Part 1.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Chapter 11.
CONTRACTS
Subchapter D. RESOLUTION OF CONTRACT CLAIMS
30 TAC §§11.103 - 11.105, 11.108
The Texas Commission on Environmental Quality (commission)
proposes amendments to §§11.103 - 11.05 and 11.108.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
House Bill (HB) 1940, 79th Legislature, 2005, amended Texas Government
Code, §2260.051(d), Claim for Breach of Contract; Notice, and §2260.052(a),
Negotiation, by reducing the amount of time by which units of state government
must file a counterclaim against a contractor from 90 days to 60 days after
receiving notice of the claim from the contractor, and modifying the time
by which units of state government must enter into negotiations with the contractor
to 120 days after the date the claim is received.
The purpose of the proposed rulemaking is to amend Chapter 11 to implement
HB 1940. Additionally, the commission proposes the amendments to §11.103
and §11.108 to conform to Texas Register requirements.
SECTION BY SECTION DISCUSSION
The proposed amendment to §11.103, Other Rules and Statutes, corrects
the section title of a reference to conform to Texas Register requirements.
The proposed amendment to §11.104, Filing Notice of Claim for Breach
of Contract; Counterclaim, changes the time in which the executive director
must file a counterclaim from 90 days to 60 days after receiving the notice
of claim from the contractor. At the time of the adoption of the rule on August
20, 2000, a unit of state government had 90 days after receiving the notice
of claim in which to file a counterclaim. The proposed amendment to §11.104
would also spell out the acronym "OLS" to conform to Texas Register requirements.
The proposed amendment to §11.105, Negotiation, deletes the language
that states that the executive director, upon receiving the claim, shall provide
the contractor a reasonable opportunity to meet and negotiate the claim. The
proposed amendment to §11.105 also specifies that the executive director
must begin negotiations within 120 days after receiving notice of the claim
by the contractor.
The proposed amendment to §11.108, Request for Hearing, would spell
out the acronyms "SOAH" and "OLS" to conform to Texas Register requirements.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Walter Perry, Analyst, Strategic Planning and Assessment Section, determined
that for the first five-year period the proposed amendments are in effect,
no significant fiscal implications are anticipated for the commission or other
units of state or local government.
The proposed rules implement HB 1940, which amended Texas Government Code,
Chapter 2260. The bill addresses the resolution of certain contract claims
against the state. The proposed rulemaking would reduce the time by which
the commission must file a counterclaim from 90 days to 60 days after receiving
notice of the claim from the contractor. The commission would also be required
to enter into negotiations with a contractor within 120 days after receiving
notice of the claim by the contractor. These proposed changes are not anticipated
to have significant fiscal implications for the commission.
The proposed rules are specific to anyone who directly enters into a contract
with the commission. Units of local government who enter into a contract directly
with a unit of state government would be subject to the proposed rules and
as such may benefit from the reduced time frame to resolve claims, though
cost savings, if any, are not expected to be significant.
PUBLIC BENEFITS AND COSTS
Mr. Perry also determined that for each year of the first five years the
proposed rules are in effect, the public benefit anticipated from the changes
seen in the proposed rules will be compliance with state law.
The proposed rulemaking would reduce the time by which the commission must
file a counterclaim from 90 days to 60 days after receiving notice of the
claim from the contractor. The commission would also be required to enter
into negotiations with a contractor within 120 days after receiving notice
of the claim by the contractor.
No significant fiscal implications are anticipated for businesses and individuals
as a result of the proposed rules. The proposed rules would reduce the time
frame for the resolution of claims against a unit of state government.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
No adverse fiscal implications are anticipated for small or micro-businesses
as a result of the proposed rulemaking. Small and micro-businesses would experience
the same benefits as larger businesses.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission reviewed this proposed rulemaking and determined that a
local employment impact statement is not required because the proposed rules
do not adversely affect a local economy in a material way for the first five
years that the proposed rules are in effect.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the proposed rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225, and determined
that the proposed rulemaking is not subject to §2001.0225 because it
does not meet the definition of a "major environmental rule" as defined in
the act. The intent of the proposed rulemaking is to reduce the time in which
a unit of state government must file a counterclaim against a contractor and
the time in which to enter negotiations. The commission invites public comment
on the draft regulatory impact analysis determination.
TAKINGS IMPACT ASSESSMENT
The commission evaluated these proposed rules and performed an assessment
of whether these proposed rules constitute a takings under Texas Government
Code, Chapter 2007. The specific purpose of these proposed rules is to provide
the time frame in which units of government must file a counterclaim against
a contractor and enter into negotiations to resolve certain contract claims.
The proposed rules will substantially advance this stated purpose.
Promulgation and enforcement of these proposed rules would be neither a
statutory nor a constitutional taking of private real property. Specifically,
the subject proposed regulations do not affect a landowner’s rights
in private real property because this rulemaking does not burden (constitutionally);
nor restrict or limit the owner’s right to property and reduce its value
by 25% or more beyond that which would otherwise exist in the absence of the
regulations. In other words, these proposed rules affect the time frame in
which units of state government must file a counterclaim and enter into negotiations
in order to resolve certain contract claims. There are no burdens imposed
on private real property, and the benefits to society are the efficient resolution
of contract claims against a unit of state government.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rules and found that they are neither
identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2)
or (4), nor will they affect any action/authorization identified in Coastal
Coordination Act Implementation Rules, 31 TAC §505.11(a)(6). Therefore,
the proposed rules are not subject to the Texas Coastal Management Program.
SUBMITTAL OF COMMENTS
Comments may be submitted to Patricia Durón, MC 205, Texas Register
Team, Office of Legal Services, Texas Commission on Environmental Quality,
P.O. Box 13087, Austin, Texas 78711-13087, or faxed to (512) 239-4808. All
comments should reference Rule Project Number 2005-071-011-LS. Comments must
be received by 5:00 p.m., April 10, 2006. For further information, please
contact Evelyn Njuguna, General Law Division, (512) 239-0688.
STATUTORY AUTHORITY
The amendments are proposed under the Texas Water Code, §5.103, Rules,
which provides the commission with the authority to adopt rules necessary
to carry out its power and duties under the Texas Water Code and any other
laws of the State of Texas, and the Texas Government Code, §2260.052(c),
Negotiation, which gives each unit of state government with rulemaking authority
the authority to develop rules to govern the negotiation and mediation of
a claim.
The proposed amendments implement Texas Government Code, §2260.051(d),
Claim for Breach of Contract; Notice, and §2260.052(a), Negotiation.
§11.103.Other Rules and Statutes.
The requirements of the following statutes and rules also apply to
claims filed under this subchapter:
(1)
(No change.)
(2)
Section 1.10 and §1.11 of this title (
relating
to
[
§11.104.Filing Notice of Claim for Breach of Contract; Counterclaim.
A contractor asserting a claim that the agency has breached a contract
must file a notice of claim as follows.
(1) - (2)
(No change.)
(3)
Copies of the written notice of claim and all other documents
filed with the chief clerk must be served on the executive director and the
deputy director of
Office of Legal Services
[
(4)
The executive director shall file any appropriate counterclaim
with the chief clerk within
60
[
§11.105.Negotiation.
(a)
(No change.)
(b)
The executive director shall initiate negotiations
with the contractor within 120 days after receiving the notice of claim
[
(c)
(No change.)
§11.108.Request for Hearing.
(a)
A contractor may request a contested case hearing before
the
State Office of Administrative Hearings (SOAH)
[
(b) - (c)
(No change.)
(d)
A contractor must serve copies of the request for hearing
on the executive director and the deputy director of
Office of Legal
Services
[
(e)
After a contractor files the request for hearing, the chief
clerk shall refer the entire file on the claim and counterclaim to [
(f) - (g)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on February 24, 2006.
TRD-200600997
Kevin McCalla
Director, General Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: April 9, 2006
For further information, please call: (512) 239-6087
Subchapter K. AIR ORDERS
30 TAC §§35.801, 35.802, 35.804, 35.805, 35.807, 35.808
The Texas Commission on Environmental Quality (commission)
proposes amendments to §§35.801, 35.802, 35.804, 35.805, 35.807,
and 35.808.
The amended sections will be submitted to the United States Environmental
Protection Agency as a revision to the state implementation plan.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
House Bill (HB) 2949, 79th Legislature, 2005, amended Texas Water Code
(TWC), §5.515, to allow for authorization of emergency orders to repair
or replace roads, bridges, or other infrastructure improvements involving
public works projects destroyed during a catastrophe. The TWC previously only
authorized emergency orders to allow repair of a facility or control equipment.
Amended TWC, §5.515 adds language regarding the contents of the application
for an emergency order. The required language in the application pertaining
to the reason for allowing the construction and emissions was expanded to
include preventing a "loss of a critical transportation thoroughfare." The
purpose of this rulemaking is to reflect these changes in Subchapter K of
this chapter. Because the statute is self-implementing, an emergency order
could currently be issued for one of the previously described instances prior
to the adoption of these proposed rules.
The proposed rules would add language authorizing emergency orders to include
repair or replacement of roads, bridges, or other infrastructure improvements
to the list of actions that can be authorized by an emergency order. Additionally,
the proposed rules would authorize an applicant to list loss of a critical
transportation thoroughfare as a reason why the construction and emissions
are essential. As a point of clarification, it is noted that the issuance
of an emergency order, under the proposed rules, to a rock crusher or concrete
batch plant that performs wet batching, dry batching, or central mixing will
not be prohibited under TWC, §5.5145, or subject to penalty under TWC,
§7.052(b), because the facility is considered to be operating under a
temporary permit as provided in TWC, §5.501(a)(2)(A).
SECTION BY SECTION DISCUSSION
The commission proposes administrative changes throughout the rules to
conform with Texas Register requirements and agency guidelines.
The proposed amendment to §35.801, Emergency Orders Because of Catastrophe,
adds roads, bridges, or other infrastructure to the list of repairs or replacements
for which the commission may authorize immediate action. The commission also
proposes to revise the definition of catastrophe by replacing the word "operator"
with the word "applicant" and by adding the language "or a road, bridge, or
other infrastructure."
The proposed amendment to §35.802, Application of an Emergency Order,
adds language, in paragraphs (1) and (5), allowing an applicant to state that
the proposed construction and emissions are essential to prevent the loss
of a critical transportation thoroughfare, and that the construction and emissions
are necessary for the repair or replacement of roads, bridges, or other infrastructure
to the list of possible statements in an application for an emergency order
of why the construction and emissions are necessary. In describing the limitations
on the proposed construction and emissions, the applicant may cite the public
works project as the specific basis for the emergency authorization.
The proposed amendment to §35.804, Issuance of Order, adds language,
in paragraph (1), allowing the commission to issue an order under this subchapter
if it is found that the proposed construction and emissions are essential
to prevent the loss of a critical transportation thoroughfare, and that the
construction and emissions are necessary for the repair or replacement of
roads, bridges, or other infrastructure to the list of possible reasons that
would allow the commission to issue an emergency order. Proposed new §35.804(5)(C),
adds public works projects needed to rebuild or repair damaged roads, bridges,
or other infrastructure destroyed during a catastrophe to the list of limitations
of the proposed construction and emissions.
The proposed amendment to §35.805, Contents of an Emergency Order,
adds in paragraph (3), public works projects needed to rebuild or repair damaged
roads, bridges, or other infrastructure destroyed during a catastrophe to
the list of limitations of the proposed construction and emissions.
The proposed amendment to §35.807, Affirmation of an Emergency Order,
adds language, in paragraph (1), allowing the commission to affirm a proposed
or issued order under this subchapter if the applicant shows that the proposed
construction and emissions are essential to prevent the loss of a critical
transportation thoroughfare, and that the construction and emissions are necessary
for the repair or replacement of roads, bridges, or other infrastructure to
the list of possible reasons that would allow the commission to issue an emergency
order. Proposed new §35.807(5)(C) adds public works projects needed to
rebuild or repair damaged roads, bridges, or other infrastructure destroyed
during a catastrophe to the list of limitations of the proposed construction
and emissions.
The proposed amendment to §35.808, Modification of an Emergency Order,
adds language, in paragraph (1), allowing the commission to modify a proposed
or issued order under this subchapter if the applicant shows that the proposed
construction and emissions are essential to prevent the loss of a critical
transportation thoroughfare, and that the construction and emissions are necessary
for the repair or replacement of roads, bridges, or other infrastructure.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Jeff Horvath, Analyst, Strategic Planning and Assessment Section, determined
that for the first five-year period the proposed rules are in effect, no fiscal
implications are anticipated for the agency or any other unit of state or
local government.
The proposed rules allow for the authorization of emergency orders to repair
or replace roads, bridges, or other infrastructure improvements involving
public works projects destroyed during a catastrophe. The rulemaking is consistent
with HB 2949. The TWC previously only authorized emergency orders to allow
the repair of a facility or control equipment. The proposed rules would add
language authorizing emergency orders for the repair or replacement of roads,
bridges, or other infrastructure improvements. Additionally, the proposed
rules would authorize an applicant to list loss of a critical thoroughfare
as a reason why the proposed construction and emissions are essential.
In general, the proposed rules are expected to affect rock crushers and
concrete batch plants in that the proposed emergency order could authorize
any air emissions or other activities necessary to repair or replace infrastructure
in the event of a catastrophic event. No costs are anticipated for the agency
to implement the proposed rules, and no fiscal implications are anticipated
for other units of state or local government due to the enforcement or administration
of the proposed rules.
PUBLIC BENEFITS AND COSTS
Mr. Horvath also determined that for each year of the first five years
the proposed rules are in effect, the public benefit anticipated from the
changes seen in the proposed rules will be compliance with state law, and
the expedited rebuilding or repair of critical infrastructure in the event
of a catastrophe. The proposed rules would authorize emergency orders that
previously would not have been allowed under commission rules. Allowing another
category of emergency orders would permit industry to respond more quickly
to catastrophes that affect major infrastructure. The emergency order could
authorize any air emissions or other activities from rock crushers and concrete
batch plants to repair or replace any necessary infrastructure. Because the
amended statute is self-implementing, an emergency order could currently be
issued prior to the adoption of these proposed rules. No fiscal implications
are anticipated for businesses or industry due to the implementation of the
proposed rules.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
No adverse fiscal implications are anticipated for small or micro-businesses
that own or operate rock crushers or concrete batch plants. The proposed rules
would authorize emergency orders that previously would not have been allowed
under commission rules and are expected to permit industry to respond more
quickly to catastrophes that affect major infrastructure.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission reviewed this proposed rulemaking and determined that a
local employment impact statement is not required because the proposed rules
do not adversely affect a local economy in a material way for the first five
years that the proposed rules are in effect.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the proposed 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 that statute.
A "major environmental rule" means a rule, the specific intent of which, is
to protect the environment or reduce risks to human health from 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 sector of the state. The commission has determined
that the proposed rulemaking does not fall under the definition of a "major
environmental rule" because none of the proposed rules mandate new requirements
for the regulated community. Rather, the proposed rules are intended to reflect
the statutory changes made to TWC, §5.515, by HB 2949.
Furthermore, the proposed rulemaking does not meet any of the four applicability
requirements listed in Texas Government Code, §2001.0225(a). Texas Government
Code, §2001.0225(a), 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. This rulemaking does not
meet any of these four applicability requirements because this rulemaking:
1) does not exceed any standard set by federal law; 2) does not exceed the
requirements of state law under TWC, Chapter 5, Subchapter L; 3) does not
exceed a requirement of a delegation agreement or contract between the state
and an agency or representative of the federal government to implement any
state and federal program; and 4) is not proposed solely under the general
powers of the agency, but rather specifically under TWC, §5.515.
TAKINGS IMPACT ASSESSMENT
The commission evaluated these proposed rules and performed an assessment
of whether these proposed rules constitute a takings under Texas Government
Code, Chapter 2007. The specific purpose of the rules is to incorporate into
commission rules the changes made to TWC, §5.515, by the Texas Legislature
by adding language to authorize emergency orders in the event of a catastrophe
to include the repair or replacement of roads, bridges, or other infrastructure.
Promulgation and enforcement of the proposed amendments would constitute
neither a statutory nor a constitutional taking of private real property.
There are no burdens imposed on private real property under this rulemaking
because the proposed amendments neither relate to, nor have any impact on,
the use or enjoyment of private real property, and there would be no reduction
in value of property as a result of this rulemaking. None of the proposed
rules mandate any new requirements, but rather, provide for a specific type
of authorization.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rulemaking and found that the proposal
is a rulemaking identified in the Coastal Coordination Act Implementation
Rules, 31 TAC §505.11(b)(2), relating to rules subject to the Coastal
Management Program, and will, therefore, require that goals and policies of
the Texas Coastal Management Program (CMP) be considered during the rulemaking
process.
The CMP goal applicable to the proposed rules is the goal to protect, preserve,
restore, and enhance the diversity, quality, quantity, functions, and values
of coastal natural resource areas. CMP policies applicable to the proposed
rules include the administrative policies and the policies for specific activities
related to the emission of air pollutants. Promulgation and enforcement of
these proposed rules is consistent with the applicable CMP goals and policies
because the proposed rules will establish clear and consistent requirements
governing the issuance of emergency and temporary orders for the repair or
replacement of roads, bridges, or other infrastructure when necessitated by
a catastrophe, as authorized by TWC, Chapter 5, Subchapter L. Under the authority
granted by statute, the commission may issue emergency or temporary orders
to address unforeseen circumstances such as potential catastrophes. Promulgation
and enforcement of these rules will not violate or exceed any standards identified
in the applicable CMP goals and policies because they will allow the commission
to take steps to mitigate emergency or potential emergency situations, which
will result in environmental benefits for the entire state, including coastal
areas.
ANNOUNCEMENT OF HEARING
The commission will hold a public hearing on this proposal in Austin on
April 4, 2006, at 10:00 a.m. in Building B, Room 201A, at the commission's
central office located at 12100 Park 35 Circle. The hearing is structured
for the receipt of oral or written comments by interested persons. Individuals
may present oral statements when called upon in order of registration. Open
discussion will not be permitted during the hearing; however, a staff member
will be available to discuss the proposal 30 minutes before the hearing and
will answer questions before and after the hearing.
Persons who have special communication or other accommodation needs who
are planning to attend the hearing should contact Lola Brown, Office of Legal
Services at (512) 239-0348. Requests should be made as far in advance as possible.
SUBMITTAL OF COMMENTS
Comments may be submitted to Lola Brown, Texas Register Team, Office of
Legal Services, MC 205, Texas Commission on Environmental Quality, P.O. Box
13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. Copies of the
proposed rulemaking can be obtained from the commission's Web site at
STATUTORY AUTHORITY
These amendments are proposed under TWC, §5.102, which establishes
the commission's general authority necessary to carry out its jurisdiction;
§5.103, which establishes the commission's general authority to adopt
rules to carry out its duties under the TWC and the other laws of the state;
§5.105, which establishes the commission's authority to set policy by
rule; and §5.515, which allows the commission to issue emergency orders
for immediate action for the addition, replacement, or repair of facilities
or control equipment, or the repair or replacement of roads, bridges, or other
infrastructure, and authorizing associated emissions of air contaminants,
whenever a catastrophe necessitates such construction and emissions otherwise
precluded under the Texas Clean Air Act (TCAA).
The proposed amendments implement changes made by the Texas Legislature
to TWC, §5.515.
§35.801.Emergency Orders Because of Catastrophe.
The commission or executive director may issue emergency orders under
Texas Water Code, §5.515, to authorize immediate action for the addition,
replacement, or repair of facilities or control equipment,
or the repair
or replacement of roads, bridges, or other infrastructure,
and authorizing
associated emissions of air contaminants, whenever a catastrophe necessitates
such construction and emissions otherwise precluded under the
Texas
Clean Air Act
[
§35.802.Application for an Emergency Order.
The owner or operator of a facility, as that term is defined in Texas
Health and Safety Code, §382.003, desiring to obtain an order under this
subchapter shall submit an application in accordance with §35.24 of this
title (relating to Application for Emergency or Temporary Order). The application
must contain the information required by that section and the following:
(1)
a statement that the proposed construction and emissions
are essential to prevent loss of life, serious injury, severe property damage,
loss of a critical transportation thoroughfare,
or severe economic loss
not attributable to the applicant's actions, and are necessary for the addition,
replacement, or repair of facilities or control equipment
, or repair
or replacement of roads, bridges, or other infrastructure,
necessitated
by a catastrophe;
(2) - (4)
(No change.)
(5)
a statement that the proposed construction and emissions
will occur only
:
(A)
on
[
(B)
[
(C)
for public works projects needed
to rebuild or repair damaged roads, bridges, or other infrastructure destroyed
during a catastrophe;
(6) - (10)
(No change.)
§35.804.Issuance of Order.
The commission or executive director may issue an order under this
subchapter if it is found that:
(1)
the proposed construction and emissions are essential to
prevent loss of life, serious injury, severe property damage,
loss of
a critical transportation thoroughfare,
or severe economic loss not
attributable to the applicant's actions and are necessary for the addition,
replacement, or repair of facilities or control equipment
, or repair
or replacement of roads, bridges, or other infrastructure,
that is necessitated
by a catastrophe;
(2) - (4)
(No change.)
(5)
the proposed construction or emissions will occur only:
(A)
on
[
(B)
on
[
(C)
for public works projects needed
to rebuild or repair damaged roads, bridges, or other infrastructure destroyed
during a catastrophe;
(6) - (7)
(No change.)
§35.805.Contents of an Emergency Order.
In addition to the requirements of §35.26 of this title (relating
to Contents of Emergency or Temporary Order), an emergency order issued under
this subchapter shall contain at least the following:
(1) - (2)
(No change.)
(3)
authorization for action only
:
(A)
on
[
(B)
[
(C)
for public works projects needed
to rebuild or repair damaged roads, bridges, or other infrastructure destroyed
during a catastrophe;
(4)
(No change.)
(5)
a schedule for submission of a complete construction permit
application under provisions of
Texas Clean Air Act
[
§35.807.Affirmation of an Emergency Order.
The commission shall affirm a proposed or issued order if the applicant
shows at the hearing, by a preponderance of the evidence, that:
(1)
the proposed construction and emissions are essential to
prevent loss of life, serious injury, severe property damage,
loss of
a critical transportation thoroughfare,
or severe economic loss not
attributable to the applicant's actions and are necessary for the addition,
replacement, or repair of facilities or control equipment
, or repair
or replacement of roads, bridges, or other infrastructure,
that is necessitated
by a catastrophe;
(2) - (4)
(No change.)
(5)
the proposed construction or emissions will occur only:
(A)
on
[
(B)
on
[
(C)
for public works projects needed
to rebuild or repair damaged roads, bridges, or other infrastructure destroyed
during the catastrophe;
(6) - (7)
(No change.)
§35.808.Modification of an Emergency Order.
The commission shall modify a proposed or issued order if the hearing
record shows that:
(1)
construction and emissions otherwise precluded under the
Texas Clean Air Act
[
(2) - (3)
(No change.)
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on February 24, 2006.
TRD-200600972
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Earliest possible date of adoption: April 9, 2006
For further information, please call: (512) 239-0348
Subchapter J. ENFORCEMENT, SUPERVISION, AND RECEIVERSHIP
30 TAC §291.146
The Texas Commission on Environmental Quality (commission
or TCEQ) proposes new §291.146.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULE
The 79th Legislature, 2005, passed House Bill (HB) 841, which relates to
municipally owned utilities that provide nonsubmetered master metered utility
service to recreational vehicle parks. HB 841 amended Texas Water Code (TWC),
§13.087, by defining "nonsubmetered master metered utility service" and
by requiring municipally owned utilities to determine rates charged to recreational
parks in the same manner as they do for other commercial businesses that serve
transient customers.
This bill requires the commission to incorporate into the agency's rules
the definition of "nonsubmetered utility service" and to review complaints
received by recreational vehicle parks. This bill also gives the commission
the authority to take enforcement action against a municipally owned utility
that charges a higher rate to a recreational vehicle park than to a commercial
customer.
SECTION DISCUSSION
The commission proposes to add new §291.146, Municipal Rates for Certain
Recreational Vehicle Parks, to implement TWC, §13.087, as amended by
the 79th Legislature. This proposed new section defines "nonsubmetered master
metered utility service" as potable water service that is master metered but
not submetered and wasterwater service that is based on master metered potable
water service. The proposed new section gives the commission enforcement authority
over municipally owned utilities that do not determine rates charged to recreational
parks in the same manner as they do for other commercial businesses that serve
transient customers.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Walter Perry, Analyst, Strategic Planning and Assessment Section, determined
that, for the first five-year period the proposed rule is in effect, no significant
fiscal implications are anticipated for the agency or other units of state
or local government.
The proposed rule implements HB 841, 79th Legislature, which requires all
municipally owned utilities that provide nonsubmetered master metered utility
service to recreational vehicle parks to determine their rates for recreational
vehicle parks in the same manner used for other commercial businesses that
serve transient customers. The rulemaking would grant jurisdiction to the
agency to take enforcement action against a municipally owned utility that
charges a higher rate to a recreational vehicle park than to similar commercial
customers. The rulemaking defines nonsubmetered utility service as potable
water service that is master metered but not submetered and wastewater service
that is based on master metered potable water service.
The rulemaking would not affect agency revenues or costs. The agency would
be required to review complaints received from recreational vehicle parks
and take any necessary enforcement action. Any additional costs for the agency
to review complaints or take enforcement action would be absorbed using current
agency resources. Other units of state government are not expected to be affected
by the proposed rule as they do not own or operate municipal water utilities.
Local governments that own their own municipal water utilities would be prevented
from charging recreational vehicle parks rates that are different from similar
businesses. Of the estimated 1,920 cities in Texas, approximately 962 have
a municipally owned utility. Any reduction in revenue for the utilities is
not projected to be significant. Any reduction in revenue would be dependent
upon the level of water consumption and the current disparity between rates
charged for the recreational vehicle parks and similar businesses that serve
transient customers. It is unknown how many recreational vehicle parks are
located in areas serviced by municipal water utilities.
PUBLIC BENEFITS AND COSTS
Mr. Perry also determined that for each year of the first five years the
proposed new rule is in effect, the public benefit anticipated from the changes
seen in the proposed rule will be billing rate protection for recreational
vehicle parks serviced by municipal water utilities. The commission would
be granted enforcement authority to ensure that recreational vehicle parks
are billed at the same rates as similar businesses that serve transient customers.
The proposed rule implements HB 841, 79th Legislature, which requires all
municipally owned utilities that provide nonsubmetered master metered utility
service to recreational vehicle parks to determine their rates for recreational
vehicle parks in the same manner used for other commercial businesses that
serve transient customers. The rulemaking would grant jurisdiction to the
agency to take enforcement action against a municipally owned utility that
charges a higher rate to a recreational vehicle park than to similar commercial
customers. The rulemaking defines nonsubmetered utility service as potable
water service that is master metered but not submetered and wastewater service
that is based on master metered potable water service.
The proposed rule is expected to result in cost savings for any recreational
vehicle park serviced by a municipally owned water utility. Of the estimated
1,920 cities in Texas, approximately 962 have a municipally owned utility.
It is unknown how many recreational vehicle parks are located in areas serviced
by municipal water utilities. It is projected that the rulemaking would protect
the recreational vehicle parks from being charged rates that are higher than
other similar businesses and could result in financial savings for the affected
recreational vehicle parks. Any savings realized would be dependent upon consumption
and the current disparity between rates charged for the recreational vehicle
parks and similar businesses that serve transient customers.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
No adverse fiscal implications are anticipated for small or micro-businesses
as a result of the proposed rulemaking. The proposed rulemaking would result
in no additional costs for small and micro-businesses. Small and micro-businesses
would experience the same potential cost savings as industry. It is believed
that the majority of businesses that own and operate recreational vehicle
parks and would be affected by the rulemaking are small and micro-businesses.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission reviewed this proposed rulemaking and determined that a
local employment impact statement is not required because the proposed rule
does not adversely affect a local economy in a material way for the first
five years that the proposed rule is in effect.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the proposed 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 defined in that statute.
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 sector of the state.
This proposal does not qualify as a major environmental rule because it
does not have as its specific intent the protection of the environment or
the reduction of risk to human health from environmental exposure. The specific
purpose of this rulemaking is to amend the commission rules in Chapter 291
to incorporate the requirements of HB 841 from the 79th Legislature, related
to the rates charged by a municipally owned utility to certain recreational
vehicle parks for potable water or wastewater service. The proposed rule incorporates
the requirement in HB 841 that a municipally owned utility determine the rates
for nonsubmetered master metered utility service to a recreational vehicle
park on the same basis the utility uses to determine the rates for other commercial
businesses. The requirements of HB 841 relate to the utility rates charged
by a municipally owned utility and are not related to environmental protection
or the reduction of risk to human health.
Furthermore, even if the proposed rulemaking did meet the definition of
a major environmental rule, it is not subject to Texas Government Code, §2001.0225,
because it does not meet any of the four applicable requirements specified
in §2001.0225(a). Specifically, the proposed rule does not: 1) exceed
a standard set by federal law; 2) exceed an express requirement of state law;
3) exceed a requirement of a delegation agreement or 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.
The commission invites public comment on the draft regulatory analysis
determination.
TAKINGS IMPACT ASSESSMENT
The commission evaluated the proposed rule and performed an assessment
of whether the proposed rule constitutes a takings under Texas Government
Code, Chapter 2007. The specific purpose of this rulemaking is to amend the
commission rules in Chapter 291 to incorporate the requirements of HB 841
from the 79th Legislature, related to the rates charged by a municipally owned
utility to certain recreational vehicle parks for potable water or wastewater
service. The proposed rule would substantially advance this stated purpose
by incorporating the requirements of HB 841 related to municipal utility rates
into the commission rules. There are no burdens imposed on private real property
by the enactment of the rule because the rule addresses municipal utility
rates and does not affect private real property. Therefore, the proposed rule
does not constitute a takings under Texas Government Code, Chapter 2007.
The commission invites public comment on this preliminary takings impact
assessment.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rule and found that it is neither
identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2)
or (4), nor will it affect any action/authorization identified in Coastal
Coordination Act Implementation Rules, 31 TAC §505.11(a)(6). Therefore,
the proposed rule is not subject to the Texas Coastal Management Program.
SUBMITTAL OF COMMENTS
Comments may be submitted to Holly Vierk, MC 205, Office of Legal Services,
Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087,
or faxed to (512) 239-4808. All comments should reference Rule Project Number
2005-059-291-PR. Comments must be received by 5:00 p.m., April 10, 2006. For
further information, please contact Lisa Mejia, Utilities & Districts
Section, (512) 239-6117.
STATUTORY AUTHORITY
The new section is proposed under TWC, §5.102, which provides the
commission the general powers to carry out duties under TWC; and §5.103,
which provides the commission with the authority to adopt any rules necessary
to carry out the powers and duties under the provisions of the TWC and other
laws of this state. In addition, TWC, §13.041, states that the commission
may regulate and supervise the business of every water and sewer utility within
its jurisdiction and may do all things, whether specifically designated in
TWC, Chapter 13, or implied in TWC, Chapter 13, necessary and convenient to
the exercise of this power and jurisdiction. Further, TWC, §13.041, states
that the commission shall adopt and enforce rules reasonably required in the
exercise of its powers and jurisdiction, including rules governing practice
and procedure before the commission. Finally, TWC, §13.087, the section
added by HB 841, states that the commission has jurisdiction to enforce this
section.
The proposed new rule implements TWC, §§5.102, 5.103, 13.041,
and 13.087.
§291.146.Municipal Rates for Certain Recreational Vehicle Parks.
(a)
The following words and terms, when used in this section,
have the following meanings, unless the context clearly indicates otherwise.
(1)
Nonsubmetered master metered utility service--Potable water
service that is master metered but not submetered and wastewater service that
is based on master metered potable water service.
(2)
Recreational vehicle--Includes a:
(A)
house trailer as that term is defined by Texas Transportation
Code, §501.002; and
(B)
towable recreational vehicle as that term is defined by
Texas Transportation Code, §541.201.
(3)
Recreational vehicle park--A commercial property on which
service connections are made for recreational vehicle transient guest use
and for which fees are paid at intervals of one day or longer.
(b)
A municipally owned utility that provides nonsubmetered
master metered utility service to a recreational vehicle park shall determine
the rates for that service on the same basis the utility uses to determine
the rates for other commercial businesses, including hotels and motels, that
serve transient customers and receive nonsubmetered master metered utility
service from the utility.
(c)
With the exception of any other provision of this chapter,
the commission has jurisdiction to enforce this section.
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 February 24, 2006.
TRD-200600971
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Earliest possible date of adoption: April 9, 2006
For further information, please call: (512) 239-0177
The Texas Commission on Environmental Quality (commission) proposes
amendments to §§295.2 and 295.171 - 295.174; and proposes new §295.42.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
The 79th Legislature, 2005, passed House Bill (HB) 2140. This proposed
rulemaking is necessary to implement that bill. This proposed rulemaking is
also necessary to update the rules to reflect the agency's current practices,
to adhere to the style and formatting requirements in the
Texas Legislative Council Drafting Manual
, November 2004, and to conform
with Texas Register and agency guidelines.
When an application is filed to construct a storage reservoir, Texas Water
Code (TWC), §11.124, as amended by HB 2140, requires that the application
contain evidence that notice of the application has been given to members
of the governing bodies of each county and municipality in which the reservoir
will be located. The rule and statute ensure that local elected officials
are provided timely information on reservoirs that are proposed for their
area.
A corresponding proposed rulemaking that includes changes to 30 TAC Chapter
297, Water Rights, Substantive, is published in this issue of the
Texas Register
.
SECTION BY SECTION DISCUSSION
The proposed amendment to §295.2, Preparation of Application, adds
a provision that the applicant must submit one original and six copies of
the application and supporting materials, with a provision that electronic
versions can be submitted for copies with the approval of the executive director.
Some applicants have suggested to staff that the applicants may not provide
the customary copies. In order to ensure timely processing of applications
it is especially important for the staff to have copies of maps and other
exhibits that cannot be readily copied by staff.
Proposed new §295.42, Additional Notice Requirements, requires proof
of mailed notice of the application for a proposed storage reservoir to each
member of the governing body of each county and municipality in which the
reservoir, or any part of the reservoir, will be located. Proposed new §295.42
would implement TWC, §11.124, as amended by the 79th Legislature.
The commission proposes to change the title of Subchapter D from "Public
Hearing" to "Contested Case Hearing" because this subchapter relates to contested
case or trial-type hearings and the term "public hearing" is a broad term
which includes all types of hearings.
The proposed amendment to §295.171, Request for Public Hearing, changes
the title of the section from "Request for Public Hearing" to "Request for
Contested Case Hearing," incorporates the requirements of 30 TAC Chapter 55,
Subchapter G, concerning Requests for Reconsideration and Contested Case Hearings;
Public Comments, and adds a reference to the time period specified in §55.251,
to make the time for requesting a contested case hearing consistent with other
commission rules. Additionally, the commission proposes to delete subsection
(b) because those requirements are contained in Chapter 55, Subchapter G,
and therefore, do not need to be repeated in §295.171(b).
The proposed amendment to §295.172, Public Hearing, changes all references
from "public hearings" to "contested case hearings" to clarify that this rule
only applies to contested case hearings. The reference to §295.171 will
also be changed to refer to §55.251 and §55.255.
The proposed amendment to §295.173, Action on Application Without
Public Hearing, changes the name of the section title from "Action on Application
Without Public Hearing" to "Action on Application Without Contested Case Hearing"
to more accurately reflect the contents of the section. Additionally, the
proposed amendment combines existing paragraphs (1) and (2), renumbers existing
paragraph (3) to new paragraph (2), and adds a new paragraph (3). Proposed
paragraph (3) provides that the commission may take action on an application
requiring notice without holding a contested case hearing, if the commission
did not grant a request for a contested case hearing. This amendment is proposed
to make the rule consistent with current commission procedures under TWC,
§5.115.
The proposed amendment to §295.174, Applications for Temporary Permits,
Emergency Permits, and Authorization to Divert Water From Unsponsored and
Storage-Limited Projects for Domestic and Livestock Purposes, changes all
references from "public hearings" to "contested case hearings" to clarify
that this rule only applies to contested case hearings.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Nina Chamness, Analyst, Strategic Planning and Assessment Section, determined
that for the first five-year period the proposed rules are in effect, no fiscal
implications are anticipated for the agency as a result of administration
or enforcement of the proposed rules. Local governments, or other units of
state government, who are water rights holders will see fiscal implications
if they decide to construct a storage reservoir, but those implications are
anticipated to be minor.
HB 2140 amended TWC, §11.124(b) to require that applications filed
to construct a storage reservoir contain evidence that notice of the application
has been given to each member of the governing bodies of each county and municipality
in which the reservoir, or any part of the reservoir, will be located. The
proposed rulemaking would amend §295.42 to require proof of mailed notice
of the application to members of the appropriate governing bodies as now required
by state law. In addition, the proposed rulemaking amends §295.2 to state
that applicants must submit one original and six copies of the application
and supporting materials when requesting any type of water permit. Current
agency practice is to require an original and six copies, but the proposed
rulemaking will clarify this requirement. The proposed rulemaking also makes
administrative changes to Chapter 295 regarding contested case hearings to
provide consistency and clarification within current rule provisions.
Local governments or other units of state government may see a cost increase
if they apply to construct a storage reservoir. Staff cannot anticipate the
number of future applications that will be filed to construct storage reservoirs.
The requirement for each application for this type of construction to contain
evidence of mailed notice to each member of the appropriate governing bodies
will require the mailing of certified letters, which is estimated to cost
$3.00 each. County commissioner courts have five members. Size of city councils
varies among municipalities, but it is estimated that the average council
size is six members. If a storage reservoir is constructed within one county
and within one municipality, mailing costs could total $33 for each application.
Constructing a storage reservoir that crosses county lines or is contained
within more than one municipal boundary will cause application costs to increase
by the number of members of each governing body. This increased cost is not
anticipated to have significant fiscal implications for local governments
or other units of state government.
PUBLIC BENEFITS AND COSTS
Ms. Chamness also determined that for each year of the first five years
the proposed rules are in effect, the public benefit anticipated from the
changes seen in the proposed rules will be compliance with state law and increased
awareness among local government officials regarding planned construction
of storage reservoirs that may be constructed within their jurisdictions.
The proposed rules would require applicants who wish to construct storage
reservoirs, to send certified letters to each member of the appropriate governing
bodies. Assuming an average cost of $3.00 per certified letter, a county commissioner
court size of five, and an average city council size of six members, application
costs to construct storage reservoirs could increase by $33. Application costs
will increase incrementally if a storage reservoir is contained within more
than one county or municipality. This increased cost is not anticipated to
have significant fiscal implications for applicants applying to construct
storage reservoirs.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
Fiscal implications are anticipated for small or micro-businesses planning
to construct storage reservoirs, although they are not anticipated to be significant.
Application costs would increase because of the requirement to send certified
letters to each member of the appropriate local government. This cost, estimated
to be $3.00 per letter, could be as much as $33. A small business is defined
as having fewer than 100 employees or less than $1 million in annual gross
receipts. A micro- business is defined as having no more than 20 employees.
The cost per employee for a small business is estimated to be $0.33. For a
micro-business, the cost is estimated to be $1.65 per employee.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission reviewed this proposed rulemaking and determined that a
local employment impact statement is not required because the proposed rules
do not adversely affect a local economy in a material way for the first five
years that the proposed rules are in effect.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
These proposed rules are not a "major environmental rule" as defined by
Texas Government Code, §2001.0225(g)(3), because they are not proposed
to protect the environment or reduce risks to human health from environmental
exposure. The proposed rules are procedural and require six copies of an application
and supporting materials, require proof of mailed notice of an application
for a proposed storage reservoir to each member of a governing body of each
county or municipality in which the reservoir will be located, change "public
hearing" to "contested case hearing" in three existing rules, and add a current
statutory procedure to the request for contested case hearing process. Therefore,
no regulatory analysis on the costs of the proposed rulemaking is required.
Furthermore, these proposed rules do not exceed an express requirement
of state law or exceed a requirement of a delegation agreement or contract
between the state and federal government, and are not adopted under the general
authority of the agency.
TAKINGS IMPACT ASSESSMENT
These proposed rules do not affect private real property. The proposed
rules require six copies of an application and supporting materials, require
proof of mailed notice of an application for a proposed storage reservoir
to each member of a governing body of each county or municipality in which
the reservoir will be located, change "public hearing" to "contested case
hearing" in three existing rules, and add a current statutory procedure to
the request for contested case hearing process. All of these changes are procedural
changes which will aid the executive director's staff in processing applications,
provide more notice of certain applications, clean up language concerning
contested case hearings, and add a process for contested case hearing requests
under TWC, §5.115.
None of these changes have any impact on any private real property interest.
There are no alternatives to these procedural changes because they are either
required for clarity or efficiency or reflect state law.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rulemaking and found the proposal
is a rulemaking identified in the Coastal Coordination Act Implementation
Rules, 31 TAC §505.11(b)(4) concerning rules subject to the Texas Coastal
Management Program (CMP), and will, therefore, require that goals and policies
of the CMP be considered during the rulemaking process.
The commission reviewed this rulemaking for consistency with the CMP goals
and policies in accordance with the regulations of the Coastal Coordination
Council and determined that the rulemaking is editorial and procedural in
nature and will have no substantive effect on commission actions subject to
the CMP and is, therefore, consistent with CMP goals and policies.
Written comments on the consistency of this rulemaking may be submitted
to the contact person at the address listed under the SUBMITTAL OF COMMENTS
section of this preamble.
SUBMITTAL OF COMMENTS
Comments may be submitted to Patricia Durón, MC 205, Texas Register
Team, Office of Legal Services, P.O. Box 13087, Austin, Texas 78711-3087 or
faxed to (512) 239-4808. All comments should reference Rule Project Number
2005-057-297-PR. Comments must be received by 5:00 p.m. on April 10, 2006.
For further information, please contact Kathy Hopkins, Water Rights Permitting
and Availability Section, at (512) 239-2567.
Subchapter A. REQUIREMENTS OF WATER RIGHTS APPLICATIONS GENERAL PROVISIONS
1.
GENERAL REQUIREMENTS
30 TAC §295.2
STATUTORY AUTHORITY
The amendment is proposed under TWC, Chapter 11, which sets out the powers
and duties of the commission relating to water rights, and under §5.103(a),
which provides the commission with the authority to adopt rules necessary
to carry out its powers and duties under the TWC and other laws of the state.
TWC, §§11.124 - 11.128, contain certain requirements for water rights
applications.
The proposed amendment implements TWC, §§11.124 - 11.128, relating
to application requirements for water rights, and TWC, §5.103(a), which
provides that the commission has the authority to adopt rules necessary to
carry out its powers and duties under the TWC and other laws of the state.
§295.2.Preparation of Application.
(a)
All applications shall be typewritten or printed
legibly in ink. Illegible applications will be returned to the applicant.
Applicants will be notified if additional information is needed to process
an application,
under
[
(b)
All applicants shall submit one original
and six copies of the application and supporting materials. In addition to
the original notarized application form, if approved by the executive director,
an applicant may submit electronic versions of required application documents.
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 February 24, 2006.
TRD-200600974
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Earliest possible date of adoption: April 9, 2006
For further information, please call: (512) 239-6087
30 TAC §295.42
STATUTORY AUTHORITY
The new section is proposed under TWC, Chapter 11, which sets out the powers
and duties of the commission relating to water rights; §5.103(a), which
provides the commission with the authority to adopt rules necessary to carry
out its powers and duties under the TWC and other laws of the state; §11.132,
which requires notice for certain applications; and §11.124(f), which
requires that an applicant provide evidence that it has provided notice of
an application to construct a proposed reservoir to the governing bodies of
each county and municipality in which the reservoir will be located. The commission
must enact procedural rules for notice, and amend them when required by commission
decision or statutory law.
The proposed new section implements TWC, §11.132 and §11.124(f),
concerning notice requirements for water rights applications. The new section
specifically implements §11.124(f), requiring notice of a storage reservoir
to each member of the governing body of each county and municipality in which
the reservoir will be located. The proposed new section also implements TWC,
§5.103(a), which provides that the commission has the authority to adopt
rules necessary to carry out its powers and duties under the TWC and other
laws of the state.
§295.42.Additional Notice Requirement.
(a)
The applicant for a permit to construct a storage reservoir
shall give notice by certified mail of the application to each member of the
governing body of each county and municipality in which the reservoir, or
any part of the reservoir, will be located.
(b)
For purposes of this section, a reservoir is located within
a municipality when any part of the reservoir, when full, will be within the
city limits of the municipality.
(c)
An application for a permit to construct a storage reservoir
must contain a copy of the notice that was mailed to each member of the governing
bodies, as well as copies of the certified mailing cards.
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 February 24, 2006.
TRD-200600975
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Earliest possible date of adoption: April 9, 2006
For further information, please call: (512) 239-6087
30 TAC §§295.171 - 295.174
STATUTORY AUTHORITY
The amendments are proposed under TWC, Chapter 11, which sets out the powers
and duties of the commission relating to water rights; §5.103(a), which
provides the commission with the authority to adopt rules necessary to carry
out its powers and duties under the TWC and other laws of the state; and §5.115,
which also contains requirements for a contested case hearing for water rights
permits. The commission must enact procedural rules for contested case hearings,
and amend them when required by commission decision or statutory law.
The proposed amendments implement TWC, §11.176 and §5.115, which
contain the requirements for contested case hearings for water rights applications,
and TWC, §5.103(a), which provides that the commission has the authority
to adopt rules necessary to carry out its powers and duties under the TWC
and other laws of the state.
§295.171.Request for Contested Case Hearing [
[
[
[
[
[
[
§295.172. Contested Case Hearing [
The commission may conduct a
contested case hearing
[
§295.173.Action on Application Without Contested Case Hearing [
The commission may take action on an application requiring public notice
at a regular meeting, without holding a
contested case hearing
[
(1)
at least 30 days prior to the regular meeting at which
action is taken, notice of the application has been given by publication and
by mail
and no person has requested a contested case hearing within 30
days of the publication of notice
;
[
(2)
[
(3)
the commission did not grant a request
for a contested case hearing.
§295.174.Applications for Temporary Permits, Emergency Permits, and Authorization to Divert Water From Unsponsored and Storage-Limited Projects for Domestic and Livestock Purposes.
The sections in this subchapter relating to requests for
contested
case hearings
[
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 February 24, 2006.
TRD-200600976
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Earliest possible date of adoption: April 9, 2006
For further information, please call: (512) 239-6087
The Texas Commission on Environmental Quality (commission) proposes
amendments to §297.46 and §297.71.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
The 79th Legislature, 2005, passed House Bill (HB) 1225. This proposed
rulemaking is necessary to implement that bill. This proposed rulemaking is
also necessary to update the rules to reflect the agency's current practices,
to adhere to the style and formatting requirements in the
Texas Legislative Council Drafting Manual
, November 2004, and to conform
with Texas Register and agency guidelines.
The 79th Legislature passed HB 1225 in response to recommendations by the
Water Conservation Implementation Task Force, which was created by the 78th
Legislature, 2003. HB 1225 added a provision to Texas Water Code (TWC), §11.173(b),
which exempts a state water right from cancellation for nonuse if the nonuse
was the result of water conservation measures. This measure will encourage
the conservation of water in the state.
A corresponding proposed rulemaking that includes changes to 30 TAC Chapter
295, Water Rights, Procedural, is published in this issue of the
Texas Register
.
SECTION BY SECTION DISCUSSION
The proposed amendment to §297.46, Consideration of Public Welfare,
deletes an obsolete reference to 30 TAC Chapter 261, which has been repealed.
The proposed amendment to §297.71, Cancellation in Whole or in Part,
adds subsection (b)(7) that provides an additional exemption from cancellation
for those water rights that are not used due to implementation of water conservation
measures. Subsection (b) implements HB 1225, as amended by the 79th Legislature,
which will encourage water conservation.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Nina Chamness, Analyst, Strategic Planning and Assessment Section, determined
that for the first five-year period the proposed rules are in effect, no fiscal
implications are anticipated for the agency or other units of state or local
governments as a result of administration or enforcement of the proposed rules.
The proposed rulemaking would implement HB 1225, which amended TWC, §11.173(b).
HB 1225 encourages water conservation by exempting a state water right from
cancellation for nonuse if that nonuse was the result of water conservation
measures. Additionally, the proposed rulemaking amends Chapter 297 to reflect
current agency practices.
Current agency practice reflects the provisions of the proposed rulemaking
and has no fiscal implications to local government water right holders.
PUBLIC BENEFITS AND COSTS
Ms. Chamness also determined that for each year of the first five years
the proposed rules are in effect, the public benefit anticipated from the
changes seen in the proposed rules will be increased efforts to conserve water
and greater consistency between agency rules and the TWC.
The proposed rulemaking implements provisions of TWC, §11.173(b),
and encourages water conservation by exempting a state water right from cancellation
for nonuse if that nonuse was the result of water conservation measures. Additionally,
the proposed rulemaking amends Chapter 297 to reflect current agency practices.
Current agency practice reflects the provisions of the proposed rulemaking
and has no fiscal implications to water right holders.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
No adverse fiscal implications are anticipated for small or micro-businesses
as a result of the proposed rules. Current agency practice reflects the provisions
of the proposed rules and has no fiscal implications to water right holders.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission reviewed this proposed rulemaking and determined that a
local employment impact statement is not required because the proposed rules
do not adversely affect a local economy in a material way for the first five
years that the proposed rules are in effect.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
These proposed amendments are not a "major environmental rule" as defined
by Texas Government Code, §2001.0225(g)(3), because they are not proposed
to protect the environment or reduce risks to human health from environmental
exposure. The purpose of the proposed rulemaking is to comply with state law.
TWC, §11.173(b), exempts a state water right from cancellation for nonuse
if the nonuse was the result of water conservation measures. This change is
not expressly to protect the environment and reduce risks to human health
and the environment. Therefore, no regulatory analysis on the costs of the
proposed rulemaking is required.
Furthermore, these proposed amendments do not exceed an express requirement
of state law or exceed a requirement of a delegation agreement or contract
between the state and federal government, and are not adopted under the general
authority of agency.
TAKINGS IMPACT ASSESSMENT
These proposed amendments do not affect private real property. These changes
exempt conserved water from cancellation. The purpose of the proposed rulemaking
is to comply with state law. TWC, §11.173(b), exempts a state water right
from cancellation for nonuse if the nonuse was the result of water conservation
measures.
These proposed amendments do not burden private real property because allowing
a further exemption from cancellation protects private real property. There
are no alternatives to these proposed amendments because the proposed amendments
implement state law.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rulemaking and found the proposal
is a rulemaking identified in the Coastal Coordination Act Implementation
Rules, 31 TAC §505.11(b)(4), concerning rules subject to the Texas Coastal
Management Program (CMP), and will, therefore, require that goals and policies
of the CMP be considered during the rulemaking process.
The commission reviewed this rulemaking for consistency with the CMP goals
and policies in accordance with the regulations of the Coastal Coordination
Council and determined that the rulemaking is editorial and procedural in
nature and will have no substantive effect on commission actions subject to
the CMP and is, therefore, consistent with CMP goals and policies.
Written comments on the consistency of this rulemaking may be submitted
to the contact person at the address listed under the SUBMITTAL OF COMMENTS
section of this preamble.
SUBMITTAL OF COMMENTS
Comments may be submitted to Patricia Durón, MC 205, Texas Register
Team, Office of Legal Services, P.O. Box 13087, Austin, Texas 78711-3087 or
faxed to (512) 239-4808. All comments should reference Rule Project Number
2005-057-297-PR. Comments must be received by 5:00 p.m. April 10, 2006. For
further information, please contact Julie Wood, Water Rights Permitting and
Availability Section, at (512) 239-1282.
Subchapter E. ISSUANCE AND CONDITIONS OF WATER RIGHTS
regarding
] Document Filing
Procedures; and Service
on Judge, Parties, and Interested Persons
) except §1.11(a)
of this title
.
OLS
] no
later than the day of filing.
90
] days after the filing
of the notice of claim and provide a copy to the contractor.
Upon receiving a notice of claim, the executive director shall provide the
contractor a reasonable opportunity to meet and negotiate the claim
].
state
SOAH
] of any unsettled portion of the claim.
OLS
] no later than the day of filing.
the
] SOAH for a contested case hearing under Texas Government Code,
Chapter 2001, as to the issues raised in the request for hearing. Referral
of a request for hearing to SOAH does not constitute waiver by the commission
of statutory or regulatory requirements for the notice of claim, the claim
or the request for hearing.
Chapter 35.
EMERGENCY AND TEMPORARY ORDERS AND PERMITS; TEMPORARY SUSPENSION OR AMENDMENT OF PERMIT CONDITIONS
TCAA
]. For purposes of this section, a catastrophe
is an unforeseen event including, but not limited to, an act of God, an act
of war, severe weather conditions, explosions, fire, or other similar occurrences
beyond the reasonable control of the
applicant
[
operator
],
which renders a facility or its functionally related appurtenances
, or
a road, bridge, or other infrastructure,
inoperable.
at
] the property where
the catastrophe occurred
;
or
] on other property owned by
the owner or operator of the damaged facility, which produces the same intermediates,
products, or by-products,
provided
[
providing
] that
no more than a
de minimus
[
de minimis
] increase will occur in the predicted concentration of the
air contaminants at or beyond the property line at such other property;
or
at
] property where the catastrophe
occurred; [
or
]
at
] other property owned by the
owner or operator of the damaged facility
,
which produces the same
intermediates, products, or by-products,
provided that
[
so
long as there will be
] no more than a
de minimus
[
de minimis
] increase
will occur
in
the predicted concentration of the air contaminants at or beyond the property
line at such other property;
or
at
] the property where
the catastrophe occurred
;
or
] on other property owned by
the owner or operator of the damaged facility, which [
also
] produces
the same intermediates, products, or by-products, provided
that
[
there will be
] no more than a
de minimus
[
de minimis
] increase
will occur
in the
predicted
concentration of
the
air contaminants at or beyond
the property line at such other property;
or
TCAA
],
Chapter 382
[
§382.0518
].
at
] property where the catastrophe
occurred; [
or
]
at
] other property owned by the
owner or operator of the damaged facility
,
which produces the same
intermediates, products, or by-products,
provided that
[
so
long as there will be
] no more than a
de minimus
[
de minimis
] increase
will occur
in
the predicted concentration of the air contaminants at or beyond the property
line at such other property;
or
TCAA
] are essential to prevent loss
of life, serious injury, severe property damage,
loss of a critical transportation
thoroughfare,
or severe economic loss not attributable to the applicant's
actions and are necessary for the addition, replacement, or repair of facilities
or control equipment
, or repair or replacement of roads, bridges, or
other infrastructure,
that is necessitated by a catastrophe;
Chapter 291.
UTILITY REGULATIONS
Chapter 295.
WATER RIGHTS, PROCEDURAL
pursuant to
] §281.4 of this
title (relating to Applications for Use of State Water). The applicant should
confer with the staff of the executive director on any questions concerning
preparation of the application, especially if the application is unusual or
unique. Upon express written or verbal approval of the applicant or the applicant's
agent, any employee of the commission may make nonsubstantive changes in any
documents submitted by the applicant. Substantive changes in an application
may be made only by the applicant or the applicant's agent who submitted the
application and only in the form of a written, notarized amendment to the
application signed by the proper person; provided, however, that no substantive
changes may be made after an application has been filed with the chief clerk
of the commission by the executive director.
4.
ADDITIONAL REQUIREMENTS FOR DAMS AND RESERVOIRS
Subchapter D. CONTESTED CASE HEARING Public Hearing ].
(a)
]
A request for
contested case hearing
[
public hearing
] on an application for a water use permit
or amendment made by the applicant, the executive director, or an affected
person who objects to the application must be made in writing
, must comply
with the requirements of Chapter 55, Subchapter G, of this title (relating
to Requests for Reconsideration and Contested Case Hearings; Public Comment),
and specifically §55.251 of this title (relating to Requests for Contested
Case Hearing, Public Comment),
and must be submitted to the commission
within 30 days after the publication of the notice of application. The commission
may extend the time allowed for submitting a request for
contested case
hearing
[
public hearing
].
(b)
A written request for a hearing from an
affected person who objects to the application shall contain the following
information:
]
(1)
the name, mailing address, and phone number
of the person making the request;
]
(2)
the application number or other recognizable
reference to the application;
]
(3)
a brief description of the interest of
the requester, or of persons represented by the requester; and
]
(4)
a brief description of how the application,
if granted, would adversely affect such interest.
]
Public Hearing ].
public hearing
] on any application. If the commission has received a
request for
a contested case hearing,
[
public hearing
]
which it determines is in compliance with
§55.251 and §55.255
of this title (relating to Requests for Contested Case Hearing, Public Comment;
and Commission Action on Hearing Request)
[
§295.171 of this
title (relating to Request for Public Hearing)
], if it determines that
a
contested case hearing
[
public hearing
] would serve
the public interest, or if a commissioner requests a
contested case hearing
[
public hearing
], the commission shall conduct a
contested
case hearing
[
public hearing
]
or refer the matter to
the State Office of Administrative Hearings for a contested case hearing
.
[
If the commission determines that a public hearing must be held, the
matter shall be remanded for hearing.
] See §295.157 of this title
(relating to Notice of Hearing).
Public Hearing ].
public hearing
], provided:
(2)
within the 30-day period after the publication
of the notice, no request for a public hearing has been submitted by the executive
director, the applicant, or an affected person who objects to the application;
and
]
(3)
] no commissioner has submitted
a request for
a contested case hearing
[
public hearing
]
within the 30-day period after publication of the notice or requests a
contested case hearing
[
public hearing
] at the regular meeting
of the commission at which action on the application could be taken according
to such notice
; or
[
.
]
public hearings
] and the requirements to hold
contested case hearings
[
public hearings
] in certain circumstances
do not apply to applications for temporary water use permits, emergency water
use permits, or authorization to divert water from unsponsored and storage-limited
projects for domestic and livestock purposes. In these specified instances,
the commission may conduct such hearings as it deems appropriate. However,
the commission shall conduct a hearing on a temporary permit if it has been
provisionally issued and if the permit has been cancelled upon request of
the executive director
under
[
pursuant to
] §295.181
of this title (relating to Provisional Disposition of Application for Temporary
Permit).
Chapter 297.
WATER RIGHTS, SUBSTANTIVE