25 TAC §§265.301 - 265.308
The Executive Commissioner of the Health and Human
Services Commission, on behalf of the Department of State Health Services
(department) adopts, on an emergency basis, new §§265.301
- 265.308, relating to interactive water features and fountains. As
authorized by Government Code, §2001.034, the Executive Commissioner
may adopt an emergency rule without prior notice or hearing, or with
an abbreviated notice and hearing, if a state or federal law requires
adoption on fewer than 30 days' notice. Emergency rules adopted under
Government Code, §2001.034, may be effective for not longer than
120 days and may be renewed for not longer than 60 days.
BACKGROUND AND PURPOSE
The 81st Texas Legislature, Regular Session, 2009, passed Senate
Bill 968, which amends the Health and Safety Code by adding new §341.0695.
Section 341.0695 imposes sanitary requirements for interactive water
features and fountains and requires adoption of emergency rules to
implement those requirements within 30 days of the effective date
of the Act, June 19, 2009, the date that Senate Bill 968 was signed
by the governor. Emergency rules, therefore, must be adopted by July
20, 2009. The Executive Commissioner of the Health and Human Services
Commission finds that this requirement of state law imposed by new §341.0695
requires adoption of these emergency rules on fewer than 30 days' notice.
Interactive water features and fountains, a relatively new category
of recreational aquatic features, have not been regulated under previous
statute or rule. In the summer of 2008, an outbreak of a highly contagious
waterborne illness, Cryptosporidiosis, was linked to these types of
water features. Health and Safety Code, §341.0695, was added
in recognition of the imminent peril to public health, safety, and
welfare posed by these unregulated aquatic recreational facilities.
Under these emergency rules, interactive water features and fountains
are required to meet sanitation and safety standards designed to prevent
outbreaks of waterborne illness. A county, municipality, or the department
may inspect and require a permit, and may impose a reasonable fee
for the permit or inspection. The emergency rules allow a county,
municipality, or the department to close an interactive water feature
or fountain if in violation of the rules, or if in violation of permitting
or inspection requirements. Interactive water features or fountains
supplied by drinking water that is not recirculated are not subject
to chlorination or pH standards. Interactive water features or fountains
in water parks that use freshwater from a natural watercourse and
release the water back into the same watercourse are exempt from the
emergency rules.
LEGAL CERTIFICATION
The Department of State Health Services General Counsel, Lisa Hernandez,
certifies that the rules, as adopted, have been reviewed by legal
counsel and found to be a valid exercise of the agencies' legal authority.
STATUTORY AUTHORITY
The emergency rules are adopted under Government Code, §2001.034,
and Health and Safety Code, §341.002 and §1001.075. Government
Code, §2001.034, authorizes the adoption of emergency rules without
prior notice or hearing, or with an abbreviated notice and hearing,
if an agency finds that an imminent peril to the public health, safety,
or welfare or a requirement of state or federal law requires adoption
of a rule on fewer than 30 days' notice. Health and Safety Code, §341.002,
authorizes the adoption of rules and standards for sanitation and
health protection. Government Code, §531.0055, and Health and
Safety Code, §1001.075, authorize the Executive Commissioner
of the Health and Human Services Commission to adopt rules and policies
necessary for the operation and provision of health and human services
by the department and for the administration of Health and Safety
Code, Chapter 1001.
§265.301.General Provisions.
(a) Purpose of the rules. These rules implement Health
and Safety Code, §341.0695.
(b) Scope of rules. These rules address minimum sanitation
requirements for interactive water features and fountains.
§265.302.Definitions.
The following words and terms when used in this subchapter
shall have the following meanings unless the context clearly indicates
otherwise.
(1) Department--Texas Department of State Health Services,
MC 1987, P.O. Box 149347, Austin, Texas 78714-9347, telephone (512) 834-6788.
(2) Interactive water feature or fountain--An installation
that includes water sprays, dancing water jets, waterfalls, dumping
buckets, or shooting water cannons and that is maintained for public
recreation.
(3) Recreational water park--A property or any portion
thereof upon which one or more interactive water features or fountains
are located.
§265.303.Operation and Maintenance of Interactive Water Features and Fountains.
(a) The owner, manager, operator, or other attendant
in charge of an interactive water feature or fountain shall maintain
the water feature or fountain in a sanitary condition.
(b) A person known to be or suspected of being infected
with a transmissible condition of a communicable disease shall be
excluded from an interactive water feature or fountain.
§265.304.Water Quality at Interactive Water Features and Fountains.
(a) Chlorine or bromine levels shall meet the following
criteria at any time an interactive water feature or fountain is open
or in use.
Figure: 25 TAC §265.304(a)
(b) The pH shall meet the following criteria at any
time an interactive water feature or fountain is open or in use.
Figure: 25 TAC §265.304(b)
(c) The department may approve methods other than chlorination
for the purpose of disinfecting interactive water features and fountains.
(d) Water of an interactive water feature or fountain
when sampled and tested for bacterial content may not:
(1) exceed 200 bacteria per milliliter as determined
by heterotrophic plate count; or
(2) indicate the presence of total coliform organisms
in a 100 milliliter sample by any one of the following methods:
(A) multiple tube;
(B) membrane filter; or
(C) the Minimal Medium ONPG-MUG test described in the
Code of Federal Regulations, Title 40, Part 141.
(e) Records and data of any water sampling and testing
performed under this section shall be retained and provided to the
municipality, county, or the department upon request.
§265.305.Exemptions.
(a) An interactive water feature or fountain that is
supplied entirely by drinking water that is not re-circulated is not
subject to §265.304(a) of this title (relating to Water Quality
at Interactive Water Features and Fountains), referring to disinfectant
levels, or §265.304(b) of this title, referring to pH levels,
in interactive water features and fountains.
(b) This subchapter does not apply to an interactive
water feature or fountain that uses freshwater originating from a
natural watercourse for recreational purposes and that releases the
freshwater back into the same natural water course.
§265.306.Inspections and Permitting of Interactive Water Features and Fountains.
(a) A county, municipality, or the department may:
(1) require that the owner or operator of an interactive
water feature or fountain obtain a permit for operation of the water
feature or fountain; and
(2) inspect an interactive water feature or fountain
for compliance with this subchapter.
(b) A county, municipality or the department may impose
and collect a reasonable fee in connection with a permit or inspection.
(c) If a county or municipality imposes and collects
a reasonable fee for a permit or inspection of an interactive water
feature or fountain the following requirements shall be met:
(1) the auditor for the county or municipality shall
review the program every two years to ensure that the fees imposed
do not exceed the cost of the program; and
(2) the county or municipality shall refund to the
permit holders any revenue determined by the auditor to exceed the
cost of the program.
§265.307.Closure of an Interactive Water Feature or Fountain.
A county or a municipality may by order close, for the period
specified in the order, an interactive water feature or fountain if
the operation of the interactive water feature or fountain:
(1) violates this subchapter; or
(2) violates a permitting or inspection requirement
imposed under §265.306 of this title (relating to Inspections
and Permitting of Interactive Water Features and Fountains).
§265.308.Closure of an Interactive Water Feature or Fountain by the Department.
(a) The department may by order close an interactive
water feature or fountain if the operation of the water feature or
fountain:
(1) violates this subchapter; or
(2) violates a permitting or inspection requirement
imposed under §265.306 of this title (relating to Inspections
and Permitting of Interactive Water Features and Fountains).
(b) The closure order is effective immediately with
or without notice and without hearing to the interactive water feature
or fountain owner/operator.
(c) If the order is issued under this section without
a hearing, the department shall conduct a hearing no later than the
10th calendar day after the closure order to affirm, modify, or set
aside the order.
(d) The hearing and appeal are governed by the department's
rules in 25 TAC Chapter 1, Subchapter B, regarding Formal Hearing
Procedures, and Government Code, Chapter 2001.
This agency hereby certifies that the emergency adoption
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 July 3, 2009.
TRD-200902765
Lisa Hernandez
General Counsel
Department of State Health Services
Effective Date: July 3, 2009
Expiration Date: October 30, 2009
For further information, please call: (512) 458-7111 x6972