Part 1.
TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
Chapter 281.
APPLICATIONS PROCESSING
Subchapter A. APPLICATIONS PROCESSING
The Texas Natural Resource Conservation Commission (commission) adopts
an amendment to §281.2, Applicability; and the repeal of §281.7,
Applications for Weather Modification Permits. The proposal was published
in the November 23, 2001 issue of the
Texas Register
(26 TexReg 9523). The amendment to §281.2 and the repeal of §281.7
are adopted
without changes
and will not be
republished.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
Senate Bill (SB) 1175, 77th Legislature, 2001, transferred all powers,
duties, obligations, rights, records, employees, and property that are used
to administer the weather modification licensing and permitting program from
the commission to the Texas Department of Licensing and Regulation (TDLR);
and all powers, duties, obligations, rights, contracts, records, property,
and unspent and unobligated appropriations and other funds used to administer
the weather modification grant program to the Texas Department of Agriculture
(TDA). The TDLR was required to adopt rules no later than December 31, 2001.
This transfer necessitates that the commission repeal 30 TAC Chapter 289 and
make certain conforming changes to Chapter 281. The commission is adopting
the amendment to and the repeal in Chapter 281 simultaneously with the repeal
of Chapter 289.
SECTION BY SECTION DISCUSSION
Section 281.2, Applicability, is adopted to delete language that relates
specifically to the weather modification program; and §281.7, Applications
for Weather Modification Permits, is adopted to repeal language that is no
longer necessary due to the repeal of Chapter 289 and the transfer of the
weather modification licensing and permitting program to the TDLR.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission has reviewed the adopted 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 §2001.0225(g)(3).
The regulations contained in Chapter 289 were designed solely to establish
licensing requirements governing who may or may not conduct weather modification
in the state. A strict regulatory analysis of this commission action is not
necessary since it does not meet the four criteria for applicability contained
in Texas Government Code, §2001.0225(a). Regulatory analysis is necessary
only for rulemaking of major environmental rules adopted by state agencies,
"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." Specifically, this rulemaking
does not involve the adoption of a major environmental rule which either exceeds
a federal or state standard because there are no federal or other state standards
regarding the subject matter of this rulemaking. They do not 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 because
no such agreements regarding the licensure of persons conducting weather modification
exist. Finally, this rulemaking is not being adopted without the guidance
of a specific state law because the legislature mandated that Chapter 289
be repealed and that licensing and regulation be reassigned from the commission
to other state agencies.
Weather modification licensing and regulation formerly conducted by the
commission was conducted after September 1, 2001 by TDLR under the same rules
until TDLR adopted its own rules in compliance with SB 1175, which supercede
those being repealed by the commission. Likewise, grant administration will
be subject to the TDA's rules. Because the program is simply being moved to
other state agencies by this action and because there will be no new regulatory
requirements as a result of this action, there will be no regulatory effect
and the repeal of Chapter 289 will not adversely impact the economy, jobs,
environment, or health or safety.
The commission has reviewed the adopted rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225 and determined
that the rulemaking does not meet the four applicability requirements listed
in §2001.0225(a). The commission invited public comment on the draft
regulatory impact analysis determination. No comments were received.
TAKINGS IMPACT ASSESSMENT
The specific purpose of this rulemaking is to implement the transfer of
a regulatory program from the commission to TDA and TDLR as mandated by state
law. This action will not burden, restrict, or limit an owner's right to property,
nor will it cause a reduction in market value of private real property; therefore,
it will not constitute a taking under Texas Government Code, Chapter 2007.
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,
relating to Actions and Rules Subject to the Coastal Management Program, nor
will they affect any action/authorization identified in Coastal Coordination
Act Implementation Rules, 31 TAC §505.11. Therefore, the adopted rules
are not subject to the Texas Coastal Managment Program.
HEARING AND COMMENTERS
A public hearing was not held on the proposal, and no comments were received
on the proposal.
30 TAC §281.2
STATUTORY AUTHORITY
The amendment is adopted under SB 1175, Chapter 20 (Act), 77th Legislature,
2001, which made the following finding: "that the Department of Agriculture
is the proper state agency to administer grants to political subdivisions
for weather modification and control activities" (SB 1175, Article 2, §2.01;
amending Texas Agricultural Code, Chapter 20). It removed "the state's weather
modification program including the issuance of permits and licenses and the
enforcement of permits, licenses, rules, standards, and orders relating to
weather modification" from the commission's jurisdiction by deleting the quoted
language from Texas Water Code (TWC), §5.013 (SB 1175, Article 3, §3.01;
amending TWC, §5.013(a)). It repealed TWC, Chapter 18 (Weather Modification)
and TWC, §7.144 (Violation Relating to Weather Modification) (SB 1175,
Article 3, §3.06). As of the September 1, 2001 effective date of the
Act, it transferred all powers, duties, obligations, rights, records, employees,
and property of the commission on the effective date of this Act to administer
the weather modification program to the TDLR (SB 1175, Article 3, §3.07(a)).
It transferred all powers, duties, obligations, rights, contracts, records,
property, and unspent or unobligated appropriations and other funds of the
commission on the effective date of this Act to administer the weather modification
grant program to the TDA (SB 1175, Article 3, §3.07(b)). "All rules,
policies, procedures, and decisions that affect the weather modification program
are continued in effect until superceded by a rule or other appropriate action
of the TDLR." (SB 1175, Article 3, §3.07(c)). It further transferred
any commission weather modification program actions or proceedings to TDLR
without change in status (SB 1175, Article 3, §3.07(d)). Finally, it
abolished the commission's weather modification program under TWC, Chapter
18 and provided for a December 31, 2001 deadline for TDLR to adopt rules to
implement the Act (SB 1175, Article 3, §3.07(e) and (f)).
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 February 15, 2002.
TRD-200200946
Stephanie Bergeron
Division Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 7, 2002
Proposal publication date: November 23, 2001
For further information, please call: (512) 239-5017
30 TAC §281.7
STATUTORY AUTHORITY
The repeal is adopted under SB 1175, Chapter 20 (Act), 77th Legislature,
2001, which made the following finding: "that the Department of Agriculture
is the proper state agency to administer grants to political subdivisions
for weather modification and control activities" (SB 1175, Article 2, §2.01;
amending Texas Agricultural Code, Chapter 20). It removed "the state's weather
modification program including the issuance of permits and licenses and the
enforcement of permits, licenses, rules, standards, and orders relating to
weather modification" from the commission's jurisdiction by deleting the quoted
language from Texas Water Code (TWC), §5.013 (SB 1175, Article 3, §3.01;
amending TWC, §5.013(a)). It repealed TWC, Chapter 18 (Weather Modification)
and TWC, §7.144 (Violation Relating to Weather Modification) (SB 1175,
Article 3, §3.06). As of the September 1, 2001 effective date of the
Act, it transferred all powers, duties, obligations, rights, records, employees,
and property of the commission on the effective date of this Act to administer
the weather modification program to the TDLR (SB 1175, Article 3, §3.07(a)).
It transferred all powers, duties, obligations, rights, contracts, records,
property, and unspent or unobligated appropriations and other funds of the
commission on the effective date of this Act to administer the weather modification
grant program to the TDA (SB 1175, Article 3, §3.07(b)). "All rules,
policies, procedures, and decisions that affect the weather modification program
are continued in effect until superceded by a rule or other appropriate action
of the TDLR." (SB 1175, Article 3, §3.07(c)). It further transferred
any commission weather modification program actions or proceedings to TDLR
without change in status (SB 1175, Article 3, §3.07(d)). Finally, it
abolished the commission's weather modification program under TWC, Chapter
18 and provided for a December 31, 2001 deadline for TDLR to adopt rules to
implement the Act (SB 1175, Article 3, §3.07(e) and (f)).
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 February 15, 2002.
TRD-200200947
Stephanie Bergeron
Division Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 7, 2002
Proposal publication date: November 23, 2001
For further information, please call: (512) 239-5017
The Texas Natural Resource Conservation Commission (commission) adopts
the repeal of §§289.1, 289.11 - 289.22, 289.31, 289.32, 289.41 -
289.44, 289.51 - 289.53, 289.61, and 289.62, Weather Modification. The proposal
was published in the November 23, 2001 issue of the
Texas Register
(26 TexReg 9523). The repealed sections are adopted
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
Senate Bill (SB) 1175, 77th Legislature, 2001, transferred all powers,
duties, obligations, rights, records, employees, and property that are used
to administer the weather modification licensing and permitting program from
the commission to the Texas Department of Licensing and Regulation (TDLR);
and all powers, duties, obligations, rights, contracts, records, property,
and unspent and unobligated appropriations and other funds used to administer
the weather modification grant program to the Texas Department of Agriculture
(TDA). The TDLR was required to adopt rules no later than December 31, 2001.
Therefore, the commission adopts the repeal of Chapter 289 and certain conforming
changes to 30 TAC Chapter 281. The commission is adopting the repeal of Chapter
289 simultaneously with the amendment to and repeal of a section in Chapter
281.
SECTION BY SECTION DISCUSSION
Section 289.1, Definitions; §§289.11 - 289.22, Issuance of Licenses
and Permits; §289.31 and §289.32, Records and Reports; §§289.41
- 289.44, Amendment, Revocation, and Suspension of Licenses and Permits on
Motion of Commission; §§289.51 - 289.53, Amendment of Permits Upon
Application of Permittees; and §289.61 and §289.62, Hail Suppression
Election Provisions, are repealed because the rules are no longer necessary.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission has reviewed the adopted 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 §2001.0225(g)(3).
The regulations contained in Chapter 289 were designed solely to establish
licensing requirements governing who may or may not conduct weather modification
in the state. A strict regulatory analysis of this commission action is not
necessary since it does not meet the four criteria for applicability contained
in Texas Government Code, §2001.0225(a). Regulatory analysis is necessary
only for rulemaking of major environmental rules adopted by state agencies,
"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." Specifically, this rulemaking
does not involve the adoption of a major environmental rule which either exceeds
a federal or state standard because there are no federal or other state standards
regarding the subject matter of this rulemaking. They do not 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 because
no such agreements regarding the licensure of persons conducting weather modification
exist. Finally, this rulemaking is not being adopted without the guidance
of a specific state law because the legislature mandated that Chapter 289
be repealed and that licensing and regulation be reassigned from the commission
to other state agencies.
Weather modification licensing and regulation formerly conducted by the
commission was conducted after September 1, 2001 by TDLR under the same rules
until TDLR adopted its own rules in compliance with SB 1175, which supercede
those being repealed by the commission. Likewise, grant administration will
be subject to the TDA's rules. Because the program is simply being moved to
other state agencies by this action and because there will be no new regulatory
requirements as a result of this action, there will be no regulatory effect
and the repeal of Chapter 289 will not adversely impact the economy, jobs,
environment, or health or safety.
The commission has reviewed the rulemaking in light of the regulatory analysis
requirements of Texas Government Code, §2001.0225 and determined that
the rulemaking does not meet the four applicability requirements listed in §2001.0225(a).
The commission invited public comment on the draft regulatory impact analysis
determination. No comments were received.
TAKINGS IMPACT ASSESSMENT
The specific purpose of this rulemaking is to implement the transfer of
a regulatory program from the commission to the TDA and TDLR as mandated by
state law. This action will not burden, restrict, or limit an owner's right
to property, nor will it cause a reduction in market value of private real
property; therefore, it will not constitute a taking under Texas Government
Code, Chapter 2007.
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,
relating to Actions and Rules Subject to the Coastal Management Program, nor
will they affect any action/authorization identified in Coastal Coordination
Act Implementation Rules, 31 TAC §505.11. Therefore, the adopted rules
are not subject to the Texas Coastal Management Program.
HEARING AND COMMENTERS
A public hearing was not held on the proposal, and no comments were received
on the proposal.
Subchapter A. DEFINITIONS
30 TAC §289.1
STATUTORY AUTHORITY
The repeal is adopted under SB 1175, Chapter 20 (Act), 77th Legislature,
2001, which made the following finding: "that the Department of Agriculture
is the proper state agency to administer grants to political subdivisions
for weather modification and control activities" (SB 1175, Article 2, §2.01;
amending Texas Agricultural Code, Chapter 20). It removed "the state's weather
modification program including the issuance of permits and licenses and the
enforcement of permits, licenses, rules, standards, and orders relating to
weather modification" from the commission's jurisdiction by deleting the quoted
language from Texas Water Code (TWC), §5.013 (SB 1175, Article 3, §3.01;
amending TWC, §5.013(a)). It repealed TWC, Chapter 18 (Weather Modification)
and TWC, §7.144 (Violation Relating to Weather Modification) (SB 1175,
Article 3, §3.06). As of the September 1, 2001, effective date of the
Act, it transferred all powers, duties, obligations, rights, records, employees,
and property of the commission on the effective date of this Act to administer
the weather modification program to the TDLR (SB 1175, Article 3, §3.07(a)).
It transferred all powers, duties, obligations, rights, contracts, records,
property, and unspent or unobligated appropriations and other funds of the
commission on the effective date of this Act to administer the weather modification
grant program to the TDA (SB 1175, Article 3, §3.07(b)). "All rules,
policies, procedures, and decisions that affect the weather modification program
are continued in effect until superceded by a rule or other appropriate action
of the TDLR." (SB 1175, Article 3, §3.07(c)). It further transferred
any commission weather modification program actions or proceedings to TDLR
without change in status (SB 1175, Article 3, §3.07(d)). Finally, it
abolished the commission's weather modification program under TWC, Chapter
18 and provided for a December 31, 2001 deadline for TDLR to adopt rules to
implement the Act (SB 1175, Article 3, §3.07(e) and (f)).
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 February 15, 2002.
TRD-200200948
Stephanie Bergeron
Division Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 7, 2002
Proposal publication date: November 23, 2001
For further information, please call: (512) 239-5017
30 TAC §§289.11 - 289.22
STATUTORY AUTHORITY
The repeals are adopted under SB 1175, Chapter 20 (Act), 77th Legislature,
2001, which made the following finding: "that the Department of Agriculture
is the proper state agency to administer grants to political subdivisions
for weather modification and control activities" (SB 1175, Article 2, §2.01;
amending Texas Agricultural Code, Chapter 20). It removed "the state's weather
modification program including the issuance of permits and licenses and the
enforcement of permits, licenses, rules, standards, and orders relating to
weather modification" from the commission's jurisdiction by deleting the quoted
language from TWC, §5.013 (SB 1175, Article 3, §3.01; amending TWC, §5.013(a)).
It repealed TWC, Chapter 18 (Weather Modification) and TWC, §7.144 (Violation
Relating to Weather Modification) (SB 1175, Article 3, §3.06). As of
the September 1, 2001, effective date of the Act, it transferred all powers,
duties, obligations, rights, records, employees, and property of the commission
on the effective date of this Act to administer the weather modification program
to the TDLR (SB 1175, Article 3, §3.07(a)). It transferred all powers,
duties, obligations, rights, contracts, records, property, and unspent or
unobligated appropriations and other funds of the commission on the effective
date of this Act to administer the weather modification grant program to the
TDA (SB 1175, Article 3, §3.07(b)). "All rules, policies, procedures,
and decisions that affect the weather modification program are continued in
effect until superceded by a rule or other appropriate action of the TDLR."
(SB 1175, Article 3, §3.07(c)). It further transferred any commission
weather modification program actions or proceedings to TDLR without change
in status (SB 1175, Article 3, §3.07(d)). Finally, it abolished the commission's
weather modification program under TWC, Chapter 18 and provided for a December
31, 2001 deadline for TDLR to adopt rules to implement the Act (SB 1175, Article
3, §3.07(e) and (f)).
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 February 15, 2002.
TRD-200200949
Stephanie Bergeron
Division Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 7, 2002
Proposal publication date: November 23, 2001
For further information, please call: (512) 239-5017
30 TAC §289.31, §289.32
STATUTORY AUTHORITY
The repeals are adopted under SB 1175, Chapter 20 (Act), 77th Legislature,
2001, which made the following finding: "that the Department of Agriculture
is the proper state agency to administer grants to political subdivisions
for weather modification and control activities" (SB 1175, Article 2, §2.01;
amending Texas Agricultural Code, Chapter 20). It removed "the state's weather
modification program including the issuance of permits and licenses and the
enforcement of permits, licenses, rules, standards, and orders relating to
weather modification" from the commission's jurisdiction by deleting the quoted
language from TWC, §5.013 (SB 1175, Article 3, §3.01; amending TWC, §5.013(a)).
It repealed TWC, Chapter 18 (Weather Modification) and TWC, §7.144 (Violation
Relating to Weather Modification) (SB 1175, Article 3, §3.06). As of
the September 1, 2001, effective date of the Act, it transferred all powers,
duties, obligations, rights, records, employees, and property of the commission
on the effective date of this Act to administer the weather modification program
to the TDLR (SB 1175, Article 3, §3.07(a)). It transferred all powers,
duties, obligations, rights, contracts, records, property, and unspent or
unobligated appropriations and other funds of the commission on the effective
date of this Act to administer the weather modification grant program to the
TDA (SB 1175, Article 3, §3.07(b)). "All rules, policies, procedures,
and decisions that affect the weather modification program are continued in
effect until superceded by a rule or other appropriate action of the TDLR."
(SB 1175, Article 3, §3.07(c)). It further transferred any commission
weather modification program actions or proceedings to TDLR without change
in status (SB 1175, Article 3, §3.07(d)). Finally, it abolished the commission's
weather modification program under TWC, Chapter 18 and provided for a December
31, 2001 deadline for TDLR to adopt rules to implement the Act (SB 1175, Article
3, §3.07(e) and (f)).
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 February 15, 2002.
TRD-200200950
Stephanie Bergeron
Division Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 7, 2002
Proposal publication date: November 23, 2001
For further information, please call: (512) 239-5017
30 TAC §§289.41 - 289.44
STATUTORY AUTHORITY
The repeals are adopted under SB 1175, Chapter 20 (Act), 77th Legislature,
2001, which made the following finding: "that the Department of Agriculture
is the proper state agency to administer grants to political subdivisions
for weather modification and control activities" (SB 1175, Article 2, §2.01;
amending Texas Agricultural Code, Chapter 20). It removed "the state's weather
modification program including the issuance of permits and licenses and the
enforcement of permits, licenses, rules, standards, and orders relating to
weather modification" from the commission's jurisdiction by deleting the quoted
language from TWC, §5.013 (SB 1175, Article 3, §3.01; amending TWC, §5.013(a)).
It repealed TWC, Chapter 18 (Weather Modification) and TWC, §7.144 (Violation
Relating to Weather Modification) (SB 1175, Article 3, §3.06). As of
the September 1, 2001, effective date of the Act, it transferred all powers,
duties, obligations, rights, records, employees, and property of the commission
on the effective date of this Act to administer the weather modification program
to the TDLR (SB 1175, Article 3, §3.07(a)). It transferred all powers,
duties, obligations, rights, contracts, records, property, and unspent or
unobligated appropriations and other funds of the commission on the effective
date of this Act to administer the weather modification grant program to the
TDA (SB 1175, Article 3, §3.07(b)). "All rules, policies, procedures,
and decisions that affect the weather modification program are continued in
effect until superceded by a rule or other appropriate action of the TDLR."
(SB 1175, Article 3, §3.07(c)). It further transferred any commission
weather modification program actions or proceedings to TDLR without change
in status (SB 1175, Article 3, §3.07(d)). Finally, it abolished the commission's
weather modification program under TWC, Chapter 18 and provided for a December
31, 2001 deadline for TDLR to adopt rules to implement the Act (SB 1175, Article
3, §3.07(e) and (f)).
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 February 15, 2002.
TRD-200200951
Stephanie Bergeron
Division Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 7, 2002
Proposal publication date: November 23, 2001
For further information, please call: (512) 239-5017
30 TAC §§289.51 - 289.53
STATUTORY AUTHORITY
The repeals are adopted under SB 1175, Chapter 20 (Act), 77th Legislature,
2001, which made the following finding: "that the Department of Agriculture
is the proper state agency to administer grants to political subdivisions
for weather modification and control activities" (SB 1175, Article 2, §2.01;
amending Texas Agricultural Code, Chapter 20). It removed "the state's weather
modification program including the issuance of permits and licenses and the
enforcement of permits, licenses, rules, standards, and orders relating to
weather modification" from the commission's jurisdiction by deleting the quoted
language from TWC, §5.013 (SB 1175, Article 3, §3.01; amending TWC, §5.013(a)).
It repealed TWC, Chapter 18 (Weather Modification) and TWC, §7.144 (Violation
Relating to Weather Modification) (SB 1175, Article 3, §3.06). As of
the September 1, 2001, effective date of the Act, it transferred all powers,
duties, obligations, rights, records, employees, and property of the commission
on the effective date of this Act to administer the weather modification program
to the TDLR (SB 1175, Article 3, §3.07(a)). It transferred all powers,
duties, obligations, rights, contracts, records, property, and unspent or
unobligated appropriations and other funds of the commission on the effective
date of this Act to administer the weather modification grant program to the
TDA (SB 1175, Article 3, §3.07(b)). "All rules, policies, procedures,
and decisions that affect the weather modification program are continued in
effect until superceded by a rule or other appropriate action of the TDLR."
(SB 1175, Article 3, §3.07(c)). It further transferred any commission
weather modification program actions or proceedings to TDLR without change
in status (SB 1175, Article 3, §3.07(d)). Finally, it abolished the commission's
weather modification program under TWC, Chapter 18 and provided for a December
31, 2001 deadline for TDLR to adopt rules to implement the Act (SB 1175, Article
3, §3.07(e) and (f)).
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 February 15, 2002.
TRD-200200952
Stephanie Bergeron
Division Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 7, 2002
Proposal publication date: November 23, 2001
For further information, please call: (512) 239-5017
30 TAC §289.61, §289.62
STATUTORY AUTHORITY
The repeals are adopted under SB 1175, Chapter 20 (Act), 77th Legislature,
2001, which made the following finding: "that the Department of Agriculture
is the proper state agency to administer grants to political subdivisions
for weather modification and control activities" (SB 1175, Article 2, §2.01;
amending Texas Agricultural Code, Chapter 20). It removed "the state's weather
modification program including the issuance of permits and licenses and the
enforcement of permits, licenses, rules, standards, and orders relating to
weather modification" from the commission's jurisdiction by deleting the quoted
language from TWC, §5.013 (SB 1175, Article 3, §3.01; amending TWC, §5.013(a)).
It repealed TWC, Chapter 18 (Weather Modification) and TWC, §7.144 (Violation
Relating to Weather Modification) (SB 1175, Article 3, §3.06). As of
the September 1, 2001, effective date of the Act, it transferred all powers,
duties, obligations, rights, records, employees, and property of the commission
on the effective date of this Act to administer the weather modification program
to the TDLR (SB 1175, Article 3, §3.07(a)). It transferred all powers,
duties, obligations, rights, contracts, records, property, and unspent or
unobligated appropriations and other funds of the commission on the effective
date of this Act to administer the weather modification grant program to the
TDA (SB 1175, Article 3, §3.07(b)). "All rules, policies, procedures,
and decisions that affect the weather modification program are continued in
effect until superceded by a rule or other appropriate action of the TDLR."
(SB 1175, Article 3, §3.07(c)). It further transferred any commission
weather modification program actions or proceedings to TDLR without change
in status (SB 1175, Article 3, §3.07(d)). Finally, it abolished the commission's
weather modification program under TWC, Chapter 18 and provided for a December
31, 2001 deadline for TDLR to adopt rules to implement the Act (SB 1175, Article
3, §3.07(e) and (f)).
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 February 15, 2002.
TRD-200200953
Stephanie Bergeron
Division Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 7, 2002
Proposal publication date: November 23, 2001
For further information, please call: (512) 239-5017
Subchapter F. EAST TEXAS GROUNDWATER MANAGEMENT AREA
30 TAC §§294.60 - 294.63
The Texas Natural Resource Conservation Commission (commission)
adopts new §§294.60 - 294.63
without changes
to the proposed text as published in the October 26, 2001, issue of
the
Texas Register
(26 TexReg 8489) and will
not be republished.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
This adopted rulemaking adds new §§294.60 - 294.63 to designate
a new groundwater management area (GMA) in the eastern portion of the state
that would include all of Anderson, Angelina, Bowie, Camp, Cass, Cherokee,
Franklin, Gregg, Harrison, Henderson, Hopkins, Houston, Marion, Morris, Nacogdoches,
Panola, Rains, Rusk, Sabine, San Augustine, Shelby, Smith, Titus, Trinity,
Upshur, Van Zandt, and Wood Counties. The purpose of the adopted rulemaking
is to provide the most suitable boundary for the management of the groundwater
resources. The rulemaking is made in response to a petition requesting a designation
of a GMA submitted on February 8, 2001 by Save Our Springs of North East Texas,
Inc. on behalf of 57 landowners in Wood County and a March 21, 2001 commission
decision regarding the petition to initiate rulemaking.
Landowner Petition and Commission Decision
The February 8, 2001 petition requested that the commission designate a
GMA to include all of Wood County and that the GMA be designated with the
objective of providing the most suitable area for the management of groundwater
resources by a groundwater conservation district. The petition included resolutions
supporting commission designation of a GMA from the Wood County Commissioners
Court, City of Hawkins, City of Winnsboro, Hawkins Area Chamber of Commerce,
and the Upshur County Commissioners Court.
In January 2001, the commission received copies of similar resolutions
supporting the commission designation of a GMA in the area for the Carrizo-Wilcox
Aquifer. Similar resolutions were submitted by the Wood Soil and Water Conservation
District (S&WCD) Number 444 (Wood County), the Upshur-Gregg Water S&WCD
Number 417 (Upshur and Gregg Counties), the Sulphur-Cypress S&WCD Number
419 (Camp, Franklin, Morris, and Titus Counties), and the Hopkins-Rains S&WCD
Number 445 (Hopkins and Rains Counties).
On March 21, 2001, the commission considered the petition and instructed
the executive director's staff to study whether a GMA should be designated
in the area, and if they determined that one was appropriate, to propose a
rule that would designate and delineate the area as a GMA. Because of the
regional nature of the groundwater resources that occur in Wood and the surrounding
counties, the commission also instructed the executive director's staff to
evaluate the most suitable boundaries for the delineation of a GMA for the
regional groundwater resources.
The petition was processed by the executive director's staff under the
Administrative Procedure Act (APA), Texas Government Code, §2001.021
and 30 TAC §20.15 and §§294.21 - 294.23. The petition was found
to meet the requirements of Texas Water Code (TWC), §35.005 (Pre-Senate
Bill (SB) 2, 2001) and §294.22, which provide for the landowner petition
process for the designation of a GMA.
Prior to September 1, 2001, TWC, §35.004, Designation of Groundwater
Management Areas, provided that the commission on its own motion, or in response
to receiving a petition, may designate a GMA. Texas Water Code, §35.004
also provided that to the extent feasible, GMAs shall coincide with the boundaries
of a groundwater reservoir (aquifer) or subdivision of an aquifer. However,
the statute allows the commission to consider other factors such as the boundaries
of political subdivisions to delineate and designate GMAs to provide for the
most suitable area to accomplish groundwater management.
Senate Bill 2, 77th Legislature, 2001, made significant changes to TWC,
Chapter 35 that became effective on September 1, 2001. As amended by SB 2,
the designation of GMAs will be the under the jurisdiction of the Texas Water
Development Board (TWDB). Texas Water Code, §35.004(a) as amended by
SB 2, provides that the TWDB shall complete the initial designation of GMAs
for all of the state's major and minor aquifers by September 1, 2003. Texas
Water Code, §35.004(b) as amended by SB 2, however, provides that the
commission may designate a GMA after September 1, 2001 for a petition filed
and accepted by the commission according to its rules in effect before September
1, 2001, and that the commission shall act on the designation in accordance
with §35.004 as amended. Texas Water Code, §35.005 and §35.006
were repealed.
Reason for the Rules and Purpose of GMA Designation
The commission adopts this rulemaking to meet the commission's responsibility
under TWC, Chapter 35 to designate GMAs. The designation of the GMA would
facilitate both the creation of locally managed groundwater conservation districts
and regional cooperation by newly created districts to manage regional groundwater
resources.
The purpose for designation of a GMA is two-fold. First, a GMA is a prerequisite
for the creation of a groundwater conservation district through TWC, Chapter
36 landowner petition process. A GMA must be designated before a groundwater
conservation district can be created administratively by the commission in
response to a landowner district-creation petition. Groundwater management
is accomplished by groundwater conservation districts as created and authorized
under TWC, Chapter 36, or by special law. A GMA is only an identified geographic
area and as such does not provide any entity with groundwater management authority.
The designation of a GMA by the new rules would simplify future landowner
petitions for the creation of new groundwater conservation districts in the
identified area. Secondly, the designation would facilitate joint management
planning among groundwater conservation districts that share the same aquifers.
Groundwater conservation districts that are located in a common GMA are required
under TWC, §36.108 to coordinate groundwater management planning for
conservation of the common groundwater resources. The adopted new rules define
an area where future groundwater conservation districts will be required to
coordinate groundwater management planning for the Carrizo-Wilcox Aquifer
and other aquifers.
Previous GMA Designations for the Carrizo-Wilcox
Aquifer
The Carrizo-Wilcox Aquifer is exposed on the land surface in a belt from
Mexico northeasterly across Texas into Arkansas and Louisiana and dips toward
the Gulf of Mexico. The commission, or its predecessors, have designated four
regional GMAs for the Carrizo-Wilcox Aquifer, all of which are south and west
of the Trinity River. In the southwestern part of the state, the Texas Board
of Water Engineers designated Subdivisions 1 and 2 of the Underground Water
Reservoir of the Carrizo-Wilcox Sands in 1957. Subdivision 1 includes the
Carrizo-Wilcox Aquifer in all or portions of Dimmit, Frio, La Salle, Medina,
Maverick, Uvalde, and Zavalla Counties. Subdivision 2 includes the Carrizo-Wilcox
Aquifer in all or portions of Atascosa, Bexar, McMullen, and Wilson Counties.
In 1987, the Texas Water Commission designated Management Areas 3 and 4 of
the Carrizo-Wilcox Aquifer. Management Area 3 includes the Carrizo-Wilcox
Aquifer in portions of Bastrop, Caldwell, DeWitt, Fayette, Gonzales, Guadalupe,
and Lavaca Counties. Management Area 4 includes the Carrizo-Wilcox Aquifer
in all or portions of Bastrop, Brazos, Burleson, Falls, Fayette, Freestone,
Grimes, Lee, Leon, Limestone, Madison, Milam, Navarro, Robertson, Walker,
and Williamson Counties.
The adopted rules do not include the previously designated areas. The adopted
GMA includes all of Anderson, Angelina, Bowie, Camp, Cass, Cherokee, Franklin,
Gregg, Harrison, Henderson, Hopkins, Houston, Marion, Morris, Nacogdoches,
Panola, Rains, Rusk, Sabine, San Augustine, Shelby, Smith, Titus, Trinity,
Upshur, Van Zandt, and Wood Counties.
General Stratigraphy
The geologic units that contain groundwater resources in the adopted GMA
are the Tertiary-age Midway Group, Wilcox Group, Claiborne Group, and Jackson
Group. The Claiborne Group of the Eocene Epoch includes the major water-bearing
formations in the east Texas area. These are the Carrizo Sand, Queen City
Formation, Sparta Formation, and Yegua Formation. The lower portion of the
Carrizo-Wilcox Aquifer includes units of the Wilcox Group and the upper portions
consists of the Carrizo Sands of the Claiborne Group. The Queen City and Sparta
Aquifers include the Queen City and Sparta Formations of the Claiborne Group,
respectively. The Yegua-Jackson Aquifer includes the upper unit of the Claiborne
Group, the Yegua Formation, and the overlying Jackson Group of the Eocene
Epoch. The Jackson Group includes the Witsett, Manning, Wellborn, and Cadell
Formations.
Rock units to the north and west of the adopted GMA are older, Cretaceous-age
rocks that are not geologically or hydrologically associated with those in
the adopted GMA. The primary Cretaceous Aquifers to the northwest include
the Trinity Group, Woodbine, Nacatoch, and Blossom Aquifers.
Rock units to the south are younger Tertiary-age (Oligocene-Miocene Epoch)
rocks where the primary major aquifer is the Gulf Coast Aquifer. The lower
most (oldest) unit of the Gulf Coast Aquifer is the Catahoula Formation that
acts as a restrictive confining system, separating the aquifer from the underlying
Jackson Group.
Geologic Controls
Rock units including the Tertiary-age Aquifers east of the Balcones Fault
System in central Texas generally dip toward the Gulf of Mexico. The northern
portion of the Carrizo-Wilcox Aquifer is more complex structurally than it
is in its southern extent in existing Management Areas 1 - 4. The aquifer
crops out in two distinct bands (where the aquifer units are exposed at the
surface), one extending from Management Area 4 at the Trinity River northeasterly
through Henderson, Van Zandt, Rains, Wood, Hopkins, Franklin, Titus, Morris,
Cass, and Bowie Counties; the other, caused by the Sabine Uplift to the southeast,
in Marion, Harrison, Gregg, Rusk, Panola, Shelby, Nacogdoches, San Augustine,
and Sabine Counties. Between these two outcrop areas lies the East Texas structural
basin, a trough into which sediments of the aquifer dip from both sides. South
of Anderson, Cherokee, Nacogdoches, San Augustine, and Sabine Counties, the
aquifer dips toward the Gulf Coast. The Queen City Aquifer outcrops southeast
of the western Carrizo-Wilcox outcrop and overlies the downdip portion of
the Carrizo-Wilcox Aquifer in the East Texas structural basin. South of Cherokee
and Anderson Counties, the sediments dip to the south. The outcrop of the
Sparta Aquifer is southeast of the outcrop of the Queen City Aquifer and overlies
the downdip portion of the Queen City Aquifer in Houston, Anderson, Cherokee,
Angelina, and Nacogdoches Counties. The sediments that make up the aquifer
dip to the south and southeast toward the Gulf Coast. The outcrop of the Yegua-Jackson
Aquifer occurs south of the outcrop of the Sparta Aquifer. This aquifer crops
out in an east to west direction across Trinity, Angelina, San Augustine,
and Sabine Counties and dips south-southeast toward the Gulf Coast.
Groundwater Use
Based on 1997 estimated groundwater pumpage data maintained by the TWDB,
the Carrizo-Wilcox, Queen City, Sparta, and Yegua-Jackson Aquifers are the
primary aquifers utilized within the adopted GMA. Pumpage of groundwater from
the Carrizo-Wilcox Aquifer alone accounted for greater than 70% of the total
groundwater pumpage in 20 of the 27 counties (Anderson, Angelina, Camp, Cass,
Cherokee, Franklin, Harrison, Henderson, Hopkins, Morris, Nacogdoches, Panola,
Rains, Rusk, Shelby, Smith, Titus, Upshur, Van Zandt, and Wood) and greater
than 50% of the total groundwater pumpage in two additional counties, Gregg
and Marion. Combined groundwater pumpage from the Carrizo-Wilcox, Queen City,
and Sparta Aquifers accounted for greater than 95% of the total groundwater
pumpage in all of these counties except for Angelina (87%), Hopkins (87%),
Rains (80%), and Titus (94%).
Significant groundwater pumpage from the Yegua-Jackson Aquifer occurs in
five of the counties in the southern part of the adopted GMA. The 1997 estimated
groundwater pumpage from the Yegua-Jackson Aquifer in Angelina, Houston, Sabine,
San Augustine, and Trinity Counties accounted for 12%, 43%, 78%, 52%, and
97%, respectively, of the total groundwater pumpage in these counties. Combined
groundwater pumpage from the Yegua-Jackson Aquifer and the Carrizo-Wilcox,
Queen City, and Sparta Aquifers accounted for greater that 95% of the total
groundwater pumpage in all five of these counties.
Groundwater pumpage from other aquifers delineated by the TWDB also occurs
in the adopted GMA. The 1997 estimated groundwater pumpage from the Gulf Coast
Aquifer accounted for three percent of the total pumpage in Trinity County.
Pumpage from the Nacatoch Aquifer accounted for 44% and 11% of the total groundwater
pumpage in Bowie and Hopkins Counties, respectively. Pumpage from the Blossom
Aquifer accounted for five percent of the total pumpage in Bowie County.
Regional Assessment of Groundwater Resources
The Carrizo-Wilcox Aquifer is the primary groundwater resource in the adopted
GMA. This aquifer is identified as a major aquifer by the TWDB because it
supplies large quantities of water to a large area of the state. The Queen
City and Sparta Aquifers are also important groundwater resources in the adopted
GMA. These aquifers are identified by the TWDB as minor aquifers because they
supply large quantities of water in small areas of the state or small quantities
of water in large areas of the state. The Yegua-Jackson Aquifer has not been
delineated by the TWDB to date; however, this aquifer is also an important
resource in the southern part of the adopted GMA. The Trinity Group Aquifer
is the major aquifer to the northwest, and the Gulf Coast Aquifer is the major
aquifer to the south of the adopted GMA.
The Carrizo-Wilcox, Queen City, Sparta, and Yegua-Jackson Aquifers are
regional aquifers. They extend from the Arkansas and Louisiana borders into
south Texas. The Carrizo-Wilcox and Yegua-Jackson Aquifers extend to the Rio
Grande and the Queen City and Sparta Aquifers extend into Frio and La Salle
Counties to the south. Both the Carrizo-Wilcox and Queen City Aquifers underlie
Wood and surrounding counties and the Sparta and Yegua Formation-Jackson Group
Aquifers are regionally and geologically associated with the other two aquifers.
The designation of the GMA by the adopted new rules delineates an area where
regional groundwater management planning for these overlapping aquifers can
be coordinated by existing and any future groundwater conservation districts.
Although the Nacatoch Aquifer occurs in parts of Bowie, Franklin, Hopkins,
Morris, Rains, and Titus Counties and the Blossom Aquifer occurs in Bowie
County, the Carrizo-Wilcox Aquifer is the primary major aquifer in this six-county
area. The commission determined that all of the territory in these counties
should be included in the adopted GMA because of the shared primary major
aquifer, but that other counties to the north and west that do not share the
Carrizo-Wilcox Aquifer should not. Regional groundwater management planning
for the Trinity Group Aquifer and the other minor Cretaceous Aquifers outside
of the adopted GMA would be better accomplished through a separate designation
of a different GMA.
In the adopted GMA, the Gulf Coast Aquifer occurs only in the extreme southern
part of Angelina, Sabine, and Trinity Counties. Again, the commission determined
that all of the territory in these three counties should be included in the
adopted GMA due to the shared Carrizo-Wilcox major aquifer, but that other
counties to the south should not. Regional groundwater management planning
for the Gulf Coast Aquifer to the south would be better accomplished through
a separate designation of a different GMA.
Adopted Boundaries
The commission considered numerous factors to develop these rules. The
commission considered the purpose of a GMA for aquifers in Wood and the surrounding
counties. This purpose is to delineate the most suitable area for the management
of groundwater resources. To delineate the GMA, the commission evaluated the
regional nature, extent, and use of the aquifers shared by Wood and the surrounding
counties. The commission reviewed and evaluated the extent and delineation
of the previously designated GMAs to the south and west for the Carrizo-Wilcox
Aquifer. The commission also evaluated the extent, location, and relationship
of other major and minor aquifers to the north and west and to the south of
the adopted area and the extent, location, and relationship of the aquifers
within the area. The commission considered the directions given to the TWDB
in SB 2 to designate GMAs for all of the state's major and minor aquifers.
The commission also considered other factors such as political subdivision
boundaries because such boundaries are often recognized and preferred during
locally-initiated groundwater conservation district creation efforts.
Texas Water Code, Chapter 35 provides that to the extent feasible, boundaries
of aquifers shall be considered when designating GMAs. Chapter 35 also provides
that other factors, including the boundaries of political subdivisions, may
be considered. Previous GMA designations by the commission or its predecessors
have been delineated by hydrological boundaries or by a combination of hydrological
and political subdivision (county) boundaries. While designating GMAs by hydrological
boundaries is the preferred practice, political boundary considerations are
often major considerations in establishing groundwater conservation district
boundaries. Generally, the political boundaries preferred by petitioners or
by citizens initiating district creation do not coincide with hydrogeologic
boundaries.
Texas Water Code, Chapter 35 provides that each GMA shall be designated
with the objective of providing the most suitable area for management of the
groundwater resources, and TWC, Chapter 36 provides that groundwater conservation
districts are the state's preferred method of groundwater management. There
are presently 87 groundwater conservation districts created in the state;
64 are presently established and the other 23, created by special Acts of
the 77th Legislature, 2001, will require confirmation of the voters to be
established. Of the 87 districts, the citizens that have initiated district
creation have preferred strict county boundaries for 68 (78%) of the districts.
A combination of county boundaries and other types of boundaries account for
an additional 12 (14%) of the districts. Therefore, county boundaries have
been a primary consideration for 92% of all groundwater conservation districts
created to date. Only seven of the 87 (8%) districts were created strictly
on hydrological boundaries. The East Texas Groundwater Management Area (ETGMA)
is adopted to be delineated to include full counties because it is most likely
that these types of boundaries would be recognized and preferred by citizens
in future groundwater conservation district creation efforts.
The commission considered the boundaries of major and minor aquifers, pumpage
from aquifers, and political subdivision boundaries that would facilitate
groundwater conservation district creation in developing the adopted GMA delineation.
The commission determined that the delineated boundaries are the most suitable
boundaries for management of the regional groundwater resources that occur
in the east Texas area.
Of the 27 counties in the GMA, 19 (Anderson, Angelina, Camp, Cass, Cherokee,
Gregg, Harrison, Houston, Marion, Morris, Nacogdoches, Panola, Rusk, Sabine,
San Augustine, Shelby, Smith, Upshur, and Wood) are entirely underlain or
almost entirely underlain by the Carrizo-Wilcox, Queen City, Sparta, or Yegua-Jackson
Aquifers. The location of the aquifers were the primary considerations for
inclusion of these counties.
In addition to the location of the aquifers, the commission considered
groundwater use in evaluating whether the full extent of a county should be
included in the adopted area. Part of Trinity County, on the southern boundary
of the adopted GMA, is underlain by the Gulf Coast Aquifer. However, the 1997
estimated groundwater pumpage from the Yegua-Jackson Aquifer in Trinity County
accounted for 97% of the total groundwater use, while pumpage from the Gulf
Coast Aquifer accounted for only three percent of the total groundwater use.
Based on this percentage of groundwater pumpage, the commission has determined
that all of Trinity County be included within the adopted GMA.
Seven of the northern counties (Henderson, Van Zandt, Rains, Hopkins, Franklin,
Titus, and Bowie) in the adopted GMA are partially underlain by the Carrizo-Wilcox
Aquifer or both the Carrizo-Wilcox and Queen City Aquifers and partially underlain
by other aquifers that are primarily located outside of the adopted area.
Again, the commission considered groundwater use in evaluating whether the
full extent of these counties should be included in the adopted area. In six
of the counties (Henderson, Van Zandt, Rains, Hopkins, Franklin, and Titus),
groundwater pumpage from either the Carrizo-Wilcox Aquifer or both the Carrizo-Wilcox
and Queen City Aquifers accounted for greater than 80% of the total pumpage
and exceeded 95% of the total groundwater pumpage in Henderson, Van Zandt,
and Franklin Counties. Based on these percentages of groundwater pumpage,
the commission has determined that all of these six counties be included within
the adopted GMA.
Bowie County is underlain by one major aquifer, the Carrizo-Wilcox Aquifer;
two minor aquifers, the Nacatoch and Blossom Aquifers; and other undifferentiated
sources. The commission considered groundwater use in evaluating whether the
full extent of the county should be included in the adopted area. The 1997
TWDB estimated groundwater pumpage data for the county indicated that pumpage
from the Carrizo-Wilcox Aquifer accounted for 38% of the total pumpage. Pumpage
from the Nacatoch and Blossom Aquifers accounted for 44% and five percent,
respectively, of the total groundwater pumpage. Groundwater pumpage from undifferentiated
sources, that is not from a major or minor aquifer specifically identified
in the TWDB data set, accounted for 14% of the total pumpage in the county.
Since groundwater pumpage in Bowie County relies heavily upon both the Carrizo-Wilcox
and Nacatoch Aquifers, the commission also considered other issues related
to political subdivision boundaries and groundwater management.
The commission considered three possible GMA delineation scenarios for
Bowie County: 1.) include the full extent of the county in the GMA; 2.) divide
the county hydrologically and only including the area underlain by the Carrizo-Wilcox
Aquifer in the GMA; or 3.) exclude the full extent of the county from the
GMA.
Under the first option, inclusion of all of Bowie County in the GMA, the
area would include the full extent of the regional Carrizo-Wilcox Aquifer
and would recognize boundaries that are generally preferred in groundwater
conservation district creation efforts. While estimated groundwater pumpage
from the Carrizo-Wilcox Aquifer in Bowie County does not represent the majority
of total pumpage, it does represent a significant percentage of the pumpage.
Including the full county in the GMA would assure groundwater conservation
district coordination if more than one district is created in the east Texas
area. The disadvantage of full-county inclusion would be the limitation placed
on coordinated management planning for the Nacatoch Aquifer should a GMA be
designated specifically for this minor aquifer.
The commission considered a second option, dividing Bowie County hydrogeologically
and only including the area underlain by the Carrizo-Wilcox Aquifer in the
GMA. Based on review of district creations, this option may be problematic
for groundwater conservation district creation. Historically, landowners that
have initiated groundwater conservation district creation efforts, either
under TWC, Chapter 36 or through special law, have preferred recognizable
or politically standing boundaries. If only part of the county were included
in the area, the commission could not, in response to a landowner district
creation petition, create a district that would include all of the county.
Furthermore, the commission must consider financial information in the proceedings
to create a groundwater conservation district. An application to create a
groundwater conservation district must include estimates for projected revenue
and expense for the proposed district. If only a portion of the county was
included in the area, it may be likely that there would not be sufficient
revenue to finance district operation and maintenance or that revenue rates
would have to be established at levels that would be unacceptable to the voters.
Either of these situations would potentially lead to a proposed district the
commission could not create, or a proposed district that would likely fail
to be confirmed by the voters. Under this scenario, the only alternative for
the creation of a county-wide groundwater conservation district would be through
special law.
The commission considered a third option, excluding the full extent of
Bowie County from the GMA. This option would not provide for the most suitable
area for management of the Carrizo-Wilcox Aquifer in east Texas. This option
would isolate a single part of the Carrizo-Wilcox Aquifer from the remaining
part of the regional aquifer, and thus would inhibit coordinated groundwater
management for the regional resource and remove the ability of a groundwater
conservation district to redress the failure of coordinated management with
the commission under TWC, §36.108 and §36.3011.
The commission determined that the full extent of Bowie County should be
included in the adopted ETGMA. The commission determined that including the
full extent of the county would be beneficial to the citizens of Bowie County
should they choose, in the future, to petition the commission for the creation
of a groundwater conservation district. Furthermore, the inclusion of the
county in the adopted GMA would assure that coordinated management of the
Carrizo-Wilcox Aquifer would be accomplished if such a district were created
either by the commission or by the legislature.
SECTION BY SECTION DISCUSSION
Adopted new §294.60, Purpose and Scope, provides the purpose and scope
of the adopted rules. The adopted section provides that the purpose of the
rule is to designate the ETGMA. The adopted new section reiterates that the
rules do not empower any entity with groundwater management authority; that
designation of a GMA is a prerequisite for the creation of a groundwater conservation
district through the TWC, Chapter 36 landowner petition process; and that
groundwater conservation districts within the management area will be subject
to the management planning provisions of TWC, §36.108.
Adopted new §294.61, Definitions, provides definitions for certain
words and terms. The adopted section is included to clearly define these words
and terms as used in the adopted rules. The definitions provided for the Carrizo-Wilcox,
Queen City, and Sparta Aquifers are based on previous aquifer-delineation
work of the TWDB (Ashworth, J.B. and Flores, R.R., Texas Water Development
Board Report LP-212, June 1991 and Ashworth, J.B. and Hopkins, J., Texas Water
Development Board Report 395, November 1995). The definition of the Yegua-Jackson
Aquifer is based on ongoing aquifer evaluation work of the TWDB and previously
published TWDB reports (Anders, R.B., Texas Water Development Board Report
37, January 1967 and Guyton, W.F. and Associates, Texas Water Development
Board Report 110, March 1970). Groundwater management area is given the same
definition as provided by TWC, §35.002(11). The definition of other aquifers
identifies additional groundwater resources that are located in the adopted
GMA.
Adopted new §294.62, Designation of East Texas Groundwater Management
Area (ETGMA), provides for the designation of the ETGMA and provides that
the area is designated for the management of the Carrizo-Wilcox Aquifer, Queen
City Aquifer, Sparta Aquifer, Yegua-Jackson Aquifer, and other aquifers.
Adopted new §294.63, Boundaries, provides the boundaries for the ETGMA.
The ETGMA will have boundaries that are coterminous with, that is having the
same boundaries, and include all territory within Anderson, Angelina, Bowie,
Camp, Cass, Cherokee, Franklin, Gregg, Harrison, Henderson, Hopkins, Houston,
Marion, Morris, Nacogdoches, Panola, Rains, Rusk, Sabine, San Augustine, Shelby,
Smith, Titus, Trinity, Upshur, Van Zandt, and Wood Counties.
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 the
rulemaking is not subject to §2001.0225 because it does not meet the
definition of a "major environmental rule." "A 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 section
of the state. While the purpose of the rules is ultimately, if a groundwater
conservation district is created, to promote coordination of groundwater management
within the area which could provide protection to the environment, the rules
do not 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 section of the state. The designation of a GMA in
itself does not have any regulatory effect. The subsequent creation of a groundwater
conservation district within the GMA would have a regulatory effect.
The commission solicited comments on the draft regulatory impact analysis
determination. No comments were received on the draft regulatory impact analysis
determination.
TAKINGS IMPACT ASSESSMENT
The commission conducted a takings impact assessment for this rule under
Texas Government Code, §2007.043, the Texas Private Real Property Rights
Preservation Act. This rulemaking is intended to designate an area as a GMA
under TWC, §35.004. This section provides that pursuant to a petition
filed and accepted by the commission before September 1, 2001, the commission
can designate by rule GMAs to provide the most suitable area for the management
of groundwater. This rulemaking does not impact any person's private real
property because the designation of a GMA does not, in itself, lead to any
regulatory requirements on the land in the area.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM (CMP)
The commission reviewed the rulemaking and found that it is neither identified
in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11,
relating to Actions and Rules Subject to the Texas Coastal Management Program
nor does it affect any action or authorization identified in §505.11.
This rulemaking concerns only the designation of a GMA. Therefore, the rulemaking
is not subject to the CMP.
The commission solicited comments on the consistency determination. No
comments were received on the consistency determination.
HEARING AND COMMENTERS
The proposed rules were published in the October 26, 2001, issue of the
A total of 15 commenters provided comments on the proposed rules: C. Miller
Water Well Drilling Company (MWWD); Mr. George Campbell, Chairman, Regional
Water Planning Group I (RWPG I); Cypress Springs Water Supply Corporation
(CSWSC); Fair Management (FM); Greater Lake Palestine Council (GLPC); Mr.
J. C. Hughes, City Manager, City of Nacogdoches (City of Nacogdoches); the
Honorable Sue Kennedy, County Judge, Nacogdoches County; Larry's Water Well
Drilling (LWWD); Northeast Territory Management (NTM); Northeast Texas Municipal
Water District (NTMWD); Smith County Water District No. 1 (SCWD#1); the Honorable
Jerry Yost, former Texas State Representative; and three individuals.
Of these, two individuals and GLPC commented that they were generally in
favor of the proposal. One individual, FM, CSWSC, NTMWD, the Honorable Jerry
Yost, SCWD#1, LWWD, the Honorable Sue Kennedy, RWPG I, and the City of Nacogdoches
provided general comments, but did not comment in favor of, or in opposition
to the proposal. These commenters did not suggest any changes. MWWD and NTM
commented that they were generally opposed to the proposal but did not suggest
any changes.
RESPONSE TO COMMENTS
Many comments were related to the creation, management, or decision making
of a groundwater conservation district or the designation of a priority groundwater
management area (PGMA). The commission attributes most of these comments
to confusion between the designation of a GMA, which is the subject of this
rulemaking, and the designation of a PGMA and/or the creation of a groundwater
conservation district which are separate processes and are not part of this
rulemaking. The commission further emphasizes that the designation of the
ETGMA by these adopted sections does not create a groundwater conservation
district, force the creation of a groundwater conservation district, or designate
or set a path to designate a PGMA.
Comment
FM, from Smith County, commented that it was opposed to the formation of
a groundwater conservation district by the proposal. FM also noted that "the
formation of the proposed district" by the proposal was contrary to, and circumvented
the direction of the legislature as set forth in SB 1. NTM commented it was
strongly opposed to the proposed rules because they basically created another
taxing entity. LWWD was opposed to groundwater conservation district well
spacing rules that would be more restrictive than state standards. MWWD commented
that the benefits versus the burden of groundwater management and creation
of a groundwater conservation district should be answered before any are created.
Response
The commission acknowledges these comments and responds that these sections
designate a GMA. They do not create a groundwater conservation district. The
commission cannot on its own motion, create a groundwater conservation district
or require a groundwater conservation district be created in a GMA. Landowners
would have to petition the commission under TWC, Chapter 36 or pursue special
law through the legislative process to create a groundwater conservation district,
or petition an existing groundwater conservation district to be added to the
district. No change has been made to the rules as a result of these comments.
Comment
CSWSC and NTMWD, water providers in Franklin, Wood, Hopkins, and Titus
Counties and Camp, Cass, Gregg, Harrison, Marion, Morris, and Upshur Counties,
respectively, and MWWD commented on concerns about the potential cost of groundwater
conservation districts in the proposed ETGMA. The water providers commented
on the varying reliance on surface water and groundwater throughout the proposed
ETGMA and noted that the cost to fund the operational expenses of a groundwater
conservation district could vary greatly because of the different levels of
dependence. Both commented that the designation of the proposed ETGMA would
not limit the financial options available to potential groundwater conservation
districts. The water suppliers noted they would be opposed to the proposed
rules if they would cause groundwater conservation districts to sustain additional
cost or suffer other financial consequences.
Response
The commission acknowledges these comments and responds that designation
of the ETGMA by these sections will not limit financial options available
to potential groundwater conservation districts or cause future districts
to suffer additional costs or financial consequences. (See previous response
to comments.) No change has been made to the rules as a result of these comments.
Comment
Judge Kennedy, RWPG I, and the City of Nacogdoches commented that the recent
creation of the Pineywoods Groundwater Conservation District in Angelina and
Nacogdoches Counties had been overwhelmingly supported at the local level
to manage groundwater resources in the area. Judge Kennedy noted the new district
did not want to have too many restrictions placed upon it for continuing to
work with other counties in the area to preserve groundwater resources. RWPG
I made similar comments about the recent creation of the Neches and Trinity
Valleys Groundwater Conservation District in Anderson, Henderson, and Cherokee
Counties. The City of Nacogdoches commented that local efforts have worked
hard to control their own groundwater management destiny, and its destiny
should not be controlled from Wood County.
Response
The commission agrees with these comments and recognizes that groundwater
management is accomplished by groundwater conservation districts. (See previous
response to comments.) The commission notes that TWC, Chapter 36 is structured
so that each groundwater conservation district is authorized to develop and
adopt the programs and rules that will be applicable and acceptable for groundwater
management for that district. The commission notes that under Chapter 36,
groundwater conservation districts are governed by locally elected boards
of directors who are responsible, through a public forum, for adopting the
policies, plans, and rules for the district.
The commission notes that designation of the ETGMA by these sections does
not authorize or empower any groundwater conservation district or county to
dictate groundwater management to any other such entity. Groundwater conservation
districts within a common GMA are required to forward of copy of their certified
groundwater management plans to other districts in the GMA. The level of groundwater
management coordination within a GMA is determined by the groundwater conservation
districts within the area. Texas Water Code, §36.108 provides that a
groundwater conservation district with just cause may request an inquiry by
the commission into another district's plan implementation and sets a high
threshold for such commission review. However, no groundwater conservation
district can exercise groundwater management authority or control over another
district. No change has been made to the rules as a result of these comments.
Comment
CSWSC and NTMWD commented that the local area should remain in a position
of control to determine whether or when to form a groundwater conservation
district and noted that the designation of the ETGMA would not alter the rights
of the local areas to make such decisions. CSWSC, NTMWD, and RWPG I commented
that they would be opposed to the proposed rules if they would limit local
control or decisions to form a groundwater conservation district. Similarly,
former Rep. Yost commented that local concerns and interests should control
their own destiny. Judge Kennedy commented on the importance of local, regional,
and state partnerships in managing groundwater but stressed the importance
of addressing groundwater management issues at the local level. RWPG I noted
that there were counties within its area (Smith, part of Trinity, Shelby,
Sabine, San Augustine, Rusk, Panola, and Houston) that have not had the opportunity
or are not aware of what may need to be done with respect to groundwater management.
RWPG I commented that citizens of counties without a groundwater conservation
district should have a choice to participate either as individual counties
or collectively as multiple counties and should have a choice on how local
groundwater conservation districts are structured and authorized.
Response
The commission agrees with these comments and acknowledges that TWC, Chapter
36 is structured to ensure local control in making groundwater management
decisions. The delineation and designation of the ETGMA by these sections
do not force or compel any county or counties to create a groundwater conservation
district. However, the commission notes that designation of the ETGMA by these
sections will facilitate the creation of a groundwater conservation district
if pursued through landowner petition--local initiative process. No change
has been made to the rules as a result of these comments.
Comment
CSWSC and NTMWD commented that local decisions to form groundwater conservation
districts is limited by the commission in PGMAs. The water providers commented
that if the proposed ETGMA becomes a PGMA, then the commission has statutory
directives to be involved and to potentially assert involuntary management
by creation or annexation of a groundwater conservation district. Former Rep.
Yost commented that the commission could designate an area as a PGMA which
could trigger a series of events leading to the creation of a groundwater
conservation district that would not be ratified by the citizens.
Response
The commission responds that these adopted rules only designate a GMA,
they do not designate a PGMA. Designation of a PGMA is a separate and statutorily
different procedure. The commission disagrees that local decisions to form
groundwater conservation districts is limited by the commission in a PGMA.
The procedure for PGMA designation is to identify, study, and delineate areas
of the state that are experiencing or are expected to experience critical
groundwater problems within a 25-year planning horizon, and to recommend groundwater
management strategies to address the identified critical groundwater problems.
Texas Water Code, Chapter 35 requires significant stakeholder involvement,
an evidentiary hearing, and educational programming in the PGMA designation
process. After a PGMA has been designated, the statute requires educational
programming fostered by county commissioner-appointed steering committees
and provides up to a two-year time frame for local decision making regarding
creation of a groundwater conservation district or addition of the PGMA to
an existing groundwater conservation district. The commission is mandated
to establish groundwater conservation districts in designated PGMAs only if
it finds that such districts are necessary and critical groundwater management
decisions are disregarded at the local level. No change has been made to the
rules as a result of these comments.
Comment
Former Rep. Yost commented that designation of the ETGMA would not prevent
the commission from later designating the area as a PGMA, at which time the
state would take control and local groundwater management options would be
lost. Former Rep. Yost commented that the State of Texas does not control
groundwater unless a PGMA is designated.
Response
The commission agrees that designation of the ETGMA would not prevent the
commission from later designating the area as a PGMA. However, the commission
notes such a PGMA designation would have to occur through a separate statutory
process as outlined in the previous response. The commission disagrees that
the state controls groundwater once a PGMA is designated. The commission has
no statutory authority to directly or indirectly manage groundwater resources.
Groundwater management is accomplished at the local level by groundwater conservation
districts. Even if the commission were required to create a groundwater conservation
district in a PGMA because local groundwater management decisions have not
been made to address identified critical groundwater problems, TWC, Chapter
35 requires county commissioners courts to appoint temporary directors for
the district, and the subsequent district directors would be elected. It is
this local board of directors that would develop and adopt the policies, plans,
and rules for the district to manage groundwater resources, and not the state.
No change has been made to the rules as a result of these comments.
Comment
An individual from Rusk County commented that many oil wells in the East
Texas Oil Field were not completed with surface casing extending below the
base of the Carrizo-Wilcox Aquifer. He noted that insufficient plugging of
such wells allows for contamination by the co-mingling of fresh groundwater
with groundwater from poorer-quality zones. He recognized the authority, jurisdiction,
and rules of the Railroad Commission of Texas (RCT) and requested the commission
to assist landowners in protecting groundwater supplies.
Response
The commission acknowledges this comment regarding the protection of groundwater
resources. As noted by the commentor, the protection of groundwater quality
for oil, gas, and other mineral exploration activities is the responsibility
of the RCT. The commission assists the RCT by providing letters of recommendation
as to the occurrence and depth of usable-quality groundwater in conjunction
with approval of various activities regulated by the RCT. These activities
include underground injection of oil and gas wastes, plugging and testing
of inactive wells, and exploration and productions of oil, gas, and other
minerals. The commission historically provides over 10,000 such surface casing
recommendations annually to the RCT and the energy industry. These recommendations
are available to the public upon request. No change has been made to the rules
as a result of this comment.
Comment
An individual from Cherokee County supported establishment of the proposed
ETGMA, noted the importance and need for water conservation education and
prevention of waste of water resources, and supported the eventual establishment
of a groundwater conservation district. A second individual from Smith County
supported the proposal. This individual favored doing everything within her
power to protect groundwater resources and supported local decision making
by landowners on groundwater management issues. SCWD#1 did not comment for,
or against the proposal but supported the eventual formation of a groundwater
conservation district to protect the groundwater resources of the area. GLPC
from Anderson, Cherokee, Henderson, and Smith Counties commented that they
supported the proposal and supported the recent creation and confirmation
of the Neches and Trinity Valleys Groundwater Conservation District.
Response
The commission acknowledges these comments. The commission notes that TWC, §36.0015
provides that groundwater conservation districts are the state's preferred
method of groundwater management. Through the authority vested to such districts,
groundwater conservation, protection, waste prevention, and educational outreach
programs are developed and implemented through local groundwater management
decision making. No change has been made to the rules as a result of these
comments.
Comment
RWPG I commented that the proposed rules state that a GMA is necessary
for the creation of a groundwater conservation district, but the commission
should clarify that other methods of groundwater conservation district creation
are available.
Response
The commission recognizes this comment and notes that §294.60(b) states:
"A groundwater management area is a prerequisite for the creation of a groundwater
conservation district through the TWC, Chapter 36 landowner petition process."
The commission may not administratively create a groundwater conservation
district if it is not within a GMA (TWC, §36.012(c)). Groundwater conservation
districts may also be created by the legislature and territory may be added
to existing groundwater conservation districts by petition processes. However,
both of these types of groundwater conservation district creation are outside
of the commissions jurisdiction and therefore reference to these creation
options should not be included the commission rules. No changes to the rule
were made in response to this comment.
Comment
Judge Kennedy, RWPG I, and the City of Nacogdoches commented that a petition
came out of a single county but resulted in the 27-county proposal. The City
of Nacogdoches commented this was disturbing because of locally initiated
efforts spanning two years to take action in Nacogdoches and Angelina Counties
to manage groundwater resources. Judge Kennedy, RWPG I, and the City of Nacogdoches
commented that the proposed ETGMA may be too large and questioned whether
the commission had taken an action upon itself that was greater than requested
of the petitioners. They questioned why input was not sought from the other
counties.
Response
The commission responds that it is required to delineate a GMA with the
objective of providing the most suitable area for the management of groundwater
resources (TWC §35.004(a)). The commission considered the available information
relating to the geology and groundwater resources of the area, and determined
that a GMA in Wood County alone would not meet this objective. The commission
believes that the most suitable area for management of groundwater resources
is the 27-county area which the commission is designating as a GMA. The reasons
for this analysis is discussed in detail in this preamble under the headings:
"General Stratigraphy," "Geologic Controls," "Groundwater Use," and "Regional
Assessment of Groundwater Resources."
The commission, through the publication of the proposal, did seek comment
and input from the public. The commission published this proposed GMA in the
Comment
Judge Kennedy commented that state law governing groundwater management
has expanded the authorities of state agencies at the expense of local areas
over the last few legislative sessions. The City of Nacogdoches and RWPG I
commented that future legislation could take the proposed ETGMA and create
a new set of rules that may supercede local decision-making actions that have
already been taken. Former Rep. Yost commented that residents should be cautious
and aware of future legislation and commission rules and how such future actions
may affect "groundwater rights".
Response
The commission disagrees that state law has expanded groundwater authority
of state agencies at the expense of local residents. Texas Water Code, Chapter
36 contemplates local management of groundwater in that landowners may petition
the commission for creation of a groundwater conservation district in a GMA.
Landowners may also go to the legislature to create a district by special
law with the powers they believe are most relevant to the area. These districts,
not the commission, are authorized and responsible for managing groundwater
resources within their boundaries. The commission agrees that laws can change
in the future. If the laws are changed, the commission rules will be changed
to reflect those new laws. However, no change has been made to the rules as
a result of these comments.
Comment
MWWD commented it was opposed to the development of the proposed ETGMA
for a number of reasons. MWWD noted that Ozarka Natural Spring Water Company
(Ozarka) had proposed developing well sites in Wood County and that this proposed
groundwater production was perceived as exploitation by many citizens. MWWD
commented that this proposed activity made citizens aware of groundwater management
options and led to the petition for the GMA.
Response
The commission responds that it cannot consider the reason landowners petition
for the designation of a GMA. It is required by TWC, Chapter 35, to consider
the February 8, 2001 landowner petition and the evidence prepared by the executive
director for the designation of the GMA. The petition was found to meet the
requirements of TWC, §35.005 (Pre-SB 2) and §294.22, which provide
for the landowner petition process for the designation of a GMA. Additionally,
SB 2 transfers the jurisdiction for the designation of all future GMAs to
the TWDB. Senate Bill 2 mandates that the TWDB designate GMAs for all of the
state's major and minor aquifers by September 1, 2003. No change has been
made to the rules as a result of these comments.
Comment
MWWD commented that the proposed Ozarka well sites would be completed in
the Sparta Aquifer. MWWD commented that the Sparta Aquifer locally occupies
topographic highs in Wood County; was recharged by precipitation; and was
discharged by wells, springs, and evaporation. MWWD commented that the Sparta
Aquifer does not cover the entire northeast Texas area. MWWD commented that
the Sparta Aquifer was a water-table aquifer, not an artesian aquifer.
Response
The commission agrees that the Sparta Aquifer occupies topographic highs
in Wood County; is recharged by precipitation; and is discharged by wells,
springs, and evaporation. The commission agrees that the Sparta Aquifer does
not cover the entire northeast Texas area. (See analysis in this preamble
under the headings: "General Stratigraphy," "Geologic Controls," and "Regional
Assessment of Groundwater Resources.") However, the commission disagrees that
the Sparta Aquifer is solely a water-table aquifer. The Sparta Aquifer is
an unconfined aquifer in areas, both locally and regionally, where the Tertiary-age
Sparta Formation of the Claiborne Group is exposed at the surface. In areas,
both locally and regionally, where the Sparta Formation is overlain by confining
sediments or geologic units, the Sparta Aquifer is artesian. As discussed
earlier in the preamble, the Sparta Aquifer is also an important groundwater
resource within the geographic area contained in the adopted GMA and to leave
this resource out of the area would not facilitate the comprehensive management
of groundwater resources within the area. The designation of the GMA by the
adopted new rules delineates an area where regional groundwater management
planning for these overlapping aquifers can be coordinated by existing and
any future groundwater conservation districts. No change has been made to
the rules as a result of these comments.
Comment
MWWD commented that the Sparta Aquifer does not offer recharge to the Carrizo-Wilcox
Aquifer. LWWD did not comment for or against the proposed rules, but did comment
that there was little migration of water between the different aquifers. LWWD
also commented that the recharge zones of the Carrizo-Wilcox Aquifer were
distant to the "main part" of the aquifer.
Response
The commission agrees that the recharge zones of the Carrizo-Wilcox Aquifer
can be distant from the artesian portion of the aquifer in and on the flanks
of the East Texas structural basin. Precipitation primarily recharges the
aquifer in areas where it crops out to the northeast and west of the East
Texas structural basin. The commission partially agrees with the comments
related to the movement of water between the aquifers. The commission notes
that the Weches Formation of the Claiborne Group acts as a restrictive barrier
between the Sparta Aquifer and the underlying Queen City Aquifer and the Reklaw
Formation of the Claiborne Group acts as a restrictive barrier between the
Queen City Aquifer and the underlying Carrizo-Wilcox Aquifer. However, existing
data are not sufficient to quantify the movement or volume of water that migrates
between the aquifers. The Queen City and Sparta Aquifers are also important
groundwater resources within the geographic area contained in the adopted
GMA and to leave these resources out of the area would not facilitate the
comprehensive management of groundwater resource within the area. The designation
of the GMA by the adopted new rules delineates an area where regional groundwater
management planning for these overlapping aquifers can be coordinated by existing
and any future groundwater conservation districts. No change has been made
to the rules as a result of these comments.
Comment
MWWD noted that the Carrizo-Wilcox Aquifer was not a high-producing aquifer
in any one location and it was unusual to find a Carrizo-Wilcox well that
could produce over 400 gallons per minute in northeast Texas. MWWD noted that
irrigation agriculture was not economically feasible in Wood County because
the aquifer could not support such activity. MWWD commented that it would
be uneconomical for Dallas or any other large municipality to transport groundwater
out of the area because the aquifers would not yield water fast enough. MWWD
commented that the aquifers would not be attractive for exploitation because
pumping cost and well construction cost are too high.
Response
The commission disagrees with these comments and responds that existing
data shows significant use is already being made of the groundwater resources
in the ETGMA. Significant pumpage from the aquifers provides groundwater for
various uses both locally and regionally. The commission must only consider
what is the best area for the management of groundwater resources when designating
a GMA, not whether some wells produce or do not produce large amounts of water,
the feasibility for irrigated agriculture, groundwater pumpage costs, or the
economics of utilizing groundwater supplies. The purpose of the adopted rulemaking
is to provide the most suitable boundary for the management of the groundwater
resources. Groundwater conservation districts that are located in a common
GMA are required under TWC, §36.108 to coordinate groundwater management
planning for conservation of the common groundwater resources. The designation
would facilitate joint management planning among groundwater conservation
districts that share the same aquifers. Also, a GMA is a prerequisite for
the creation of a groundwater conservation district through the TWC, Chapter
36 landowner petition process. No change has been made to the rules as a result
of these comments.
STATUTORY AUTHORITY
The new sections are adopted under TWC, §5.012, which provides that
the commission is the agency responsible for implementing the constitution
and laws of the state relating to conservation of natural resources and protection
of the environment; §5.013, which establishes the commission's authority
over various statutory programs; §5.103 and §5.105, which establish
the commission's general authority to adopt rules; and §35.004, which
gives the commission authority to designate GMAs after September 1, 2001 if
a petition has been filed and accepted prior to the date.
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 February 15, 2002.
TRD-200200958
Stephanie Bergeron
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 7, 2002
Proposal publication date: October 26, 2001
For further information, please call: (512) 239-6087
Subchapter B. CONCENTRATED ANIMAL FEEDING OPERATIONS
Chapter 289.
WEATHER MODIFICATION
Subchapter B. ISSUANCE OF LICENSES AND PERMITS
Subchapter C. RECORDS AND REPORTS
Subchapter D. AMENDMENT, REVOCATION, AND SUSPENSION OF LICENSES AND PERMITS ON MOTION OF COMMISSION
Subchapter E. AMENDMENT OF PERMITS UPON APPLICATION OF PERMITTEES
Subchapter F. HAIL SUPPRESSION ELECTION PROVISIONS
Chapter 294.
UNDERGROUND WATER MANAGEMENT AREAS
Chapter 321.
CONTROL OF CERTAIN ACTIVITIES BY RULE