Part 1.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Chapter 261.
IMPACT STATEMENTS
The Texas Commission on Environmental Quality (commission) adopts
the repeal of §§261.1 - 261.6 and §§261.21 - 261.23. The
repeals are adopted
without change
as proposed
in the November 21, 2003 issue of the
Texas Register
(28 TexReg 10420), and will not be republished.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
Chapter 261 was originally adopted by the former Texas Water Rights Commission
(TWRC). The TWRC rule (formerly §129.03.25.008) allowed environmental
impact assessment information created for proposed projects to be introduced
into evidence in commission proceedings where statutory criteria for the review
of an application included public welfare. The rule later was readopted with
four subchapters under Chapter 261, General Provisions, of the procedural
rules of the Texas Department of Water Resources. In 1996, the Texas Natural
Resource Conservation Commission (the predecessor to the commission) removed
Subchapters A and C from Chapter 261 and renumbered them as procedural rules.
Subchapters B and D were left intact and were relettered as Subchapters A
and B.
A quadrennial review of Chapter 261 found that the chapter is redundant
because other commission rules and state statutes provide for all actions
in Chapter 261. See the DRAFT REGULATORY IMPACT ANALYSIS section of this preamble
for a full description of the legal reasoning for the repeal.
SECTION BY SECTION DISCUSSION
Chapter 261, Impact Statements, which includes Subchapter A, Environmental,
Social, and Economic Impacts Statements, which contains §261.1, Relevance
of Impacts Evidence; §261.2, Filing of Federal Statement Required; §261.3,
Executive Director's Recommendation; §261.4, Statement Filed with Executive
Director; §261.5, Impacts Statement Guidelines; and §261.6, Impact
Statement Supplemented by Testimony; and Subchapter B, Guidelines for Preparation
of Environmental, Social, and Economic Impacts Statements, which contains §261.21,
Introduction; §261.22, Impact Assessment Process; and §261.23, Specific
Guidelines for the Impacts Statement, is repealed because commission staff
have determined that the Chapter 261 rules are redundant and are not needed.
Under other commission rules, the commission and executive director may require
an applicant to submit an environmental impact statement, if one has been
prepared and is relevant to the application. 30 TAC §281.4(7) states
that applications for the use of state water must include any other information
as the executive director or the commission may reasonably require. Under
Texas Water Code (TWC), §11.147, the commission is required to consider
the effect that a water right application will have on bays and estuaries,
existing instream uses, water quality of the stream, and fish and wildlife
habitats. Also, under TWC, §11.134(b)(3), the commission shall grant
a water right application only if the proposed appropriation is not detrimental
to the public welfare. If an environmental impact statement has been prepared
and addresses these environmental and public welfare issues, the commission
or executive director could reasonably require the applicant to submit the
environmental impact statement with its water right application under §281.4(7).
Additionally, under 30 TAC §281.5(7), the executive director or commission
may request any other information, which could include an environmental impact
statement, in applications for wastewater discharge, underground injection,
municipal solid waste, radioactive material, and hazardous waste and industrial
solid waste management permits.
FINAL REGULATORY IMPACT ANALYSIS
The commission 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 criteria for a "major environmental rule" as set out in that statute.
The adopted rulemaking does not meet the definition of major environmental
rule because it does not adversely affect, in a material way, the economy,
a section of the economy, productivity, competition, jobs, the environment,
or the public health and safety of the state or a sector of the state. The
rulemaking repeals Chapter 261 because commission staff determined that the
Chapter 261 rules are redundant and are not needed. The commission and executive
director may use other commission rules to require an applicant to submit
an environmental impact statement if one has been prepared and is relevant
to the application. Section 281.4(7) states that applications for the use
of state water must include any other information as the executive director
or the commission may reasonably require. Under TWC, §11.147, the commission
is required to consider the effect that a water right application will have
on bays and estuaries, existing instream uses, water quality of the stream,
and fish and wildlife habitats. Also, under TWC, §11.134(b)(3), the commission
shall grant a water right application only if the proposed appropriation is
not detrimental to the public welfare. If an environmental impact statement
has been prepared and addresses these environmental and public welfare issues,
the commission or executive director could reasonably require the applicant
to submit the environmental impact statement with its water right application
under §281.4(7). Additionally, under §281.5(7), the executive director
or commission may request any other information, which could include an environmental
impact statement, in applications for wastewater discharge, underground injection,
municipal solid waste, radioactive material, and hazardous waste and industrial
solid waste management permits.
The repeals also do not meet the criteria for a "major environmental rule"
as set out in the Texas Government Code, because §2001.0225 only applies
to a major environmental rule, the result of which is to: 1) exceed a standard
set by federal law, unless the rule is specifically required by state law;
2) exceed an express requirement of state law, unless the rule is specifically
required by federal law; 3) exceed a requirement of a delegation agreement
or contract between the state and an agency or representative of the federal
government to implement a state and federal program; or 4) adopt a rule solely
under the general powers of the agency instead of under a specific state law.
A regulatory analysis is not required in this instance because the repeals
do not meet the definition of major environmental rule and do not trigger
any of the four criteria in Texas Government Code, §2001.0225.
TAKINGS IMPACT ASSESSMENT
The commission performed a preliminary assessment of the adopted rulemaking
in accordance with Texas Government Code, §2007.043. The specific purpose
of the adopted rulemaking is to repeal Chapter 261. The commission's preliminary
assessment indicates that Texas Government Code, Chapter 2007, does not apply
to these adopted repeals because this is an action that does not adversely
affect real property.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed this adopted rulemaking and found the repeals to
be a rulemaking identified in the Coastal Coordination Act Implementation
Rules, 31 TAC §505.11(b)(4), relating to rules governing agency actions
subject to the Coastal Management Program (CMP). The commission has determined
that the rulemaking is consistent with applicable CMP goals and policies,
because all actions provided for in Chapter 261 are also provided for in Chapter
281 and in TWC, Chapter 11. Since the provisions contained in Chapter 281
and TWC, Chapter 11 require the same level of review and evaluation for subject
actions, the agency has deemed Chapter 261 as redundant. Therefore, this rulemaking
will not result in a lessening of agency review for subject actions, nor will
it result in a violation of any standards for the identified CMP goals and
policies.
PUBLIC COMMENT
The public comment period ended at 5:00 p.m. on December 22, 2003. No comments
were received.
Subchapter A. ENVIRONMENTAL, SOCIAL, AND ECONOMIC IMPACTS STATEMENTS