The Edwards Aquifer Authority ("Authority") adopts amendments to §§711.68, 711.100, 711.102, 711.104, 711.112, 711.134, 711.176, 711.302, 711.338, 711.402 and 711.406 of its rules in order to correct errors in the text of those rules as published in the Texas Register and codified in the Texas Administrative Code. The sections are adopted without changes to the proposed text as published in the May 18, 2001, issue of the Texas Register (26 TexReg 3606).

BRIEF EXPLANATION OF EACH AMENDMENT

On October 10 and 11, 2000, and on December 18, 2000, the Authority issued final orders adopting its Chapter 711 rules (relating to Groundwater Withdrawal Permits). Those final orders were published in the November 3, 2000, and the January 12, 2001, issues of the Texas Register (25 TexReg 10996-11076) (2000) (adopting Subchapters A, B, E, F, G, and I of Chapter 711), (26 TexReg 633-688) (2001) (adopting Subchapters C, D, H, K, L, and M of Chapter 711).

Sixteen inconsistencies appear in these rules as published in the Texas Register and as codified in Title 31, Texas Administrative Code. By the term "inconsistencies," the Authority refers to instances in which the language that was published in the Texas Register and codified in the Texas Administrative Code does not reflect the language adopted by the Board of Directors of the Authority ("Board"), as reflected in the Board minutes on file at the Authority's offices. The amendments that are the subject of this notice are proposed to correct these inconsistencies. As a result of these amendments, the Authority's rules, as codified in the Texas Administrative Code, will reflect the rules that were approved by the Board. The following is a brief description and explanation of each amendment.

Section 711.68 of the Authority's rules specifies the uses to which water withdrawn from a well during the interim authorization period may be placed. Section 711.68, as published in the Texas Register and codified in the Texas Administrative Code, states that "during the interim authorization period, a person owning a well qualifying for interim authorization status may beneficially use groundwater withdrawn from the aquifer through the well only for the purpose(s) of use designated in the person's declaration and falling within one or more of the following categories...." The version of section 711.68 adopted by the Board states that "during the interim authorization period, a person owning a well qualifying for interim authorization status may beneficially use groundwater withdrawn from the aquifer through the well for the purpose(s) of use designated in the person's declaration and falling within one or more of the following categories...." The word "only" was mistakenly published in the Texas Register and codified in the Texas Administrative Code. The Authority adopts to amend section 711.68 to correct this error.

Section 711.100 of the Authority's rules identifies those who may apply for an additional regular permit, states when such an application may be made, describes the attributes of such a permit, and lists the elements that an applicant must prove in order to be granted such a permit. Subparagraph (B) of subsection (j) of that section, as published in the Texas Register and codified in the Texas Administrative Code, mistakenly contains the phrase "of this chapter." The version of subparagraph (B) adopted by the Board does not include that phrase. The Authority adopts to amend section 711.100 to correct this error.

Section 711.102 of the Authority's rules identifies those who may apply for a term permit, states when such an application may be made, describes the attributes of that type of permit, and lists the elements that an applicant must prove in order to be granted such a permit. Paragraph (14) of subsection (f) of that section, as published in the Texas Register and codified in the Texas Administrative Code, mistakenly includes the plural term "systems" instead of the singular "system." The version of paragraph (14) adopted by the Board uses the singular. The Authority adopts to amend section 711.102 to correct this error.

Section 711.104 of the Authority's rules identifies those who may apply for an emergency permit, describes the attributes of that type of permit, and lists the elements that an applicant must prove in order to be granted such a permit. Paragraph (7) of subsection (e) of that section, as published in the Texas Register and codified in the Texas Administrative Code, mistakenly includes the adjective "beneficial" instead of the adverb "beneficially." The version of paragraph (7) adopted by the Board uses the adverb "beneficially." The Authority adopts to amend section 711.104 to correct this error.

Section 711.112 of the Authority's rules identifies the contents of well construction permits issued by the Authority. Subsection (13) of that section, as published in the Texas Register and codified in the Texas Administrative Code, mistakenly contains the phrase "of the chapter" instead of the phrase "of this chapter." The version of paragraph (13) adopted by the Board includes the phrase "of this chapter." The Authority adopts to amend section 711.112 to correct this error.

Section 711.134 of the Authority's rules lists the conditions to which all groundwater withdrawal permits issued by the Authority are subject. Paragraph (14) of that section, as published in the Texas Register and codified in the Texas Administrative Code, mistakenly includes the word "and" at the end of that subsection. The version of paragraph (14) adopted by the Board does not include the word "and" at the end of that subsection. The Authority adopts to amend section 711.134 to correct this error.

Section 711.176 of the Authority's rules establishes and explains how groundwater withdrawal amounts in initial regular permits will be determined. Subsection (b) of that section sets forth the method of calculating a groundwater withdrawal amount under six different scenarios. Subsection (b) of that section, as published in the Texas Register and codified in the Texas Administrative Code, mistakenly includes the plural word "amounts" instead of the singular "amount." The version of subsection (b) adopted by the Board uses the singular. The Authority adopts to amend section 711.176 to correct this error.

Subsection (c) of section 711.176 explains that initial regular permits may be issued with provisional groundwater withdrawal amounts. Subsection (c), as published in the Texas Register and codified in the Texas Administrative Code, contains several punctuation errors. Specifically, it does not include a period after the phase "groundwater withdrawal amount" in the first sentence. Also, it includes a period after the parenthetical "(relating to Proportional Adjustment of Initial Regular Permits)" and begins a new sentence immediately following that parenthetical. The version of subsection (c) adopted by the Board includes a period after the phase "groundwater withdrawal amount" in the first sentence and a comma (instead of a period) after the parenthetical. The Authority adopts to amend section 711.176 to correct these errors as well.

Section 711.302 of the Authority's rules concerns the authority of the Board to issue an order increasing the cap on permitted withdrawals and lists several findings that the Board must make in order to allow for such action. Subsection (1) of that section lists one of those findings and, as published in the Texas Register and codified in the Texas Administrative Code, refers to "Comal Springs and San Marcos Springs." The version of section 711.302 adopted by the Board refers to "Comal Springs or San Marcos Springs." The Authority adopts to section 711.302 to correct this error.

Section 711.338 of the Authority's rules concerns the transfer of "base irrigation groundwater." Subsection (a) of that section, as published in the Texas Register and codified in the Texas Administrative Code, mistakenly begins "except as provided in subsection (b), . . . ." The version of subsection (a) adopted by the Board begins "except as provided in subsections (b) and (c), . . . ." The Authority adopts to amend section 711.338 to correct this error.

Also, the version of section 711.338 adopted by the Board includes subsection (c), which states as follows:

"A permittee may temporarily transfer by a lease with a term not in excess of ten years the place of use for all or part of an initial regular permit issued for base irrigation groundwater to another place of use not owned by the permittee. If the permittee subsequently transfers the ownership of the place of use of the initial regular permit to a third party, then section 711.328(c) of this chapter (relating to Transfer of Ownership) would then control, and the base irrigation groundwater shall pass with the transfer of ownership of the irrigated lands identified as the place of use in the initial regular permit. However, the third party to which the permittee transferred the ownership of the place of use of the initial regular permit shall take title of the irrigated lands subject to the lease during its term."

Subsection (c) was omitted in its entirety from the version of section 711.338 that was published in the Texas Register and codified in the Texas Administrative Code. The Authority adopts to amend section 711.338 to correct this error.

Also, the Authority's response to public comment bearing on the addition of subsection (c) to section 711.338 was omitted from the Texas Register as well. In that response, the Authority noted that the basic points of section 1.34(c) of the Act is that groundwater should be available for irrigation purposes within the jurisdiction of the Authority and that Base Irrigation Groundwater (BIG) should remain appurtenant to the place of use identified in the original initial regular permits (IRPs) issued by the Authority. However, and also as explained in that response, the purpose of the appurtenancy rule would not be served by prohibiting transfers of a well owner's BIG to another place of use not owned by the owner of the BIG if the transfer is temporary and for a sufficiently short period of time such as not to constitute a transfer of the BIG to another place of use in violation of the appurtenancy rule and so long as the groundwater will continue to be used for irrigation purposes. In this context, if the owner of the place of use identified in the IRP to which the BIG is appurtenant sought to transfer the ownership of the place of use, then the appurtenancy rule would control over the transfer of the BIG to another place of use not owned by the transferor and the transferee would acquire the BIG due to the operation of section 1.34(c) of the Act, although such acquisition would be subject to the term of the lease by which the temporary transfer of the place of use (but not the purpose of use) was effectuated. In this context, the BIG would continue to be used for irrigation purposes so long as the irrigated lands to which the BIG is appurtenant continue to be suitable for irrigation and the BIG would not be permanently severed from the irrigated lands constituting the original place of use in the original IRP in violation of the appurtenancy rule.

Section 711.402 of the Authority's rules concerns the duty of well owners to install and operate meters on their wells. Subsection (d) of that section, as published in the Texas Register and codified in the Texas Administrative Code, concerns the accuracy of such a meter and states that it "shall ensure an error of not greater than ± five percent." The version of subsection (d) adopted by the Board states that such a meter "shall ensure an error of not greater than ± five percent." The Authority adopts to amend section 711.402 to correct this error.

Section 711.406 of the Authority's rules concerns approval for the installation of meters. Subsections (a) and (b) of this section, as published in the Texas Register and codified in the Texas Administrative Code, include several errors in punctuation. Specifically, as published in the Texas Register and codified in the Texas Administrative Code, these subsections mistakenly include several commas and omit one comma. Also, paragraph (1) of subsection (b) of that section, as published in the Texas Register and codified in the Texas Administrative Code, states that the general manager shall approve an application to install or modify a meter if the application shows that "the meter . . . has a certified error of not greater than ± five percent." The version of paragraph (1) of subsection (b) adopted by the Board refers to the requirement that "the meter . . . has a certified error of not greater than ± five percent." The Authority adopts to amend section 711.406 to correct these errors.

No comments were received regarding adoption of the amendments.

Subchapter D. INTERIM AUTHORIZATION

31 TAC §711.68

STATEMENT OF AUTHORITY TO ADOPT RULES

These rules were originally adopted and are now being amended under §§1.03(11), 1.03(12), 1.03(13), 1.08(a), 1.11(a), 1.11(b), 1.11(h), 1.14(d), 1.15(a), 1.15(b), 1.17(a), 1.18, 1.19, 1.20, 1.21, 1.31, and 1.34 of the Edwards Aquifer Authority Act (Act of May 30, 1993, 73rd Legislature, Regular Session, Chapter 626, 1993 Texas General Laws 2350, 2358-59, as amended by Act of May 29, 1995, 74th Legislature, Regular Session, Chapter 261, 1995 Texas General Laws 2505, Act of May 16, 1995, 74th Legislature, Regular Session, Chapter 524, 1995 Texas General Laws 3280, and Act of May 6, 1999, 76th Legislature, Regular Session, Chapter 163, 1999 Texas General Laws 634 ("Act"), and section 2001.004(1) of the Texas Administrative Procedure Act (TEXAS GOVERNMENT CODE ANNOTATED §§2001.001-.902 (Vernon 2000)) ("APA").

Section 1.03(11) of the Act defines "industrial use." Section 1.03(12) of the Act defines "irrigation use." Section 1.03(14) of the Act defines "municipal use."

Section 1.11(b) of the Act requires the Authority to "ensure compliance with permitting, metering, and reporting requirements and . . . regulate permits." The Authority interprets this section, in conjunction with §§1.11(a) and (h) of the Act, and §2001.004(1) of the APA, to require the Authority to adopt and enforce rules related to the Authority's permit program.

Section 1.11(h) of the Act provides, among other things, that the Authority is "subject to" the APA. This section essentially provides that the Authority is required to comply with the APA for its rulemaking, even though the Authority is a political subdivision and not a state agency, and therefore, would typically not be subject to APA requirements.

Section 1.14(d) of the Act provides that the statutory "caps" on the amount of permitted withdrawals may be raised by the Authority if, through studies and implementation of certain strategies, the Authority, in consultation with state and federal agencies, determines the caps may be raised.

Section 1.15(a) of the Act directs the Authority to manage withdrawals from the aquifer and manage all withdrawal points from the aquifer as provided by the Act.

Section 1.15(b) of the Act states that "except as provided by §§1.17 and 1.33 of this article, a person may not withdraw water from the aquifer or begin construction of a well or other works designed for the withdrawal of water from the aquifer without obtaining a permit from the authority."

Section 1.17(a) of the Act provides that a person who, on the effective date of Article 1 of the Act (i.e., June 28, 1996), owns a producing well that withdraws water from the aquifer may continue to withdraw and beneficially use water without waste until final action on permits by the Authority, if certain conditions are met.