Part 10. TEXAS WATER DEVELOPMENT BOARD
Chapter 363. FINANCIAL ASSISTANCE PROGRAMS
Subchapter A. GENERAL PROVISIONS
The Texas Water Development Board (Board) proposes this rulemaking to amend §363.15 regarding Required Water Conservation Plan and §363.71 regarding General Responsibilities.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES.
These rules concern water conservation plans, which are required for certain water rights permit applicants or holders of water rights permits under Texas Water Code (Water Code) §11.1271 regarding Additional Requirements: Water Conservation Plans; for certain retail public utilities under Water Code §13.146 regarding Water Conservation Plan; and for applicants for the Board's financial programs, under Water Code §15.103 regarding Application for Assistance, §15.106 regarding Approval of Application, §15.208 regarding Approval of Application, §15.607 regarding Approval of Application, §15.735 regarding Application Submission and Approval, §15.910 regarding Application for Assistance, §15.975 regarding Approval of Applications, §15.995 regarding Financial Assistance, §17.122 regarding Application for Assistance, §17.125 regarding Approval of Application, §17.274 regarding Application for Assistance, §17.277 regarding Approval of Application, and 17.857 regarding Approval of Application. The proposed amendments update the rules and make changes that are necessary because of the passage of Senate Bill 3 and House Bill 4 in 2007. In these bills, the 80th Legislature created new Water Code provisions related to water conservation plans, including Water Code §16.402. Water Code §16.402 requires that the Board and the Texas Commission on Environmental Quality (TCEQ) jointly adopt rules to identify the minimum requirements and submission deadlines for annual reports required by Water Code §16.402(b), and to provide for enforcement of §16.402 and rules adopted under §16.402. To comply with this requirement, the TCEQ adopted a rulemaking as published in the January 4, 2008, issue of the Texas Register (33 TexReg 193). The Board proposes these amendments to comply with the new legislation and for consistency with TCEQ rules.
SECTION BY SECTION DISCUSSION.
The proposed amendment of §363.15(b) inserts language that requires an applicant to submit a new or revised water conservation plan to include five-year and ten-year targets, unless the applicant has implemented an approved plan since May 1, 2005 that contains the minimum requirements, and that has been in effect for less than five years. This provision clarifies whether an applicant must create or revise its water conservation plan in order to comply with Water Code §§11.1271(c), 15.106(b-1), 17.125(b-1), 17.277(b-1), and 17.858(b-1). Similar language currently exists in §363.15(c)(3) as an exception, but this provision does not belong with the other exceptions in subsection (c) because it is not clearly identified as an exception in statute (Water Code §§15.106(c), 17.125(c), 17.277(c), and 17.857(c)). Instead, it fits the subject matter of subsection (b) better. Also, the proposed amendment of §363.15(b)(2) adds the word "any" to make the rule grammatically correct.
The proposed amendment of §363.15(c) adds statutory references to Water Code §§15.106(c), 17.125(c), 17.277(c), and 17.857(c) to clarify that the exceptions listed in this rule are statutory. Also, the proposed changes clarify that an applicant for a flood control project under Water Code, Chapter 17, Subchapter G is exempt from the water conservation plan requirement because it is not required under Water Code, Chapter 17, Subchapter G. Section 363.15(c)(2) is also reworded to clarify that an applicant who has received an exception because of an emergency must continue to justify the exception by reporting on the existence of the emergency every six months after the Board makes a commitment to provide financial assistance. Once the Board's Executive Administrator finds that the emergency is over, the applicant will have six months to submit a water conservation plan. Section 363.15(c)(3) is to be deleted because a similar provision is proposed to be included in subsection (b). This provision does not belong with the other exceptions in subsection (c) because it is not clearly identified as an exception in statute (Water Code §§15.106(c), 17.125(c), 17.277(c), and 17.857(c)). Instead, it fits the subject matter of subsection (b) better.
The proposed amendment of §363.15(d) clarifies that a political subdivision that will utilize a project to furnish water or services to another political subdivision that in turn will furnish the water or services to the ultimate consumer must both submit its own water conservation plan, the other entity's water conservation plan, if one exists, and provide, by contract with its customer, that its customer will also adopt a water conservation plan, which the applicant is responsible for submitting to the Board. This provision is consistent with Water Code §§15.106(d) and (e), 17.125(e), 17.277(e), and 17.857(e), which allow such political subdivisions to comply with the water conservation requirements through contractual arrangements providing for establishment of a water conservation plan. Currently, §363.15(d) is not clear exactly what type of contractual provision is necessary, and whether the political subdivision's customer must also adopt a water conservation plan. The proposed amendments will provide clarity on the type of contractual arrangement required and that the applicant is responsible for assuring that its customer's water conservation plan is submitted to the Board, consistent with the Board's rules requiring adoption of water conservation plans before closing on financial assistance, at 31 TAC §§363.42(a)(3), 371.71(a)(3), 375.71(a)(3), and 384.41(a)(3).
The proposed amendment of §363.15(e) clarifies that the Board will accept a water conservation plan that has been approved by the TCEQ for purposes of meeting the Board's minimum requirements for water conservation plans from applicants for financial assistance.
Proposed §363.15(f) provides that water conservation plans that are submitted to the TCEQ and copied to the Board under Water Code §16.402 must contain the minimum requirements for water conservation plans established by the TCEQ in its rules at 30 TAC Chapter 288. The purpose of this provision is to establish minimum requirements for water conservation plans for the Executive Administrator's review of the plans. Water Code §16.402(a) requires each entity that is required to submit a water conservation plan to the TCEQ to submit a copy of the plan to the Executive Administrator. Water Code §16.402(c) requires that the Executive Administrator must review each water conservation plan to determine compliance with the minimum requirements established by Water Code §11.1271. These water conservation plans are not required from applicants for financial assistance, but are instead required under Water Code §11.1271, which requires a water conservation plan for an applicant for a new or amended water right and the holder of an existing permit, certified filing, or certificate of adjudication for the appropriation of surface water in the amount of 1,000 acre-feet a year or more for municipal, industrial, and other uses, and 10,000 acre-feet a year or more for irrigation uses; and Water Code §13.146, which requires a water conservation plan for a retail public utility that provides potable water service to 3,300 or more connections.
Proposed §363.15(g) establishes the minimum requirements and submission deadlines for the annual reports required under Water Code §16.402(b). This subsection satisfies Water Code §16.402(e)(1), which requires the TCEQ and the Board to jointly adopt rules identifying the minimum requirements and submission deadlines for the annual reports required by §16.402(b). Annual reports must address each of the minimum requirements in the water conservation plan. The deadlines in paragraph (1) are identical to the TCEQ's deadlines established in 30 TAC §288.30(10)(C). Paragraph (2) requires a recipient of financial assistance from the Board to submit annual reports on its progress in implementing each of the minimum requirements in its water conservation plan and the status of any of its customers' water conservation plans required by contract, beginning within one year of closing on the financial assistance and continuing until all financial obligations to the state have been discharged. A similar provision currently exists in §363.71(a)(2), but will be moved to this paragraph so that the annual reporting requirements are all in one place. Paragraph (2) is consistent with the Board's rules requiring that the political subdivision implement its water conservation program until all financial obligations to the state are discharged, at 31 TAC §§363.42(a)(2)(F), 371.71(a)(2)(F), 375.71(a)(2)(F), and 384.41(a)(2)(F).
Proposed §363.15(h) defines a violation of Board rules for purposes of Water Code §16.402: (1) failure to timely submit a water conservation plan containing the minimum requirements established under this section; and (2) failure to timely submit a complete annual report on the entity's progress in implementing its plan, addressing each element in its water conservation plan, as required by Water Code §16.402 and 31 TAC §363.15(g) and §363.71(a)(2). This provision is proposed under Water Code §16.402(e)(2), which requires the Board to adopt rules regarding enforcement of that statute and rules adopted under that statute.
The proposed amendment of §363.71(a) deletes paragraph (2) because a similar provision is proposed for §363.15(g)(2), so that all the annual reporting requirements will be in one place. Paragraph (1) is combined with subsection (a) so that there will no longer be any paragraphs in this subsection.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENTS.
Bill Mullican, Deputy Executive Administrator, has determined that there will be no fiscal implications for state or local governments as a result of the proposed rulemaking.
PUBLIC BENEFITS AND COSTS.
Mr. Mullican also has determined that for each year of the first five years the proposed rulemaking is in effect, the public will benefit from the rulemaking because it will clarify and enhance the efficiency of the Board's operations and will impose no new requirements on the public or persons required to comply with the rules.
LOCAL EMPLOYMENT IMPACT STATEMENT.
The Board has 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 because it will impose no new requirements on local economies.
The Board has determined that there will be no adverse economic effect on small businesses or micro-businesses as a result of enforcing this rulemaking. The Board has also determined that there is no anticipated economic cost to persons who are required to comply with the rulemaking as proposed. Therefore, no regulatory flexibility analysis is necessary.
REGULATORY IMPACT ANALYSIS.
The Board has determined that the proposed rulemaking is not subject to Government Code §2001.0225 because it is not a major environmental rule under that section.
TAKINGS IMPACT ASSESSMENT.
The Board has determined that the promulgation and enforcement of these proposed rule amendments will constitute neither a statutory nor a constitutional taking of private real property. The proposed rule amendments do not adversely affect a landowner's rights in private real property, in whole or in part, temporarily or permanently, because this proposed rulemaking does not burden nor restrict or limit the owner's right to property. More specifically, this proposed rulemaking implements water conservation measures and reporting requirements which do not impose any burdens or restrictions on private real property. Therefore, the proposed amendments do not constitute a taking under Texas Government Code, Chapter 2007.
SUBMITTAL OF COMMENTS.
Comments on the proposed rulemaking will be accepted for 30 days following publication and may be submitted to Legal Services, Texas Water Development Board, P.O. Box 13231, Austin, Texas, 78711-3231, rulescomments@twdb.state.tx.us, or by fax at (512) 463-5580.
Division 2. GENERAL APPLICATION PROCEDURES
STATUTORY AUTHORITY.
This rulemaking is proposed under the authority of Water Code §6.101, which authorizes the Board to adopt rules necessary to carry out the powers and duties of the Board; §§15.103, 15.105, 15.204, 15.603, 15.604, 15.605, 15.737, 15.909, 15.977, 17.122, 17.125, 17.274, 17.277, and 17.857, which authorize the Board to prescribe in its rules water conservation plan requirements for applicants for financial assistance; §16.402(e), which requires that the Board and the TCEQ jointly adopt rules identifying the minimum requirement and submission deadlines for the annual reports required by that statute, and providing for enforcement of that statute and rules adopted under it.
Cross reference to statute: Texas Water Code §§11.1271, 13.146, 15.102, 15.103, 15.106, 15.208, 15.607, 15.735, 15.737, 15.910, 15.975, 15.995, 16.402, 17.122, 17.125, 17.274, 17.277, and 17.857.
§363.15.Required Water Conservation Plan.
(a) An applicant, if not eligible for an exemption under subsection (c) of this section, shall submit, with its application, two copies of its water conservation plan for approval. The executive administrator shall review all water conservation plans submitted as part of an application for financial assistance for a project and shall determine if the plans meet the requirements of this section.
(b) The water conservation plan required under subsection
(a) of this section must be new or revised to include five-year and
ten-year targets for water savings, unless the applicant has, since
May 1, 2005, implemented an approved water conservation plan that
meets the requirements of this section, and that has been in effect
for less than five years. The water conservation plan [
this section] shall include an evaluation of the applicant's water
and wastewater system and customer water use characteristics to identify
water conservation opportunities and shall set goals to be accomplished
by water conservation measures. The water conservation plan shall
provide information in response to the following minimum requirements.
If the plan does not provide information for each minimum requirement,
the applicant shall include in the plan an explanation of why the
requirement is not applicable.
(1) Minimum requirements. Water conservation plans shall include the following elements:
(A) a utility profile including, but not limited to, information regarding population and customer data, water use data, water supply system data, and wastewater system data;
(B) specific, quantified five-year and ten-year targets for water savings to include goals for water loss programs in gallons per capita per day, and goals for municipal use, in gallons per capita per day;
(C) a schedule for implementing the plan to achieve the applicant's targets and goals;
(D) a method for tracking the implementation and effectiveness of the plan;
(E) a master meter to measure and account for the amount of water diverted from the source of supply;
(F) a program for universal metering of both customer and public uses of water, for meter testing and repair, and for periodic meter replacement;
(G) measures to determine and control water loss (for example, periodic visual inspections along distribution lines; annual or monthly audit of the water system to determine illegal connections, abandoned services, etc.);
(H) a program of leak detection, repair, and water loss accounting for the water transmission, delivery, and distribution system;
(I) a program of continuing public education and information regarding water conservation;
(J) a water rate structure which is not "promotional," i.e., a rate structure which is cost-based and which does not encourage the excessive use of water;
(K) a means of implementation and enforcement which shall be evidenced by:
(i) a copy of the ordinance, resolution, or tariff indicating official adoption of the water conservation plan by the applicant; and
(ii) a description of the authority by which the applicant will implement and enforce the conservation plan;
(L) documentation that the regional water planning groups for the service area of the applicant have been notified of the applicant's water conservation plan; and
(M) a current drought contingency plan which includes specific water supply or water demand management measures and, at a minimum, includes, trigger conditions, demand management measures, initiation and termination procedures, a means of implementation, and measures to educate and inform the public regarding the drought contingency plan.
(2) Additional conservation strategies. The water conservation plan may also include any other water conservation practice, method, or technique that the applicant deems appropriate.
(c) Pursuant to Water Code §§15.106(c)
17.125(c), 17.277(c), and 17.857(c), an [The board may
not require an] applicant is not required to provide
a water conservation plan if the board determines an emergency exists;
the amount of financial assistance to be provided is $500,000 or less;
or the board finds that implementation of a water conservation
program is not reasonably necessary to facilitate water conservation;
or the application is for flood control purposes
under Water Code, Chapter 17, Subchapter G.
(1) An emergency exists when:
(A) a public water system or wastewater system has already failed, or is in a condition which poses an imminent threat of failure, causing the health and safety of the citizens served to be endangered;
(B) sudden, unforeseen demands are placed on a water system or wastewater system (i.e., because of military operations or emergency population relocation);
(C) a disaster has been declared by the governor or president; or
(D) the governor's Division of Emergency Management of the Texas Department of Public Safety has determined that an emergency exists.
(2) If the board determines that an emergency
exists and commits to financial assistance without requiring a water
conservation plan, the applicant must report whether the emergency
continues to exist every [The board shall review an application
for which an emergency is determined to exist] six months after
the board commits to financial assistance [, and also at the
time of any extensions of the loan commitment]. If the
Executive Administrator [board
] finds that the emergency no longer exists,
the applicant must submit a water conservation
plan within six months of the finding [it may then require
submission, within six months, of a water conservation plan satisfactory
to the board before making any further disbursements on the commitments].
[(3) Submission of a new
plan is not necessary to facilitate water conservation if the applicant
has implemented a water conservation plan that meets the requirements
of this section after May 1, 2005 and that plan has been in effect
for less than five years.]
(d) Pursuant to Water Code §§15.106(d)(e),
17.125(e), 17.277(e), and 17.857(e), if [If] the
applicant will utilize the project financed by the board to furnish
water or wastewater services to another entity that in turn will furnish
the water or wastewater services to the ultimate consumer,
the applicant shall:
(1) submit its own water conservation plan before closing on the financial assistance; and
(2) submit the other entity's water conservation plan, if one exists, before closing on the financial assistance; and
(3) require, by contract, that the
other entity adopt a water conservation plan that conforms to the
board's requirements and submit it to the board. If the requirement
is to be included in an existing water or wastewater service contract,
it may be included, [
the requirements for the water conservation
plan may be met either through contractual agreements between the
applicant and that entity providing for establishment of a water conservation
plan, which shall be included in the contract] at the earliest
of the [original execution,
] renewal or substantial amendment
of that contract, or by other appropriate measures.
(e) The board will accept a water conservation plan determined by the commission to satisfy the requirements of 30 TAC Chapter 288 for purposes of meeting the minimum requirements of subsection (b) of this section.
(f) Water conservation plans that are submitted to the TCEQ and copied to the board under Water Code §16.402 must contain the applicable minimum requirements for water conservation plans established by the Commission in its rules at 30 TAC Chapter 288.
(g) Annual reports.
(1) Each entity that is required to submit a water conservation plan to the board or the commission, other than a recipient of financial assistance from the board, shall file a report not later than May 1, 2010, and annually thereafter to the executive administrator on the entity's progress in implementing each of the minimum requirements in the water conservation plan.
(2) Recipients of financial assistance from the board shall maintain an approved water conservation plan in effect until all financial obligations to the state have been discharged and shall file a report with the executive administrator on the applicant's progress in implementing each of the minimum requirements in its water conservation plan and the status of any of its customers' water conservation plans required by contract, within one year after closing on the financial assistance and annually thereafter until all financial obligations to the state have been discharged.
(3) Annual reports prepared for the Commission providing the information required by this subsection may be provided to the board to fulfill the board's reporting requirements.
(h) The following are violations of board rules for purposes of Water Code §16.402:
(1) failure to submit a water conservation plan containing the minimum requirements in subsections (b) and (f) of this section; and
(2) failure to timely submit a complete annual report on the entity's progress in implementing its plan that addresses each element in its water conservation plan, as required by Water Code §16.402 and subsection (g) of 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 March 28, 2008.
TRD-200801627
Ingrid K. Hansen
Acting General Counsel
Texas Water Development Board
Earliest possible date of adoption: May 11, 2008
For further information, please call: (512) 463-8061
STATUTORY AUTHORITY
This rulemaking is proposed under the authority of Water Code §6.101, which authorizes the board to adopt rules necessary to carry out the powers and duties of the board; §§15.103, 15.105, 15.204, 15.603, 15.604, 15.605, 15.737, 15.909, 15.977, 17.122, 17.125, 17.274, 17.277, and 17.857, which authorize the Board to prescribe in its rules water conservation plan requirements for applicants for financial assistance; §16.402(e), which requires that the Board and the TCEQ jointly adopt rules identifying the minimum requirement and submission deadlines for the annual reports required by that statute, and providing for enforcement of that statute and rules adopted under it.
Cross reference to statute: Texas Water Code §§11.1271, 13.146, 15.102, 15.103, 15.106, 15.208, 15.607, 15.735, 15.737, 15.910, 15.975, 15.995, 16.402, 17.122, 17.125, 17.274, 17.277, and 17.857.
§363.71.General Requirements.
(a) After the satisfactory completion of the project,
the political subdivision shall be held responsible by the board for
the continued compliance with all representations and assurances made
to the board. To protect the state's monetary investment and the public
interest, the [following provisions shall be observed.]
[(1) The] executive administrator
is authorized to inspect the project and review operational and financial
records. Certified copies of all documents relating to the operation
of the project and compliance with agreements relating to board financial
assistance shall be provided as requested.
[(2) Political subdivisions
shall maintain an approved water conservation program in effect until
all financial obligations to the state have been discharged and shall
report annually to the executive administrator on the implementation
and status of required water conservation programs for three years
after the date of loan closing. If the executive administrator determines
that the water conservation program is not in compliance with the
approved water conservation plan, the political subdivisions shall
continue to supply annual reports beyond the three years until the
executive administrator determines that deficiencies in the plan have
been resolved. Annual reports prepared for the commission providing
the information required by this subparagraph may be provided to the
board to fulfill the board's reporting requirements.]
(b) Should any information obtained by the executive administrator indicate noncompliance with any agreements, the executive administrator shall require the political subdivision to take timely corrective action. Failure to correct problems may be cause for referral to the attorney general.
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 March 28, 2008.
TRD-200801630
Ingrid K. Hansen
Acting General Counsel
Texas Water Development Board
Earliest possible date of adoption: May 11, 2008
For further information, please call: (512) 463-8061
(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Water Development Board or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Water Development Board (Board) proposes the repeal of §§379.1 - 379.3, relating to Advisory Committees. Chapter 379 contains §§379.1 - 379.3, relating to advisory committees, and lists the Groundwater Availability Modeling (GAM) Technical Advisory Group as an advisory committee. The purpose of the GAM Technical Advisory Group is to provide guidance to the board regarding the development and evaluation of groundwater availability models used in the regional and state water planning process. The GAM Technical Advisory Group advises and assists on developing guidelines on the development and documentation of groundwater flow models and on the evaluation of groundwater availability. Chapter 379 is no longer necessary because the GAM Technical Advisory Group is not an advisory committee under Texas Government Code §2110.0012. The Board currently has no advisory committees, and there is no state or federal law specifically creating or authorizing the creation of an advisory committee for the board.
Section 379.1 contains Definitions which should be repealed with the other sections in Chapter 379 because they will no longer be necessary.
Section 379.2 contains General Provisions which duplicate provisions of Government Code §2110.002(a) and §2110.003(a) and is, therefore, unnecessary.
Section 379.3 contains provisions relating to the GAM Technical Advisory Group, which was previously considered to be an advisory committee. Section 379.3 is no longer necessary because the GAM Technical Advisory Group is not an advisory committee under Texas Government Code Chapter 2110. Texas Government Code §2110.0012 was adopted by the Texas Legislature in 2001, providing that a state agency has established an advisory committee if state or federal law has specifically created the committee to advise the agency, or the agency has, under state or federal law, created the committee to advise the agency. There is no state or federal law specifically requiring or authorizing the creation of the GAM Technical Advisory Group. Therefore, §379.3 is no longer necessary.
Bill Mullican, Deputy Executive Administrator, has determined that for the first five-year period the repeals are in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the repeals as proposed.
Mr. Mullican has also determined that for each year of the first five years the proposed repeals are in effect the public will benefit from the repeals because the deletion of unnecessary rules will enhance the efficiency of the board's operations. There will be no impact on local economies. There are no anticipated economic costs to persons who are required to comply with the repeals as proposed. There is no effect on small or micro businesses.
Comments on the proposed repeals will be accepted for 30 days following publication and may be submitted to Legal Services, Texas Water Development Board, P.O. Box 13231, Austin, Texas 78711-3231, rulescomments@twdb.state.tx.us, or by fax at (512) 463-5580.
The repeals are proposed under the authority of the Texas Water Code §6.101, which provides the board with the authority to adopt rules necessary to carry out the powers and duties of the board.
Cross reference to statute: Texas Government Code Chapter 2110.
§379.1.Definitions.
§379.2.General Provisions.
§379.3.Groundwater Availability Modeling (GAM) Technical Advisory Group.
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 March 28, 2008.
TRD-200801636
Ingrid K. Hansen
Acting General Counsel
Texas Water Development Board
Earliest possible date of adoption: May 11, 2008
For further information, please call: (512) 463-8061