Part 1.
TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
Chapter 305.
CONSOLIDATED PERMITS
Subchapter D. AMENDMENTS, RENEWALS, TRANSFERS, CORRECTIONS, REVOCATION, AND SUSPENSION OF PERMITS
30 TAC §305.64
The Texas Natural Resource Conservation Commission (commission)
proposes an amendment to §305.64, Transfer of Permits.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULE
House Bill (HB) 2912, 77th Legislature, 2001, amended Texas Water Code
(TWC), §26.003, by adding the phrase "taking into consideration" before
the words "economic development of the state." This proposal amends §305.64
to reflect the change made by HB 2912 to TWC.
SECTION DISCUSSION
The proposed amendment to §305.64(i)(8) adds the phrase "taking into
consideration" before the words "economic development of the state" and would
modify sentence structure to reflect the concept in TWC, §26.003, which
is that economic development of the state should be taken into consideration
when actions are taken to maintain the quality of water in the state, rather
than the actions should be consistent with economic development.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
John Davis, Technical Specialist with Strategic Planning and Appropriations,
has determined that for each year of the first five-year period the proposed
rule is in effect, there will be no significant fiscal implications for the
agency or any other unit of state or local government due to administration
and enforcement of the proposed rule.
The proposed rule is intended to implement certain provisions of HB 2912,
which required the commission to clarify that economic development of the
state would be one of several factors taken into consideration when actions
are taken to maintain the quality of water in the state. The proposed rule
would revise existing commission rules to implement the provisions of HB 2912.
The proposed rule is not anticipated to result in fiscal implications for
units of state and local government.
PUBLIC BENEFITS AND COSTS
Mr. Davis has also determined that for each of the first five years the
proposed rule is in effect, the public benefit anticipated as a result of
implementing the proposed rule will be compliance with legislative requirements
to consider economic development when taking actions to maintain the quality
of water in the state.
The proposed rule would implement certain provisions of HB 2912, which
required the commission to clarify that economic development of the state
would be taken into consideration when actions are taken to maintain the quality
of water in the state. The proposed rule would revise existing commission
rules to implement the provisions of HB 2912. The proposed rule is not anticipated
to result in significant fiscal implications for individuals or businesses.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
No adverse fiscal implications are anticipated for small or micro-businesses
as a result of implementation of the proposed rule, which would implement
certain provisions of HB 2912, which required the commission to clarify that
economic development of the state would be taken into consideration when actions
are taken to maintain the quality of water in the state. The proposed rule
would revise existing commission rules to implement the provisions of HB 2912.
The proposed rule is not anticipated to result in fiscal implications for
small and micro-businesses.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission reviewed this proposed rule and determined that a local
employment impact statement is not required because the proposed rule does
not adversely affect a local economy in a material way for the first five
years that the proposed rule is in effect.
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 has determined
that the proposed rule is not subject to §2001.0225 because it does not
meet 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, productivity,
competition, jobs, the environment, or the public health and safety of the
state or a sector of the state. The proposed rule does not meet the definition
of a major environmental rule because the specific intent of the rule is to
clarify commission policy to state that the commission must take into consideration
the economic development of the state. The rule substantially advances this
purpose by specifically stating that the commission will take into consideration
the economic development of the state when maintaining the quality of water
in the state. Since the proposed rule states a policy which requires the consideration
of the economic development of the state, the proposed rule does not adversely
affect in a material way the economy, a sector of the economy, productivity,
competition, or jobs. The proposed rule is not anticipated to adversely affect
in a material way the environment or the public health and safety of the state
or a sector of the state because the requirement for consideration of the
economic development of the state is inserted into policy statements which
provide for the protection of the environment and the public health and safety.
In addition, the proposed rule does not exceed the four applicability requirements
of Texas Government Code, §2001.0025(a)(1) - (4) in that the proposed
rule does not: 1) exceed a standard set by federal law; 2) exceed an express
requirement of state law; 3) exceed a requirement of a delegation agreement;
or 4) propose to adopt a rule solely under the general powers of the agency.
The proposed rule does not exceed a standard set by federal law because
there are no such corresponding federal standards stating that the commission
take into consideration the economic development of the state in maintaining
the quality of water in the state. Further, the proposed rule does not exceed
an express requirement of state law because it is mandated by state law. The
proposed rule does not exceed the requirements of delegation agreements concerning
water quality because the delegation agreements do not establish express requirements
for taking into consideration the economic development of the state. Finally,
this proposed rule is not adopted solely under the general powers of the agency,
but is adopted under the specific provisions of TWC, §26.003 and §26.011.
The commission invites public comment on the draft regulatory impact analysis
determination.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a takings impact assessment for this proposed
rule in accordance with Texas Government Code, §2007.043. The commission's
preliminary assessment indicates that Texas Government Code, Chapter 2007
applies to the proposed rule and that the rule does not constitute a statutory
or constitutional taking.
The specific purpose of the proposed rule is to conform commission policy
to HB 2912, §1.26, which changed state policy to provide that the commission
take into consideration the economic development of the state in maintaining
water quality in the state. Before enactment of HB 2912, §1.26, the state
policy on maintaining the quality of water in the state provided that the
commission should maintain water quality consistent with the economic development
of the state, in TWC, §26.003.
The proposed rule substantially advances the purpose stated previously
by changing the policy of the commission to conform to HB 2912, §1.26.
The proposed rule does not place any burden on real property and it does
not obtain any benefit to society from the proposed use of private real property
because it does not directly apply to the ownership or use of a particular
parcel of private real property.
Promulgation of the proposed rule setting a policy to take into consideration
the economic development of the state will not constitute a taking because
the proposed rule does not directly apply to the ownership or use of a particular
parcel of private real property.
There are no reasonable alternative actions that the commission may take
regarding this proposed rule because the policy of the state on this issue
has been determined by law through the enactment of HB 2912, §1.26.
Since the proposed rule does not directly apply to the ownership or use
of a particular parcel of real property, it does not burden an owner of real
property in a manner which would be a statutory or constitutional taking.
Specifically, the proposed rule does not affect a landowner's rights in private
real property because this rulemaking does not burden (constitutionally);
nor restrict or limit the owner's right to property and reduce its value by
25% or more beyond that which would otherwise exist in the absence of the
proposed rule.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rulemaking and found that the rule
is neither identified in Coastal Coordination Act Implementation Rules, 31
TAC §505.11, nor will it affect any action/authorization identified in
Coastal Coordination Act Implementation Rules, 31 TAC §505.11.Therefore,
the proposed rule is not subject to the Texas Coastal Management Program.
SUBMITTAL OF COMMENTS
Comments may be submitted to Angela Slupe, 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 8, 2002 and should reference Rule Log Number 2002-045-305-WT. For further
information, please contact Debra Barber, Policy and Regulations Division,
at (512) 239-0412.
STATUTORY AUTHORITY
The amendment is proposed under TWC, §5.103, which provides the commission
with 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 repealing
any statement of general applicability that interprets law or policy; §5.105,
which authorizes the commission to establish and approve all general policy
of the commission by rule; and §26.011, which provides the commission
with the power necessary and convenient to carry out its responsibilities
under TWC, Chapter 26.
The proposed amendment implements TWC, §26.003, relating to the policy
of the state to maintain water quality.
§305.64.Transfer of Permits.
(a) - (h)
(No change.)
(i)
The commission may transfer a permit involuntarily after
notice and an opportunity for hearing, for any of the following reasons:
(1) - (7)
(No change.)
(8)
transfer of the permit would maintain the quality of water
in the state consistent with the public health and enjoyment, the propagation
and protection of terrestrial and aquatic life,
and
the operation
of existing industries,
taking into consideration
[
(9)
(No change.)
(j)
(No change.)
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 May 23, 2002.
TRD-200203178
Stephanie Bergeron
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: July 7, 2002
For further information, please call: (512) 239-4712
Subchapter A. GENERAL PROVISIONS
and
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the economic development of the state and/or would minimize the damage to
the environment; and
Chapter 331.
UNDERGROUND INJECTION CONTROL