Part 10.
TEXAS WATER DEVELOPMENT BOARD
Chapter 364.
MODEL SUBDIVISION RULES
The Texas Water Development Board (the board) adopts amendments to
31 TAC Chapter 364 concerning Model Subdivision Rules without changes to the
proposed text as published in the December 5, 2003 issue of the
Texas Register
(28 TexReg 10880) and will not be republished. The amendments
are to §§364.2, 364.18, 364.32, 364.33, 364.34, 364.36, 364.52,
364.54, 364.55, and 364.91. The amendments are adopted for cleanup and clarification
as a result of the four-year rule review requirement of Texas Government Code §2001.039.
The board adopts amendment to §364.2 to refer to the Texas Commission
on Environmental Quality rather than the Texas Natural Resource Conservation
Commission because it has changed its name. The board adds new subsection §364.18(1)
to define the term "commission" to refer to the Texas Commission on Environmental
Quality rather than the Texas Natural Resource Conservation Commission since
it has changed its name. Additionally, §364.18(17), which defined "TNRCC",
is deleted. All remaining subsections in §364.18 are renumbered accordingly.
Consequently, the board amends the references to the "TNRCC" in §§364.18(8),
364.32(a)(2), 364.33(a)(1), 364.33(b)(3), 364.34(a), 364.52(1)(A), 364.52(1)(B),
364.52(3)(A), 364.52(3)(B), 364.55(c)(2), 364.91(4), 364.91(5) and 364.91(6)
to refer to the "commission".
The board adopts amendment to Appendix 1A, which is an attached graphic
for §364.32(a)(1). Appendix 1A is a sample form agreement and it contains
an effective date at the end of the agreement. The effective date identified
in the form currently references "19__". The board amends the form to reflect
that the potential date for this agreement will be in this century so that
it is amended to be "20__".
The board adopts amendment to §364.32(a)(2) to require a subdivider
that proposes to create a public water system relying on groundwater to comply
with the requirements of 30 TAC §§230.1 through 230.11 which relates
to groundwater availability certification for platting. At the time that the
board adopted current §364.32(a)(2), Chapter 230 of 30 TAC had not been
proposed or adopted. With the adoption and implementation of Chapter 230 of
30 TAC, the commission has adopted specific criteria in assessing groundwater
availability for specified areas throughout the state. In order to establish
a consistent standard for counties and municipalities that enforce groundwater
availability certifications, the board adopts the criteria and process that
the commission has implemented in 30 TAC Chapter 230. The board adopts amendment
to §364.32(b) to require a subdivider that proposes to rely on individual
wells for each residential lot to comply with the requirements of 30 TAC §§230.1
through 230.11 which relates to groundwater availability certification for
platting. The board relies on the same reasons expressed in relation to the
amendment to §364.32(b) as the justification for this amendment.
The board also adopts amendment to §364.32(b) to amend the citation
of 30 TAC §290.103 to be a citation to 30 TAC §290.104, delete the
reference to 30 TAC §290.105, add a reference to 30 TAC §290.108,
and amend the reference to 30 TAC §290.110 to be a reference to 30 TAC §290.109.
The existing cited provisions correctly identified the then existing appropriate
primary drinking water standards the board, acting in consultation with the
commission and the office of the attorney general, determined were the appropriate
water quality standards to be applied for a county or municipality in approving
individual wells for individual lots as a water supply source in new residential
subdivisions in the affected counties. Since the adoption of these standards,
the commission has amended and to some degree restructured 30 TAC Chapter
290 Subchapter F in which these drinking water standards are identified. The
amendments to §364.32(b) correct the references so that the references
are to the appropriate sections to retain the drinking water standards that
are intended by the board, in consultation with the commission and the office
of the attorney general.
The board adopts amendment to Appendix 1B, which is an attached graphic
for §364.33(a)(2). Appendix 1B is a sample form agreement and it contains
an effective date at the end of the agreement. The effective date identified
in the form currently references "19__". The board amends the form to reflect
that the potential date for this agreement will be in this century so that
it is amended to be "20__".
The board adopts amendment to §364.33(b)(3) to amend the citation
of 30 TAC §285.3(b) to be a citation to 30 TAC §285.3(i). At the
time that the board adopted the existing §364.33(b)(3), 30 TAC §285.3(b)
was the commission rule that prohibited certain wastewater disposal techniques
that were deemed inadequate such as boreholes, cesspools, and seepage pits.
The commission has amended its rules and the rule that now fully prohibits
these wastewater disposal techniques is correctly identified as 30 TAC §285.3(i).
The amendment to §364.33(b)(3) corrects the existing reference to identify
the current commission rule that prohibits these wastewater disposal techniques.
The board adopts amendment to §364.36 to change the statute referenced
therein from Local Government Code §235.002(b)(2) to Local Government
Code §233.062(c). This amendment is necessary due to legislative changes
made in 2001 which changed the citation necessary to refer to this section.
The board adopts amendment to §364.52 to delete the phrase "be accompanied
by" and insert the phrase "include on the plat or have attached to the plat".
The Local Government Code requires that the final engineering report required
in this section actually be included on or attached to the plat. In certain
circumstances, however, the board has learned that plats are being accepted
without the engineering report being on or attached to the plat. This amendment
will eliminate any confusion that may have lead to these circumstances.
The board adopts amendment to §364.52(1)(A) to require that the final
engineering report for a subdivision that will be connecting to an existing
public water system and will rely on groundwater include a groundwater availability
study that complies with the requirements of 30 TAC §§230.1 through
230.11 which relates to groundwater availability certification for platting.
At the time that the board adopted current §364.52(1)(A), Chapter 230
of 30 TAC had not been proposed or adopted. With the adoption and implementation
of Chapter 230 of 30 TAC, the commission has adopted specific criteria in
assessing groundwater availability for residential subdivisions throughout
the state. In order to establish a consistent standard for counties and municipalities
that enforce groundwater availability certifications, the board adopts the
criteria and process that the commission has implemented in 30 TAC Chapter
230. The board amends §364.52(1)(B) to require that the final engineering
report for a subdivision that will be connecting to a new public water system
and will rely on groundwater include a groundwater availability study that
complies with the requirements of 30 TAC §§230.1 through 230.11
which relates to groundwater availability certification for platting. The
board relies on the same reasons expressed in relation to the amendment to §364.52(1)(A)
as the justification for this amendment. The board adopts amendment to §364.52(2)
to require that the final engineering report for a subdivision that will rely
on individual wells for each residential lot include a groundwater availability
study that complies with the requirements of 30 TAC §§230.1 through
230.11 which relates to groundwater availability certification for platting.
The board relies on the same reasons expressed in relation to the amendment
to §364.52(1)(A) as the justification for this amendment.
The board adopts amendment to Appendix 2A, which is an attached graphic
for §364.54(a). Appendix 2A is a sample form agreement. Paragraph 3 of
the sample agreement references "the final subdivision plat of the subdivision."
In order for the form to be effective, a blank space should have been provided
to allow the insertion of the name of the subdivision. The board amends the
form to insert a blank between "the" and "subdivision" so that when the form
is used the subdivision name can be inserted. On page iii of this sample form,
paragraph 14 of the sample agreement states the county will provide timely
notification to the subdivider of defects in construction. The sample form
should reflect that for those instances that the notice states that the defects
create immediate and substantial harm, the subdivider has five days to cure
the defect. However, as currently printed, the agreement lacks the word "if"
before the phrase "the notice of defect includes a statement explaining why
the defect creates such immediate and substantial harm" thereby requiring
all defects to be cured within five days. The board amends this appendix to
insert "if" before the phrase "the notice of defect includes a statement explaining
why the defect creates such immediate and substantial harm" to reflect the
intent of the board for this provision. In paragraph 15 of this agreement,
the text inadvertently states that the county may "disperse" certain funds.
This verb was intended to be "disburse" and the board amends this appendix
to so reflect. Finally, this sample agreement also contains an effective date
at the end of the agreement. The effective date identified in the form currently
references "19__". The board amends the form to reflect that the potential
date for this agreement will be in this century so that it is amended to be
"20__".
The board adopts amendment to Appendix 2B, which is an attached graphic
for §364.54(c)(3). Appendix 2B is a sample form irrevocable letter of
credit. Appendix 2B is a sample form agreement and it contains effective dates
at the beginning of the agreement. The effective dates identified in the form
currently references "19__". The board amends the form to reflect that the
potential dates for this agreement will be in this century so that it is amended
to be "20__". Finally, the fourth paragraph of this letter references the
"Uniform Customs and Practice for Documentary Credits, 1983 version, International
Chamber of Commerce, Publication No. 400." This reference should be to the
1993 version, which is actually publication no. 500 of the International Chamber
of Commerce. The board amends the appendix to change the reference to correct
the version year and the correct publication number so that the reference
reads as "Uniform Customs and Practice for Documentary Credits, 1993 version,
International Chamber of Commerce, Publication No. 500."
The board adopts amendment to §364.91(1) to include the phrase "and
within the extraterritorial jurisdiction of the municipality." The Local Government
Code provides that the municipalities that are required to adopt these subdivision
regulations must adopt and enforce the rules within the extraterritorial jurisdiction
of the municipality as well as within the corporate boundaries of the municipality.
This amendment will make the statutory requirement clear in the rules as well.
The board adopts amendment to §364.91(4) to amend the citation of
30 TAC §290.103 to be a citation to 30 TAC §290.104, delete the
reference to 30 TAC §290.105, add a reference to 30 TAC §290.108,
and amend the reference to 30 TAC §290.110 to be a reference to 30 TAC §290.109.
The existing cited provisions correctly identified the then existing appropriate
primary drinking water standards the board, acting in consultation with the
commission and the office of the attorney general, determined were the appropriate
water quality standards to be applied for a municipality in approving individual
wells for individual lots as a water supply source in new residential subdivisions
in the affected counties. Since the adoption of these standards, the commission
has amended and to some degree restructured 30 TAC Chapter 290 Subchapter
F in which these drinking water standards are identified. The amendments to §364.91(4)
correct the references so that the references are to the appropriate sections
to retain the drinking water standards that are intended by the board, in
consultation with the commission and the office of the attorney general.
Comments on the proposed amendments were received from Mr. Scot Campbell
from the Texas Land Developers Association.
Mr. Scot Campbell submitted a letter stating that the Texas Land Developers
Association is in opposition to some of the items in the new proposed Model
Subdivision Rules. Mr. Campbell states that the proposed requirements for
the water well use are not beneficial to either the developer or the lot buyer.
BOARD RESPONSE: The board believes that this comment is intended to address
the changes to §§364.32(a)(2), 364.32(b), 364.52(1)(A), and 364.52(1)(B).
These sections relate to the criteria that will be applied when the proposed
residential subdivision intends to rely on groundwater for the drinking water
supply. The amendments to these sections apply the requirements that the commission
recommends for counties in other areas of the state in which there is concern
about the groundwater availability. The board adopts these sections to be
consistent with the commission requirements in order to establish a consistent
standard for counties and municipalities that enforce groundwater availability
certifications throughout the state.
Mr. Campbell comments that the rules do not properly interpret the requirement
to bond or install on-site sewer facilities when plating a new subdivision.
Mr. Campbell states that Local Government Code §232.032 only requires
the lots in the subdivision be approved by an appropriate government authority
as being adequately and legally served by septic systems. Mr. Campbell comments
that therefore the Local Government Code provision does not require that septic
tanks either be installed or a financial guarantee be provided to insure installation
of septic tanks.
BOARD RESPONSE: The amendments proposed by the board do not amend the existing
provisions that require that subdivider to either construct septic tanks or
provide financial guarantees to insure the construction of septic tanks to
obtain final plat approval. The board does not agree that the cited statutory
provision is subject to the interpretation provided by Mr. Campbell or that
these rules are subject to any limitations that may be created by the Local
Government Code. The authority of the board to adopt these rules is derived
from the Water Code, §16.343. The Water Code requires the board to develop
rules that will insure the provision of adequate water and sewer service in
order to prevent the creation of new residential subdivisions lacking these
essential services. From the inception of these model subdivision rules in
1991 the board has sought to require that septic tanks either be installed
or financial guarantees be provided to insure installation of septic tanks.
The board concludes that these rules are required to fulfill the purposes
and intent of the Water Code.
Mr. Campbell further comments that the statutes do not include a requirement
that a subdivider pay for the costs of water meters, water rights, or membership
fees as a part of the water service infrastructure.
BOARD RESPONSE: The current amendments proposed by the board do not affect
the existing rule provisions that impose this requirement. The board recognizes
that there is not an explicit statutory requirement to require that the payment
of these fees be included in the costs of completing water infrastructure
for new residential subdivisions. The board, however, adopted this provision
in 2000 because it is necessary to have all the costs related to the water
infrastructure paid in order to prevent residential areas from being occupied
without access to these services. The board continues this provision in order
to fulfill the purpose and intent of the Water Code.
Finally, Mr. Campbell also comments that the requirements for letters of
credit or bonds in the County Subdivision Contract are not clear and leave
room for misinterpretation and that it was not the legislature's intent to
create a requirement that would be impossible to achieve.
BOARD RESPONSE: The compliance history with this provision does not indicate
that it is either being misinterpreted or that compliance is impossible. Without
greater specificity as to the provisions that remain unclear, the board does
not believe that amendments related to the letters of credit are appropriate.
Subchapter A. GENERAL PROVISIONS
31 TAC §364.2
The amendments are adopted under the authority of the Texas
Water Code, §16.343 which requires the Texas Water Development Board
prepare and adopt these rules to assure that minimum standards for safe and
sanitary water supply and sewer services in residential areas of political
subdivisions are met.
The statutory provisions affected by the adopted amendments are Texas Water
Code, Chapter 15 and Chapter 17.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on January 21, 2004.
TRD-200400421
Suzanne Schwartz
General Counsel
Texas Water Development Board
Effective date: February 10, 2004
Proposal publication date: December 5, 2003
For further information, please call: (512) 475-2052
1.
GENERAL AND ADMINISTRATIVE PROVISIONS
31 TAC §364.18
The amendments are adopted under the authority of the Texas
Water Code, §16.343 which requires the Texas Water Development Board
prepare and adopt these rules to assure that minimum standards for safe and
sanitary water supply and sewer services in residential areas of political
subdivisions are met.
The statutory provisions affected by the adopted amendments are Texas Water
Code, Chapter 15 and Chapter 17.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on January 21, 2004.
TRD-200400422
Suzanne Schwartz
General Counsel
Texas Water Development Board
Effective date: February 10, 2004
Proposal publication date: December 5, 2003
For further information, please call: (512) 475-2052
31 TAC §§364.32 - 364.34, 364.36
The amendments are adopted under the authority of the Texas
Water Code, §16.343 which requires the Texas Water Development Board
prepare and adopt these rules to assure that minimum standards for safe and
sanitary water supply and sewer services in residential areas of political
subdivisions are met.
The statutory provisions affected by the adopted amendments are Texas Water
Code, Chapter 15 and Chapter 17.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on January 21, 2004.
TRD-200400423
Suzanne Schwartz
General Counsel
Texas Water Development Board
Effective date: February 10, 2004
Proposal publication date: December 5, 2003
For further information, please call: (512) 475-2052
31 TAC §§364.52, 364.54, 364.55
The amendments are adopted under the authority of the Texas
Water Code, §16.343 which requires the Texas Water Development Board
prepare and adopt these rules to assure that minimum standards for safe and
sanitary water supply and sewer services in residential areas of political
subdivisions are met.
The statutory provisions affected by the adopted amendments are Texas Water
Code, Chapter 15 and Chapter 17.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on January 21, 2004.
TRD-200400424
Suzanne Schwartz
General Counsel
Texas Water Development Board
Effective date: February 10, 2004
Proposal publication date: December 5, 2003
For further information, please call: (512) 475-2052
Subchapter B. MODEL RULES
2.
MINIMUM STANDARDS
3.
PLAT APPROVAL
Subchapter C. MODEL RULES (MUNICIPALITY)