the J-17 level rises above 636 ft. m.s.l.).
(d)
The reduction multipliers for each stage are as follows:
Stage I: 1.7; Stage II: 1.6; Stage III: 1.4; and Stage IV: 1.3, or 1.4, Stage
V: to be determined by the board.
(1)
In the event the Authority implements an WSP, the maximum
allowable withdrawals in Stage IV for WSP participants shall be 1.4 times
base withdrawals. The maximum allowable withdrawals for applicants who are
retail public utilities with residential water use at or below 125 gallons
per person per day who do not participate in an WSP shall be 1.3 times base
withdrawals.
(2)
In the event the Authority does not implement an
WSP, the maximum allowable withdrawals for applicants who are retail public
utilities shall be 1.4 times base withdrawals for retail public utilities
with residential water use at or below 125 gallons per person per day, and
1.3 times base withdrawals for all others.
(e)
Transfer Multiplier - The transfer multiplier for each
stage is as follows: Stage I: none; Stage II: .95, Stage III: .90, Stage
VI: .85, Stage V: to be determined by the Authority. The total amount of
water that can be withdrawn monthly is the product of the transfer multiplier
times the estimated monthly withdrawals indicated on the transfer schedule.
(f)
The well levels which trigger stages as described in this
section and the applicable reduction multipliers are stated in the following
table, which is incorporated herein. Stages are triggered independently in
each of the three areas and will be in effect from March 1 to October 31.
From November 1 to February 28 applicant will operate at base withdrawals.
Figure: 31 TAC §709.11 (f).
§709.13.Enforcement.
(a)
All enforcement measures in this section are for a one
month period.
(b)
Subject to §709.3 of this title (relating to Nondiscretionary
Uses), applicants are prohibited from withdrawing more than the applicable
maximum allowable withdrawals during each critical period stage.
(c)
The Authority will base an enforcement action for exceedances
of a applicant's maximum allowable withdrawals on metered sales rather than
the amount of water supplied if it is demonstrated that:
(1)
the exceedance is due to non-preventable water main breaks
that are caused by weather conditions during the critical period;
(2)
the applicant's unaccounted-for water is less than
20% of total water withdrawn;
(3)
the applicant's implements and maintains an aggressive
leak detection program; and
(4)
the applicant exercises reasonable diligence in detecting,
repairing, and preventing breaks.
(d)
An applicant that violates these rules is subject to enforcement
as provided for in the Edwards Aquifer Act.
§709.15.Determination of Base Withdrawals and Maximum Allowable Withdrawals.
(a)
The general manager will initially determine the base
withdrawals and maximum allowable withdrawals, maximum transfer withdrawals
and total withdrawals for each applicant, other than an irrigation user,
based on the base withdrawal report and other data available to the Authority.
The general manager will notify applicants of the determinations in writing.
(b)
The general manager, with the approval of the board, may
calculate base or maximum allowable withdrawal and maximum transfer withdrawals
on different criteria than is otherwise required by these rules in particular
cases, in order to better approximate the minimum amount of groundwater the
applicant needs for nondiscretionary uses or to avoid penalizing the applicant
for development of alternative water supplies.
(c)
Notwithstanding subsection (a) of this section, applicants
have the duty to self-determine their base withdrawals and maximum allowable
withdrawals and maximum transfer withdrawals regardless of whether the general
manager has determined such amounts or notified the applicant of such determinations.
§709.17.Reduction Efforts for Discretionary Uses.
(a)
Applicants shall achieve the maximum allowable withdrawals
level at each critical period stage by conserving groundwater, minimizing
waste, reducing discretionary uses of groundwater to the maximum extent feasible,
and taking any other necessary steps to reduce withdrawals of groundwater
from the aquifer.
(b)
Retail water utilities shall adopt and enforce inverted
rate structures, conservation charges, critical period surcharges, and other
programs to conserve groundwater, minimize waste, comply with specific restrictions,
utilize high-efficiency water systems such as low-flow toilets and shower
heads, and reduce discretionary uses by customers of groundwater from the
aquifer to the maximum extent feasible. By February 1, 1998, all retail water
utilities shall file with the Authority their water service pricing orders
or ordinances adopting rates, charges, and other critical period programs.
(c)
A retail water utility shall adopt and enforce a Critical
Period Management Ordinance (or other appropriate legal instrument) containing
the elements in Appendix A, Critical Period Management Model Ordinance as
shown in this subsection.
Figure: 31 TAC §709.17(c)
(d)
All proposed ordinances (or appropriate legal instruments)
will be submitted to the general manager for review and approval prior to
adoption to ensure compliance with this chapter.
(e)
If a retail water utility believes that it does not have
the authority to pass an ordinance (or appropriate legal instrument), then
it shall provide an opinion of counsel supporting this proposition for the
review and consideration by the general counsel of the Authority. If the
general counsel of the Authority concludes that the applicant has the requisite
legal authority to pass ordinances (or other appropriate legal instruments),
then the applicant shall proceed to adopt and enforce the ordinance in accordance
with subsection (c) of this section.
(f)
During all time in which an ordinance is not in effect,
the provisions of this chapter shall apply.
(g)
The Critical Period Management Ordinance shall be approved
or disapproved by the general manager, with 30 days of receipt, unless the
general manager requests additional information from the applicant within
30 days of filing. The ordinance shall be subject to at least an annual review
by the general manager.
§709.19.Stage I Restrictions.
When Stage I is in effect, the following restrictions listed in paragraphs
(1)-(8) of this section apply to all persons throughout the applicable area
of the Authority.
(1)
No person may waste groundwater.
(2)
No person may use groundwater for landscape watering
between the hours of 10:00 a.m. and 8:00 p.m. This paragraph does not apply
to non-potable water.
(3)
No person may use groundwater to wash an impervious
outdoor ground covering such as a parking lot, driveway, street, or sidewalk
unless for health or safety reasons.
(4)
No person may allow irrigation tailwater to escape
from that person's land.
(5)
Restaurants and other eating establishments are prohibited
from serving groundwater to customers except upon request of the customer.
(6)
Every person who owns or has possession of a swimming
pool must cover the pool with an effective evaporation cover or screen, or
evaporation shields covering at least 25% of the surface of the pool, when
the pool is not in active use. Active use includes necessary maintenance that
requires removal of the cover, screen, or shields. Active use of public, commercial
and apartment pools is whenever the pool is not officially closed.
(7)
No person may wash an automobile at a residence except
on a watering day during water times as designated by these rules or by a
retail public utility pursuant to these rules, and in no event may a person
allow groundwater from automobile washing at a residence escape into the street
or otherwise off the person's property.
(8)
Charity car washes are prohibited except at a commercial
car wash that recycles at least 75% of the groundwater it uses or that is
certified as a conservation car wash by a retail public utility.
§709.21.Stage II Restrictions.
When Stage II is in effect, the following restrictions listed in paragraphs
(1)-(5) of this section apply to all persons throughout the applicable area
of the Authority.
(1)
All of the prohibitions applicable in Stage I.
(2)
No person may use groundwater for landscape watering
on more than two watering days in any calendar week, except that
landscape watering is permitted on any day before 10:00 a.m. and after 8:00
p.m. by means of a bucket (not to exceed 5 gallons in capacity), hand-held
or soaker hose, or properly-installed drip irrigation system. This paragraph
does not apply to non-potable water.
(3)
Retail public utility must designate specific watering
days on which persons within their jurisdictions are allowed to use groundwater
for landscape watering, in accordance with this section. Retail public utilities
are encouraged to stagger such days so as to reduce peaks of demand.
(4)
For all persons whose property is not served by a
retail public utility, the watering days are Saturday and Wednesday.
(5)
No person may use groundwater for an ornamental outdoor
fountain or similar feature, unless the water is recycled and the only additional
groundwater used for the feature is to compensate for evaporative losses.
§709.23.Stage III Restrictions.
When Stage III is in effect, the following restrictions listed in paragraphs
(1)-(5) of this section apply to all persons throughout the applicable area
of the Authority.
(1)
All of the prohibitions applicable in Stage I apply in
Stage III.
(2)
No person may use groundwater for landscape watering
on more than one watering day in any calendar week, except that landscape
watering is permitted to maintain shrubs, trees, and other ornamental plants,
but not grass or turf, on any day before 10:00 a.m. and after 8:00 p.m. by
means of a bucket (not to exceed 5 gallons in capacity), hand-held or soaker
hose, or properly-installed drip irrigation system. This paragraph does not
apply to non-potable water.
(3)
Retail public utility must designate a specific day
or days of the calendar week on which persons within their jurisdictions are
allowed to use groundwater for landscape watering, in accordance with this
section. Retail public utility are encouraged to stagger such days so as to
reduce peaks of demand.
(4)
For all persons whose property is not served by a
retail public utility, the watering day is Saturday.
(5)
No person may use groundwater for an ornamental outdoor
fountain or similar feature.
§709.25.Stage IV Restrictions.
When Stage IV is in effect, the following restrictions listed in paragraphs
(1)-(5) of this section apply to all persons throughout the applicable area
of the Authority.
(1)
All of the prohibitions applicable in Stage I and §709.23(5)
of this title (relating to Stage III Restrictions) apply.
(2)
No person may use groundwater for landscape watering
on more than one watering day in any calendar week. For purposes of this paragraph,
"watering day" is limited to the morning hours of 3:00 a.m. to 7:00 a.m.,
and the evening hours of 8:00 p.m. to 11:00 p.m. However, landscape watering
by means of a bucket (not to exceed 5 gallons in capacity), hand-held or soaker
hose, or properly-installed drip irrigation system is permitted to maintain
trees, shrubs, and other ornamental plants, but not grass or turf, on any
day of the week during the morning hours of 7:00 a.m. to 11:00 a.m. Persons
utilizing irrigation systems requiring more than 7 hours to complete one weekly
watering cycle may request a variance in accordance with §709.37 of this
title (relating to Variance Applications). Such a request must be accompanied
by a conservation and reuse plan for the irrigation system. This paragraph
does not apply to non-potable water.
(3)
Retail public utilities must designate a specific
day or days of the calendar week on which persons within their jurisdictions
are allowed to use groundwater for landscape watering, in accordance with
this section. Retail public utilities are encouraged to stagger such days
so as to reduce peaks of demand.
(4)
For all persons whose property is not served by a
retail public utility, the watering day is Saturday.
(5)
Filling of all new and existing swimming pools is
prohibited, unless at least 30% of the water is obtained from a source other
than the aquifer. Groundwater may be used to replenish swimming pools to maintenance
level. Drainage of swimming pools is permitted only onto a pervious surface,
or onto a pool deck where the water is transmitted directly to a pervious
surface, only if necessary to:
(A)
remove excess water from the pool due to rain in order
to lower the water to the maintenance level;
(B)
repair, maintain, or replace a pool component which has
become hazardous; or
(C)
repair a pool leak.
§709.27.Stage V Restrictions.
When Stage V takes effect, an emergency condition exists, and the board
shall, within 48 hours of reaching Stage V levels, convene an emergency session
to consider and adopt, as may be appropriate, emergency rules restricting
nondiscretionary and discretionary uses in accordance with the Edwards Aquifer
Act, §1.26(4). No later than June 30, 1998, proposed emergency rules
to take effect during Stage V shall be prepared by the general manager and
presented to the board for its consideration and action. Any other provision
of this chapter notwithstanding, groundwater may be used when and to the extent
it is necessary to prevent danger to public health, safety, or welfare, or
to the extent required by state or federal law.
§709.29.Golf Courses.
(a)
Water Use Reduction Plan Requirements. An owner or operator
a golf course shall file a water use reduction plan with the general manager
within 30 days of the effective date of these rules and, at a minimum, comply
with the following as shown in paragraphs (1)-(2) of this subsection:
(1)
contain a plan with projected implementation dates to
convert to an alternate water supply to reduce and eliminate consumption of
groundwater to the maximum extent feasible. This conversion may incorporate
the use of reclaimed, reused, or recycled water, and/or the golf course must
participate in an WSP; and
(2)
provide methods of achieving enhanced conservation
by utilizing a computer controlled irrigation system ("CCIS"), comprised of
a computer controller (digital operating system), software, interface modules,
satellite, field controller, soil sensors, weather station, or similar devices,
which is capable of achieving maximum efficiency and conservation in the application
of water to the golf course. A CCIS, at a minimum, should be designed to prevent
over-watering, flooding, pooling, evaporation and run-off; and prohibit sprinkler
heads from applying water at an intake rate exceeding the soil holding capacity.
The plan must require the user to accomplish the following reductions listed
in subparagraphs (A)-(D) of this paragraph:
(A)
Stage I - 10% reduction in the replacement of daily evapotranspiration
rate ("ET rate") or daily soil holding capacity;
(B)
Stage II - 20% reduction in the replacement of daily ET
rate or daily soil holding capacity;
(C)
Stage III - 30% reduction in the replacement of daily
ET rate or daily soil holding capacity; provided that if the user has executed
a letter of intent for reclaimed, reused, or recycled water, or is an WSP
participant, the required reduction shall be 20%;
(D)
Stage IV - 30% reduction in the replacement of daily ET
rate or daily soil holding capacity; provided that if the user has executed
a letter of intent for reclaimed, reused, or recycled water, or is an WSP
participant, the required reduction shall be 20%.
(b)
Until a non-conforming golf course becomes a conforming
golf course it shall comply with the following reduction measures listed in
paragraphs (1)-(4) of this subsection:
(1)
Stage I - 10% reduction in the replacement of daily ET
rate as monitored by a properly operating CCIS or use of not more than 1.7
times the base withdrawal for golf courses that are not equipped with a CCIS;
(2)
Stage II - 20% reduction in the replacement of daily
ET rate as monitored by a properly operating CCIS or use of not more than
1.6 times the base withdrawals for golf courses that are not equipped with
a CCIS;
(3)
Stage III - 30% reduction in the replacement of daily
ET rate as monitored by a properly operating CCIS or use of not more than
1.4 times the base withdrawals for golf courses that are not equipped with
a CCIS; and
(4)
Stage IV - 40% reduction in the replacement of daily
ET rate as monitored by a properly operating CCIS or use of not more than
1.3 times the base withdrawals for golf courses that are not equipped with
a CCIS.
(c)
The general manager shall either approve or disapprove
the water use reduction plan or request additional information within 30 days
of the date of filing. The owner or operation of a golf course may apply groundwater
from the aquifer to the course if the general manager approves the plan.
(d)
The general manager shall approve the water use reduction
plan if the general manager is satisfied that the plan meets the following
criteria listed in paragraphs (1)-(4) of this subsection:
(1)
it contains all necessary information and documentation;
(2)
the plan provides for a critical period watering
regimen that uses only the amount of groundwater necessary to maintain the
viability of the course and maintain the course in a safe condition;
(3)
the plan provides that groundwater will only be applied
to areas that are essential to the use of the course in accordance with the
applicable maximum allowable withdrawals and specific restrictions imposed
by this chapter; and
(4)
if non-potable water is available, or may be available
to the course within five years, the owner or operator is committed to making
use of such non-potable water for watering of the golf course as soon as practicable.
(e)
The general manager may require the revision of a water
use reduction plan or require the owner or operator to provide additional
or updated information, and may disapprove a plan previously approved if it
appears that the plan no longer meets the criteria set forth in subsection
(d) of this section.
(f)
The owner or operator of a golf course must comply with
all Stage V rules issued by the board under §709.27 of this title (relating
to Stage V Restrictions).
§709.31.Athletic Fields.
(a)
Conservation and reuse plan. An owner or operator of an
athletic field shall file a conservation and reuse plan with the general manager
within 30 days of the effective date of these rules.
(b)
A conservation and reuse plan for athletic fields must
contain the following information listed in paragraphs (1)-(13) of this subsection:
(1)
the name, title, address, and telephone number of the
owner or operator of the athletic field;
(2)
the name, title, address, and telephone number of
the person(s) responsible for the watering of the field;
(3)
whether the field is public or private, and the populations
served by the field;
(4)
the location, dimensions, type of athletic field,
and type of turf;
(5)
a description of the water-delivery system used and
how and when it is used;
(6)
a description of management practices relating to
watering the field that are employed to control the amount of water applied
to the field;
(7)
a description of any turf areas that are not essential
to the functioning of the field that are or could be watered in accordance
with the specific restrictions on landscape watering contained in this chapter;
(8)
a statement of what the owner or operator believes
is a minimum amount of water and a minimum watering regimen during critical
periods that applies only the amount of water necessary to maintain the viability
of the turf without creating a safety hazard to users of the field;
(9)
a statement of any actions or plans to obtain alternative
water supplies such as reclaimed, reuse, or recycled water, and a copy of
any letter of commitment from a retail public utility regarding supplying
such water to the field;
(10)
a statement that the conservation and reuse plan
is also in compliance with any local conservation plans;
(11)
contain a plan with projected implementation dates
to convert to an alternate water supply to reduce and eliminate consumption
of groundwater to the maximum extent feasible. This conversion may incorporate
the use of reclaimed, reused, or recycled water, and/or the athletic field
must participate in an WSP;
(12)
provide, where cost effective, methods of achieving
enhanced conservation by utilizing a computer controlled irrigation system
("CCIS"), comprised of a computer controller (digital operating system), software,
interface modules, satellite, field controller, soil sensors, weather station,
or similar devices, which is capable of achieving maximum efficiency and conservation
in the application of water to the athletic field. A CCIS, at a minimum, should
be designed to prevent over-watering, flooding, pooling, evaporation and run-off;
and prohibit sprinkler heads from applying water at an intake rate exceeding
the soil holding capacity. The plan shall provide an analysis of the cost
effectiveness of utilizing a CCIS. The plan must require the user to accomplish
the following reductions listed in subparagraphs (A)-(D) of this paragraph:
(A)
Stage I - 10% reduction in the replacement of daily evapotranspiration
rate ("ET rate") or daily soil holding capacity;
(B)
Stage II - 20% reduction in the replacement of daily ET
rate or daily soil holding capacity;
(C)
Stage III - 30% reduction in the replacement of daily
ET rate or daily soil holding capacity; provided that if the user has executed
a letter of intent for reclaimed, reused, or recycled water, or is an WSP
participant, the required reduction shall be 20%;
(D)
Stage IV - 30% reduction in the replacement of daily ET
rate or daily soil holding capacity; provided that if the user has executed
a letter of intent for reclaimed, reused, or recycled water, or is an WSP
participant, the required reduction shall be 20%; and
(13)
any other information required by the general
manager.
(c)
The general manager shall either approve or disapprove
the conservation and reuse plan or request additional information within 30
days of the date of filing. The owner or operation of an athletic field may
apply groundwater from the aquifer to the field if the general manager approves
the plan.
(d)
The general manager shall approve the conservation and
reuse plan if the general manager is satisfied that the plan meets the following
criteria listed in paragraphs (1)-(4) of this subsection:
(1)
it contains all necessary information and documentation;
(2)
the plan provides for a critical period watering
regimen that uses only the amount of groundwater necessary to maintain the
viability of the turf and maintain the turf in a safe condition;
(3)
the plan provides that groundwater will not be applied
to areas that are not essential to the use of the field in accordance with
the applicable maximum allowable withdrawals and specific restrictions imposed
by this chapter; and
(4)
if non-potable water is available, or may be available
to the field within five years, the owner or operator is committed to making
use of such non-potable water for watering of athletic fields as soon as practicable.
(e)
The general manager may require the revision of a conservation
and reuse plan or require the owner or operator to provide additional or updated
information, and may disapprove a plan previously approved if it appears that
the plan no longer meets the criteria set forth in subsection (d) of this
section.
(f)
The owner or operator of an athletic field must comply
with all Stage V rules issued by the board under §709.27 of this title
(relating to Stage V Restrictions).
(g)
Until a non-conforming athletic field becomes a conforming
athletic field, it shall comply with the following reduction measures listed
in paragraphs (1)-(4) of this subsection:
(1)
Stage I - 10% reduction in the replacement of daily ET
rate as monitored by a properly operating CCIS, if determined to be cost effective,
or use of not more than 1.7 times the base withdrawal for athletic fields
that are not equipped with a CCIS;
(2)
Stage II - 20% reduction in the replacement of daily
ET rate as monitored by a properly operating CCIS, if determined to be cost
effective, or use of not more than 1.6 times the base withdrawals for athletic
fields that are not equipped with a CCIS;
(3)
Stage III - 30% reduction in the replacement of daily
ET rate as monitored by a properly operating CCIS, if determined to be cost
effective, or use of not more than 1.4 times the base withdrawals for athletic
fields that are not equipped with a CCIS; and
(4)
Stage IV - 40% reduction in the replacement of daily
ET rate as monitored by a properly operating CCIS, if determined to be cost
effective, or use of not more than 1.3 times the base withdrawals for athletic
fields that are not equipped with a CCIS.
§709.33.Base Withdrawal Reports.
(a)
Every applicant other than an irrigation user, must file
a base withdrawal report with the Authority which contains the following information
listed in paragraphs (1)-(9) of this subsection:
(1)
the person's name, address, and telephone number;
(2)
contact person and title;
(3)
the location and name or number of all wells from
which groundwater is withdrawn (attach map);
(4)
the monthly amount of groundwater withdrawn during
the months of November and December of 1995 and January and February of 1996,
or for conjunctive users, the monthly amount of groundwater withdrawn during
the months of November and December and the following January and February
during each of the three consecutive 12-month periods preceding the commencement
of the applicant's use of the non-aquifer groundwater which qualifies the
applicant as a conjunctive user;
(5)
the total amount of groundwater withdrawn each month
during the 12 months prior to the date of the report, and the total amount
of groundwater withdrawn for such months;
(6)
the estimated amount of groundwater actually beneficially
applied without waste to nondiscretionary uses, and the nature of such uses;
(7)
a summary of the applicant's past efforts to conserve
water and reduce the amount of water required, and the efficacy of such efforts;
(8)
a summary of any actions the applicant intends to
take to conserve water and reduce the amount of water required in order to
comply with these rules; and
(9)
any other information requested by the general manager.
(b)
A applicant must file its base withdrawal report with
the Authority within 30 days after the effective date of these rules.
(c)
A person who, based on a transfer, becomes a applicant
after the effective date of these rules must file a base withdrawal report
within seven days of the first day the person becomes a applicant.
(d)
A applicant who, without good cause, fails to timely file
a completed base withdrawal report, is not entitled to exclude groundwater
water under §709.3 of this title (relating to Nondiscretionary Uses)
from mandatory reductions until a base withdrawal report is filed with the
Authority.
(e)
The base withdrawal report shall be filed and term prescribed
by the Authority.
§709.35.Monthly Withdrawal Reports.
(a)
Each applicant must file monthly withdrawal reports with
the Authority for any month during which a stage is in effect for the particular
area where the applicant is located. These reports must contain the following
information listed in paragraphs (1)-(6) of this subsection to the extent
the information is available:
(1)
the person's name, address, and telephone number;
(2)
contact person and title;
(3)
the reporting month;
(4)
total amount of groundwater withdrawn during the
reporting month;
(5)
the estimated amount of groundwater applied to nondiscretionary
use during the reporting month, and the nature of such use; and
(6)
any other information requested by the general manager.
(b)
Monthly withdrawal reports must be filed with the Authority
no later than the fifth business day of the month following the reporting
month.
(c)
A applicant who fails to timely file a monthly withdrawal
report in accordance with this section is not entitled to exclude groundwater
under §709.3 of this title (relating to Nondiscretionary Uses) from mandatory
reductions for the reporting month.
(d)
The general manager may in special cases arrange for different
reporting requirements under this section, including less frequent reporting.
(e)
The monthly withdrawal report shall be filed on a form
prescribed by the Authority.
§709.37.Variance Applications.
(a)
A person may file with the Authority an application for
a variance from this chapter on a form prescribed by the Authority. The application
must contain the following information listed in paragraphs (1)-(4) of this
subsection:
(1)
the specific nature of the variance requested;
(2)
a detailed explanation of why the person believes
it should be granted the variance, including any supporting documentation;
(3)
a statement that the facts contained in the request
are true and within the person's personal knowledge; and
(4)
any other information requested by the general manager.
(b)
Variance applications shall be processed in accordance
with Chapter 707, Subchapter L of this title (relating to Applications Processing).
§709.39.Granting of Variances.
A variance may be granted by the board if it finds that:
(1)
the variance is necessary to avoid an unusual, direct,
and substantial hardship;
(2)
there are no other reasonably available means for
avoiding the hardship or elimination without a variance;
(3)
granting the variance is consistent with the goals
of the Edwards Aquifer Act and these rules; and
(4)
granting the variance will not cause significant
harm to any other person or group of persons.
§709.41.Variance Conditions.
(a)
The board may grant a variance for a term and with any
conditions the board deems appropriate.
(b)
The board may require a person granted a variance to file
reports with the Authority containing such information as is relevant to monitoring
the continuing appropriateness of the variance and compliance with the terms
and conditions of the variance.
§709.43.Rescission of Variance.
The board may rescind a variance at any time due to changed circumstances,
new information, or failure of the holder of the variance to abide by the
terms and conditions of the variance, the Edwards Aquifer Act, the rules of
the Authority, or any order of the board.
§709.45.Review of General Manager's Actions.
The general manager's actions under this chapter are subject to review
according to §707.290 and §707.293 of this title (relating to Motion
for Reconsideration of Actions Taken by the General Manager and Review of
General Manager's Actions, respectively).
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Issued in Austin, Texas, on December 22, 1997.
TRD-9717091
Gregory M. Ellis
General Manager
Edwards Aquifer Authority
Earliest possible date of adoption: February 2, 1998
For further information, please call: (210) 222-2204
The Edwards Aquifer Authority (EAA) proposes the repeal of §§721.1-721.8,
721.11, 721.12, 721.21-721.24, 721.31-721.33, 721.41-721.48, 721.51,
721.52, 721.61-721.65, 721.71, and 721.72, concerning the interim critical
period management rules.
Senate Bill 1477, §1.25 requires that the EAA implement a critical
period management plan. The original plan was adopted on February 18, 1997
on an interim basis.
The repeal of Chapter 721 and the adoption of Chapter 709 is part of the
Authority's rules reorganization initiative.
Gregory M. Ellis, General Manager, Edwards Aquifer Authority, has determined
that for the period the repeals will be in effect there will be no additional
costs for the State or local governments related to the administration of
these rules. Mr. Ellis has determined there will be no estimated reductions
in costs for the State or local governments related to the administration
of these rules. Mr. Ellis has determined there will be no loss or increase
in revenues to the State or local governments related to the enforcement of
these rules. Mr. Ellis has determined there could be a loss in revenue to
local governments related to the enforcement of these rules. Municipal suppliers
are subject to critical period management fees, and possibly other governmental
users of water may be subject to administrative penalties ($100 to $1,000
per day per violation) and civil penalties ($100 to $10,000 per day per violation).
It is not possible to estimate what fees or penalties may be levied against
local governments at this time.
Mr. Ellis also has determined that for the period the repeals will be in
effect the public benefit anticipated as a result of enforcing the rules will
be the Authority's reorganization initiative of existing Chapter 721 under
new Chapter 709.
Comments on the proposal may be submitted to Gregory M. Ellis, General
Manager, Edwards Aquifer Authority, P. O. Box 16830, 1615 North St. Mary's
Street, San Antonio, Texas 78212-9030.
Subchapter A. General Provisions
31 TAC §§721.1-721.8
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Edwards Aquifer Authority or in the Texas Register office, Room 245,
James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under Senate Bill 1477,
§1.11(a), which requires the board of directors of the EAA to adopt
rules necessary to carry out the EAA's powers and duties, including interim
critical period management rules.
The following section of Senate Bill 1477 is affected by the proposed repeals:
§1.26.
§721.1.Purposes.
§721.2.Authority.
§721.3.Findings.
§721.4.Effect on Demand Management Rules.
§721.5.Definitions and Abbreviations.
§721.6.Filing.
§721.7.Change of Address.
§721.8.Severability.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Issued in Austin, Texas, on December 22, 1997.
TRD-9717083
Gregory M. Ellis
General Manager
Edwards Aquifer Authority
Earliest possible date of adoption: February 2, 1998
For further information, please call: (210) 222-2204
31 TAC §721.11, §721.12
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Edwards Aquifer Authority or in the Texas Register office, Room 245,
James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under Senate Bill 1477,
§1.11(a), which requires the board of directors of the EAA to adopt rules
necessary to carry out the EAA's powers and duties, including interim critical
period management rules.
The following section of Senate Bill 1477 is affected by the proposed repeals:
§1.26.
§721.11.Primary Users.
§721.12.Exempt Wells and Essential Uses.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Issued in Austin, Texas, on December 22, 1997.
TRD-9717084
Gregory M. Ellis
General Manager
Edwards Aquifer Authority
Earliest possible date of adoption: February 2, 1998
For further information, please call: (210) 222-2204
31 TAC §§721.21-721.24
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Edwards Aquifer Authority or in the Texas Register office, Room 245,
James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under Senate Bill 1477,
§1.11(a), which requires the board of directors of the EAA to adopt
rules necessary to carry out the EAA's powers and duties, including interim
critical period management rules.
The following section of Senate Bill 1477 is affected by the proposed repeals:
§1.26.
§721.21.Critical Period Stages--East Area.
§721.22.Critical Period Stages--Medina Area.
§721.23.Critical Period Stages--Uvalde Area.
§721.24.Beginning and End of Critical Period Stages.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Issued in Austin, Texas, on December 22, 1997.
TRD-9717085
Gregory M. Ellis
General Manager
Edwards Aquifer Authority
Earliest possible date of adoption: February 2, 1998
For further information, please call: (210) 222-2204
31 TAC §§721.31-721.33
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Edwards Aquifer Authority or in the Texas Register office, Room 245,
James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under Senate Bill 1477,
§1.11(a), which requires the board of directors of the EAA to adopt
rules necessary to carry out the EAA's powers and duties, including interim
critical period management rules.
The following section of Senate Bill 1477 is affected by the proposed repeals:
§1.26.
§721.31.Maximum Allowable Usage.
§721.32.Enforcement.
§721.33.Determination of Base and Maximum Allowable Usage.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Issued in Austin, Texas, on December 22, 1997.
TRD-9717086
Gregory M. Ellis
General Manager
Edwards Aquifer Authority
Earliest possible date of adoption: February 2, 1998
For further information, please call: (210) 222-2204
31 TAC §§721.41-721.48
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Edwards Aquifer Authority or in the Texas Register office, Room 245,
James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under Senate Bill 1477,
§1.11(a), which requires the board of directors of the EAA to adopt
rules necessary to carry out the EAA's powers and duties, including interim
critical period management rules.
The following section of Senate Bill 1477 is affected by the proposed repeals:
§1.26.
§721.41.Reduction Efforts.
§721.42.Stage I Restrictions.
§721.43.Stage II Restrictions.
§721.44.Stage III Restrictions.
§721.45.Stage IV Restrictions.
§721.46.Use Necessary for Public Health or Safety.
§721.47.Golf Courses.
§721.48.Athletic Fields.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Issued in Austin, Texas, on December 22, 1997.
TRD-9717087
Gregory M. Ellis
General Manager
Edwards Aquifer Authority
Earliest possible date of adoption: February 2, 1998
For further information, please call: (210) 222-2204
31 TAC §721.51, §721.52
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Edwards Aquifer Authority or in the Texas Register office, Room 245,
James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under Senate Bill 1477,
§1.11(a), which requires the board of directors of the EAA to adopt
rules necessary to carry out the EAA's powers and duties, including interim
critical period management rules.
The following section of Senate Bill 1477 is affected by the proposed repeals:
§1.26.
§721.51.Base Usage Reports.
§721.52.Monthly Usage Reports.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Issued in Austin, Texas, on December 22, 1997.
TRD-9717088
Gregory M. Ellis
General Manager
Edwards Aquifer Authority
Earliest possible date of adoption: February 2, 1998
For further information, please call: (210) 222-2204
c
] IMO Vessels.
[D]
Changes in IMO Vessel Form. Any
change in any information required pursuant to this section shall be submitted
to the GLO as soon as possible when the vessel is entering Texas waters. Vessels
not entering Texas waters shall report such changes to the GLO within 30 days
of the change.
[E]
DCO List. The GLO shall provide,
upon request, a list of DCOs certified in Texas.
b
]OSPRA Vessels. OSPRA vessels
are those vessels with a capacity to carry 10,000 gallons or more of oil as
fuel or cargo that operate in coastal waters and are not required to have
a response plan pursuant to 33 U.S.C. § 2701 et seq. or Regulation 26
of Annex 1 of MARPOL 73/78. [
OSPRA vessels are those vessels capable
of carrying oil as fuel or cargo in excess of 10,000 United States gallons.
OSPRA vessels will be required to meet the vessel response plan requirements
of the Texas Natural Resources Code, §40.114, when rules are adopted
thereunder
]
Edwards Aquifer Authority
Chapter 721.
Interim Critical Period Management Rules
Subchapter B. Applicability of Rules
Subchapter C. Critical Period Stages
Subchapter D. Maximum Allowable Usage and Enforcement
Subchapter E. Restrictions on Specific Uses
Subchapter F. Reports
Subchapter G. Variances