Part XVI.
Coastal Coordination Council
Chapter 504.
Coastal Management Program
The Coastal Coordination Council (Council) proposes amendments to
§504.1, relating to the Permitting Assistance Group, §504.10, relating
to the scope of the Permitting Assistance Program, §504.11, relating
to the Permitting Assistance Coordinator's functions, §504.13, relating
to Assistance Products and Services, and §504.20, relating to Initiating
the Preliminary Review Process. These amendments, which concern the Texas
Coastal Management Program (CMP) Permitting Assistance Program, have three
purposes. First, the amendments include certain technical revisions and "cleanup,"
including updating the rules to reflect that the permitting assistance coordinator
(coordinator) is no longer an employee of the Texas Department of Economic
Development and removing superfluous language in Appendix A of §504.10
of this rule. Specifically, §504.1(c) is added to reflect the status
quo, which is that the chair of the Council appoints the coordinator with
the advice of the four public members of the Council.
Second, based on experience gained from implementation of the CMP, the
amendments refine and clarify the role of the coordinator with respect to
individual permit applications pending before an agency. The Council is amending
§504.11 and simultaneously proposing the repeal of §504.12 in order
to establish that the coordinator's role is to assist the applicant and monitor
the status of permit applications as well as identify differences between
agencies over rules, interpretations or policies that create the potential
for delay in agency permitting decisions. Under §504.12, a disagreement
between agencies is a prerequisite to the coordinator's ability to provide
certain types of assistance. Consequently, some applicants have inferred from
§504.12 that the coordinator has the authority to resolve the conflict.
The rules, however, do not give the coordinator such authority. Moreover,
the statutory authority for this program does not predicate assistance to
applicants upon the existence of interagency conflicts. Accordingly, these
amendments delete the prerequisite of an interagency conflict and focus the
coordinator's efforts on assisting applicants in producing all the information
necessary for the permitting agency to decide on the permit application.
Third, the amendments clarify the roles of the coordinator and the Permitting
Assistance Group (PAG) in resolving general differences among agencies and
otherwise improving permitting processes. Section 504.11(2) is amended to
establish that the coordinator is responsible for bringing recurring or general
permitting issues, as opposed to issues with individual applications, to the
attention of the PAG for discussion and resolution and for reporting the outcome
to both the Council's executive committee and the Council.
Ms. Sally Davenport, associate deputy commissioner for resource management,
has determined that for the first five-year period the rules are in effect
there will be no fiscal implications for state government and positive fiscal
implications for local governments as a result of administering the amendments.
The rules will require no additional staff or resources to implement. The
rules will make the CMP Permitting Assistance Program more effective and coastal
local governments, who are eligible to receive permitting assistance, as well
as small businesses and individuals, will have to expend fewer resources in
the course of preparing permit applications and steering those applications
through the permitting process.
Ms. Davenport also has determined that for the first five-year period the
rules are in effect the public benefit expected is more efficiency in the
permitting processes and applicants will expend fewer resources preparing
permit applications. There will be no economic costs to small businesses.
Small businesses in the Texas coastal zone are eligible to receive permitting
assistance under the CMP Permitting Assistance Program. Therefore, they will
expend fewer resources in the course of preparing permit applications.
Comments on the proposed amendments may be submitted to Ms. Carol Milner,
Texas General Land Office, Texas Register Liaison, 1700 N. Congress Ave.,
Room 626, Austin, Texas, 78701-1495. Fax: (512) 463-6311. In order to be considered,
comments must be received by 5 p.m., March 29, 1999.
Subchapter A. Permitting Assistance
31 TAC §504.1
The proposed amendments are pursuant to the rule-making authority
in Texas Natural Resource Code §33.205(f) and (g).
Texas Natural Resource Code §33.205(f) and (g) are affected by the
amendments to this section.
§504.1.Permitting Assistance Group.
(a)
The Permitting Assistance Group (PAG) has three functions.
(1)
The PAG provides permitting assistance to
individuals
and
small businesses. The purpose of the
Permitting Assistance
Program
[
(2)
The PAG conducts preliminary reviews
of proposed
permits submitted by individuals and small businesses.
The primary purpose
of preliminary reviews is to create greater predictability in permitting processes
in the following ways.
(A)-(B)
(No change.)
(C)
The preliminary review process
does not supplant the regular permitting process. Because its purpose is to
foster predictability and not reach a final result, preliminary reviews may
produce statements that must be qualified because the information provided
by the applicant is incomplete, the review time is shorter, or public comment
has been minimal.
(3)
The PAG provides individuals and small businesses
applying for federal licenses or permits assistance in complying with CMP
consistency requirements pursuant to 15 CFR §930.56.
[
[
Under 15 CFR §930.56,
the Council must provide applicants for federal licenses or permits assistance
regarding the CMP consistency requirements applicable to the licenses or permits.
The PAG will provide applicants for federal licenses or permits with that
assistance. ]
(b)
Each council member representing an agency shall appoint
a representative to the PAG. Each agency's PAG representative is responsible
for providing the information that
his or her
[
(c)
The land commissioner, with
the advice of the public members of the Council, shall appoint a Permitting
Assistance Coordinator.
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.
Filed with the Office of the Secretary of State on February
16, 1999.
TRD-9900965
David Dewhurst
Chairman
Coastal Coordination Council
Earliest possible date of adoption: March 28, 1999
For further information, please call: (512) 305-9129
31 TAC §§504.10, 504.11, 504.13
The proposed amendments are pursuant to the rule-making authority
in Texas Natural Resource Code §33.205(f) and (g).
Texas Natural Resource Code §33.205(f) and (g) are affected by the
amendments to this section.
§504.10.Scope of the [
(a)
The
Permitting Assistance Program
[
(b)
Assistance will be provided to
individuals and
small businesses for proposed activities in the coastal zone requiring either
one or more agency or subdivision actions subject to the Coastal Management
Program (CMP) or equivalent federal actions. These actions are listed in
subsection (c) of this section
[
[
(c)
Appendix A. Individual Agency
or Subdivision Actions and Equivalent Federal Actions
(1)
The land office, the School Land Board, or a
board for lease of state-owned lands shall comply with Texas Natural Resource
Code §33.205(a) and (b) when issuing or approving:
(A)
a mineral lease plan of operations;
(B)
a geophysical or geochemical permit;
(C)
a coastal easement;
(D)
a miscellaneous easement;
(E)
a coastal lease;
(F)
a surface lease;
(G)
a structure registration;
(H)
a cabin permit;
(I)
a navigation district lease;
(J)
certification of a local government beach access
or dune protection plan; or
(K)
an agency or subdivision wetlands mitigation
bank.
(2)
The Public Utility Commission of Texas
shall comply with Texas Natural Resource Code §33.205(a) and (b) when
issuing a certificate of convenience and necessity.
(3)
The Railroad Commission of Texas shall
comply with Texas Natural Resource Code §33.205(a) and (b) when issuing:
(A)
a wastewater discharge permit;
(B)
a waste disposal or storage pit permit; or
(C)
a certification of a federal permit for the
discharge of dredge or fill material.
(4)
The Texas Transportation Commission
shall comply with Texas Natural Resource Code §33.205(a) and (b) when
approving:
(A)
an acquisition of a site for the placement or
disposal of dredge material from, or the expansion, relocation, or alteration
of, the Gulf Intracoastal Waterway; or
(B)
a transportation construction project or maintenance
program.
(5)
The Texas Historical Commission and
the Antiquities Committee shall comply with Texas Natural Resource Code §33.205(a)
and (b) when issuing:
(A)
a permit for destruction, alteration, or taking
of a coastal historic area; or
(B)
a review of a federal undertaking affecting
a coastal historic area.
(6)
The Texas Natural Resource Conservation
Commission shall comply with Texas Natural Resource Code §33.205(a) and
(b) when issuing or approving:
(A)
a wastewater discharge permit;
(B)
a permit for a new concentrated animal feeding
operation located one mile or less from a critical area or coastal waters;
(C)
a permit for solid or hazardous waste treatment,
storage, or disposal;
(D)
creation of a special purpose district or approval
of bonds for the purpose of construction of infrastructure on coastal barriers;
(E)
levee improvement or flood control projects;
(F)
a certification of a federal permit for the
discharge of dredge or fill material;
(G)
a declaration of an emergency and request for
an emergency release of water;
(H)
a new permit for an annual appropriation of:
(i)
5,000 or more acre-feet of water within the
program boundary; or
(ii)
10,000 or more acre-feet of water outside the
program boundary but within 200 stream miles of the coast;
(I)
an amendment to a water permit for an increase
in an annual appropriation of:
(i)
5,000 or more acre-feet of water within the
program boundary; or
(ii)
10,000 or more acre-feet of water outside the
program boundary but within 200 stream miles of the coast; or
(J)
a change in the purpose of use of an annual
appropriation of water to a more consumptive use of:
(i)
5,000 or more acre-feet of water within the
program boundary; or
(ii)
10,000 or more acre-feet of water outside the
program boundary but within 200 stream miles of the coast.
(7)
The Parks and Wildlife Department
shall comply with Texas Natural Resource Code §33.205(a) and (b) when
issuing or approving:
(A)
an oyster lease;
(B)
a permit for taking, transporting, or possessing
threatened or endangered species;
(C)
a permit for disturbing marl, sand, shell, or
gravel on state-owned land; or
(D)
development by a person other than the Parks
and Wildlife Department that requires the use or taking of any public land
in a state park, wildlife management area, or preserve.
(8)
A subdivision shall comply with Texas
Natural Resource Code §33.205(a) and (b) when issuing a dune protection
permit or beachfront construction certificate that authorizes:
(A)
construction activity that is located 200 feet
or less landward of the line of vegetation and that results in the disturbance
of more than 7,000 square feet of dunes or dune vegetation;
(B)
construction activity that results in the disturbance
of more than 7,500 cubic yards of dunes;
(C)
a coastal shore protection project undertaken
on a gulf beach or 200 feet or less landward of the line of vegetation and
that affects more than 500 linear feet of gulf beach; or
(D)
a closure, relocation, or reduction in existing
public beach access or public beach access designated in an approved local
government beach access plan, other than for a short term.
(9)
An action to renew, amend, or modify
an existing permit, certificate, lease, easement, approval, or other action
is not an action under this section if the action is taken under a rule that
the council has certified under Texas Natural Resource Code §33.2052
and:
(A)
for a wastewater discharge permit, if the action
is not a major permit modification that would:
(i)
increase pollutant loads to coastal waters;
or
(ii)
result in relocation of an outfall to a critical
area;
(B)
for solid, hazardous, or nonhazardous waste
permits, if the action is not a Class III modification under rules of the
Texas Natural Resource Conservation Commission; or
(C)
for any other action, if the action:
(i)
only extends the period of the existing authorization
and does not authorize new or additional work or activity; or
(ii)
is not directly relevant to Texas Natural Resource
Code §§33.205(a) and (b).
(10)
The council shall establish
a program boundary to limit the geographic area in which the requirements
of Texas Natural Resource Code §§33.205(a) and (b) apply. The boundary
is the coastal facility designation line as defined by Appendix 1 to 31 TAC
§19.2 as that appendix existed on the effective date of this section,
as modified by Texas Natural Resource Code §33.203(7). Except as provided
by paragraph (6)(A)-(J) of this subsection, this subchapter does not apply
to an agency action authorizing an activity outside the program boundary.
(11)
The following are the equivalent federal
actions:
(A)
Environmental Protection Agency: National Pollution
Discharge Elimination System (NPDES) permits under 33 United States Code Annotated,
§1342.
(B)
United States Army Corps of Engineers: Dredge
and fill permits under 33 United States Code Annotated, §1344.
§504.11.Permitting Assistance Coordinator.
The permitting assistance coordinator (coordinator) will perform the
following functions:
(1)
Assistance
[
(2)
Reporting [
(3)
Outreach Function: The coordinator shall develop and
implement a plan for maximizing small businesses' and individual's usage of
the [
§504.13.Assistance Products and Services.
Upon the request of an individual or small business applicant,
the permitting assistance coordinator shall provide the following:
(1)
[
(A)
[
(B)
[
(2)
[
(A)
[
(B)
[
(3)
[
(A)
[
(B)
[
(4)
[
(A)
[
(B)
[
(5)
[
(A)
[
(B)
[
(C)
[
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.
Filed with the Office of the Secretary of State on February
16, 1999.
TRD-9900966
David Dewhurst
Chairman
Coastal Coordination Council
Earliest possible date of adoption: March 28, 1999
For further information, please call: (512) 305-9129
Small Business Permitting Assistance Program (SBPAP)
]
is [
both
] to serve as an outlet for basic permit information and
to give
individuals and
small businesses direct access to agency
staff so that they can receive project-specific assistance during the preapplication
phase.
The PAG also serves as a forum in which agencies can discuss and
resolve differences over rules, interpretations, or policies and otherwise
work to improve permitting processes.
The
preliminary review process does not supplant regular permitting processes.
Its purpose is to foster predictability, not reach a final decision. Accordingly,
preliminary reviews may produce statements or findings that must be qualified
because information may be incomplete, review times shorter, or public comment
minimal.
]
(4)
their
]
agency is required to provide under these rules. Council members not representing
agencies may appoint a representative to the PAG.
Subchapter B. [ Small Business ] Permitting Assistance Program Small Business ] Permitting Assistance Program.
SBAP
] is intended to provide assistance to
individuals and
small
businesses. As used in this chapter, the term small business includes cities,
counties, and special districts.
"Appendix A"
].
Figure: 31 TAC §504.10(b)
]
Administrative
] Function:
When an applicant requests assistance, the coordinator shall be responsible
for assisting the applicant and monitoring the status of the application until
the permitting agency has all information necessary to decide to issue, condition,
or deny the permit.
The coordinator shall
, upon the request of
the applicant,
be responsible for
coordinating
[
scheduling
and conducting
] permitting assistance meetings between agencies' staff
and small businesses and individuals to provide follow-up assistance and other
products and services described in §504.13 of this title (relating to
Assistance Products and Services).
and Ombudsman
] Function:
The coordinator is responsible for identifying either differences between
permitting agencies over rules, interpretations, or policies or any practice
that creates the potential for delay in agency permitting decisions. The coordinator
is responsible for reporting such matters to the PAG, placing them on the
agenda of PAG meetings for discussion, and reporting to the Council and Council's
Executive Committee on the disposition of those issues. Prior to each Council
and Executive Committee meeting,
[
Each month,
] the coordinator
shall prepare and send to each council member a report containing data documenting
the volume of permitting assistance requests and the results and effectiveness
of permitting assistance activities. [
The coordinator shall be responsible
for notifying agencies' PAG members when an application either cannot be completed
and filed or may be denied because of a disagreement between agencies on application
or permitting requirements. The agencies' PAG members shall be responsible
for determining whether the disagreement can be resolved within the agencies'
legal authority and reporting the results to the coordinator for inclusion
in the monthly report to council members.
]
Small Business/Individual
] Permitting Assistance Program,
including publicizing the program and increasing its accessibility to business
groups and other organizations in communities in all parts of the coastal
zone. The plan must be approved by the council members representing coastal
citizens, coastal businesses, coastal local governments, and agriculture.
(a)
] A list of permits or other
approvals necessary for the proposed activity.
(1)
] This informs the
individual
and
small business of what agencies or subdivisions must review and
approve the proposed activity.
(2)
] This list
may
[
will
] be provided through the
Texas Department of Economic Development
[
TDOC
] comprehensive permit application procedure.
(b)
] A simple, understandable
statement of all permit or approval requirements.
(1)
] This gives the
individual
and
small business an initial indication of how the proposed activity
must be designed, carried out, or maintained to receive the approvals identified
under subsection (a) of this section.
(2)
] This information will be provided
in the form of generic
Texas Department of Economic Development
[
TDOC
] materials.
(c)
] A coordinated schedule
for each agency's or subdivision's decision on the action.
(1)
] This informs the
individuals
and
small business of when and in what order the permitting agencies
or subdivisions identified under subsection (a) of this section will review
the proposed activity and decide to approve or disapprove the applications
for the proposed activity.
(2)
] This information will be provided
in the form of generic
Texas Department of Economic Development
[
TDOC
] materials.
(d)
] A list of all information
the agencies or subdivisions need to declare the applications for the permits
or other approvals administratively complete.
(1)
] This informs the
individual
and
small business of the information that must be collected and included
in each application before the permitting agencies or subdivisions can begin
the review and approval process.
(2)
] This is a project-specific
analysis of what information the applicant will need to supply with the applications.
This analysis will, at a minimum, describe the information needed for the
application to be declared administratively complete. It may also include
additional information that would help expedite evaluation, processing, and
action on the permit or other approval.
(e)
] Follow-up assistance:
(1)
] The purpose of follow-up assistance
is to give the
individual and
small business the opportunity to
obtain additional project-specific information from the appropriate permitting
agencies and subdivisions after the small business has received the information
as set forth in subsections (a), (b) (c) and (d) of this section. This gives
the
individual and
small business the opportunity to describe the
small business' needs more specifically and obtain explanations or clarifications
about what information or data to produce and include with applications or
how to complete applications.
(2)
] If the
individual and
small business needs follow-up assistance from more than one agency
or subdivision, the coordinator will arrange a meeting or telephone call with
the representatives of those agencies or subdivisions.
(3)
] Where possible, follow-up
assistance will be provided at locations in the coastal zone.
Subchapter C. Preliminary Consistency Review