TITLE 31.NATURAL RESOURCES AND CONSERVATION

Part 2. TEXAS PARKS AND WILDLIFE DEPARTMENT

Chapter 65. WILDLIFE

Subchapter N. MIGRATORY GAME BIRD PROCLAMATION

31 TAC §§65.314, 65.315, 65.318 - 65.321

The Texas Parks and Wildlife Department proposes amendments to §§65.314, 65.315, 65.318, and 65.319 - 65.321, concerning the Migratory Game Bird Proclamation. The amendment to §65.314, concerning Zones and Boundaries for Early Season Species, would alter the southern boundary of the Central Zone near San Antonio. The current boundary follows U.S. Highway 90 eastward to its junction with Interstate Highway 10 in San Antonio. The proposed new boundary would follow U.S. Highway 90 to its junction with Loop 1604, and then follow Loop 1604 eastward to its junction with Interstate Highway 10. Because the area bounded by U.S. Highway 90 on the west, Loop 1604 on the south, and Interstate Highway 10 on the east then would be part of the Central Zone rather than the South Zone, the boundary shift would allow earlier harvest (September 1, versus September 20) of white-winged doves making feeding flights south out of San Antonio, which would serve to increase hunter opportunity in that area. Nesting studies conducted in the 1980s by the department indicate that the vast majority of white-winged doves have finished nesting and fledged their young by September 1, whereas for mourning doves, approximately 4% of nests were initiated after September 1, 6% of the seasonal eggs and nestlings were present after September 1, and 89% of nestlings have been fledged by that time. The proposal is exploratory and is contingent on approval by the U.S. Fish and Wildlife Service (Service). The department has approached the Service to determine whether the proposed change can be made without a formal recommendation approved by the entire Central Flyway Council and the Service Regulations Committee. If the proposed change requires such action, the department will be unable to adopt the change for the 2004-2005 season.

The amendment to §65.315, concerning Open Seasons and Bag and Possession Limits - Early Season Species, adjusts the season dates for early-season species of migratory game birds to account for calendar-shift (an annual adjustment to ensure that seasons open on the correct day of the week).

The amendment to §65.318, concerning Open Seasons and Bag and Possession Limits - Late Season Species, adjusts the season dates for late-season species of migratory game birds to account for calendar-shift. The proposed amendment also sets forth conditional bag limits for ducks, coots, and mergansers. The current bag limits for these species reflect the continuing concerns of the U.S. Fish and Wildlife Service over breeding populations of canvasback and pintail ducks. For the last two years, the Service has not authorized full-season hunting opportunity for those two species, electing to require states to impose a truncated season-within-a-season instead. There is a possibility that the Service this year might offer the opportunity to have full-season hunting for all species, but with an aggregate bag limit less than that currently in effect.

The amendment to §65.319, concerning Extended Falconry Season--Early Season Species, adjusts season dates for the take of early-season species of migratory game birds by means of falconry to reflect calendar shift.

The amendment to §65.320, concerning Extended Falconry Season--Late Season Species, adjusts season dates for the take of late-season species of migratory game birds by means of falconry, also to reflect calendar shift.

The amendment to §65.321, concerning Special Management Provisions, also adjusts dates for the take of light geese during the special conservation season to account for calendar shift.

The amendments are generally necessary to implement commission policy to provide the greatest hunter opportunity possible, consistent with hunter preference for season starting dates and segment lengths, under frameworks issued by the Service. The Service has not issued regulatory frameworks for the 2004-2005 hunting seasons for migratory game birds; thus, the department cautions that the proposed regulations are tentative and may change significantly, depending on federal actions. However, it is the policy of the commission to adopt the most liberal provisions possible, consistent with hunter preference, under the frameworks in order to provide maximum hunter opportunity.

Robert Macdonald, Wildlife Division regulations coordinator, has determined that for the first five years that the amendments as proposed are in effect, there will be no additional fiscal implications to state or local governments of enforcing or administering the amendments.

Mr. Macdonald also has determined that for each of the first five years the amendments are in effect, the public benefit anticipated as a result of enforcing the rules as proposed will be the department's discharge of its statutory obligation to manage and conserve the state's populations of migratory game birds, as well as the implementation of commission policy to maximize recreational opportunity for the citizenry.

There will be no effect on small businesses or microbusinesses. There are no additional economic costs to persons required to comply with the rules as proposed.

The department has not filed a local impact statement with the Texas Workforce Commission as required by Government Code, §2001.022, as the department has determined that the rules as proposed will not impact local economies.

The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.

The department has determined that Government Code, § 2001.0225 (Regulatory Analysis of Major Environmental Rules) does not apply to the proposed rule.

Comments on the proposed rules may be submitted to Vernon Bevill, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4578 or 1-800-792-1112.

The amendments are proposed under Parks and Wildlife Code, Chapter 64, which authorizes the Commission and the Executive Director to provide the open season and means, methods, and devices for the hunting and possessing of migratory game birds.

The amendments affect Parks and Wildlife Code, Chapter 64.

§65.314.Zones and Boundaries for Early Season Species.

(a) Rails: statewide.

(b) Mourning and white-winged doves.

(1) North Zone: That portion of the state north of a line beginning at the International Bridge south of Fort Hancock; thence north along FM 1088 to State Highway 20; thence west along State Highway 20 to State Highway 148; thence north along State Highway 148 to Interstate Highway 10 at Fort Hancock; thence east along Interstate Highway 10 to Interstate Highway 20; thence northeast along Interstate Highway 20 to Interstate Highway 30 at Fort Worth; thence northeast along Interstate Highway 30 to the Texas-Arkansas state line.

(2) Central Zone: That portion of the state between the North Zone and the South Zone.

(3) South Zone: That portion of the state south of a line beginning at the International Toll Bridge in Del Rio; thence northeast along U.S. Highway 277 Spur to U.S. Highway 90 in Del Rio; thence east along U.S. Highway 90 to State Loop 1604; thence following Loop 1604 south and east to Interstate Highway 10 [ at San Antonio ]; thence east along Interstate Highway 10 to the Texas-Louisiana State Line.

(4) Special white-winged dove area: That portion of the state south and west of a line beginning at the International Toll Bridge in Del Rio; thence northeast along U.S. Highway 277 Spur to U.S. Highway 90 in Del Rio; thence east along U.S. Highway 90 to United States Highway 83 at Uvalde; thence south along U.S. Highway 83 to State Highway 44; thence east along State Highway 44 to State Highway 16 at Freer; thence south along State Highway 16 to State Highway 285 at Hebbronville; thence east along State Highway 285 to FM 1017; thence southeast along FM 1017 to State Highway 186 at Linn; thence east along State Highway 186 to the Mansfield Channel at Port Mansfield; thence east along the Mansfield Channel to the Gulf of Mexico.

(c) Gallinules (Moorhen or common gallinule and purple gallinule): statewide.

(d) Teal ducks (blue-winged, green-winged, and cinnamon): statewide.

(e) Woodcock: statewide.

(f) Common snipe: statewide.

§65.315.Open Seasons and Bag and Possession Limits--Early Season.

(a) Rails.

(1) Dates: September 11 - 26, 2004 and October 30 - December 22, 2004 [ September 20 - 28, 2003 and October 25 - December 24, 2003 ].

(2) Daily bag and possession limits:

(A) king and clapper rails: 15 in the aggregate per day; 30 in the aggregate in possession.

(B) sora and Virginia rails: 25 in the aggregate per day; 25 in the aggregate in possession.

(b) Dove seasons.

(1) North Zone.

(A) Dates: September 1 - October 30, 2004 [ September 1 - October 30, 2003 ].

(B) Daily bag limit: 15 mourning doves, white-winged doves, and white-tipped (white-fronted) doves in the aggregate, including no more than two white-tipped doves per day;

(C) Possession limit: 30 mourning doves, white-winged doves, and white-tipped doves in the aggregate, including no more than four white-tipped doves in possession.

(2) Central Zone.

(A) Dates: September 1 - October 30, 2004 and December 26, 2004 - January 4, 2005 [ September 1 - October 30, 2003 and December 26, 2003 - January 4, 2004 ].

(B) Daily bag limit: 12 mourning doves, white-winged doves, and white-tipped (white-fronted) doves in the aggregate, including no more than two white-tipped doves per day;

(C) Possession limit: 24 mourning doves, white-winged doves, and white-tipped doves in the aggregate, including no more than four white-tipped doves in possession.

(3) South Zone.

(A) Dates: Except in the special white-winged dove area as defined in §65.314 of this title (relating to Zones and Boundaries for Early Season Species), September 24- November 9, 2004 and December 18, 2004 - January 9, 2005 [ September 20 - November 5, 2003, and December 20, 2003 - January 11, 2004 ].

(B) Daily bag limit: 12 mourning doves, white-winged doves, and white-tipped (white-fronted) doves in the aggregate, including no more than two white-tipped doves per day;

(C) Possession limit: 24 mourning doves, white-winged doves, and white-tipped doves in the aggregate, including no more than four white-tipped doves in possession.

(4) Special white-winged dove area.

(A) Dates: September 4, 5, 11, and 12, 2004 [ September 6, 7, 13, and 14, 2003 ].

(i) Daily bag limit: 10 white-winged doves, mourning doves, and white-tipped (white-fronted) doves, in the aggregate to include no more than five mourning doves and two white-tipped doves per day;

(ii) Possession limit: 20 white-winged doves, mourning doves, and white-tipped doves in the aggregate to include no more than 10 mourning doves and four white-tipped doves in possession.

(B) Dates: September 24 - November 9, 2004 and December 18, 2004 - January 5, 2005 [ September 20 - November 5, 2003 and December 20, 2003 - January 7, 2004 ].

(i) Daily bag limit: 12 white-winged doves, mourning doves, and white-tipped (white-fronted) doves, in the aggregate to include no more than two white-tipped doves per day;

(ii) Possession limit: 24 white-winged doves, mourning doves, and white-tipped doves in the aggregate to include no more than four white-tipped doves in possession.

(c) Gallinules.

(1) Dates: September 11 - 26, 2004 and October 30 - December 22, 2004 [ September 20 - 28, 2003 and October 25 - December 24, 2003 ].

(2) Daily bag and possession limits: 15 in the aggregate per day; 30 in the aggregate in possession.

(d) September teal-only season.

(1) Dates: September 11 - 26, 2004 [ September 13 - 28, 2003 ].

(2) Daily bag and possession limits: four in the aggregate per day; eight in the aggregate in possession.

(e) Red-billed pigeons, and band-tailed pigeons. No open season.

(f) Shorebirds. No open season.

(g) Woodcock: December 18, 2004 - January 31, 2005 [ December 18, 2003 - January 31, 2004 ]. The daily bag limit is three. The possession limit is six.

(h) Common snipe (Wilson's snipe or jacksnipe): October 30, 2004- February 13, 2005 [ October 18, 2003 - February 1, 2004 ]. The daily bag limit is eight. The possession limit is 16.

§65.318.Open Seasons and Bag and Possession Limits--Late Season.

Except as specifically provided in this section, the possession limit for all species listed in this section shall be twice the daily bag limit.

(1) Ducks, mergansers, and coots. If the U.S. Fish and Wildlife Service establishes a [ The ] daily bag limit for ducks of [ is ] six, the daily bag [ which ] may include no more than five mallards or Mexican mallards (Mexican duck), only two of which may be hens, three scaup, one mottled duck, one canvasback, one pintail, two redheads, and two wood ducks. Canvasback and pintail may be taken only during the restricted seasons provided for those species. If the U.S. Fish and Wildlife Service establishes an aggregate bag limit of five, the daily bag may include no more than three scaup, two reheads, two wood ducks, and no more than one (in the aggregate) of the following: mallard hen, pintail, mottled duck, or canvasback. The daily bag limit for coots is 15. The daily bag limit for mergansers is five, which may include no more than one hooded merganser. [ Canvasback and pintail may be taken only during the restricted seasons provided for those species. ]

(A) High Plains Mallard Management Unit: October 30-November 1, 2004, and November 6, 2004 - January 30, 2005 [ October 25-27, 2003, and November 1, 2003 - January 25, 2004 ]. The open season for pintail and canvasback begins December 23, 2004 and runs through January 30, 2005 [ December 18, 2003 and runs through January 25, 2004 ].

(B) North Zone: November 13-14, 2004 and November 20, 2004 - January 30, 2005 [ November 8-9, 2003 and November 15, 2003 - January 25, 2004 ]. The open season for pintail and canvasback begins December 23, 2004 and runs through January 30, 2005 [ December 18, 2003 and runs through January 25, 2004 ].

(C) South Zone: October 30-31, 2004, and November 6, 2004-- January 16, 2005 [ October 25-26, 2003, and November 8 - January 18, 2004 ]. The open season for pintail and canvasback begins December 9, 2004 and runs through January 16, 2005 [ December 11, 2003 and runs through January 18, 2004 ].

(2) Geese.

(A) Western Zone.

(i) Light geese: October 30, 2004 - February 8, 2005 [ October 25, 2003 - February 3, 2004 ]. The daily bag limit for light geese is 20, and there is no possession limit.

(ii) Dark geese: November 6, 2004 - February 8, 2005 [ November 1, 2003 - February 3, 2004 ]. The daily bag limit for dark geese is four, which may not include more than three Canada geese or more than one white-fronted goose.

(B) Eastern Zone.

(i) Light geese. The daily bag limit for light geese is 20, and there is no possession limit.

(I) In that portion of the Eastern Zone lying north of IH 10: October 23, 2004 - January 30, 2005 [ October 25, 2003 - January 25, 2004 ].

(II) In that portion of the Eastern Zone that is both south of IH 10 and east of IH 35: October 23, 2004 - January 16, 2005 [ October 25, 2003 - January 18, 2004 ].

(ii) Dark geese. The daily bag limit for dark geese is five, no more than three of which may be Canada geese and no more than two of which may be two white-fronted geese.

(I) In that portion of the Eastern Zone lying north of IH 10: November 6, 2004 - January 30, 2005 [ November 1, 2003 - January 25, 2004 ]; and

(II) In that portion of the Eastern Zone that is both south of IH 10 and east of IH 35: October 23, 2004 - January 16, 2005 [ October 25, 2003 - January 18, 2004 ].

(3) Sandhill cranes. A free permit is required of any person to hunt sandhill cranes in areas where an open season is provided under this proclamation. Permits will be issued on an impartial basis with no limitation on the number of permits that may be issued.

(A) Zone A: November 6, 2004 - February 6, 2005 [ November 1, 2003 - February 1, 2004 ]. The daily bag limit is three. The possession limit is six.

(B) Zone B: November 27, 2004 - February 6, 2005 [ November 22, 2003 - February 1, 2004 ]. The daily bag limit is three. The possession limit is six.

(C) Zone C: December 18, 2004 - January 16, 2005 [ December 20, 2003 - January 18, 2004 ]. The daily bag limit is two. The possession limit is four.

(4) Special Youth-Only Season. There shall be a special youth-only duck season during which the hunting, taking, and possession of ducks, mergansers, and coots is restricted to licensed hunters 15 years of age and younger accompanied by a person 18 years of age or older, except for persons hunting by means of falconry under the provisions of §65.320 of this chapter (relating to Extended Falconry Season--Late Season Species). Bag and possession limits in any given zone during the season established by this paragraph shall be as provided for that zone by paragraph (1) of this section, except that pintail ducks and canvasback ducks may be taken. The bag limit for pintail ducks is one per day and the bag limit for canvasback ducks is one per day. The possession limit is two. Season dates are as follows:

(A) High Plains Mallard Management Unit: October 16-17, 2004 [ October 18-19, 2003 ];

(B) North Zone: October 30-31, 2004 [ October 25-26, 2003 ]; and

(C) South Zone: October 16-17, 2004 [ October 18-19, 2003 ].

§65.319.Extended Falconry Season--Early Season Species.

(a) It is lawful to take the species of migratory birds listed in this section by means of falconry during the following Extended Falconry Seasons:

(1) mourning doves and white-winged doves: November 19 - December 25, 2004 [ November 19 - December 25, 2003 ].

(2) rails and gallinules: December 9, 2004 - January 14, 2005 [ December 26, 2003 - January 31, 2004 ].

(3) woodcock: November 24 - December 17, 2004 and February 1 - March 9, 2005 [ November 24 - December 17, 2003 and February 1 - March 9, 2004 ].

(b) The daily bag and possession limits for migratory game birds under this section shall not exceed three and six birds respectively, singly or in the aggregate.

§65.320.Extended Falconry Season--Late Season Species.

It is lawful to take the species of migratory birds listed in this section by means of falconry during the following Extended Falconry Seasons.

(1) Ducks, coots, and mergansers:

(A) High Plains Mallard Management Unit: no extended season;

(B) North Duck Zone: January 31 - February 14, 2005 [ January 26 - February 9, 2004 ];

(C) [ (B) ] South Duck Zone: January 17- January 31, 2005 [ January 19 - February 2, 2004 ].

(2) The daily bag and possession limits for migratory game birds under this section shall not exceed three and six birds, respectively, singly or in the aggregate.

§65.321.Special Management Provisions.

The provisions of paragraphs (1)-(3) of this section apply only to the hunting of light geese. All provisions of this subchapter continue in effect unless specifically provided otherwise in this section; however, where this section conflicts with the provisions of this subchapter, this section prevails.

(1) Means and methods. In addition to the means and methods authorized in §65.310(a) of this title (relating to Means , Methods, and Special Requirements), the following means and methods are lawful during the time periods set forth in paragraph (4) of this section:

(A) shotguns capable of holding more than three shells; and

(B) electronic calling devices.

(2) Possession. During the time periods set forth in paragraph (4) of this section:

(A) there shall be no bag or possession limits; and

(B) the provisions of §65.312 of this title (relating to Possession of Migratory Game Birds) do not apply; and

(C) a person may give, leave, receive, or possess legally taken light geese or their parts, provided the birds are accompanied by a wildlife resource document from the person who killed the birds. The wildlife resource document is not required if the possessor lawfully killed the birds; the birds are transferred at the personal residence of the donor or donee; or the possessor also possesses a valid hunting license, a valid waterfowl stamp, and is HIP certified. The wildlife resource document shall accompany the birds until the birds reach their final destination, and must contain the following information:

(i) the name, signature, address, and hunting license number of the person who killed the birds;

(ii) the name of the person receiving the birds;

(iii) the number and species of birds or parts;

(iv) the date the birds were killed; and

(v) the location where the birds were killed (e.g., name of ranch; area; lake, bay, or stream; county).

(3) Shooting hours. During the time periods set forth in paragraph (4) of this section, shooting hours are from one half-hour before sunrise until one half-hour after sunset.

(4) Special Light Goose Conservation Period.

(A) From January 31, 2005 through March 27, 2005 [ January 26, 2004 through March 28, 2004 ], the take of light geese is lawful in that portion of the Eastern Zone lying north of IH 10.

(B) From January 17, 2005 through March 27, 2005 [ January 19, 2004 through March 28, 2004 ], the take of light geese is lawful in that portion of the Eastern Zone that is both south of IH 10 and east of IH 35.

(C) From February 9, 2005 through March 27, 2005 [ February 4, 2004 through March 28, 2004 ], the take of light geese is lawful in the Western Zone as defined in §65.317 of this title (relating to Zones and Boundaries for Late Season Species).

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 20, 2004.

TRD-200403404

Gene McCarty

Chief of Staff

Texas Parks and Wildlife Department

Earliest possible date of adoption: July 4, 2004

For further information, please call: (512) 389-4775


Part 10. TEXAS WATER DEVELOPMENT BOARD

Chapter 371. DRINKING WATER STATE REVOLVING FUND

Subchapter B. PROGRAM REQUIREMENTS

31 TAC §371.24

The Texas Water Development Board (the board) proposes an amendment to 31 TAC §371.24 concerning the Drinking Water State Revolving Fund.

The board proposes to amend §371.24 concerning Disadvantaged Community Program through Loan Subsidies. The proposed amendment to §371.24 will allow for an alternative method in determining the adjusted median household income for a community that Census data may not otherwise provide. This alternative method is the use of a survey of the income of the customers in the service area of a particular applicant. Several communities have expressed concern about the accuracy of Census data. Many small rural communities are located within or surrounded by affluent areas that may skew the income levels for the area needing assistance. In some cases, Census data is not even available, such as for water supply corporations. In these instances, the use of a survey is an effective tool to isolate and identify the applicant's income and, moreover, to accurately reflect the applicant's current economic situation when comparing current rates to income level.

Ms. Melanie Callahan, Director of Fiscal Services, has determined that for the first five-year period the section is in effect there will not be fiscal implications on state government as a result of enforcement and administration of this section. She has also determined that for the first five-year period this section is in effect there will be potential fiscal implications for local governments that apply for funding under the program. These fiscal implications would be in the form of savings on loans for water projects with some additional cost associated with conducting surveys. However, at this time, no reliable estimates may be made of the amount of the potential savings.

Ms. Callahan has also determined that for the first five years the section, as proposed, is in effect the public benefit anticipated as a result of enforcing the proposed section will be to provide a greater opportunity for communities to access funding through the Disadvantaged Community Programs by providing an alternative method to demonstrate a key component of eligibility for financial assistance. Ms. Callahan has determined there will not be economic costs to small businesses or individuals required to comply with the section as proposed.

Comments on the proposed amendment will be accepted for 30 days following publication and may be submitted to Srin Surapanani, Staff Attorney, Office of the General Counsel, Texas Water Development Board, P.O. Box 13231, Austin, Texas, 78711-3231, by e-mail to srin.surapanani@twdb.state.tx.us or by fax at (512) 463-5580.

The amendment is proposed under the authority of the Texas Water Code §6.101 and §15.605 which provide the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State including specifically the SRF program.

The statutory provisions affected by the proposed amendment are Texas Water Code, Chapter 15, Subchapter J.

§371.24.Disadvantaged Community Program through Loan Subsidies.

(a) Eligibility. Subject to limitations of federal law, the board may provide financial assistance in the form of low interest loans and/or loan subsidies through the Disadvantaged Community Account of the DWSRF to:

(1) a political subdivision:

(A) that is a disadvantaged community; or

(B) for a project serving an area that:

(i) is located outside the boundaries of the political subdivision; and

(ii) meets the definition of a disadvantaged community; or

(2) an owner of a community water system that is ordered by the commission to provide service to a disadvantaged community, provided that the financial assistance is for the sole purpose of providing service to a disadvantaged community.

(b) Definition of Disadvantaged Community.

(1) A community is a disadvantaged community if it meets the definition of a disadvantaged community presently or if as a result of a proposed project, the community becomes a disadvantaged community.

(2) Disadvantaged community means the service area of a public water system that has an adjusted median household income which is no more than 75% of the median state household income for the most recent year for which statistics are available; and

(A) if the service area is not charged for sewer services, has a household cost factor for water rates that is greater than or equal to 1.0%; or

(B) if the service area is charged for water and sewer services, has a Combined Household Cost Factor for water and sewer rates that is greater than or equal to 2.0%.

(3) The household cost factor is calculated as the average yearly water bill divided by adjusted median household income.

(4) The combined household cost factor is calculated as the average yearly water bill plus the average yearly sewer bill divided by the adjusted median household income.

(5) The average yearly water bill is calculated as the average number of persons per occupied household multiplied by 2,325 gallons per person per month multiplied by the proposed monthly water rate multiplied by 12. The proposed monthly water rate shall include the cost of the proposed project. Any funds for the proposed project received from sources other than the DWSRF shall be deducted from the cost of the project.

(6) The average yearly sewer bill is calculated as the average number of persons per occupied household multiplied by 1,279 gallons per person per month multiplied by the monthly sewer rate multiplied by 12.

(7) The adjusted median household income is calculated as the 1990 annual median household income multiplied by the current Texas Consumer Price Index divided by the 1990 Texas Consumer Price Index. The adjusted median income may also be calculated using data from a survey approved by the executive administrator of a statistically acceptable sampling of customers in the service area completed within the last 12 months. The necessary information will be provided by the board to the applicant during the solicitation process.

(8) If taxes, surcharges or other fees are used to subsidize the water and/or sewer system, the average annual amount per household should be included in calculating the household cost factor or the combined household cost factor.

(c) Interest Rates and Subsidies. Notwithstanding the provisions of §371.52 of this title (relating to Lending Rates), the interest rates and the levels of subsidies under the disadvantaged community program will be determined by the provisions of this subsection. The loan amount that is subject to forgiveness will not be subject to an interest rate.

(1) If the adjusted median household income for the service area is between 75% and 70% of the median state household income, the board's financial assistance shall be in the form of a loan with a 1.0% interest rate.

(2) If the adjusted median household income for the service area is less than or equal to 70% but greater than 60% of the median state household income, the board's financial assistance shall be in the form of a loan with a 0.0% interest rate.

(3) If the adjusted median household income for the service area is less than or equal to 60% but greater than 50% of the median state household income, the board's financial assistance shall be in the form of a loan with a 0.0% interest rate and 15% of the principal will be forgiven.

(4) If the adjusted median household income for the service area is less than or equal to 50% of the median state household income, the board's financial assistance shall be in the form of a loan with a 0.0% interest rate and 35% of the principal will be forgiven.

(d) Additional Project Costs. If the actual cost of a project funded under this section exceeds the estimated cost of the project as listed on the intended use plan, the additional cost will be funded through the Water Supply Account of the Texas Water Development Fund and interest rates for the additional cost will be set according to the provisions of §363.33 of this title (relating to Interest Rates for Loans and Purchase of Board's interest in State Participation Projects).

(e) Term of Loan. Notwithstanding the provisions of §371.12(1)(B) of this title (relating to Uses of the Fund), the board may extend the term of a loan made to a political subdivision or a disadvantaged community as provided in subsections (a) and (b) of this section if the extended term terminates not later than the date that is 30 years after the date of project completion and does not exceed the expected design life of the project.

(f) Total Amount of Subsidies. For each fiscal year, the total amount of loan subsidies made by the board under this section may not exceed 30% of the amount of the capitalization grant received by the board for that year.

(g) Consolidations.

(1) Financial assistance for consolidations.

(A) If the applicant acquires another public water system or provides retail service to another public water system, 20% of the cost of the project is subject to forgiveness of principal.

(B) If the applicant provides wholesale service to another public water system, 15% of the cost of the project is subject to forgiveness of principal.

(C) The amount of principal that will be forgiven for the consolidation will be deducted from the cost of the project before calculating the amount of financial assistance for the remaining cost of the project pursuant to subsection (c) of this section.

(2) Eligible costs.

(A) Any one or more of the following costs of consolidation are eligible for funding:

(i) system acquisitions;

(ii) the cost of plant upgrades or expansions specific to providing service to the disadvantaged community;

(iii) the cost of rehabilitating or replacing the distribution system of an existing water system to bring the system into compliance with drinking water regulations;

(iv) the provision of wholesale service; and

(v) master meters and upgrades needed to receive wholesale service from the consolidating system.

(B) Notwithstanding the provisions of §371.13(a)(4) of this title (relating to Projects Eligible for Assistance), purchase of existing capacity in the consolidating system are not eligible for funding through the Disadvantaged Community Account of the DWSRF.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 19, 2004.

TRD-200403402

Suzanne Schwartz

General Counsel

Texas Water Development Board

Proposed date of adoption: July 21, 2004

For further information, please call: (512) 463-7981


Chapter 375. CLEAN WATER STATE REVOLVING FUND

Subchapter A. GENERAL PROVISIONS

2. PROGRAM REQUIREMENTS

31 TAC §375.19

The Texas Water Development Board (the board) proposes an amendment to 31 TAC §375.19 concerning the Clean Water State Revolving Fund.

The board proposes to amend §375.19 concerning Financial assistance for projects benefiting disadvantaged communities. The proposed amendment to §375.19 will allow for an alternative method in determining the adjusted median household income for a community that Census data may not otherwise provide. This alternative method is the use of a survey of the income of the customers in the service area of a particular applicant. Several communities have expressed concern about the accuracy of Census data. Many small rural communities are located within or surrounded by affluent areas that may skew the income levels for the area needing assistance. In some cases, Census data is not even available, such as for water supply corporations. In these instances, the use of a survey is an effective tool to isolate and identify the applicant's income and, moreover, to accurately reflect the applicant's current economic situation when comparing current rates to income level.

Ms. Melanie Callahan, Director of Fiscal Services, has determined that for the first five-year period the section is in effect there will not be fiscal implications on state government as a result of enforcement and administration of this section. She has also determined that for the first five-year period this section is in effect there will be potential fiscal implications for local governments that apply for funding under the program. These fiscal implications would be in the form of savings on loans for wastewater projects with some additional cost associated with conducting surveys. However, at this time, no reliable estimates may be made of the amount of the potential savings.

Ms. Callahan has also determined that for the first five years the section, as proposed, is in effect the public benefit anticipated as a result of enforcing the proposed section will be to provide a greater opportunity for disadvantaged communities to access funding through the Clean Water State Revolving Fund by providing an alternative method to demonstrate a key component of eligibility for financial assistance. Ms. Callahan has determined there will not be economic costs to small businesses or individuals required to comply with the section as proposed.

Comments on the proposed amendment will be accepted for 30 days following publication and may be submitted to Srin Surapanani, Staff Attorney, Office of the General Counsel, Texas Water Development Board, P.O. Box 13231, Austin, Texas, 78711-3231, by e-mail to srin.surapanani@twdb.state.tx.us or by fax at (512) 463-5580.

The amendment is proposed under the authority of the Texas Water Code §6.101 and §15.605 which provide the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Texas Water Code and other laws of the State.

The statutory provisions affected by the proposed amendment are Texas Water Code, Chapter 15, Subchapter J.

§375.19.Financial assistance for projects benefiting disadvantaged communities.

(a) Eligibility. The board may provide financial assistance in the form of low interest loans through CWSRF program account to a political subdivision:

(1) that is a disadvantaged community; or

(2) that will serve an area that:

(A) is located outside the current service area of the political subdivision; and

(B) meets the definition of a disadvantaged community;

(b) Definition of disadvantaged community.

(1) A community is a disadvantaged community if it meets the definition of a disadvantaged community presently or if as a result of a proposed project, the community becomes a disadvantaged community.

(2) Disadvantaged community means an area in which the project will provide service that has an adjusted median household income which is no more than 75% of the median state household income for the most recent year for which statistics are available; and

(A) if the service area is not charged for sewer services, has a household cost factor for water rates that is greater than or equal to 1.0%; or

(B) if the service area is charged for water and sewer services, has a combined household cost factor for water and sewer rates that is greater than or equal to 2.0%.

(3) The household cost factor is calculated as the average yearly water bill divided by adjusted median household income.

(4) The combined household cost factor is calculated as the average yearly water bill plus the average yearly sewer bill divided by the adjusted median household income.

(5) The average yearly water bill is calculated as the average number of persons per occupied household multiplied by 2,325 gallons per person per month multiplied by the proposed monthly water rate multiplied by 12. The proposed monthly water rate shall include the cost of the proposed project. Any funds for the proposed project received from sources other than the CWSRF shall be deducted from the cost of the project.

(6) The average yearly sewer bill is calculated as the average number of persons per occupied household multiplied by 1,279 gallons per person per month multiplied by the monthly sewer rate multiplied by 12.

(7) The adjusted median household income is calculated as the annual median household income identified in the most recent U.S. Census from the closest applicable census tract multiplied by the current Texas Consumer Price Index divided by the most recent decennial Texas Consumer Price Index. The adjusted median income may also be calculated using data from a survey approved by the executive administrator of a statistically acceptable sampling of customers in the service area completed within the last 12 months. The necessary information will make available through the executive administrator to the applicant.

(8) If taxes, surcharges or other fees are used to subsidize the water and/or sewer system, the average annual amount per household may be included in calculating the household cost factor or the combined household cost factor.

(c) Interest rates and subsidies. Notwithstanding the provisions of §375.52 of this title (relating to Lending Rates), the interest rates for a project eligible for the funds available to disadvantaged communities program will be determined by the provisions of this subsection.

(1) If the adjusted median household income for the service area is between 75% and 70% of the median state household income, the board's financial assistance shall be in the form of a loan with a 1.0% interest rate.

(2) If the adjusted median household income for the service area is less than or equal to 70%, the board's financial assistance shall be in the form of a loan with a 0.0% interest rate.

(d) Additional project costs. If the actual cost of a project funded under this section exceeds the estimated cost of the project as listed on the intended use plan, the additional cost will be funded through the Financial Assistance Account of the Texas Water Development Fund and interest rates for the additional cost will be set according to the provisions of §363.33 of this title (relating to Interest Rates for Loans and Purchase of Board's interest in State Participation Projects).

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 19, 2004.

TRD-200403401

Suzanne Schwartz

General Counsel

Texas Water Development Board

Proposed date of adoption: July 21, 2004

For further information, please call: (512) 475-2052