30 TAC §7.125
The Texas Natural Resource Conservation Commission (TNRCC
or commission) proposes new §7.125, Memorandum of Understanding (MOU),
among the Office of the Secretary of State (SOS), Railroad Commission of
Texas (RRC), Texas Historical Commission (THC), Texas General Land Office
(GLO), TNRCC, and Texas Public Utility Commission (PUC) regarding the permitting
of natural gas pipelines that cross the border between Texas and Mexico. The
SOS, RRC, THC, GLO, TNRCC, and PUC are collectively referred to as "the agencies."
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULE
During the past year, the RRC and the Mexican Comisión Reguladora
de Energía (CRE) discussed issues relating to the development of cross-border
projects. Based on comments solicited from companies that had business dealings
in Mexico, the RRC focused on two issues in its discussions with the CRE:
1) difficulty in obtaining rights-of-way; and 2) delays in the permitting
process. The RRC and CRE agreed to work on two initiatives: 1) a "single window"
approach to permitting, with the RRC and CRE serving as "lead agencies" in
assisting applicants; and 2) a "corridor concept" under which the two agencies
would establish routes for future energy projects that included pre-approvals.
The MOU proposed in this rulemaking reflects an agreement among Texas agencies
to establish the single window concept. The intent is to provide prospective
applicants a single package containing all the necessary permit information
with respect to Texas agencies, with RRC as the intermediary in dealing with
those agencies. The RRC, in its role as the provider of the single window,
will not usurp any of the powers of the other agencies or prevent necessary
discussions between individual agencies and the applicant, but will simply
serve as a guide for applicants.
SECTION BY SECTION DISCUSSION
New §7.125 describes the roles and responsibilities that the SOS,
RRC, THC, GLO, TNRCC, and PUC will or may have in permitting natural gas pipelines
that cross the border between Texas and Mexico. The role of the SOS is to
assist the other agencies in organizing a permitting process in a manner that
reduces the number of agency contacts a potential permittee must make and
ensures that the applicant is aware of all the necessary Texas permits. The
role of the RRC is to issue hydrostatic test water discharge permits, issue
opinions to the United States Army Corps of Engineers (USACE) concerning
Clean Water Act, §401, water quality certification; and review of requirements
under USACE, Section 10, for navigability clearance. The role of the THC,
as the state historic preservation office, is to ensure that adverse effects
on historic properties are avoided or minimized. The role of the GLO is to
issue easements for portions of the Rio Grande River that have not been deeded
to the United States government. The role of the TNRCC is to issue permits
to withdraw water, owned by the United States, from the Rio Grande River,
its tributaries, and any other Texas stream for hydrostatic testing, and to
issue permits for operations of certain pipeline facilities which emit air
contaminants. The role of the PUC is to participate in the permitting process
if necessary; however, it does not issue permits with respect to building
natural gas pipelines that cross the border between Texas and Mexico.
The RRC, THC, GLO, and TNRCC have agreed to prepare an inventory of the
various permits each agency may require with respect to building natural gas
pipelines that cross the border between Texas and Mexico. The inventory will
include a list of each agency's permits identified by name and/or number,
and identify the appropriate staff contact person by name, phone number, and
e-mail address for each permit.
The RRC, THC, GLO, TNRCC, and PUC have agreed that the RRC should be designated
as the distributor for applicable state permit applications, initial screener
of completed applications for completeness, and facilitator among the other
parties to the MOU for applicants who wish to build natural gas pipelines
that cross the border between Texas and Mexico.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
John Davis, Technical Specialist with Strategic Planning and Appropriations,
has determined that for the first five-year period the proposed rule is in
effect, there will be no fiscal implications for units of state and local
government as a result of administration or enforcement of the proposed rule.
The proposed rule would adopt an MOU among the TNRCC, SOS, RRC, THC, GLO,
and PUC regarding the permitting of natural gas pipelines that cross the border
between Texas and Mexico.
The proposed rule specifies each agency's responsibilities under the MOU,
outlines coordination procedures for review of individual permit applications,
registration applications, and notices of intent to be covered under a general
permit, and establishes the operating procedures and scope of the MOU. The
MOU is an interagency agreement under which the cooperating agencies would
provide to the RRC all their permitting requirements, forms, and information
relating to natural gas pipelines that cross the border between Texas and
Mexico, and the RRC would establish a single point of contact where a prospective
permit applicant could obtain all state permitting requirements in a single
package.
The proposed rule only sets forth procedures for an MOU between the cooperating
agencies and does not impose additional regulatory requirements on units of
state and local government. Additionally, the commission does not anticipate
that any units of state or local government would seek a permit for a natural
gas pipeline that crosses the border between Texas and Mexico; therefore,
no additional fiscal implications are anticipated for units of state and local
government as a result of the proposed rulemaking.
PUBLIC BENEFIT AND COSTS
Mr. Davis also has determined that for each year of the first five years
the proposed rule is in effect, the public benefit anticipated from the implementation
of the rule will be the establishment of a process for interagency coordination
of permitting issues related to the permitting of natural gas pipelines that
cross the border between Texas and Mexico, which is intended to ensure timely
reviews of permit and registration applications, and notices of intent to
be covered under a general permit.
The proposed rule specifies each agency's responsibilities under the MOU,
outlines coordination procedures for review of individual permit applications,
registration applications, and notices of intent to be covered under a general
permit, and establishes the operating procedures and scope of the MOU. The
MOU is an interagency agreement under which the cooperating agencies would
provide to the RRC all their permitting requirements, forms, and information
relating to natural gas pipelines that cross the border between Texas and
Mexico, and the RRC would establish a single point of contact where a prospective
permit applicant could obtain all state permitting requirements in a single
package.
The proposed rule only sets forth procedures for an MOU between the listed
agencies and does not impose additional regulatory requirements; therefore,
the commission anticipates there will be no additional costs to individuals
and businesses seeking permits for a natural gas pipeline that crosses the
border between Texas and Mexico. The consolidation of permit information with
the RRC could result in minor cost savings for applicants by reducing time
required to research permit requirements, and decreasing the number of trips
to individual agencies to obtain the required information.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
No adverse economic effects are anticipated to any small or micro-business
as a result of the implementation of the proposed rule because the creation
of this MOU is an administrative action that has no anticipated fiscal impact.
The proposed rule specifies each agency's responsibilities under the MOU,
outlines coordination procedures for review of individual permit applications,
registration applications, and notices of intent to be covered under a general
permit, and establishes the operating procedures and scope of the MOU. The
MOU is an interagency agreement under which the cooperating agencies would
provide to the RRC all their permitting requirements, forms, and information
relating to natural gas pipelines that cross the border between Texas and
Mexico, and the RRC would establish a single point of contact where a prospective
permit applicant could obtain all state permitting requirements in a single
package.
The proposed rule only sets forth procedures for an MOU between the listed
agencies and does not impose additional regulatory requirements; therefore,
the commission anticipates there will be no additional costs to small or micro-businesses
seeking permits for a natural gas pipeline that crosses the border between
Texas and Mexico. The consolidation of permit information with the RRC could
result in minor cost savings for applicants by reducing time required to research
permit requirements and decreasing the number of trips to individual agencies
to obtain the required information.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission has reviewed the proposed rule in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225, and determined
that the rule is not subject to §2001.0225.
Section 2001.0225 only applies to rules that are specifically intended
to protect the environment, or reduce risks to human health from environmental
exposure. This proposed rule is purely procedural. The intent of the rule
is to formalize the procedures for cooperation among the TNRCC, SOS, RRC,
THC, GLO, and PUC regarding permitting of natural gas pipelines that cross
the border between Texas and Mexico, not to protect the environment or human
health. Protection of human health and the environment may be a by-product
of the proposed rule, but it is not the specific intent of the proposed rule.
Furthermore, the proposed rule will not adversely affect, 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. Thus, the proposed rule does not meet the definition of a "major environmental
rule" as defined in Texas Government Code, §2001.0225(g)(3), and does
not require a full regulatory impact analysis.
TAKINGS IMPACT ASSESSMENT
The commission prepared a takings impact assessment for this proposed rule
under Texas Government Code, §2007.043. The following is a summary of
that assessment. The specific purpose of this proposed rule is to set forth
the procedures by which the TNRCC, SOS, RRC, THC, GLO, and PUC coordinate
on issues related to permitting, licensing, or registration of natural gas
pipelines that cross the border between Texas and Mexico. The proposed rule
will substantially advance this specific purpose by setting forth detailed
procedures for such interaction including initial notification, document exchange,
comments, and meetings. The proposed rule does not constitute a takings because
it will not burden private real property.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rule and determined 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 proposed rule is not subject to the CMP.
SUBMITTAL OF COMMENTS
Comments may be submitted to Joyce Spencer, Office of Environmental Policy,
Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3087
or faxed to (512) 239-4808. All comments must be received by 5:00 p.m. on
July 30, 2001 and should reference Rule Log Number 2001-020-007-AD. For further
information, please contact Debra Barber, Policy and Regulations Division,
at (512) 239-0412.
STATUTORY AUTHORITY
The new section is proposed under Texas Water Code (TWC), §5.103,
which authorizes the commission to adopt any rules necessary to carry out
its powers and duties. Additionally, the new section is proposed under TWC, §5.104,
which authorizes the commission to enter into an MOU with any other state
agency but requires the MOU to be adopted by rule.
The new section implements TWC, §5.104, relating to Memoranda of Understanding.
§7.125.Adoption of Memorandum of Understanding among the Office of the Secretary of State, Railroad Commission of Texas (RRC), Texas Historical Commission (THC), Texas General Land Office (GLO), Texas Natural Resource Conservation Commission (TNRCC), and Texas Public Utility Commission (PUC).
(a)
This rule contains the memorandum of understanding (Memorandum)
made and entered into among the Office of the Secretary of State, the Railroad
Commission of Texas (RRC), the Texas Historical Commission (THC), the Texas
General Land Office (GLO), the Texas Natural Resource Conservation Commission
(TNRCC), and the Texas Public Utility Commission (PUC) regarding the permitting
of natural gas pipelines that cross the border between Texas and Mexico.
(1)
Whereas, the Office of the Secretary of State recognizes,
with respect to building natural gas pipelines that cross the border between
Texas and Mexico, that the energy needs of the citizens of Texas and Mexico
can be met more efficiently if the permitting process in the State of Texas
were organized in a manner that reduces the number of agency contacts a potential
permittee must make and assures that the potential permittee secures all appropriate
permits.
(2)
Whereas, the Office of the Secretary of State, on the advice
and consent of the other parties to this Memorandum, further recognizes the
RRC is particularly well-equipped to serve as the central state agency that
reduces the number of agency contacts a potential permittee must make and
assures that the potential permittee secures all appropriate permits for building
natural gas pipelines that cross the border between Texas and Mexico.
(3)
Whereas, the RRC is responsible for issuing hydrostatic
test water discharge permits, issuing opinions to the United States Army Corps
of Engineers (USACE) concerning Clean Water Act, §401, water quality
certification, and assuming responsibility for reviewing USACE, Section 10,
navigability clearance, with respect to building natural gas pipelines that
cross the border between Texas and Mexico.
(4)
Whereas, the THC in its role as the state historic preservation
office, is responsible for ensuring that adverse effects on historic properties
are avoided or minimized with respect to building natural gas pipelines that
cross the border between Texas and Mexico.
(5)
Whereas, with respect to building natural gas pipelines
that cross the border between Texas and Mexico, the GLO is responsible for
issuing easements for portions of the Rio Grande River that have not been
deeded to the United States government.
(6)
Whereas, the TNRCC is responsible for issuing permits to
withdraw United States-owned water from the Rio Grande River, its tributaries,
and any other Texas stream for hydrostatic testing and permits for operations
of certain pipeline facilities which emit air contaminants with respect to
building natural gas pipelines that cross the border between Texas and Mexico.
(7)
Whereas, the PUC does not issue permits with respect to
building natural gas pipelines that cross the border between Texas and Mexico,
but may in some instances play a role in such projects.
(8)
Whereas, the RRC, THC, GLO, TNRCC, and PUC recognize that,
with respect to building natural gas pipelines that cross the border between
Texas and Mexico, the permit requirements from the various state agencies
are necessary to protect public health and safety and cultural resources.
(9)
Whereas, the RRC, THC, GLO, TNRCC, and PUC fully concur
with the Office of the Secretary of State that, with respect to building natural
gas pipelines that cross the border between Texas and Mexico, the energy needs
of the citizens of Texas and Mexico can be met more efficiently if the permitting
process in the State of Texas were organized in a manner that reduces the
number of agency contacts a potential permittee must make and assures that
the potential permittee secures all appropriate permits.
(10)
Now, therefore, in consideration of the benefits to the
State of Texas, the Office of the Secretary of State, the RRC, THC, GLO, TNRCC,
and PUC enter into this Memorandum and hereby agree as follows.
(A)
The RRC, THC, GLO, and TNRCC shall prepare an inventory
of all known permits each agency may require with respect to building natural
gas pipelines that cross the border between Texas and Mexico. The inventory
shall include a list of each agency's permits identified by name and/or number,
and identify the appropriate staff contact person by name, phone number, and
e-mail address for each permit.
(B)
The RRC, THC, GLO, TNRCC, and PUC mutually agree the RRC
is designated as the distributor for applicable state permit applications,
initial screener of completed applications for completeness, and facilitator
among the other parties to this Memorandum for applicants who wish to build
natural gas pipelines that cross the border between Texas and Mexico. The
RRC, THC, GLO, TNRCC, and PUC further agree to encourage other relevant state
and federal agencies to engage in this process as the necessity for and convenience
provided by their participation becomes apparent.
(C)
Within 30 days of the effective date of this Memorandum,
RRC shall implement a system and designate personnel to distribute all notices
of permit requirements, permit applications, and instructions for permit submission
to persons who wish to build natural gas pipelines that cross the border between
Texas and Mexico.
(b)
This Memorandum shall be effective as of the date of the
last signature on the document. Any party may withdraw from this Memorandum
at any time upon 30 days written notice to the other parties.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on June 15, 2001.
TRD-200103413
Margaret Hoffman
Deputy Director, Office of Legal Services
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: July 29, 2001
For further information, please call: (512) 239-5017