Adopted Sections 
 An agency may take final action on a section 30 days after a proposal has been 
published in the Texas Register. The section becomes effective 20 days after the 
agency files the correct document with the Texas Register, unless a later date 
is specified or unless a federal statute or regulation requires implementation 
of the action on shorter notice. 
 If an agency adopts the section without any changes to the proposed text, only 
the preamble of the notice and statement of legal authority will be published. 
If an agency adopts the section with changes to the proposed text, the proposal 
will be republished with the changes. 
 
   
  TITLE 1. ADMINISTRATION 
 Part II. Texas Ethics Commission 
  Chapter 11. Speaker of the House of Representatives 
  
  Subchapter A. Campaign Reporting 
 
  1 TAC sec.sec.11.1, 11.3, 11.5, 11.7, 11.9 
 
  The Texas Ethics Commission adopts new sec.sec.11.1, 11.3, 11.5, 11.7, and 11. 
9, concerning campaign reporting. Section 11.7 is adopted with changes to the 
proposed text as published in the May 5, 1992, issue of the Texas Register  (17 
TexReg 3209). Sections 11.1, 11.3, 11.5, and 11.9, are adopted without changes 
and will not be republished. The change adopted added the following phrase to 
sec.11.7: "...provided, that this section is not intended to prohibit the 
payment from campaign funds of federal income taxes due on campaign funds." 
 These sections set forth the definitions, guidelines, requirements, and 
permitted exceptions concerning candidates for the Office of Speaker of the 
House who are required to file disclosure reports as mandated by the Texas 
Government Code, Chapter 302. 
 These sections will provide any speaker candidate, the public, and the 
commission with reporting guidelines and a framework within which the speaker 
candidate will operate. 
 No comments were received regarding adoption of the new sections. 
 The new sections are adopted under Texas Civil Statutes, Article 6252-9d.1, 
which provide the Texas Ethics Commission with the authority to promulgate and 
adopt rules concerning the administration of Chapter 302 of the Texas Government 
Code. 
 
 
  sec.11.7. Permitted Expenditures.  As required by the Government Code, 
sec.302.020, a speaker candidate shall not expend campaign funds for any purpose 
other than those permitted by sec.302.020, and then only if those expenditures 
are directly related to the speaker candidacy; provided, that this section is 
not intended to prohibit the payment from campaign funds of federal income taxes 
due on campaign funds. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on September 16, 1992. 
 TRD-9212715 
  Jim Mathieson 
 Assistant General Counsel 
 Texas Ethics Commission 
    Effective date: October 9, 1992 
 Proposal publication date: May 5, 1992 
 For further information, please call: (512) 463-5800 
         
               Part III. Office of the Attorney General 
  Chapter 61. Crime Victims Compensation 
  
  1 TAC sec.sec.61.1-61.34 
 
  The Office of the Attorney General adopts new sec.sec.61.1-61.34, concerning 
crime victims compensation. Sections 61.1, 61.2, 61.6, 61.19, 61.23, 61.26, and 
61.30-61.34 are adopted with changes to the proposed text as published in the 
July 24, 1992, issue of the Texas Register (17 TexReg 5175). Sections 61.3-61.5, 
61.7-61.18, 61.20-61.22, 61.24-61.25, and 61.27-61. 29 are adopted without 
changes and will not be republished. 
 The sections are necessary to ensure orderly, fair, and timely administration 
of the compensation to victims of crime fund. The public will benefit by having 
information to assist in making application for benefits and knowing the 
procedures used by the Crime Victims Fund Division in dispersing funds. 
Maintaining the integrity of the crime victims compensation fund is balanced 
with the desire to distribute a fair and reasonable amount of funds to the most 
number of eligible claimants. The rules are necessary as a cost-containment 
measure because the fund has a limited amount of money and is limited in its 
sources of revenue. Regarding sources of revenue, the rules permit the crime 
victims compensation fund to accept contributions from all lawful sources. 
Therefore, limits are set regarding the types of compensable psychiatric care 
and other providers of counseling care and eligible claimants. Likewise, limits 
are set regarding the compensable number of sessions, dollar amounts, days of 
inpatient care; with provisions permitting additional benefits in accordance 
with general standards of utilization review. 
 Section 61.1 limits the application of the rules to the administration of the 
Crime Victims Compensation Act (hereinafter the Act) and instructs the parties 
to comply with the rules. Section 61.2 defines certain words and phrases 
appearing in the Act. Section 61.3 requires that all papers filed in a claim 
contain the claimant's Social Security number. Section 61.4 instructs all 
parties to file documents in Austin. Section 61.5 states when the time begins 
for reporting a crime. Section 61.6 states when the time for filing an 
application begins and provides for an extension of the filing time. Section 
61.7 explains the method of determining loss of earnings. Section 61.8 
identifies the information required in a medical report. Section 61.9 explains 
what information is required when submitting medical bills. Section 61.10 limits 
the items to be considered in funeral bills. Section 61.11 requires the filing 
of autopsy reports in death claims. Section 61.12 states who is responsible for 
filing certificates of death. Section 61.13 advises claimants what information 
is required when requesting lump sum payments. Section 61.14 sets priorities for 
payment of benefits. Section 61.15 informs the parties of information needed 
when applying for an emergency grant of benefits. Section 61.16 provides for 
notice of suspension of proceedings. Section 61.17 directs the claimant to 
notify the agency of receipt of additional benefits and the procedures to be 
taken by the agency for failure to comply. Section 61.18 provides for the 
suspension of, and credit for, payments if a suit is filed. Section 61.19 
directs the claimant to notify the agency if a suit to recover damages is filed. 
Section 61.20 provides for payment of attorney fees if an attorney acts as an 
authorized trustee in a civil suit. Section 61.21 states what information is 
needed from an attorney for consideration of attorney fees. Section 61.22 
describes the process of investigating allegations of misconduct. Section 61.23 
identifies persons who are not presumed to be residents of Texas. Section 61.24 
requires the claimant or agent to provide information requested by the agency. 
Section 61.25 instructs providers of services to determine Medicaid eligibility 
and file bills accordingly. Section 61.26 defines compensable psychiatric care 
or counseling and the requirements for hospitals and treatment centers. Section 
61.27 stipulates that victims under 14 years of age may not be disqualified 
because of consent of the child in certain crimes and situations. Section 61.28 
declares the application to be confidential. Section 61.29 states the time that 
medical records be retained and requires the providers of services to furnish 
them upon request. Section 61.30 identifies certain acts committed by providers 
of services which constitute unethical or fraudulent practices. Section 61.31 
provides for limits of counseling sessions and maximum fees for certain care but 
does provide for additional benefits in certain situations. Section 61.32 
provides for limited time and benefits for inpatient psychiatric care and 
requirements for admissions. Section 61.33 limits the benefits available for 
counseling of eligible family members but does provide for additional benefits 
in certain situations. Section 61.34 provides for financial contributions from 
certain programs and designates the Office of the Attorney General as the duly 
authorized recipient of the contributions. 
 No comments were received regarding sec.sec.61.1-61.5, 61.7-61.23, 61.27, 61. 
29; comments were received regarding  sec.sec.61.6, 61.24-61.26, 61.28, and 61. 
30-61.34. Commenters to sec.61.6 were for and against adding the terms "mental 
or emotional" between the terms "physical incapacity." A commenter to sec.61.24 
requested a lenient interpretation of any time limit applied by the 
administrators of the crime victims compensation fund regarding submission of 
information relating to the processing of a claim. Commenters to sec.61.25 
requested a lenient interpretation by the administrators of the crime victims 
compensation fund of any denial of claims that otherwise would be available 
under Medicaid; other commenters requested the administrators of the crime 
victims compensation fund to follow the proposed procedure of the rule regarding 
Medicaid eligibility. Commenters to  sec.61.26 requested that licensed social 
workers-advanced clinical practitioners, social workers, licensed professional 
counselors, and licensed marriage and family therapists be added to the list to 
providers of services eligible to render compensable psychiatric care or 
counseling; other commenters agreed with only some of the requested additional 
providers of services. Commenters to sec.61.26 also requested the deletion of 
the requirement that some providers of services work under the supervision of a 
licensed medical doctor. Commenters to sec.61.28 supported the proposed rules 
statement the application for benefits be deemed confidential. Commenters to 
sec.61.30 questioned whether the guidelines as established by the Texas Workers' 
Compensation Commission should control and other comments supported those 
guidelines. Commenters to sec.61.31 requested that licensed social workers-
advanced clinical practitioners, social workers, licensed professional 
counselors, and licensed marriage and family therapists be added to the list of 
providers of services eligible to render compensable psychiatric care or 
counseling; other commenters agreed with adding only some of the requested 
additional providers of services; other commenters requested that the rule 
include language regarding general standards of utilization review. Commenters 
to sec.61.32 requested a change to permit the length of compensable in-patient 
care to be determined by the providers of services. Other commenters opposed the 
change. Commenters to sec.61.33 requested a change to permit the length of 
compensable out-patient care to be determined by the providers of services. 
Other commenters opposed the change. Other commenters requested a change of the 
title of that section to include the terms "of Crime Victims." Commenters to 
sec.61.34 were for and against adding the "Texas Department of Criminal Justice" 
to the list of entities authorized to deposit funds in the crime victims 
compensation fund. 
 The names of groups and associations making comments for the sections are as 
follows: National Association of Social Workers (with request for changes to 
sec.61.26 to include certified social workers, for sec.sec.61.31, 61.32, 61.33 
to permit the length of out-patient and in-patient therapy to be determined by 
the persons involved in the treatment of the crime victim, for sec.61.33 to add 
the terms "of Crime Victims" to the caption title of the section); Victims 
Outreach (with request for changes to sec.61.6 to insert the terms "mental or 
emotional, " for sec.61.24 regarding timely submissions of information, for 
sec.61.25 regarding payment of Medicaid eligibility bills, for sec.61.26 to 
include licensed social workers-advanced clinical practitioner, for sec.61.33 
limiting eligibility to residing family members, for sec.61.30 regarding method 
of payment); Texas Association for Counseling and Development (with request for 
changes to sec.61.26 to include the term "licensed professional counselors" and 
to permit their practice without the supervision of a medical doctor); City of 
Austin, Victim Services Division (with request for changes to unspecified 
sections); Texas Council on Family Violence (with request for changes to 
sec.61.26 and 61.31); Rio Grande Counseling Center (with request for changes to 
sec.61.26 to permit licensed professional counselors to practice with the 
supervision of a medical doctor); Texas Association for Marriage and Family 
Therapy, Inc. (with request for change to sec.61.26 to include licensed marriage 
and family therapists); Texas Department of Criminal Justice (with request for 
change to sec.61.34 to include the terms "the Institutional Division of the 
Texas Department of Criminal Justice or the Pardons and Paroles Division of the 
Texas Department of Criminal Justice" or "Texas Department of Criminal 
Justice"); Wackenhut Correction Corporation (with request for change to 
sec.61.34 to include the term "Texas Department of Criminal Justice"); an 
individual (with request for change to sec.61.34 to include the term "Texas 
Department of Criminal Justice"); Red River County (against any changes to the 
proposed rule, and specifically no changes to sec.61.34); staff comments of the 
Crime Victims Compensation Fund Division of the Office of the Attorney General 
(against changes to sec.61.6; against changes to sec.61.25; with request for 
changes to sec.61.26 to include licensed professional counselors and certified 
social workers-advanced clinical practitioners and to delete the requirement of 
practicing under the supervision of a medical doctor; against changes to 
sec.61.28; against changes to sec.61.30, to include licensed professional 
counselors and certified social workers-advanced clinical practitioners and to 
add the terms "in accordance with general standards of utilization review;" 
against changes to sec.61.32 requiring admission made at the direction of a 
licensed medical doctor and to add the terms "in accordance with general 
standards of utilization review;" to change sec.61.33 to clarify eligible 
residing family members and to add the terms "in accordance with general 
standards of utilization review." 
 The names of groups and associations making comments against the sections are 
as follows: other than the commenters requesting the amendments to the proposed 
rule, no comments were received against the section. 
 Section 61.6 should not be changed to include the terms "mental or emotional" 
between the existing terms "physical" and "incapacity." The Act specifically 
states "physical incapacity" and such an insertion would not be appropriate 
since legislative changes would be required to do that insertion. Section 61.25 
is regarding Medicaid, which is a collateral source. The rule requires the 
providers of services to file all bills first with Medicaid if the patient is 
"Medicaid-eligible." Bills may be denied or reduced if the providers of services 
fails to identify or file bills with Medicaid. The rule does not pertain to 
services not covered by Medicaid. The rule is a proper "cost-containment" 
feature for the crime victims compensation fund, which is a fund with only a 
limited amount of money. Section 61.26 should be changed to provide that 
compensable psychiatric care or counseling is that lawfully performed by 
psychiatrists, psychologists, licensed professional counselors, and certified 
social workers-advanced clinical practitioners. The four identified licensed 
practitioners are grouped together in recognition of their similar educational 
levels and training regarding trauma intervention. In addition, as stated in the 
comments submitted by the staff of the Crime Victims Compensation Fund Division 
of the Office of the Attorney General, other states have limited the groups of 
licensed health care professionals to the same approximate four groups of 
professionals. The four groups of licensed practitioners as identified in these 
rules, is consistent within the range of reasonable choices made by other states 
and the classes of health care providers of services established in Texas 
statutory law. Section 61.30 identifies certain acts done by a medical provider 
of services, that constitute violations of the rule. The rule does not establish 
fee guidelines, but states that fees are subject to the guideline established by 
the Texas Workers' Compensation Commission. This is an appropriate arrangement 
to ensure consistency between state agencies and state law. In addition, a rider 
to the Appropriations Act requires that "All funds used to reimburse health care 
providers for the cost of health care services provided to victims of crime 
shall be reimbursed at rates not to exceed the fee guidelines established in 
Article 8.21 through 8.25, Texas Workers' Compensation Act." The limits set in 
sec.61.31 on the number of sessions or a dollar amount of the professional 
services rendered eligible claimants should not be changed. As stated in the 
comments submitted by the staff of the Crime Victims Compensation Fund Division 
of the Office of the Attorney General, some states have (or are proposing 
changes) to limit the number of sessions and/or the dollar amount; with some 
states in the survey permitting more payments after a review process. In 
addition, the staff comment also stated that crime victims compensation programs 
had caps ranging from 16 weeks to 52 weeks, with the average monetary limit 
being $2,000 to $2,500; while private insurance normally provided counseling for 
up to six months or a maximum payment of $2,500. The staff comments reported 
that less than 10% of claims submitted since the summer of 1990, requested 
additional time and benefits. Finally, it should be remembered that the crime 
victims compensation fund is a limited resource. The limitations in sec.61.31 
are fair and reasonable to ensure the most number of eligible claimants can 
benefit from the fund. The last sentence of sec.61.31, as well as the last 
sentences of sec.61.32 and sec.61.33 be changed to include the language "in 
accordance with general standards of utilization review." This additional 
language is necessary to provide guidelines to the public and the administrators 
of the fund regarding the allowance of additional sessions, days of 
hospitalization, or counseling. The limits set in sec.61.32 on the dollar amount 
and length of stay for inpatient psychiatric care should not be changed. As 
stated in the comments submitted by the staff of the Crime Victims Compensation 
Fund Division of the Office of the Attorney General, some states have 
established limits that are similar to the limits in this rule as well as the 
requirement that only medical doctors may admit inpatients. In addition, the 
average insurance coverage was $400 per day. The staff comments reported that 
the majority of claims submitted to them reflected a in-patient stay of 25-30 
days. The limits set in sec.61.32 are appropriate in trying to balance the needs 
of victims of crime and the protection of the limited resources of the crime 
victims compensation fund. The limits set in sec.61.33 for outpatient counseling 
for residing family members should not be changed. As stated in the comments 
submitted by the staff of the Crime Victims Compensation Fund Division of the 
Office of the Attorney General, other states set limits on eligible family 
members. The staff comments reported that a review of the claims submitted to 
them reflected that grief counseling was generally concluded after three months 
of therapy with generally less than 10 sessions; claims regarding counseling of 
family members in child abuse cases was generally less than 10 sessions. Section 
61.33 sets an appropriate limit to preserve the integrity of the crime victims 
compensation fund. Section 61.34 should be changed to permit contributions to 
the crime victims compensation fund from all available sources. This is 
especially important since the funds are limited and the need for those funds is 
greater than the existing funds. 
 The new sections are adopted under Texas Civil Statutes, Article 8309-1, 
sec.10(a), which provide the Office of the Attorney General with the authority 
to promulgate and adopt rules consistent with the Crime Victims Compensation Act 
governing the administration of the compensation to victims of crime fund, 
including rules relating to the method of filing claims and the proof of 
entitlement to compensation. 
 
 
  sec.61.1. Compliance and Suspension of Rules.  These rules apply solely to the 
administration of the Crime Victims Compensation Act (Chapter 189, 66th 
Legislature)(the Act). All parties seeking any action shall comply with these 
rules, unless the chief determines that compliance with any of the rules under 
particular circumstances will result in injustice to any party. Accordingly, 
rules may be suspended at the discretion of the chief. 
 
   
  sec.61.2. Definitions.  The following words and terms, when used in this 
chapter, shall have the following meanings, unless the context clearly indicates 
otherwise. 
   
     Accomplice-A person who is criminally responsible as a party to an offense 
under the Texas Penal Code, Chapter 7, as amended or as may hereafter be 
amended. 
   
     Chief-The administrative head of the Crime Victims Crime Victims 
Compensation Division. 
   
     Interested person -The term as used in the Act, sec.5(c) does not include 
the accused criminal offender or non-claimant creditors. 
   
     Lacked capacity to commit the crime-The term as used in the Act, 
sec.3(4)(C) refers only to those persons who by reason of minority or lack of 
mental capacity are not held liable for their criminal acts. 
   
     Other persons-The term as used in the Act, sec.6(d)(3) does not include 
persons related to the claimant within the third degree of affinity or 
consanguinity; nor does it include purely donate contributors, such as 
community, civic, or religious organizations. 
   
     Pecuniary loss -Includes eyeglasses, corrective lenses, dental devices, and 
prosthetic devices. It does not include lost, damaged, or stolen property. 
   
     Reports-The term as used in the Act, sec.4(b) includes both written and 
oral reports. 
   
     State-A state of the United States of America, the District of Columbia, 
the Commonwealth of Puerto Rico, or any possession or territory of the United 
States. 
 
   
  sec.61.6. Filing of Application. In determining the time period for the 
claimant's filing of an application, the chief will consider the one year to 
begin with the last known event which constituted the criminally injurious 
conduct for which compensation is sought. For crimes or incidents occurring on 
or after September 1, 1985, the limitation period will not include that period 
of physical incapacity which reasonably prevented the claimant from filing an 
application for compensation according to the Act, sec.4(c). It is the 
claimant's responsibility to provide 15 written, medically documented evidence 
of such physical incapacity. 
   
  sec.61.19. Subrogation.  Under the subrogation provision of the Act, sec.11, 
failure to notify the Office of the Attorney General in writing prior to filing 
suit to recover damages related to criminally injurious conduct will be just 
cause for reconsideration of the award. 
 
   
  sec.61.23. Texas Residents. 
 
  (a) The following persons are presumptively not "Texas residents" within the 
meaning of this rule and the Act: 
 
  (1) persons who are in Texas for less than 30 days; 
   
  (2)  persons who are in Texas for the pursuit of temporary business or 
recreational opportunities who do not intend at the time of the crime to make 
Texas their residence; 
   
  (3) all other persons whose presence in Texas is of a transient nature and who 
do not intend at the time of the crime to make Texas their residence. 
     
  (b) This rule applies only to claims for compensation for crimes or incidents 
occurring from January 1, 1980-August 31, 1985. 
 
     
  sec.61.26. Psychiatric Care or Counseling Defined.  Compensable psychiatric 
care or counseling is defined as that performed by licensed practitioners and 
specifically only by psychiatrists, psychologists, licensed professional 
counselors, and certified social workers-advanced clinical practitioners. 
[including psychiatrists, psychologists, and licensed counselors]. [Licensed 
counselors must work under the supervision of a licensed medical doctor.] 
Psychiatric hospitals must be licensed by the proper state licensing authority 
and residential treatment centers must be licensed by the proper state licensing 
authority. 
 
   
  sec.61.30. Unethical or Fraudulent Practices. 
 
  (a) The following acts by a provider of services constitute violations and are 
subject to subsection (b) of this section: 
 
  (1) submitting charges for services that were not furnished; 
   
  (2) administering improper, unreasonable, or medically unnecessary treatment 
or service; 
   
  (3)  failing or refusing to timely file upon request required reports or 
records; 
   
  (4) making unnecessary referrals; 
   
  (5) violating the fee and treatment guidelines as established by the Texas 
Workers' Compensation Commission; or 
   
  (6) failure to comply with any provision of this rule or of the Act. 
     
  (b) A provider of services having been determined to be in violation of 
subsection (a) of this section is subject to a reduction or denial of benefits. 
 
     
  sec.61.31. Counseling Expenses.  Counseling expenses are limited to 40 
sessions or an amount not to exceed $3,000 for psychiatrists, psychologists, 
licensed professional counselors, and certified social workers-advanced clinical 
practitioners  [licensed counselors, psychologists, and psychiatrists]. Fees and 
billing procedures per session are to be determined as established by the Office 
of the Attorney General. Under unusual facts and circumstances, additional 
sessions may be allowed, but limited to those which are pre-authorized and 
approved in accordance with general standards of utilization review. 
 
   
  sec.61.32. Inpatient Psychiatric Care. Inpatient psychiatric hospitalization 
care is limited to $400 per day with a maximum 30-day stay and shall include 
room, board, medications, and therapeutic modalities. Only admissions made at 
the direction of a licensed medical doctor will be payable. Under unusual fact 
and circumstances, additional hospitalization exceeding 30 days may be allowed, 
but limited to those which are preauthorized and approved in accordance with 
general standards of utilization review. 
 
   
  sec.61.33. Counseling for  23>Eligible Residing Family Members.  Outpatient 
counseling for eligible residing family members is limited to $1,000 per family 
member. Under unusual facts and circumstances, additional counseling may be 
allowed, but limited to those which are preauthorized and approved in accordance 
with general standards of utilization review. 
 
   
  sec.61.34. Authority to Collect and Provide Financial Contributions.  Any 
governmental entity or subdivision, permitted by law to engage in any prison 
industry program, work program, or any other type of work programs, pursuant to 
the Texas Government Code, Chapter 497, as amended, or an operator/manager of a 
corrections facility has the authority to collect and provide financial 
contributions to crime victims assistance programs or crime victims compensation 
programs. These financial contributions as a part of prison industry programs, 
work programs, work release programs, community service programs, or other work 
oriented programs may be a deduction from inmate wages, a "cost" item of 
production (overhead), a distribution from the participating industry's gross 
earnings, or any other means. The duly authorized recipient of these 
contributions designated for crime victims compensation shall be the Office of 
the Attorney General as the statutory authorized administrator of the crime 
victims compensation fund. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on September 21, 1992. 
 TRD-9212839 
  Dan Morales 
 Attorney General of Texas 
 Office of the Attorney General 
    Effective date: October 12, 1992 
 Proposal publication date: July 24, 1992 
 For further information, please call: (512) 320-5334 
         
               
  TITLE 10. COMMUNITY DEVELOPMENT 
 Part I. Texas Department of Housing and Community Affairs 
  Chapter 1. Administration 
  
  Subchapter A. General Policies and Procedures 
 
  10 TAC sec.1.2 
 
  The Texas Department of Housing and Community Affairs (TDHCA) adopts new 
sec.1.2 concerning department complaint system, without changes to the Texas 
Register  (17 TexReg 5614). 
 The new section implements a formal system to investigate and resolve 
complaints that TDHCA has the authority to resolve. 
 The new section will govern all complaints except those concerning the Texas 
Community Development Program and TDHCA's administration of the Community 
Services Block Grant and Low Income Home Energy Assistance Programs. Those 
federal block grant complaints are handled pursuant to 10 TAC sec.1.11 and 
sec.1.13. 
 No comments were received regarding adoption of the new section. 
 The new section is adopted under Texas Civil Statutes, Article 4413(501), 
sec.1.18, which provide TDHCA with the authority to develop procedures by which 
complaints are filed with the department. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on September 15, 1992. 
 TRD-9212617 
  Susan J. Leigh 
 Executive Director 
 Texas Department of Housing 
    Effective date: October 7, 1992 
 Proposal publication date: August 11, 1992 
 For further information, please call: (512) 475-3917 
         
         
  Subchapter B. Block Grants 
 
  10 TAC sec.1.13 
 
  The Texas Department of Housing and Community Affairs (TDHCA) adopts an 
amendment to sec.1.13 concerning complaint system, without changes to the 
proposed text as published in the August 11, 1992, issue of the Texas Register  
(17 TexReg 5615). 
 The amendment concerns the formal complaint system established to investigate 
complaints received about programs funded by federal block grants administered 
by TDHCA. 
 The amendment changes the person to whom complaints are submitted. 
 No comments were received regarding adoption of the amendment. 
 The amendment is adopted under Texas Civil Statutes, Article 4413(501), 
sec.1.07, which provide TDHCA with the authority to adopt and enforce rules for 
the conduct of its affairs. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on September 15, 1992. 
 TRD-9212618 
  Susan J. Leigh 
 Executive Director 
 Texas Department of Housing and Community Affairs 
    Effective date: October 7, 1992 
 Proposal publication date: August 11, 1992 
 For further information, please call: (512) 475-3917 
         
               
  TITLE 28. INSURANCE 
 Part I. Texas Department of Insurance 
  Chapter 19. Agents Licensing 
  
  Subchapter P. Fees Charged by Local Recording Agents 
 
  28 TAC sec.sec.19.1501-19.1504 
 
  The State Board of Insurance of the Texas Department of Insurance adopts new 
28 TAC sec.sec.19.1501-19.1504, concerning the fees charged by local recording 
agents, without changes to the proposed text as published in the March 26, 1992, 
issue of the Texas Register (17 TexReg 1714). 
 The new sections are necessary to provide procedures regulating the activities 
of local recording agents when charging fees in compliance with the Insurance 
Code, Article 21.14, sec.4(e). 
 The sections provide the procedures that are to be followed by local recording 
agents in charging fees under the Insurance Code, Article 21.14, sec.4(e). New 
sec.19.1501 provides the basis and purpose for the sections. New sec.19.1502 
defines terms used in the new sections. New sec.sec.19.1503 and 19. 1504 address 
forms and procedures to be used by local recording agents in charging fees. 
These procedures include a requirement that the fees which can be charged are 
those listed in Article 21.14, sec.4(e), and similar transmission or 
reproduction costs. Further, there is a requirement mandating the use of the 
Disclosure Statement for Local Recording Agents' Fees. Such disclosure statement 
is incorporated by reference in this adoption. The board has filed copies of 
this form with the Office of the Secretary of State, Texas Register Section. 
Persons desiring copies of the form can obtain such copies from the Agents 
License Section of the Texas Department of Insurance, Mail Code 107-1A, 333 
Guadalupe Street, P.O. Box 149104, Austin, Texas 78714-9104. The disclosure 
statement requires the disclosure of the local recording agent's commission on 
the transaction; an explanation of the reason the fees were not anticipated in 
such commission; the written agreement of the client to the charges; the 
telephone number of the Claims and Complaints Section of the Texas Department of 
Insurance, with a statement that the client may call that number if the client 
did not agree in advance to the charges, or if the client does not agree to the 
fairness of the charges; and a complete list of the services being billed and 
the costs of such services. The procedures require that the disclosure statement 
and files relating to the fees must be maintained by the local recording agent 
and made available to the Texas Department of Insurance upon request. 
 A total of 40 insurance agencies submitted written comments on the sections, 
and each had recommendations for change to the sections as proposed. No comments 
were received in favor of the sections as published. Those commenting on the 
sections as published include the following: Lanny Aiken Insurance Agency, Inc.; 
Axis Insurance Agency, Inc.; Best Insurance Services, Inc; Borden Insurance; 
Bunker Hill Insurance Agency, Inc.; Campbell Insurance Agency; Carter and 
Company; Clayburne Agency, Inc.; Bill DeArmond Insurance Agency; Eagle Pass 
Insurance Agency, Inc.; El Dorado Insurance; Ewing Insurance Services; Jim 
Felker Insurance Agency; Gibbins Insurance Agency; Grether/King and Associates, 
Inc.; Hilb, Rogal, and Hamilton Company of Dallas; Jolly Heeth Insurance Agency, 
Inc.; Hutcheson Insurance Agency; Leick, Tucker, and Knight Insurance; Billy 
Martin Insurance; McLemore Insurance Agency; McRany-Scott Insurance Agency; John 
Nanninga-Insurance; Nelson Insurance Agency; Nitsche, Blackmon, and Sweeney 
Preston Agency, Inc.; Rainwater Insurance Agency, Inc.; Reiss-Pleasant Insurance 
Agency, Inc.; Rogers and Belding Insurance Agency, Inc.; Rollins Burdick Hunter 
Agency of Texas, Inc.; The Sammons Agency; Sterling Insurance Agency; Don C. 
Tardy Company; Templeton Southwest Insurance Agency. Inc.; Texas Insurance 
Agency, Inc.; Texas State Low Cost Insurance, Inc.; Thompson, Coe, Cousins, and 
Irons; Wallace and Skiles, Inc.; Wilco Insurance Agency; John D. Williams 
Agency. 
 A number of commenters complained that companies generally are reducing 
commission rates on coverages, while at the same time expecting agents to assume 
increasingly higher administrative burdens in placing and servicing business. 
Other commenters proposed they be permitted to charge "application", 
"placement", "handling", "processing", or substantially similar fees for the 
placing of particular types of coverages in instances where payment of a 
commission is either absent or set at a very low amount. The agency responds 
that approval of such a fee would go beyond the specific list of the fees 
provided for in the Insurance Code, Article 21.14, sec.4(e); therefore, the 
final adoptions makes no change to incorporate the recommendation. A commenter 
objected to the disclosure requirement as unreasonable and beyond the authority 
of the Texas Department of Insurance. The Board considers the requirement a 
reasonable exercise of its rulemaking authority to carry out the intent of the 
statute. Other commenters requested authority to charge for other services 
capable of being defined as "customary" duties of agents. Some commenters 
suggested the need for authority to charge for "servicing", "incidental", and 
"other repetitive" expenses. The agency responds that both those categories of 
fees are outside those which are set forth in Article 21. 14, sec.4(e), and 
relate to an area or areas which have been only very generally identified and 
not precisely defined; therefore, the final adoption makes no change to 
incorporate the recommendation. 
 The new sections are adopted under the Insurance Code, Articles 21.14 and 1. 
04, and Texas Civil Statutes, Article 6252-13a, sec.4 and sec.5. Section 2 of 
Acts 1991, 72nd Legislature, Chapter 626, which enacted the Insurance Code, 
Article 21.14, sec.4 and sec.5 authorize and require each state agency to adopt 
rules of practice setting forth the nature and requirement of available 
procedures, and prescribe the procedures for adoption of rules by a state 
administrative agency. The adopted sections affect the Insurance Code, Article 
21.14 by regulation of fees charged by local recording agents. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on September 21, 1992. 
 TRD-9212826 
  Linda K. von Quintus-Dorn 
 Chief Clerk 
 Texas Department of Insurance 
    Effective date: October 12, 1992 
 Proposal publication date: March 6, 1992 
 For further information, please call: (512) 463-6327 
         
               
  TITLE 31. NATURAL RESOURCES AND CONSERVATION 
 Part IX. Texas Water Commission 
  Chapter 298. Edwards Underground River 
  
  Subchapter A. General Provisions 
 
  31 TAC sec.sec.298.1-298.7 
 
  The Texas Water Commission (TWC) adopts new Chapter 298,  sec.sec.298.1-298.7, 
298.11-298.20, 298.21-298.23, 298.31, 298.32, 298.41, 298.42, 298.51, and 298. 
61, with changes to the proposed text as published in the April 24, 1992, issue 
of the Texas Register (17 TexReg 2950). The new sections concern the commission 
determination and administration of rights to the use of state water in the 
Southern, or Balcones Fault Zone, portion of the Edwards Aquifer (Edwards 
Underground River) and the protection of the water quality of the Edwards 
Underground River and related surface streams pursuant to the Texas Water Code, 
Chapters 11 and 26, and other applicable law. In the preamble and the rules, the 
terms "aquifer," "Edwards Aquifer," "underground river," and "Edwards 
Underground River" are used interchangeably. 
 The purpose of this chapter is to: protect the water quality of the Edwards 
Underground River; protect the water quality of the surface streams to which the 
Edwards Underground River provides significant springflow; achieve water 
conservation; maximize the beneficial use of water available for diversion from 
the underground river; protect springflow necessary for the maintenance of 
aquatic and wildlife habitat; protect the public health, safety, and welfare; 
and provide for instream uses and bays and estuaries. To accomplish these 
purposes, the chapter provides procedures for the appropriation of state water 
in the Edwards Underground River and the implementation of a water management 
plan. 
 Subchapter A: General Provisions, sec.sec.298.1-298.7, contains rules relating 
to: the finding of the Southern, or Balcones Fault Zone, portion of the Edwards 
Aquifer as an underground river and, thus, state water: defining the boundaries 
of the underground river; the applicability of existing commission rules to the 
underground river; and the definitions of terms used in the chapter. Generally, 
those existing rules of the commission which apply to the diversion and use of 
state water from surface streams are applicable to the diversion and use of 
state water from the Edwards Underground River, except where necessary to 
reflect the unique characteristics of the sub-surface source of water. 
 Subchapter B: Permits and Other Authorizations, sec.sec.298.11-298.20, contains 
rules providing that, except for certain exempt domestic and livestock uses, all 
users of the Edwards Underground River must obtain commission authorization for 
the diversion and use of water. Those currently diverting water from the Edwards 
Underground River and who can demonstrate a historical record of actual 
beneficial use prior to April 15, 1992, the effective date of related emergency 
rules, are provided interim authorization by rule to continue beneficially using 
such water without waste until a final determination is made on their permit 
applications. Interim authorization will be granted only to those current users 
who submit a declaration of historical use on or before November 1, 1992, and a 
water conservation plan and all necessary application fees on or before June 1, 
1993. A declaration of historical use shall constitute an application for a 
permit. The commission shall not take action on any application prior to June 1, 
1993. 
 A moratorium will be imposed on the commission review and action on 
applications by persons not qualifying for interim authorization until final 
action is taken on those declarations of historical use submitted on or before 
November 1, 1992, and for which a water conservation plan and application fees 
have been timely submitted. The moratorium is necessary until historical claims 
can be evaluated and a determination is made on the availability of 
unappropriated water for new uses. Such applications for new use, if approved, 
shall be subordinate in priority to permits issued for applications submitted by 
persons qualifying for interim authorization. 
 During the moratorium, a person may not drill and withdraw water from a new 
well unless the new well is for an exempt domestic and livestock use or is to be 
used to replace or backup an existing well. A new well is a well which was not 
completed and withdrawing water for a beneficial purpose prior to April 15, 
1992, the effective date of the moratorium as provided by related emergency 
rules. Before water may be withdrawn from the replacement well, production from 
the old well which it replaces must cease and subsequently the well must be 
plugged or closed. 
 The rules further provide objective criteria to be used in determining a right 
of diversion based upon: the applicant's need and purpose of use, the 
applicant's record of historical use and potential for reduction from the 
historical amount by the elimination of waste and the implementation of 
reasonable water conservation and reuse measures; and the total amount of 
available water to be diverted from the Edwards Underground River as established 
by Subchapters E and F. 
 Subchapter C: Conveyances, sec.sec.298.21-298.23, contains rules providing for 
the approval and notification of contractual sales of water and the transfer and 
sale of water rights to the Edwards Underground River. The subchapter also 
contains a rule relating to the application by a city or town to acquire an 
appropriation from another water right holder without compensation pursuant to 
the Wagstaff Act, Texas Water Code, sec.11.028; however, the rules establish 
strict criteria that must be met. 
 Subchapter D: Water Use Measurement and Reporting, sec.298.31 and sec.298.32, 
contains rules requiring that all wells must be equipped with a measuring device 
or, subject to approval by the executive director, some other equally accurate 
means of measuring the amount of water diverted must be provided. The subchapter 
also contains a rule requiring annual use reports to be submitted to the 
commission. 
 Subchapter E: Regulation of Diversions-General, sec.298.41 and sec.298.42, 
contains rules prohibiting the waste of water and providing that total 
authorizations to directly divert and use water from the Edwards Underground 
River shall be limited in order to: achieve water conservation; maximize the 
beneficial use of the water available for diversion from the underground river; 
protect water quality and the public health, safety, and welfare; protect 
aquatic and wildlife habitat; and provide for instream uses and bays and 
estuaries. In order to achieve these goals without severely disrupting the 
affected region's economy and ability to provide for the region's water supply 
needs, the total amount which may initially be diverted directly from the 
Edwards Underground River shall not exceed 450,000 acre-feet per calendar year. 
This total amount shall be reduced so as not to exceed 400,000 acre-feet per 
calendar year not later than December 31, 2007, by the implementation of water 
conservation and reuse measures, the purchase and retirement of water rights, 
and/or the development of alternative sources of water supply. If the level of 
the Edwards Underground River is higher than 665 feet above mean sea level as 
measured at the J-17 index well (State Well Number AY-68-37-203), however, the 
commission may grant additional amounts above these total limitations on an 
interruptible basis not to initially exceed 88,000 acre-feet per year. If, 
through studies, it is determined that additional water supplies are available 
from the Edwards Underground River, either directly or indirectly, the 
commission may consider modification of the limitations established by these 
rules. The commission will ensure that studies be completed which will determine 
the impact of water management strategies such as springflow augmentation, 
diversions downstream of the springs, supplemental recharge, conjunctive 
management of surface and subsurface water, and other strategies to optimize the 
use of the Edwards Underground River and still provide sufficient protection for 
water quality, aquatic and wildlife habitat, and other appropriate purposes. 
 Subchapter F: Regulation of Diversions-Emergency, sec.298.51, contains rules 
providing that, in order to provide additional protection for springflow from 
the Comal and San Marcos Springs and to protect aquatic and wildlife habitat 
when water levels fall critically low, the total, authorized amount of water 
which may diverted directly from the Edwards Underground River may not exceed 
350,000 acre-feet per calendar year once the level of the Edwards Aquifer drops 
to 625 feet above mean sea level as measured at the J-17 index well. Water 
levels recorded in this well have closely correlated to the amount of 
springflows at Comal Springs. This reduction shall be achieved generally by: the 
curtailment of non-essential uses such as lawn watering, landscaping, ornamental 
fountains and pools, and other recreational and aesthetic uses not necessary for 
the protection of the public health, safety, and welfare by the implementation 
of permittees' drought management plans contained in the water conservation 
plans as approved by the commission; the lease or purchase by permittees of 
others' water rights to divert water from the Edwards Underground River; and/or 
the use of alternative sources of water. The rules also provide that, upon 
implementation of this subchapter, the executive director shall consult with the 
United States Fish and Wildlife Service and the Texas Parks and Wildlife 
Department on appropriate actions the commission should take. 
 Subchapter G: Local Government, sec.298.61, provides for the involvement of 
affected local governmental entities in the presentation of comments and 
recommendations to the commission regarding the regulation of the Edwards 
Underground River. The proposed subchapter also provides for the possible 
creation of a separate water division for the Edwards Underground River and the 
appointment of a local regulatory entity with sufficient jurisdiction and 
authority to act as the watermaster for the Edwards Underground River, unless 
prohibited by law. 
 Need for Commission Action. The dispute over the management of the Southern 
Edwards Aquifer (Edwards Aquifer or Edwards Underground River) affects the 
rights to and water quality of almost all subsurface and surface water in the 
Nueces, San Antonio, and Guadalupe River Basins. It also affects aquatic and 
riparian habitat in both surface and subsurface waters, including habitat 
located in the aquifer and at or near the Comal and San Marcos Springs. Despite 
the great economic and environmental significance of the Edwards Aquifer to the 
South Central Region of Texas and to the state itself, there exists no 
comprehensive management plan for this unique and vital resource. 
 This inaction in the face of growing and unchecked demand on the Edwards 
Aquifer has led to a situation which threatens the public health, safety, and 
welfare and the economic well-being of the region. The uncertainty over a 
person's right to use water from the Edwards Aquifer because of current 
litigation discourages business investment and economic growth. This uncertainty 
also makes it difficult, if not impossible, to develop a management plan to 
provide for the immediate and long-term water supply needs of the region. 
Finally, a person's right to use water from a common source shared by others has 
little value and cannot be protected unless effective and necessary controls are 
applied to everyone's use. 
 Almost four decades of negotiations among the affected parties have failed to 
yield a resolution of the dispute regarding the proper management of the Edwards 
Aquifer. Legislation seeking to provide a comprehensive and lasting resolution 
to this issue has been repeatedly defeated. Efforts by San Antonio Mayor Henry 
Cisneros and local representatives of the Edwards Underground Water District 
during 1986 and 1987 to develop a regional water management plan ended in defeat 
in the Texas Legislature and resulted in the breakup of the district. Beginning 
in November 1989 and continuing until his untimely death in August 1991, Texas 
Water Commissioner John Birdwell made exhaustive and earnest efforts to bring 
about a local resolution of the dispute. A professional mediator and the mayor 
of Austin have also unsuccessfully attempted to mediate a settlement. Protracted 
and costly litigation in both state and federal courts has dragged on for years 
and trials on the merits have not yet occurred. The creation of a special joint 
legislative committee in 1990 failed to produce a consensus report, much less 
proposed legislation. Most recently, strenuous efforts by the current chairman 
of the Texas Water Commission, John Hall, during the spring of 1992 also failed 
to produce a settlement. 
 The Edwards Aquifer is the sole source of water supply for approximately 1. 5 
million citizens in the San Antonio region and supports a diverse regional 
economy that provides employment for approximately 700,000 to 800,000 Texans. 
Additionally, the Edwards Aquifer is important to the economies of the 
communities at and downstream of several springs fed by this underground river. 
These springs include the state's two largest natural springs at New Braunfels 
and San Marcos. These two springs sustain a significant tourist and recreational 
economy for these cities. 
 It is estimated that spring flow from Comal and San Marcos Springs alone 
provides 21 to 32% of the total annual flow of the Guadalupe River at Victoria. 
Between 70,000 and 80,000 jobs exist in those counties that are supplied with 
water from the Guadalupe River below these springs. The economies of Hays and 
Comal Counties and the counties downstream of the springs are clearly dependent 
on the Edwards Aquifer. Located at the mouth of the Guadalupe River are the 
Guadalupe and San Antonio Bays and the Aransas National Wildlife Refuge. 
Freshwater inflows provided by the river to the bays and estuaries are critical 
to the maintenance of estuarine habitat. This underground river is truly the 
lifeline of 15 Texas counties. 
 A lawsuit has been filed under the federal Endangered Species Act, 16 United 
States Code, sec.sec.1531-1544, which seeks to provide protection for endangered 
and threatened species at and downstream of Comal and San Marcos Springs and in 
the aquifer. This lawsuit threatens to invoke federal regulation of a state 
water resource. The water management plan contained in these rules is intended, 
among other things, to provide the basis for a resolution by the state of the 
issues raised in this lawsuit. This plan allows for the necessary planning and 
preparation, including time to develop alternative sources of water supply. 
 Problems Resulting from a Lack of a Water Management Plan. During the recorded 
period of 1934-1988, long-term average annual recharge of 625,000 acre-feet was 
equal to long-term average withdrawal from wells and springflow. On an annual 
basis, recharge has sometimes exceeded and sometimes fallen below such 
withdrawals and discharges. The maximum estimated annual withdrawal during this 
period was 540,000 acre-feet. During the worst drought of record, which occurred 
in the 1950's, recharge amounts fell well below estimated annual withdrawals of 
250,000 acre-feet for several consecutive years, lowering the aquifer's level 
and, consequently, causing Comal Springs to cease flowing for five months in 
1956. 
 It is anticipated that demands on the Edwards Underground River will increase 
steadily, while recharge, which is dependent upon rainfall, is highly variable. 
Problems resulting from the overdrafting, or "mining," of the aquifer should 
include: short-term droughts (two-three years) could cause aquifer levels to 
fall rapidly, possibly to the point where the Comal and/or San Marcos Springs 
would cease to flow; economic risks from increased pumping costs and uncertain 
supplies of water would increase in agricultural, industrial, and other economic 
sectors; long-term drought comparable to the 1950's could cause both Comal and 
San Marcos Springs to go dry, severely damaging the habitat of endangered 
species and decreasing the amount of water available to downstream users, 
resulting in adverse impacts to agriculture and industry; the drop in aquifer 
level could cause encroachment of "bad" water into some portions of the aquifer, 
including water laden with high mineral content and salinity levels; and the 
uncertainty over a person's right to use water from the Edwards Aquifer makes it 
difficult to provide for the immediate and long-term water supply needs of the 
region and could discourage business investment and economic growth. 
 Reduction in springflows caused by diversions from the Edwards Aquifer could 
adversely affect the water quality, aquatic and wildlife habitat, and other 
instream uses of surface streams downstream of the springs as well as bays and 
estuaries. A decrease in the quantity of the water in a stream lessens its 
assimilative capacity for effluent discharges and other sources of pollution. If 
springflows fall below certain minimum levels, then the stream segments below 
the springs would be dominated by return flows from municipal and industrial 
discharges, along with an undetermined amount of contaminated runoff from 
adjacent urban and agricultural areas. The result would be pollutant overloading 
of these streams. The nonpoint source pollution, elevated nutrient 
concentrations, and increased ambient temperature could devastate the ecological 
character of the streams immediately below the springs as well as further 
downstream in the Guadalupe River Basin. 
 Finally, the direct hydrologic connection between the Edwards Aquifer and 
surface streams in the contributory watershed requires the careful management of 
diversions from and wastewater discharges to rivers which flow into and provide 
"recharge" to the aquifer. Such management is necessary to protect the water 
quality of the aquifer. In reviewing applications for diversions from or 
discharges to these surface streams and pollution abatement plans for 
development in the recharge zone, the commission shall consider their impact 
upon the goals and purposes of this chapter. 
 Public Comment-Public Comment Hearings. The TWC provided a 68-day period for 
notice and public comment regarding the proposed rules, beginning the day of 
publication of the proposed rules, April 24, 1992, and continuing through June 
30, 1992. A representative of TWC conducted five public comment hearings during 
this period throughout the South Central Texas region. These hearings were held 
in: Austin on May 22, 1992; San Antonio on May 26, 1992; Uvalde on May 27, 1992; 
Austin on May 29, 1992; and in San Antonio on June 30, 1992. 
 Notice of all hearings was published in the Texas Register (17 TexReg 3661 and 
4139). Additionally, press releases were sent to all major newspapers in the 
affected region. These newspapers included: San Antonio Express News; San 
Antonio Light; New Braunfels Herald-Zeitung; San Marcos Record; San Marcos News; 
Wimberley View; Castroville News Bulletin; Medina Valley Times; Divine News; 
Hondo Anvil Herald; Uvalde Leader-News; Associated Press; United Press 
International; all television news operations in San Antonio and Austin; and 
numerous radio news operations in the San Antonio/Austin region. Mailed notice 
was also provided to applicable local districts and state and federal agencies. 
 All hearings were conducted by a hearings examiner of the commission in 
accordance with applicable provisions contained in the Administrative Procedure 
and Texas Register Act, Texas Civil Statutes, Article 6252-13a, and commission 
rules contained in 31 TAC sec.sec.275.71 et seq, and all other applicable law. 
The hearings were held with afternoon and evening sessions to provide the 
greatest opportunity for citizens to appear at the hearings and listen to and 
give public comment. Because it was anticipated that public comment regarding 
the proposed rule that the Edwards Aquifer is an underground river and, thus, 
state water subject to commission regulation, would be lengthy and technical in 
nature, the May 22, 1992, public comment hearing was held specifically on this 
proposed rule. However, comment on this proposed rule was not precluded from the 
other public comment hearings. 
 During the public comment period, over 135 written comments were received, over 
400 exhibits were submitted into the record, and approximately 30 hours of oral 
testimony were heard. 
 At the commission's regular meeting on August 26, 1992, commission staff 
presented a summary of the comments and recommended changes to the proposed 
rules in response to the comments. Copies of staff's recommended changes were 
made available to the public. The commission allowed additional written public 
comment to be submitted through September 4, 1992. 
 General Commentary. There were three main categories of comments: those in 
general support of commission regulation of the Edwards Aquifer; those that were 
in favor of local management; and those in general opposition to the rules and 
to any regulation of the use of the Edwards Aquifer. 
 Those in general support of the proposed rules and TWC regulation of the 
Edwards Aquifer stated that such support was based upon the belief that the 
Edwards Aquifer is an important resource to the region and to the state, that a 
management plan is much needed for this resource, that local resolution of the 
management dispute is unlikely, that the legislature has failed to act and is 
unlikely to act, that federal intervention pursuant to the Endangered Species 
Act is not an appropriate way to manage the Edwards Aquifer, and that TWC has 
the authority and the expertise to properly manage the Edwards Aquifer in 
conjunction with related surface streams. These comments also included the 
request for more clarification as to the policies and goals to be accomplished 
through the management of the Edwards Aquifer and for more specific criteria to 
be contained in the rules relating to the determination of individual water 
rights in accomplishing these goals and policies. 
 Elected officials and governmental entities that provided comment in general 
support of the rules and TWC regulation of the Edwards Aquifer include: a Texas 
railroad commissioner; two Texas state representatives; the Guadalupe-Blanco 
River Authority; the Comal County Commissioners Court; the City of San Marcos; 
the City of New Braunfels and New Braunfels Utilities; the Canyon Regional Water 
Authority; the City of Sequin; the Texas Parks and Wildlife Department; and the 
United States Fish and Wildlife Service. 
 Groups and associations that provided comment in general support of the 
proposed rules include: the Industrial Water Users of the Lower Guadalupe River 
(BP Chemicals, Du Pont, Union Carbide, Carbon/Graphite Group, Oxychem, and 
Central Power and Light Company); the Sierra Club (Alamo Group); the Sierra Club 
(Lone Star Chapter); the Guadalupe Valley Electric Co-op, Inc.; the 
Environmental Defense Fund; the Barton Springs Polar Club; the Seguin and 
Guadalupe County Chamber of Commerce; the Atascosa Rural Water Supply 
Corporation; the Canyon Lake Area Citizens Association; and the Travis Audubon 
Society. 
 Those in support of local management of the Edwards Aquifer recognized the need 
for management of this important resource but either maintained that the Edwards 
Aquifer is not state water or took no position on the issue. Commenters in this 
group recommended either that the Edwards Aquifer should be regulated by one or 
more underground water conservation districts pursuant to the Texas Water Code, 
Chapter 52, or by a regional entity created by special legislation. 
 Elected officials and governmental entities in support of local management, or 
for some form of management without stating a position on TWC jurisdiction, of 
the Edwards Aquifer include: two Texas state representatives; the Edwards 
Underground Water District; the Medina County Underground Water District; the 
Dimmit County Underground Water Conservation District; the Plateau Underground 
Water Conservation and Supply District; the Hickory Underground Water 
Conservation District Number 1; the Brush Country Underground Water Conservation 
District; Schleicher County Commissioners Court; the Irion County Water 
Conservation District; the Santa Rita Underground Water Conservation District; 
the Fort Bend Subsidence District; the Harris-Galveston Coastal Subsidence 
District; the City of Alamo Heights; the Hueces River Authority; the City of San 
Antonio Water System; and the Texas Department of Agriculture. 
 Groups and associations in support of local management include: the Medina 
County Water Protection and Conservation Association; the St. Lawrence Cotton 
Growers Association (Glasscock, Reagan, Upton, and Midland Counties); the Nueces 
River Authority; the Greater San Antonio Builders Association; the San Antonio 
Manufacturers Association; the Corn Processors, Inc., (Uvalde County); Texas 
AgriWomen (Mission); and the Texas Department of Agriculture. 
 Those in general opposition to the regulation of the Edwards Aquifer maintained 
that the Edwards Aquifer is privately-owned groundwater subject to an absolute 
rule of capture by the overlying landowner. 
 Elected officials and governmental entities that provided comment in general 
opposition to regulation of the Edwards Aquifer include: a Texas state 
representative-elect; the Uvalde County Commissioners Court; the Kinney County 
Commissioners Court; and the City of Uvalde; 
 Groups and associations that provided comment in general opposition to 
regulation of the Edwards Aquifer include: the Texas Farm Bureau; the Bexar 
County Farm Bureau; the Texas Nurserymen Association; the Texas and Southwestern 
Cattle Raisers Association; the Texas Sheep and Goat Raisers Association; the 
Uvalde County Water Conservation Association; the Aquifer Protection Committee; 
the Friends from Uvalde; the Uvalde Area Development Foundation; the Southwest 
Texas Property Rights Association; Inland Ocean, Inc. ; and the Texas 
Association of Concerned Taxpayers. 
 Underground River Determination. Those in general opposition to TWC regulation 
of the Edwards Aquifer and the proposed rules expressed disagreement with the 
rule contained in sec.298.2 providing that the Southern, or Balcones Fault Zone 
portion of the Edwards Aquifer is an underground river and, thus, state water 
subject to commission regulation. Rather, it is their opinion that the Edwards 
Aquifer is percolating groundwater and, thus, private water owned by the 
landowner. Furthermore, it is their opinion that any state regulation of their 
use of water from the Edwards Aquifer would be an unconstitutional taking of 
private property without just compensation. 
 Many of the commenters based their opposition to the finding of the Edwards 
Aquifer as an underground river upon previous orders of the commission relating 
to the delineation of the boundaries of the Edwards Aquifer, the enabling acts 
of the Edwards Underground Water District and the Medina County Underground 
Water Conservation District, the Texas Water Code, sec.11.023(c) and (d), and 
discussion of the use of groundwater in the adjudications of the right to use 
surface water in the Medina, Nueces, Guadalupe, and San Antonio rivers. Also, 
some commenters stated that the commission lacked authority to determine whether 
the Edwards Aquifer constitutes state water. 
 Additionally, three individuals commented that the Edwards Aquifer did not meet 
the hydrogeologic characteristics necessary to constitute an underground river. 
Specifically, one commenter stated that, in drilling wells in Uvalde and Medina 
Counties, he has seen no evidence of aquatic life, i.e., blind catfish, in the 
Edwards Aquifer. He also stated that the Edwards Aquifer in Medina County did 
not have a good, strong, consistent directional flow because of tight faulting 
in the north portion of the county, the absence of significant flow in the 
middle portion, and the existence of low or no flow in the south evidenced by 
the existence of highly mineralized water. He further stated that the Edwards 
Aquifer actually backflows westward to the Leona Gravel because of the 
resistance and low transmissivity rate in Medina County. 
 Another commenter stated that, based upon his expert knowledge of the Edwards 
Aquifer, the boundaries were not well known. One reason for this, he stated, was 
that the Glen Rose formation was also a part of the Edwards Aquifer and that the 
Del Rio Clay and Austin Chalk were at the same elevations as the Edwards 
Aquifer. He further stated that the directional flow of the Edwards was not well 
understood and that the Edwards has a "low storage co-efficient." 
 Finally, a commenter stated that, based upon wells that had been drilled on his 
property, he doubted whether the Edwards Aquifer had flow or was of consistent 
or sufficient utility because of the depth necessary for a well to be drilled 
before it produced a significant amount of water for irrigation. He described 
the water as "oozing" rather than flowing. 
 In support of the finding of the Edwards Aquifer as an underground river, the 
Guadalupe-Blanco River Authority submitted 384 exhibits and the comments and 
affidavits of six expert witnesses, including hydrologists, geologists, a 
biologist, and a law professor. The exhibits include models, photographs, and 
over 250 published studies, reports, and treatises concerning the Edwards 
Aquifer and related water formations. 
 After a careful and thorough review and analysis of all public comments, 
applicable law, available studies, reports, data, and other information, the 
commission respectfully disagrees with comments in opposition to the finding of 
the Edwards Aquifer as an underground river and, thus, state water subject to 
commission regulation pursuant to the Texas Water Code, Chapter 11. 
 Location and Physical Characteristics. The Edwards Aquifer has been extensively 
studied for many years and is generally well understood. Recent studies, 
reports, and models have provided a large amount of information regarding the 
physical characteristics and hydrogeology of the Edwards Aquifer. Much of this 
information was submitted into the record during the public comment period and 
forms a basis of the commission's determination that the Edwards Aquifer is an 
underground stream. 
 First, the traditional designation of this water resource as an "aquifer" 
simply means that it is a subsurface, water-bearing formation. There are many 
types of aquifers, from static, water-bearing sands such as the Ogallala 
Aquifer, to the free-flowing karst formation of the Edwards Aquifer. This 
geological designation does not preclude an aquifer from being legally 
designated an underground stream. For example, a federal court in California 
recently determined that an aquifer constitutes an "underground river" as 
provided under California state law. United States v. Fallbrook Public Utility 
District, 347 F.2d 48 (9th Cir. 1965). 
 The Southern, or Balcones Fault Zone portion of the Edwards Aquifer is located 
in the South Central Region of Texas and underlies portions of Kinney, Atascosa, 
Uvalde, Medina, Bexar, Guadalupe, Comal, and Hays Counties. The westernmost 
boundary of the aquifer is at the hydrologic divide near Bracketville in Kinney 
County. This divide separates the aquifer from subsurface water flows to the Rio 
Grande Basin. The Balcones Fault Zone portion of the aquifer extends through 
these eight counties in the shape of a crescent to its northern boundary at the 
hydrologic divide near Kyle in Hays County. This divide separates the Balcones 
Fault Zone portion of the aquifer from the Northern or Austin region of the 
Edwards Aquifer. The Edwards Aquifer is underlain by the Upper Member of the 
Glen Rose Formation and confined by the overlying Del Rio Clay. 
 The Southern Edwards Aquifer is approximately 175 miles long and covers an 
expanse of about 3,600 square miles. The average width of the aquifer is 25 
miles. The average depth is 500 feet below the surface and ranges from zero feet 
at its outcrop on the land surface to 2,500 feet below the surface. 
 The Edwards Aquifer is a karst aquifer, comprised of limestone and dolomite. It 
is highly porous, containing interconnecting channels and caves. These openings 
range in size from microscopic to large caverns. They include hairline cracks, 
open fractures, honeycombed zones, and a wide variety of cavities so that the 
aquifer resembles a huge stone sponge. Water flows relatively quickly through 
these openings. 
 Along the aquifer's southern and eastern borders is what is known as the "bad 
water line." This is where there is potential for underground saltwater 
intrusion into the aquifer if aquifer hydrologic pressure is lessened. Water 
movement through the aquifer is slowest here and remains in contact with 
limestone and gypsum longer, allowing dissolved mineral solids to increase to 
over 1,000 milligrams per liter. When this occurs, the water falls well below 
public drinking water standards. The freshwater area of the aquifer typically 
has only 350 parts per million and, generally, is so pure as to not require 
treatment for human consumption. 
 The aquifer generally falls in elevation from west to east, dipping toward the 
Gulf of Mexico. The west end of the top of the formation is at approximately 
1,200 feet above mean sea level (msl), and the San Marcos Springs in Hays County 
are about at 575 feet msl, a drop of 625 feet in about 166 miles. This is a 
slope of about 3.8 feet per mile, or about 0.07% 
 The Edwards Aquifer cuts beneath and through the middle of several surface 
river basins. These basins originate above the recharge zone of the aquifer and 
include, from west to east, the Nueces, the San Antonio, and the Guadalupe River 
Basins. Over 75% of the water in the Edwards Aquifer comes from the surface 
flows in the upper segments of these basins. These streams are located in the 
upper portion of the Nueces River Basin, the upper portion of the San Antonio 
River Basin, and a part of the upper portion of the Guadalupe River Basin (the 
"contributory watershed"). The major tributary streams include the West Nueces, 
Nueces, Dry Frio, Frio, Sabinal, Seco, Hondo, Medina, Helotes, Salado, Cibolo, 
Dry Comal, and Blanco. 
 As these streams cross over the recharge zone of the aquifer, almost all of the 
baseflows and large parts of the flood flows of these streams flow down into the 
aquifer through faults in the streambeds. The water then continues to travel 
south from the recharge areas into the artesian (confined) part of the aquifer 
and then from west to east and northeast until it erupts at springs located 
along the aquifer's eastern edge. The Comal Springs at New Braunfels and the San 
Marcos Springs at San Marcos are the largest of these springs. 
 The water in the aquifer can move very easily where the size and number of 
solution openings are large and connected with few restrictions. Movement rates 
of more that 2,100 feet per day have been measured over short distances. As a 
comparison, a movement rate of one foot per day is generally considered very 
fast in other aquifers in Texas. Because of the porosity and drop in elevation 
from the west end of the aquifer to the east, the water in the aquifer has a 
general directional flow from west to south to east and a relatively rapid 
current. 
 The aquifer is confined between impervious layers of rock and slants from a 
higher elevation in the west to a lower one in the east. This slant and rapid 
recharge provide a general directional flow of southwest to northeast through 
the confines of the aquifer's geologic formation. Additionally, this creates 
great artesian pressure resulting in several springs. Many of these springs 
contribute significantly to surface streamflows and aquatic and wildlife habitat 
in the Edwards Underground River itself and at or near the San Marcos and Comal 
Springs. 
 Edwards Aquifer is an Underground River. Under Texas law, percolating 
groundwater is owned by the overlying landowner, subject to the common law rule 
of capture. Houston & T.C. Ry. Company v. East, 98 Tex. 146, 81 S. W. 279 
(1904). In the East case, the court considered the occurrence, movement, and 
usage of percolating ground water to be such a mystery, that a no liability rule 
was justified because the effects of a person's groundwater use on another's 
property was unknowable. Groundwater flowing in definite underground streams, 
however, is governed by surface water law and is subject to prior appropriation. 
Pecos County WCID No. 1 v. Williams, 271 S.W.2d 503, 506 (Tex. Civ. App.-El Paso 
1954, writ ref'd n.r.e.); Texas Company v. Burkett, 117 Tex, 16, 296 S.W. 273, 
278 (1927); Bartley v. Sone, 527 S.W.2d 754, 760 (Texas Civ. App.-San Antonio 
1974, writ ref'd n.r.e.; see, also, the Tex. Water Code, sec.52.001, defining 
groundwater subject to private ownership not to include "defined subterranean 
streams"). 
 State water, whether in surface or subsurface streams, is subject to regulation 
by the Texas Water Commission in accordance with the Texas Water Code, Chapter 
11. Any authorization to divert and use state water is a right of use, and 
actual ownership of the water remains with the state, held in trust for the 
public's benefit. South Texas Water Company v. Bieri, 247 S.W. 2d 268 (Civ. App. 
1952). 
 Texas caselaw provides that an underground stream is state water if it has the 
same characteristics of a surface watercourse. See, e.g., A.H. Denis, III, et 
al. v. Kickapoo Land Company, et al., 771 S.W.2d 235, 236-237 (Tex. App.-Austin 
1989, writ denied). Those characteristics include a stream which has: known and 
well-defined boundaries which contain the flow of the water; a known and well-
defined source of water; a flow or movement of the water (i.e., current) in a 
known direction; a known destination for the flow of the water; and is of 
sufficient volume or magnitude (e.i., utility) to be put to beneficial use. See, 
e.g., Hoeffs v. Short, 273 S.W. 785, 787 (Tex. 1925); Pecos County WCID Number 
1, supra, at 506. 
 Additional guidance may be obtained by other jurisdictions than Texas courts 
regarding the characteristics of underground streams. The Florida Supreme Court 
found, for example, that water flowing below the surface of the land is also an 
underground stream if it can support fish and other aquatic wildlife.  Tampa 
Water Works Company v. Cline, 37 Fla. 586, 588 (1896). 
 A large body of knowledge has been developed and accumulated over many years 
with regard to the physical characteristics and use of the Edwards Aquifer as 
well as its direct hydrologic interrelation with the surface waters of the 
Nueces, San Antonio, and Guadalupe River Basins. After thorough examination and 
consideration of all available studies, reports, and information, the commission 
concludes that the Southern, or Balcones Fault Zone, portion of the Edwards 
Aquifer exhibits all of the characteristics of an underground river. 
 Defined and Known Boundaries: The Edwards and Associated Limestones (Balcones 
Fault Zone) aquifer occurs as a narrow, arcuate band, 5-40 miles wide, which 
stretches 175 miles from a hydro-geologic division near Brackettville in Kinney 
County eastward through San Antonio and then northward through San Marcos to a 
hydrogeologic divide near the City of Kyle in Hays County. This hydrogeologic 
divide, which serves as the northern-most boundary of the San Antonio segment of 
the aquifer, coincides approximately with the divide between the Colorado and 
Guadalupe River Basins. The aquifer occurs in the Balcones Fault Zone, which 
follows the same general east to northeast trend. The Edwards Aquifer is 
underlain by the relatively impermeable Upper Member of the Glen Rose Formation 
which serves as an aquitard. The aquifer dips to the south and southeast and 
occurs under artesian conditions where it is confined by the overlying Del Rio 
Clay. The aquifer is bounded to the north and northwest by the updip limit of 
its outcrop at the surface, which is its recharge zone. It is bounded to the 
south and southeast by the downdip limit of fresh water defined as 1,000 
milligrams per liter of dissolved solids, known as the "bad water line." 
 The Edwards Aquifer in this area possesses known and defined boundaries and the 
water in the aquifer is contained within a well defined subterranean zone with 
confinement above and below by aquitards and confined laterally by hydrologic 
barriers. The fact that the Edwards Aquifer has many channels through which 
water flows is analogous to braided surface streams and delta areas. 
 Water Source: The Edwards Aquifer receives inflow primarily from state water 
flowing in surface streams which cross the outcrop of the aquifer (i.e., its 
recharge zone) and lose a portion of their flow to the permeable rocks of the 
aquifer that are exposed at the surface. Approximately 80% of the aquifer's 
recharge is from these surface stream losses. Approximately 5.0-6.0% of the 
recharge is from the deeper Glen Rose aquifer. The remainder of the recharge is 
from percolation and recharge to solution cavities in the interstream areas. 
 Current and Direction of Flow: The hydrogeologic characteristics of the Edwards 
Aquifer makes this water resource unique in the State of Texas. Through its 
"recharge zone," the Edwards Aquifer captures and diverts flows of major surface 
streams in the upper portions of the Nueces and San Antonio River Basins. These 
surface streams provide approximately 80% of the "recharge" to the aquifer. 
Water "recharging" the aquifer continues to flow downgradient, generally moving 
west to east to northeast, through the confined and known boundaries of the 
aquifer, eventually erupting at several springs. 
 Destination: Water flowing through the aquifer once again flows in surface 
streams by emerging at several springs, including the Leona River Springs near 
Uvalde, San Antonio and San Pedro Springs in San Antonio, Comal Springs in New 
Braunfels, Hueco Springs in the Guadalupe River near New Braunfels, and San 
Marcos Springs in San Marcos. Water from these springs continues to flow in the 
Nueces, San Antonio, and Guadalupe River Basins and contribute to freshwater 
inflows for bays and estuaries along the Gulf of Mexico. 
 Aquatic Habitat: The Edwards Aquifer supports unique fish and other aquatic 
species and their habitat, both within the aquifer in the subsurface and through 
year-round discharge to the major natural springs. Records of the Guadalupe 
River drainage indicates the presence of 75 different species of fish occurring 
in the river basin. While there are many unique species found in the basin, 
three of the more prominent include the San Marcos gambusia, Fountain darter, 
and the Guadalupe bass. Approximately 40 species of aquatic plants have been 
reported to be found in the basin, including the endemic species Texas wild 
rice. The aquifer itself provides habitat for several rare and endangered 
species of blind salamanders and two species of blind catfish. Blind catfish 
have been reported in the aquifer as deep as 2,000 feet below the land surface. 
 Utility: The Edwards Aquifer is also "of sufficient magnitude and volume to be 
serviceable to the persons through or along whose land it flows." The Edwards 
Aquifer is of great economic importance both to the region that relies upon it 
and to the State of Texas. The Edwards Aquifer is the sole source of water 
supply for approximately 1.5 million citizens in the San Antonio region and 
supports a diverse regional economy that provides employment for approximately 
700,000 to 800,000 Texans. The Edwards Underground River also supports 
approximately 90,000 irrigated acres and the related agricultural economy. 
Additionally, the Edwards Aquifer is important to the economies of the 
communities at and downstream of several springs fed by the aquifer. These 
springs include the state's two largest natural springs at New Braunfels and San 
Marcos. These two springs sustain a significant tourist and recreational economy 
for these cities. 
 It is estimated that spring flow from Comal and San Marcos Springs alone 
provides 21 to 32% of the total annual flow, and up to 70% of the total flow 
during droughts, of the Guadalupe River at Victoria. Seventy to eighty thousand 
jobs exist in those counties that are supplied with water from the Guadalupe 
River below these springs. The economies of Hays and Comal Counties and the 
counties downstream of the springs are clearly dependent on the Edwards Aquifer. 
 Continuity: An implicit criteria for a water course is continuity. Hutchins, 
Selected Problems in the Law of Water Rights in the West, (1942) page 17. The 
Edwards Aquifer provides a continuity of flow of water between streams feed it 
and the water flows into surface streams. The essential feature is continuity of 
flow of water and not changes in character of the channel while the water is 
being conveyed underground. An analogy to a surface stream would be a swampy 
place in a stream, or where a stream enters a meadow in one channel and leaves 
it in another, there being no definite channel across the meadow. Nor is 
continuity broken by changes in the character of the channels which do not 
permanently interrupt the flow of water. 
 The commission has the authority to determine that the Southern Edwards Aquifer 
is an underground river and is, thus, state water subject to commission 
regulation. In the day-to-day exercise of its statutory powers and duties 
concerning state water, the commission must determine what waters are state 
waters. The legislature has granted the commission that power. The Texas Water 
Code, sec.5.102(a). This authority has been previously exercised and upheld by 
the Texas Supreme Court. In re The Adjudication of Water Rights of the Lower 
Guadalupe River Segment, 730 S.W. 2d 64 (Tex. App.-Corpus Christi 1987), writ 
ref'd, n.r.e., per curiam , 749 S.W. 2d 771 (Tex. 1988). In this case, the owner 
of the bed of a lake asserted that its waters were diffuse surface waters, 
which, like percolating groundwater, are the property of the landowner. The 
commission determined that the waters were state waters as defined by the Texas 
Water Code, sec.11.021, just as the commission has determined that waters of the 
Edwards Aquifer are state waters. TWC's determination was upheld by the Texas 
Supreme Court. 
 The legislature has not excepted the Edwards Aquifer from its general grant of 
power to the commission to determine what water are state waters. Nor has the 
state granted any title or right of use for the use of state water in the 
Edwards Aquifer. In some enactments relating to the Edwards Aquifer, the 
legislature may have assumed that it contained percolating groundwater, but it 
neither made a determination that it was such nor denied authority to the 
commission to determine its character. 
 Nothing contained in the Texas Water Code, sec.11.023(d) is inconsistent with 
the finding of the Edwards Aquifer as an underground stream. This provision 
states that water sinking into the ground to recharge the Edwards Aquifer is 
"considered" percolating groundwater. This percolating groundwater is much like 
diffused surface flow before it enters a stream. The commission believes that 
once percolating groundwater enters a surface or underground stream, however, 
the water becomes state-owned water. This position is supported by court 
decisions contained in  Hoefs v. Short, 273 S.W. 785 (Tex. 1925, and In re 
Adjudication of Water Rights of Lower Guadalupe River Segment, 730 S.W.2d 64 
(Civ. App. 1987) ref. n.r.e. reh. den'd. 
 The enabling acts of the Edwards Underground Water District and the Medina 
County Underground Water District may contain the presumption that the Edwards 
Aquifer is "groundwater," but the acts do not make a specific legislative 
finding that the Edwards Aquifer is privately owned groundwater, rather than 
state-owned groundwater. Additionally, such presumption is rebuttable and not 
controlling upon a determination by TWC that the Edwards Aquifer legally 
constitutes state-owned water. Within the Medina County district, there exists 
subsurface water other than the Edwards Underground River which the district may 
regulate. Also, the powers granted to the Edwards Underground Water District are 
not the same and are not in irreconcilable conflict with those provided to TWC. 
 No order or decision of TWC, its predecessor agencies, or of the courts have 
ever specifically addressed the issue of whether the Edwards Aquifer legally 
constitutes "groundwater" or an underground stream. In discussion of the Edwards 
Aquifer in these orders and decisions, the presumption, but not the 
determination, has been that the Edwards Aquifer is "groundwater." Such 
presumption is rebuttable and presumptions contained in dicta  are not 
controlling or binding upon TWC. Additionally, nothing prevents TWC from 
repealing or amending any of its previous orders based upon new information. 
 Finally, although a few claims filed under the Adjudication Act discuss the use 
of the Edwards Aquifer, none make claim to its use as state water as state water 
under the Adjudication Act. Therefore, it remains the opinion of TWC that no 
claims to the use of the Edwards Aquifer were ever filed. 
 The Texas Water Code, Chapter 11. The Water Rights Adjudication Act (the Act), 
Texas Water Code, Chapter 11, Subchapter G, provides, in part, that a person 
claiming a right to use state water must have filed with a sworn claim or 
certified filing evidencing such use not later than September 1, 1969. The Act 
does not apply to certain domestic and livestock use. To be recognized, a claim 
had to be based on actual beneficial use for the period from 1963 to 1967. The 
use period was extended to 1970 for projects under construction at the time the 
Act was passed. Failure to file the required sworn statement "extinguishes and 
bars any claim of water rights." 
 Any remaining state water not appropriated under the Act is available for 
appropriation with certain limitations through a permitting process administered 
by the commission pursuant to the Texas Water Code, Chapter 11, Subchapter D. 
Such limitations include, but are not limited to, restrictions on the diversion 
and use of water for the protection of water rights, water quality, aquatic and 
wildlife habitat, instream uses, and bays and estuaries. Additionally, a water 
right is limited to that amount which can be beneficially used without waste for 
the authorized purpose but not to exceed the amount authorized. 
 Based upon the erroneous presumption that water contained in the Edwards 
Aquifer is percolating groundwater and, thus, private water, no known claims for 
the use of state water from the Edwards Aquifer were filed under the Act. 
Consequently, no right to use state water from the Edwards Aquifer has been 
adjudicated. Since the Edwards Underground River is state water, the right to 
use water in the underground river is subject to appropriation by permit issued 
by the commission, except for exempt domestic and livestock purposes, in 
accordance with the Texas Water Code, sec.sec.11.121 et seq. The commission may 
reserve from appropriation all or a portion of the water rights vested in the 
state to satisfy the state's obligation to protect water quality, the public 
health, safety, and welfare, aquatic and wildlife habitat, instream uses, bays 
and estuaries, and any other public purpose. 
 Some commenters have stated that it is unclear whether the Act applies to 
underground streams as well as to surface streams. This is a judicial issue and 
has not been decided. If the Act is construed as applicable to underground 
streams, claims to such waters are now barred by the terms of the Act. If, 
however, the Act is construed as not applicable to underground streams, the Act 
would not be a bar to assertion in court of non-statutory rights such as 
riparian rights. The commission expresses no opinion as to the validity of such 
claims. 
 Since water in the Edwards Aquifer is state water, commission regulation of the 
use of the Edwards Aquifer is not an unconstitutional taking of private water. 
Because waters of the Edwards Aquifer would be unappropriated state waters, 
constitutional provisions relating to the taking of private water would not 
apply. Texas Constitution Article XVI, sec.59; See, also, In re Adjudication of 
Water Rights of the Upper Guadalupe Segment, 642 S.W.2d 438 (Tex. 1982). 
 The commission is not authorized to recognize any equitable rights to the use 
of state water based upon the erroneous presumption of percolating groundwater 
and historical use. The failure to previously assert state ownership of the 
Edwards Aquifer does not grant any right to historical user of the Edwards 
Aquifer since the doctrine of laches does not apply to the state and a person 
may not adversely possess state property. 
 The commission's determination that the Southern Edwards Aquifer is an 
underground river does not impair property rights in violation of the United 
States Constitution or the Texas Constitution. This determination merely brings 
the Edwards Aquifer within the commission's jurisdiction. The conflict between 
the assumption by overlying landowners that the water beneath their lands was 
percolating and the commission's determination otherwise does not render the 
commission's action unconstitutional. Regulations based upon this determination 
could, of course, restrict withdrawal of water from beneath one's land. The same 
would be true of regulations of percolating groundwater such as those authorized 
by the legislature for underground water conservation districts pursuant to the 
Texas Water Code, Chapter 52. 
 There is no basis for belief by landowners that the rule of capture for 
percolating groundwater makes them immune to reasonable, non-discriminatory and 
non-confiscatory regulation in the public interest. The rules contained in this 
chapter would satisfy constitutional requirements governing regulation of 
percolating groundwater. Existing historical uses of the Edwards Aquifer are 
recognized. These rules also benefit landowners by protecting the aquifer from 
the deleterious of overdrafting. 
 The Texas Water Code, Chapter 26. In addition to the authority contained in the 
Texas Water Code, Chapter 11, the Texas Water Code, Chapter 26 authorizes the 
commission to issue orders, make and enforce rules, and do all other necessary 
things for the protection of the water quality of all water above and below the 
surface of the land. Rules promulgated pursuant to this chapter may provide for 
the restriction of pumpage for this purpose. Water quality rules requiring 
pollution abatement plans for any development over the aquifer to protect 
recharge features already exist under Chapter 313 of the rules of the 
commission. The regulation of the use of water from the Edwards Aquifer to 
protect water quality in accordance with the Texas Water Code, Chapter 26, is a 
valid exercise of the "police powers" of the state necessary to protect the 
public health, safety, and welfare. 
 Enabling Act: Edwards Underground Water District. Section 3 of the Edwards 
Underground Water District's enabling act, Texas Civil Statutes, Article 8280-
219 (Texas Auxiliary Water Laws 1992), provides that the district must develop, 
implement, and enforce a drought management plan "in order to minimize, as far 
as practicable, the drawdown of the water table or the reduction of artesian 
pressure and spring flow; to prevent waste; and to protect the groundwater 
resource from serious harm." The legislation requires the plan to contain 
objective standards for determining when drought conditions exist, specific 
drought management activities for the stages of drought, and requirements for 
reducing water use "in accordance with established priorities, which must 
include uses for essential human needs, agriculture, industrial, power, 
recreational, commercial, and other categories of use." If the district fails to 
timely adopt a plan in accordance with the statute, TWC is authorized to develop 
and implement a plan. 
 The Act also provides that a person can appeal the reasonableness and validity 
of a rule under the district's plan to the Texas Water Commission. Pursuant to 
TWC procedural rules contained in 31 TAC sec.sec.275.91 et seq relating to such 
appeals, the definition of "person" with a right to appeal includes the TWC 
executive director and public interest counsel. One may argue that fatal 
weaknesses exist in the district's present plan and rules, including: triggering 
conditions tied to both aquifer level and rainfall; the absence of water 
conservation requirements; the unequal application of the rules; the inadequacy 
of the rules to achieve the statutory goals; and the irreconcilable conflict 
with federal laws for the protection of endangered species. All such weaknesses 
are designated grounds for appeal under commission rules. 
 The preamble for the adoption of these rules further provides that nothing in 
the rules shall be construed as a determination by the commission that the 
district did timely develop a drought management plan that adequately meets all 
statutory requirements and, thus, constitutes a regional plan as contemplated by  
sec.3 of the enabling Act. Because of the de-annexation of Medina and Uvalde 
Counties from the district, the district's plan does not apply to all necessary 
portions of the aquifer and, therefore, cannot constitute a plan as contemplated 
by the enabling Act even if amended to address its many weaknesses. 
 The Texas Water Code, sec.11.202. Finally, the Texas Legislature recently 
amended the Texas Water Code, sec.11.202, to provide a moratorium on the 
drilling of any new artesian well producing 5,000 gallons per minute or more in 
the southern portion of the Edwards Aquifer unless authorized by TWC. Such 
authorization may be granted by the commission if the applicant can demonstrate 
that only a beneficial use of the water will be made and no waste will occur. 
The commission is authorized to delegate this regulatory power to a local 
district. 
 This prohibition does not apply to wells which were drilled and producing water 
prior to September 1, 1991. Additionally, the statute does not apply to wells 
drilled after December 31, 1993. 
 Comments Regarding Specific Rules. With respect to sec.298.1 of the proposed 
rules, one commenter stated that there is no specific reference to, or provision 
for, protection of endangered species, which is the major issue involved in the 
pending federal endangered species lawsuit in Midland. The commenter suggested 
that the commission should make the protection of endangered species a specific 
objective of the proposed rules. The commission disagrees in part with this 
comment. The commission's primary objective in the promulgation of these rules 
is to implement a water management plan that considers all demands on the 
aquifer; not just those that have led to lawsuits under the federal Endangered 
Species Act. In response to the comment, the proposed section is amended to 
provide clarification of the commission's goals and policies to be achieved 
through the management of the Southern, or Balcones Fault Zone, portion of the 
Edwards Aquifer. Those purposes include: the achievement of water conservation; 
the maximization of the beneficial use of water available for diversion from the 
underground river; protection of the water quality of the Edwards Underground 
River and related surface streams; the protection of the public health, safety, 
and welfare; the protection of aquatic and wildlife habitat; and to provide for 
instream uses and bays and estuaries in accordance with the Texas Water Code, 
Chapters 11 and 26 and other applicable laws. 
 The commission's response to comments in opposition to the finding of the 
Southern, or Balcones Fault Zone, portion of the Edwards Aquifer as an 
underground river and, thus, state water subject to commission regulation, as 
contained in sec.298.2 of the rules, is provided previously under. General 
Commentary Underground River Determination." Minor changes to the proposed rules 
seek to clarify the commission's position as to the applicability of the rules 
to the Southern Edwards Aquifer. 
 With respect to proposed sec.298.2 of the rules, several commenters stated that 
regulation of the Edwards Aquifer as state water under the Texas Water Code, 
Chapter 11, through water rights permits dated 1992, would cause significant 
uncertainty for all users of the aquifer. Specifically, under the doctrine of 
first in time, first in right, all water rights issued pursuant to the 
commission's proposed rules would be subordinate to existing water right permits 
to divert water from rivers below the springs of the Edwards Aquifer. The 
commission intends to manage the Edwards Underground River water rights so that 
they are not subordinate or superior to any downstream water rights. 
 In response to requests for clarification as to the applicability of rules to 
the southern portion of the Edwards Aquifer, the commission amends proposed 
sec.298.4 to provide that these rules shall not be applied to any other aquifer 
in the State of Texas. 
 With regard to proposed sec.298.5 relating to the boundaries of the Edwards 
Underground River, several commenters stated that the boundaries are not fixed, 
due to the movement of the bad water line. In response, the commission states 
that, much like a surface stream, the Edwards Underground River itself moves 
within the boundaries of its "banks," i.e., the boundaries provided by 
commission orders. 
 Several comments relating to proposed sec.298.7, providing definitions for 
terms used in this chapter, stated that the exact language in definitions for 
these terms contained in Chapter 297 of the commission's rules applicable to the 
diversion and use of surface water, should also apply to the use of water in the 
Edwards Underground River. The commission agrees that generally, those existing 
rules of the commission that apply to the diversion and use of state water from 
surface streams are applicable to the diversion and use of state water from the 
Edwards Underground River, except where necessary to reflect the unique nature 
of the subsurface source of the water. Changes to the definitions of the terms 
"beneficial use," "conservation," "domestic use," "municipal use," and 
"industrial use" represent current agency usage of these terms and do not 
constitute a substantive change in the meaning of these terms or how they are 
applied by the commission. 
 Comments were received stating that the definition of per capita use failed to 
make clear that the total actual population served was a factor. The commission 
agrees that such clarification is needed and amends the definition accordingly. 
 With respect to sec.298.11 of the proposed rules, providing for the requirement 
of a permit to the use of diversion of state water contained in the Edwards 
Underground River, several comments were received regarding the impracticability 
of the requirement that applications by an existing user of the Edwards 
Underground River submit the application on or before September 1, 1992. The 
commission agrees with these comments and amends proposed sec.298.11 to provide 
for a deadline of November 1, 1992, for the submission of this document. 
 Accordingly, the commission further amends sec.298.11 to provide that each 
application by an existing user received by the commission on or before November 
1, 1992 shall be deemed to be accepted for filing on November 1, 1992, for 
purposes of time priority, if by that date, the application is postmarked or 
actually received by the commission on or before November 1, 1992, and the 
application maps and other submitted materials are in substantial compliance 
with requirements of this chapter. The commission further amends this section to 
provide that for purposes of this section, a declaration of historical use 
provided by sec.298.14 of this chapter, shall constitute an application for a 
permit to divert and use water from the Edwards Underground River. 
 Additionally, in order to avoid any unnecessary time or expense on the part of 
the applicant, should the legislature enact legislation providing for the 
management of the Edwards Underground River by an entity other than the Texas 
Water Commission, this section is further amended to provide that applications 
shall be deemed acceptable for filing without containing a water conservation 
plan if such plan and all necessary application fees are subsequently submitted 
on or before June 1, 1993. This delay is to provide the legislature adequate 
time to enact such legislation. 
 Finally, provisions contained in proposed sec.298.11 providing that permits may 
contain such limitations as necessary to achieve conservation, prevent waste, 
and to maintain or protect adequate spring flows in the Comal and San Marcos 
Springs, the protection of water quality, the protection of health, safety, and 
welfare, aquatic and wildlife habitat, instream uses, and bays and estuaries, 
have been deleted as redundant of sec.sec.298.16, 298.17, 298.40, 298. 41, and 
298.52 of the rules. 
 With respect to proposed sec.298.11, one commenter suggested that rules should 
specify that the time priority of appropriation applies only between users of 
the Edwards Underground River and not between underground river users and water 
right holders on surface rivers below springs of the Edwards Underground River. 
Furthermore, the commenter recommended that rules should specify that permits 
for existing users shall be granted in perpetuity up to the amount of water 
which the commission has determined to be available for appropriation. Finally, 
this commenter recommended that permits granted by the commission under these 
rules should not be subject to any curtailment. It is the intent of the 
commission to administer the water rights from the Edwards Underground River so 
that they are neither superior nor subordinate to water rights to surface 
streams. Generally, water rights to the Edwards Underground River shall be 
issued without term, subject to limitation, cancellation, and forfeiture 
pursuant to the Texas Water Code, Chapter 11, Subchapter E, sec.sec.11. 171 et 
seq, and other applicable law and subject to curtailment to meet use reduction 
goals established by this chapter. 
 With respect to proposed sec.298.12 of the rules, providing a permit exemption 
for certain domestic and livestock uses, several commenters recommended that a 
provision be added requiring that such a well exempted from permitting be 
required to register with the commission to ensure compliance with sec.298.12 
and to provide the commission with necessary information for the development and 
implementation of a management plan. The commission agrees with these comments 
and has amended proposed sec.298.12 by adding subsection (d) providing that a 
person owning a well and claiming exemption for such well under sec.298.12 must 
register with the commission the ownership, location, depth, size, diameter, and 
maximum pumpage capacity in gallons per minute of the well. Subsection (d) also 
provides that such registration must be submitted to the commission on or before 
September 1, 1993, or 30 days after completion of the well, whichever is later. 
Finally, the subsection provides that changes in any information contained in 
the registration must be filed with the commission not later than 30 days after 
the change. 
 In regard to proposed sec.298.12, one commenter stated that the exemption for 
domestic and livestock use should be limited to wells that will not produce more 
than 25,000 gallons of water per day. The commission disagrees with this 
comment. This limitation is inapplicable to permit exemptions provided for the 
use of state water pursuant to the Texas Water Code, sec.11. 142. Rather, the 
requested limitation is applicable to permit exemption for the use of 
groundwater pursuant to the Texas Water Code, Chapter 52, relating to 
underground water conservation districts. 
 With respect to sec.298.13 of the proposed rules, one commenter suggested that, 
in some cases, wells that were under construction or recently completed as of 
April 15, 1992, investment decisions to build these projects were made under 
presumption that water contained in the Edwards Aquifer was privately-owned 
ground water. These commenters further provided that these projects probably 
would not have been constructed had the commission's emergency rules and 
proposed permit rules been in existence at the time the decisions were made. 
This commenter requests that wells under construction prior to April 15, 1992, 
be allowed to be completed and, furthermore, be allowed to be operated under 
interim authorization for a three-year period under which to establish 
historical actual use of the well. This commenter further provided that this is 
consistent with the treatment of diversion works under construction in the Water 
Rights Adjudication Act provided in the Texas Water Code, sec.11.303. The 
commission disagrees with the proposed revisions. The prohibition on new wells 
is to prevent speculative drilling. The rules provide that new wells may be 
constructed if they are replacement or backup wells. Additionally, a person may 
realize his investment in the commencement of a new well through the transfer of 
a water right to the new well. 
 With respect to proposed sec.298.14 of the rules, one commenter stated that 
information required to be provided in the declaration of historical use is 
already submitted with the submission of well log by the driller of the well, 
pursuant to the rules of the Texas Water Well Drillers Board. The commission 
respectfully disagrees with the comment. Well logs required to be filed with the 
commission pursuant to the rules of the Texas Water Well Drillers Board do not 
require, for example, the date of first withdrawal and beneficial use of water 
from the well. 
 Additionally, the logs do not provide the volume of water diverted by each well 
during each calendar year since January 1, 1982, nor do the logs contain other 
information relating to the use of the water and the location of such use. 
Finally, the commission believes that the requirement of the declaration of 
historical use should be that of the owner of the well and should not be placed 
upon the driller of the well. 
 Changes by the commission to proposed sec.298.14 seek to eliminate any 
redundancy in the filing of a separate application for permit for a well from an 
existing user by providing that a declaration of historical use shall constitute 
an application for a permit if a water conservation plan and application fees 
are subsequently and timely submitted in accordance with rules of this chapter. 
Amendments to the proposed rule also provide that failure to timely file a 
declaration of historical use or water conservation plan and fees in accordance 
with the chapter shall result in the immediate termination of the interim 
authorization granted by sec.298.13 of the chapter. 
 Finally, changes to proposed sec.298.14 provide that a person whose interim 
authorization has been terminated pursuant to this section, must submit an 
application for a new use pursuant to sec.298.11(d) and have such application 
approved by the commission before the person is authorized again to divert and 
use water from the Edwards Underground River. 
 The commission also amends proposed subsection (b) of sec.298.14 to provide 
that each declaration of historical use shall include all supporting 
documentation to the information contained in the declaration of historical use. 
Proposed sec.298.14 is also amended to provide that the declaration of 
historical use may contain information relevant to all wells owned by the 
declarant. 
 One commenter stated that the requirement contained in  sec.298.14 providing 
the latitude and longitude of the well was unnecessary for the purposes of the 
declaration of historical use. The commission agrees with this comment and has 
amended the section to provide that the location of the well shall be described 
by the distance and direction from the nearest survey corner. 
 The commenter further stated that the requirement contained in proposed 
sec.298.14 providing that statements contained in the declaration of historical 
use be based on personal knowledge of the person making the sworn statement may 
be, in several instances, difficult, if not impossible, to obtain. The 
commission agrees with this comment and has amended this section to provide that 
statements contained in the declaration of historical use may be based on the 
personal knowledge of the person making the sworn statement or the best and most 
complete available records in the custody of the declarant and that such 
statements are true and correct to the best of that person's knowledge or 
recollection. 
 With respect to proposed rules contained in sec.298.7 and sec.298.14, relating 
to the definition of authorized well and interim authorization, respectively, 
several commenters stated that wells that were under construction on April 15, 
1992, should be considered authorized wells. The reason for this recommendation 
is that the investment decisions to build such wells had been made prior to 
April 15, 1992, under the erroneous presumption that water contained in the 
Edwards Underground River was privately owned percolating ground water. The 
commission respectfully disagrees with this comment. The limitation on new wells 
is necessary to prevent speculative usage and provide the commission an 
opportunity to evaluate existing claims against the amount of water available 
for diversion. Persons who have invested in the construction of new wells may 
realize their investment through the purchase or transfer of existing water 
rights. 
 The commission received several comments with respect to proposed sec.298.15, 
providing that a water conservation plan be submitted with an application for 
permit to use and divert water from the Edwards Underground River. Many of the 
comments stated that the development of the water conservation plan constituted 
a substantial expenditure in time, money, and resources on the part of the 
applicant. 
 The requirement that a water conservation plan be submitted by a water right 
applicant is provided by the Texas Water Code, sec.11.127. The rule provides 
that the same requirements made of applicants for the use of surface water apply 
to applicants for the use of water from the Edwards Underground River. 
 With regard to proposed sec.298.15 providing for the requirement of a water 
conservation plan, one commenter stated that the plans for existing users should 
not be required when permit applications are filed because of the time and 
expense required to evaluate conservation and reuse potential and prepare plans 
in accordance with the requirements of commission rules. This commenter 
recommended that six months following the deadline for filing permit application 
by existing users would be a reasonable deadline for filing a conservation plan. 
The proposed rule has been amended to allow for the delayed submission of an 
applicant's water conservation plan until June 1, 1993. 
 One comment regarding proposed sec.298.15 provided that the conservation plan 
should not require a permit applicant to submit information regarding 
alternative sources of water supply to the Edwards Aquifer. The commission 
agrees and has made this a requirement of the water management plan that must be 
submitted by persons authorized to use more than 1,500 acre-feet per year. 
 With regard to proposed sec.298.16, several comments were submitted 
recommending that the rule should provide more specific criteria for the 
commission to follow in acting on a permit application. The commission agrees 
with this comment and has amended this section. The rules provide that a water 
right may be issued for an amount of water equal to the maximum amount 
beneficially used without waste in any single calendar year between January 1, 
1982-April 15, 1992, but not less than the average annual amount of water 
actually and beneficially used without waste over the same period. 
 Other comments submitted in relation to proposed sec.298.16 stated that the 
mandatory per capita water use goal of 120 gallons per capita per day may be 
unreasonable since it does not take into consideration the applicant's unique 
circumstances and patterns of water use. The commission is in general agreement 
with this comment and has deleted this requirement. 
 One commenter stated that the rules contained in proposed sec.298.16 would 
allow the commission to impose any water conservation measure as a condition of 
a permit. This commenter recommended that the commission should approve an 
applicant's conservation plan unless it finds that the plan does not demonstrate 
that reasonable diligence will be used to avoid waste and achieve water 
conservation. This commenter further added that this is the standard applied to 
other permittees pursuant to commission rules relating to surface water use and 
contained in Chapter 295 relating to the use of surface water. The commission 
respectfully disagrees with this comment. Provisions contained in the Texas 
Water Code, sec.11.1271, specifically provide that the commission may require 
the formulation and submission of a water conservation plan and the adoption of 
reasonable water conservation measures. Pursuant to this section, the commission 
currently requires, pursuant to permit condition, the implementation of water 
conservation measures. No rule of the commission or statute contained in the 
Texas Water Code limits the commission's review and approval of the water 
conservation plan as suggested by the commenter. 
 With respect to the minimum irrigation system performance standards provided by 
proposed sec.298.16, several commenters stated that the percentage efficiency 
requirements for certain irrigation systems were unsubstantiated and were 
unworkable and should be replaced with a water duty of, for example, two acre-
feet per acre. The commission disagrees with this comment but has amended the 
rule to provide for a case-by-case analysis of water systems and use. 
 With respect to proposed sec.298.23, relating to an application by a city or a 
town to acquire the use of water from another water right holder without 
compensation pursuant to the Wagstaff Act, one commenter stated that this rule 
proposes to modify and limit a city's power under the Act. Furthermore, the 
commenter stated that this provision does not apply to any city in Texas outside 
the Edwards Aquifer region. The commenter recommended that in order to ensure 
that the cities over the Edwards Aquifer are treated similarly to all other 
cities in the state, this provision should be deleted. The commission disagrees 
with the comment. This statutory provision currently applies statewide and this 
rule does not exclude its applicability to areas outside the area over the 
Edwards Underground River. 
 A comment was received requesting a definition for non-essential uses as 
provided in proposed sec.298.23. The commission agrees with this request and has 
provided in sec.298.23 that the term means aesthetic or recreational use or 
water such as pools, spas, ornamental fountains, landscaping, residential lawns, 
ornamental trees and shrubs, artificial or augmented waterways, water gardens 
and parks, automobile and machinery washing, or municipal uses not necessary for 
the protection of the public health, safety, and welfare. 
 With respect to proposed sec.298.31, requiring a water use measurement device 
to be put on every well with the exception of domestic and livestock wells, 
several commenters recommended that water use measurement requirements should 
apply to all wells to ensure compliance with all provisions contained in this 
chapter. In response, the commission states that the small use by these wells 
may be adequately monitored by examining the purpose and location of use. 
 Comments regarding sec.298.32 included a recommendation that reports be filed 
by all well owners and not just owners of permitted wells. In response to these 
comments, the commission would note that the commission is not authorized to 
require such water use reports from exempt domestic and livestock users pursuant 
to the Texas Water Code, sec.11.031 and sec.11.207. 
 With respect to provisions contained in proposed sec.298.42 and sec.298.51, one 
commenter recommended that water rights granted by the commission should not be 
subject to curtailment. The commission respectfully disagrees with this comment. 
Any authorization to divert and usestate water is a right of use and actual 
ownership of the water remains with the state held in trust for the public 
benefit. Pursuant to its authority to administer water rights, the commission 
may reserve from appropriation state water necessary to protect water quality, 
aquatic and wildlife habitat, instream uses, bays and estuaries, and other 
public purposes. 
 With respect to proposed sec.298.42, the commission rule providing for the 
limitation of diversions to protect water quality, public health, safety, and 
welfare, aquatic and wildlife habitat, instream uses, bays and estuaries, and 
public purposes, several commenters provided that more clarification is needed 
in these rules as to the necessary limitations on the overall diversion from the 
aquifer to achieve these purposes. The commission agrees with this comment and 
amends proposed sec.298.42 to provide that, except as provided by sec.298.51, 
concerning emergency limitations, for the period ending December 31, 2007, the 
total authorized amount of direct diversions from the Edwards Underground River 
shall not exceed 450,000 acre-feet of water per year. This section has been 
further amended to provide that, except as provided by sec.298.51, for the 
period beginning January 1, 2008, the total authorized amount of direct 
diversions from the Edwards Underground River shall not exceed 400,000 acre-feet 
of water per year. Finally, this section is amended to provide that when the 
level of the Edwards Underground River is equal to or greater than 665 above 
mean sea level as measured at the J-17 index well, the commission may authorize 
the direct diversion on an interruptible basis of additional amounts above the 
limitation contained in subsections (b) and (c) of this section, but not to 
initially exceed 88,000 acre-feet per year. 
 Furthermore, in response to this comment, proposed sec.298.51 is amended to 
provide that in order to protect spring flows from the Comal and San Marcos 
Springs during a drought, so that aquatic and wildlife habitat may be protected 
in accordance with applicable law, the total authorized amount of water which 
may be directly diverted from the Edwards Underground River may at any time be 
limited to no more than 350,000 acre-feet if the Edwards Underground River 
dropped to a level of 625 feet above mean sea level as measured at the J-17 
index well. This section further provides that such reduction shall be achieved 
by the temporary curtailment of uses non-essential for the protection of the 
public health, safety, and welfare, including, but not limited to, recreational 
and aesthetic uses through the implementation of permittee's drought management 
plans and/or the purchase or lease of other's water rights to divert water from 
the Edwards Underground River. The commission further amends proposed sec.298.51 
to provide that the executive director shall notify the Texas Parks and Wildlife 
Department and the United States Fish and Wildlife Service immediately upon the 
implementation of the emergency section, and shall consult with these agencies 
in determining any recommendations to the commission concerning actions taken in 
response to the emergency. 
 Several commenters stated that in order to protect federally listed threatened 
and endangered species in the aquifer at and near Comal and San Marcos Springs 
during a repeat of the worst drought of record during the 1950s, total 
diversions from the Southern Edwards Aquifer should not exceed approximately 
200,000 acre feet a year or that the aquifer level could not drop below 632 feet 
above mean sea level as measured at the J-17 index well and corresponding to the 
highest elevation of springs of Comal Springs. The commission has extensively 
studied meteorological records and determined that the drought of the 1950s was 
a catastrophic event with a 200-500 year anticipated frequency. The commission 
believes that these rules provide adequate protection for aquatic and wildlife 
habitat. Subject to public notice and comment, the commission may consider 
modification of the pumpage limitation as additional hydrologic and other 
studies are performed and evaluated and will develop water management strategies 
that will provide additional protection for aquatic and wildlife habatat, if 
necessary. 
 With respect to proposed sec.298.42 and sec.298.51, one commenter stated that 
limitations on the use of the Edwards Aquifer should not be imposed until 
comprehensive studies have been performed determining the feasibility of 
artificially augmenting streamflow in order to protect endangered species. 
Various individuals and groups have suggested that minimum flows at Comal and 
San Marcos Springs could be guaranteed by means other than reducing water 
withdrawals from the Edwards Aquifer. 
 One suggestion would involve moving water from one point in the Aquifer to 
another to protect endangered species, then maintain adequate flows for 
downstream uses. If feasible, this would enable the Aquifer to be overdrafted 
during periods of low recharge, thereby increasing the average yield of the 
aquifer. Another idea would involve pumping water from the Uvalde Pool to the 
San Antonio Pool in order to maintain hydrostatic pressure and enhance natural 
springflow. 
 Serious questions have been raised regarding the feasibility of augmenting or 
enhancing natural springflow by artificial means. The principal concern is that 
artificial augmentation, while protecting downstream water users, may not 
protect the habitat of endangered species in and near the springs and could 
potentially damage their habitat. Additionally, if the source for augmentation 
is the Edwards Underground River itself, augmentation may result in the 
impairment of users to economically withdraw water from the Edwards Underground 
River by the lowering of the aquifer level. Another concern is that a policy of 
overdrafting the Edwards Aquifer could lead to significant deterioration of 
water quality due to intrusion of poor quality ground water along the bad water 
line. Given the potential benefits and risks of spring flow augmentation and 
enhancement, the commission believes any such option should be fully studied and 
evaluated on an expedited basis. The commission supports the current studies 
being sponsored by the Texas Water Development Board regarding the feasibility 
of such springflow augmentation. The conduct and results of such studies should 
be held to rigorous standards of scientific peer review to insure credibility 
and validity. Environmental organizations should also be provided the 
opportunity to participate in these studies. 
 With respect to proposed sec.298.61, relating to the delegation of 
responsibility, one comment provided that delegation of the commission's 
responsibilities should be allowed only in the event that a regional entity with 
jurisdiction over the entire Edwards Aquifer region is created. The commission 
agrees with this comment and clarifies language contained in proposed sec.298.61 
by providing that upon request by water district authority or other political 
subdivisions of the state having all necessary power, authority, and 
jurisdiction necessary to implement the water management plan as provided in 
this chapter, the commission may delegate to that political subdivision any of 
the commission's responsibilities under such chapter, except to the extent that 
the delegation is prohibited by law. 
 In response to the general comments that management of Edwards Aquifer should 
be done by a local entity or entities, the commission strongly believes that its 
involvement in the management of the Edwards Aquifer should be exercised only as 
a last resort. The commission is in agreement with many of the commenters that 
local management is best. The commission supports the creation of a single 
regional district that is provided sufficient authority to develop, implement, 
and enforce a comprehensive and coordinated regional water management plan which 
provides for the conjunctive management of the region's surface and ground 
water. 
 With respect to proposed sec.298.71, providing for the creation of the South 
Central Texas Water Resources Advisory Council, several comments were submitted 
relating to the membership of the Advisory Council and the scope of issues in 
which the council is to address. Because the information to be provided by the 
advisory council and the issues it is to address are to be studied by the Texas 
Water Development Board through the implementation of the Trans-Texas Program in 
order to assist the board in the development of the state water plan pursuant to 
the Texas Water Code, sec.16.051 and sec.16.055, the commission finds the 
activities of the South Central Texas Water Resources Advisory Council to be 
redundant of the program of the Texas Water Development Board. Therefore, 
Subchapter H providing for the creation of the Advisory Council will be 
withdrawn. 
 The new sections are adopted under the Texas Water Code,  sec.5.103 and sec.5. 
105, which provides TWC with the authority to adopt rules necessary to carry out 
its duties and responsibilities under the Texas Water Code and other state law. 
 
 
  sec.298.1. Purpose.  The purpose of this chapter is to provide for the 
determination and administration by the commission of the rights to divert and 
use state water from the Southern, or Balcones Fault Zone, portion of the 
Edwards Aquifer (Edwards Underground River) in order to : achieve water 
conservation; maximize the beneficial use of water available for diversion from 
the underground river; protect the water quality of the Edwards Underground 
River and related surface streams; protect the public health, safety, and 
welfare; protect aquatic and wildlife habitat; and provide for instream uses and 
bays and estuaries in accordance with the Texas Water Code, Chapters 11 and 26 
and other applicable state law and rules of the commission. 
 
   
  sec.298.2. Edwards Aquifer is State Water. 
 
  (a) The Southern, or Balcones Fault Zone, portion of the Edwards Aquifer 
(Edwards Underground River) is an underground stream and water contained therein 
is state water subject to commission regulation in accordance with the Texas 
Water Code, Chapter 11 and all other applicable law and rules of the commission 
relating to the commission's authority over water rights, including the issuance 
of water rights, water rights adjudication, cancellation of water rights, and 
the enforcement of water rights. 
   
  (b) No known claims of riparian water rights, claims under the Texas Water 
Code, sec.11.143, claims of water rights under the Irrigation Acts of 1889 and 
1895, or any other claims of water rights expressly seeking authorization for 
the diversion and use of state water from the Edwards Underground River were 
filed and adjudicated pursuant to the Water Rights Adjudication Act, the Texas 
Water Code, sec.sec.11.301 et seq (the Act). Consequently, water from the 
Edwards Underground River is subject to appropriation by permit issued by the 
commission, except for exempt domestic and livestock purposes in accordance with 
the Texas Water Code, sec.sec.11.301 et seq. 
   
  (c) Any authorization to divert and use state water is a right of use, and 
actual ownership of the water remains with the state, held in trust for the 
public's benefit. Pursuant to its authority to administer water rights, the 
commission may reserve from appropriation state water necessary to protect water 
quality, aquatic and wildlife habitat, instream uses, bays and estuaries, and 
other public purposes. 
   
  (d) The designation of the Southern, or Balcones Fault Zone, portion of the 
Edwards Aquifer as an underground river is for the purposes provided in this 
chapter and shall not affect rules of the commission contained in Chapter 313 of 
this title (relating to Edwards Aquifer) and other applicable commission rules 
providing for the protection of the water quality of an aquifer designated as a 
sole or principal source aquifer as provided by 40 Code of Federal Regulations 
(CFR) Part 149, pursuant to the Safe Drinking Water Act, sec.sec.1442(e), 42 
United States Code 300h-3(e). 
 
     
  sec.298.3. Applicability of Commission Rules. Except as specifically provided 
otherwise by this chapter, all commission rules relating to the application for, 
and granting and enforcement of, permits for the diversion and use of state 
water including, but not limited to, Chapters 281, 295, 297, and 337 of this 
title (relating to Applications Processing; Water Rights Procedural; Water 
Rights Substantive; and Enforcement Generally) shall apply to the diversion and 
use of water from the Edwards Underground River. A provision contained in this 
chapter supersedes a rule outside this chapter to the extent of any conflict. A 
conflict exists only if the substance of the rule in this chapter and any 
related provision is irreconcilable with the substance of a rule outside this 
chapter. 
 
   
  sec.298.4. Applicability of Rules to Southern Portion of the Edwards Aquifer.  
The rules contained in this chapter specifically apply to that portion of the 
Edwards Aquifer described by sec.298.5 of this title (relating to Boundaries of 
the Edwards Underground River) and located in Kinney County east of the 
hydrologic division near Brackettville which separates flow in the Nueces River 
Basin from flow to the Rio Grande Basin, and in Uvalde, Medina, Atascosa, Bexar, 
Guadalupe, and Comal Counties and in Hays County south of the hydrologic 
division near Kyle which separates flow toward the San Marcos River from flow to 
the Colorado River Basin. These rules shall not be applied to any other aquifer 
in the State of Texas. 
 
   
  sec.298.5. Boundaries of the Edwards Underground River. 
 
  (a)  The lateral boundaries of the Edwards Underground River, as used in this 
chapter, are: on the north and northwest, the updip limit of the outcrop of the 
Edwards and Associated Limestones; on the south, the boundary south of which 
water moves at rates of flow that are insignificant compared to flow rates north 
of this boundary (for purposes of this chapter, this boundary is defined by the 
line known as the "bad-water line" which separates water containing less than 
1,000 milligrams per liter of total dissolved solids from water containing more 
than this concentration of total dissolved solids as such line exists in its 
most southern known location after periods of sustained high water levels in the 
Edwards Underground River); on the west, the hydrologic division near 
Brackettville in Kinney County that separates underground flow toward the Comal 
and San Marcos Springs from underground flow to the Rio Grande Basin; on the 
east, the hydrologic division northeast of Kyle in Hays County that separates 
underground flow toward the Comal and San Marcos Springs from underground flow 
to the Colorado River Basin. The Edwards Underground River is underlain by the 
Upper Member of the Glen Rose formation and confined by the overlying Del Rio 
Clay. 
   
  (b) The lateral boundaries of the Edwards Underground River are approximately 
those boundaries of "Subdivision No. One of the Underground Water Reservoir in 
the Edwards Limestone Balcones Escarpment Area" defined by the Board of Water 
Engineers of the State of Texas, a predecessor of the Texas Water Commission, by 
order dated January 10, 1957, as modified by the Texas Water Commission by order 
dated April 18, 1988, and incorporated in this rule by reference. These orders 
are available for inspection at the office of the chief clerk of the commission 
in Austin during the commission's regular business hours. 
 
     
  sec.298.6. Effect of Invalidity of Rule. If any provision of any rule or its 
application to any person or circumstances is held invalid, the invalidity does 
not affect other provisions or applications of the rule which can be given 
effect without the invalid provision or application, and to this end the 
provisions of the rule are severable. 
 
   
  sec.298.7. Definitions.  The following words and terms, when used in this 
chapter, shall have the following meanings, unless the context clearly indicates 
otherwise. The definitions contained in sec.297.1 of this title (relating to 
Water Rights, Substantive) apply to this chapter unless otherwise provided in 
this section. 
   
     Authorized well -A well which diverts water from the Edwards Underground 
River for which a permit has been issued by the commission, or temporary 
authorization granted pursuant to this chapter, or that is exempt for domestic 
and livestock purposes. All applicable rules must have been met, and such well 
must have been in compliance with all existing law relating to well 
construction, spacing, and other applicable law on or before April 15, 1992. 
   
     Beneficial use -The use of only that amount of water which is reasonable 
and necessary for a purpose authorized by law, when reasonable intelligence and 
reasonable diligence are used in applying the water to that purpose. Water which 
is wasted or inefficiently used because of, but not limited to, inefficient 
diversion works or distribution systems, excessive applications, excessive or 
unnecessary evaporation, transpiration, or seepage, the discharge or escape of 
water from a well into a surface stream or reservoir for no authorized 
beneficial purpose, or by pollution is not beneficially used. 
   
     Commission-The Texas Water Commission and any successor agency. 
   
     Conservation- 
 
  (A) the development of other water resources; 
   
  (B) those practices, techniques, and technologies that will reduce the 
consumption of water, eliminate the loss or waste of water, maximize the 
efficiency in the use of water, prevent the pollution of water, or increase the 
recycling and reuse of water so that the demand for water from the Edwards 
Underground River is reduced; and 
   
  (C) any other measure that would sustain or enhance the water supply to 
provide for future long-term needs. 
     
     Diversion of water-Any act or failure to act that results in the taking of 
water from the Edwards Underground River by or through man-made facilities, 
including the pumping of wells or allowing waters to flow from artesian or other 
type wells. 
   
     Domestic use-Use of water by a person owning the well from which the water 
is withdrawn and by that person's household for drinking, washing, or culinary 
purposes; for irrigation of lawns or of a family garden and/or orchard for 
household consumption and the produce is not sold; and for watering of domestic 
animals not raised, maintained, or sold for commercial purposes. If the water is 
diverted, it must be diverted solely through the efforts of the user. 
   
     Edwards Aquifer or aquifer-That portion of an arcuate belt of porous, 
waterbearing, predominantly carbonate rocks known as the Edwards and Associated 
Limestones in the Balcones Fault Zone trending from west to east to northeast in 
Kinney, Uvalde, Medina, Atascosa, Bexar, Guadalupe, and Comal Counties, and in 
Hays County south of the hydrologic division near Kyle which separates flow 
toward the San Marcos River from flow to the Colorado River Basin; and composed 
of the Salmon Peak Limestone, McKnight Formation, West Nueces Formation, Devil's 
River Limestone, Person Formation, Kainer Formation, and Edwards Formation, the 
Georgetown Formation, and the Walnut Formation. The permeable aquifer units 
generally overlie the less-permeable Glen Rose Formation and underlie the less-
permeable Del Rio Clay regionally. The lateral boundaries of the aquifer are as 
contained in sec.298.5 of this title (relating to Boundaries of the Edwards 
Underground River). 
   
     Edwards Underground River or underground river -The Edwards Aquifer as 
defined by this section and the boundaries of which are provided by sec.298.5 of 
this title. 
   
     Existing user-A person that has diverted and beneficially used water from 
the Edwards Underground River on or before April 15, 1992. 
   
     Industrial use -The use of water for or in connection with commercial or 
industrial activities, including, but not limited to, manufacturing, commercial 
feedlot operations, commercial fish production, bottling, brewing, food 
processing, scientific research and technology, recycling, production of 
concrete, asphalt, and cement, cooling tower heat exchange, commercial uses of 
water for tourism, entertainment, and hotel/motel lodging, generation of power 
other than hydro-electric, and other business activities. 
   
     Interruptible use -The additional diversion and use of water from the 
Edwards Underground River that may be allowed only when the level of the Edwards 
is above 665 feet above mean sea level as measured at the J-17 index well. Such 
use may be interrupted by the commission at any time the commission determines 
that spring flow at Comal and San Marcos Springs could be affected during 
critical drought conditions. 
   
     Instream uses-The use of water for the protection of water quality, the 
maintenance of aquatic and wildlife habitat, navigation, recreation, and bays 
and estuaries. 
   
     Irrigation use -The use of water for the irrigation of commercial crops, 
including orchards, and for pastureland. 
   
     Irrigation water use efficiency-The percentage of that amount of irrigation 
water which is beneficially used by the crops in production relative to the 
amount of water diverted from the source of supply. Beneficial uses of water for 
irrigation purposes include, but are not limited to, evapotranspiration needs 
for crop maintenance and growth and salinity management and leaching 
requirements associated with irrigation. 
   
     J-17 index well -State well Number AY-68-37-203 located in Bexar County and 
commonly referred to as the J-17 index well. 
   
     Livestock use-The use of water for the open-range watering of livestock 
connected with farming, ranching, or dairy enterprises. 
   
     Municipal use-The use of potable water within or without a municipality and 
its environs whether supplied by a person, privately-owned utility, political 
subdivision, or other entity as well as the use of municipal sewage effluent for 
certain purposes specified as follows. It includes the use of potable water for 
domestic purposes, fighting fires, sprinkling streets, flushing sewers and 
drains, watering parks and parkways, and recreational purposes including public 
and private swimming pools, the use of water in industrial and commercial 
enterprises supplied by a municipal distribution system without special 
construction to meet its demands, and for the watering of lawns and family 
gardens. Municipal use also includes the application of municipal sewage 
effluent upon land sites, pursuant to a Texas Water Code, Chapter 26, permit, 
where: 
 
  (A) the primary purpose of the application is the treatment and/or necessary 
disposal of such effluent; or 
   
  (B) the application site is a park, parkway, golf course, or other landscaped 
area owned by the owner of the permitted sewerage system; or 
   
  (C) the effluent applied to such site is generated within an area for which 
the commission has adopted a no-discharge rule. 
     
     New well-A producing well, the drilling of which, was completed after April 
15, 1992. 
   
     Per capita use -The sum total of residential, commercial, and public and 
institutional uses diverted into a water supply system divided by actual 
population served based on verifiable data such as total housing units, active 
utility connections, hotel occupancy rates, and other relevant data. 
   
     Pollution-The alteration of the physical, thermal, chemical, or biological 
quality of, or the contamination of any water in the state that renders the 
water harmful, detrimental, or injurious to humans, animal life, vegetation, or 
property, or to public health, safety, or welfare, or impairs the usefulness of 
the public enjoyment of the waters for any lawful or reasonable purpose. 
   
     Producing well -A well capable of producing water from the Edwards 
Underground River without modification or the placement of additional equipment 
and which has lawfully produced water for a beneficial purpose prior to April 
15, 1992. 
   
     Replacement well -A well that is drilled to replace or backup an existing 
well and where the existing well that is being replaced is plugged and closed 
within 30 days of commencement of diversion from the replacement well. A backup 
well is an auxiliary well to be used only in case of failure of the well for 
which it provides standby service. 
   
     Reuse-The authorized use for one or more beneficial purposes of use of 
water that remains unconsumed after the water is used for the original purpose 
of use and before that water is discharged or otherwise allowed to flow into a 
watercourse, lake, or other body of state-owned water. 
   
     Waste-The diversion of water from the Edwards Underground River if the 
water diverted is not used for a beneficial purpose; the unreasonable loss of 
water through faulty design or negligent operation of a well or a water delivery 
or application system; the use of quantities of water in an amount in excess of 
the amount reasonably necessary to beneficially use the water for an authorized 
purpose; or the diversion of water from the Edwards Underground River at a rate, 
in an amount, or in any manner that causes or threatens to cause pollution of 
the Edwards Underground River by the intrusion of water or contaminants 
detrimental to any beneficial purpose, or adversely impacts surface water 
quality. 
   
     Well-A bored, drilled, or driven shaft, or an artificial opening in the 
ground made by digging, jetting, or some other method, where the depth of the 
well is greater than its largest surface dimension, but not including any 
surface pit, surface excavation, or natural depression. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on September 9, 1992. 
 TRD-9212648 
  Mary Ruth Holder 
 Director, Legal Division 
 Texas Water Commission 
    Effective date: October 7, 1992 
 Proposal publication date: April 24, 1992 
 For further information, please call: (512) 463-8069 
         
           
  Subchapter B. Permits and Other Authorizations 
 
  31 TAC sec.sec.298.11-298.20 
 
  The new sections are adopted under the Texas Water Code,  sec.5.103 and 
sec.5.105, which provides the Texas Water Commission with the authority to adopt 
rules necessary to carry out its duties and responsibilities under the Texas 
Water Code and other state law. 
 
 
  sec.298.11. Permit Required. 
 
  (a) Except as provided by sec.298. 12 and sec.298.13 of this title (relating 
to Permit Exempt for Domestic and Livestock Use and Interim Authorizations 
Pending Disposition of Permit Applications), no person may divert any water from 
the Edwards Underground River, or begin construction of any well or other work 
designed for the diversion of water from the Edwards Underground River, without 
first obtaining a permit from the commission to make the diversion. 
   
  (b) Except as provided otherwise in subsection (c) of this section, the 
priority date of any permit issued by the commission pursuant to this section 
shall be the date the application is accepted for filing by the commission. 
   
  (c) Each application by an existing user and well owner received by the 
commission on or before November 10, 1992, shall be deemed to be accepted for 
filing on November 1, 1992, for purposes of time priority if, by that date, the 
application is postmarked or actually received by the commission on or before 
November 1, 1992, and the application, maps, and other submitted materials are 
in substantial compliance with the requirements of this chapter. For the 
purposes of this section, a declaration of historical use provided by sec.298. 
14 of this title (relating to Declarations of Historical Use) shall constitute 
an application for a permit to divert and use water from the Edwards Underground 
River. Additionally, such application shall be deemed acceptable for filing 
without containing a water conservation plan and accompanied by necessary 
application fees if such plan and fees are subsequently submitted on or before 
June 1, 1993, in accordance with sec.298.15 of this title (relating to Water 
Conservation Plan) and other such necessary information requested by the 
executive director is submitted to the commission. Usage from a well shall be 
recognized for the well owner only, and not the end user if different from the 
well owner, so that such usage may not be authorized or permitted twice. 
   
  (d) An applicant not qualifying for interim authorization must submit an 
application, a water conservation plan, and all other applicable information 
provided by sec.298.14 of this title and in accordance with applicable 
provisions contained in Chapters 295 and 297 of this title (relating to Water 
Rights, Procedural and Water Rights, Substantive). The commission shall not 
accept for filing, review, nor take action on applications by persons not 
qualifying for interim authorization until final action is taken on those 
declarations of historical use and corresponding water conservation plans timely 
submitted in accordance with this chapter. This moratorium shall remain in 
effect until historical claims can be evaluated and a determination is made on 
the availability of unappropriated water for new uses. 
 
     
  sec.298.12. Permit Exemption for Domestic and Livestock Use. 
 
  (a)  Without obtaining a permit under sec.298.11 of this title (relating to 
Permit Required), a person may construct on that person's own property a well 
for the diversion of water from the Edwards Underground River and beneficially 
use such water without waste for domestic and livestock purposes only. 
   
  (b) A person may use water for domestic and livestock purposes pursuant to 
this section only on property owned by that person and may not transport the 
water off that person's property. 
   
  (c) The exemption provided by this section does not apply where the flows of 
one well are combined with flows from any other well prior to the use of the 
water except as provided by subsection (b) of this section. 
   
  (d) A person owning a well and claiming an exemption for such well pursuant to 
this section must register the ownership, location, depth, size, diameter, and 
maximum pumpage capacity in gallons per minute of the well with the commission. 
Such registration must be submitted to the commission on or before September 1, 
1993, or 30 days after completion of the well, whichever is later. Changes in 
any information contained in the registration must be filed with the commission 
not later than 30 days after such change. 
 
     
  sec.298.13. Interim Authorizations Pending Disposition of Permit Applications. 
 
  (a) Subject to the limitations provided by sec.298.42 and sec.298.51 of this 
title (relating to Limitation of Maximum Annual Diversions to Protect Water 
Quality, the Public Health, Safety, and Welfare, Aquatic and Wildlife Habitat, 
Instream Uses, Bays and Estuaries, and Other Public Purposes and Emergencies), a 
person owning a producing well which diverts water from the Edwards Underground 
River, other than a domestic and livestock well that is exempt under sec.298.12 
of this title (relating to Permit Exemption for Domestic and Livestock Use), may 
continue to divert and beneficially use water without waste from the Edwards 
Underground River by using that well in accordance with the terms of this 
section if, but only if, the well was in compliance with all rules and statutes 
relating to well construction, approval, location, spacing, and any other 
applicable law on or before April 15, 1992, and the person submits to the 
commission: 
 
  (1)  a declaration of historical, actual beneficial use pursuant to sec.298.14 
of this title (relating to Declarations of Historical Use) for non-exempt wells 
owned by that person with the commission on or before November 1, 1992; 
   
  (2) a water conservation plan as provided by sec.298.15 of this title 
(relating to Water Conservation Plan) and all required application fees by June 
1, 1993; and 
   
  (3) all other reasonable and necessary information requested by the executive 
director and that otherwise meets all applicable requirements contained in this 
chapter and other applicable law. 
     
  (b)  Each person qualifying under subsection (a) of this section for interim 
authorization to divert and use water from the Edwards Underground River may 
continue to divert and beneficially use water without waste in accordance with 
this section. Such use may not exceed on an annual basis the historic, maximum, 
annual, actual beneficial use of water from the well without waste as evidenced 
by the person's declaration of historical use, unless such amount is determined 
otherwise by the commission pursuant to subsections (c)-(f) of this section. 
   
  (c) On its own motion, on the motion of the executive director, or on the 
motion of any affected person for good cause shown, the commission may determine 
the following: 
 
  (1) the extent to which, and the purposes of use for which, water was actually 
diverted from the Edwards Underground River by using the well and applied to 
beneficial use was without waste prior to the date these rules were adopted; and 
   
  (2) the extent to which, and the purposes of use for which, water is then 
being diverted from the Edwards Underground River by using the well and applied 
to beneficial use without waste. 
     
  (d) In making determinations pursuant to subsection (c) of this section, the 
commission shall utilize all available information including, but not limited 
to, the water conservation plans and declarations of historical use filed 
pursuant to sec.298.15 and sec.298.14, respectively, of this title. 
   
  (e) It shall be the burden of the declarant of historical use to demonstrate 
by substantial and convincing evidence that person's historical beneficial use 
without waste. 
   
  (f) All interim authorizations granted by this section, and all diversions 
made pursuant to these authorizations, are subject to limitation, curtailment, 
and amendment to prevent waste and protect water quality. 
   
  (g) The interim authorizations granted by this section shall terminate with 
respect to diversions from a well upon entry of a final and appealable order by 
the commission acting on the application or applications under sec.298.11 of 
this title (relating to Permit Required) for permits for those wells. 
 
     
  sec.298.14. Declarations of Historical Use. 
 
  (a) Each person owning a producing well diverting water from the Edwards 
Underground River and who desires to continue to use the well shall, on or 
before November 1, 1992, file with the commission a sworn declaration of 
historical actual use and copies of all supporting documentation for the well, 
other than a domestic and livestock well that is exempt under sec.298.12 of this 
title (relating to Permit Exemption for Domestic and Livestock Use), covering 
the period beginning January 1, 1982, and ending April 15, 1992. 
   
  (b) For the purposes of sec.298.11 of this title, a declaration of historical 
use shall constitute an application for a permit if a water conservation plan 
and all necessary application fees are subsequently and timely submitted in 
accordance with sec.298.15 of this title (relating to Water Conservation Plan). 
   
  (c)  Failure to timely file a declaration of historical use or water 
conservation plan in accordance with this section and sec.298.15 of this title 
shall result in the immediate termination of the interim authorization granted 
by sec.298.13 of this of this title (relating to Interim Authorizations Pending 
Disposition of Permit Applications). A person whose interim authorization has 
been terminated pursuant to this subsection must submit an application for a new 
use pursuant to sec.298.11(d) of this title and have such application approved 
by the commission before the person is authorized to divert and use water from 
the Edwards Underground River in accordance with the terms and conditions of the 
permit and applicable commission rules and statutes. 
   
  (d) Each declaration of historical use shall include the following information 
and all supporting documentation, to the extent the information and 
documentation are available or capable of being produced, calculated, or 
estimated: 
 
  (1) the name and mailing address of each person holding an ownership interest 
in each well; 
   
  (2) the name and mailing address of any other person holding any other 
interest in each well or the real property on which each well is located; 
   
  (3) the location of the well and distance and direction from the nearest 
survey corner, the date of commencement of construction of the well, the size 
and depth of the well, and the date of first withdrawal and beneficial use of 
water from the well; 
   
  (4) the volume of water diverted by the Edwards Underground River during each 
calendar year beginning January 1, 1982, and ending April 15, 1992. 
   
  (5) the purpose or purposes of use to which the water was applied; 
   
  (6) the maximum volume of such water that was beneficially used for each 
purpose of use during a calendar year beginning January 1, 1982, and ending 
April 15, 1992; 
   
  (7) the place of use of the water; 
   
  (8)  if the filing is for irrigation: 
 
  (A) the legal description of the larger tract in which irrigation occurs and a 
topographical or photographical map of the land irrigated with water produced 
from the Edwards Underground River and the year in which the land was first 
irrigated; 
   
  (B) the number of acres of land actually irrigated with water from the Edwards 
Underground River in each calendar year beginning January 1, 1982, and ending 
April 15, 1992; 
   
  (C) the type of crops grown on the land and the cropping patterns used; and 
   
  (D) the irrigation methods and devices actually used in the irrigation of the 
land; 
     
  (9) evidence of the ownership and other interests in each well, and in the 
real property on which the well is located, of all persons listed in response to 
subsection (b)(1) and (2) of this section; 
   
  (10)  one or more sworn statements reciting that all of the information 
contained in the declaration of historical use is based on the personal 
knowledge of the person or persons making the sworn statements or the best and 
most complete available records and is true and correct to the best of that 
person's knowledge or recollection and all supporting documentation; and 
   
  (11) other pertinent information the executive director may require. 
     
  (e) All declarations of historical use filed with the commission shall be 
available in the offices of the commission for public inspection during regular 
office hours. 
 
     
  sec.298.15. Water Conservation Plan. 
 
  (a) A water conservation plan shall be submitted with any permit application 
or for any other authorization to divert and use water from the Edwards 
Underground River, except that an applicant who has qualified for interim 
authorization and who has submitted a declaration of historical use not later 
than November 1, 1992, in accordance with sec.sec.298.11, 298.13, and 298.14 of 
this title (relating to Permit Required; Interim Authorizations Pending 
Disposition of Permit Applications; and Declarations of Historical Use) shall 
submit a water conservation plan in accordance with this section not later than 
June 1, 1993. Such plan shall provide for the implementation by the permittee of 
water conservation measures so that only that amount of water is used that is 
reasonable and necessary for the proposed use and is beneficially used without 
waste. All users of state water shall provide evidence that reasonable diligence 
shall be used to avoid waste and achieve water conservation, including the 
efficient management of such water and the achievement of water conservation 
goals as provided in a water conservation plan approved by the commission. 
   
  (b) A water conservation plan shall conform to applicable commission rules and 
guidelines provided by sec.295.9 of this title (relating to Water Rights, 
Procedural) and pursuant to the Texas Water Code, sec.11.1271. 
   
  (c) A water conservation plan shall contain a drought management plan 
providing drought use measures necessary to achieve the emergency curtailment of 
use as required by sec.298.51 of this title (relating to Emergencies). 
   
  (d) A water management plan shall be submitted by any person authorized to use 
1,500 acre-feet of water per year or more not later than September 1, 1995. Such 
plan shall contain, but not be limited to, a study identifying feasible 
alternative sources of water supply, the reuse of water, and the steps and time 
schedule for the implementation of the water management plan. 
 
     
  sec.298.16. Commission Review and Action On Permit Application. 
 
  (a) No action shall be taken on any application prior to June 1, 1993, and 
until all required materials fees and information, including the applicant's 
water conservation plan, have been submitted to the commission in accordance 
with this chapter and other applicable commission rules and state law. 
   
  (b) For existing users who timely file a sworn declaration of historical use 
and establish by substantial and convincing evidence of beneficial use of the 
waters of the Edwards Underground River without waste, the commission shall 
grant a permit, to the extent that the water is available for appropriation, for 
an amount of water equivalent to the maximum actual beneficial use of water 
without waste during any one of the calendar years beginning January 1, 1982-
April 15, 1992, inclusive. Provided, however, each existing user who has 
operated a well for three or more years during the period beginning January 1, 
1982-April 15, 1992, shall receive, to the extent that water is available for 
appropriation, a permit for an annual use of the average amount of water 
withdrawn per year and beneficially used without waste during the period 
beginning January 1, 1982 and ending April 15, 1992, beginning with the first 
full calendar year in which the well was placed in operation. 
   
  (c) Permits granted pursuant to this section shall be subject to 
administration in the same manner as rights to use surface water acquired under 
the Texas Water Code, Chapter 11. 
   
  (d) Pursuant to the Texas Water Code, sec.sec.11.121 et seq, the commission 
may grant an application for a new well or expanded use from a producing well 
only if: 
 
  (1) the application conforms to the requirements prescribed by this chapter 
and applicable provisions contained in Chapters 295 and 297 of this title 
(relating to Water rights, Procedural and Water Rights, Substantive); 
   
  (2)  water from the Edwards Underground River is available for appropriation; 
   
  (3) the application contemplates the application of water for a beneficial 
use; 
   
  (4) the proposed use does not impair existing water rights; 
   
  (5) the proposed use is not detrimental to the public welfare; and 
   
  (6) the applicant has provided evidence that reasonable diligence will be used 
to avoid waste and achieve water conservation. 
     
  (e)  No new use from a new well or an amendment to an existing use from an 
existing well as provided by sec.298.19(b) of this title (relating to Amendments 
Required) will be authorized that does not employ the most efficient diversion, 
delivery, distribution, application, and utilization systems appropriate to the 
proposed use and using the best available technology. 
   
  (f) Any water conservation and reuse measures prescribed by the commission, 
reductions in use to meet overall goals provided by sec.298. 42 and sec.298.51 
of this title (relating to Limitation of Maximum Annual Diversions to Protect 
Water Quality, the Public Health, Safety, and Welfare, Aquatic and Wildlife 
Habitat, Instream Uses, Bays and Estuaries, and Other Public Purposes), and any 
other requirements necessary to effectuate the purposes of this chapter shall be 
implemented as required by the terms and conditions of the commission order or 
water right, or by rule. 
   
  (g)  Information relating to the implementation of the permittee's water 
conservation plan, drought management plan, the achievement of use reduction 
requirements to meet goals established by sec.298.42 and sec.298.51 of this 
title, and related permit conditions required under this section must be 
provided in the annual report provided by sec.295.202 of this title (relating to 
Reports) on the form prescribed by the executive director. Such information 
shall include a discussion of the implementation of water conservation and reuse 
measures and the progress made toward the obtainment of water conservation and 
use reduction goals. 
   
  (h) It shall be the burden of the applicant to demonstrate that the requested 
amount of appropriation is necessary and reasonable for the proposed use. 
 
     
  sec.298.17. Right Limited to Beneficial Use. 
 
  (a) Except as further limited by Subchapters E and F of this chapter (relating 
to Regulation of Diversions-General and Regulation of Diversions Emergency), the 
right to use state water under any permit or other authorization is limited to 
the amount which is being or can be beneficially used for the authorized 
purposes without waste but not to exceed the amount specifically appropriated. 
   
  (b)  Water which is wasted, lost, or inefficiently used because of, but not 
limited to, inefficient diversion works or distribution systems, excessive 
application, excessive or unnecessary evaporation, transpiration or seepage, 
faulty design, or by pollution is not beneficially used and is a violation of 
the water right. 
   
  (c) The right to appropriate that amount not beneficially used cannot be 
perfected and is subject to limitation, cancellation, and forfeiture as provided 
by law. 
 
     
  sec.298.18. Moratorium on New Authorizations. 
 
  (a) A person may not drill a new well or divert water from the Edwards 
Underground River by using a well, not a producing well, except as authorized by 
the commission. 
   
  (b) The commission shall not consider nor take action on any application 
relating to any proposed or existing well for which there is no evidence or 
historical record of actual beneficial use prior to April 15, 1992, until a 
final determination has been made on all applications (declarations of 
historical use) submitted on or before November 1, 1992, and timely supplemented 
by a water conservation plan, in accordance with sec.298.14 and sec.298.15 of 
this title (relating to Declorations of Historical Use and Water Conservation 
Plan). 
   
  (c) Any authorization other than interim authorization granted pursuant to 
sec.298.13 of this title (relating to Interim Authorations Pending Disposition 
of Permit Applications) for the diversion and beneficial use of water from the 
Edwards Underground River shall not be granted unless it is determined by the 
commission that such new use provides for the implementation of water 
conservation, reuse, distribution, and application measures using best available 
technology. 
   
  (d) Subsection (a) of this section shall not apply to a replacement or backup 
well if: 
 
  (1) the amount, rate, volume, purpose of use, and any other requirement 
applicable to the well replaced or backed up is met by the operation of the 
replacement well; 
   
  (2) the replacement well is drilled on the same tract of land and in the same 
hydrologic unit of the Edwards Underground River as the well replaced; 
   
  (3) the replacement well will not adversely affect any existing well or water 
rights; and 
   
  (4)  the replacement well is approved pursuant to subsections (e) and (f) of 
this section. 
     
  (e) A person proposing to drill a replacement well shall submit the following 
information to the executive director prior to drilling the replacement well: 
 
  (1) the ownership and the locations by latitudinal and longitudinal 
coordinates and the distance and direction from the nearest survey corner for 
the replacement well and the well to be replaced; 
   
  (2) the hydrogeologic unit to which the well to be replaced was drilled and to 
which the replacement well is to be drilled; 
   
  (3) the depth of both wells; 
   
  (4) the size and capacity of both wells; 
   
  (5) an evaluation of the impact of the replacement well will have on any 
existing well or water rights owned by another person; and 
   
  (6) a map showing the location of both wells in relationship to property 
ownership boundaries and any existing wells within one mile of the replacement 
well. 
     
  (f) The executive director shall review the information submitted pursuant to 
subsection (e) of this section and, if in his judgment the proposed replacement 
well will not adversely affect an existing well or water rights owned by another 
person, he may approve the replacement well. If the executive director does not 
approve the replacement well, the person proposing to drill the replacement well 
shall comply with subsection (a) of this section. A determination by the 
executive director pursuant to this subsection may be appealed to the commission 
by an applicant or an affected person. 
 
     
  sec.298.19. Amendments Required. 
 
  (a) Each holder of a permit issued under sec.298.11 of this title (relating to 
Permit Required), and each person granted interim authorization under sec.298.13 
of this title (relating to Interim Authorizations Pending Disposition of Permit 
Applications), must obtain prior authorization from the commission to change the 
purpose of use (which includes using water for any additional purpose of use or 
any secondary use), to change the location of any well, rate of withdrawal, 
place of use or acreage to be irrigated, or to alter the permit or interim 
authorization in any other manner. 
   
  (b) An application to amend an existing water right for any of the following 
reasons must include a water conservation plan as provided by applicable 
provisions of sec.298.15 of this title (relating to Water Conservation Plan): 
 
  (1) to increase the amount of the appropriation; 
   
  (2) to change the purpose of use of the appropriation; or 
   
  (3) to change the place of use, unless the request is to expand the amount of 
acreage to be irrigated adjacent to the existing, authorized irrigated tract 
without an increase in the appropriation. 
     
  (c) An agreement providing for the contractual sale of water from the Edwards 
Underground River for a period of less than three years shall be filed with the 
executive director for approval not later than 30 days prior to the effective 
date of the sale agreement. 
 
     
  sec.298.20. Approval for Alterations. 
 
  (a) A person may not make any alteration, enlargement, or other change to any 
well from which water is diverted from the Edwards Underground River without 
first obtaining the approval of the commission, except for ordinary maintenance 
or emergency repair of the well and except as provided by subsections (b) and 
(c) of this section. 
   
  (b) Without obtaining commission approval, a person may modify a well if the 
modification does not alter the location or rate of production of the well. 
   
  (c) Without obtaining commission approval, a person may modify a well that is 
exempt under sec.298.12 of this title (relating to Permit Exemption for Domestic 
and Livestock Use) if the well continues to qualify for exemption after that 
modification. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on September 9, 1992. 
 TRD-9212649 
  Mary Ruth Holder 
 Director, Legal Division 
 Texas Water Commission 
    Effective date: October 7, 1992 
 Proposal publication date: April 24, 1992 
 For further information, please call: (512) 463-8069 
         
             
  Subchapter C. Conveyances 
 
  31 TAC sec.sec.298.21-298.23 
 
  The new sections are adopted under the Texas Water Code,  sec.5.103 and 
sec.5.105, which provides the Texas Water Commission with the authority to adopt 
rules necessary to carry out its duties and responsibilities under the Texas 
Water Code and other state law. 
 
 
  sec.298.21. Transfer of Ownership and Change of Address. In addition to 
meeting applicable requirements contained in commission rules relating to the 
transfer and sale of water rights, each person required to file a declaration of 
historical use under sec.298.14 of this title (relating to Declarations of 
Historical Use), and each person to whom a permit is issued pursuant to 
sec.298.11 of this title (relating to Permit Required), shall notify the 
commission of a change in name or mailing address or any transfer of the 
ownership of the well or permit. Any person to whom the well or permit is 
transferred shall notify the commission of the transfer and shall furnish any 
additional information as required by the executive director. Such notifications 
shall be within 30 days of the conveyance. 
 
   
  sec.298.22. Contractual Sales.  Commission approval for a contractual sale of 
water is subject to the imposition of the conservation and reuse requirements 
contained in the seller's permit or to which the buyer is subject as directed or 
modified by the executive director. 
 
   
  sec.298.23. Application by City or Town to Acquire Appropriation Without 
Compensation (Wagstaff Act). 
 
  (a) The Wagstaff Act, Texas Water Code, sec.11.028, provides that any 
appropriation made after May 17, 1931, for any purpose other than domestic or 
municipal use is subject to the right of any city or town to make further 
appropriations of the water for domestic or municipal use without paying for the 
water. 
   
  (b) Except as authorized by the commission, no city or town may make further 
appropriation pursuant to the Wagstaff Act. 
   
  (c) In determining whether to approve such further appropriation pursuant to 
subsection (b) of this section, the commission shall consider the social and 
economic hardship of the proposed appropriation on the affected person and 
community and shall seek to minimize the impact upon irrigation or other uses 
which may be subject to the Act. 
   
  (d) An application for commission approval pursuant to subsection (b) of this 
section must be submitted to the commission for review and approval and notice 
and opportunity for hearing given to the affected water right holders prior to 
commission action on any such further appropriation. 
   
  (e)  An application must contain all applicable information necessary for a 
transfer of a water right and must be accompanied by a water conservation plan 
as provided by sec.298.15 of this title (relating to Water Conservation Plan). 
   
  (f) The commission shall not approve an application for further appropriation 
if the commission finds: 
 
  (1) the application does not meet commission requirements as provided by 
subsection (e) of this section; 
   
  (2) proper notice and opportunity for hearing was not provided to all affected 
persons; 
   
  (3) the proposed transfer would adversely affect senior water rights not 
subject to appropriation pursuant to subsection (a) of this section; 
   
  (4) the applicant fails to demonstrate a need for the amount of the 
appropriation; 
   
  (5) the applicant has not eliminated all nonessential and discretionary use, 
including, but not limited to, recreational or aesthetic use, pools, spas, 
fountains, landscaping, residential lawns, or ornamental trees and shrubbery, 
artificial or augmented waterways, water gardens and parks, watering, automobile 
and machinery washing, or municipal uses not essential for the protection of the 
public health, safety, and welfare; 
   
  (6) there is a feasible alternative to the proposed appropriation; or 
   
  (7) the proposed appropriation would adversely impact water quality or the 
environment or be detrimental to the public health, safety, or welfare. 
     
  (g) Information provided by the applicant in the water conservation plan shall 
be considered by the commission in determining whether any feasible alternative 
to the requested appropriation exists and whether the requested amount of 
appropriation as measured at the point of diversion is reasonable and necessary 
for the proposed use. Based upon its review, the commission shall determine 
whether to deny or grant, in whole or in part, the requested appropriation. 
   
  (h) It shall be the burden of the applicant to demonstrate that no feasible 
alternative to the proposed appropriation exists, that the requested amount of 
appropriation is necessary and reasonable for the proposed use, and is otherwise 
justified pursuant to this section. 
   
  (i) Any water conservation measures prescribed by the commission shall be 
implemented as required by the terms and conditions of the commission order or 
water right, or by rule. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on September 9, 1992. 
 TRD-9212650 
  Mary Ruth Holder 
 Director, Legal Division 
 Texas Water Commission 
    Effective date: October 7, 1992 
 Proposal publication date: April 24, 1992 
 For further information, please call: (512) 463-8069 
         
             
  Subchapter D. Water Use Measurement and Reporting 
 
  31 TAC sec.298.31, sec.298.32 
 
  The new sections are adopted under the Texas Water Code,  sec.5.103 and 
sec.5.105, which provides the Texas Water Commission with the authority to adopt 
rules necessary to carry out its duties and responsibilities under the Texas 
Water Code and other state law. 
 
 
  sec.298.31. Water Use Measurement. 
 
  (a) Except as provided by subsection (b) of this section, the owner of each 
well which diverts water from the Edwards Underground River, other than a well 
that is exempt under sec.298.12 of this title (relating to Permit Exemption for 
Domestic and Livestock Use), shall, prior to diversion from the well, install 
and maintain a measuring device designed to indicate the flow rate and the 
cumulative amount of water diverted by that well. The measuring device shall 
indicate flow rate and amount, with instantaneous readout in cubic feet per 
second or gallons per minute, and have a flow totalizer with a readout in acre-
feet or gallons, and must be accurate within 5.0%. 
   
  (b) The measuring device for each existing well capable of operation the 
commission shall be installed before September 1, 1993. For any other well, the 
measuring device shall be installed before any water is withdrawn from that 
well. 
   
  (c) The requirement to install and maintain a measuring device in any well may 
be waived by the executive director, upon written request by the well owner to 
utilize an alternative method of determining the flow rate and the amount of 
water diverted by the well. The proposed alternative method must result in 
determinations of flow rate and amounts of water diverted within an accuracy of 
5.0%. 
 
     
  sec.298.32. Reports. 
 
  (a) Not later than March 1 of each year, beginning in 1994, each person 
required to file a declaration of historical use under sec.298.14 of this title 
(relating to Declarations of Historical Use), and each person to whom a permit 
is issued pursuant to sec.298.11 of this title (relating to Permit Required), 
shall file with the commission a written report of water use for the preceding 
calendar year on a form prescribed by the executive director, providing the 
information required by the executive director. 
   
  (b) The commission by order, rule, or permit condition may require of any 
person such other record keeping, reporting of water use, and notification of 
water demands, as may be determined by the commission to be necessary or 
desirable to accomplish the purposes of this chapter. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on September 9, 1992. 
 TRD-9212651 
  Mary Ruth Holder 
 Director, Legal Division 
 Texas Water Commission 
    Effective date: October 7, 1992 
 Proposal publication date: April 24, 1992 
 For further information, please call: (512) 463-8069 
         
             
  Subchapter E. Regulation of Diversions-General 
 
  31 TAC sec.298.41, sec.298.42 
 
  The new sections are adopted under the Texas Water Code,  sec.5.103 and 
sec.5.105, which provides the Texas Water Commission with the authority to adopt 
rules necessary to carry out its duties and responsibilities under the Texas 
Water Code and other state law. 
 
 
  sec.298.41. Waste Prohibited. 
 
  (a) The waste of water is prohibited. 
   
  (b) No person may divert, supply, use, or reuse any water from the Edwards 
Aquifer, or supply, use, or reuse any water from other sources that reduces the 
demand for water from the Edwards Underground River, in excess of the amount of 
water needed for beneficial use for the intended purpose or purposes of use. 
 
     
  sec.298.42. Limitation of Maximum Annual Diversions to Protect Water Quality, 
the Public Health, Safety, and Welfare, Aquatic and Wildlife Habitat, Instream 
Uses, Bays and Estuaries, and Other Public Purposes. 
 
  (a)  Total authorizations to directly divert and use water from the Edwards 
Underground River, and all authorizations and rights to make such diversions, 
shall be limited in accordance with this section in order to: protect the water 
quality of the Edwards Underground River; protect the water quality of the 
surface streams to which the Edwards Underground River provides significant 
springflow; achieve water conservation; maximize the beneficial use of water 
available for diversion from the underground river; protect aquatic and wildlife 
habitat; and provide for instream uses and bays and estuaries. 
   
  (b) Except as provided by subsection (d) of this section and sec.298.51 of 
this title (relating to Emergencies), for the period ending December 31, 2007, 
the total authorized amount of direct diversions from the Edwards Underground 
River shall not exceed 450,000 acre-feet of water per calendar year. 
   
  (c) Except as provided by subsection (d) of this section and sec.298.51 of 
this title, for the period beginning January 1, 2008, the total authorized 
amount of direct diversions from the Edwards Underground River shall not exceed 
400,000 acre-feet of water per calendar year. If through studies of such 
strategies as springflow augmentation, diversions downstream of the springs, 
supplemental recharge, conjunctive management of surface and subsurface water, 
and other strategies to optimize the use of the Edwards Underground River, it is 
determined that additional supplies are available, the commission will consider 
modification of the limitations established by these rules. 
   
  (d) When the level of the Edwards Underground River is equal to or greater 
then 665 feet above mean sea level as measured at the J-17 index well, the 
commission may authorize the direct diversion, on an interruptible basis, of 
additional amounts above the limitations contained in subsections (b) and (c) of 
this section. Such additional diversions shall be limited to ensure that 
springflows are not affected during critical drought conditions. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on September 9, 1992. 
 TRD-9212652 
  Mary Ruth Holder 
 Director, Legal Division 
 Texas Water Commission 
    Effective date: October 7, 1992 
 Proposal publication date: April 24, 1992 
 For further information, please call: (512) 463-8069 
         
             
  Subchapter F. Regulation of Diversions-Emergency 
 
  31 TAC sec.298.51 
 
  The new section is adopted under the Texas Water Code,  sec.5.103 and sec.5. 
105, which provides the Texas Water Commission with the authority to adopt rules 
necessary to carry out its duties and responsibilities under the Texas Water 
Code and other state law. 
 
 
  sec.298.51. Emergencies. 
 
  (a) The total authorized amount of water which may be directly diverted from 
the Edwards Underground River may not exceed 350,000 acre-feet per year if the 
Edwards Underground River drops to a level of 625 feet above mean sea level as 
measured at the J-17 index well. Substantial demand reduction measures shall be 
in place prior to when the water level in the J-17 index well reaches 625 feet 
above mean sea level so that authorized withdrawals do not exceed authorized 
amounts during this period. Such reduction shall be achieved by the curtailment 
of uses nonessential for the protection of the public health, safety, and 
welfare, through the implementation of permittees' drought management plans 
contained in their water conservation plans approved by the commission and/or 
the purchase or lease of others' water rights to divert water from the Edwards 
Underground River. Initial stages of the drought management plans shall be 
implemented not later than when the water level falls to 649 feet above mean sea 
level as measured at the J-17 index well. 
   
  (b) The executive director shall notify the Texas Parks and Wildlife 
Department and the United States Fish and Wildlife Service immediately when the 
level of the Edwards Underground River Falls to 640 feet above mean sea level as 
measured at the J-17 index well and shall consult with these agencies in 
determining any recommendations to the commission concerning action to take in 
response to the potential emergency. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on September 9, 1992. 
 TRD-9212653 
  Mary Ruth Holder 
 Director, Legal Division 
 Texas Water Commission 
    Effective date: October 7, 1992 
 Proposal publication date: April 24, 1992 
 For further information, please call: (512) 463-8069 
 
             
  Subchapter G. Local Government 
 
  31 TAC sec.298.61 
 
  The new section is adopted under the Texas Water Code,  sec.5.103 and sec.5. 
105, which provides the Texas Water Commission with the authority to adopt rules 
necessary to carry out its duties and responsibilities under the Texas Water 
Code and other state law. 
 
 
  sec.sec.298.61. Delegation of Responsibilities. 
 
  (a) Upon request by a water district, authority, or other political 
subdivision of the state having all necessary power, authority, and jurisdiction 
necessary to implement the regional water management plan as provided in this 
chapter, the commission may delegate to that political subdivision any of the 
commission's responsibilities under this chapter within the geographical 
boundaries of that political subdivision, except to the extent that the 
delegation is prohibited by law. 
   
  (b) The commission will give appropriate consideration to the recommendations 
of local governmental entities concerning matters at issue under this chapter 
within the geographical boundaries of the local governmental entity, such as 
relative amounts of withdrawals to be authorized among permit applicants within 
those boundaries, and additional requirements to be imposed to further reduce 
withdrawals and use of available water within those boundaries. 
   
  (c) The commission may establish a separate water division for the Edwards 
Underground River pursuant to the Texas Water Code, sec.11.325, and may delegate 
the duties and responsibilities of watermaster for such division to an 
appropriate local or regional entity, unless prohibited by law. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on September 9, 1992. 
 TRD-9212654 
  Mary Ruth Holder 
 Director, Legal Division 
 Texas Water Commission 
    Effective date: October 7, 1992 
 Proposal publication date: April 24, 1992 
 For further information, please call: (512) 463-8069 
         
               Chapter 322. Community Wastewater Planning 
  
  31 TAC sec.sec.322.1-322.6 
 
  The Texas Water Commission (TWC) adopts new sec.sec.322.1-322.6, concerning 
community development of wastewater regional plans and TWC implementation of 
such plans through the permitting process, with changes to the proposed text as 
published in the April 17, 1992, issue of the Texas Register  (17 TexReg 2726). 
 The TWC was appointed by the governor to be the lead agency for water quality 
planning. Additionally, TWC is the state agency designated in the Texas Water 
Code, sec.26.012 and sec.26.036, to develop comprehensive water quality 
management (WQM) plans for the different areas of the state. Section 26.036(b) 
allows TWC to contract with local governments, planning agencies, and other 
entities to prepare WQM plans. Further sec.26.036(d) requires any person 
developing such a plan to consult with TWC and other affected/interested 
governmental agencies. 
 Section 26.036(e) states that WQM plans shall be reasonably compatible with 
other governmental plans for the area. Section 26.177 requires municipal water 
pollution control and abatement programs in cities of 5000 or greater population 
to be submitted to TWC for review and approval. Regional plans should therefore 
be compatible with pollution abatement and other programs. In fact, they can 
become an integral part of municipal pollution abatement program plans for 
wastewater treatment. 
 Many communities are developing long term plans for wastewater treatment 
services in order to provide adequate facilities for citizens within the 
corporate limits and within municipal extraterritorial jurisdictions which 
usually include growth corridors. This proposed rule is intended to be a tool to 
encourage community regional planning. A community may design a regional plan 
with appropriate input from citizens, businesses and designated planning 
agencies. The plan should be approved by one of a designated planning agencies 
and/or TWC, as appropriate, and then implemented under ordinances adopted by the 
municipality. If the community desires TWC to review domestic wastewater permit 
applications in accordance with the adopted community regional plan, the 
community may make such a request. 
 The TWC will consider approved community regional plans when reviewing any type 
of domestic wastewater permit application. The TWC will assess the need for a 
permit in terms of quantity, quality, and length of permit term. If regional 
facilities become available before the renewal of a permit and the service area 
of the applicant is within a reasonable distance of the regional facility, TWC 
may decide not to renew the permit and require the serviced area to connect to 
the regional plant. The TWC may encourage areas not covered under an approved 
regional plan to investigate connecting to a regional plant or to become a 
regional facility itself. 
 The TWC received one comment related to this proposed rule from the Texas Water 
Development Board (TWDB). The TWDB is concerned that a plant funded by a TWDB 
loan may lose a source of revenue to repay that loan if the commission denies 
the renewal of the wastewater permit. Loss of investments and repayment of loans 
should be addressed in the regional plan and developers should be aware of this 
potential prior to seeking a permit from TWC. The TWC has added a paragraph to 
sec.322.6(b) to indicate that TWC will consider whether approval or denial of an 
application will affect an applicant's ability to meet its financial obligations 
to the State of Texas to repay loans issued by the Texas Water Development 
Board. 
 The new sections are adopted under the authority of the Texas Water Code, 
sec.sec.5.103, 5.105, and 5.120, which provides the commission with the 
authority to adopt rules as necessary to carry out its powers and duties under 
the Texas Water Code and other laws of the state and to establish and approve 
all general policies of the commission. 
 
 
  sec.322.1. Definitions.  The following words and terms, when used in these 
sections, shall have the following meanings, unless the context clearly 
indicates otherwise. 
   
     Extraterritorial jurisdiction (ETJ)-That unincorporated area, not a part of 
any city, which is contiguous to the corporate limits as described in Texas 
Civil Statutes, Article 970A, sec.3, Subsection A. 
   
     Regional plan-A plan designed to provide wastewater treatment facilities 
for a specified area utilizing a minimum number of treatment plants. 
 
   
  sec.322.2. Scope and Applicability. The commission will consider regional 
plans approved by the commission and adopted by a municipality for the area 
within the city limits and its ETJ when evaluating a domestic wastewater permit 
application. 
 
   
  sec.322.3. Municipality Request for Implementation of a Regional Plan.  Any 
city that adopts a regional plan and desires the commission to assist in 
implementing such plan shall submit a written request and a copy of the 
implementing ordinance to the Watershed Management Division of the commission. 
 
   
  sec.322.4. Application Requirements.  Upon application for a permit to 
discharge treated domestic wastewater, the commission will require submission of 
information relating to alternatives to discharge (e.g. connection to an 
existing or planned system) and including documentation of communications with 
regional authorities and/or nearby permitted facilities. If the application is 
for a facility located in an area with an approved regional plan, the applicant 
must provide a copy of communications with the regional authority concerning the 
proposed facility's compliance with the regional plan. 
 
   
  sec.322.5. Notification.  The commission shall notify municipalities with 
approved regional plans of any applications for a permit to discharge treated 
domestic wastewater within the city limits and/or ETJ. 
 
   
  sec.322.6. Commission Consideration of Regional Plans. The commission will 
take into consideration an approved regional plan when determining: 
 
  (1) whether to grant or deny an application for a new permit, an amendment 
application to an existing permit, or a renewal application; 
   
  (2) what flows are appropriate for a permit, if granted: 
 
  (A)  small flows for an interim facility that will be abandoned at a later 
date; and 
   
  (B) larger flows for a facility that is planned to become a regional facility; 
     
  (3) what length of term is appropriate for a permit if granted based upon the 
regional plan; 
   
  (4) what effluent quality should be required if the regional plan contains 
effluent limits more stringent than water quality based limits or minimum 
effluent limits in sec.309. 1 of this title (relating to Scope and 
Applicability); 
   
  (5) other permit terms and/or conditions; and 
   
  (6) whether approval or denial of an application will affect an applicant's 
ability to meet its financial obligations to the State of Texas to repay loans 
issued by the Texas Water Development Board. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on September 17, 1992. 
 TRD-9212673 
  Mary Ruth Holder 
 Director, Legal Division 
 Texas Water Commission 
    Effective date: October 8, 1992 
 Proposal publication date: April 17, 1992 
 For further information, please call: (512) 463-8069 
         
                 
  TITLE 37. PUBLIC SAFETY AND CORRECTIONS 
 Part III. Texas Youth Commission 
  Chapter 83. Contracted Youth Services 
  
  37 TAC sec.83.6 
 
  The Texas Youth Commission (TYC) adopts new sec.83.6, with changes to the 
proposed text as published in the July 31, 1992, issue of the Texas Register (17 
TexReg 5343). 
 The new section concerning contracting for psychiatric hospital residential 
services will provide for a formalized contracting procedure. The changes to the 
proposed text clarify that the process of contacting specific psychiatric 
hospitals to determine interest in contracting with TYC will be accomplished 
through a request for proposal (RFP) system. 
 The new section contains procedures for contracts with psychiatric hospitals 
for the evaluation/assessment of youth, the stabilization of emotionally 
disturbed youth and for youth who have threatened attempted suicide. 
 No comments were received regarding adoption of the new section. 
 The new section is adopted under the Human Resources Code, sec.61.036, which 
provides the Texas Youth Commission with the authority to make use of medical 
facilities, institutions, and agencies in the state in a manner consistent with 
the function of TYC. 
 
 
  sec.83.6. Contracting for Psychiatric Hospital Residential Services. 
 
  (a) Policy. The Texas Youth Commission (TYC) contracts with psychiatric 
hospitals for the evaluation/assessment of youth, the stabilization of 
emotionally disturbed youth and for youth who have threatened or attempted 
suicide. The placement is for short-term residential care. 
   
  (b) Rules. 
 
  (1) General. 
 
  (A) TYC enters into contracts with psychiatric hospitals best able to provide 
services to meet specific needs of TYC youth identified through a process of 
regional assessment. 
   
  (B) TYC contracts with psychiatric hospital providers which meet: 
 
  (i) accreditation requirements of the Joint Committee on Accreditation of 
Health Care Organizations (JCAHO); and 
   
  (ii) special requirements set forth in a proposal for services. 
     
  (C) Contract may be for a term up to two years. 
   
  (D) Contract compliance is ensured through a quality assurance program of 
monitoring by TYC contract specialists. 
   
  (E) Approval of the chief of community placement is required to execute all 
referenced contracts. 
   
  (F) Youth shall not be placed into any psychiatric hospital (except on an 
emergency basis) nor any funds obligated prior to the full execution of the 
contract. 
     
  (2) Contract procedures. 
 
  (A) A request for proposal (RFP) process will be used to contract with all 
psychiatric hospitals. 
   
  (B) A review committee consisting of the medical director, chief of mental 
health services, chief of community placement and other staff will review the 
submitted proposals and recommend identified psychiatric hospitals for 
contracts. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on September 16, 1992. 
 TRD-9212668 
  Ron Jackson 
 Executive Director 
 Texas Youth Commission 
    Effective date: October 9, 1992 
 Proposal publication date: July 31, 1992 
 For further information, please call: (512) 483-5244 
         
                   Part VII. Texas Commission on Law Enforcement Officer 
Standards and Education 
  Chapter 211. Administration Division 
  
  Substantive Rules 
 
  37 TAC sec.211.20, sec.211.25 
 
  The Texas Commission on Law Enforcement Officer Standards and Education adopts 
amendments to sec.211.20 and sec.211.25, concerning contemplated rule making and 
commission meeting time and dates, without changes to the proposed text as 
published in the July 21, 1992 issue of the Texas Register  (17 TexReg 5076). 
 Section 211.20 was amended by adding the provision that petitions requesting 
rule changes will be filed with the commission in conformity with Texas Civil 
Statutes, Article 6252-13a. Section 211.25 was amended by permitting the 
chairman and the executive director to set the time for the meetings. Amendments 
to these sections were adopted as Final Orders 92-3 Amending Rule 211.25 and 92-
4 Amending Rule 211.10, respectively, at the September 9, 1992, meeting of the 
commission. 
 No comments were received regarding adoption of the amendments. 
 The amendments are adopted under the Texas Government Code, Chapter 415, 
sec.415.009 and sec.415.010(1), which provides the Texas Commission on Law 
Enforcement Officer Standards and Education with the authority to pass rules for 
the administration of Chapter 415, and Texas Civil Statutes, Article 6252-13a, 
which taken together establish the procedures for the rule making requirements 
for the commission. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on September 15, 1992. 
 TRD-9212577 
  Johanna McCully-Bonner 
 General Counsel 
 Texas Commission on Law Enforcement Officer Standards and Education 
    Effective date: October 6, 1992 
 Proposal publication date: July 21, 1992 
 For further information, please call: (512) 406-3619 
         
       
  37 TAC sec.211.30 
 
  The Texas Commission on Law Enforcement Officer Standards and Education adopts 
new sec.211.30, concerning the authority of the executive director to waive 
rules in order to conduct course and test validation and permits the commission 
to test the feasibility of various pilot projects, without changes to the 
proposed text as published in the July 21, 1992, issue of the Texas Register (17 
TexReg 5077). 
 This section was adopted as Final Order 92-1 adopting new Rule 211.30 at the 
September 9, 1992, meeting of the commission. 
 No comments were received regarding the adoption of the new section. 
 The new section is adopted under the Texas Government Code, Chapter 415, 
sec.415.010(1), (6) and (10), which provides the Texas Commission on Law 
Enforcement Officer Standards and Education with the authority to pass rules for 
the administration of Chapter 415, and Texas Civil Statutes, Article 6252-13a, 
which taken together establish the procedures for the rule making requirements 
for the commission. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on September 15, 1992. 
 TRD-9212578 
  Johanna McCully-Bonner 
 General Counsel 
 Texas Commission on Law Enforcement Officer Standards and Education 
    Effective date: October 6, 1992 
 Proposal publication date: July 21, 1992 
 For further information, please call: (512) 406-3619 
         
               
  TITLE 40. SOCIAL SERVICES AND ASSISTANCE 
 Part I. Texas Department of Human Services 
  Chapter 29. Purchased Health Services 
  
  Subchapter L. General Administration 
 
  40 TAC sec.29.1128 
 
  The Texas Department of Human Services (DHS) adopts new  sec.29.1128, 
concerning provider compliance with the Clinical Laboratory Improvement 
Amendments (CLIA) of 1988, in its Purchased Health Services rules. 
 The justification for the new section is to comply with the CLIA of 1988, 
Public Law 100-578. 
 The new section will function by ensuring that all providers seeking 
reimbursement from the Texas Medical Assistance Program for covered laboratory 
services meet the registration and certification requirements of the CLIA. 
 The new section is adopted under the Human Resources Code, Title 2, Chapters 22 
and 32, which provides the department with the authority to administer public 
and medical assistance programs. The new section is adopted in compliance with 
federal requirements to be effective September 1, 1992. 
 
 
  sec.29.1128. Provider Compliance with the Clinical Laboratory Improvement 
Amendments of 1988.  Effective September 1, 1992, all providers seeking 
reimbursement from the Texas Medical Assistance Program for covered laboratory 
services, regardless of location, size, or type of laboratory must meet the 
registration and certification requirements as set forth in the Clinical 
Laboratory Improvement Amendments of 1988, Public Law 100-578. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on September 18, 1992. 
 TRD-9212787 
  Nancy Murphy 
 Agency Liaison, Policy and Document Support 
 Texas Department of Human Services 
    Effective date: September 1, 1992 
 For further information, please call: (512) 450-3765