Part 1.
TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
Chapter 7.
MEMORANDA OF UNDERSTANDING
30 TAC §7.124
The Texas Natural Resource Conservation Commission (commission
or agency) adopts new §7.124, Natural Resource Trustees Memorandum of
Understanding (MOU). This MOU is between the commission and the state and
federal natural resource trustees. Section 7.124 is adopted with changes to
the proposed text as published in the October 13, 2000 issue of the
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULE
The agency, Texas Parks and Wildlife Department, Texas General Land Office,
National Oceanic and Atmospheric Administration, and the United States Department
of the Interior are all designated to act on behalf of the public as trustees
for natural resources (Trustees) pursuant to several environmental statutes,
including the Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA), 42 United States Code (USC) §§9601 et seq.; the Clean
Water Act (CWA), 33 USC §§1251 et seq.; and the Oil Pollution Act
of 1990 (OPA), 33 USC §§2701 et seq.
In September of 1999, the commission adopted Chapter 350, the Texas Risk
Reduction Program (TRRP) rules. These rules and the preamble to the rules
(24 TexReg 7436) reference certain interactions between the executive director
and the Trustees in regard to an ecological risk assessment (ERA) and an ecological
services analysis (ESA).
Specifically, the preamble to the TRRP rules states that the Trustees plan
to develop an MOU that facilitates the coordination of the Trustees and their
interaction in the ERA and ESA processes. The preamble also states that the
Trustees may choose to participate in the ERA process to ensure that natural
resources under their jurisdiction are adequately protected and that the agency
will notify the Trustees of affected property with chemicals of concern which
remain after a particular stage of development within the Tier 2 screening-level
ERA.
Additionally, §350.33(a)(3)(B) and §350.77(f)(2) require the
executive director to consult with the Trustees prior to approval of a person's
request to conduct an ESA. Furthermore, §350.33(a)(3)(B) requires the
person to conduct any compensatory ecological restoration and other activities
associated with the ESA with the approval of and in cooperation with the Trustees.
Thus, this MOU sets forth the procedures by which the agency and the Trustees
will interact regarding the ERA and the ESA processes under the TRRP rules.
SECTION BY SECTION DISCUSSION
Adopted §7.124(a) sets forth the purpose of the MOU as facilitating
the interactions between the agency and the Trustees in the ERA and the ESA
processes.
Adopted §7.124(b) names the parties to the MOU as the agency, Texas
Parks and Wildlife Department, Texas General Land Office, National Oceanic
and Atmospheric Administration, and the United States Department of the Interior.
Adopted §7.124(c) recites the authority, both state and federal, by
which the parties enter into the MOU.
Adopted §7.124(d) sets forth and defines acronyms used in the MOU.
Adopted §7.124(e) sets forth and defines certain terms used in the
MOU. In response to comments, the following sentence was added to the end
of the definition of Paragraph 7 (§7.124(e)(2)) to provide both clarity
and flexibility if the TRRP rules are amended or replaced: "Any reference
in this MOU to Paragraph 7 shall not only include the current 30 TAC §350.77(c)(7)
but also the point at which the equivalent actions occur under other TNRCC
risk reduction rules in the event that TRRP is amended or replaced and the
specific reference is revised."
Adopted §7.124(f) sets forth the procedure by which each Trustee designates
a primary and secondary contact to facilitate interaction under the MOU.
Adopted §7.124(g) sets forth the procedure by which the agency and
the Trustees will interact during the ERA process. The first step in this
process is the agency's initial notification to the Trustees. The agency then
sends pertinent documents to Trustees which elect to participate on a particular
affected property. Trustees then have an opportunity to comment on the ERA
for that affected property. This section also sets forth the process for the
coordination of the parties on any meetings pertaining to the ERA. In response
to comments, the last sentence of the first paragraph in this subsection was
revised to read as follows: "Furthermore, the Trustees acknowledge that the
potential for continuing injury to ecological resources should be negligible
at sites where the remedial decisions were based on appropriate application
of the proposed ecological risk assessment process." Additionally, in response
to comments, the first sentence in §7.124(g)(1) was revised to read as
follows: "After the TNRCC learns through a person's submittal that the ecological
risk assessment at an affected property has progressed to Paragraph 7 and
prior to approval of the ecological risk assessment by the TNRCC, the TNRCC
Trustee shall provide timely notification to the other Trustees."
Adopted §7.124(h) sets forth the procedure by which the agency and
the Trustees will interact during the ESA process. This section is divided
into two main parts, with a small third part outlining how a Trustee may waive
its role in the ESA process. The first part establishes the interaction process
when the executive director is consulting with the Trustees, as required,
prior to approval of a person's request to conduct an ESA. This process is
very similar to the interaction under the ERA process, with notification,
document exchange, opportunity for comments, and coordination of meetings.
The second part addresses the parties' interaction while the ESA is actually
being conducted, including performance of any compensatory restoration. In
response to comments, the second sentence in §7.124(h)(2)(C) was revised
to read as follows: "The agreement will include issues such as the payment
of Trustees' costs associated with the ecological risk assessment and ecological
services analysis processes, public participation requirements, and a mechanism
for addressing natural resource damages liability, as applicable."
Adopted §7.124(i) explains that certain procedures under subsections
(g) and (h)(1) may be combined to achieve efficiencies.
Adopted §7.124(j) sets forth the procedures by which a Trustee may
exit or re-enter the ERA and ESA processes. In response to comments, the last
sentence of §7.124(j)(1) was revised and another sentence added as follows:
"However, upon a deferred entry or a re-entry to the ecological risk assessment
or ecological services analysis processes, the Trustee involvement in the
TRRP process shall be prospective only and may not challenge previous decisions
regarding the ecological risk assessment and ecological services analysis.
Additionally, a Trustee may not challenge joint decisions made within the
TRRP process on the ecological risk assessment or ecological services analysis
during that Trustee's prior participation in the process."
Adopted §7.124(k) sets forth the requirements for notifying or coordinating
with the agency's project manager prior to certain activities on an affected
property. In response to comments, "site visits" was added as one example
of Trustee activities.
Adopted §7.124(l) states that the natural resource Trustees' 1995
Memorandum of Agreement governs issues, responsibilities, or activities not
specifically addressed in this MOU.
Adopted §7.124(m) explains that the MOU does not compromise or affect
any legal rights of the parties or narrow the scope of any party's authority
or jurisdiction unless it is specifically stated in the MOU. In response to
comments, the following sentence was added: "This MOU does not compromise
or affect any rights of the parties with regard to natural resource damage
actions."
Adopted §7.124(n) explains that the MOU may not be the basis for third
party challenges or appeals and that it does not create any rights or causes
of action in any persons not parties to the MOU.
Adopted §7.124(o) clarifies that the MOU does not obligate the parties
to expend funds beyond those appropriated.
Adopted §7.124(p) allows for the termination and amendment of the
MOU pursuant to appropriate rulemaking.
Adopted §7.124(q) allows the MOU to be signed in counterparts and
identifies the effective date as the date of the last signature.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission has reviewed the adopted rulemaking in light of the regulatory
analysis requirements of the Texas Government Code, §2001.0225, and has
determined that the rulemaking is not subject to §2001.0225 because it
does not meet the definition of a "major environmental rule" as defined in
that statute. The adopted rule would not adversely effect, in a material way,
the economy, a section of the economy, productivity, competition, jobs, the
environment, or the public health and safety of the state or a sector of the
state. The adopted rule will formalize the requirement and procedures for
cooperation between the Trustees and the agency regarding ERA and ESA matters.
The adopted rule does not meet the definition of a "major environmental rule"
as defined in the Texas Government Code. Section 2001.0225 only applies to
a major environmental rule, the result of which is to: (1) exceed a standard
set by federal law, unless the rule is specifically required by state law;
(2) exceed an express requirement of state law, unless the rule is specifically
required by federal law; (3) exceed a requirement of a delegation agreement
or contract between the state and an agency or representative of the federal
government to implement a state and federal program; or (4) adopt a rule solely
under the general powers of the agency instead of under a specific state law.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a takings impact assessment for this adopted
rule pursuant to Texas Government Code, §2007.043. The following is a
summary of that assessment. The specific purpose of this adopted rule is to
set forth the procedures by which the agency and the natural resource Trustees
will interact regarding the ERA and the ESA processes under the TRRP rules.
The adopted rule will substantially advance this specific purpose by setting
forth detailed procedures for such interaction including initial notification,
document exchange, comments, and meetings. The adopted rule will not burden
private real property and the action under the adopted rule does not constitute
a taking.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission has reviewed the adopted rulemaking and found that the rule
is neither identified in the Coastal Coordination Act Implementation Rules,
31 TAC §505.11(b)(2), relating to Actions and Rules Subject to the Texas
Coastal Management Program (CMP), nor will it affect any action/authorization
identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(a)(6).
Therefore, the adopted rule is not subject to the CMP.
HEARINGS AND COMMENTERS
There were no public hearings held on this rulemaking. Campbell, George,
and Strong, L.L.P. (CGS); Groundwater Services, Incorporated (GSI); Texas
Chemical Council (TCC); and Texas Oil and Gas Association (TxOGA) all submitted
written comments recommending changes to the MOU.
ANALYSIS OF TESTIMONY
TCC and TxOGA commented that the commission should re-evaluate the MOU
six months after implementation to give the agencies and stakeholders an opportunity
to identify areas for improvement in the process.
The commission agrees that a review of the MOU based on practical experience
would be beneficial. However, the suggested review period is too short to
meaningfully evaluate the MOU process as a whole. The commission agrees that
the agency will re-evaluate the MOU two years after adoption.
TCC and TxOGA commented that a statement in the fiscal note of the proposal
preamble referencing "...accidents involving a release of potentially hazardous
chemicals of concern..." was unclear and should be changed to read, "...incidents
involving a release of chemicals of concern...".
The commission agrees with the comment but the change is not reflected
in this preamble because the fiscal note, as is the usual practice, is not
included in the adoption preamble.
TCC, TxOGA, and CGS commented that a statement in the preamble regarding
chemicals of concern (COCs) left in place was not accurate and should be clarified.
The commission agrees with the recommended revision so that the sentence
should read as follows, "If COCs are proposed to be left at the affected property
in excess of established ecological PCLs with the potential for continuing
exposure, an ESA must be conducted." However, this sentence was contained
in the fiscal note of the proposal preamble and, as is the usual practice,
the fiscal note is not included in the adoption preamble.
TCC and TxOGA commented that the Trustees have not included in the MOU
any language that would acknowledge that a person's successful completion
of the ESA process (with or without restoration) resolves a person's natural
resource damages (NRD) liability for future ecological injuries. TCC and TxOGA
further commented that this sentiment is included in the preamble to the TRRP
rules (24 TexReg 7529 - 7531) and in the final interim ERA guidance document
(see §5.3.2). TCC and TxOGA commented that they interpreted this language
to say that after Trustees' reasonable costs are reimbursed, a person is resolved
of NRD liability for future ecological injuries. TCC and TxOGA recommended
that the MOU include language consistent with preamble language that recognizes
that the Trustees will not pursue an action for future ecological injuries
in the NRD law context when a person successfully completes the ESA process.
Similarly, CGS commented that the preamble of the MOU should clearly indicate
that a person's participation in the ESA and performance of compensatory ecological
restoration will, in effect, completely resolve that person's potential liability
for future ecological injuries that are recoverable under NRD law (CERCLA,
OPA, CWA, and any other federal or state law). CGS further commented that
this was the underlying agreement for the Trustees' inclusion throughout the
ESA process and is reflected in the comments submitted to the TRRP rules by
several Trustees. CGS commented that the preamble of the TRRP rules echoes
this sentiment by stating that "(t)hrough Trustee involvement, it is the intent
of the commission to provide finality to the level of restoration required
to compensate for future ecological injuries associated with a given risk
management decision." Additionally, CGS commented that the exception pointed
out in the preamble to the TRRP rules relates solely to the Trustees' ability
to recover their reasonable assessment costs. CGS commented that at the September
1, 2000 meeting with representatives from the Trustee agencies to discuss
the draft of this MOU, they were told by several of the Trustee representatives
that the agencies never agreed that a person who partakes in the ESA process
and provides compensatory restoration for future ecological risks would have
essentially resolved his/her potential NRD liabilities for future ecological
injuries. CGS further commented that this was completely contrary to agreements
struck at arms length with the Trustees, the agency, and industry stakeholders
over the prior two plus years and was in conflict with the Trustees' own comments
on the TRRP rules.
The commission disagrees with the comments that Trustee involvement in
the ESA is a de facto settlement of NRD liability for future ecological injuries.
In fact, the adoption preamble to the TRRP rules stated that the "..commission
disagrees with the Campbell, George, and Strong comments pertaining to the
Trustees involvement in the ESA being considered a de facto settlement of
natural resource damages (NRD) for future ecological injuries." (24 TexReg
7531) The fact that the Trustees' costs of assessment are not specifically
addressed in the ESA process and are clearly a statutory component of NRD
liability is only one reason that Trustee involvement in the ESA does not
result in an automatic settlement of NRD liability for future ecological injuries.
The statutes and regulations pertaining to NRD are complex and involve specific
components not addressed in the ESA process. Some examples of these specific
components are the development of Damage Assessment Restoration Plans, alternatives
analyses, public participation requirements, and the Trustees' reasonable
costs of assessment. Although the ESA process and the NRD assessment process
have similarities, these processes are not one and the same. Involvement in
one process cannot be interpreted as automatic satisfaction of the other process.
The ESA process was not written to address all of the components of NRD liability.
Additionally, settlements and liability releases are inherently case specific
and language stating that some action is a settlement or a release for a third
party is not appropriate for an MOU that is primarily procedural in nature
and not binding upon any third party. Additionally, the commission disagrees
that this was the underlying agreement for the Trustees' inclusion in the
ESA process. As stated in the adoption preamble to the TRRP rules, "It is
only the presumed Trustee involvement which gives the commission a comfort
level in including the ESA option in the rule." (24 TexReg 7530) It is still
the intent of the commission, through Trustee involvement, to provide finality
to the level of restoration required to compensate for future ecological injuries
associated with a given risk management decision. Additionally, the Trustees
intend to offer a person the opportunity of resolving their NRD liability
through a formal written settlement agreement concurrent with their participation
in the ESA process.
GSI commented that §7.124(a)(4), (g), and (h)(2)(C) could cause confusion
between risk and injury because risk does not equate to injury. GSI further
commented that the ERA process is designed to address potential ecological
risks at sites managed under the TRRP rules and a finding of ecological risk
(i.e., COC concentrations above ecological protective concentration levels
(PCLs)) does not indicate that ecological injury will occur or that liability
for NRD has been incurred. GSI recommended that a definition of "ecological
injury" or "natural resource damages" be added to the MOU which clarifies
that a finding of ecological risk does not indicate that ecological injury
has occurred or will occur.
The commission agrees that risk does not necessarily indicate that ecological
injury has occurred or will occur. However, the commission disagrees with
GSI's recommendation because definitions such as those suggested are not appropriate
in a coordination document and may cause confusion if they conflict with similar
definitions in substantive rules or statutes. Additionally, the MOU does not
state a position contrary to the one stated by GSI. Although the commission
agrees that risk does not necessarily indicate that ecological injury has
occurred or will occur, risk does indicate the potential for ecological injury
(service losses). As §5.3.2 of the agency's ERA guidance jointly developed
with stakeholders states, "For expediency and cost-effectiveness, it is the
intention of the ESA process that risk estimation and remedial effects be
used to determine potential ecological services losses." (Guidance for Conducting
Ecological Risk Assessments at Remediation Sites in Texas, August 28, 2000)
For these reasons, the commission has made no changes in response to these
comments.
GSI commented that the last sentence of the first paragraph in §7.124(g)
implies that the Trustees do not acknowledge that the potential for continuing
injuries should be negligible at those sites where the appropriate application
of the ERA process indicates that no corrective action is required. GSI recommended
that the sentence be revised to acknowledge negligible future injury at both
sites where corrective action has been completed and sites where corrective
action is not required.
The commission agrees with the comment and the sentence has been revised
appropriately.
GSI, TCC, and TxOGA commented on the trigger and timing of Trustee notification
in §7.124(g). GSI commented that the trigger for Trustee notification
(i.e., conservative HQ>1) is not directly related to the potential for injury
to ecological resources and therefore is not an appropriate trigger for notification.
GSI further commented that with appropriate application of the ERA process,
only development of ecological PCLs (Paragraph 9) provides a reasonable indication
of potential injury to ecological resources and that requiring Trustee notification
for sites which proceed to Paragraph 7, but not Paragraph 9, will make it
more difficult for the Trustees to identify sites which pose a risk for future
injury to ecological resources and to focus available resources on those sites.
GSI recommended that the trigger for Trustee notification be modified to include
only sites which progress to calculation of ecological PCLs (i.e., Paragraph
9 in the current TRRP rules).
TCC and TxOGA commented that Step 7 is too early in the process for notification
because PCLs developed from Step 7 assumptions are still conservative and
should not be a litmus test for review. Additionally, TCC and TxOGA commented
that notification is more appropriate when the decision has been made to leave
concentrations of COCs that exceed an appropriately derived ecological PCL
in place where these environmental levels have the potential for continuing
exposure. TCC and TxOGA recommended that notification only be required when
concentrations of COC's above an appropriately derived ecological PCL are
left in place with the potential for continuing exposure and that §7.124(e)(2)
and (g) should be deleted.
The commission disagrees with the comments on the trigger and timing of
notification because Paragraph 7 (Step 7) is directly related to the potential
for injury to ecological resources and is therefore an appropriate trigger
for notification. The Trustees originally believed that it would be appropriate
to be notified much earlier in the process. The proposal preamble to the TRRP
rules suggested notification after the initial Tier 2 screening step (Paragraph
2) (24 TexReg 2232). Due to public comments on the proposed TRRP rules saying
that this was too early in the process for notification, the adoption preamble
to the TRRP rules stated that the Trustees would be notified prior to the
development of PCLs, which occurs at Paragraph 9 (24 TexReg 7455). Paragraph
7 was chosen as a compromise because it is the point at which less conservative
assumptions are utilized and Trustee involvement at that stage helps to ensure
that their jurisdictional resources are adequately protected. Paragraph 7
was determined to be the latest point in the process in which the Trustees
could become involved and not question what had occurred in the previous steps.
Although the Trustees will be notified after the agency learns through a person's
submittal that an ERA has progressed to Paragraph 7, the scope of the Trustees'
involvement in the TRRP process for an affected property will be determined
on a case-by-case basis. For these reasons, the commission has made no changes
in response to these comments.
TCC and TxOGA also recommended that, at a minimum, PCLs derived under the
following conditions should be acceptable and not trigger notification: 1)
the LOAEL and NOAEL differ by a factor of ten or less, and 2) the midpoint
or less between these values is used as the effect level.
The commission disagrees with this comment because it is in direct conflict
with a previous commitment that the commission has with the Trustees, as stated
in the adoption preamble of the TRRP rules (24 TexReg 7455), that the Trustees
would be notified prior to development of ecological PCLs. While the commission
agrees that this reasoning may be an appropriate method for deriving PCLs,
it is not an appropriate trigger for notification. The Trustees should be
involved at an earlier point in the process to insure that the process is
reliable and the assumptions used in the development of the LOAEL and NOAEL
PCLs are valid. For these reasons, the commission has made no changes in response
to these comments.
TCC and TxOGA commented that although they agree that Trustees should be
notified when it is beneficial, they do not believe that the notification
needs to be formal and routine. TCC and TxOGA commented that the mechanism
proposed by the MOU for notification is administratively burdensome, wastes
resources from the different agencies and industry, and would result in many
more sites being subject to review than would benefit from additional scrutiny.
TCC and TxOGA further commented that formalizing the notification process
adds a new step in the remediation process and adds additional responsibilities
on agency staff. Additionally, TCC and TxOGA commented that the Trustees'
involvement in the risk assessment process will increase the cost of remediation
to both agencies and the regulated community without an increase in benefit.
The commission disagrees that the notification adds a new step to the remediation
process because notification is currently taking place under the present process,
albeit in a much less systematic manner. In many ways, having an agreed upon
and recognized process will make it easier for the agencies involved to carry
out their duties to the public. The commission also disagrees that there is
no added benefit in having the Trustees involved in the risk assessment process.
The Trustees will bring certain expertise to that process to help ensure that
a person's actions are ecologically protective and are not second guessed
at a later period in time. It should also be noted that simply because the
Trustees are notified of a site, it does not necessarily mean that the site
will undergo additional Trustee scrutiny. As is true currently, the Trustees
must focus their finite resources on a select number of sites. For these reasons,
the commission has made no changes in response to these comments.
GSI commented that the notification sentence in §7.124(g)(1) is confusing
because the person will typically submit a single report.
The commission has revised this sentence in response to GSI's comment.
GSI also commented that linking the notification trigger directly to the
current TRRP rules is problematic because any revision to the TRRP rules will
require revision to the MOU.
The commission agrees that this could be problematic but determined that
the specific reference to Paragraph 7 is important for clarity. Therefore,
a sentence was added to the end of the definition of Paragraph 7 (§7.124(e)(2))
to provide both clarity and flexibility if the TRRP rules are amended or replaced.
CGS commented on the "TNRCC-approved ecological PCLs" language in §7.124(g)(1).
CGS commented that the TRRP rules never state that the ecological PCLs must
be approved by the agency.
The commission has revised the sentence in response to another comment
and the language at issue was removed. However, the commission disagrees with
CGS' comment that ecological PCLs do not have to be approved by the agency
under the TRRP rules. In fact, approval of PCLs is an inherent and principal
point of the TRRP rules. For example, §350.2(a) of the TRRP rules states:
"All actions undertaken and demonstrations required by this chapter must be
performed and documented to the reasonable satisfaction of the executive director."
Additionally, the figure contained in §350.3(4) illustrates the procedural
requirements for the TRRP rules and identifies submittal of the response action
plan with the affected property assessment report for agency approval as a
step in this process. Pursuant to §350.91(b)(7), ecological PCLs would
be submitted and approved as part of the Affected Property Assessment Report.
TCC, TxOGA, and CGS commented that the sentence in §7.124(g) that
states that the ERA should be conducted in a "...manner that is designed to
result in the protection of ecological receptors that may be subject to management
by federal and state agencies..." is superfluous and potentially conflicts
with the ERA guidance. TCC, TxOGA, and CGS further commented that the focus
of the ERA is on ecological risks first and it is not designed to address
Trustee resources in every case. TCC and TxOGA recommended removing the sentence
from the MOU.
The commission does not agree that the sentence is superfluous or that
it potentially conflicts with ERA guidance. The sentence is not superfluous
because it is important to the Trustees that the MOU contain such an acknowledgment
about a process in which they agree that the potential for continuing injury
to ecological resources should be negligible if the remedial decisions were
based on appropriate application of the ERA process. The sentence (with minor
modification) was actually taken from §3.13 of the agency's ecological
guidance document which was negotiated amongst the agency, the Trustees, and
industry stakeholders (Guidance for Conducting Ecological Risk Assessments
at Remediation Sites in Texas, August 28, 2000). The substantially similar
sentence from the guidance reads as follows: "The ERA should be conducted
in a manner that results in the protection of ecological receptors subject
to management by other federal and state agencies and consistent with these
agencies statutory authority." The commission has made no changes in response
to this comment.
TCC, TxOGA, and CGS commented that the sentence in §7.124(g)(1)(B)
that references the "deadline constraints of the TNRCC remedial/corrective
action project manager" in the context of initial notification should be revised
to replace "constraints" with "requirements."
The commission has made no changes in response to this comment. The commission
considers the word "constraints" to be more appropriate in this context and
notes that the word preference does not affect the tight deadlines that the
Trustees are required to meet throughout the ERA process.
TCC, TxOGA, and CGS commented that the person submitting the request should
be entitled to a copy of the comments submitted by the Trustees to the agency
ecological risk assessor in §7.124(h)(1)(C). TCC and TxOGA recommended
that language be added so that the person gets a copy of the comments submitted
by the Trustees.
The commission agrees that the person should be entitled to the written
comments concerning the Trustees' recommendation on a person's request to
perform an ESA. Such comments will be made available upon request. It should
be noted, however, that Trustee comments may be revised or withdrawn as a
result of comment compilation meetings between the Trustees and the agency
ecological risk assessors.
TCC, TxOGA, and CGS commented on the Trustee interaction in §7.124(h)(2)(A).
TCC, TxOGA, and CGS commented that if the Trustees cannot all agree, then
the MOU should allow for the process to continue if at least one of the Trustees
agrees and the risk of going forward without the other Trustees is the person's.
TCC and TxOGA recommended adding language so that the process can continue
even if only one Trustee agrees.
The commission disagrees with the comment that a person should be able
to continue in the ESA process if multiple Trustees have chosen to participate
and only one Trustee agrees to go forward. This is why a Trustee may not arbitrarily
determine that a person should not move forward, but must provide a reasoned
justification if they decide not to approve a person's ESA. The Trustee process
in Texas is consensus-based which leads to better finality for the person.
Additionally, the risk inherent in moving forward with one Trustee is not
only the person's risk but is also a risk to the other Trustees' claim should
they decide to pursue different compensation. However, if only a single Trustee
chooses to become involved with a site, the person may move forward with only
that participating Trustee's approval. For these reasons, the commission has
made no changes in response to these comments.
TCC and TxOGA commented that they support the formation of the Trustee
Technical Team (TTT) in §7.124(h)(2)(B) and find the requirements of
authority and expertise necessary for participation to be conducive to the
efficient completion of ecological risk/ecological services evaluations. TCC,
TxOGA, and CGS commented that the TTT process seems fairly elaborate and needs
to align itself with the TRRP process and Figure 5-4 in the ecological guidance
document.
The commission disagrees with the comment that the TTT process is fairly
elaborate. The Trustees have successfully used a similar process for many
years on other interactions and it has adapted well to a variety of sites
and circumstances. The commission does not agree that the TTT process is inconsistent
with the TRRP process or Figure 5-4 in the ecological guidance document. For
these reasons, the commission has made no changes in response to these comments.
GSI, TCC, TxOGA, and CGS commented on the written agreement referenced
in §7.124(h)(2)(C). GSI commented that negotiation of site-specific written
agreements between the Trustees and the person at a significant portion of
the sites proceeding with an ESA is impractical and has the potential to cause
significant delays in the ESA process. GSI recommended adding language to
indicate the (limited) situations where the Trustees would attempt to negotiate
a written agreement prior to proceeding with an ESA and clarifying that the
failure of the person to reach written agreement with the Trustees will not
limit the person's ability to proceed with the ESA and will not effect the
timing of the ESA process. GSI also recommended clarifying that entry into
the ESA process does not necessarily indicate that any NRD have occurred and
that payment of Trustees' costs and public participation are not required
under the TRRP rules.
TCC and TxOGA commented that it must be clear that a person can use the
ESA without ever addressing NRD at a site and the Trustees should not hold
back approval in the process if the person simply wants to deal with his/her
remedial obligations. TCC further commented that the Trustees should not pursue
payment of costs associated with the risk assessment because they are serving
as technical experts providing support to TNRCC to insure that the natural
resources under their jurisdiction are adequately protected. TCC recommended
that the second sentence in §7.124(h)(2)(C) be revised to delete any
reference to the ERA and add the words "as appropriate" to the end of the
sentence. CGS commented that the inclusion of a written agreement should be
eliminated because the entire process is predicated on the fact that the ERA
and risk management requirements are derived from the agency's authority to
require remedial actions for the protection of "human health and the environment"
and though similar, it is not a process for the Trustees to assert and pursue
claims for NRD. CGS further commented that under no event should a person
be required to enter into an agreement with the Trustees for the performance
of an ESA under the TRRP rules and if the person has no intention of addressing
his or her potential NRD liabilities, then the Trustees must not withhold
approval or participation in the ESA process based solely on that fact.
The commission responds that a responsible party may use an ESA without
addressing NRD at their own risk of duplicative expenses associated with investigation
of NRD's, risk of additional or alternative compensation for past lost use,
and public rejection of the compensatory ecological restoration in a NRD context.
The commission also responds that the Trustees will not prevent approval of
an acceptable ESA based solely on whether or not an NRD agreement is reached
with responsible party. It is neither the commission's nor the Trustees' intent
to require an agreement, but to simply allow persons the opportunity of resolving
their NRD liability in an efficient manner at the same time they are moving
through the ESA process. For this reason, the commission agrees with TCC's
recommendation to add "as applicable" to the end of the second sentence in §7.124(h)(2)(C).
However, for settlement of any NRD liability, entry into a formal written
agreement with the Trustees will be necessary. The commission disagrees with
TCC's comment that the Trustees should not pursue payment of costs associated
with the risk assessment because the Trustees' involvement in the risk assessment
is assessment work and thus the costs of that work are recoverable under NRD
statutes and regulations.
GSI also recommended adding language to §7.124(h)(2)(C) to clarify
that entry into the ESA process does not necessarily indicate that any NRD
have occurred.
This comment has been previously addressed under an earlier comment of
GSI's pertaining to risk and injury.
Additionally, GSI recommended adding language to clarify that payment of
Trustees' costs and public participation are not required under the TRRP rules.
The commission responds that the payment of Trustees' costs is a function
of federal and state law and is not the subject of this MOU. As to public
participation, it is required under certain parts of the TRRP rules, may be
required by statute depending upon specific program requirements (e.g., state
superfund), and is required if the person would like to resolve their NRD
liability in conjunction with the ESA process. As to payment of Trustees'
costs, the TRRP rules do not require the payment of such costs, but the adoption
preamble to the TRRP rules does state that the "...commission recognizes that
the Trustees' reasonable costs of assessment are a statutory component of
NRD liability." (24 TexReg 7531) Therefore, the commission determined that
the recommended statements may lead to confusion and are not necessary in
a primarily procedural agreement among the participating agencies.
TCC, TxOGA, CGS commented that the dispute resolution process in §7.124(h)(2)(D)
cannot interfere with remedial time frames established by the Texas Natural
Resource Conservation Commission Remedial/Corrective Actions Project Manager
(TNRCC PM). TCC and TxOGA recommended that language should be included in
the MOU so that dispute resolution does not interfere with time frames established
by TNRCC PM.
The commission has made no changes as a result of these comments for several
reasons: 1) the dispute resolution process only applies to Trustee coordination
and approval of the ESA and does not apply to Trustee involvement in the ERA
or in the ESA consultation process; 2) the dispute resolution process holds
the parties to extremely tight time frames to facilitate an efficient ESA
process; and 3) in the negotiation of the MOU, this result was the best compromise
that could be reached between all the signatories to the MOU.
TCC, TxOGA, CGS commented on the Trustee re-entry and early exit from the
process in §7.124(j). TCC and TxOGA commented that overall, as a tool
facilitating such timely resolution, the proposed MOU provides authority and
time lines to the lead agency (TNRCC) to initiate and carry on the process
independent of the Trustees, should any or all Trustees elect not to participate.
TCC and TxOGA further commented that they support §7.124(j)(1) concerning
re-entry where Trustee involvement is prospective only and the Trustee may
not challenge previous decisions as being an important provision that should
be kept in the MOU. TCC, TxOGA, and CGS commented that after a Trustee withdraws,
it loses its right to challenge decisions made on the ERA or ESA during its
participation in the group. TCC and TxOGA recommended language clarifying
that the Trustee loses its right to challenge decisions made on the ERA or
ESA during its participation in the group when the Trustee withdraws.
In response to these comments, the sentence at issue in §7.124(j)(1)
has been revised and an additional sentence added to clarify that a Trustee
may not challenge joint decisions made within the TRRP process on the ERA
or ESA during that Trustee's prior participation in the process.
TCC, TxOGA, and CGS commented that it is unclear what is meant in §7.124(k)
by "Trustee activities" on affected properties. TCC and TxOGA recommended
that the MOU provide examples of "Trustee activities" on the property.
In response to these comments, an example of site visits has been added
to the sentence at issue.
TCC and TxOGA commented that it should be recognized in §7.124(m),
Reservation of rights, that rights are affected if a person goes through the
ESA with the cooperation of Trustee parties. TCC and TxOGA recommended that
language be added to the MOU to reflect that rights are affected if a person
goes through the ESA with cooperation of the Trustees. Specifically, TCC and
TxOGA recommended that the sentence be changed to read, "...this MOU does
not compromise or affect any legal rights of the parties or persons undergoing
an ESA, nor does it narrow the scope of any party's authority or jurisdiction."
CGS commented that it should be recognized that the rights of the Trustees
are affected if a person goes through the ESA with the cooperation of the
Trustees.
As this is a procedural MOU amongst five specific parties, the commission
has made no changes in response to these comments. The Trustees did not think
it appropriate to address a third party's rights in the MOU's reservation
of rights provision. The commission also disagrees that the rights of the
Trustees are affected if a person goes through the ESA process and that issue
is not presented by this MOU between governmental entities. To clarify this
issue, the Trustees have added an additional sentence to §7.124(m).
On §7.124(o), Appropriated funds, TCC and TxOGA commented that, although
not directly related to this provision, they believe that inappropriate notification
and Trustee involvement in the ERA process will increase costs for remediation
projects for both the agencies involved and the person.
Although the comment does not relate to this provision, the commission
disagrees that the notification and Trustee involvement in the ERA process
will necessarily increase costs for remediation projects for both the agencies
involved and the person. As the adoption preamble to the TRRP rules states,
"Persons may benefit from timely Trustee involvement in the Ecological Risk
Assessment process through decreased costs associated with the coordination
of risk assessment and injury determination, reduction of residual natural
resources injury, and timely resolution of natural resource damages liability."
(24 TexReg 7455)
STATUTORY AUTHORITY
The new section is adopted under Texas Water Code (TWC), §5.103, which
provides the commission with the authority to adopt any rules necessary to
carry out its powers and duties. Additionally, the new section is adopted
under TWC, §5.104 and Texas Health and Safety Code, §361.016, which
provide the commission with the authority to enter into an MOU.
§7.124.Natural Resource Trustees Memorandum of Understanding.
(a)
Purpose. The Texas Risk Reduction Program (TRRP) rules
(30 Texas Administrative Code (TAC) Chapter 350) and the preamble to those
rules (24 TexReg 7436) reference certain interactions between the Texas Natural
Resource Conservation Commission (TNRCC) and the natural resource trustees
(Trustees) in regard to an ecological risk assessment and an ecological services
analysis. The purpose of this memorandum of understanding (MOU) is to facilitate
these interactions between the TNRCC and the Trustees in both these processes.
In addition, the parties recognize the following as pertinent to the development
of this MOU.
(1)
The TNRCC is the agency of the State of Texas given the
primary responsibility for implementing the constitution and laws of the state
relating to the conservation of natural resources and the protection of the
environment.
(2)
As public trustees for natural resources, the Trustees
have statutory authority to pursue claims for injury to, destruction of, or
loss of natural resources as a result of a release of a hazardous substance
or a discharge of oil, seek restoration or replacement of such natural resources,
and pursue recovery of reasonable assessment costs.
(3)
Due to some dependent and even overlapping responsibilities,
it is beneficial for the TNRCC and the Trustees to coordinate on the performance
of certain tasks concerning the ecological risk assessment and ecological
services analysis.
(4)
Integration of natural resource damages considerations
into risk reduction decisions may efficiently and cost effectively resolve
certain natural resource damages liability and alleviate the need for further
investigations or legal proceedings.
(b)
Parties. The parties to this MOU are as follows:
(1)
TNRCC, both as administrator of TRRP and a natural resource
trustee;
(2)
Texas Parks and Wildlife Department, solely as a natural
resource trustee;
(3)
Texas General Land Office, solely as a natural resource
trustee;
(4)
National Oceanic and Atmospheric Administration of the
United States Department of Commerce, solely as a natural resource trustee;
and
(5)
United States Department of the Interior, solely as a natural
resource trustee.
(c)
Authorities.
(1)
The Trustees enter into this MOU in accordance with the
legal authorities provided to each Trustee by the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA), 42 United States Code
(USC) §§9601 et seq.; the Clean Water Act (CWA), 33 USC §§1251
et seq.; the Oil Pollution Act of 1990 (OPA), 33 USC §§2701 et seq.;
the National Contingency Plan, 40 Code of Federal Regulations (CFR) Part 300;
the Natural Resource Damage Assessment Regulations, 43 CFR Part 11; and 15
CFR Part 990; and any other applicable laws or authorities.
(2)
The State of Texas Trustees also enter into this MOU in
accordance with the legal authorities provided by the Texas Natural Resources
Code, Oil Spill Prevention and Response Act of 1991, §40.107; the Texas
Natural Resource Damage Assessment Regulations, 31 TAC Chapter 20; and any
other applicable laws or authorities.
(3)
The TNRCC additionally enters into this MOU in accordance
with the legal authority provided to it by the Texas Water Code, §5.104
and Texas Health and Safety Code, §361.016.
(d)
Acronyms.
(1)
COCs--chemicals of concern;
(2)
CFR--Code of Federal Regulations;
(3)
CERCLA--Comprehensive Environmental Response, Compensation,
and Liability Act;
(4)
CWA--Clean Water Act;
(5)
LOAEL--lowest observed adverse effect level;
(6)
MOA--memorandum of agreement;
(7)
MOU--memorandum of understanding;
(8)
NOAEL--no observed adverse effect level;
(9)
OPA--Oil Pollution Act of 1990;
(10)
PCLs--protective concentration levels;
(11)
TAC--Texas Administrative Code;
(12)
TNRCC--Texas Natural Resource Conservation Commission;
(13)
TRRP--Texas Risk Reduction Program;
(14)
TNRCC PM--Texas Natural Resource Conservation Commission
Remedial/Corrective Actions Project Manager; and
(15)
TTT--Trustee technical team.
(e)
Definitions. Any words not specifically defined herein
which are defined in 30 TAC §350.4, shall have the same meaning as defined
in that section.
(1)
Person--An individual, corporation, organization, government,
or governmental subdivision or agency, business trust, partnership, association,
or any other legal entity utilizing the TRRP rules or any other equivalent
TNRCC rules.
(2)
Paragraph 7--30 TAC §350.77(c)(7) corresponds to a
point in the Tier 2 screening-level ecological risk assessment where the initial
risk estimate is refined based on the use of less conservative exposure assumptions.
Paragraph 7 is a requirement that the person must perform as part of the Tier
2 screening-level ecological risk assessment if the assessment progresses
past 30 TAC §350.77(c)(6). Paragraph 7 reads as follows: (The person
shall:) "...justify the use of less conservative assumptions to adjust the
exposure and repeat the hazard quotient exercise in paragraph (6) of this
subsection, once again eliminating COCs that pose no unacceptable risk and
adding comparisons to the LOAELs for those COCs indicating a potential risk
(i.e., NOAEL hazard quotient >1); however, when multiple members of a class
of COCs are present which exert additive effects, it is also appropriate to
utilize an ecological hazard index methodology (if all COCs are eliminated
at this point, the ecological risk assessment process ends and the items listed
in paragraphs (8) - (9) of this subsection are not required);" Any reference
in this MOU to Paragraph 7 shall not only include the current 30 TAC §350.77(c)(7)
but also the point at which the equivalent actions occur under other TNRCC
risk reduction rules in the event that TRRP is amended or replaced and the
specific reference is revised.
(3)
Trustees--The federal agencies as designated by the President
of the United States and the state agencies as designated by the Governor
of the State of Texas pursuant to the OPA and CERCLA to act on behalf of the
public as trustees of natural resources (e.g., water, air, land, wildlife).
(4)
Parties--The signatories to this MOU as specified in subsection
(b) of this MOU.
(f)
Trustee contacts. The TNRCC Natural Resource Trustee Program
(TNRCC Trustee) shall designate a primary TNRCC Trustee contact in writing
to the other Trustees no later than ten calendar days after the effective
date of this MOU. The TNRCC shall designate a secondary TNRCC Trustee contact
in the initial notifications of both an ecological risk assessment and an
ecological services analysis. Each of the other Trustees shall designate a
primary and a secondary contact in writing to the other Trustees no later
than ten calendar days after the effective date of this MOU. Initial notifications
and all subsequent electronic mail correspondence shall be sent to both the
primary and secondary contacts for each Trustee. The TNRCC Trustee shall send
copies of pertinent documents to the primary contacts by regular mail (unless
an alternate contact or method is identified in advance). A Trustee may change
its primary or secondary contact by providing the other Trustees not less
than ten calendar days written notice of such change.
(g)
Ecological risk assessment process. The preamble to TRRP
rules (24 TexReg 7455) states that the Trustees may choose to participate
in the ecological risk assessment process to ensure that natural resources
under their jurisdiction are adequately protected. The preamble also states
that the TNRCC will notify the Trustees of affected property with chemicals
of concern (COCs) which remain after a particular stage of development within
the Tier 2 screening-level ecological risk assessment. The purpose of an ecological
risk assessment is to characterize the ecological setting of the affected
property, identify complete or reasonably anticipated to be completed exposure
pathways and representative ecological receptors, scientifically eliminate
COCs that pose no unacceptable risk, and develop protective concentration
levels (PCLs) for selected ecological receptors where warranted. The parties
agree that an ecological risk assessment should be conducted in a manner that
is designed to result in the protection of ecological receptors that may be
subject to management by federal and state agencies. Furthermore, the Trustees
acknowledge that the potential for continuing injury to ecological resources
should be negligible at sites where the remedial decisions were based on appropriate
application of the proposed ecological risk assessment process.
(1)
Initial notification. After the TNRCC learns through a
person's submittal that the ecological risk assessment at an affected property
has progressed to Paragraph 7 and prior to approval of the ecological risk
assessment by the TNRCC, the TNRCC Trustee shall provide timely notification
to the other Trustees. The parties agree that further evaluation of ecological
risk at an affected property is not warranted for purposes of making response
or corrective action decisions under the TRRP rules when: 1) an appropriately
applied ecological risk assessment is conducted consistent with the most recent
TNRCC guidance on the subject at the time the ecological risk assessment is
performed; and 2) the affected property does not progress to Paragraph 7.
(A)
Method of initial notification. Notification by the TNRCC
Trustee shall be provided via electronic mail, or via another mutually agreed
upon method, to the primary and secondary contacts for each Trustee.
(B)
Content of initial notification. The initial notification
shall include the affected property name, location, status of the ecological
risk assessment, and to the extent practical, the type of habitat, receptors
at risk, COCs, and other relevant information necessary to allow the Trustees
to evaluate their level of interest in the affected property. The TNRCC secondary
contact, the TNRCC ecological risk assessor, and the deadline constraints
of the TNRCC remedial/corrective actions project manager (TNRCC PM) shall
also be provided in the initial notification.
(C)
Trustee response to initial notification. A written response
(electronic mail is acceptable) from each Trustee to the initial notification
must be provided to both the primary and secondary TNRCC Trustee contacts
within five working days of the initial notification. This response shall
specifically state the Trustee's intent as to whether or not the Trustee chooses
to participate in the ecological risk assessment process. In the event that
any Trustee fails to respond within the five working days, the TNRCC will
proceed as if the Trustee chose not to participate in the ecological risk
assessment process for that affected property. Subsection (j) of this MOU
explains how a Trustee may enter the process at a later date.
(2)
Documents. After the timely receipt of a Trustee's written
intent to participate in the ecological risk assessment process, the TNRCC
Trustee shall send copies of pertinent documents to the primary contacts by
regular mail (unless an alternate contact or method is identified in advance).
The TNRCC Trustee shall provide the primary and secondary contacts with electronic
mail notification (unless an alternate method of notification has been mutually
agreed to in advance) that the documents have been mailed. The TNRCC shall
provide documents in a timely manner to ensure that the Trustees have the
maximum time available for the review of documents. The TNRCC Trustee shall
coordinate the review of ecological risk assessment work plans, reports, and
other relevant documents with the Trustees.
(3)
Trustee comments. Unless otherwise mutually agreed, the
participating Trustees shall submit a unified set of written comments, if
any, on the ecological risk assessment to the TNRCC ecological risk assessor.
Trustee comments on ecological risk assessment documents must be technically
defensible and relevant to the ecological risk assessment process.
(A)
Deadline for comments and extensions.
(i)
The Trustees shall have 20 calendar days from the date
of postmark on any documents received to respond to both the TNRCC Trustee
contacts with comments. This time period may be reduced to coincide with a
deadline of less than 20 calendar days if necessary to meet the TNRCC PM's
deadline. In the event that a greater period of time is available, as determined
by the TNRCC PM, an extended deadline shall be provided to the Trustees.
(ii)
The Trustees may request an extension of the comment period
of up to seven calendar days by writing (electronic mail is acceptable) to
both the TNRCC Trustee contacts not less than three calendar days prior to
the comment deadline. The TNRCC may, in its sole discretion, grant or deny
such requests for extensions. The TNRCC will respond to all participating
Trustees regarding such requests within 24 hours after receipt. If the Trustees
do not receive a response from the TNRCC, the request for an extension is
presumed to be denied.
(iii)
In the event that any Trustee fails to provide comments
within the prescribed deadline (including any extension), the TNRCC will proceed
as if the Trustee has no comments.
(B)
Reconciliation of comments. Prior to submitting comments
to the TNRCC ecological risk assessor, the participating Trustees shall first
coordinate all comments among themselves and provide a unified Trustee response
through a mutually agreed upon Trustee representative. In the event that the
TNRCC ecological risk assessor or TNRCC PM disagrees with any comments provided
by the Trustees, the TNRCC will make diligent efforts to reach resolution
between the parties. The TNRCC ecological risk assessor shall be responsible
for coordinating the resolution of conflicting comments and shall schedule
and coordinate comment resolution meetings as appropriate. Each participating
Trustee's primary contact shall be copied on all ecological risk assessment
related correspondence to the person and shall be provided copies of all ecological
risk assessment related correspondence from the person to the TNRCC. In the
event that differences cannot be resolved, the Trustees maintain the right
to independently provide comments to the TNRCC PM and/or person conducting
the ecological risk assessment, either as a unified group of two or more Trustees
or as a single Trustee.
(C)
Recognition of comments. The TNRCC ecological risk assessor
shall evaluate the Trustee comments and the TNRCC PM shall incorporate them
into the TNRCC's response to the person, as appropriate. The TNRCC shall use
its regulatory authority to ensure that the incorporated Trustee comments
are recognized in the development of the ecological risk assessment. If any
Trustee comments are not incorporated, the Trustees shall be informed.
(4)
Coordination of meetings. After the timely receipt of a
Trustee's written intent to participate in the ecological risk assessment
process, the TNRCC shall, to the extent practical, coordinate with the Trustees
concerning their availability at least ten calendar days in advance of meetings
concerning the ecological risk assessment. The TNRCC shall provide the Trustees
notification of the ecological risk assessment meetings via electronic mail
or via another mutually agreed upon method. The TNRCC and the Trustees shall
work together to ensure that all parties to this MOU which are participating
in the ecological risk assessment process have input into that process and
that reasonable timelines are established and met to ensure that Trustee involvement
in the ecological risk assessment does not impede progression of the ecological
risk assessment. In the event that any participating Trustee is unable to
attend a meeting concerning the ecological risk assessment, any absent Trustee
shall contact the other Trustees to obtain information regarding the meeting,
and if necessary, shall contact the TNRCC ecological risk assessor within
a reasonable time after the meeting to be briefed on the issues discussed.
(h)
Ecological services analysis process. The TRRP rules require
that the TNRCC consult with the Trustees prior to approval of a person's request
to conduct an ecological services analysis (30 TAC §350.33(a)(3)(B) and §350.77(f)(2)).
Furthermore, TRRP rules also require the person to conduct any compensatory
ecological restoration and other activities associated with the ecological
services analysis with the approval of and in cooperation with the Trustees
(30 TAC §350.33(a)(3)(B)). The parties agree that an ecological services
analysis must be conducted whenever concentrations of COCs which exceed ecological
PCLs are proposed to be left in place with the potential for continuing exposure
in accordance with 30 TAC §350.33(a)(3)(B).
(1)
Consultation on person's request to perform an ecological
services analysis. Although the following sets forth a separate process for
consultation on a person's request to perform an ecological services analysis,
subsection (i) of this MOU explains how the processes under subsections (g)
and (h)(1) of this MOU may be combined to achieve efficiencies.
(A)
Notification. After the TNRCC receives a person's written
request to perform an ecological services analysis, the TNRCC Trustee shall
provide timely notification to the other Trustees.
(i)
Method of notification. Notification by the TNRCC Trustee
shall be provided via electronic mail, or via another mutually agreed upon
method, to the primary and secondary contacts for each Trustee.
(ii)
Content of notification. The notification shall include
the affected property name, location, the fact that the person is requesting
to perform an ecological services analysis, and to the extent practical, the
type of habitat, receptors at risk, COCs, and other relevant information necessary
to evaluate the level of interest in the affected property. The TNRCC secondary
contact, the TNRCC ecological risk assessor, and the deadline constraints
of the TNRCC PM shall also be provided in the notification.
(iii)
Trustee response to notification. A written response
(electronic mail is acceptable) from each Trustee to the notification must
be provided to both the TNRCC Trustee contacts within five working days of
the notification. This response shall specifically state the Trustee's intent
as to whether or not the Trustee chooses to be consulted on the person's request
to perform an ecological services analysis. In the event that any Trustee
fails to respond within the five working days, the TNRCC will proceed as if
the Trustee chose not to participate in the consultation on the person's request
to perform an ecological services analysis. Subsection (j) of this MOU explains
how a Trustee may enter the process at a later date.
(B)
Documents and other information. After the timely receipt
of a Trustee's written intent to be consulted on the person's request to perform
an ecological services analysis, the TNRCC Trustee shall send copies of pertinent
documents to the primary contacts by regular mail (unless an alternate contact
or method is identified in advance). The TNRCC Trustee shall provide the primary
and secondary contacts with electronic mail notification that the documents
have been mailed.
(i)
The TNRCC shall provide documents in a timely manner to
ensure that the Trustees have the greatest time available for the review of
documents. The TNRCC Trustee shall coordinate the review of such documents
with the Trustees.
(ii)
Any participating Trustee may make a request for additional
information not less than three calendar days prior to the comment deadline,
but such request must be very specific as to the type of information requested.
(C)
Trustee comments. Unless otherwise mutually agreed, the
participating Trustees shall submit a unified set of written comments, if
any, on the person's request to perform an ecological services analysis to
the TNRCC ecological risk assessor. Trustee comments must be technically defensible
and relevant to the ecological services analysis process. Such Trustee responses
shall specifically include a statement of each participating Trustee's recommendation
for approval or disapproval of the person's request to perform an ecological
services analysis. If feasible, the Trustee responses shall also include any
response action recommendations for the affected property. If the person's
request to perform an ecological services analysis is not recommended for
approval by any Trustee, a reasoned explanation must be provided.
(i)
Deadline for comments and extensions. The Trustees shall
have 20 calendar days from the date of postmark on any documents received
to respond to the TNRCC primary and secondary contacts with comments. The
TNRCC may request that the Trustees respond within a shorter time. In the
event that a greater period of time is available, as determined by the TNRCC
PM, an extended deadline shall be provided to the Trustees. The Trustees may
request an extension of the comment period of up to seven calendar days by
writing (electronic mail is acceptable) to the TNRCC primary and secondary
contacts not less than three calendar days prior to the comment deadline.
The TNRCC may, in its sole discretion, grant or deny such requests for extensions.
The TNRCC will respond to all participating Trustees regarding such requests
within 24 hours after receipt. If the Trustees do not receive a response from
the TNRCC, the request for an extension is presumed to be denied. In the event
that any Trustee fails to provide comments within the prescribed deadline
(including any extension), the TNRCC will proceed as if the Trustee concurs
with the TNRCC's decision on the person's request to perform an ecological
services analysis.
(ii)
Reconciliation of comments. Prior to submitting comments
to the TNRCC, the participating Trustees shall first coordinate all comments
among themselves and provide a unified Trustee response through a mutually
agreed upon Trustee representative. In the event that the TNRCC ecological
risk assessor or TNRCC PM disagrees with any comments provided by the Trustees,
the TNRCC shall make diligent efforts to reach resolution between the parties.
The TNRCC ecological risk assessor shall be responsible for coordinating the
informal resolution of conflicting comments and shall schedule and coordinate
comment resolution meetings as appropriate. Each participating Trustee's primary
contact shall be copied on all ecological services analysis related correspondence
to the person and shall be provided copies of all ecological services analysis
related correspondence from the person to the TNRCC. In the event that differences
cannot be resolved, the Trustees maintain the right to independently provide
comments to the TNRCC PM and/or person requesting to conduct the ecological
services analysis, either as a unified group of two or more Trustees or as
a single Trustee.
(iii)
Recognition of comments. The TNRCC ecological risk assessor
shall evaluate the Trustee comments and the TNRCC PM shall incorporate them
into the TNRCC's response to the person, as appropriate. The TNRCC PM shall
inform the person in writing of the results of the TNRCC/Trustee consultation
and shall copy the Trustees on such correspondence. If any Trustee comments
are not incorporated, the Trustees shall be informed.
(D)
Coordination of meetings. After the timely receipt of a
Trustee's written intent to participate in the consultation on the person's
request to perform an ecological services analysis, the TNRCC shall, to the
extent practical, coordinate with the Trustees concerning their availability
at least ten calendar days in advance of meetings concerning the person's
request to perform an ecological services analysis. The TNRCC shall provide
the Trustees notification of these meetings via electronic mail or via another
mutually agreed upon method. The TNRCC and the Trustees shall work together
to ensure that all parties to this MOU which are participating in the ecological
services analysis process have input into that process and that reasonable
time lines are established and met to ensure that Trustee involvement in the
ecological services analysis does not impede progression of the ecological
services analysis. In the event that any participating Trustee is unable to
attend a meeting concerning the ecological services analysis, any absent Trustee
shall contact the other Trustees to obtain information regarding the meeting
and if necessary, shall contact the TNRCC ecological risk assessor within
a reasonable time after the meeting to be briefed on the issues discussed.
(2)
Ecological services analysis cooperation and approval process.
To enhance the coordination between the Trustees and the person and provide
efficiencies in the development of the ecological services analysis, the Trustees
will initiate a dialogue with the person in a timely manner to establish the
nature and scope of a cooperative ecological services analysis. The Trustees
will maintain open communications with the person and actively participate
in the entire ecological services analysis.
(A)
Trustee interaction. Unless otherwise specified herein,
cooperation between the Trustees in the development, review, and approval
of the ecological services analysis shall be consistent with the September
1995 Memorandum of Agreement between the Trustees. The Trustees shall strive
for consensus on all decisions related to the development and implementation
of the ecological services analysis. The Trustees shall coordinate their efforts
to ensure a single unified Trustee position is provided on all written comments/statements
to the person.
(B)
Trustee technical team (TTT). For each affected property
involving significant participation by two or more Trustees, the Trustees
shall create a TTT to which a representative shall be designated by each Trustee.
The Trustees agree to designate representatives to the TTT who, at a minimum,
have: 1) the level of knowledge and expertise needed to effectively guide
the ecological services analysis process; and 2) the level of authority necessary
to make decisions on issues presented to the TTT. The TTT shall be responsible
for, among other things, communications with the person, outlining the scope
and objectives of the ecological services analysis with the person, identifying
additional data needs, reviewing and approving ecological services analysis
reports and work plans, overseeing implementation of such plans, and certifying
the satisfactory completion of the compensatory ecological restoration, where
appropriate. The TTT may take any other actions as necessary to carry out
its duties under this MOU. The TNRCC Trustee shall act as Trustee team leader
unless otherwise agreed to by all Trustees. The Trustee team leader shall
be responsible for, among other things, the coordination and monitoring of
the progress of the development of technical comments, and implementation
of the ecological services analysis. The Trustee team leader shall also be
responsible for the scheduling of meetings of the TTT and notifying TTT members
of those meetings on a timely basis, preparing agendas for those meetings,
acting as a central contact point for the TTT, and establishing and maintaining
records and relevant documents related to the ecological services analysis.
The Trustee team leader may delegate any of his or her duties to another Trustee
with the concurrence of the TTT. The duties of the Trustee team leader do
not provide the Trustee team leader with any decision-making rights beyond
those normally held by each Trustee member of the TTT.
(i)
Approval and performance of the ecological services analysis.
The Trustees agree that the TTT shall act timely to either approve the ecological
services analysis or disapprove with comments which may include a recommendation
for additional work. This process shall be repeated each time the revised
ecological services analysis report is resubmitted until the ecological services
analysis report is approved, rejected, or is withdrawn. If the TTT cannot
reach agreement with the person or the person fails to perform the ecological
services analysis as proposed, the Trustees shall refer the affected property
back to the TNRCC for further decisions on remedial/corrective action. The
TNRCC PM shall be kept informed of all TTT activities, shall be copied on
all comments, and shall be invited to participate in all meetings with the
person concerning performance of the ecological services analysis.
(ii)
Approval and completion of the compensatory ecological
restoration. Upon reaching a final decision on all reports which involve compensatory
ecological restoration, the Trustees shall provide a written statement to
the person and the TNRCC PM of the Trustees' final decision. When the compensatory
ecological restoration is completed consistent with Trustee-approved criteria,
the TTT shall also provide a written statement to both the person and the
TNRCC PM certifying satisfactory completion of the compensatory ecological
restoration. If the compensatory ecological restoration is not completed to
the Trustees' satisfaction, the Trustees shall refer the affected property
back to the TNRCC for further decisions on remedial/corrective action.
(C)
Agreement. Where determined appropriate by the Trustees,
the Trustees shall pursue a written agreement with a person conducting an
ecological services analysis to govern Trustee coordination with that person.
The agreement will include issues such as the payment of Trustees' costs associated
with the ecological risk assessment and ecological services analysis processes,
public participation requirements, and a mechanism for addressing natural
resource damages liability, as applicable.
(D)
Dispute resolution. In the event of a dispute between any
of the parties concerning activities under subsection (h)(2) of this MOU,
the Trustee contacts shall attempt to resolve the dispute informally. If the
dispute is not resolved informally at the Trustee contact level, any Trustee
may invoke the following dispute resolution procedures by sending notice to
all primary Trustee contacts involved in the dispute. Such notice must include
a brief description of the disputed issue(s) and acceptable alternatives for
resolution. The Trustee contacts shall elevate the dispute to the appropriate
first tier agency representatives with successive elevations to second tier
agency representatives and third tier agency representatives as necessary.
(i)
Within four calendar days after receiving the notice invoking
dispute resolution, the Trustees involved in the dispute shall designate the
names and titles of their first, second, and third tier agency representatives
via electronic mail (or another mutually agreed upon method) to all primary
Trustee contacts involved in the dispute.
(ii)
Within 14 calendar days after receiving the notice invoking
dispute resolution, the first tier agency representatives involved in the
dispute shall discuss the disputed issue(s), assisted by other technical or
legal staff as appropriate. If the disputed issue(s) cannot be resolved by
the first tier agency representatives within the 14 calendar days after receiving
the notice, the disputed issue(s) shall be elevated by the first tier agency
representatives to the second tier agency representatives within five calendar
days after the expiration of the discussion period. The second tier agency
representatives shall have 14 calendar days within which to discuss and attempt
to resolve the disputed issue(s), assisted by other technical or legal staff
as appropriate. If the disputed issue(s) cannot be resolved by the second
tier agency representatives within the 14 calendar days after it is elevated,
the disputed issue(s) shall be elevated by the second tier agency representatives
to the third tier agency representatives within five calendar days after the
expiration of the discussion period. The third tier agency representatives
shall have 14 calendar days within which to discuss and attempt to resolve
the disputed issue(s), assisted by other technical or legal staff as appropriate.
If the third tier agency representatives cannot resolve the dispute, then
the dispute resolution process is terminated and each agency may proceed independently
according to its rights under state and federal law.
(iii)
Each Trustee may automatically obtain one 14-calendar-day
extension in this process by sending notice of such to all primary Trustee
contacts involved in a particular dispute. Additionally, the 14- calendar-day
period may be extended by mutual agreement of all Trustees involved in a particular
dispute.
(3)
Waiver of a Trustee's role in the ecological services analysis
process. If a Trustee has waived its involvement in the ecological services
analysis process outlined in this MOU (either specifically or through failure
to respond to notification within the required time frame) and has not reentered
the process pursuant to subsection (j) of this MOU, then the Trustee has waived
its role in the ecological services analysis process as set forth by TRRP
rules, specifically 30 TAC §350.33(a)(3)(B) and §350.77(f)(2).
(i)
Efficiencies. The parties recognize that due to the nature
of a person's submittal, efficiencies may be gained by combining the notification
and other processes under subsections (g) and (h)(1) of this MOU. Any such
combined notification shall be clearly identified as such and shall serve
to satisfy both of these subsections.
(j)
Trustee re-entry and early exit from process.
(1)
If a Trustee has waived its involvement in the ecological
risk assessment or ecological services analysis process (either specifically
or through failure to respond to notification within the required time frame),
the Trustee may resume its involvement in the process by advising the TNRCC
Trustee in writing (electronic mail
not
acceptable)
of its intent to participate in subsequent notification and coordination activities.
However, upon a deferred entry or a re-entry to the ecological risk assessment
or ecological services analysis processes, the Trustee involvement in the
TRRP process shall be prospective only and may not challenge previous decisions
regarding the ecological risk assessment and ecological services analysis.
Additionally, a Trustee may not challenge joint decisions made within the
TRRP process on the ecological risk assessment or ecological services analysis
during that Trustee's prior participation in the process.
(2)
Likewise, a Trustee participating in the ecological risk
assessment or ecological services analysis process may decline future involvement
by advising the TNRCC Trustee in writing (electronic mail
not
acceptable) of its intent not to participate in future notification
and coordination activities.
(3)
In the event that all the Trustees have waived involvement
in the ecological services analysis process (either specifically or through
failure to respond to notification within the required time frame), the TNRCC
Trustee shall provide oversight of and approval or disapproval with comments
on the compensatory ecological restoration and other activities associated
with the ecological services analysis.
(k)
Affected property activities. The Trustees shall promptly
notify the TNRCC PM prior to initiating any Trustee activities (e.g., site
visits) on an affected property and shall coordinate with the TNRCC PM on
any such activities which may affect the remedial/corrective action at an
affected property.
(l)
September 1995 Memorandum of Agreement. Any Trustee activities,
issues, or responsibilities not specifically addressed herein, shall be governed
by the September 1995 Memorandum of Agreement between the Trustees.
(m)
Reservation of rights. Except as specifically stated herein,
this MOU does not compromise or affect any legal rights of the parties, nor
does it narrow the scope of any party's authority or jurisdiction. This MOU
does not compromise or affect any rights of the parties with regard to natural
resource damage actions.
(n)
Third party challenges or appeals. The rights and responsibilities
contained in this MOU may not be the basis of any third party challenge or
appeal. Nothing in this MOU creates any rights or causes of action in persons
not parties to this MOU.
(o)
Appropriated funds. Nothing in this MOU shall be construed
as obligating the United States, the State of Texas, or any public agency,
their officers, agents or employees, to expend any funds in excess of appropriations
authorized by law.
(p)
Termination and amendment. This MOU shall terminate by
written agreement of all the parties. Any party may withdraw from this MOU
for any reason. In the event that any party withdraws from the MOU, it must
provide written notice to the other parties. In the event of such withdrawal,
the MOU remains in full force and effect for the remaining parties. This MOU
may also be amended by written agreement of all the parties. Any termination,
withdrawal, or amendment must be preceded by appropriate rulemaking.
(q)
Effective date and signatures. This MOU may be signed by
each of the parties in two or more counterparts which together shall constitute
one and the same document and shall become effective upon the date of last
signature.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on April 6, 2001.
TRD-200102003
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: April 26, 2001
Proposal publication date: October 13, 2000
For further information, please call: (512) 239-4712
The Texas Natural Resource Conservation Commission (commission) adopts
amendments to 30 TAC §303.2, Definitions; §303.21, Accounts--Amistad/Falcon
Reservoirs; §303.22, Allocations to Accounts; §303.41, Sale of Water
Rights; and §303.42, Amendments. The commission adopts these amendments
to correct the spelling of two of the reaches in the Rio Grande, to limit
the conveyance of water rights until all fees are paid, to prohibit the transfer
of water rights from the Upper Rio Grande to the Lower or Middle Rio Grande
below International Amistad Reservoir except for rights holders meeting certain
requirements meant to protect other water rights, and to adjust the minimum
operating reserve from 150,000 to 75,000 acre-feet. The amendments to §303.2
and §303.21 are adopted
with changes
to the proposed text as published in the January 26, 2001 issue of the
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
Water rights in the portions of the Rio Grande Basin and the Nueces--Rio
Grande Basin which are regulated by this chapter are allocated by a watermaster
employed by the commission. Water rights in these basins were allocated under
the provisions of a judicial adjudication of water rights.
State v. Hidalgo Co. Water Con. & Irr. Dist. No. Eighteen,
443
S.W.2d 728 (Tex.Civ.App.-Corpus Christi 1969) (
Hidalgo
). Water in portions of the Rio Grande River is shared with the United
States of Mexico (Mexico) under several treaties, including the Treaty of
1944 which most specifically addresses the issue of water allocation. The
International Boundary and Water Commission (IBWC) oversees the allocations
of water between the United States (U.S.) and Mexico, and notifies the watermaster
of the amounts of water available for allocation to water rights holders under
U.S. jurisdiction.
Water for the allocated water rights in these basins is stored in two international
reservoirs, Amistad and Falcon. The U.S. portion of the water is allocated
under a schedule established in
Hidalgo
. In
this case, the court created several classes of water rights holders under
the jurisdiction of the U.S. which have since been modified to Domestic, Municipal,
and Industrial (DMI) water users, and Class A and Class B water users. The
DMI users have priority rights over Class A and Class B water users. Rules
in Chapter 303 apply only to water under U.S. jurisdiction and are not applicable
to the Mexican portion of water in the International Amistad and Falcon Reservoirs.
This chapter establishes the levels of the DMI reserve and the operating
reserve. The DMI reserve is the minimum amount of water under U.S. jurisdiction
which must be stored in the reservoirs to ensure that DMI users have adequate
water. When the court determined the allocation of water rights in these basins
in the
Hidalgo
adjudication, the court established
a DMI reserve of 60,000 acre-feet. The commission in July 1986 increased the
DMI reserve to its current reserve of 225,000 acre-feet which remains unchanged
with these amendments. The operating reserve is a minimum volume of acre-feet
of water which is required to be maintained in the reservoirs to allow for
losses of water from evaporation, seepage, and conveyance; to allow for emergencies;
and for adjustments of storage accounts. The operating reserve is being decreased
in these rules to 75,000 acre-feet.
The remaining water under U.S. jurisdiction in the reservoirs is allocated
to water rights holders where it is used for beneficial uses or maintained
in their storage accounts. If the unallocated water in the reservoirs drops
to the minimum operating reserve, the watermaster adjusts allocations for
the Class A and Class B water users by deducting water from their storage
account balances, called negative allocations, and adding it to the operating
reserve. This reallocation ensures that sufficient water is available for
losses due to evaporation, seepage, and conveyance; to allow for emergencies;
and for adjustments of storage accounts.
In 1986, the commission promulgated rules setting the operating reserve
between 275,000 and 380,000 acre-feet, and under drought conditions, setting
the operating reserve at 150,000 acre-feet. Because of the existence of severe
to extreme drought conditions in the Middle and Lower Rio Grande Basins over
the past six years, the commission determined there was a need to assess the
operational requirements of this system. The adopted rule changes are based
on historic data, and for the first time, models of actual reservoir operations
over the past six years. Staff reviewed historic data showing actual uses
of water in the Rio Grande and the Nueces--Rio Grande Basins from 1988 - 1998,
system inflows reported by the IBWC, and other hydrologic data for the same
period. Evaluation of this data revealed several important facts which were
considered. The greatest amount of evaporative losses which would have occurred
in this system was during May 1998, when the total losses from evaporation,
conveyance, channel operation, and emergencies would have reduced the operating
reserve to 34,471 acre-feet, well above the zero acre-feet in the operating
reserve which will trigger the implementation of negative allocation in these
adopted amendments.
Historic data also shows that monthly evaporative losses average 39,623
acre-feet. The lowest monthly inflow into the reservoirs averaged over five
years of drought is 66,000 acre-feet. Because the average monthly evaporative
loss is approximately 40,000 acre-feet, and the lowest average monthly inflow
is 66,000 acre-feet, the commission anticipates that the inflow of any one
month will exceed the evaporative loss for that month. A minimum operating
reserve of 75,000 acre-feet should exceed the difference between the evaporative
loss and restorative inflow of any one month.
Based on this data, the commission determined that the operating reserve
may be safely changed to 75,000 acre-feet with a trigger for negative allocations
at zero acre-feet, while still protecting DMI water rights. With these adopted
amendments, the commission establishes a restoration operating reserve of
48,000 acre-feet, which is anticipated to provide sufficient water reserves
for any single month's evaporative losses. The commission also anticipates
that monthly inflows will then reestablish the operating reserve at 75,000
acre-feet within one month, since the average monthly inflow has always exceeded
the average monthly evaporative loss.
Therefore, the commission adopts amendments to Chapter 303 lowering the
existing operating reserve to 75,000 acre-feet. This modification will relieve
some of the economic effects of the drought on Class A and Class B water rights
holders in these basins. Additionally, the commission adopts amendments lowering
the trigger for negative allocations to zero acre-feet in the operating reserve
from 150,000 acre-feet and creating a minimum restoration volume of 48,000
acre-feet. A negative allocation occurs when the watermaster subtracts allocations
from storage accounts to ensure that sufficient water is available for losses
due to evaporation, conveyance, seepage, and emergencies. The commission further
adopts amendments requiring the operating reserve to be reestablished to 75,000
acre-feet by inflows before the watermaster can make any allocations to Class
A and Class B accounts.
SECTION BY SECTION DISCUSSION
Section 303.2 is amended to delete the phrase "unless the context clearly
indicates otherwise," to eliminate ambiguity.
Section 303.2(11)(C) is amended to correct the spelling of "Progreso" in
Progreso Bridge.
Section 303.2(11)(D) is amended to correct the spelling of "Progreso" in
Progreso Bridge.
Section 303.2(12) is amended to make grammatical corrections.
Section 303.2(22) is amended to add subparagraphs (A) and (B), which define
Class A and Class B water rights. Class A and B water rights are rights in
the Lower and Middle Rio Grande River held under certificates of adjudication
that were granted either in the adjudication of the Lower and Middle Rio Grande
River in
State v. Hidalgo Co. Water Con. & I.
Dist. No. Eighteen
, 443 S.W.2d 728 (Tex. Civ. App.-Corpus Christi 1969,
writ ref'd n.r.e.), or issued by the commission. The majority of these water
rights are irrigation rights, but in recent years some have been converted
to other uses. These definitions are being added to define the terms "Class
A" and "Class B" water rights, which are currently used in the rules but not
defined. Paragraph (22)(A) is amended to make a grammatical correction.
Section 303.21(b)(2) is adopted to establish an operating reserve of 75,000
acre-feet. This is a change from the current reserve which fluctuates between
380,000 and 275,000 acre-feet, or under drought conditions, as low as 150,000
acre-feet. This change is based in part on recommendations from the Region
M Water Planning Group and the Rio Grande Watermaster Advisory Committee to
provide additional water to Class A and Class B water rights holders. That
recommendation is also based on a study of previous droughts, system inflows,
and analyses of the water levels in the system. According to historical data
during drought conditions, and modeling of water use in this basin, this change
should not affect DMI users. A portion of §303.21(c) is deleted from
the rule. This language describes the calculation process for the fluctuating
operating reserve. This portion of the rule will no longer be necessary, because
with these amendments, the new operating reserve will be established as 75,000
acre-feet.
Section 303.22(a) is amended to clarify that dead storage is water behind
the dams that cannot be released due to hydrologic restrictions.
Sections 303.22(a)(3) and (4) (relating to Allocations to Accounts) describe
how the water for the accounts described in §303.21(b) (relating to Operating
Reserve), will be calculated and allocated. Section 303.22(a)(3) is changed
to reflect the change in the operating reserve. Paragraph (4) changes irrigation
and mining to Class A and Class B accounts. This paragraph is also amended
to clarify that the remaining amount of water will be allocated after the
deduction of the operating reserve.
Section 303.22(b) clarifies that the remaining water available for allotment
after the deductions under §331.22(a), shall be divided into Class A
and Class B water rights, which are defined. The adopted amendment deletes
the phrase "for irrigation and mining uses" which is unnecessary because the
commission has added definitions for Class A and Class B water rights holders.
Section 303.22(f)(2) is adopted as new language. The rule states that the
watermaster may not allocate water to Class A and Class B water rights holders
until the operating reserve is 75,000 acre-feet, which is the new operating
reserve amount adopted with this rulemaking.
Section 303.22(f)(3) is renumbered and adopted to modify the amount of
the operating reserve. Under this chapter, the commission sets an operating
reserve and a DMI reserve for the minimum amount of water which must be stored
in the reservoirs to ensure that DMI users have adequate water. The operating
reserve is a minimum volume of acre-feet of water which is required to be
maintained in the reservoir to allow for losses of water from evaporation,
seepage, and conveyance; to allow for emergencies; and for adjustments of
storage accounts. With the adoption of these amendments, the new operating
reserve will be 75,000 acre-feet. The trigger for negative allocations will
be zero acre-feet in the operating reserve. If the operating reserve is reduced
to zero acre-feet, the watermaster adjusts, through negative allocations,
the Class A and Class B water accounts to restore the operating reserve to
48,000 acre-feet. When the operating reserve has been restored to 48,000 acre-feet,
negative allocations will cease. Inflows must restore the operating reserve
to 75,000 acre-feet before any positive allocations may be made. Only Class
A and Class B accounts are subject to negative allocations.
Section 303.41 is adopted to clarify that all fees must be paid prior to
the sale of water rights. This change is necessary because payment of fees
before use is a statutory requirement in Texas Water Code (TWC), §11.329(e).
Section 303.42 has been rearranged for clarity. To create a logical flow,
new paragraphs (3) and (4) have been created, and some language has been moved
from the existing §303.42 to paragraph (1) and to new paragraph (3) of
this section. Section 303.42 currently prohibits the transfer of the water
rights from the point of diversion, or place of use of water rights from the
Lower and Middle Rio Grande Basins to above International Amistad Reservoir.
New language is adopted in §303.42(4) to define the conditions for an
inverse sale (from above International Amistad Reservoir to the Lower and
Middle Rio Grande Basins). These transfers would be prohibited unless the
transfer request uses a conversion factor approved by the commission which
would not impair other water rights or water available for allocation. This
change is necessary to clarify that such a transfer is not allowed without
an approved conversion factor and a showing of no impairment of other water
rights because water rights in the Lower and Middle Rio Grande Basins are
administered under a totally different system than exists above International
Amistad Reservoir. These rights can only be transferred in a manner that ensures
protection of other water rights.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the rulemaking in light of the regulatory analysis
requirements of Texas Government Code, §2001.0225 and determined that
a full regulatory impact analysis (RIA) is not required for the amendments
currently adopted to Chapter 303.
The commission's determination is based upon the premise that an RIA is
required only for a rule amendment meeting the definition of "major environmental
rule" in Texas Government Code, §2001.0225(g)(3). Texas Government Code, §2001.0225(g)(3)
states that for a rule change to qualify under that definition, its specific
intent would have to be "to protect the environment or reduce risks to human
health from environmental exposure." Additionally, the same subsection requires
that, once either or both of those two intentions exist, the possibility must
exist that the amended rule "may adversely affect in a material way the economy,
a sector of the economy, productivity, competition, jobs, the environment,
or the public health and safety of the state or a sector of the state."
Generally speaking, the rule changes impact Chapter 303 in three ways by:
1) reducing the Rio Grande system's arbitrarily determined minimum operating
reserve, the impact of which is to reduce waste in the reservoir system and
to increase the amount of water available for Class A and Class B water rights
holders in times of drought; 2) providing procedures for the maintenance and
replenishment of an appropriate operating reserve once reservoir levels fall
below a specified minimum amount of acre-feet; and 3) clarifying the limits
on the ability of the holders of Rio Grande water rights upstream of International
Amistad Reservoir to transfer water through the system, or to convert such
water rights for use and withdrawal from the reservoirs or downstream from
International Amistad Reservoir.
None of these rule amendments are specifically intended to protect the
environment or reduce risks to human health from environmental exposure; therefore,
none of the amendments meet the definition of "major environmental rule" in
Texas Government Code, §2001.0225, and further analysis of impact is
unwarranted.
TAKINGS IMPACT ASSESSMENT
The commission evaluated these rules and performed an assessment of whether
Texas Government Code, Chapter 2007 is applicable. The commission's assessment
indicates that Texas Government Code, Chapter 2007 does not apply to these
adopted rules because this is a modification of a program or regulation that
does not affect a recognized interest in private real property, (TWC, §2007.003(b)(5)),
and because the government action being taken does not affect an owner's real
property in a manner that restricts or limits the owner's right to the property
that would otherwise exist in the absence of the action (TWC, §2007.002(5)(B)(i)).
Among other things, Texas Government Code, §2007.043, Takings Impact
Assessment requires: 1) a description of the specific purpose of the adoption;
an identification of how the action substantially advances its stated purpose;
a description of the burdens imposed on private real property, if any, "...resulting
from the proposed use of private real property..." (Texas Government Code, §2007.043(b(1)(B));
and 2) a determination of whether the action will constitute a taking.
For the purpose of this assessment, the actions being taken constitute
the following: changes to required procedures and volumes related to the Rio
Grande system's minimum operating reserve; and clarification of the conversion
of water rights upstream from the International Amistad Reservoir and the
transfer of water rights by owners with unpaid fees. The purpose of the operating
reserve is to reduce waste in the reservoir system and to increase the amount
of water available for Class A and Class B water rights holders in times of
drought. The purpose of the clarification of water rights is to bring consistency
to the rules' application to water rights in the Lower, Middle, and Upper
Rio Grande Basins.
With regard to the changes in the operating reserve volume and procedures,
these changes do not affect any private real property in any manner that restricts
or limits any owner's right to such property that would exist in the absence
of these changes. If anything, the reduction of the operating reserve will
result in an increase in the likelihood that private rights will be fully
satisfied. No private property right exists to water contained in the operating
reserve; it cannot be allocated for private use. Thus, these changes do not
constitute a taking under Texas Government Code, §2007.002(5)(B)(i).
Because water rights are included in the definition of "private real property"
in Texas Government Code, §2007.002(4), the clarification of the right
to convert or transfer those water rights requires a more detailed analysis.
The adopted rule amendments clarify the conditions under which water from
upstream water rights holders could be sent to downstream users. The watermaster
has not allowed such a transfer in the past, nor does the watermaster intend
to allow such a transfer in the future absent an approved conversion factor
or a showing that existing water rights below International Amistad Reservoir
will not be impaired because of the uniqueness of the court-adjudicated system
of allocation. Likewise, a water rights owner could currently believe that
his or her rights may be conveyed prior to all delinquent fees and penalties
being paid. Such a belief is contrary to TWC, §11.329(e). Therefore,
these amendments do not affect an owner's real property in a manner which
restricts or limits the owner's right to the property that would otherwise
exist in the absence of the rulemaking.
The TWC, §11.122(a), Amendments to Water Rights Required, requires
that holders of permits, certified filings, and certificates of adjudication
"shall obtain from the commission, authority to change the place of use, purpose
of use, point of diversion, rate of diversion, acreage to be irrigated, or
otherwise alter a water right." The Austin Court of Civil Appeals held that
these limitations on water rights do not constitute a taking.
Clark v. Briscoe Irr. Co.,
200 S.W.2d 674 (Tex.Civ.App. Austin 1947).
Thus, a holder of water rights in the upper regions of the Rio Grande has
a defined right to divert a specific volume of water from a specific diversion
point and use that water for a specific authorized purpose. However, the holder
In summary, the rule changes do not constitute a taking. The changes related
to the operating reserve pertain to water owned by the State of Texas. The
clarification related to Upper Rio Grande water rights is not a taking because
there is no absolute right to transfer this water without the express approval
of both the Rio Grande Watermaster and the commission. No mechanism currently
exists for calculating either the reduction of water volume from upstream
through the administratively-closed and fully-allocated system or for measuring
the extent of impairment of existing allocated water rights.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the rulemaking and found that the rules are neither
identified in Coastal Coordination Act Implementation Rules, 31 TAC, §505.11(b)(2),
relating to Actions and Rules Subject to the Texas Coastal Management Program
(CMP), nor will they affect any action or authorization identified in Coastal
Coordination Act Implementation Rules, 31 TAC, §505.11(a)(6). Therefore,
the adopted rule amendments are not subject to the CMP.
HEARING AND COMMENTERS
A public hearing on this proposal was held in Harlingen on February 23,
2001, at 2:00 p.m. at the commission's regional office located at 1804 West
Jefferson Avenue. A Spanish translator was provided by the commission at the
hearing. Five commenters provided oral testimony: Wayne Halbert representing
Harlingen Irrigation District, Rio Grande Watermaster Advisory Committee,
Lower Rio Grande Valley Water District Managers Association, and Texas Irrigation
Council (Halbert); Gordon R. Hill representing Bayview Irrigation District
Number 11 (Hill); Charles Browning representing DMI users, the Region M Water
Planning Group, and North Alamo Water Service Company (Browning); Max Phillips
representing Delta Lake Irrigation District (Phillips); and Ray Prewett representing
DMI users and Texas Citrus Mutual (Prewett).
The public comment period closed at 5:00 p.m., February 26, 2001. Two commenters
provided written comments: Hidalgo and Cameron Counties Irrigation District
No. 9 (I.D. No. 9), and the Rio Grande Watermaster Advisory Committee (WAC).
RESPONSE TO COMMENTS
All five commenters who presented oral testimony supported the rule changes
and urged the commission to adopt the rules as proposed. Both written commenters
supported the proposed amendments to the rules. No commenters expressed opposition
to the proposed amendments.
The commission appreciates the support for these rule amendments.
The WAC stated that the executive director of the commission established
the Rio Grande Watermaster Committee (Committee) which is composed of 15 members
who are water rights holders or representatives of water rights holders representing
the different types of water rights throughout the entire Rio Grande Watermaster
jurisdiction. The WAC also stated that the Committee has been actively involved
in the planning, study, and review of the proposed amendments. The members
of the WAC recommended that the commission adopt the proposed amendments to
Chapter 303 as presented at the public hearing on February 23, 2001, at the
Rio Grande Watermaster Office, Harlingen, Texas.
The commission agrees with this comment and appreciates the support of
the WAC for these rule amendments.
Concerning §303.21(b)(2), I.D. No. 9 stated that they strongly support
the proposed rule change on the amount of water to be held in the operational
reserve pool. I.D. No. 9 also stated that historical data conclusively shows
that the present operational reserves have been too high, and this rule change
will allow excess water to be available for beneficial uses.
The commission agrees with this comment and appreciates the support of
I.D. No. 9 for these rule amendments.
Subchapter A. INTRODUCTORY PROVISIONS
30 TAC §303.2
STATUTORY AUTHORITY
Chapter 303 applies to water rights in portions of the Rio Grande Basin
and portions of the Nueces--Rio Grande Coastal Basin. Chapter 303 establishes
the regulatory functions of the watermaster in these basins. The amendment
is adopted under TWC, §5.103, which provides the commission authority
to adopt any rules necessary to carry out its powers and duties under this
code and other laws of this state; §5.105, which authorizes the commission
to establish and approve all general policy of the commission by rule; and §§11.325
- 11.458, which establish the duties of the watermaster. For additional legal
authority, refer to
State v. Hidalgo Co. Water Con. &
Irr. Dist. No. Eighteen,
443 S.W.2d 728 (Tex.Civ.App.-Corpus Christi
1969).
§303.2.Definitions.
The following words and terms when used in this chapter shall have
the following meanings.
(1)
Account--The record of municipal and operating reserves;
or the record of an allottee's water in storage in the Amistad-Falcon system,
and the diversion of such water.
(2)
Accounting period--From the last Saturday of a month at
midnight to the last Saturday of the following month at midnight.
(3)
Agent--A person designated by a water right holder to have
the authority to request certification to divert, make diversions, and/or
pay assessment charges.
(4)
Allocation--The distribution of the United States' share
of water stored in the Amistad-Falcon system to the various accounts.
(5)
Allottee--A water right holder who has an account and who
has the right to call on releases of water from the associated accounts.
(6)
Assessment--The authorized charges against water rights
holders levied by the commission to finance watermaster operations.
(7)
Certification--Written authorization issued by the watermaster
to divert water from the Rio Grande or its tributaries for a specific period
of time.
(8)
Diversion facility--Any pump, canal system, or other device.
(9)
Diverter--A water right holder, an agent, or an exempt
domestic and livestock user who takes water from the Rio Grande or its tributaries.
(10)
Hydroelectric rights--A water right that authorizes the
use of available flow for hydroelectric power generation. No account will
be established for the holders of hydroelectric rights.
(11)
Lower Rio Grande Valley--That portion of the Rio Grande
Basin, including tributaries, in Texas from Falcon Dam downstream to the Gulf
of Mexico, including that portion of the Nueces-Rio Grande Coastal Basin located
in Starr, Hidalgo, Willacy, and Cameron Counties, Texas, whose source of water
is the Rio Grande.
(A)
Reach I is that portion of the Lower Rio Grande between
Falcon Dam and the International Boundary and Water Commission streamflow
gage at Fort Ringgold.
(B)
Reach II is that portion of the Lower Rio Grande between
the International Boundary and Water Commission streamflow gage at Fort Ringgold
and Anzalduas Dam.
(C)
Reach III is that portion of the Lower Rio Grande between
Anzalduas Dam and the Progreso Bridge.
(D)
Reach IV is that portion of the Lower Rio Grande between
the Progreso Bridge and the International Boundary and Water Commission streamflow
gage near San Benito.
(E)
Reach V is that portion of the Lower Rio Grande between
the International Boundary and Water Commission streamflow gage near San Benito
and the Cameron County Water Control and Improvement District 6 river pumps.
(F)
Reach VI is that portion of the Lower Rio Grande between
Cameron County Water Control and Improvement District 6 river pumps and the
International Boundary Commission streamflow gage near Brownsville.
(G)
Reach VII is that portion of the Lower Rio Grande between
the International Boundary and Water Commission streamflow gage near Brownsville
and the Gulf of Mexico.
(12)
Measuring device--A device designed to indicate flow rate
and amount, with instantaneous readout in cubic feet per second (cfs) or gallons
per minute (gpm) and a flow totalizer with a readout in acre-feet or gallons,
to be accurate within 5.0%, said device to be approved by the watermaster.
Any device operated and maintained by the International Boundary and Water
Commission is considered satisfactory. On tributaries, any device approved
by the watermaster is sufficient.
(13)
Middle Rio Grande--That portion of the Rio Grande Basin
including tributaries, in Texas upstream from Falcon Dam to Amistad Dam.
(A)
Reach I is that portion of the Middle Rio Grande between
Amistad Dam and the International Bridge at Del Rio.
(B)
Reach II is that portion of the Middle Rio Grande between
the International Bridge at Del Rio and the International Bridge at Eagle
Pass.
(C)
Reach III is that portion of the Middle Rio Grande between
the International Bridge at Eagle Pass and the International Boundary and
Water Commission streamflow gaging station at San Antonio Crossing.
(D)
Reach IV is that portion of the Middle Rio Grande between
the International Boundary and Water Commission streamflow gaging station
at San Antonio Crossing and the International Bridge at Laredo.
(E)
Reach V is that portion of the Middle Rio Grande between
the International Bridge at Laredo and San Ygnacio.
(F)
Reach VI is that portion of the Middle Rio Grande between
San Ygnacio and Falcon Dam.
(14)
No charge water--Storm and flood water in the Rio Grande
downstream from Amistad Dam that is designated by the watermaster, in accordance
with the Texas Water Code, §11.0871, and with Texas Water Commission
order dated August 4, 1981, and any subsequent orders, as being available
for diversion and use by water rights holders.
(15)
Nondiverter--An agent or a water right holder who has
water delivered to him by a diverter.
(16)
Proration period--The period determined on a monthly basis,
when the United States' share of water in the Amistad-Falcon system is less
than 50% of the total United States conservation storage.
(17)
Pump operation report--That part of the certification
which the diverter returns to the watermaster after recording the amount of
water actually diverted during the certification period.
(18)
Travel time--The time for released water to travel downstream
to designated reaches on the Middle or Lower Rio Grande.
(19)
Tributary diverter--A water right holder, an agent, or
an exempt domestic and livestock user on the Rio Grande below Fort Quitman
and above Amistad Reservoir or on a tributary of the Rio Grande with no right
to call for releases from Amistad or Falcon Reservoirs.
(20)
Upper Rio Grande--That portion of the Rio Grande Basin,
including tributaries, in Texas from Amistad dam upstream to Fort Quitman,
excluding the Pecos and Devils watersheds.
(21)
Usable balance--The quantity of water in acre-feet an
allottee has available for use, and is based upon whichever is less:
(A)
the sum of allottee's annual authorized amount of water
minus actual use for the year to date, plus the allottee's contract water
balance; or
(B)
the amount in the allottee's storage account.
(22)
Water right--A right acquired under the laws of the state
to impound, divert, and/or use water.
(A)
Class A water right--A water right in the Lower or Middle
Rio Grande Basin designated as a Class A right and held under a certificate
of adjudication, granted in the Adjudication of the Lower and Middle Rio Grande
River in
State v. Hidalgo Co. Water Con. & Irr.
Dist. No. Eighteen
, 443 S.W.2d 728 (Tex. Civ. App.-Corpus Christi 1969,
writ ref'd n.r.e.), or issued by the commission. If converted to a domestic,
municipal, and industrial (DMI) water right, a Class A water right is converted
to 50% of the existing water right.
(B)
Class B water right--A water right in the Lower or Middle
Rio Grande Basin designated as a Class B right and held under a certificate
of adjudication, granted in the Adjudication of the Lower and Middle Rio Grande
River in
State v. Hidalgo Co. Water Con. & Irr.
Dist. No. Eighteen
, 443 S.W.2d 728 (Tex. Civ. App.-Corpus Christi 1969,writ
ref'd n.r.e.), or issued by the commission. If converted to a DMI water right,
a Class B water right is converted to 40% of the existing water right.
(23)
Water right holder--One who owns a water right.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on April 6, 2001.
TRD-200102000
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: April 26, 2001
Proposal publication date: January 21, 2001
For further information, please call: (512) 239-5017
Chapter 303.
OPERATION OF THE RIO GRANDE
Subchapter C. ALLOCATION AND DISTRIBUTION OF WATERS