Part 1.
TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
Chapter 216.
WATER QUALITY PERFORMANCE STANDARDS FOR URBAN DEVELOPMENT
Subchapter A. WATER QUALITY PROTECTION ZONES
30 TAC §§216.1 - 216.11
The Texas Natural Resource Conservation Commission (commission)
adopts the repeal of §§216.1 - 216.11, concerning Water Quality
Performance Standard for Urban Development
without
change
to the proposal published in the October 26, 2001 issue of the
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED REPEALS
The purpose of the rulemaking is to remove rules that are based on a statute
that has been invalidated by opinion of the Texas Supreme Court and by opinion
of the Texas Attorney General.
The commission also is adopting, in concurrent action, the review of Chapter
216 as required by Texas Government Code, §2001.039. The adopted rules
review can be found in the Review of Agency Rules section in this issue of
the
Texas Register
. The commission also terminated
a rulemaking it authorized to be commenced (Rule Log Number 1997-187-216-WT)
in 1998 in response to a petition by the City of Austin to revise Chapter
216, Subchapter A.
Chapter 216, Subchapter A sets out the procedures and criteria to be used
by the commission: 1.) in the review and approval of water quality plans and
amendments submitted for tracts of land, 500 acres or larger, designated as
water quality protection zones; and 2.) in the designation of water quality
protection zones for tracts of land that are less than 1,000 acres but not
less than 500 acres in size. In accordance with Texas Water Code (TWC), §26.179,
the repeals apply only to areas within the extraterritorial jurisdictions
of cities with a population greater than 5,000 (in 1999, raised to 10,000),
and in which the municipality has enacted or proposed at least three ordinances
to regulate water quality within their extraterritorial jurisdictions in the
five years prior to June 17, 1995, or enacts or attempts to enforce three
or more ordinances or amendments attempting to regulate water quality or control
or abate water pollution in the area in any five-year period. This law does
not apply to areas within the extraterritorial jurisdiction of a city with
a population greater than 900,000 that has extended an ordinance to prevent
the pollution of an aquifer which is the sole or principal drinking water
source for the municipality.
The commission believes that the adoption of the repeal of the rules in
Chapter 216, Subchapter A is necessary because TWC, §26.179 on which
the subchapter is based, was invalidated by the Texas Supreme Court in the
case of
FM Properties Operating Co. v. City of Austin
, 22 S.W. 3d 868 (Tex. 2000). In that case, the court held that the
pre-1999 version of TWC, §26.179 is an unconstitutional delegation of
legislative power to private landowners. The court did not address the 1999
amendments to TWC, §26.179 because they were enacted after the case began
and apply prospectively. However, the Texas Attorney General in Opinion Number
JC-0402 (August 2, 2001) concluded consistent with the Supreme Court's decision
that the current version of the statute is unconstitutional. Accordingly,
the repeal of Chapter 216, Subchapter A, is appropriate. The commission also
terminated a rulemaking it authorized to be commenced (Rule Log Number 1997-187-
216-WT) in 1998 in response to a petition by the City of Austin to revise
Chapter 216, Subchapter A.
SECTION BY SECTION DISCUSSION
Sections 216.1,
Applicability
; 216.2,
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
the rulemaking is not subject to §2001.0225 because the repeal of Chapter
216, Subchapter A, would not result in a rule which meets the definition of
a "major environmental rule" as defined in that statute. "Major environmental
rule" means a rule, the specific intent of which, is to protect the environment
or reduce risks to human health from environmental exposure and that 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. Because the specific intent of the rulemaking
is to repeal rules based on a statute that has been invalidated by decision
of the Texas Supreme Court and does not add regulatory requirements to existing
rules, the rulemaking is not anticipated to have an adverse material effect
on 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. In addition, this repeal is not intended to protect the environment
or reduce risks to human health from environmental exposure. Therefore, this
rulemaking does not meet the definition of a "major environmental rule." In
addition, §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. The rulemaking specifically
repeals rules that lack statutory foundation and does not meet any of these
four criteria of a "major environmental rule."
TAKINGS IMPACT ASSESSMENT
The commission evaluated the repeal and performed an assessment of whether
the repeal constitutes a taking under Texas Government Code, Chapter 2007.
The following is a summary of that assessment. The specific purpose of the
rulemaking is to repeal Subchapter A because the statute on which it is based
has been invalidated. Adoption of the rulemaking would not affect private
real property, restrict or limit the owner's right to property that otherwise
would exist in the absence of the rulemaking, or be the producing cause of
the reduction in the market value of private real property.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission has determined that the rulemaking does not relate to an
action or actions subject to the Texas Coastal Management Program (CMP) in
accordance with the Coastal Coordination Management Act of 1991, as amended
(Texas Natural Resources Code, §§33.201
et seq.
) and the commission's rules in 30 TAC Chapter 281, Subchapter
B, concerning Consistency with the Texas Coastal Management Program. Therefore,
the repeal of Subchapter A is not subject to the CMP.
PUBLIC COMMENTS
The public comment period closed on November 26, 2001, and no comments
were received. A public hearing was not held.
STATUTORY AUTHORITY
The repeals are adopted under TWC, §5.102, which provides the commission
with the general powers to carry out its duties under TWC; and §5.103,
which provides the commission with the authority to adopt any rules necessary
to carry out the powers and the duties under the provisions of TWC and other
laws of this state. The repeals are adopted as a result of a rule review done
in accordance with the requirements of Texas Government Code, §2001.039,
which requires state agencies to review and consider for readoption each of
their rules every four years.
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 January 17, 2002.
TRD-200200249
Stephanie Bergeron
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: February 6, 2002
Proposal publication date: October 26, 2001
For further information, please call: (512) 239-6087
Subchapter B. PROGRAM FOR WATER QUALITY ASSESSMENT FEES
30 TAC §220.21
The Texas Natural Resource Conservation Commission (commission)
adopts an amendment to Subchapter B, Program for Water Quality Assessment
Fees; §220.21, Water Quality Assessment Fees. This amendment is made
concurrently with amendments to Chapters 303 and 304. Section §220.21
is adopted
without changes
to the proposed
text as published in the September 7, 2001 issue of the
Texas Register
(26 TexReg 6851) and will not be republished.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULE
Chapter 220 implements the Texas Clean Rivers Program, under Texas Water
Code (TWC), 26.0135. The Texas Clean Rivers Program monitors and assesses
water quality conditions that support water quality management decisions necessary
to maintain and improve the quality of the state's water resources (as defined
in TWC, §26.001(5)). Under TWC, §26.0135, water right holders and
wastewater permit holders are assessed fees to pay for the costs of this program.
The adopted rule will implement Senate Bill (SB) 289 of the 77th Legislature,
2001, which amends TWC, §26.0135, to provide that the commission shall
not assess water quality assessment fees against a holder of a non-priority
hydroelectric water right that owns or operates privately-owned facilities
that collectively have a capacity of less than two megawatts. This will be
a change from the existing rules, which provide that water quality assessment
fees shall be established for each water right holder for each water right
authorized by category of use, except for irrigation water rights. Amended §220.21
will specify that the commission may not assess water quality assessment fees
against a holder of a non-priority hydroelectric right that owns or operates
privately-owned facilities that collectively have a capacity of less than
two megawatts.
SECTION DISCUSSION
Adopted §220.21 will add the provision that the commission may not
assess water quality assessment fees against a holder of a non-priority hydroelectric
right that owns or operates privately- owned facilities that collectively
have a capacity of less than two megawatts.
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
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
because the specific intent of this amendment is not to protect the environment
or reduce risks to human health from environmental exposure. The intent of
the amendment is to exempt small privately-owned hydroelectric facilities
from paying water quality assessment fees under the Texas Clean Rivers Program.
TAKINGS IMPACT ASSESSMENT
The commission evaluated this rule and performed an assessment of whether
Texas Government Code, Chapter 2007 is applicable. The specific purpose of
the rulemaking action is to implement legislation which changes who may be
assessed water quality assessment fees under the Texas Clean Rivers Program.
This rulemaking substantially advances this purpose by amending §220.21
of the water quality management rules to provide that the Texas Clean Rivers
Program may not assess fees against small privately-owned hydroelectric facilities.
The commission's assessment indicates that Texas Government Code, Chapter
2007 does not apply to this rule because this rule amendment does not affect
any private real property that is the subject of this rulemaking in a manner
that restricts or limits the owner's right to the property that would otherwise
exist in the absence of the governmental action. This rulemaking only relates
to fees charged for water quality assessment.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission has reviewed the adopted rulemaking and found that the rules
are neither identified in Coastal Coordination Act Implementation Rules, 31
TAC §505.11, 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.
Therefore, the adoption is not subject to the CMP.
HEARING AND COMMENTERS
A public hearing was held on this rulemaking on October 4, 2001 in San
Antonio. No oral comments were received at the hearing, and no written comments
were received on the proposed rule amendment.
STATUTORY AUTHORITY
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 §26.0135, which requires assessments of fees against water
right holders and wastewater permit holders to pay for the administrative
costs of periodic monitoring and assessment of water quality conditions in
each watershed and river basin in the state.
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 January 17, 2002.
TRD-200200246
Stephanie Bergeron
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: February 6, 2002
Proposal publication date: September 7, 2001
For further information, please call: (512) 239-4712
Subchapter H. FINANCING RIO GRANDE WATERMASTER OPERATION
30 TAC §303.71
The Texas Natural Resource Conservation Commission (commission)
adopts an amendment to Subchapter H, Financing Rio Grande Watermaster Operation; §303.71,
Costs of Administration. This adoption is being made concurrently with amendments
to Chapters 220 and 304. Section 303.71 is adopted
without changes
to the proposed text as published in the September
7, 2001 issue of the
Texas Register
(26 TexReg
6853) and will not be republished.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULE
Chapter 303 implements water rights and the duties and responsibilities
of watermaster operations in portions of the Rio Grande Basin and the Nueces
- Rio Grande Basin. Under Texas Water Code (TWC), §11.329, holders of
water rights that are administered by a watermaster shall reimburse the commission
for the expense of watermaster operations. This amendment implements Senate
Bill (SB) 289 of the 77th Legislature, 2001, which amends TWC, §11.329,
to provide that the watermaster shall not assess fees against a holder of
hydroelectric rights that own or operate privately- owned facilities that
collectively have a capacity of less than two megawatts. This will be a change
from the existing rules, which provide that watermaster costs shall be established
for each water right holder for each water right authorized by category of
use. Subchapter H establishes the procedures for establishing accounts; commission
approval of assessments and budget; and assessment of costs of watermaster
operations. The existing rule provides that costs shall be established for
each water right holder for each water right authorization by category of
use. This amendment to §303.71 specifies that the commission may not
assess costs against a holder of a non-priority hydroelectric right that owns
or operates privately-owned facilities that collectively have a capacity of
less than two megawatts.
SECTION DISCUSSION
Section 303.71 is amended to add the provision that the commission may
not assess costs against a holder of a non-priority hydroelectric right that
owns or operates privately-owned facilities that collectively have a capacity
of less than two megawatts. This amendment implements SB 289, and deletes
an obsolete requirement.
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
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
because the specific intent of this amendment is not to protect the environment
or reduce risks to human health from environmental exposure. The intent of
the amendment is to exempt small privately-owned hydroelectric facilities
from paying watermaster fees.
TAKINGS IMPACT ASSESSMENT
The commission evaluated this rule and performed an assessment of whether
Texas Government Code, Chapter 2007 is applicable. The specific purpose of
the rulemaking action is to implement legislation which changes who may be
assessed fees for a watermaster. This rulemaking substantially advances this
purpose by amending §303.71 of the Rio Grande watermaster rules to provide
that a watermaster may not assess fees against small privately-owned hydroelectric
facilities.
The commission's assessment indicates that Texas Government Code, Chapter
2007, does not apply to this adopted rule because this rule amendment does
not affect any private real property that is the subject of this rulemaking
in a manner that restricts or limits the owner's right to the property that
would otherwise exist in the absence of the governmental action. This rulemaking
only relates to fees charged for the services of a watermaster.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission has reviewed the adopted rulemaking and found that the rules
are neither identified in Coastal Coordination Act Implementation Rules, 31
TAC §505.11, 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.
Therefore, the adoption is not subject to the CMP.
HEARING AND COMMENTERS
A public hearing was held on this rulemaking on October 4, 2001 in San
Antonio. No oral comments were received at the hearing, and no written comments
were received on the proposed rule amendment.
STATUTORY AUTHORITY
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 and to adopt rules when adopting,
repealing, or amending any agency statement of general applicability that
interprets or prescribes law or policy, or describes the procedure or practice
requirements of an agency; §5.105, which authorizes the commission to
establish and approve all general policy of the commission by rule; and §26.0135,
which requires assessments of fees against water right holders and wastewater
permit holders to pay for the administrative costs of periodic monitoring
and assessment of water quality conditions in each watershed and river basin
in the state.
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 January 17, 2002.
TRD-200200247
Stephanie Bergeron
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: February 6, 2002
Proposal publication date: September 7, 2001
For further information, please call: (512) 239-4712
Subchapter G. FINANCING WATERMASTER OPERATIONS
Chapter 220.
REGIONAL ASSESSMENTS OF WATER QUALITY
Chapter 303.
OPERATION OF THE RIO GRANDE
Chapter 304.
WATERMASTER OPERATIONS