ADOPTED RULES 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 28. INSURANCE Part II. Texas Workers' Compensation Commission Chapter 110. Required Notices of Coverage Subchapter B. Employer Notices 28 TAC sec.110.110 The Texas Workers' Compensation Commission adopts an amendment to sec.110. 110, with changes to the proposed text as published in the August 18, 1995 issue of the Texas Register (20 TexReg 6296). Changes made to the proposed rule are in response to public comments received and are described in the summary of public comments and responses section of this preamble. Other changes were made for clarification and consistency. The amendment adds provisions contained in recently enacted House Bill 1089, and Senate Bill 3, 74th Legislature, 1995. House Bill 1089 added Texas Labor Code, sec.406.097(c) which provides that a sole proprietor or partner of a business entity covered by workers' compensation insurance or a corporate officer with an equity ownership in a covered business entity of at least 25% may be excluded from required workers' compensation coverage under Texas Labor Code, sec.406.096. Senate Bill 3 added sec.4(j) to Vernon's Texas Civil Statutes, Article 6675c, Title 116, Chapter 1, entitled "Motor Carrier Registration". Section 4(j) provides that, notwithstanding any contrary provision of law, a motor carrier required to register under this article must obtain either workers' compensation insurance coverage protecting its employees or accidental insurance coverage in an amount fixed by the Texas Department of Transportation. The amendment to sec.110.110 adds subsections (h) and (i) which incorporate these exemptions to mandatory workers' compensation insurance coverage for government building or construction projects. An amendment to the definition of "Persons providing services on the project" has been added, to reference the exemptions in (h) and (i). An amendment to subsection (g) has been added to clarify that, with the exceptions already discussed, the statute and the rule apply to all public works construction contracts, including those which are not required to be advertised for bid. This has been an area of some confusion for public entities. Changes to the proposed text are found in subsection (i) where a sentence was added to clarify the applicability of the rule, and the reference to the Texas Labor Code, sec.406.097 was clarified by adding a reference to House Bill 1089. Comments on the proposed amendment were received from Texas Motor Transportation Association and Hammerman & Gainer Comments generally in support of the proposed amendment were received from the Texas Motor Transportation Association. Comments generally in opposition to the proposed amendment were received from the Hammerman & Gainer. Summaries of the comments and commission responses are as follows: COMMENT: The commenter objected to the changes proposed to subsection (h) and contends that the alternative insurance coverage allowed for motor carriers by Texas Civil Statutes, Article 6675c, as amended by Senate Bill 3, 74th Legislature, 1995, cannot be considered "workers' compensation coverage" as required by Texas Labor Code, sec.406.096. The commenter reasoned that the alternative coverage will not secure the payment of compensation as defined by the Texas Workers' Compensation Act. The commenter also contended: that sec.406. 003 requires an employer to obtain workers' compensation insurance coverage through an insurance company authorized to write workers' compensation insurance; that an employer electing to obtain alternative coverage would not be subject to the Texas Workers' Compensation Act; and that per Texas Labor Code, sec.406.052 alternative coverage would be permitted only if the employer does not represent the insurance to any person as providing workers' compensation insurance coverage authorized under the Texas Workers' Compensation Act. The commenter drew the conclusion that the Texas Workers' Compensation Act does not contemplate alternative coverage and that it would be bad policy for the commission to endorse the use of alternative coverage in this rule. The commenter felt such alternative coverage would leave the impression with the public and with employees that they are fully protected under workers' compensation law and fears that employers who obtain such coverage will be held liable as non-subscribers. The commenter concluded that if the legislature intended that Texas Civil Statutes, Article 6675c could satisfy the workers' compensation coverage requirements of Texas Labor Code, sec.406.096 it could easily have amended sec.406.096. The commenter pointed to the case of Beldon Roofing and Remodeling Co. V. San Antonio Water System, 898 SW2d 351, to support his views. RESPONSE: The Commission disagrees. Texas Civil Statutes, Article 6675c, sec.4(j) states that its provisions apply notwithstanding any contrary provision of any law or regulation. The Commission believes that this language expresses the clear intent of the legislature that motor carriers subject to Article 6675c are not required to purchase workers' compensation insurance coverage in any circumstance. Because the coverage requirements of sec.406.096 of the Texas Workers' Compensation Act and sec.110.110 are contrary to the coverage requirements in Texas Civil Statutes, Article 6675c, sec.4(j), the more permissive requirements of Texas Civil Statutes, Article 6675c apply. This interpretation also gives effect to the general provisions of the Code Construction Act favoring a construction which gives effect to both a special provision and a general provision which conflict or if this is not possible, giving the special provision effect as an exception to the general provision. In addition, when a conflict between statutes is irreconcilable, the Code construction Act states that the statute latest in date of enactment prevails. Under these rules of construction the provisions of Senate Bill 3 will prevail over sec.406.096 of the Texas Labor Code. COMMENT: The commenter contended that subsection (i) should be changed to make reference to the requirement in Texas Labor Code, sec.406.097(c) that corporate officers with an equity ownership in the covered business of less than 25% must be covered under the workers' compensation policy for the corporation to qualify for government construction jobs. RESPONSE: The Commission disagrees. Subsection (i) exempts "... corporate officers who meet the requirements of the Act, sec.406.097(c) ..." and who are explicitly excluded from coverage from the coverage requirements of sec.110.110. Because a corporate officer with equity ownership of less than 25% does not meet the requirements of sec.406.097(c), it is clear from the current language of the rule such a corporate officer must be covered by workers' compensation insurance coverage if the corporate officer is going to provide services on a governmental building or construction project. 1.50 of House Bill 1089 provides that sec.406.097 "applies only to an insurance policy or certificate of authority to self-insure that is delivered, issued for delivery, or renewed on or after January 1, 1996. A policy or certificate that is delivered, issued for delivery, or renewed before January 1, 1996, is governed by the law as it existed immediately before September 1, 1995, and the law is continued in effect for that purpose" and therefore a provision may need to be added to the rule to clarify the applicability of the rule to a particular insurance policy. RESPONSE: The Commission agrees. Subsection (i) should be amended by adding a new sentence at the end of the existing language which states: "This subsection applies only to sole proprietors, partners, and corporate executive officers who are excluded from coverage in an insurance policy or certificate of authority to self-insure that is delivered, issued for delivery, or renewed on or after January 1, 1996." COMMENT: The commenter indicated that his organization had tracked Senate Bill 3 throughout the legislative process and fully agrees that the proposed amendment to sec.110.110(h) follows the original intent contemplated by the authors of the legislation. The commenter therefore fully supported the proposed amendment as written. RESPONSE: The Commission agrees. The amendment is adopted pursuant to the Texas Labor Code, sec.402.061, which requires the commission to adopt rules necessary for the implementation and enforcement of the Texas Workers Compensation Act; the Texas Labor Code, sec.406.096, which requires a contractor which enters into a building or construction contract with a governmental entity to provide workers' compensation insurance coverage for its employees; the Texas Labor Code, sec.406.097, added by House Bill 1089, 74th Legislature, 1995, which allows executive employees of certain businesses to exclude themselves from workers' compensation coverage and to remain in compliance with the requirements of Texas Labor Code, sec.406.096; and Texas Civil Statutes, Article 6675c, which authorize the purchase of an alternative to workers' compensation insurance coverage by some motor carriers. sec.110.110. Reporting Requirements for Building or Construction Projects for Governmental Entities. (a) The following words and terms, when used in this rule, shall have the following meanings, unless the context clearly indicates otherwise. Terms not defined in this rule shall have the meaning defined in the Texas Labor Code, if so defined. (1) Certificate of coverage (certificate)-A copy of a certificate of insurance, a certificate of authority to self-insure issued by the commission, or a workers' compensation coverage agreement (TWCC-81, TWCC-82, TWCC-83, or TWCC-84), showing statutory workers' compensation insurance coverage for the person's or entity's employees (including those subject to a coverage agreement) providing services on a project, for the duration of the project. (2) Building or construction-Has the meaning defined in the Texas Labor Code, sec.406.096(e)(1). (3) Contractor-A person bidding for or awarded a building or construction project by a governmental entity. (4) Coverage-Workers' compensation insurance meeting the statutory requirements of the Texas Labor Code, sec.401.011(44). (5) Coverage agreement-A written agreement on form TWCC-81, form TWCC-82, form TWCC-83, or form TWCC-84, filed with the Texas Workers' Compensation Commission which establishes a relationship between the parties for purposes of the Texas Workers' Compensation Act, pursuant to the Texas Labor Code, Chapter 406, Subchapters F and G as one of employer/employee and establishes who will be responsible for providing workers' compensation coverage for persons providing services on the project. (6) Duration of the project-Includes the time from the beginning of work on the project until the work on the project has been completed and accepted by the governmental entity. (7) Persons providing services on the project ("subcontractor" in sec.406.096 of the Act)-With the exception of persons excluded under subsections (h) and (i), includes all persons or entities performing all or part of the services the contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the contractor and regardless of whether that person has employees. This includes but is not limited to independent contractors, subcontractors, leasing companies, motor carriers, owner-operators, employees of any such entity, or employees of any entity furnishing persons to perform services on the project. "Services" includes but is not limited to providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. "Services" does not include activities unrelated to the project, such as food/beverage vendors, office supply deliveries, and delivery of portable toilets. (8) Project-Includes the provision of all services related to a building or construction contract for a governmental entity. (b) Providing or causing to be provided a certificate of coverage pursuant to this rule is a representation by the insured that all employees of the insured who are providing services on the project are covered by workers' compensation coverage, that the coverage is based on proper reporting of classification codes and payroll amounts, and that all coverage agreements have been filed with the appropriate insurance carrier or, in the case of a self-insured, with the commission's Division of Self-Insurance Regulation. Providing false or misleading certificates of coverage, or failing to provide or maintain required coverage, or failing to report any change that materially affects the provision of coverage may subject the contractor or other person providing services on the project to administrative penalties, criminal penalties, civil penalties, or other civil actions. (c) A governmental entity that enters into a building or construction contract on a project shall: (1) include in the bid specifications, all the provisions of paragraph (7) of this subsection, using the language required by paragraph (7) of this subsection; (2) as part of the contract, using the language required by paragraph (7) of this subsection, require the contractor to perform as required in subsection (d) of this rule; (3) obtain from the contractor a certificate of coverage for each person providing services on the project, prior to that person beginning work on the project; (4) obtain from the contractor a new certificate of coverage showing extension of coverage: (A) before the end of the current coverage period, if the contractor's current certificate of coverage shows that the coverage period ends during the duration of the project; and (B) no later than seven days after the expiration of the coverage for each other person providing services on the project whose current certificate shows that the coverage period ends during the duration of the project; (5) retain certificates of coverage on file for the duration of the project and for three years thereafter; (6) provide a copy of the certificates of coverage to the commission upon request and to any person entitled to them by law; and (7) use the language contained in the following Figure 1 for bid specifications and contracts, without any additional words or changes, except those required to accommodate the specific document in which they are contained or to impose stricter standards of documentation: Figure 1: 28 TAC sec.110.110(c)(7) (d) A contractor shall: (1) provide coverage for its employees providing services on a project, for the duration of the project based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements; (2) provide a certificate of coverage showing workers' compensation coverage to the governmental entity prior to beginning work on the project; (3) provide the governmental entity, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the contractor's current certificate of coverage ends during the duration of the project; (4) obtain from each person providing services on a project, and provide to the governmental entity: (A) a certificate of coverage, prior to that person beginning work on the project, so the governmental entity will have on file certificates of coverage showing coverage for all persons providing services on the project; and (B) no later than seven days after receipt by the contractor, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; (5) retain all required certificates of coverage on file for the duration of the project and for one year thereafter; (6) notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the contractor knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; (7) post a notice on each project site informing all persons providing services on the project that they are required to be covered, and stating how a person may verify current coverage and report failure to provide coverage. This notice does not satisfy other posting requirements imposed by the Act or other commission rules. This notice must be printed with a title in at least 30 point bold type and text in at least 19 point normal type, and shall be in both English and Spanish and any other language common to the worker population. The text for the notices shall be the following text provided by the commission on the sample notice, without any additional words or changes: Figure 2: 28 TAC sec.110.110(d)(7) (8) contractually require each person with whom it contracts to provide services on a project, to: (A) provide coverage based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements for all of its employees providing services on the project, for the duration of the project; (B) provide a certificate of coverage to the contractor prior to that person beginning work on the project; (C) include in all contracts to provide services on the project the language in subsection (e)(3) of this rule; (D) provide the contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; (E) obtain from each other person with whom it contracts, and provide to the contractor: (i) a certificate of coverage, prior to the other person beginning work on the project; and (ii) prior to the end of the coverage period, a new certificate of coverage showing extension of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the project; (F) retain all required certificates of coverage on file for the duration of the project and for one year thereafter; (G) notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; and (H) contractually require each other person with whom it contracts, to perform as required by subparagraphs (A)-(H) of this paragraph, with the certificate of coverage to be provided to the person for whom they are providing services. (e) A person providing services on a project, other than a contractor, shall: (1) provide coverage for its employees providing services on a project, for the duration of the project based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements; (2) provide a certificate of coverage as required by its contract to provide services on the project, prior to beginning work on the project; (3) have the following language in its contract to provide services on the project: "By signing this contract or providing or causing to be provided a certificate of coverage, the person signing this contract is representing to the governmental entity that all employees of the person signing this contract who will provide services on the project will be covered by workers' compensation coverage for the duration of the project, that the coverage will be based on proper reporting of classification codes and payroll amounts, and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self-insured, with the commission's Division of Self-Insurance Regulation. Providing false or misleading information may subject the contractor to administrative penalties, criminal penalties, civil penalties, or other civil actions." (4) provide the person for whom it is providing services on the project, prior to the end of the coverage period shown on its current certificate of coverage, a new certificate showing extension of coverage, if the coverage period shown on the certificate of coverage ends during the duration of the project; (5) obtain from each person providing services on a project under contract to it, and provide as required by its contract: (A) a certificate of coverage, prior to the other person beginning work on the project; and (B) prior to the end of the coverage period, a new certificate of coverage showing extension of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the project; (6) retain all required certificates of coverage on file for the duration of the project and for one year thereafter; (7) notify the governmental entity in writing by certified mail or personal delivery, of any change that materially affects the provision of coverage of any person providing services on the project and send the notice within 10 days after the person knew or should have known of the change; and (8) contractually require each other person with whom it contracts to: (A) provide coverage based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements for all of its employees providing services on the project, for the duration of the project; (B) provide a certificate of coverage to it prior to that other person beginning work on the project; (C) include in all contracts to provide services on the project the language in paragraph (3) of this subsection; (D) provide, prior to the end of the coverage period, a new certificate of coverage showing extension of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the project; (E) obtain from each other person under contract to it to provide services on the project, and provide as required by its contract: (i) a certificate of coverage, prior to the other person beginning work on the project; and (ii) prior to the end of the coverage period, a new certificate of coverage showing extension of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the contract; (F) retain all required certificates of coverage on file for the duration of the project and for one year thereafter; (G) notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; and (H) contractually require each person with whom it contracts, to perform as required by this subparagraph and subparagraphs (A)-(G) of this paragraph, with the certificate of coverage to be provided to the person for whom they are providing services. (f) If any provision of this rule or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this rule that can be given effect without the invalid provision or application, and to this end the provisions of this rule are declared to be severable. (g) This rule is applicable for building or construction contracts advertised for bid by a governmental entity on or after September 1, 1994. This rule is also applicable for those building or construction contracts entered into on or after September 1, 1994 which are not required by law to be advertised for bid. (h) The coverage requirement in this rule does not apply to motor carriers who are required pursuant to Texas Civil Statutes, Article 6675c to register with the Texas Department of Transportation and who provide accidental insurance coverage pursuant to Texas Civil Statutes, Article 6675c, sec.4(j). (i) The coverage requirement in this rule does not apply to sole proprietors, partners, and corporate officers who meet the requirements of the Act, sec.406.097(c) and who are explicitly excluded from coverage in accordance with the Act, sec.406.097(a) (as added by House Bill 1089, 74th Legislature, 1995, sec.1.20). This subsection applies only to sole proprietors, partners, and corporate executive officers who are excluded from coverage in an insurance policy or certificate of authority to self-insure that is delivered, issued for delivery, or renewed on or after January 1, 1996. 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 October 13, 1995. TRD-9513249 Susan Cory General Counsel Texas Workers' Compensation Commission Effective date: November 6, 1995 Proposal publication date: August 18, 1995 For further information, please call: (512) 440-3700 Chapter 114. Self-Insurance 28 TAC sec.114.2 The Texas Workers' Compensation Commission adopts an amendment to sec.114. 2, with changes to the proposed text as published in the August 18, 1995 issue of the Texas Register (20 TexReg 6297). Changes made to the proposed rule are in response to public comments received and are described in the summary of public comments and responses section of this preamble. Other changes were made for consistency and clarification. The amendment adds a provision contained in recently enacted House Bill 1089, 74th Legislature, 1995. House Bill 1089 added new sec.406.097 to the Texas Labor Code, which provides that a sole proprietor, partner, or corporate executive officer of a business entity which elects to provide workers' compensation coverage, is entitled to benefits under that coverage as an employee unless the sole proprietor, partner, or corporate executive officer is specifically excluded from coverage through an endorsement to the policy or certificate of authority to self-insure. The amendment to sec.114.2 clarifies that this change is applicable to a certificate of authority to self-insure. Changes in the proposed text are found in subsection (b)(1). When the Texas Labor Code was amended in the 74th Legislature, two different sections were added under the same number (sec.406.097). One provision was added by House Bill 1089 and the other was added by Senate Bill 413. The reference to Texas Labor Code sec.406.097 in this rule has been revised to clarify that it refers to Texas Labor Code sec.406.097 added by House Bill 1089. In addition, a reference to the applicability of the new section of the Labor Code was added to clarify that the exemption applies to certificates of authority to self-insure issued after January 1, 1996. One comment regarding the proposed amendment to sec.114.2 was received from Hammerman & Gainer. This comment was neither in support nor opposition to the amendment, but asked for a clarification. Summaries of the comments and commission responses are as follows: COMMENT: The commenter pointed out that the reference to the Texas Labor Code, sec.406.097 in subsection (b)(1) of the rule is unclear because the legislature assigned that section number to two different provisions (House Bill 1089 and Senate Bill 413) and suggested clarifying the reference. RESPONSE: The commission agrees. The reference is to the amendment to the Texas Labor Code in House Bill 1089, sec.1.20 which adds sec.406.097. The last sentence of subsection (b)(1) has been revised by replacing the words "Certain individuals" with the words "a sole proprietor, partner, or corporate executive officer of a business" which is the wording used in sec.1.20 of House Bill 1089, and by clarifying the reference to sec.406.097 used in the rule. The amendment is adopted pursuant to the Texas Labor Code, sec.402.061 which requires the commission to adopt rules necessary for the implementation and enforcement of the Texas Workers Compensation Act; and sec.406.097, as added by House Bill 1089, 74th Legislature, 1995, which provides for workers' compensation coverage for executive employees of certain business entities. sec.114.2. Definitions. (a) The following words and terms are defined in the Texas Labor Code, sec.407.001, and are so used in this chapter. (1) Association; (2) Director; (3) Impaired employer; (4) Incurred liabilities for compensation; and (5) Qualified claims servicing contractor. (b) The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise: (1) Certificate-A Certificate of authority to self-insure issued by the Commissioners under the Texas Labor Code, sec.407.042 which entitles an employer to be a self-insurer and is valid only for the persons, firms, or corporations named on the certificate. For a certificate of authority to self-insure delivered, issued for delivery, or renewed on or after January 1, 1996, a sole proprietor, partner, or corporate executive officer of a business may be specifically excluded from coverage pursuant to the Texas Labor Code, sec.406.097, as added by House Bill 1089, 74th Legislature, 1995, sec.1.20, (Texas Workers' Compensation Act, 74th Legislature, Regular Session, Chapter 980, sec.120, 1995 Vernon's Texas Session Law Service, 4912, 4917). (2) Claims Contractor-Qualified claims servicing contractor. (3) Division-The division of self-insurance of the Texas Workers' Compensation Commission. (4) Excess Insurance-Insurance that an employer purchases to pay claim costs that exceed the employer's retention amount up to a specified limit. (5) Retention-All payments made for claims filed under the Workers' Compensation Act including: indemnity benefits, medical payments, death benefits and all other related claims expenses not otherwise covered by insurance. (6) Self-insurer-An employer who has been granted and holds a valid certificate. (7) Trust Fund-The Texas certified self-insurer guaranty trust fund created by the fee assessed by the Association for emergency payment of the compensation liabilities of an impaired employer. 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 October 13, 1995. TRD-9513250 Susan Cory General Counsel Texas Workers' Compensation Commission Effective date: November 6, 1995 Proposal publication date: August 18, 1995 For further information, please call: (512) 440-3700 Chapter 166. Accident Prevention Services The Texas Workers' Compensation Commission adopts new sec.166.8, concerning qualifications for field safety representatives (FSR) providing accident prevention services, with changes to the proposed text as published in the July 18, 1995, issue of the Texas Register (20 TexReg 5141). The Commission also simultaneously adopts the repeal of existing sec.166.109, without changes to the proposed text as published in the April 21, 1995, issue of the Texas Register (20 TexReg 2992)). Changes made to the proposed rule are in response to public comment received, and are described in the summary of comments and responses portion of this preamble. The new rule implements the Texas Labor Code, sec.411.062, as amended by House Bill 1089, the 74th Texas Legislature, 1995, which mandates that the commission establish qualifications for field safety representatives which include education and experience requirements. This new rule provides a "grandfathering" provision which allows those currently acting as field safety representatives to continue; maintains designation or certification as a Certified Safety Professional or a Certified Industrial Hygienist as qualification for service as a FSR; maintains ten years active practice in the occupational health and safety profession as a FSR qualification; adds current designation as a TWCC Approved Professional Source as a FSR qualification; provides FSR qualification for an individual with six years experience in occupational health and safety within the last ten years (the recent experience is viewed as equivalent to ten years experience over a longer time span); establishes FSR qualification for a person with at least two years experience in the occupational health and safety profession, or completion of an insurance company internship program in conjunction with academic training and certain professional certifications; and provides FSR qualification for a person with a bachelor's degree or higher in occupational health and safety plus either one year active practice in the occupational health and safety profession or completion of a one-year company internship program. The new rule also defines "active practice in the occupational health and safety profession", and sets out criteria for intern programs by which insurance companies can train and provide experience to new participants in the FSR field. The rule requires the Workers' Health and Safety Division to evaluate any individual acting as a FSR for an insurance company when requested to do so. Changes in the proposed text are found in subsections (a)(1)(B), (c), (e)(4) , and (e)(5). Subsection (a)(1)(B) has been changed by replacing the word "any" with the word "applicable" to clarify the nature of continuing education requirements. Proof of active practice in the occupational health and safety profession is not required by subsection (c) to be retained by the insurance company in the situation where the FSR's qualifications have already been evaluated and accepted by the Commission. Subsection (e)(4) has been changed to broaden the policyholders that may be serviced by an intern. Policyholders with manual premiums less than sec.100,000, with loss ratios in the previous policy year of less than 70%, and who are not active in the Extra-Hazardous Employer Program may be serviced by interns. Subsection (e)(5) has been changed to eliminate notice to the division of interns in an insurance company intern program and to simply require that such information be kept in intern training records. The new rule provides insurance companies with better criteria to make FSR hiring decisions and obtain qualified individuals for their accident prevention programs. Employers and employees will benefit from better qualified individuals serving the policyholders and workers of Texas, which should result in fewer injuries and deaths and lower costs to the employer and the system as a whole. By increasing the experience requirements and providing additional educational requirements that are more relevant to FSR's, the result should be a higher quality of accident prevention services to policyholders, a safer workplace for employees, and decreased costs to the system. Public comments were received during two comment periods. In response to a previous proposed version of new sec.166.8 (published in the April 21, 1995 issue of the Texas Register (20 TexReg 2992) and withdrawn in the July 18, 1995 issue (20 TexReg 5231)) public comments were received and responses to those comments are included here with the responses to the proposed version of new sec.166.8 published in the July 18, 1995 Texas Register (20 TexReg 5141). In addition, responses to comments received on this rule during public hearings held on June 14, 1995 and September 28, 1995 are included here. Written comments were received on the proposed rule published in the April 21, 1995 issue of the Texas Register (20 TexReg 2992) from the following individuals and organizations: Austin Community College; CNA Insurance Companies; the American Insurance Association (AIA); ITT Hartford; Liberty Mutual Insurance Company; the Travelers Companies; and CIGNA Property & Casualty. Representatives from the following organizations gave testimony on the initial proposed draft at the public hearing held on June 14, 1995: CIGNA Property & Casualty; Liberty Mutual Insurance Company; State Farm Insurance; Chubb & Sons, Inc.; American Insurance Association (AIA); and the Alliance of American Insurers. Written comments were received on the proposed rule published in the July 18, 1995 issue of the Texas Register (20 TexReg 5141) from the following organizations: American Insurance Association (AIA); and Texas Workers' Compensation Insurance Fund. At the public hearing held on September 28, 1995, representatives from the following organizations gave testimony on the proposed rule published in the July 18, 1995 issue of the Texas Register (20 TexReg 5141): Travelers Insurance, ITT Hartford, Lumberman's Underwriting Alliance, Employers General Insurance Group, the American Insurance Association, Liberty Mutual, and a field safety representative, representing himself. All commenters expressed disagreement with portions of the rule, and some commenters were in favor of retaining the current rules, but generally commenters did not oppose the majority of the proposed qualifications for field safety representatives. Summaries of the comments and commission responses are as follows: The following general comments were received regarding sec.166.8. COMMENT: Commenters felt the rule would create a large demand for qualified FSRs, would shrink the pool of available candidates, would be costly, would raise salary levels, could result in decreased service, and would ultimately increase premiums. One commenter stated that Texas requirements were the most stringent in the nation. That commenter, however, also cited numerous examples of success in injury reduction in Texas because of Workers' Compensation Act requirements. The commenters recommended the Commission retain the rules as they are currently written. RESPONSE: The commission agrees in part. House Bill 1089 deleted qualifications for Field Safety Representatives (FSR) from the Labor Code and required the commission to establish those qualifications by rule. House Bill 1089 also required that the commission include both education and experience requirements in those qualifications. This requirement cannot be met within the existing rule. Written and verbal comments received from some insurers and insurance associations indicate that many insurance companies presently use training programs similar to the intern program and still others, which are usually the smaller insurers, rely upon hiring only experienced loss control personnel and the rule would have no effect on them. The rule is expected to result in highly qualified FSRs serving the policyholders and workers of Texas, which should result in fewer injuries and deaths and should lower costs to the employers in the system. These benefits outweigh any increased salary levels which may result. Savings resulting from decreased injuries and deaths will also be reflected in premiums. The following comments were received on sec.166.8(a)(1)(B) regarding FSR continuing education requirements. COMMENT: Commenters stated that certain certifications accepted by the commission as qualification as FSR already have continuing education requirements. One commenter was also concerned that the rule would give the commission carte blanche to adopt continuing education requirements. Another stated that a rule which does not explain its content, or leaves the content to be "filled-in" at a future date is inadvisable. Commenters recommended deleting continuing education requirements. RESPONSE: The commission agrees in part. Many of the qualification criteria in the rule include continuing education requirements already and the commission does not see a need to impose additional continuing education requirements at this time. As a result, the rule contains no such requirement. However, the commission does require that FSRs comply with all continuing education requisites for maintaining professional certifications which qualify them as a FSR under this rule. The statement in the rule concerning continuing education requirements, which could be adopted by the commission, is taken from House Bill 1089, Section 1.55. The commission agrees, however, that House Bill 1089 refers to "applicable" continuing education and the rule states "any" continuing education, which may be overly broad. Subsection (a)(1)(B) has been changed to read "complies with applicable continuing education requirements adopted by the Texas Workers' Compensation Commission." General Counsel for the Commission has determined that if continuing education requirements are formulated, the amendments to the Texas Labor Code require that they be adopted in rule form. The following comments were received on sec.166.8(a)(7) regarding the requirement for two years active practice in the occupational health and safety profession. COMMENT: Commenters disagreed with the need for the two-year experience requirement. Some commenters felt the requirement would preclude insurance companies from hiring "outstanding" and "top talent" graduates from Texas universities. Some commenters also felt the experience requirement would make hiring or training FSRs cumbersome and costly. Another commenter believed the "Texas only" requirements will be cost prohibitive. One commenter felt that qualified FSR's would become scarce and youthful candidates would become discouraged. Another commenter stated that hiring loss control people from industry does not generally give insurance companies loss control personnel with consulting skills, knowledge of a broad range of industries, various loss control disciplines or types of insurance coverage. The commenters suggested that the current rules be retained. RESPONSE: The commission disagrees. The commission is required by House Bill 1089 to establish experience requirements for FSR qualification. The two year requirement is a significantly lesser amount of experience than many professional certifications, such as Certified Safety Professional, Certified Industrial Hygienist or Occupational Health and Safety Technician, require. Since 1991, commission representatives have received numerous complaints from insurance companies that they can hire graduates just out of college, with no experience, but could not hire experienced safety specialists, because they do not have ten years of experience. The rule is responsive to their concern by accepting six years experience within the last ten as qualification and by affording the insurance companies the option to establish intern programs to train new graduates. The intern programs also provide the insurance companies a means to retain the top talent graduating from Texas universities. The following comment was received on sec.166.8(a)(7)(A) regarding types of degrees acceptable for FSR qualification and training programs. COMMENT: A commenter requested that insurance companies be allowed to maintain their own training programs. Other commenters recommended that they be able to train graduates with degrees in fields other than science or engineering, such as business administration. RESPONSE: The commission disagrees. Section 166.9, adopted on July 6, 1995, grants only accredited educational institutions the authority to conduct occupational health and safety education programs to qualify individuals as FSRs. The exception to this restriction is in the case of commission certified accident prevention services training programs which shall remain valid until the certificate of approval expires. Additionally, restricting acceptable degrees to those in science and engineering is consistent with legislative intent as stated in Senate Bill 1, which established the Workers' Compensation Commission and the original FSR qualifications. The following comments were received on sec.166.8(a)(7)(B) regarding completion of an occupational health and safety education program for FSR qualification. COMMENT: A commenter recommended continuance of any and all current TWCC approved certified accident prevention services training programs for the duration of the certificate (five years). RESPONSE: The commission agrees. The proposed rule is not meant to invalidate currently certified accident prevention services training programs. Those programs shall retain valid certification until their certificates of approval expire, and may conduct training as specified in their original approval. An organization with a certified accident prevention services training program which wishes to use that approved program as part of an intern program, however, must apply the intern program requirements of proposed Rule 166.8. The following comments were received on sec.166.8(a)(7)(C) regarding certifications by professional safety, health or hygiene organizations as a means of FSR qualification.. COMMENT: Commenters suggested that Associate Safety Professional (ASP), Occupational Health and Safety Technician (OHST) and the Associate in Loss Control Management (ALCM) be approved certifications for qualification as a Field Safety Representative. RESPONSE: The commission agrees in part. The process exists in subsection (a)(7)(C) by which a certifying organization may request approval by the commission's Workers' Health and Safety Division for FSR qualification. The Board of Certified Safety Professionals (BCSP) has requested and the Division has approved the OHST as a qualification for FSR. No request has been made to the division to establish the ASP certification as a means of FSR qualification. The ALCM has been a certification which the commission accepts as qualification to be a FSR for many years and will continue to be so. The following comments were received on sec.166.8(b) regarding the definition of active practice in the occupational health and safety profession. COMMENT: A commenter recommended that the definition of active practice be amended to specify that the individual may gain required, active experience through developing health and safety programs for all lines of insurance. RESPONSE: The commission disagrees that an amendment is necessary. The rule does not restrict the active practice in the occupational health and safety profession to the workers' compensation insurance arena. The following comments were received on sec.166.8(c) regarding proof of FSR qualification. COMMENT: A commenter objected to the requirement that insurance companies retain proof of FSR qualification by active practice, stating that it placed an unnecessary burden on insurers because it prescribes a form the insurer would have to maintain. RESPONSE: The commission agrees. In the case of FSR qualification based on active practice, the commission maintains a data base of all FSRs whose qualifications have been previously evaluated, so there is no need for an insurance company to retain the same information. If, however, the FSR has never had an evaluation of qualifications performed by the commission, the insurance company must provide proof of qualification by experience on the prescribed form. Proof of FSR qualification based on current certification must remain as stated in the rule, because there are ongoing requirements for maintaining certification. The commission has changed subsection (c) to read "Proof of active practice in the occupational health and safety profession shall be retained by the insurance company on a form prescribed by the commission, except when the insurance company has verified with the commission that the field safety representative's qualifications have already been evaluated by the commission and were found to meet established requirements. Proof of current certification being used as a means of qualification shall be retained by the insurance company. Such proof shall be presented to inspectors at the time of inspection." The following comments were received on sec.166.8(e) regarding an insurance company intern program. COMMENT: Commenters stated that the rule is unnecessary, and an intern program should not be addressed and the rule should not tell insurers how to train interns, but should allow individuals, not otherwise qualified, to serve as FSRs if those individuals work under the supervision of a qualified FSR. Some commenters recommended the intern program be deleted from the rule. Another recommended the program be reduced from 24 to six months. RESPONSE: The commission disagrees. The necessity to include experience requirements in FSR qualification generates concern about how inexperienced individuals may enter the FSR field in Texas. Allowing an intern program is one means the commission feels should be available. Intern programs are not mandatory and need not be used unless an insurance company chooses to do so. If the choice is made to have an intern program, the commission feels the stipulations in the rule are minimum reasonable requirements. The following comments were received on sec.166.8(e)(2) regarding a six month period of continuous supervision in the intern program. COMMENT: Commenters expressed concerned about the length of time an intern must be under continuous supervision in the intern program. Some commenters suggested a time period of three months for everyone, while another recommended three months for interns with occupational health and safety degrees. One commenter stated the supervisory FSR should be involved in all pre-action and post-action phases of a contact, but not accompany the intern. Another commenter felt that the training objective can be met without requiring two individuals to perform on-site visits and stated that time would also be lost since the trainee's mentor must review all documentation. The commenter further felt that it would be to the carrier's detriment for customer relations and safety reasons to require a trainee to service large, complex accounts. A commenter recommended that the six-month period apply only to interns with a degree in occupational health and safety and consist of three months of instruction and three months of accompanied field visits. Another commenter recommended the intern program only require that an intern be accompanied periodically and that the manager be allowed to sign off that an intern has reached a certain skill level and can do a particular level of work without further supervision. One commenter recommended this subparagraph be deleted. RESPONSE: The commission disagrees. The continuous supervision period was reduced from twelve to six months as a result of comments received on the originally proposed rule. Further reduction of this time frame would defeat the intent of the legislature in House Bill 1089, which created the experience requirement. The concern about detriment to customer relations and safety appear to be unfounded. The rule requires that a trainee accompany a qualified FSR on visits and customers would not only benefit from two sets of eyes and ideas, but would also observe the insurers intent to provide highly trained individuals to service their accounts. Additionally, the rule does not specify a curriculum for the six-month period and it is to be expected that this period would be used for both instructional and field training, as well as corporate orientation and office support functions such as gathering loss data for analysis, developing training programs, reviewing account files, developing action plans, conducting field visits in lines other than workers' compensation, if appropriate, etc. The six month requirement was supported by one of the commenters. The following comments were received on sec.166.8(e)(3) regarding the requirement to place a recommendation to continue in the intern program after the initial six-month phase in the interns training record. COMMENT: The commenter felt the requirement that a qualified FSR place a recommendation to continue in the intern program in the intern's training file gives the commission the authority to determine whether the individual has successfully completed the training program and to examine the insurance company's personnel files. The commenter believes that both these functions are inappropriate for the commission. The commenter recommends deleting this requirement. RESPONSE: The commission disagrees. The requirement for a recommendation exists to ensure responsibility for assessing and confirming that an intern has met mandatory program requirements. It is neither inappropriate for the commission to expect an insurance company to accept this responsibility, nor is it inappropriate for commission inspectors to expect to see this acceptance during inspections. The requirement refers only to a training record. The commission's accident prevention services inspectors have no need to review an insurance company employee's personnel record. Additionally, Rule 166.6(b)(1) (E) states, concerning information to be made available at the inspection, "if continuing education or training are required by the commission, a record of any training received by the field safety representatives since the previous inspection." No reference exists concerning other personnel records. The following comments were received on sec.166.8(e)(4) regarding the second phase of supervision following the period of continuous supervision in the intern program. COMMENT: A commenter recommended that the eighteen month period of reduced supervision in an insurance company intern program be decreased to six months. Another commenter recommended reduction to six months for interns without degrees in occupational health and safety and three months for those with such degrees. RESPONSE: The commission disagrees. The intern program was made available to allow insurance companies a means of gaining two years experience for prospective FSRs. The total time for the program must equal two years. Additionally, the commission has already acknowledged the value of a degree in occupational health and safety by giving interns with that degree credit for one year experience and requiring only six months in the second phase of the intern program. Additional credit is unwarranted. COMMENT: Commenters recommended that references to loss ratios in subsection (e)(4) be deleted, or, in the alternative, the rule adopt the loss ratios and premium levels established in Rule 166.4. The commenters felt that the rule presumes that interns, even those with occupational health and safety degrees, are incapable of providing anything but the most remedial of services to the least hazardous employers. Another commenter felt that smaller accounts are not necessarily the best learning tools. An additional commenter suggested that clients with little or no loss trends have effective loss reduction efforts and working with them would have minimal advantage and recommended leaving the loss ratio criteria up to the insurance company. Another commenter recommended that the intern be allowed to visit accounts over $50,000 alone, if the accounts are the overall responsibility of a qualified FSR. One commenter recommended reduction of the first phase from six to three months and a corresponding increase in the second phase to 21 months, with the intern allowed to service accounts with manual premiums below $200,000, loss ratios less than 75% and who are not active in the extra hazardous program. In this recommendation, the intern must be accompanied (by whom is not addressed) at least once monthly for the first three months of the 21-month phase and quarterly thereafter. One commenter agreed with the 18-month phase with quarterly supervision. RESPONSE: The commission disagrees. The premiums and loss ratios established in the rule were designed to allow trainees to service not only smaller accounts and those with lower loss ratios, but also somewhat more complex accounts (up to $50,000 in premium) and those which have experienced significant losses (70%), but have not yet reached such a alarming loss level as to meet requirements for mandatory service or on-site visits. The commission does not consider a 70% loss ratio as indicating "little or no trends". Allowing trainees to service policyholders with larger premiums or proven difficulties with injuries and losses might prove a detriment to customer relations and safety matters. The following comments were received on sec.166.8(e)(4)(B) regarding review, approval and signing of all of an intern's workers' compensation documentation by a qualified FSR. COMMENT: One commenter stated that a qualified FSR should be required to review the documentation of an intern, but should not be required to approve it. The commenter felt that the FSR could not approve the intern's work unless the FSR had accompanied the intern on the visit. One commenter recommended subsection (e)(4)(B) be deleted and another felt the need for documentation be reduced to the first six month phase. Another commenter disagreed with the requirement that the supervising FSR sign all intern work during the second phase of the intern program. The commenter felt the requirement would degrade the enabling/empowering process and confidence building in the intern. The commenter recommended that interns be allowed to sign their own work. RESPONSE: The commission agrees in part. Though the qualified FSR may not accompany the intern on a visit, the documentation of that visit will certainly allow that FSR to determine whether proper pre-service research was accomplished, whether the company's inspection methodology was used, whether activities and, possibly, recommendations were relevant to the type of business serviced and whether appropriate follow-up actions and correspondence were provided. Rule 166.4(c)(5) requires "written records, reports and evidence of all accident prevention services provided to each policyholder" be maintained. Thorough review of intern activities and documentation will allow the qualified FSR to determine if the intern's activities were appropriate and to approve of the documentation. The commission disagrees with the commenter's interpretation of the rule. It was not the intention of subsection (e)(4)(B) to prevent interns from signing their work. The requirement is intended to record the documentation review and approval processes, and, as such, is appropriate to be maintained in the loss control files the intern has worked. COMMENT: A commenter felt that the requirement that a qualified FSR review all workers' compensation activity produced by an intern would provide difficulty for insurance companies which provide other lines of insurance. The commenter stated that extracting workers' compensation information from a multi-line report would be impossible for the supervising FSR. The commenter recommended this requirement in subsection (e)(4)(B) be deleted. RESPONSE: The commission disagrees. Commission inspectors are continuously confronted with loss control files which contain loss control activities on numerous lines of insurance. Finding those activities which deal with or could affect the health or safety of policyholders' workers is no more difficult than reviewing the file. Most multi-line files encountered have very specific sections labeled for the different lines and allow suitable review of items which could affect workers' safety or health. The following comments were received on sec.166.8(e)(5) regarding notification to the commission of names, qualifications and dates of completion of training of interns entering the program. COMMENT: The commenter recommended that subsection (e)(5), be deleted because the rule already requires the insurer to retain records of FSR active practice and make them available to the commission at the time of inspection. Furthermore, the rule authorizes the commission to review FSR qualifications, if requested to do so by an insurance company. The commenter felt that because of information on FSR or trainee qualification is already available to the commission the notification is unnecessary. RESPONSE: The commission agrees in part. The notification could be viewed as duplicative. However, due to the need for inspectors to know when an intern was active in each of the two phases of the intern program, the insurance company must keep that information in the intern's training file. The insurance company may also request the commission review an intern's entrance qualifications in the first six month phase to avoid the possibility of someone not meeting the other qualification requirements being entered into an intern program. The commission has amended subparagraph (e)(5) to read "shall include in the intern training records the name of each intern entered into the program, the qualifications of each intern and the date the intern completed the program." 28 TAC sec.166.8 The new rule is adopted under the Texas Labor Code, sec.402.061, Adoption of Rules, which requires the commission to adopt rules necessary for the implementation and enforcement of the Texas Workers Compensation Act; the Texas Labor Code, sec.411.062, Field Safety Representative Qualifications, as amended by House Bill 1089, 74th Texas Legislature, 1995, which mandates the commission to establish qualifications for field safety representatives; the Texas Labor Code, sec.411.063, Accident Prevention Personnel, which sets out the options for Accident Prevention Services personnel a carrier may utilize; and the Texas Labor Code, sec.411.067, Commission Personnel, which requires the commission to employ a sufficient number of safety inspectors to enforce the statutory provisions regarding accident prevention services, and requires that those safety inspectors have the qualifications required for a field safety representative as described in the Texas Labor Code, sec.411.062. sec.166.8. Qualification of Field Safety Representatives. (a) A field safety representative providing accident prevention services on behalf of an insurance company writing workers' compensation insurance in Texas shall meet one of the following qualification requirements: (1) service as a field safety representative immediately before September 1, 1995, provided the person: (A) continues to meet the qualification requirements for a field safety representative that were in effect before September 1, 1995; and (B) complies with applicable continuing education requirements adopted by the Texas Workers' Compensation Commission; (2) current certification by the Board of Certified Safety Professionals (BCSP) as a Certified Safety Professional (CSP); (3) current certification by the American Board of Industrial Hygiene (ABIH) as a Certified Industrial Hygienist (CIH); (4) a TWCC Approved Professional Source on the active professional source list; (5) a total of ten years active practice in the occupational health and safety profession; (6) six years active practice in the occupational health and safety profession within the past ten years; (7) two years active practice in the occupational health and safety profession or satisfactory completion of an insurance company intern program, as specified in subsection (e) of this section, and: (A) a bachelor's degree, or higher, in science or engineering from an accredited college or university, with a transcript provided by the college or university on file with the division; (B) completion of an occupational health and safety education program which meets the requirements of sec.166.9 of this title (relating to Approval of Occupational Health and Safety Education Programs), with a transcript provided by the educational institution on file with the division; (C) current certification, by a professional safety, health or hygiene organization, approved by the division; or (D) current registration as a Professional Engineer; (8) a bachelor's degree in occupational health and safety, and either one year active practice in the occupational health and safety profession or satisfactory completion of a one year insurance company intern program, as specified in subsection (e) of this section. (b) Active practice in the occupational health and safety profession is defined as personal involvement in the development and implementation of health and safety programs where the involvement requires at least 70% of the individual's working time. Participation in an intern program may count as active practice towards the two-year requirement. (c) Proof of active practice in the occupational health and safety profession shall be retained by the insurance company on a form prescribed by the commission, except when the insurance company has verified with the commission that the field safety representative's qualifications have already been evaluated by the commission and were found to meet established requirements. Proof of current certification being used as a means of qualification shall be retained by the insurance company. Such proof shall be presented to inspectors at the time of inspection. (d) The division may waive the requirement of proof of qualification during an inspection if the field safety representative has previously met the requirements of subsection (a)(5), (6), (7)(A) and (B) and (8) of this section. (e) An insurance company intern program: (1) shall be 24 months in length or in the case of an intern with a degree in occupational health and safety, 12 months in length; (2) shall include an initial phase of six months of supervision in which a qualified field safety representative must accompany the intern on all field visits; (3) shall require satisfactory completion of the initial six-month phase and the placement of a recommendation in the intern's training file by a qualified field safety representative as to whether the intern should continue in the program; (4) shall include an additional 18-month phase or in the case of an intern with a degree in occupational health and safety, an additional six-month phase, during which the intern shall be permitted to service policyholders with manual premiums less than $100,000; with loss ratios in the previous policy year of less than 70%; and who are not active in the Extra-Hazardous Employer Program, with the following requirements: (A) shall require the intern to be accompanied on field visits at least once quarterly by a qualified field safety representative; and (B) shall require all workers' compensation documentation produced by the intern to be reviewed, approved and signed by a qualified field safety representative. (5) shall include in the intern training records the name of each intern entered into the program, the qualifications of each intern and the date the intern completes the program. (f) Qualification as a field safety representative under this section does not qualify the individual as a professional source approved by the division of workers' health and safety to provide consultations for extra-hazardous employers. (g) The division shall evaluate the qualifications of any individual acting as a field safety representative for an insurance company writing workers' compensation insurance in Texas when requested to do so by the insurance company. 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 October 13, 1995. TRD-9513251 Susan Cory General Counsel Texas Workers' Compensation Commission Effective date: November 6, 1995 Proposal publication date: August 18, 1995 For further information, please call: (512) 440-3700 28 TAC sec.166.109 The repeal is adopted under the Texas Labor Code, sec.402.061, Adoption of Rules, which requires the commission to adopt rules necessary for the implementation and enforcement of the Texas Workers Compensation Act; the Texas Labor Code, sec.411.062, Field Safety Representative Qualifications, as amended by House Bill 1089, 74th Texas Legislature, 1995, which mandates the commission to establish qualifications for field safety representatives; the Texas Labor Code, sec.411.063, Accident Prevention Personnel, which sets out the options for Accident Prevention Services personnel a carrier may utilize; and the Texas Labor Code, sec.411.067, Commission Personnel, which requires the commission to employ a sufficient number of safety inspectors to enforce the statutory provisions regarding accident prevention services, and requires that those safety inspectors have the qualifications required for a field safety representative as described in the Texas Labor Code, sec.411.062. 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 October 13, 1995. TRD-9513252 Susan Cory General Counsel Texas Workers' Compensation Commission Effective date: November 6, 1995 Proposal publication date: April 21, 1995 For further information, please call: (512) 440-3700 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 101. General Rules 30 TAC sec.101.29 The Texas Natural Resource Conservation Commission (TNRCC) adopts an amendment to sec.101.29, concerning Emissions Banking, with changes to the proposed text as published in the July 11, 1995, issue of the Texas Register (20 TexReg 5013). The Emissions Banking rule, effective March 15, 1993, provides a mechanism for certifying and recording ownership of emission reduction credits (ERCs) which can be used for offsets and other regulatory requirements for volatile organic compounds (VOC) and nitrogen oxides (NO [sub]x ) emissions in the state's ozone nonattainment areas. Separate banks are maintained for ERCs of each pollutant in a given ozone nonattainment area. The adopted amendment adds flexibility to the administrative processing, use, and marketability of ERCs. The amendments consist of three revisions to sec.101.29: deletion of the 3. 0% per year depreciation factor for banked ERCs; extension of the life of banked ERCs from five years from the date of the emission reduction to ten years from the date of the emission reduction; and granting of discretionary authority to the executive director, with commission approval, to suspend the certification process if the New Source Review Division workload requires it. A public hearing on this proposal was held August 10, 1995, at the TNRCC Austin offices. No oral comments were received at the public hearing, and written comments were received from nine commenters. The following commenters supported the proposed amendment to delete the 3. 0% per year depreciation factor for banked ERCs: ARCO Chemical Company (ARCO); Baker and Botts, on behalf of the Houston-Galveston Air Emission Reduction Credit Organization; Environmental Defense Fund (EDF); Liddell, Sapp, Zivley, Hill and LaBoon (Liddell et al), on behalf of several commenters; Houston Lighting and Power (HL&P); Texas Chemical Council (TCC); and TU Services (TU). The staff acknowledges support for the referenced amendment. The United States Environmental Protection Agency (EPA) expressed disappointment in the proposed deletion of the 3.0% annual depreciation of ERCs, stating that this feature was originally included in the rule to track the state's required 3.0% annual reduction of ozone precursors to make progress toward attainment. The Galveston-Houston Association for Smog Prevention (GHASP) opposed removal of the 3.0% annual depreciation, stating that public health would be endangered. The 3.0% annual depreciation of banked ERCs was originally included in the rule so that this optional program's requirements would resemble the annual rate-of- progress (ROP) reduction requirements under the State Implementation Plan (SIP). The banking rule was not relied upon to provide a source of reduction credits for the ROP SIP, so the removal of annual depreciation does not impact the SIP. On the other hand, an active bank can further the attainment goals of the SIP. Limited bank activity in the past makes a good case for increasing incentives for its use. Since a source with the potential to emit greater than 250 tons per year of a given pollutant can use its emissions reductions for internal netting purposes for an unlimited duration, there is little incentive to bank these reductions under the current depreciation system. With regard to public health impacts, the use of banked ERCs for offsets requires that an additional amount of credits (20% in the Beaumont/Port Arthur area, and 30% in the Houston/Galveston area) in excess of the proposed net emissions increase be applied. This is a substantial environmental and public health benefit. The following commenters supported the proposed amendment to extend the life of banked ERCs from five years (former rule) to ten years from the date of the emission reduction: Baker and Botts, EDF, EPA Region 6 Office, Dallas, HL&P, TCC, and TU. The staff acknowledges support for the referenced amendment. GHASP opposed the extension of the life of ERCs to ten years, stating that emissions that should have been cleaned up would, under the proposed rule, be around for a longer time. A successful emissions banking program capitalizes on the economic incentives created by the opportunity to buy and sell credits resulting from emissions reductions. These incentives must be weighed against disincentives which can stifle or halt market activity, particularly if alternatives exist outside the banking system. In developing the proposal to extend the life of banked ERCs to ten years, the TNRCC staff considered such factors as the business planning cycle for capital projects, which may require up to ten years for using reduction credits generated from previous reductions; existing new source review requirements which already allow unlimited life for certain reduction credits used for netting; and the incentives for further emission reductions created by increased flexibility. The following commenters supported the proposed amendment to grant discretionary authority to the executive director to suspend the certification process if the New Source Review Division workload requires it: EPA, Baker and Botts, EDF, HL&P, TCC, and TU. The staff acknowledges support for the referenced amendment. At its October 11, 1995 meeting to consider adoption of the Emissions Banking rule, the commission approved revisions to sec.101.29(e)(3) which require commission approval before the executive director suspends the certification process for ERCs. The EDF recommended that the TNRCC adopt a two-part banking program that would: establish an emissions cap which decreases over time in order to meet air quality standards; and provide flexibility to industry in its decisions of where and how to reduce emissions, as outlined in the 1993 Marketable Permits Feasibility Study by the TNRCC. The declining emissions cap, sometimes characterized as a "closed market" system, is probably most well known from its applications in the federal Title IV acid rain program for sulfur dioxide, and the RECLAIM program in the Los Angeles area for VOC and NO [sub]x . These types of programs have advantages as well as drawbacks, and have not been actively considered as the primary models for the Texas market-based incentive program. There are other effective ways, however, to promote emissions trading while making improvements in air quality. In its 1993 Marketable Permits Feasibility Study, the TNRCC discussed "Level III" programs involving emission credits, rather than ERCs, as the units of trade to meet emissions allocations. In this study, the TNRCC concluded that the need for and appropriateness of a Level III program had yet to be demonstrated, and that further experience with more basic types of programs was advisable before progressing to this level. With regard to providing industry with additional flexibility in meeting clean air goals, the TNRCC agrees with the commenter that increasing the options for industry to achieve required emissions reductions can simultaneously serve economic and environmental interests. ARCO commented that, although no changes were proposed for sec.101.29(j)(3) (concerning depreciation of credits as the result of regulatory changes which would have required reductions from the source that created the original credit), it disagrees with the provisions of this rule paragraph. ARCO stated that, due to the significant capital expenditures required for its projects, it must rely on long-term life of ERCs created through these projects to apply to future expansions. The protection of ERCs from future regulatory requirements, referred to as a "safe harbor" rule, has been advocated by some. As the emissions banking program has developed over time, a distinction has been made between the lifetimes of credits used as offsets, versus lifetimes of credits used to fulfill reasonably available control technology (RACT) and other regulatory requirements. As adopted, sec.101.29(d) provides that an ERC withdrawn from the bank prior to the ten-year expiration and submitted with a complete permit application for use as an offset remains usable for the lifetime of the new facility or modification proposed for offset. This provision assures that a permitted new facility or modification is not jeopardized due to uncertainties in the longevity of offset credits. In contrast, any source affected by RACT rules, whether or not it is involved in trading, cannot be guaranteed a permanent "safe harbor" from future regulatory requirements, due to the evolving nature of RACT and other standards. Therefore, it is appropriate to retain the rule provision referenced by the commenter. Liddell et al expressed support for unlimited ERC life, stating that with a finite credit life, market prices are driven down as the ERC approaches expiration, and unpredictable prices create an unstable market. The emissions banking program strives to provide a favorable climate for market trading while keeping air quality goals foremost. To optimize market dynamics at the expense of air quality considerations could hinder the primary purpose of the emissions bank, which is to facilitate emissions reductions needed for attainment. Clearly, a balance between these competing needs is important. However, it would be difficult to incorporate an unlimited life for ERCs into the state's long-term air quality planning process, since such an approach could create uncertainties in the ozone control strategy and possibly delay attainment. The staff believes that extending the lifetime of ERCs from five years to ten years will help stimulate market activity, and will continue to look at ways to further encourage use of the emissions banking program. The amendment is adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), sec.382.017, which provides the TNRCC with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.101.29. Emissions Banking. (a)-(c) (No change.) (d) Length of time available. A certified Emissions Reduction Credit (ERC), generated by a stationary source, is available for use during the ten-year period after the reduction was actually achieved. The banking applicant shall identify the date the reduction was actually achieved. The ERC certificate shall indicate the expiration date for the certified reduction. If an ERC is withdrawn from the bank prior to the ten-year expiration and submitted with a complete permit application for use as an offset, the ERC remains usable for the lifetime of the new facility or modification proposed for offset. The length of time a certified Mobile Source Emission Reduction Credit (MERC) is available for use is a function of the remaining vehicle miles of the mobile source, as determined in the Accelerated Vehicle Retirement program and Alternative Fuel Requirements for Motor Vehicle Fleets. The Bank expiration date and useful life of the credit is calculated from the date the MERCs are certified. (e) ERC and MERC certification or registration. (1) -(2) (No change.) (3) The executive director shall have the discretion, subject to commission approval, to temporarily suspend the certification of applications for emission reduction credits if necessary to efficiently manage workloads in accordance with agency priorities. Registered credits need not be certified in order to be transferable. (4) Emission reduction amounts shall be determined and certified based on actual monitoring results, when available, or otherwise calculated using good engineering practices. The MERCs will be determined and certified using the methodologies provided in the Accelerated Vehicle Retirement program and Alternative Fuel Requirements for Motor Vehicle Fleets. An ERC certificate will be issued by the executive director which indicates the amount of certified emissions reduction which is available for use and the length of time the reduction is eligible for use. A MERC certificate will be issued by the executive director which indicates the total amount of certified emission reduction credits, the quantity available on an annual basis, and the date upon which the last annualized emission reduction expires. (f)-(i) (No change.) (j) Depreciation. The executive director is prohibited from depreciating any ERC or MERC, except under the following circumstances: (1) the ERC or MERC certificate has expired; or (2) regulatory changes were promulgated after the ERC or MERC certificate has been issued, which would have required reductions from the source that created the qualifying reduction. The credit shall be reduced by the amount affected by the regulatory change. (k) The ERC and MERC use. The use of ERCs and MERCs will be accomplished either through transfers or withdrawals. (1) (No change.) (2) Withdrawal. Only the owner of the certificate is eligible to withdraw deposits from the bank. Once a certificate has been issued, the ERC or MERC shall be valid for the time period indicated on the certificate, unless the certificate has been depreciated in accordance with subsection (j) of this section. Certified emission reduction credits may be withdrawn from the Bank by the original applicant at any time prior to the expiration of the credit and may be held by the original applicant to be used for netting purposes. The ERCs held by the original applicant may not be used for offsets after the expiration of the ten-year period following the date of the emission reduction, but may continue to be used for netting to the extent allowed under applicable state and federal regulations. The ERCs will be depreciated under subsection (j)(2) of this section if applicable. (l)-(m) (No change.) 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 October 11, 1995. TRD-9513220 Kevin McCalla Director, Legal Services Division Texas Natural Resource Conservation Commission Effective date: November 6, 1995 Proposal publication date: July 11, 1995 For further information, please call: (512) 239-1966 Chapter 116. Control of Air Pollution by Permits for New Construction or Modification Subchapter B. New Source Review Permits Nonattainment Review 30 TAC sec.116.150 The Texas Natural Resource Conservation Commission (TNRCC or commission) adopts an amendment to sec.116.150, concerning Nonattainment Review, without changes to the proposed text as published in the September 5, 1995, issue of the Texas Register (20 TexReg 6910). The nitrogen oxides (NO [sub]x ) requirements of sec.116.150 were originally adopted in response to a requirement by the United States Environmental Protection Agency (EPA) and the 1990 Federal Clean Air Act (FCAA) Amendments for states to implement nonattainment new source review (NNSR) for NO [sub]x in the following ozone nonattainment areas: Dallas/Fort Worth (Collin, Dallas, Denton, and Tarrant counties), El Paso (El Paso County), Houston/Galveston (Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller counties), and Beaumont/Port Arthur (Hardin, Jefferson, and Orange counties). The FCAA, sec.182(f) allows the following federally required NO [sub]x measures to be waived if the state demonstrates through photochemical dispersion modeling that NO [sub]x reductions do not contribute to ozone attainment: reasonably available control technology (RACT), NNSR, vehicle inspection and maintenance, and conformity. Section 182(f) exemptions for the Dallas/Fort Worth (DFW) and El Paso areas were approved by EPA on November 21, 1994. The TNRCC requested a temporary sec.182(f) exemption for RACT and transportation conformity for Houston/Galveston (HGA) and Beaumont/Port Arthur (BPA) to allow the results of further Urban Airshed Model (UAM) modeling to guide the NO [sub]x reduction strategy. On April 12, 1995, the EPA approved a temporary sec.182(f) exemption, which expires on December 31, 1996, for all NO [sub]x requirements in HGA and BPA. Section 116.150 requires, among other things, that NO point=4.02p [sub]x emission increases from any proposed major new or modified facility in an ozone nonattainment area be offset before commencing operation, using the appropriate offset ratio for the area. The major new or modified facility must also comply with the lowest achievable emission rate (LAER). A "netting" procedure, in which creditable emissions increases and decreases over a defined time period (contemporaneous period) are summed, may be required to be performed to determine if NNSR is necessary. If NNSR is not required, the source must still undergo state new source review. The TNRCC adopts the repeal of NO [sub]x NNSR in the DFW and El Paso ozone nonattainment areas, since UAM modeling predicts that these areas will attain the ozone standard without NO [sub]x reductions. For the HGA and BPA areas, however, further UAM modeling, using data from the Coastal Oxidant Assessment for Southeast Texas (COAST) study, is needed to determine whether NO [sub]x reductions are necessary for ozone attainment. For this reason, the TNRCC is adopting revisions that temporarily suspend, rather than repeal, certain NNSR requirements for the HGA and BPA areas. Specifically, the NO [sub]x NNSR requirements for LAER, compliance certifications, and alternative site analysis are suspended in HGA and BPA until January 1, 1998. In addition, this adoption temporarily raises the de minimis threshold level for proposed NO point=4.02p [sub]x emissions increases from 5 to 40 tons per year. Projects with NO [sub]x increases less than 40 tons per year will not be required to submit netting calculations as part of the new source review process during the temporary suspension period. However, these cumulative increases must be considered for future projects requiring netting. Existing Prevention of Significant Deterioration (PSD) rules already require projects with NO [sub]x increases equal to or greater than 40 tons per year to undergo PSD review. However, for net NO [sub]x emissions increases aggregated over the contemporaneous period which are greater than 25 tons per year (major modification level for sources in HGA or BPA), the offset requirements of sec.116.150 are in effect in accordance with the existing rule, but will be held in abeyance until January 1, 1998. During the abeyance period, there is no requirement to demonstrate that required offsets have been or will be secured. The current definitions in sec.116.12, concerning Nonattainment Review Definitions, continue to apply. In particular, the definition of "major modification" remains at 25 tons per year in the HGA and BPA areas. The suspension of requirements of sec.116.150 is retroactive to April 12, 1995, the date the EPA approved the state's temporary sec.182(f) exemption. However, companies would still have the option to be evaluated under the previous rule requirements. The current NNSR requirements for volatile organic compounds (VOC) and other pollutants besides NO [sub]x are not changed by this adopted revision. Two potential scenarios may influence the agency's future actions with regard to NO [sub]x NNSR for HGA and BPA. If the next round of UAM modeling using COAST data shows ozone benefits from NO [sub]x reductions, the waived NNSR requirements would be reinstated on January 1, 1998. Offsets which had been held in abeyance during the temporary suspension period would then be required, and affected sources would have until January 1, 2000 to obtain them. Required offsets may be obtained through reductions either internal or external to the affected source. In concurrent actions, the TNRCC conducted a hearing on October 2, 1995 to receive public comments on submitting a petition to the EPA, requesting a one-year extension of the temporary sec.182(f) exemption for HGA and BPA to December 31, 1997. If the UAM results show no ozone benefits from NO [sub]x reductions, then a permanent sec.182(f) exemption may be requested from EPA, and if granted, followed by the repeal of Chapter 117 NO [sub]x RACT rules and Chapter 116 NO [sub]x NNSR provisions in HGA and BPA. In this instance the NO [sub]x offsets held in abeyance would not be required. These changes have consequences for NO [sub]x emission reduction credits (ERCs) deposited in the TNRCC emissions bank for the purpose of selling these credits for offsets. Removal of NO [sub]x offset requirements could lead to unmarketable ERCs and, since certified ERCs are currently available for offset credits up to five years after the reduction was achieved, these ERCs could possibly expire before use. In order to help avoid this situation, separate rule amendments have been adopted on October 11, 1995 which revise the Emissions Banking rule (Chapter 101, General Rules, sec.101.29). These revisions, which apply both to NO point=4.02p [sub]x and VOC ERCs, extend the life of certified credits from five to ten years, eliminate the 3.0% per year depreciation factor for ERCs deposited in the bank, and promote additional flexibility in the use of ERCs. A public hearing on this proposal was held October 2, 1995 at the TNRCC Austin offices. In addition to the revisions to sec.116.150, the hearing concerned submittal of a petition to the EPA requesting a one-year extension of the temporary sec.182(f) exemption to December 31, 1997, and a two-year extension of the Chapter 117 NO [sub]x RACT final compliance date to May 31, 1999, for the HGA and BPA areas. Because the adoption of amendments to sec.116.150 proceeded on an expedited schedule in order to make the ongoing new source review program consistent with the federal exemption from NO [sub]x NNSR, this notice concerns only those amendments. It is anticipated that the other referenced NO point=4.02p [sub]x items will be considered by the commission later in 1995. Regarding the proposed amendments to sec.116.150, no oral comments were received at the public hearing, and written comments were received from nine commenters. Texas Utilities expressed support for the repeal of NO point=4.02p [sub]x NNSR requirements in the DFW ozone nonattainment area. Houston Lighting & Power supported the suspension of NO [sub]x NNSR requirements in the HGA area. Amoco Corporation, Dow Chemical Company, the EPA Region 6 office in Dallas, Mobil Oil Corporation, the Texas Chemical Council, and the Texas Mid-Continent Oil & Gas Association supported the repeal/suspension of NO [sub]x NNSR in the state's ozone nonattainment areas. The staff acknowledges support for the referenced amendments. The Galveston-Houston Association for Smog Prevention stated its opposition to the current Chapter 116 proposal. This adoption provides consistency between state NNSR requirements for NO [sub]x and the corresponding federal requirements which EPA has exempted through the temporary sec.182(f) exemption for HGA and BPA. By requesting an extension of the sec.182(f) exemption to December, 1997, the TNRCC aims to base its ozone control strategy on the soundest possible technical foundation, for which the next round of UAM modeling, using COAST data, is essential. As a safeguard against possible excessive NO [sub]x increases during the temporary suspension period, the rule amendments provide that offsets held in abeyance must be obtained if supported by future UAM modeling results. The amendment is adopted under the Texas Health and Safety Code (Vernon 1992), the Texas Clean Air Act (TCAA), sec.382.017, which provides the TNRCC with the authority to adopt rules consistent with the policy and purposes of the TCAA. 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 October 12, 1995. TRD-9513093 Kevin McCalla Director, Legal Services Division Texas Natural Resource Conservation Commission Effective date: November 2, 1995 Proposal publication date: September 5, 1995 For further information, please call: (512) 239-1970 Chapter 290. Water Hygiene The Texas Natural Resource Conservation Commission (TNRCC or commission) adopts the repeal of 30 TAC sec.sec.290.47-290.50, amendments to sec.sec.290.38, 290. 39, 290.41-290.46, and new sec.290.47 and sec.290.121. Amendments to sec.sec.290.38, 290.39, 290.41-290.46 and new sec.290.47 and sec.290.121 are adopted with changes to the proposed text as published in the June 13, 1995, issue of the Texas Register (20 TexReg 4324). The repeals are adopted without changes and will not be republished. The purpose of these adopted revisions is to clarify language and to meet the requirements of Senate Bills 812, 813, 815 (enacted during the 73rd Legislative Session) relating to plumbing requirements and the revised federal Surface Water Treatment Rule. This has been accomplished by referencing new state plumbing codes; establishing new exception criteria; strengthening the cross connection control, plumbing inspections, and lead ban provisions; incorporating definitions to define new terms; clarifying separation distances between water supply mains and other utilities; providing greater protection to well sites from potential sources of contamination; and incorporating various policies and rule interpretations which have been established since the last revision. A public hearing on these proposed rules was conducted on August 8, 1995 in Austin, Texas. Oral and/or written testimony on these rules was provided by 81 commenters. Oral and/or written testimony in support of all or certain sections of the proposed rules was provided by the following groups: American Water Works Association-Texas Section, Association of Water Board Directors -Texas, Austin Lawn Sprinkler Association, Building Officials Association of Texas, Capital Area Builders' Association, City of Balmorhea, City of Marfa, The Town of Van Horn, Texas Ground Water Association, Texas Municipal League, Texas Municipal Utilities Association, Texas Rural Water Association, Texas Turf Irrigation Association, Texas Water Utilities Association, Walker County Rural Water Association, and other interested individuals. Oral and/or written testimony in support of certain sections but which also questioned and/or opposed other sections of the proposed rules was also provided by the following groups: City of Houston, City of Odessa, City of Plainview, City of Wichita Falls, Turner Collie and Braden Inc., and other interested individuals. Oral and/or written testimony which requested clarification, questioned certain sections, and/or opposed certain sections of the proposed rules was also provided by the following groups: Akin, Gump, Strauss, Hauer and Feld, L. L.P. on behalf of the Texas Manufactured Housing Association, Almeda Water Well Service, Alexander Engineering, Inc., American Backflow Prevention Association, ARCO Chemical Company, Associated Plumbing-Heating-Cooling Contractors of El Paso, Associated Plumbing-Heating-Cooling Contractors of Texas, Auto Brite Company, A.C.E. Companies, Billy Green Water Service, Brown and Gay Engineers, Central and South West Services, Inc., CH2M HILL, City of Amarillo, City of Austin, City of Coppell, City of Grand Prairie, City of Irving, Consulting Engineers Council of Texas, Dallas Water Utilities, Dixie Chemical Company, Inc., ECO Resources, Inc., Elite Plumbing Corporation, Exxon Company, U.S.A., E.L. Smith Plumbing, Inc., Fort Worth Water Department, Fountainhead Municipal Utility District, Hayter Engineering, Inc., Houston Lighting and Power, Independent Water Service Companies of Texas, Jack's Plumbing of Amarillo, Inc., Lockwood, Andrews and Newnam, Inc., LONZA, Inc., Monroe Plumbing Company, Muniservice Corporation, MTS Utilities Management, Neely Water Well Service, O'Day Drilling Company, Inc., Pickett Plumbing, Inc., Planners Inc., Plumbing Education Council of Texas, Raven Mechanical, Inc., San Antonio Water System, Scanlan and Buckle, P.C., Shell Western E. and P., Inc., Sun Belt Engineers, Inc., Texas State Board of Plumbing Examiners, Texas Water Well Drillers Advisory Council, TNT Associates, Trinity River Authority of Texas, Utility District Advisory Corporation, Vinson and Elkins, and Water, Environmental and Technical Services, Inc., and other interested individuals. The following paragraphs summarize the comments received. Several commenters noted the effective date of July 1, 1995 for certain provisions of this rule was no longer applicable. Other commenters suggested an effective date of January 1, 1997. The commission has changed the effective date to January 1, 1996 in the following sections: sec.sec.290.42(d)(10)(c)(vi) and (D)(v), 290.44(h)(4), and 290.46(j). One commenter questioned whether the commission had performed cost/benefit analyses for complying with certain sections of the rules. The commission responds that fiscal impacts on the commission, the regulated community, and consumers were considered and were identified in the preamble of the proposal as published in the June 13, 1995, issue of the Texas Register (20 TexReg 4324). Another commenter asked how much time water suppliers, also referred to as water purveyors, would have to fully implement and comply with all the new provisions of this rule. The commission responds that the effective date of many of the new provisions is January 1, 1996. The commission further responds that areas of noncompliance will be identified in the routine sanitary surveys, and noncompliant water suppliers will be provided sufficient time to address the issue. One commenter requested a definition be provided for the term "high health hazard". The commission notes this definition was already in sec.290.38, Definitions, of the proposed rule. Several commenters requested further clarification on the definition of "high health hazard". The commission believes the proposed definition adequately addresses all situations that may result in high health hazards. Therefore, no changes are necessary. Another commenter also suggested adding a definition for "low health hazard". The commission disagrees because this term is not referenced or used anywhere in the rules, and thus is unnecessary. Another commenter suggested the definition for "intruder-resistant fence" be revised to require the barb wire to extend inward instead of outward. The commission contends that an outward extension makes the fence more resistant to climbers and has therefore made no changes to this definition. Another commenter noted the definition for "Water Supply Protection Specialist" was vague and suggested it be divided into categories of specialists. The commission responds that it has adopted the definition as it is set forth by Senate Bill 813 (1993). The commission believes it was not the intent of this Legislation to have categories of specialists. The commission has revised sec.290.39(a) to change references from Texas Water Commission to the Texas Natural Resource Conservation Commission. This section had not been proposed for changes, but has been revised to reflect the name changes. One commenter expressed concern over sec.290.39(g) which requires that plans and specifications for distribution line extensions be certified by the registered professional engineer to be in compliance with sec.290.44. This commenter is concerned this provision will stifle variances even when they are cost-effective and/or will subject registered professional engineers to potential liability if a variance that is approved causes damage. The commission clarifies that the intention of the rule is to provide exceptions only for fully compliant installations and to reduce the duplication of effort in these instances. The commission believes no changes are necessary. With regard to sec.290.39(d)(4), several commenters questioned the need for completing sanitary control easements when a plan for a well is submitted. The commenters note that in many cases the test hole does not yield an acceptable water supply and the location is not developed into a well. Thus, the easement is not necessary at this point. The commission agrees and has revised sec.290. 39(d)(4) to indicate that easements must be completed and provided to the commission prior to placing the well into service. Several commenters noted a portion of the text in sec.290.41(c)(1)(A) had been omitted. The commission has corrected sec.290.41(c)(1)(A) to reflect the omitted text. The commission has also revised sec.290.41(c)(a)(A) to add the term "sanitary" to require that "sanitary" or storm sewers constructed of ductile iron or PVC pipe meet all the specified requirements. In sec.290.41(c)(1)(A), relating to the location of ground water sources, one commenter noted that there are existing well sites in certain areas that are in close proximity to oil and gas transmission lines. This commenter suggested these facilities be grandfathered so that they may continue to be available for production. The commission responds that existing sanitary control easements will not have to be modified to include the new potential pollution hazards specified in sec.290.41(c)(1)(A)-(E), thus grandfathering facilities with existing easements. One commenter suggested beginning with the words "all known" in sec.290.41(c) (1)(E) relating to abandoned or inoperative wells located within one quarter mile of a proposed wellsite which must be reported to the commission. The commission agrees and has made the suggested change. The commission also notes that incorporating the phrase "all known" does not relieve the water supplier of the responsibility for identifying abandoned or inoperative wells within one quarter mile of a proposed wellsite. The phrase "all known" means that the water supplier, to the best of his/her ability and judgement, has identified all abandoned or inoperative wells. The commission further notes that without the terms "all known" the provision implies that water suppliers must survey all individual homes and businesses within the one quarter mile area. Additionally, the commission notes that water suppliers do not have the authority to go on private property, therefore, would have to obtain permission prior to entering. This would create an undue burden on the water suppliers. Another commenter noted that the surveying of potential contamination sources required in sec.290.41(c)(1)(E) would not result in any tangible benefits because the provision did not provide for action to reduce the potential risk of pollution. The commission agrees and has deleted sec.290.41(c) (1)(E)(i)-(iii). The commission further notes that this section did not provide for action to be taken because, in effect, it would have resulted in a mandatory wellhead protection program. The commission further notes that the wellhead protection is a federal voluntary program. Another commenter suggested deleting sec.290.41(c)(1)(E)(i) because it was redundant and implied that all abandoned wells or inoperative wells are to be inventoried, regardless of the relationship to a proposed well. The commission also agrees with this comment and has deleted sec.290.41(c)(1)(E)(i)-(iii). Another commenter suggested the term "abandoned well" as referenced in sec.290.41(c)(1)(E)(i) be defined. The commission has clarified in sec.290.41(c) (1)(E) that an abandoned well is unused well that has not been plugged. The commission has also deleted sec.290.41(c)(1)(E)(i)-(iii). Another commenter suggested that sec.290.41(c)(1)(E) be revised to exclude the requirement to report low-pressure natural gas distribution lines. The commission agrees and has revised sec.290.41(c)(1)(A) and (E), and 290.47, Appendix C, Sample Sanitary Control Easement, to add the term "liquid" in front of "petroleum and petrochemical production, storage and transmission facilities". With regard to sec.290.41(c)(1)(F), one commenter requested clarification on whether existing sanitary control easements would have to be modified to include the new pollution hazards specified in sec.290.41(c)(1)(A)-(E). The commission clarifies that existing easements do not need to be modified. The commission believes no changes with regard to this comment are necessary. Another commenter requested clarification on the intent of sanitary control easements. The commission clarifies that the purpose of the easement is to create a legal document which prohibits pollution hazards from being installed within regulated distances after the well is constructed. The commission has also revised sec.290.41(c)(1)(F) to clearly specify that for the purpose of this easement an improperly constructed water well is one that does not meet the surface and subsurface construction standards for public water supply wells. Relating to sec.290.41(c)(3)(A) and the documentation required before final approval is granted for the use of a well, one commenter suggested an interim approval be allowed especially for emergency situations. This commenter noted that Texas Department of Health laboratory testing results, which is one of the required documents, can take up to six months which would then delay the use of the well for six months. The commission responds that interim approval can be granted during the plans review process based on private lab results and that final approval is contingent upon the Texas Department of Health's laboratory results. With regard to sec.290.41(c)(3)(F)(i), one commenter questioned whether the commission is developing a policy specifying which well repair activities require three consecutive day bacteriological tests and which require a single test. This commenter also suggested that this policy be included in the rules. The commission responds that this policy is still under review, and if developed, would be included in the next rules revision. The commission further notes that such a policy would provide guidance for allowing variances to the existing sec.290.41(c)(3)(F)(i). This section requires that before placing a well in service, the water containing the disinfectant shall be flushed from the well and then samples of water shall be collected and submitted for microbiological analysis until three successive daily raw water samples are free of coliform organisms. The analysis of these samples must be conducted by a laboratory approved by the Texas Department of Health. The commission further notes that in the absence of such a policy, the testing of all wells must comply with sec.290.41(c)(3)(F)(i). Another commenter questioned the inclusion of sec.290.41(e)(1)(B) relating to the disposal of all liquid or solid wastes and sec.290.41(e)(1)(E) relating to the use of pesticides and herbicides. The commission responds that these sections are included in the rules to recognize essential public health practices. The commission further clarifies that these sections are intended to serve as information for the water suppliers and the public. One commenter requested clarification on sec.290.41(e)(1)(C) relating to sewage disposal requirements and whether such requirements applied to both public and private facilities. The commission clarifies that this requirement applies to all types of facilities. The commission believes no changes to sec.290.41(e)(1)(C) are necessary because the rule language as proposed states, "shore installations, marinas, boats and all habitations," which refers to all types of facilities. Another commenter requested clarification on the definition of "watershed" found in sec.290.41(e)(1)(E) relating to pesticides and herbicides being used within the watershed in accordance with the product label restrictions. The commission clarifies that the term "watershed" refers to the geographic area that contains a common outlet into which water sediments and dissolved materials drain. The commission believes no changes to sec.290.41(e)(1)(E) are necessary. One commenter suggested sec.290.41(e)(2) be revised because it was too vague. The commission agrees and has revised sec.290.41(e)(2) to incorporate the following language provided by the commenter: "Intakes shall be located and constructed in a manner which will secure raw water with the best quality available from the source". Another commenter requested clarification on the definitions of "immediate" and "excessive" found in sec.290.41(e)(2)(A) relating to intake locations. This commenter also questioned the purpose of this section. The commission responds that this section has been in the rules since 1967 and has proven to be effective in securing the best location for raw surface water intakes and in limiting the amount of silt and runoff from wooded sloughs or swamps in raw surface water. The commission further clarifies that intakes must not be directly located in areas subject to "excessive" siltation or large amounts of silt which may affect the water treatment system. The commission further clarifies that the phrase "immediate runoff from wooded sloughs or swamps" means that an intake location must not be right in a wooded slough or swamp or too close to them. The commission further notes that this provision has only been reorganized and renumbered. The commission believes no changes to sec.290. 41(e)(2)(A) are necessary. One commenter noted a grammatical problem with sec.290.41(e)(2)(B). The commission agrees and has revised sec.290.41(e)(2)(B) to incorporate "which are accessible by the public" in order to clarify that raw water intakes shall not be located within 1,000 feet of boat launching ramps, marinas, docks or floating fishing piers which are accessible by the public. Another commenter requested to be grandfathered from the provisions in sec.290.41(e)(2)(B) and sec.290.41(e)(2)(C). These sections require that raw surface water intakes not be located within 1,000 feet of public boat launching ramps, marinas, docks or floating fishing piers and shall include a restricted zone of 200 feet radius from the raw water intake to prevent public access. The commission responds that these provisions have been in the rules since 1967 and have been effective in securing the best raw surface water intake location. Additionally, the commission notes that affected water suppliers should already be in compliance. The commission further notes that these are not new provisions as they have only been reorganized and renumbered. The commission believes no changes to sec.290.41(e)(2)(B) or (C) are necessary with regard to this particular comment. The commission found an inaccurate reference in sec.290.42(b)(2)(A) which had not been proposed for changes. The commission has corrected the reference to read sec.290.42(d)(10) instead of sec.290.42(c)(10). With regard to sec.290.42(d)(2)(E), another commenter noted that retrofitting of filter-to-waste connections to provide air gap connections is an expensive proposition. The commission clarifies that this provision has been in the rules since 1967 and has been effective in achieving safe drinking water treatment levels. The commission believes no changes to sec.290.42(d)(2)(E) are necessary. One commenter requested clarification on sec.290.42(d)(6)(A) as to whether local resupply ability can offset storage requirements and/or inventory of chemicals. The commission clarifies that local supply of chemicals can affect storage and/or inventory requirements. These requirements depend on the proximity of the water supplier to a chemical company. With regard to this comment, the commission believes no changes to sec.290.42(d)(6)(A) are necessary. This commenter also questioned whether a separate room for the storage of dry chemicals is really necessary as required by sec.290.42(d)(6)(C). The commission agrees with this comment and has revised sec.290.42(d)(6)(C) to no longer require a "separate" room. One commenter opposed the wording in sec.290.42(d)(7)(D) which reads "Chemical feeders shall be provided with dissolving tanks when applicable". The commission agrees and has revised sec.290.42(d)(7)(D) to incorporate the suggested language as follows: "Chemical feeders shall be provided with tanks for chemical dissolution when applicable". Another commenter suggested an explicit provision for hydraulic or static in- line mixers be incorporated in sec.290.42(d)(7)(F). The commission believes no changes are necessary to sec.290.42(d)(7)(F) because hydraulic or static in-line mixers are not excluded. Another commenter requested clarification on sec.290.42(d)(7)(H) relating to chemical application points. The commission agrees and has revised sec.290.42(d) (7)(H) and has added new sec.290.42(d)(7)(I) to clarify that chemical application points be established at points where needed to adequately treat the water with sufficient opportunity to ensure quality control in the finished water. One commenter suggested that portable units be allowed in sec.290.42(d)(9)(A) as facilities for sludge depth determination. The commission responds that the use of portable units is not prohibited. Therefore, no changes are necessary. With regard to sec.290.42(d)(9)(C), this commenter also noted that depths of 16 feet and greater can perform acceptably with the proper length to width ratio. The commission clarifies that deeper basins are not prohibited by this section. With regard to sec.290.42(d)(10) one commenter opposed the use of pressure filters being limited to installations with a treatment capacity of less than 0.5 million gallons per day. The commission responds that pressure filters are not easily inspected on a routine basis and thus, this limitation is necessary. One commenter requested clarification on sec.290.42(d)(10) as to whether the requirement for gravity or pressure type filters applies to surface water treatment facilities only and not ground water treatment facilities. This commenter also requested clarification on whether this provision applies to treatment facilities constructed prior to the effective date of this rule. The commission clarifies that this requirement applies only to surface water treatment facilities. The commission further responds that sec.290.42, Water Treatment, contains a subsection which sets forth the requirements for the water treatment of ground water and another subsection which sets forth the requirements for the water treatment of surface water. There is no such reference of the requirement for gravity or pressure type filters in the subsection relating to treatment of ground waters. Additionally, the commission clarifies that this requirement has historically and will continue to apply to new installations of surface water treatment facilities. This requirement only applies to old installations when filters must be replaced. Therefore, the commission believes no changes to sec.290.42(d)(10) are necessary. Another commenter suggested the definition for "freeboard" provided in sec.290.42(d)(10) be revised. The commission notes that technical terms used, other than the ones formally defined in sec.290.38, shall have the meanings or definitions listed in the latest edition of "Glossary, Water and Wastewater Control Engineering," prepared by a joint editorial board representing the American Public Health Association, American Society of Civil Engineers, American Water Works Association, and the Water Pollution Control Foundation. Another commenter suggested sec.290.42(d)(10) be revised to allow for flexibility of operating at higher filtration rates as long as treatment performance is not compromised. The commission notes that sec.290.39(i) relating to exception criteria provides for flexibility in this area as well as many others. The commission believes no changes with regard to this comment are necessary. One commenter suggested the effective sizes, media depths, and uniformity coefficients in sec.290.42(d)(10)(A) be reevaluated in light of new turbidity standards. The commission responds that the current requirements are adequate to reach the new turbidity standards set forth by the federal Surface Water Treatment Rule. The commission further notes that these issues are evaluated in the plans and specifications review process under sec.290.39. Another commenter suggested revising sec.290.42(d)(10)(B) to indicate that support material must be of sufficient quantity and of the appropriate size materials to support the filter media over time in a manner that will provide optimum filtration. The commission notes that it is stated in this section that "other" support material may be approved on an individual basis. Therefore, no changes are necessary with regard to this comment. Another commenter suggested the wording in sec.290.42(d)(10)(C)(ii) be revised to indicate that the designer can use a maximum design rate "no greater" than five gallons per minute, leaving the option to use a lesser maximum rate to the registered professional engineer. The commission agrees and has revised sec.290.42(d)(10)(C)(ii) to reflect this comment. Also with regard to sec.290.42(d)(10)(C)(ii), another commenter suggested that rates above five gallons per minute be allowed when engineering data, pilot plant test data, full scale installation data, and other necessary information is provided to the commission. The commission notes that this can be achieved through an exception under sec.290.39(i). Another commenter suggested sec.290.42(d)(10)(D)(i) be revised to read: "Only fully treated water shall be used to backwash conventional media filters." in order to allow for the backwashing of other filters with untreated water. The commission responds that fully treated water is necessary for backwashing all filters. The commission also notes that a water supplier may apply for an exception under sec.290.39, therefore, no changes are necessary. Another commenter suggested sec.290.42(d)(10)(D)(iii) be revised to base the minimum backwash flow rate on the calculation of the minimum fluidization velocity. The commission responds that this can be achieved through an exception under sec.290.39(i). One commenter suggested sec.290.42(d)(13) include a sampling tap for plant discharge water because it is necessary for final trimming of chemical dosages. The commission agrees and has revised sec.290.42(d)(13) to include that all surface water treatment plants provide sampling taps for raw, settled, filtered, and finished water, and clearwell discharge. With regard to sec.290.42(e)(5) relating to a breathing apparatus or air respirator being readily available when testing chlorine leaks, one commenter suggested the term "readily" be defined. The commission responds that this term was not defined in order to provide more flexibility to systems. Therefore, no changes are necessary. One commenter noted a missing word in sec.290.42(e)(7). The commission has incorporated the term "level" between the words "floor" and "vent". Another commenter requested that the minimum acceptable size of fan based on air exchanges for the chlorine room be provided in sec.290.42(e)(7). The commission responds that this section is intended to provide flexibility to the water supplier. One commenter opposed sec.290.42(e)(10) which requires ammonia chemical storage facilities be enclosed and ventilated. This commenter notes that this requirement would necessitate renovation of facilities previously approved by the commission and suggests that if retrofitting is required, a compliance period be specified. The commission responds that this requirement is necessary to ensure the safety of the operators. The commission also notes that noncompliance will be identified in the routine sanitary surveys and that full compliance should be achieved within one year of the effective date of these rules. With regard to sec.290.42(e)(10)-(11), one commenter noted that the term "ammonia" should read "anhydrous ammonia" to refer to the gaseous form of the chemical that these sections address. The commission agrees and has made the changes to sec.290.42(e)(10)-(11). One commenter questioned the intent of the emergency evacuation plan or procedures as proposed in sec.290.42(e)(11). The commission clarifies that the plan and procedures apply to both the evacuation of the plant and the surrounding community. Another commenter noted that an effluent of 0.5 NTU or less in at least 95% of the measurements as required by sec.290.42(f) does not seem applicable for all kinds of treatment processes and requested clarification. The commission notes this is a prescribed requirement of the federal Surface Water Treatment Rule. The commission must strictly comply with and enforce all federal rules pursuant to the Safe Drinking Water Act in order to maintain primacy status. One commenter suggested nontransient noncommunity systems be exempt from developing and maintaining plant operations manuals as required by sec.290.42(j) . This commenter also suggested that all other systems be allowed one year to develop these manuals. The commission disagrees with both suggestions because operations manuals are critical to the operation of a water system especially when new operators join a water system and in the event of an emergency. An operations manual must contain sufficient detail to provide the operator with routine maintenance and repair procedures as well as provide telephone numbers of water system personnel, system officials, and local/state/federal agencies to be contacted in the event of an emergency. Therefore, the commission believes all water systems must have completed operations manuals within six months of the effective date of these rules. One commenter suggested sec.290.43(c) be revised to require that no area of the roof have a slope of less than 0.75 inch "per" foot. The commission agrees and has made the suggested change. Another commenter questions whether sec.290.43(c)(2) removes the requirement for a 30-inch diameter roof access opening if an alternate 30-inch opening is provided. The commission responds that this is not a new requirement. Since 1988 the commission has required that the primary roof access opening not be less than 30 inches in diameter if an alternate 30-inch diameter access opening is not provided in the storage tank. The only new provision is that the commission now allows a water supplier to postpone coming into compliance with this 30-inch requirement until any major repair or maintenance is performed on the tank. With regard to sec.290.43(c)(5) relating the location of inlet and outlet connections and clearwells used for disinfectant contact time, one commenter requested clarification on the meaning of "appropriately baffled". Another commenter opposed sec.290.43(c)(5) which requires baffling of clearwells and questioned whether baffling will be beneficial. The commission clarifies that the method of baffling can be designed by the registered professional engineer to meet specific performance standards and that it can be accomplished a number of ways depending on the clearwell configuration. The commission further notes that baffling is an essential part of treatment optimization because it prevents short circuiting of water in the tank and increases chlorine contact time. Another commenter suggested sec.290.43(c)(5) be revised to indicate that the inlet should be rotated at least 45 degrees away from the tank outlet to prevent short circuiting. The commission responds that this section is intended to provide flexibility to the water supplier in meeting the performance standards. One commenter requests clarification on what is required in sec.290.43(c)(7) relating to the method for removing silt. The commission clarifies that the method for removing silt is to be designed by the engineer. With regard to sec.290.43(f), one commenter questioned the need for automatic low water level cutoff devices in larger plants where the storage tanks are large enough to provide ample reaction time and where there is 24-hour, year- round supervision of the water plant by a certified operator. This commenter requested such devices be made optional for plants with round-the-clock certified operators and where the plant supervisor believes the storage capacity is such that the risk of damaging pumps due to a low water level is minimal. The commission responds that such a situation may be grounds for granting an exception under sec.290.39(i). All applications for exceptions will be reviewed on a case-by-case basis and are based on a number of different factors, including the type of equipment, the level of operator certification, water usage rates, the diversity of demand, and history of water outages. Therefore, no changes are necessary. Several commenters suggested sec.290.43(d)(1) relating to the factor of safety requirement of 4 to 1 pressure testing for galvanized 1,000 gallon or less pressure tanks be reduced to 2 to 1. These commenters also suggested the 1/8 inch corrosion allowance be removed because it has resulted in increased costs for pressure tanks with no increase in the level of protection. The commission agrees with this comment and has revised sec.290.43(d)(1) although this section was not proposed for changes. The commission also disagrees with the comment relating to the factor of safety requirement and is keeping the 4 to 1 factor of safety, which has been in the rules since 1978. The commission believes that a 4 to 1 factor is not unreasonable and provides sufficient protection against tank failure and possible operator injury. Another commenter suggested that certain systems be exempt from the utilization of service pump low suction cut-off devices as required by sec.290. 43(f). The commission notes that sec.290.39(i) relating to exception criteria provides for flexibility in this area as well as many others. Therefore, no changes with regard to this comment are necessary. Another commenter suggested sec.290.44(a)(1) be revised to require all newly installed pipes and related products also be inspected by a Water Supply Protection Specialist. The commission disagrees and believes the required certification by an organization accredited by ANSI is adequate. Therefore, no changes are necessary. Another commenter questioned whether "related products" in sec.290.44(a)(1) refers to all water distribution products. This commenter also noted that many water distribution products have no "listed" manufacturer which makes it difficult to determine whether the products conform to the required standards. This commenter further requests this section be revised to address these types of situations. The commission clarifies that "related products" includes all water distribution products and notes that this requirement has been in effect since 1991. Therefore, all manufacturers should already be in compliance. Another commenter suggested the wording in sec.290.44(a)(2) be revised to read "pressure rating of at least 150 psi or a standard dimension ratio of 26 or less". The commission agrees and has made the suggested change to sec.290. 44(a)(2). With regard to sec.290.44(a)(4), one commenter suggested consideration be given to meter setting depths with change in minimum water line bury from 12 to 24 inches. The commission clarifies that this section is referring to water main burials and not meters and service lines. Therefore, no changes are necessary. With regard to sec.290.44(b), one commenter notes that where galvanized pipe or pipe dope has the allowable percent of lead in its manufacture, the water is generating an unacceptable amount of lead. This commenter further notes that pipe, fittings, pipe dope compound, well pumps and other plumbing fixtures should be zero lead. The commission notes that this requirement is the same as the federal requirement. The commission believes these lead requirements are adequate. One commenter suggested that mobile home parks (manufactured housing communities) be exempt from the minimum line size requirement set forth in sec.290.44(c). The commission disagrees and believes this rule is appropriate. This rule was initially developed to address such problems with all public water systems, including mobile home parks. The commission believes no changes to sec.290.44(c) are necessary. With regard to sec.290.44(d), another commenter suggested allowances be made for using less than 1.5 gallons per minute per connection for system design where computer modeling is used to simulate system responses to emergency conditions. The commission agrees and notes that such allowances can be provided under sec.290.39(i). Thus, no changes are necessary with regard to this comment. One commenter noted some extraneous words in section sec.290.44(d)(1). The commission has deleted the word "all air" in sec.290.44(d)(1). Another commenter questioned whether the requirement in sec.290.44(d)(1) relating to the installation of air release devices was purely based on topography. The commission responds that this section clearly specifies that air release devices be installed in the distributions system at all points where topography or other factors may create air locks in the lines. One commenter noted that no other standards other than the standards of the American Society for Testing and Materials (ASTM) are specified in sec.290.44(e) (1) and questioned whether other acceptable standards, such as standards of the American Water Works Association (AWWA), were allowed. With regard to this comment, the commission has revised sec.290.44(e)(1) to provide for the use of both AWWA and ASTM approved standards, unless otherwise specified. Another commenter requested clarification on sec.290.46(e)(4) with regard to the meaning of "change in responsibilities". The commission clarifies that certified operators must provide to the commission signed notices of the public water system they are employed by and that they must also provide amended notices if their responsibilities change. The commission further clarifies that any change in responsibility requires an amendment to the notice in order to insure that the current certification is adequate. Another commenter opposed the requirement of 150 psi pressure rated pipe in non-pressure sanitary sewer applications in sec.290.44(e)(5)(A)-(B). The commission believes this requirement is necessary because it provides maximum protection against leakage. Another commenter questioned why under sec.290.44(e)(5)(A)(ii) only a 150 psi pressure rated pipe meeting ASTM specifications was allowed and not a AWWA approved pipe. With regard to this comment, the commission has revised sec.290. 44(e)(1) to specify that all ratings shall be defined by ASTM or AWWA standards unless otherwise stated. Additionally, the commission has revised sec.290.44(e)(5)(A)(ii) to delete references to ASTM since it is already referenced in sec.290.44(e)(1). One commenter suggested sec.290.44(e)(5)(A) (i)-(ii) be revised to change the references from "certifying registered professional engineer" to "design engineer" to be consistent with the terminology used elsewhere in the rules. The commission has revised various sections to change all references from "design engineer" to "registered professional engineer". The commission believes the term "registered professional engineer" is more appropriate and is already defined in sec.290.38, Definitions. With regard to sec.290.44(e)(5)(A)(i) relating to new potable water lines parallel to existing wastewater lines, one commenter suggested the following wording, "...and the design engineer is able to determine that the existing line is not leaking...". The commission has incorporated the suggested wording. Another commenter suggested that the requirement for the replacing of wastewater lines that show signs of leaking as required by sec.290.44(e)(5)(B) (i)-(ii) be changed from at least 15 feet in both directions (30 feet total) to at least nine feet in both directions (18 feet total). The commission agrees and has revised those sections to incorporate the suggested changes. One commenter requested sec.290.44(e)(5)(B)(i)-(ii) be revised to clarify the definition of "disturbed". The commission clarifies that "disturbed" refers to the moving or dislocating of the wastewater line's support that may result in cracks, leaks, or breaks. The commission believes no changes are necessary. Another commenter requested sec.290.44(e)(5)(B)(iii) be revised to allow for the use of equal or better alternatives to cement stabilized backfill. The commission responds that alternatives are evaluated during the plans and specifications review process and may be allowed as an exception under sec.290. 39. Therefore, no changes are necessary. Also with regard to sec.290.44(e)(5)(B)(iii), another commenter questioned whether cement stabilized sand is appropriate because if it is not flexible enough it may crack. The commission responds that this is the best method available to prevent upward migration of wastewater. With regard to sec.290.44(e)(5)(B)(iv)(II), one commenter questioned whether it is necessary to have a minimum pipe stiffness for the encasing pipe since the pipe is sealed at each end with water tight non-shrink cement grout. The commission responds that sealing the pipe at both ends is necessary to protect the interior of the pipe from the infiltration of contaminants. Also with regard to sec.290.44(e)(5)(B)(iv)(II), another commenter noted that depending on the manufacturer of the spacers and the material type of the carrier pipe, the spacers for the carrier pipe can be up to 10-feet or greater intervals. The commenter suggested revising this provision. The commission responds that exceptions are provided under sec.290.39(i). This commenter also questioned whether the entire length of the encasing should be filled with washed sand, and if so, the set up time for the non-shrink grout will prevent this from working as an end seal. The commission agrees that the longer the encasement the less likely the washed sand will accomplish its purpose and responds there are other alternatives available for these situations. Also with regard to sec.290.44(e)(5)(B)(iv)(II), this commenter further suggested the commission define minimum separation from the encasement to the outside of the manhole and noted that construction constraints or service requirements may preclude encasing the waterline. This commenter also questioned whether the commission had evaluated the use of a water-tight manhole, manhole ring and cover. The commission responds that it has not conducted such an evaluation but that this method can be allowed through the plans and specifications review process under sec.290.39. Regarding the separation from the encasement to the outside of the manhole, the commission responds that under sec.290.44(e)(6), a minimum separation distance is defined as nine feet. This commenter also questioned whether restraint type joints used for ductal iron pipe would be allowed under sec.290.44(e)(5)(B)(iv)(III). The commission clarifies that these type joints are not excluded in this section. This commenter further questions what procedures are to be used when a wastewater line is removed and replaced. The commission clarifies that removing and replacing a wastewater line would be considered a new wastewater line and would follow procedures for placing a new wastewater line. This commenter further suggested that a six-inch separation space be allowed between water and wastewater lines. The commission agrees that a separation distance be established but believes six inches is not sufficient. The commission has revised sec.290.44(e)(5)(B)(iv)(III) to require an absolute minimum separation distance of one foot between the water line and the wastewater line and to require that both lines pass a pressure and leakage test as specified in AWWA C600 standards. The commission has revised sec.290.44(e)(5)(B)(iv)(II) to move the words "(no longer)" immediately after "18 foot". Additionally, the commission has revised sec.290.44(e)(5)(B)(vi) to require that cement stabilized sand bedding be a minimum of six inches above and "four inches below" the sewer pipe. Several commenters disagreed with sec.290.44(e)(7) that fire hydrants should not be allowed within nine feet of a sanitary sewer line regardless of construction. The commission notes that this is not a new requirement and has not proven to be a problem in the past. Thus, no changes are necessary. With regard to sec.290.44(h)(4), another commenter questioned who would determine that a situation or area is a high health hazard. The commission responds that the water supplier is to determine whether a situation is a high health hazard. Several commenters supported the testing of backflow prevention devices by any qualified tester as set forth in sec.290.44(h)(4)(A). Some of these commenters also suggested that trained backflow prevention device testers be allowed to repair the devices as well. These commenters also suggested liability insurance be required of all testers if they are allowed to repair. Several other commenters noted that all licensed plumbers are required to have liability insurance in case of property damage during the testing and/or repair of these devices. The commission agrees and has revised sec.290.44(h)(4) (A)(i) and (ii) to allow testers to also conduct repairs. The commission believes that although liability insurance is a prudent measure, it is appropriate to leave this requirement to the discretion of the water supplier. The commission further notes that it wants to provide maximum flexibility to water suppliers by allowing General Testers to test as well as repair. Numerous other commenters opposed the testing of backflow prevention devices by any qualified tester as set forth in sec.290.44(h)(4)(A). These commenters suggested testing and repair of backflow prevention devices be limited to licensed plumbers only. One of these commenters suggested that testing and repair be limited to only licensed plumbers who have completed a commission approved training course and are licensed as Water Supply Protection Specialists. These commenters also noted the Texas Plumbing License Law considers backflow prevention devices as part of a plumbing system and therefore should only be tested and repaired by licensed plumbers. These commenters further noted that non-plumbers do not have sufficient training. The commission disagrees and believes no changes to sec.290.44(h) are necessary with regard to these comments. The commission believes a backflow prevention device is an appliance and can be tested and repaired by any tester meeting the requirements set forth in sec.290.44(h)(4)(A). The commission also believes these requirements provide for adequate training. Also with regard to sec.290.44(h)(4), another commenter noted that according to the Texas Plumbing License Law, plumbers holding a license issued by the Texas State Board of Plumbing Examiners are the only ones recognized to make repairs to potable water systems, including backflow prevention devices. The commission disagrees. Section 3 of the Plumbing License Law states that "plumbing work done by persons engaged by any public service company in the laying, maintenance and operation of its service mains or lines to the point of measurement and the installation, alteration, adjustment, repair, removal, and renovation of all types of appurtenances, equipment and appliances, including doing all that is necessary to render the appliances usable or serviceable" is permitted without a plumbing license. One commenter suggested that sec.290.44(h)(4)(F) list the types of professionals that will be allowed to "repair" backflow prevention devices. This comment has already been addressed since the commission has revised sec.290.44(h)(4)(A)(i) and (ii) to allow testers to also conduct repairs. Another commenter opposed the "Fireline Tester" classification in sec.290. 44(h)(4)(A)(ii). The commission responds that the Fireline Tester is an existing classification of the State Fire Marshall's Office and cannot be deleted. This commenter also suggested breaking the "General Tester" into two types of testers: a general tester and a limited tester. The commission responds that prior to publication of the proposed rules the following four types of testers were being proposed: Limited Tester, Irrigation Tester, General Tester (plumbers only), and Fireline Tester. However, in response to comments received during the informal comment process, the commission decided that the General Tester and the Fireline Tester were the best choices. Another commenter questioned whether a Fireline Tester could also test the same type of devices installed in locations other than firelines. The commission responds that a Fireline Tester can also be a General Tester by taking the required course and passing the required examination. This commenter also noted that the commission does not recognize persons certified by other entities. The commission clarifies that it recognizes persons certified by other entities that base their examination on ABPA, as does the commission. Another commenter suggested the commission maintain a listing of all certified backflow testers and make it available upon request. The commission notes this administrative function will be done, but it will not be added to the rules. Another commenter suggested that backflow prevention devices installed in irrigation systems be tested at least every three years. Another commenter suggested testing every five years for devices in non-high health hazard situations be required. The commission responds that these additional testing requirements would be reviewed and considered at a later date after the testing of devices in high health hazard situations has been fully implemented. Several commenters suggested that annual testing of backflow prevention devices in low health hazard situations be required in sec.290.44(h). One of these commenters noted that there is an inconsistency with the cross-connection conditions of sec.290.44(h) and the requirements to adopt one of the three nationally recognized codes identified in sec.290.38, Definitions, and referenced in sec.290.46(i). The commenter further noted that the Uniform Plumbing Code, which is one of the codes referenced, requires annual testing of all devices. The commission responds that the intent of these rules is to provide the maximum flexibility to public water systems and maximum protection to the public. The commission further notes that under sec.290.46(i), public water systems are only required to adopt one of the three plumbing codes. The Southern Standard Plumbing Code and the National Standard Plumbing Code do not require annual testing of all backflow prevention devices. Public water systems have the flexibility to adopt these two plumbing ordinances, but they will still be required to test devices in high health hazard situations annually. The commission further notes that public water systems have the flexibility to adopt more stringent plumbing standards, with regard to the testing of backflow prevention devices, by opting to adopt the Uniform Plumbing Code. Thus, with regard to this comment, the commission believes no changes are necessary. One commenter suggested that municipalities with adequate qualified personnel be designated agents of the commission to teach approved courses and administer approved examinations required by sec.290.44(h)(4)(A). The commission clarifies that a course outline may be submitted by any interested party to the commission's Occupational Certification Section, Environmental Training Division, for approval of the course. Another commenter questioned the provision that testers renew their accreditation every three years. The commission has revised sec.290.44(h)(4)(A) and (B) to remove the requirement that testers renew their accreditation every three years. Additionally, the commission has revised sec.290.44(h)(4) to require that backflow prevention device testers also certify that the device is operating within specifications. With regard to sec.290.44(h)(4)(D), another commenter suggested clarification is needed to allow for the use of forms that contain space for the testing of multiple devices within a facility. The commission clarifies that any facility can develop its own form as long as all the required information is included on the form. Therefore, no changes are necessary. One commenter suggested the submittal of some sort of plan be required under sec.290.45(a) when a system's maximum daily capacity increases. The commission responds that water suppliers may develop water conservation plans or other types of plans in addition to the plans and specifications to assist them in maintaining minimum water system capacity requirements. The commission also clarifies that additional supply, storage, service pumping, and pressure maintenance facilities will be required by the commission if normal operating ppressure of 35 psi cannot be maintained throughout the system, or if the system's maximum daily demand exceeds its total production and treatment capacity. Pursuant to sec.290.39(g), when a change or addition to the existing system is greater than 10% of the existing distribution capacity or 250 connections (whichever is smaller), the water supplier is required to submit a written notification to the commission. The commission will then determine whether engineering plans and specifications are required. The commission has also revised sec.290.45(b)(1)(D)(i) to change the word "this" to "which" in the last sentence. Additionally, the commission has revised sec.290.45(b)(1)(D)(iv) to require that if pressure tanks and a maximum capacity of 30,000 gallons is used, the 30,000 gallons "must be sufficient for up to 2,500 connections". The commission has also provided that alternate methods of pressure maintenance may be proposed, and they will be approved if the criteria contained in sec.290.45(g)(2) are met. The commission has also removed the provisions relating to systems with more than 50,000 connections which utilize multiple production plants and to pressure tank installations. With regard to sec.290.45(b)(1)(D)(v), one commenter suggested that emergency power facilities in systems serving 1,000 connections or greater must be serviced and maintained in accordance with level 2 maintenance requirements contained in the current NFPA 110 standards. The commission agrees and has revised sec.290.45(b)(1)(D)(v) and (H) to incorporate this comment. With regard to sec.290.45(b)(1)(D)(v), another commenter noted that the emergency power requirements would result in significant expenses. The commission notes this is not an entirely new requirement. Only the requirements relating to maintenance are new. With regard to this comment, no changes to sec.290.45(b)(1)(D)(v) are necessary. The commission has also revised sec.290.45(b)(2)(G) to require that if pressure tanks and a maximum capacity of 30,000 gallons are used, the 30,000 gallons "must be sufficient for up to 2,500 connections". The commission has also provided that alternate methods of pressure maintenance may be proposed, and they will be approved if the criteria contained in sec.290.45(g)(2) are met. The commission has also removed the provisions relating to systems with more than 50,000 connections which utilize multiple production plants and to pressure tank installations. Several commenters suggested records for all emergency power use be maintained for three years which is consistent with the time requirement for pressure charts. The commission agrees and has revised sec.290.45(b)(2)(H) to require these records to be maintained for three years instead of five years. With regard to sec.290.45(g)(2)(A)(iii), one commenter noted that if the hydraulic analysis of the system shows that adequate pressure can be maintained under emergency power and since the rules require the equipment to be maintained in accordance with NFPA 110 standards, the three years pressure chart recordings should not be required to obtain an exception to the elevated storage requirement. The commission agrees and has revised sec.290.45(g)(2)(A) (iii) to indicate that these pressure chart recordings be provided "if available". The commission has further revised sec.290.45(g)(2)(A)(ii)-(iii) to change a reference from "design engineer" to "registered professional engineer". The commission has revised sec.290.45(g)(2)(B) to require that facilities be serviced and maintained in accordance with level 2 maintenance requirements. The commission has also revised sec.290.45(g)(2)(B) to require that records only be kept for three years. Additionally, the commission has removed sec.290. 45(g)(2)(E). The commission notes that these revisions are in response to comments previously mentioned in this preamble. This commenter also questioned whether the intent of sec.290.45(g)(2)(B) was to bring on the emergency power automatically or whether manual transfer is acceptable. The commission clarifies that the intent is to bring on emergency power automatically. Therefore, no changes are necessary. This commenter further suggests that exceptions to sec.290.45(g)(2)(B)(ii) be allowed for systems which receive natural gas from an independent source. This section requires that fuel adequate for eight hours of power generation be maintained on site. The commission believes that in case of an emergency, the natural gas supply from an external source may be interrupted and therefore some storage must be provided on site. The amount of storage required will be determined during the plan review process. With regard to sec.290.45(g)(2)(C), this commenter suggested rewording this paragraph to use "uninterrupted power supply" in lieu of just battery. The commission agrees that uninterrupted power supply (UPS) is the best emergency power equipment and has therefore revised this section to also allow the use UPS. One commenter suggested nontransient noncommunity water systems be exempt from having to compile and/or submit monthly operation reports as required by sec.290.46(d). The commission responds that monthly operation reports are essential for determining compliance. The commission also clarifies that under sec.290.46(d)(2) systems serving fewer than 100 connections which utilize ground water sources only are not required to compile monthly reports. Therefore, some nontransient noncommunity water systems may already be exempt from having to compile and submit monthly operation reports. Several commenters oppose requirements for certified operators for nontransient noncommunity water systems found in sec.290.46(e). These commenters suggest that "privately owned" nontransient noncommunity water systems which utilize ground water and regularly serve only the owners' employees be exempt from such requirements. The commission disagrees with this comment. Employees at facilities with nontransient noncommunity water systems spend a significant amount of time at the job site and deserve the same level of protection against waterborne contamination as they receive in their own homes. The nontransient noncommunity category includes schools, colleges, prisons, industries and other similar facilities. The requirement for a certified operator will provide for increased safety of the water produced and delivered to the systems' consumers. The commission has revised sec.290.46(e)(1) to replace the phrase "for which any charge is made" with "except these systems indicated in sec.290.46(e)". The commission has made this revision to clarify that no district, municipality, firm corporation, or individual, except for transient noncommunity systems utilizing groundwater or purchased water , shall furnish to the public any drinking water unless there is direct daily supervision of the system by a certified operator. Related to sec.290.46(e)(4), one commenter suggests the commission coordinate the paperwork requirements of the water and wastewater certification programs in order to reduce paperwork burden on operators. The commission responds that it will refer this suggestion to the commission's Occupational Certification Section, Environmental Training Division, for further evaluation and possible implementation. Another commenter suggested additional testing methods be allowed under sec.290.46(f)(2) to determine disinfectant residuals. The commission notes this is a prescribed requirement of the federal Surface Water Treatment Rule. The commission must strictly comply with and enforce all federal rules pursuant to the Safe Drinking Water Act in order to maintain primacy status. This commenter also requests that the frequency of testing in sec.290.46(f)(2)(B) be changed from "once every seven days" to "once per calendar week" because it would allow nontransient noncommunity water systems some flexibility regarding manpower. The commission responds that there is no difference between the two phrases and the impact is the same. With regard to sec.290.46(f)(2)(D), one commenter noted that the sentence, "Only residual tests taken at bacteriological sampling sites can be used for compliance monitoring." conflicted with sec.290.46(f)(1) relating to the requirement to maintain a minimum chlorine residual in the far reaches of the system. The commission agrees and has revised the language in sec.290.46(f)(2) (D). Another commenter requested the language in sec.290.46(f)(2)(D) be clarified to clearly indicate where samples may be collected to fulfill the disinfectant residual monitoring requirements. The commission clarifies that disinfectant residual monitoring locations must include, but are not limited to, the monitoring sites identified in the bacteriological sample siting plan. The commission further clarifies that systems can take additional samples other than just what is required by the bacteriological sample siting plan. However, only those tests specifically required by the plan can be used for compliance monitoring. No changes to sec.290.46(f)(2)(D) are necessary with regard to this comment. One commenter suggested nontransient noncommunity water systems be exempt from having to adopt plumbing ordinances or regulations as required by 290. 46(i). The commission responds that this rule was initially developed to address potential plumbing problems with all public water systems. The commission believes no changes to sec.290.46(i) are necessary. Numerous comments were received on sec.290.46(j) relating to customer service inspections. Several commenters expressed support for this proposed section as published in the June 13, 1995, issue of the Texas Register (20 TexReg 4324). One commenter noted that customer service inspections are duplicative of municipal building and plumbing inspection programs. The commission responds that customer service inspections are not duplicative, but rather, are supplemental to existing municipal plumbing inspection programs and that there are some towns and cities that do not have such programs in place. The commission further notes that existing city plumbing inspection programs are not public health oriented and appear to focus more on wastewater plumbing practices. On the other hand, customer service inspections require the inspection of all pipes, water tight joints, and other plumbing materials and certify that unacceptable plumbing practices that may result in contamination of drinking water supplied by a public water system do not exist. For instance, these inspections must certify that no pipe or pipe fitting in the plumbing facilities contains more than 8.0% lead and that no solder or flux contains more than 2.0% lead if the site is to receive water service. Thus, for cities with such programs in place, customer service inspections already exist in some form. Another commenter noted the commission had provided no comments or data on the fiscal impact of customer service requirements. The commission responds that information on fiscal impacts was provided in the preamble of the proposal. The proposal preamble indicated that "the costs to perform service inspections required under these rules is anticipated to be between $25 and $75 in most cases." The proposal preamble also noted that "these costs to system operators can be mitigated by recovery of inspection costs from those customers whose installations are subject to the inspection requirements." The proposal preamble further indicated that "local governments which already implement a local plumbing code will be only minimally impacted." This commenter also noted the commission had failed to identify specific public health or safety issues that would be alleviated by the customer service inspections. The commission responds that the potential health risks posed by cross-connections and other unacceptable plumbing practices have been widely recognized in recent legislation such as Senate Bill 815, which was enacted in 1993 and became effective on May 7, 1993. Senate Bill 815 sought to eliminate cross-connections and other unacceptable plumbing practices which may result in contamination by limiting the possibility of substandard plumbing. Senate Bill 815 specifically requires the Texas State Board of Plumbing Examiners to adopt the Southern Standard Plumbing Code, the Uniform Plumbing Code and the National Standard Plumbing Code as approved plumbing codes for the State of Texas. Numerous commenters were unclear about the applicability of customer service inspections. One commenter was confused with the phrase "private plumbing facilities" and questioned whether customer service inspections applied only to commercial/industrial facilities. Several commenters requested clarification as to whether any material improvement, correction or addition to private plumbing facilities would require a customer service inspection. One of these commenters further questioned whether these inspections also applied to changes in ownership. Another commenter was unclear as to whether customer service inspections would apply when plumbing permits are issued. If so, the commenter feels it would be difficult and expensive to comply because of the extensive level of permits issued each year in that particular area of the state. The commission clarifies that customer service inspections apply to all facilities, public and private. The phrase "private plumbing facilities" refers to the plumbing facilities not owned by the water supplier. The commission further clarifies that customer service inspections must be conducted before providing continuous water service to new construction. Customer service inspections must also be completed on any existing service when the water purveyor has reason to believe that cross-connections or other unacceptable plumbing practices exist. Additionally, the commission clarifies that customer service inspections must also be conducted after any material improvement, correction or addition to plumbing facilities which requires a plumbing permit. Another commenter suggested nontransient noncommunity water systems be exempt from the customer service requirements. The commission responds that this rule was initially developed to address potential plumbing problems with all public water systems. The commission believes no changes to sec.290.46(j) are necessary. Several other commenters suggest that only plumbing inspectors or Water Supply Protection Specialists be allowed to conduct customer service inspections. Another commenter suggested only plumbing inspectors with a Water Supply Protection Specialist endorsement be allowed to conduct the inspections. The commission responds that all certified waterworks operators and members of other water related professional groups may conduct the inspections only if they have completed the required training course, passed the examination administered by the commission or its designated agent, and must hold an endorsement granted by the commission or its designated agent. The commission believes this training program is sufficient to provide a customer service inspector sufficient knowledge to detect unacceptable plumbing practices. Therefore, no changes are necessary. Another commenter suggested sec.290.46(j)(1)(A) be revised to read as follows: "Water Supply Protection Specialist as endorsed by the Texas State Board of Plumbing Examiners and Plumbing Inspectors as licensed by the Texas State Board of Plumbing Examiners." The commission has made the suggested change. This commenter also suggested adding a section to provide for penalties for a water supplier not complying with the cross-connection program, cross connection continuing surveys, and plumbing codes. The commission responds that areas of noncompliance will be identified in the routine sanitary surveys, and noncompliant water suppliers will be provided sufficient time to address the issue. Another commenter questioned the meaning of "unacceptable plumbing practices" and requested guidance on interpreting the term. The commission clarifies that "unacceptable plumbing practices" refers to practices not accepted by or in violation of the three plumbing codes which are referenced in sec.290.38. The commission has revised several sections to change the term "undesireable" to "unacceptable". Several commenters suggested that sec.290.46(j)(1)(C) be revised to prohibit customer service inspections by licensed plumbers who have a financial interest in the plumbing work being inspected. The commission did not incorporate this suggestion as it wants to provide the maximum flexibility to the water supplier in determining who can do customer service inspections based on local availability of inspectors. The commission also notes that the individual water supplier can choose to be more restrictive. With regard to sec.290.46(j)(1)(c), one commenter suggested that licensed plumbers not be allowed to conduct customer service inspections on single-family residential services without additional training. The commission believes that the training program for licensed plumbers provides them sufficient knowledge to detect unacceptable plumbing practices in single-family residential services. The commission further clarifies that licensed plumbers desiring statewide authority to conduct customer service inspections must take the required coursework and must pass the required exam. Another commenter suggested professional engineers be specifically mentioned as being authorized to perform customer service inspections. The commission clarifies that under sec.290.46(j)(1)(B) any water professional can perform these inspections as long as they complete the required course work and pass the required exam. Thus, no changes are necessary with regard to this comment. One commenter questioned how long the inspection certificates were to be kept on file by the water supplier. The commission has revised sec.290.46(j)(3) to require holding of certificates for ten years. The commission notes that these customer service inspection certificates may be requested by property owners who are interested in the plumbing conditions of individual properties especially when property is transferred to new owners. Also with regard to sec.290.46(j)(3), another commenter requested the term "water supplier" be changed to water purveyor for consistency throughout sec.290.46(j). The commission has made the suggested revision. With regard to sec.290.46(j)(3)(B), this commenter also questioned the meaning of "cross-connection between the public drinking water supply and a private water system". The commission agrees this wording is inaccurate and has revised sec.290.46(j)(3)(B) to replace "private water system" with "private water source". With regard to sec.290.46(j)(3)(D)-(E), another commenter questioned whether all plumbing work completed since 1988 needed to be inspected. The commission clarifies that customer service inspections must be conducted before providing continuous water service to new construction. Customer service inspections must also be completed on any existing service when the water purveyor has reason to believe that cross-connections or other unacceptable plumbing practices exist. Additionally, customer service inspections must be conducted after any material improvement, correction or addition to private plumbing facilities occurs which requires a plumbing permit. The inspection certification form completed for these situations must then certify that no pipe or pipe fitting in the plumbing facilities contains more than 8.0% lead and that no solder or flux contains more than 2.0% lead if the site is to receive water service. One commenter urged the commission to incorporate the intent of House Bill 1541 (1993) relating to the prohibition of the sale or transfer of certain plumbing fixtures including fixtures which allow the backflow of nonpotable substances into the potable water supply. House Bill 1541 only applies to cities with a population over 5,000 and the commenter would like to see wider application of this legislation. The commission has addressed this comment by incorporating sec.290.46(j)(3)(F) and revising sec.290.47, Appendix D, Sample Service Inspection Certification, to reflect that no plumbing fixture which is not in compliance with a state approved plumbing code may be installed. Several commenters misunderstood the intent of sec.290.46(j). These commenters believed that the customer service inspection requirements in sec.290.46(j) satisfied the plumbing restrictions and inspections required under sec.290.115(5). The commission has clarified in the rules that these customer service inspection requirements are not considered acceptable substitutes for, and shall not apply to, the sanitary control requirements stated in sec.290.115(5) of this chapter. This clarification has resulted in the addition of sec.290.46(j)(4). With regard to sec.290.46(s) relating to boil water notifications, one commenter requested that routine line maintenance situations be exempt from boil water notifications unless there is a public health risk. The commission agrees and has revised sec.290.46(s) to make this clarification. Another commenter noted the terms "numerous" and "prolonged" relating to water outages during line repairs in sec.290.46(s) were too confusing and suggested they be defined. The commission agrees and has revised sec.290.46(s) to remove the terms numerous and prolonged and to provide additional clarification. With regard to 290.46(x) relating to the inspection of abandoned wells, one commenter questioned whether simply demonstrating operation of the well would be sufficient or whether some down-hole inspection would be required. The commission clarifies that a down-hole inspection method will be necessary to determine non-deterioration of the well. Simply demonstrating the well operates is not sufficient to indicate that the well is not deteriorating. The commission has also corrected a reference to Texas Water Commission in sec.290.121(a). Another commenter suggested the phrase "periodically thereafter" in sec.290. 47, Appendix B, Service Agreement, be defined. The commission has revised sec.290.46(e)(1) to delete the phrase "periodically thereafter" and to clarify that inspections shall be conducted by the water supplier or its designated agent prior to initiating new water service; when there is reason to believe that cross connections or other unacceptable plumbing practices exist; or after any major changes to the private plumbing facilities. One commenter provided a Sample Sanitary Control Easement Document for a Public Water Well form and requested that it replace the proposed form found in sec.290.47, Appendix C. The commission has replaced the proposed form with the one provided by the commenter because it is shorter, more comprehensible, up-to- date, and accomplishes the same goal as the initially proposed form. Another commenter provided his proprietary form to replace the proposed Backflow Prevention Assembly Test and Maintenance Report form in sec.290.47, Appendix F. The commission did not replace the proposed form with the commenter's proprietary form because it may result in increased costs for the water supplier. The commission believes the proposed form is satisfactory. Another commenter suggested the Backflow Prevention Assembly Test and Maintenance Report form in sec.290.47, Appendix F be revised to incorporate the test gauge serial number, date of the last gauge calibration, and a statement whereby the tester certifies the accuracy of the test gauge. The commission believes this information is unnecessary. Therefore, no changes have been made. Rules and Regulations for Public Water Systems 30 TAC sec.sec.290.38, 290.39, 290.41-290.47 The Texas Water Code, sec.5.103, provides the commission the authority to adopt and enforce rules necessary to carry out its powers and duties under the laws of this state. The Texas Health and Safety Code, Chapter 341, Subchapter C, governs sanitary standards of drinking water, protection of public water supplies, and bodies of water. sec.290.38. Definitions. The following words and terms, when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise. If a word or term used in this title is not contained in the following list, its definition shall be as shown in Title 40 Code of Federal Regulations sec.141.2. Other technical terms used shall have the meanings or definitions listed in the latest edition of "Glossary, Water and Wastewater Control Engineering," prepared by a joint editorial board representing the American Public Health Association, American Society of Civil Engineers, American Water Works Association, and the Water Pollution Control Foundation. ABPA-The American Backflow Prevention Association, P.O. Box 1563, Akron, Ohio 44309-1563. ASSE-The American Society of Sanitary Engineering, P.O. Box 40362, Bay Village, Ohio 44140. Commission-The Texas Natural Resource Conservation Commission. Drinking water standards-The commission rules covering drinking water standards in sec.290.101-290.121 of this title (relating to Drinking Water Standards Governing Drinking Water Quality and Reporting Requirements for Public Water Supply Systems). Emergency power -Either mechanical power or electric generators which can enable the system to provide water under pressure to the distribution system in the event of a local power failure. With the approval of the executive director, dual primary electric service may be considered as emergency power in areas which are not subject to large scale power outages due to natural disasters. High health hazard-A cross-connection, potential cross-connection, or other situation involving any substance that could cause death, illness, spread of disease, or has a high probability of causing such effects if introduced into the potable drinking water supply. Intruder-resistant fence -A fence six feet or more in height, constructed of wood, concrete, masonry, or metal with three strands of barbed wire extending outward from the top of the fence at a 45 degree angle and have the smooth side of the fence on the outside wall. In lieu of the barbed wire, the fence must be eight feet in height. The fence must be in good repair and close enough to surface grade to prevent intruder passage. NFPA standards -The standards of the National Fire Protection Association, 1 Batterymarch Park, Quincy, Massachusetts, 02269-9101. Plumbing inspector -Any person employed by a political subdivision for the purpose of inspecting plumbing work and installations in connection with health and safety laws and ordinances, who has no financial or advisory interest in any plumbing company, and who has successfully fulfilled the examinations and requirements of the Texas State Board of Plumbing Examiners. Plumbing ordinance -A set of rules governing plumbing practices which are at least as stringent and comprehensive as one of the following nationally recognized codes: (A) Southern Standard Plumbing Code. (B) Uniform Plumbing Code. (C) National Standard Plumbing Code. Registered Professional Engineer-An engineer who maintains a current license through the Texas State Board of Registration for Professional Engineers in accordance with its requirements for professional practice. Transient noncommunity water system-A public water system that is not a community water system and serves at least 25 persons at least 60 days out of the year, yet by its characteristics, does not meet the definition of a nontransient noncommunity water system. Water Supply Protection Specialist-Any person who holds a license endorsement issued by the Texas State Board of Plumbing Examiners to engage in the inspection, in connection with health and safety laws and ordinances, of the plumbing work or installation of a public water system distribution facility or of customer owned plumbing connected to that system's water distribution lines. sec.290.39. General Provisions. (a) Authority for requirements. The Texas Health and Safety Code, Chapter 341, Subchapter C prescribes the duties of the Texas Natural Resource Conservation Commission relating to the regulation and control of public drinking water systems in the State. These statutes require that the commission review completed plans and specifications for all contemplated public water systems, and that the commission be notified of any subsequent material changes, improvements, additions, or alterations in existing systems. In order to properly discharge these duties, the Texas Natural Resource Conservation Commission is authorized to develop rules governing the design of system facilities, as well as minimum acceptable operating practices necessary to protect the public health. (b)-(c) (No change.) (d) Submission of planning material. In general, the planning material submitted shall conform to the following requirements. (1)-(3) (No change.) (4) Copies of each fully executed sanitary control easement shall be provided to the Commission prior to placing the well into service. Each original easement document must be recorded in the deed records at the county courthouse. See sec.290.47(c) of this title (relating to Appendices) for a suggested form. (e)-(f) (No change.) (g) Changes in existing systems or supplies. Changes or additions to existing systems which result in an increase in production, treatment, or storage capacity shall require written notification to the executive director. Changes or additions in existing distribution systems shall require written notification to the executive director when the change or addition is greater than 10% of the existing distribution capacity or 250 connections, whichever is smaller. The executive director shall determine whether engineering plans and specifications will be required after initial notification of the extent of the modifications. The owner shall submit plans and specifications as determined by the executive director in accordance with subsection (c) of this section. The Commission will not require planning material on distribution line extensions from a political entity (county, municipality, district or water authority) when the entity has its own internal engineering review staff or is required, by local ordinance, to submit the material to another political entity for review and approval. The review staff must be separate and apart from the engineering staff or firm charged with the design of the distribution extension under review. The planning material must be reviewed and certified to be in compliance with sec.290.44 of this title (relating to Water Distribution) by a registered professional engineer in the employ of the review entity. The effect of the distribution system improvements on compliance with sec.290.45 of this title (relating to Minimum Water System Capacity Requirements) must be evaluated. Should the proposed distribution system improvements result in an exceedance of the capacity requirements, written notice of the extent of the proposed improvements must be submitted to the executive director. (h)-(i) (No change.) (j) Notification of system startup or reactivation. The owner or responsible official must provide written notification to the commission of the startup of a new public water supply system or reactivation of an existing public water supply system. This notification must be made immediately upon meeting the definition of a public water system as defined in sec.290.38 of this title (relating to Definitions). sec.290.41. Water Sources. (a)-(b) (No change.) (c) Ground water sources and development. (1) Ground water sources shall be located so that there will be no danger of pollution from flooding or from insanitary surroundings, such as privies, sewage, sewage treatment plants, livestock and animal pens, solid waste disposal sites or underground petroleum and chemical storage tanks and liquid transmission pipelines, or abandoned and improperly sealed wells. (A) No well site which is within 50 feet of a tile or concrete sanitary sewer, sewerage appurtenance, septic tank, storm sewer, or cemetery; or which is within 150 feet of a septic tank perforated drainfield, areas irrigated by low dosage, low angle spray on-site sewage facilities, absorption bed, evapotranspiration bed, improperly constructed water well or underground petroleum and chemical storage tank or liquid transmission pipeline will be acceptable for use as a public drinking water supply. Sanitary or storm sewers constructed of ductile iron or PVC pipe meeting AWWA standards, having a minimum working pressure of 150 psi or greater, and equipped with pressure type joints may be located at distances of less than 50 feet from a proposed well site but in no case shall the distance be less than ten feet. (B)-(D) (No change.) (E) All known abandoned or inoperative wells (unused wells that have not been plugged) within one quarter mile of a proposed wellsite shall be reported to the Commission along with existing or potential pollution hazards. These reports are required for community and nontransient, noncommunity ground water sources. Examples of existing or potential pollution hazards which may affect ground water quality include, but are not limited to: landfill and dump sites, animal feedlots, military facilities, industrial facilities, wood-treatment facilities, liquid petroleum and petrochemical production, storage, and transmission facilities, Class 1, 2, 3, and 4 injection wells, and pesticide storage and mixing facilities. This information must be submitted prior to construction or as required by the executive director. (F) A sanitary control easement covering that portion of the land within 150 feet of the well location shall be secured from all such property owners and recorded in the deed records at the county courthouse. The easement shall provide that none of the pollution hazards covered in subparagraphs (A)-(E) of this paragraph, or any facilities that might create a danger of pollution to the water to be produced from the well will be located thereon. For the purpose of this easement, an improperly constructed water well is one which fails to meet the surface and subsurface construction standards for public water supply wells. Residential type wells within the easement must be constructed to public water well standards. Copies of the recorded easements shall be included with plans and specifications submitted for review. (2) (No change.) (3) Special attention must be given to the construction, disinfection, protection, and testing of a well to be used as a public water supply source. (A) Before placing the well into service, the Commission's Water Utilities Division shall be furnished a copy of the well completion data, which includes the following items: the Driller's Log (geological log and material setting report); a cementing certificate; the results of a 36-hour pump test; the results of the microbiological and chemical analyses required by subparagraphs (F) and (G) of this paragraph; a copy of the Sanitary Control Easement; and an original or legible copy of a United States Geological Survey 7.5-minute topographic quadrangle showing the accurate well location. All the documents listed in this paragraph must be approved by the executive director before final approval is granted for the use of the well. (B) (No change.) (C) The space between the casing and drill hole shall be sealed by using enough cement under pressure to completely fill and seal the annular space between the casing and the drill hole. The well casing shall be cemented in this manner from the top of the shallowest formation to be developed to the earth's surface. The driller will utilize the following pressure cementation methods in accordance with the AWWA Standard for Water Wells (A100-90), Appendix B: Section B.3 (Positive displacement-exterior method); Section B.4 (Interior method- without a plug); Section B.5 (Positive placement-interior method-drillable plug); or Section B.6 (Placement through float shoe attached to the bottom of the casing). Cementation methods other than those listed in this subparagraph must be approved by the executive director prior to the construction of the well. A cement bonding log, as well as any other documentation deemed necessary, may be required by the executive director to assure complete sealing of the annular space. (D)-(F) (No change.) (G) A complete physical and chemical analysis of the water produced from a new well shall be made after 36 hours of continuous pumping at the design withdrawal rate. Shorter pump test periods can be accepted for large capacity wells producing from areas of known groundwater production and quality so as to prevent wasting of water. Samples must be submitted to the Texas Department of Health approved laboratory for chemical analyses. Tentative approval may be given on the basis of tests performed by in-plant or private laboratories but final acceptance by the Commission shall be on the basis of results from the Texas Department of Health laboratory. Appropriate treatment shall be provided if the analyses reveal that the water from the well fails to meet the water quality criteria as prescribed by the drinking water standards. These criteria include turbidity, color and threshold odor limitations, and excessive hydrogen sulfide, carbon dioxide or other constituents or minerals which make the water undesirable or unsuited for domestic use. Additional chemical and microbiological tests may be required after the Commission's Water Utilities Division conducts a vulnerability assessment of the well. (H)-(P) (No change.) (Q) If an air release device is provided on the discharge piping, it shall be installed in such a manner as to preclude the possibility of submergence or possible entrance of contaminants. In this respect, all openings to the atmosphere shall be covered with 16-mesh or finer, corrosion-resistant screening material or an acceptable equivalent. (4) (No change.) (d) (No change. ) (e) Surface water sources and development. (1) To determine the degree of pollution from all sources within the watershed, an evaluation shall be made of the proposed surface water impoundment or flowing supply in the area of diversion and its tributary streams. (A) Where surface water sources are subject to continuous or intermittent contamination by municipal, agricultural, or industrial wastes and/or treated effluent, the adverse effects of the contamination on the quality of the raw water reaching the treatment plant shall be determined by site evaluations and laboratory procedures. (B) The disposal of all liquid or solid wastes from any source on the watershed must be in conformity with applicable regulations and state statutes. (C)-(D) (No change.) (E) Pesticides or herbicides which are used within the watershed shall be applied in strict accordance with the product label restrictions. (2) Intakes shall be located and constructed in a manner which will secure raw water of the best quality available from the source. (A) Intakes shall not be located in areas subject to excessive siltation or in areas subject to receiving immediate runoff from wooded sloughs or swamps. (B) Raw water intakes shall not be located within 1,000 feet of boat launching ramps, marinas, docks or floating fishing piers which are accessible by the public. (C) A restricted zone of 200 feet radius from the raw water intake works shall be established and all recreational activities and trespassing shall be prohibited in this area. Regulations governing this zone shall be in the city ordinances or the rules and regulations promulgated by a water district or similar regulatory agency. The restricted zone shall be designated with signs recounting these restrictions. The signs shall be maintained in plain view of the public and shall be visible from all parts of the restricted area. In addition, special buoys may be required as deemed necessary by the executive director. Provisions shall be made for the strict enforcement of such ordinances or regulations. (D) Commission staff shall make an on-site evaluation of any proposed raw water intake location. The evaluation must be requested prior to final design and must be supported by preliminary design drawings. Once the final intake location has been selected, the commission's Water Utilities Division shall be furnished with an original or legible copy of a United States Geological Survey 7.5-minute topographic quadrangle showing the accurate intake location. (E) Intakes shall be located and constructed in a manner which will allow raw water to be taken from a variety of depths and which will permit withdrawal of water when reservoir levels are very low. Fixed level intakes are acceptable if water quality data is available to establish that the effect on raw water quality will be minimal. (F) Water intake works shall be provided with screens or grates to minimize the amount of debris entering the plant. (3) The water treatment plant and all pumping units shall be located in well- drained areas not subject to flooding and away from seepage areas or where the underground water table is near the surface. (A)-(D) (No change.) sec.290.42. Water Treatment. (a) (No change.) (b) Ground waters. (1) (No change.) (2) Treatment facilities shall be provided for ground water if the water does not meet the drinking water standards. The facilities provided shall be in conformance with established and proven methods. (A) Filters provided for turbidity and microbiological quality control shall be preceded by coagulant addition and shall conform to the requirements of subsection (d)(10)of this section. Filtration rates for iron and manganese removal, regardless of the media or type of filter, shall be based on a maximum rate of five gallons per square foot per minute. (B)-(C) (No change.) (3)-(4) (No change.) (c) (No change.) (d) Surface water. (1) All water secured from surface sources shall be given complete treatment at a plant which provides facilities for pretreatment disinfection, taste and odor control, continuous coagulation, sedimentation, filtration, covered clearwell storage and terminal disinfection of the water with chlorine or suitable chlorine compounds. In all cases, the treatment process must achieve at least a 3-log removal or inactivation of Giardia cysts and a 4-log removal or inactivation of viruses before the water is supplied to any consumer. (2) No cross-connection or interconnection shall be permitted to exist in a filtration plant between a conduit carrying filtered or post-chlorinated water and another conduit carrying raw water or water in any prior stage of treatment. (A) Vacuum breakers must be provided on each hose bibb within the plant facility. (B) No conduit or basin containing raw water or any water in a prior stage of treatment shall be located directly above, or be permitted to have a single common partition wall with another conduit or basin containing finished water. (C) Make-up water supply lines to chemical feeder solution mixing chambers shall be provided with an air gap or other acceptable backflow prevention device. (D) Filters shall be located so that common walls will not exist between them and aerators, mixing and sedimentation basins or clear wells. This rule is not strictly applicable, however, to partitions open to view and readily accessible for inspection and repair. (E) Filter-to-waste connections, if included, shall be provided with an air gap connection to waste. (3) All drainage conduits shall be constructed so as to be thoroughly tight against leakage. Return of the decanted water and/or sludge to the raw water shall be adequately controlled so that there will be a minimum of interference with the treatment process. Any discharge of wastewater shall be in accordance with the appropriate statutes and regulations. (4) Reservoirs for pretreatment and/or selective quality control shall be provided where complete treatment facilities fail to operate satisfactorily at times of maximum turbidities or other abnormal raw water quality conditions exist. Recreational activities at such reservoirs shall be prohibited. (5) Flow measuring devices shall be provided to measure the raw water supplied to the plant and to measure the treated water discharged from the plant. These devices shall be located to facilitate use and to assist in the determination of chemical dosages, the accumulation of water production data, and the operation of plant facilities. (6) Chemical storage facilities shall be located so as to help in the handling of bulk chemicals by operators and the transfer of chemicals to day tanks and chemical feeders. Also, the movement of chemicals from storage to feed machines shall be done in a manner that facilitates good housekeeping. (A) Bulk storage facilities at the plant shall be adequate to store at least one month's supply of chemicals. However, local resupply ability may dictate the requirements for plant inventories. (B) All chemical bulk and day tanks shall be clearly labeled to indicate the tank's contents. (C) Dry chemicals shall be stored off the floor in a dry, above ground level room and protected against flooding or wetting from floors, walls, and ceilings. (D) Day tanks shall be provided to minimize the possibility of severely overfeeding liquid chemicals. Day tanks will not be required if adequate process control instrumentation and procedures are employed to prevent chemical overfeed incidents. (E) When liquid chemicals are to be used, special precautions must be taken and the following concerns must be addressed both during the plan review and approval process for new facilities and during the operation of existing plants: (i) issues involving bulk storage tank design such as the materials of construction, capacity, overflow, and containment; (ii) issues involving transfer pump design including the bulk storage tank design, day tank capacity, type, materials of construction, and controls; (iii) issues involving the day tanks such as the materials of construction, overflow, containment, capacity, and controls; (iv) issues involving metering pump design such as the materials of construction, calibration, controls, capacity, and anti-siphon protection; and (v) issues involving piping and valves including their compatibility with solutions. (7) Treatment plants shall be provided with efficient devices for measuring and applying chemicals to the water being treated. (A) Each chemical feeder shall have a standby or reserve unit. Common standby feeders are permissible, but, generally, more than one standby feeder must be provided due to the incompatibility of chemicals or the state in which they are being fed (solid, liquid or gas). (B) All chemical feed equipment shall be capable of easily adjusting to variations in the flow of water being treated. (C) Dry chemical feeders shall be in a separate room and be provided with facilities for dust control. (D) Chemical feeders shall be provided with tanks for chemical dissolution when applicable. (E) Where practical, the transport of chemical solutions between the feeder and the application point should be accomplished through open channels. If enclosed feed lines must be used, they shall be designed and installed so as to prevent clogging and facilitate cleaning. (F) Coagulants shall be applied to the water in the mixing basins or chambers so as to permit their complete mixing with the water. Coagulants shall be applied continuously during treatment plant operation. (G) Chlorine feed units, ammonia feed units, and storage facilities shall be separated by solid, sealed walls. (H) Chemical application points shall be provided to achieve adequate taste and odor control, corrosion control and disinfection. (I) Chemicals shall be applied in a manner which will ensure optimal finished water quality. (8) Flash mixing and flocculation equipment shall be provided. This equipment must be capable of adequate flexibility or adjustment to provide optimum flocculation under varying raw water characteristics and rates of raw water treatment. (A)-(C) (No change.) (D) Coagulated water or water from flocculators shall be transported to sedimentation basins in such a manner as to prevent destruction of floc. Piping, flumes and troughs shall be designed to provide a flow velocity of 0.5 to 1.5 feet per second. Gates, ports and valves shall be designed at a maximum flow velocity of four feet per second in the transfer of water between units. (9) Basins for straight-flow sedimentation of coagulated waters shall provide a theoretical detention time of at least six hours for clarification plants and 4.5 hours for softening plants. The settling chamber of a solids contact clarification unit shall provide a theoretical detention time of at least two hours. Where shorter detention times are desired; engineering data, pilot plant test data, full scale installation data and other information as required by the commission shall be submitted to the executive director for review and approval of the alternate process. (A) (No change.) (B) Basins shall be designed to prevent the short-circuiting of flow or the destruction of floc. (C) Sedimentation basins may be square, rectangular, round or other shapes approved by the executive director. The length of rectangular settling basins shall preferably be at least twice their width with a side wall water depth of ten feet to 12 feet in nonsoftening water treatment. Square and round sedimentation basins may also be used for clarification and softening plants; however, the detention time must comply with the requirements of this paragraph. (D)-(E) (No change.) (10) Gravity or pressure type filters shall be provided. However, the use of pressure filters shall be limited to installations with a treatment capacity of less than 0.50 million gallons per day. (A) The depth of filter sand, anthracite or other filtering materials shall be 24 inches or greater. This filtering material shall be free from clay, dirt, organic matter and other impurities. Its effective size shall range from 0.35 to 0.45 mm for fine sand, 0.45 to 0.55 mm for medium sand and 0.55 to 0.65 mm for coarse sand. Its uniformity coefficient shall not exceed 1.7. The grain size distribution shall also be as prescribed by AWWA standards. Material for dual or mixed media filters shall conform to AWWA standards. (B) Under the filtering material, at least 12 inches of gravel shall be placed varying in size from 1/16 inch to 2.5 inches. The gravel may be arranged in three to five layers such that each layer contains material about twice the size of the material above it. Other support material may be approved on an individual basis. (C) The filter shall be provided with facilities to regulate the filtration rate and monitor the performance of the filter. (i) The design of gravity rapid sand filters shall be based on a maximum design filtration rate of two gallons per square foot per minute. At the beginning of filter runs for declining rate filters, a maximum filtration rate of three gallons per square foot per minute is allowed. The filter discharge piping shall be designed with an orifice or other permanently installed flow limiting device to ensure that the maximum filter rate cannot be exceeded. (ii) Where high-rate dual or multiple media gravity filters are used, a maximum design filtration rate no greater than five gallons per square foot per minute must be used. At the beginning of filter runs for declining rate filters, a maximum filtration rate of 6.5 gallons per square foot per minute is allowed. The filter discharge piping shall be designed with an orifice or other permanently installed limiting device to ensure that the maximum filter rate cannot be exceeded. (iii) The design of pressure filters shall be based on a maximum filtration rate of two gallons per square foot per minute. When used, the pressure filters shall be installed such that duplicate capacity is available to furnish the design capacity with one filter out of service. (iv) With the exception of declining rate filters, each filter unit shall be equipped with a manually adjustable rate-of-flow controller with rate-of-flow indication or control valves with indicators. (v) Each filter unit shall be equipped with a device to indicate loss of head through the filter. In lieu of loss-of-head indicators, declining rate filter units may be equipped with rate-of-flow indicators to monitor filter condition. (vi) The effluent line of each filter installed after January 1, 1996, must be equipped with a slow opening valve or another means of automatically preventing flow surges when the filter begins operation. (vii) Filters shall be equipped with sampling taps so that the effluent turbidity of each filter can be individually monitored. (D) Filters shall be designed to ensure adequate cleaning during the backwash cycle. (i) Only fully treated water shall be used to backwash the filters. This water may be supplied by elevated wash water tanks or by pumps which take suction from the clearwell and are provided for backwashing filters only. For installations having a treatment capacity no greater than 150,000 gallons per day, water for backwashing may be secured directly from the distribution system if proper controls and rate-of-flow limiters are provided. (ii) The rate of filter backwashing shall be regulated by rate-of-flow controllers. (iii) The rate of flow of backwash water shall not be less than 20 inches vertical rise per minute (12.5 gpm/sq. ft.) and usually not more than 30 inches vertical rise per minute (18.7 gpm/sq. ft.). This shall expand the filtering bed 30 to 50%. The freeboard in inches shall exceed the wash rate in inches of vertical rise per minute. (iv) When used, surface filter wash systems shall be installed with an atmospheric vacuum breaker or a reduced pressure principle backflow preventer in the supply line. If an atmospheric vacuum breaker is used it shall be installed in a section of the supply line through which all the water passes and which is located above the overflow level of the filter. (v) Gravity filters installed after January 1, 1996, shall be equipped with air scour backwash or surface wash facilities. (11) (No change.) (12) The identification of influent, effluent, waste backwash, and chemical feed lines shall be accomplished by the use of labels or various colors of paint. Where labels are used, they shall be placed along the pipe at no greater than five foot intervals. Where colors are used they shall follow the color code prescribed below. Color coding must be by solid color or banding. If bands are used, they shall be placed along the pipe at no greater than five foot intervals. The color code is as follows: Figure 1: sec.290.42(d)(12) (13) An adequately equipped laboratory must be available locally where daily microbiological and chemical tests can be made on water supplied by all plants serving 25,000 persons or more. For plants serving populations of less than 25,000, the facilities for making microbiological tests may be omitted and the required microbiological samples submitted to one of the Texas Department of Health's approved laboratories. All surface water treatment plants shall be provided with equipment for making at least the following determinations: pH, temperature, disinfectant residual, alkalinity, turbidity, "Jar" tests and other tests deemed necessary to monitor specific water quality problems or to evaluate specific water treatment processes. All surface water treatment plants shall provide sampling taps for raw, settled, filtered water and clearwell discharge. (e) Disinfection. (1)-(4) (No change.) (5) A full-face self-contained breathing apparatus or supplied air respirator that meets Occupational Safety and Health Administration (OSHA) standards for construction and operation, and a small bottle of fresh ammonia solution (or approved equal) for testing for chlorine leakage shall be readily accessible outside the chlorinator room when chlorine gas is used. (6) (No change.) (7) Adequate ventilation which includes both high level and floor level screened vents shall be provided for all enclosures in which gas chlorine is being stored or fed. Enclosures containing more than one open 150 pound cylinder of chlorine shall also provide forced air ventilation which includes screened and louvered floor level and high level vents, a fan which is located at and draws air in through the top vent and discharges to the outside atmosphere through the floor level vent, and a fan switch located outside the enclosure. Systems may install negative pressure ventilation in lieu of the above as long as the facilities also have gas containment and treatment as prescribed by the current Uniform Fire Code (UFC). (8)-(9) (No change.) (10) Where anhydrous ammonia feed equipment is utilized, it must be housed in a separate enclosure equipped with both high and low level ventilation to the outside atmosphere. The enclosure must be provided with forced air ventilation which includes screened and louvered floor level and high level vents, a fan which is located at and draws air in through the floor vent and discharges through the top vent, and a fan switch located outside the enclosure. Systems may install negative pressure ventilation in lieu of the above as long as the facilities also have gas containment and treatment as prescribed by the current Uniform Fire Code (UFC). (11) Emergency evacuation procedures must be established where one ton or larger chlorine or anhydrous ammonia cylinders are located within 1/4 mile of residential or other high density developments. (f) Other treatment processes. The adjustment of fluoride ion content, special treatment for iron and manganese reduction, special methods for taste and odor control, demineralization, and other proposals covering other treatment processes will be considered on an individual basis, pursuant to sec.290.39(g) of this title (relating to General Provisions). Package-type treatment systems and their components shall be subject to all applicable design criteria in this section. Where innovative/alternate treatment systems are proposed, the registered professional engineer must provide pilot test data, data collected at similar full-scale operations, and proof of a one year manufacturers performance warrantee/guarantee assuring that the plant will produce an effluent of 0.5 NTU or less in at least 95% of the measurements taken each month. Pilot test data must be representative of the actual operating conditions which can be expected over the course of the year. (g)-(h) (No change.) (i) Treatment chemicals and media. All chemicals and any additional or replacement process media used in treatment of water supplied by public water systems must conform to American National Standards Institute/National Sanitation Foundation (ANSI/NSF) Standard 60 for direct additives and ANSI/NSF Standard 61 for indirect additives. Conformance with these standards must be obtained by certification of the product by an organization accredited by ANSI. (j) Plant operations manual. A thorough plant operations manual must be compiled and kept up to date for operator review and reference. This manual should be of sufficient detail to provide the operator with routine maintenance and repair procedures as well as provide telephone numbers of water system personnel, system officials, and local/state/federal agencies to be contacted in the event of an emergency. sec.290.43. Water Storage. (a)-(b) (No change.) (c) Design and construction of clear wells, standpipes, ground storage tanks, and elevated tanks. All facilities for potable water storage shall be covered and designed, fabricated, erected, tested and disinfected in strict accordance with current American Water Works Association (AWWA) standards and shall be provided with the minimum number, size and type of roof vents, manways, drains, sample connections, access ladders, overflows, liquid level indicators and other appurtenances as specified in these rules. Bolted tanks shall be designed, fabricated, erected and tested in strict accordance with current AWWA Standard D103. The roof of all tanks shall be designed and erected so that no water ponds at any point on the roof and, in addition, no area of the roof shall have a slope of less than 0.75 inch per foot. (1) (No change.) (2) All roof openings shall be designed in accordance with current AWWA standards. If an alternate 30 inch diameter access opening is not provided in a storage tank, the primary roof access opening shall not be less than 30 inches in diameter. Other roof openings required only for ventilating purposes during cleaning, repairing or painting operations shall be not less than 24 inches in diameter or as specified by the registered professional engineer. An existing tank without a 30-inch in diameter access opening must be modified to meet this requirement when major repair or maintenance is performed on the tank. Each access opening shall have a raised curbing at least four inches in height with a lockable cover that overlaps the curbing at least two inches in a downward direction. Where necessary, a gasket shall be used to make a positive seal when the hatch is closed. All hatches shall remain locked except during inspections and maintenance. (3)-(4) (No change.) (5) Inlet and outlet connections shall be located so as to prevent short circuiting or stagnation of water. Clearwells used for disinfectant contact time shall be appropriately baffled. (6)-(7) (No change.) (8) All clear wells, ground storage tanks, standpipes, and elevated tanks shall be painted, disinfected, and maintained in strict accordance with current AWWA standards. However, no temporary coatings, wax grease coatings, or coating materials containing lead will be allowed. No other coatings will be allowed which are not approved for use (as a contact surface with potable water) by the United States Public Health Service (USPHS), the United States Environmental Protection Agency (EPA), National Sanitation Foundation (NSF), or the United States Food and Drug Administration (FDA). All newly installed coatings must conform to ANSI/NSF Standard 61 and must be certified by an organization accredited by ANSI. (9)-(10) (No change.) (d) Design and construction of pressure (hydropneumatic) tanks. All hydropneumatic tanks must be located wholly above grade and must be of steel construction with welded seams except as provided in paragraph (8) of this subsection. (1) Metal thickness for pressure tanks shall be sufficient to withstand the highest expected working pressures with a four to one factor of safety. Tanks of 1,000 gallons capacity or larger must meet the standards of the American Society of Mechanical Engineers (ASME) Section VIII, Division 1 Codes and Construction Regulations and must have an access port for periodic inspections. An ASME name plate must be permanently attached to those tanks. Tanks installed before July 1, 1988, are exempt from the ASME coding requirement, but all new installations must meet this regulation. Exempt tanks can be relocated within a system but cannot be relocated to another system. (2)-(7) (No change.) (8) Where seamless fiberglass tanks are utilized, they shall not exceed 300 gallons in capacity. (9) No more than three pressure tanks shall be installed at any one site without the prior approval of the executive director. (e) Facility fencing. All potable water storage tanks and pressure maintenance facilities must be enclosed by an intruder resistant fence with lockable gates. Pedestal-type elevated storage tanks with lockable doors and without external ladders are exempt from this requirement. The gates and doors must be kept locked whenever the facility is unattended. (f) Service pumps. Service pump installations taking suction from storage tanks shall provide automatic low water level cutoff devices to prevent damage to the pumps. The service pump circuitry shall also resume pumping automatically once the minimum water level is reached in the tank. sec.290.44. Water Distribution. (a) Design and standards. All potable water distribution systems including pump stations, mains, and both ground and elevated storage tanks, shall be designed, installed and constructed in accordance with current American Water Works Association (AWWA) standards with reference to materials to be used and construction procedures to be followed. In the absence of AWWA standards, commission review may be based upon the standards of the American Society for Testing and Materials (ASTM), commercial and other recognized standards utilized by registered professional engineers. (1) All newly installed pipes and related products must conform to American National Standards Institute/National Sanitation Foundation (ANSI/NSF) Standard 61 and must be certified by an organization accredited by ANSI. (2) All plastic pipe for use in public water systems must also bear the National Sanitation Foundation Seal of Approval (NSF-pw) and have an ASTM design pressure rating of at least 150 psi or a standard dimension ratio of 26 or less. (3) (No change.) (4) Water transmission and distribution lines must be installed in accordance with the manufacturer's instructions. However, the top of the water line must be located below the frost line and in no case shall the top of the water line be less than 24 inches below ground surface. (5) (No change.) (b) (No change.) (c) Minimum water line sizes. These are minimum requirements for domestic flows only and do not consider fire flows. These requirements should be exceeded when the registered professional engineer deems it necessary. It should be noted that the required sizes are based strictly on the number of customers to be served and not on the distances between connections or differences in elevation or the type of pipe. No new water line under two inches in diameter will be allowed to be installed in a public water system distribution system. These minimum line sizes do not apply to individual customer service lines. Figure 1: sec.290.44(c) (d) Minimum pressure requirement. The system must be designed to maintain a minimum pressure of 35 psi at all points within the distribution network at flow rates of at least 1.5 gallons per minute per connection. When the system is intended to provide fire fighting capability, it must also be designed to maintain a minimum pressure of 20 psi under combined fire and drinking water flow conditions. (1) Air release devices shall be installed in the distribution system at all points where topography or other factors may create air locks in the lines. Air release devices shall be installed in such a manner as to preclude the possibility of submergence or possible entrance of contaminants. In this respect, all openings to the atmosphere shall be covered with 16-mesh or finer, corrosion-resistant screening material or an acceptable equivalent. (2) -(6) (No change.) (e) Location of waterlines. (1) The following rules apply to installations of potable water distribution lines and wastewater collection lines, wastewater force mains and other conveyances/appurtenances identified as potential sources of contamination. Furthermore, all ratings specified shall be defined by ASTM or AWWA standards unless stated otherwise. (2) When new potable water distribution lines are constructed, they shall be installed no closer than nine feet in all directions to wastewater collection facilities. All separation distances shall be measured from the outside surface of each of the respective pieces. (3) Potable water distribution lines and wastewater collection lines or force mains that form parallel utility lines shall be installed in separate trenches. (4) No physical connection shall be made between a drinking water supply and a sewer line. Any appurtenance shall be designed and constructed so as to prevent any possibility of sewage entering the drinking water system. (5) Where the nine foot separation distance cannot be achieved, the following criteria shall apply: (A) New Waterline Installation-Parallel Lines (i) Where a new potable waterline parallels an existing, non-pressure or pressure rated wastewater line/force main and the registered professional engineer is able to determine that the existing line is not leaking, the new potable waterline shall be located at least two feet above the existing line, measured vertically, and at least four feet away, measured horizontally, from the existing line. Every effort shall be exerted not to disturb the bedding and backfill of the existing wastewater line. (ii) Where a new potable waterline parallels an existing pressure rated wastewater line and it cannot be determined by the registered professional engineer if the existing line is leaking, the existing wastewater line shall be replaced with a 150 psi pressure rated pipe. The new potable waterline shall be located at least two feet above the new wastewater line, measured vertically, and at least four feet away, measured horizontally, from the replaced wastewater line. (iii) Where a new potable waterline parallels a new wastewater line/force main, the wastewater line shall be constructed of 150 psi pressure rated pipe. The new potable waterline shall located at least two feet above the wastewater line, measured vertically, and at least four feet away, measured horizontally, from the wastewater line. (B) New Waterline Installation-Crossing Lines (i) Where a new potable waterline crosses an existing, non-pressure rated wastewater line, one segment of the waterline pipe shall be centered over the wastewater line such that the joints of the waterline pipe are equidistant and at least nine feet horizontally from the centerline of the wastewater line. The potable waterline shall be at least two feet above the wastewater line. Whenever possible, the crossing shall be centered between the joints of the wastewater line. If the existing wastewater line is disturbed or shows signs of leaking, it shall be replaced for at least nine feet in both directions (18 feet total) with 150 psi pressure rated pipe. (ii) Where a new potable waterline crosses an existing, pressure rated wastewater line, one segment of the waterline pipe shall be centered over the wastewater line such that the joints of the waterline pipe are equidistant and at least nine feet horizontally from the centerline of the wastewater line. The potable waterline shall be at least six inches above the wastewater line. Whenever possible, the crossing shall be centered between the joints of the wastewater line. If the existing wastewater line shows signs of leaking, it shall be replaced for at least nine feet in both directions (18 feet total) with 150 psi pressure rated pipe. (iii) Where a new potable waterline crosses a new, non-pressure rated wastewater line and the standard pipe segment length of the wastewater line is at least 18 feet, one segment of the waterline pipe shall be centered over the wastewater line such that the joints of the waterline pipe are equidistant and at least nine feet horizontally from the centerline of the wastewater line. The potable waterline shall be at least two feet above the wastewater line. Whenever possible, the crossing shall be centered between the joints of the wastewater line. The wastewater pipe shall have a minimum pipe stiffness of 115 psi at 5.0% deflection. The wastewater line shall be embedded in cement stabilized sand (see clause (vi) of this subparagraph) for the total length of one pipe segment plus 12 inches beyond the joint on each end. (iv) Where a new potable waterline crosses a new, non-pressure rated wastewater line and a standard length of the wastewater pipe is less than 18 feet in length, the potable water pipe segment shall be centered over the wastewater line. The materials and method of installation shall conform with one of the following options: (I) Within nine feet horizontally of either side of the waterline, the wastewater pipe and joints shall be constructed with pipe material having a minimum pressure rating of 150 psi. An absolute minimum vertical separation distance of two feet shall be provided. The wastewater line shall be located below the waterline. (II) All sections of wastewater line within nine feet horizontally of the waterline shall be encased in an 18 foot (or longer) section of pipe. Flexible encasing pipe shall have a minimum pipe stiffness of 115 psi at 5.0% deflection. The encasing pipe shall be centered on the waterline and shall be at least two nominal pipe diameters larger than the wastewater line. The space around the carrier pipe shall be supported at five foot (or less) intervals with spacers or be filled to the springline with washed sand. Each end of the casing shall be sealed with water tight non-shrink cement grout or a manufactured water tight seal. An absolute minimum separation distance of six inches between the encasement pipe and the waterline shall be provided. The wastewater line shall be located below the waterline. (III) When a new waterline crosses under a wastewater line, the waterline will be encased as described for wastewater lines in section (II) above or constructed of ductile iron or steel pipe with mechanical or welded joints as appropriate. An absolute minimum separation distance of one foot between the water line and the wastewater line shall be provided. Both the waterline and wastewater line, must pass a pressure and leakage test as specified in AWWA C600 standards. (v) Where a new potable waterline crosses a new, pressure rated wastewater line, one segment of the waterline pipe shall be centered over the wastewater line such that the joints of the waterline pipe are equidistant and at least nine feet horizontally from the centerline of the wastewater line. The potable waterline shall be at least six inches above the wastewater line. Whenever possible, the crossing should be centered between the joints of the wastewater line. The wastewater pipe shall have a minimum pressure rating of 150 psi. The wastewater line shall be embedded in cement stabilized sand for the total length of one pipe segment plus 12 inches beyond the joint on each end. (vi) Where cement stabilized sand bedding is required, the cement stabilized sand shall have a minimum of 10% cement per cubic yard of cement stabilized sand mixture, based on loose dry weight volume (at least 2.5 bags of cement per cubic yard of mixture). The cement stabilized sand bedding shall be a minimum of six inches above and four inches below the sewer pipe. The use of brown coloring in cement stabilized sand for wastewater line bedding is recommended for the identification of wastewater force mains during future construction. (6) Waterline and Manhole Separation. The separation distance from a potable waterline to a manhole shall be a minimum of nine feet. Where the nine foot separation distance cannot be achieved, the potable waterline shall be encased in a joint of 150 psi pressure class pipe at least 18 feet long and two nominal sizes larger than the new conveyance. The space around the carrier pipe shall be supported at five feet intervals with spacers or be filled to the spring line with washed sand. The encasement pipe shall be centered on the crossing and both ends sealed with cement grout or manufactured seal. (7) Location of Fire hydrants. Fire hydrants shall not be installed within nine feet vertically or horizontally of any sanitary sewer line regardless of construction. (8) Location of Supply/Suction Lines. Suction mains to pumping equipment shall not cross wastewater lines carrying domestic or industrial wastes. Raw water supply lines shall not be installed within five feet of any tile or concrete wastewater line. (9) Proximity of Septic Tank Drainfields. Waterlines shall not be installed closer than ten feet to septic tank drainfields. (f)-(g) (No change.) (h) Backflow, siphonage. (1)-(3) (No change.) (4) Effective January 1, 1996, all backflow prevention assemblies shall be tested upon installation by a recognized backflow prevention assembly tester and certified to be operating within specifications. Backflow prevention assemblies which are installed to provide protection against high health hazards must also be tested and certified to be operating within specifications at least annually by a recognized backflow prevention device tester. (A) Recognized testers shall have completed a Commission approved course on cross connection control and backflow prevention and pass an examination administered by the TNRCC or its designated agent. The accredited tester classification shall be broken down into two categories: (i) The "General Tester" is qualified to test and repair backflow prevention assemblies on any domestic, commercial, industrial or irrigation service. (Exception-Firelines-See "Fireline Tester" in sec.290. 44(h)(A)(ii)). (ii) The "Fireline Tester" is qualified to test and repair backflow prevention assemblies on firelines only. The State Fire Marshall's office requires that a person performing maintenance on firelines must be employed by an Approved Fireline Contractor. (B) Individuals that can show proof of completion of a course and passage of an exam based on the ABPA or ASSE National exam, prior to the effective date of these regulations, may be recognized as accredited for the term of their current certification (not to exceed three years). (C) Gauges used in the testing of backflow prevention assemblies shall be tested for accuracy annually in accordance with the University of Southern California's Foundation of Cross Connection Control and Hydraulic Research and/or the American Water Works Association Manual of Cross Connection Control (Manual M-14). Public water systems shall require testers to include test gauge serial numbers on "Test and Maintenance" report forms and ensure testers have gauges tested for accuracy. (D) A Test Report must be completed by the recognized backflow prevention Assembly Tester for each assembly tested. The signed and dated original must be submitted to the public water supplier for record keeping purposes. Should the tester choose to use a report format which differs from that found in Appendix F of this title, it must minimally contain all information required by the report form. (E) Test and maintenance reports shall be retained for a minimum of three years. The public water supplier must provide these records to commission staff for inspection upon request. (5) (No change.) (i) Water hauling. When drinking water is distributed by tank truck or trailer, it must be accomplished in the following manner: (1) (No change.) (2) The equipment used to haul the water must be approved by the executive director and must be constructed as follows: (A)-(K) (No change.) (L) Operational records detailing the amount of water hauled, purchases, microbiological sampling results, chlorine residual readings, dates of disinfection and source of water shall be maintained. sec.290.45. Minimum Water System Capacity Requirements. (a) General Provisions. The following requirements are to be used in evaluating both the total capacities for public water systems and the capacities at individual pump stations and pressure planes. The capacities listed below are minimum requirements only. Additional supply, storage, service pumping, and pressure maintenance facilities will be required by the commission if a normal operating pressure of 35 psi cannot be maintained throughout the system, or if the system's maximum daily demand exceeds its total production and treatment capacity. Additional capacities will also be required if the system is unable to maintain a minimum pressure of 20 psi during fire fighting, line flushing and other unusual conditions. In all sections governing quantity requirements, total storage capacity does not include pressure tank capacity. (b) Community Water Systems. (1) Ground water supply requirements are as follows: (A) (No change.) (B) If fewer than 50 connections with ground storage, the system must have the following: (i)-(ii) (No change.) (iii) two or more service pumps having a total capacity of 2.0 gallons per minute per connection; and (iv) (No change.) (C) (No change.) (D) For more than 250 connections, the system must meet the following requirements: (i)-(iii) (No change.) (iv) An elevated storage capacity of 100 gallons per connection or a pressure tank capacity of 20 gallons per connection must be provided. If pressure tanks are used, a maximum capacity of 30,000 gallons is sufficient for up to 2,500 connections. An elevated storage capacity of 100 gallons per connection is required for systems with more than 2,500 connections. Alternate methods of pressure maintenance may be proposed and will be approved if the criteria contained in sec.290.45(g)(2) of this chapter are met. (v) Emergency power is required for systems which serve more than 250 connections and do not meet the elevated storage requirement. Sufficient emergency power must be provided to deliver a minimum of 0.35 gallons per minute per connection to the distribution system in the event of the loss of normal power supply. Alternately, an emergency interconnection can be provided with another public water system that has emergency power and is able to supply at least 0.35 gallons per minute for each connection in the combined system. Emergency power facilities in systems serving 1,000 connections or greater must be serviced and maintained in accordance with level 2 maintenance requirements contained in the current NFPA 110 standards. Although not required, compliance with NFPA 110 standards is highly recommended for systems serving less than 1,000 connections. Logs of all emergency power use and maintenance must be maintained and kept on file for a period of not less than three years. These records must be made available, upon request, for commission review. (E)-(F) (No change.) (2) All surface water supplies must provide the following: (A)-(F) (No change.) (G) An elevated storage capacity of 100 gallons per connection or a pressure tank capacity of 20 gallons per connection must be provided. If pressure tanks are used, a maximum capacity of 30,000 gallons is sufficient for systems of up to 2,500 connections. An elevated storage capacity of 100 gallons per connection is required for systems with more than 2,500 connections. Alternate methods of pressure maintenance may be proposed and will be approved if the criteria contained in sec.290.45(g)(2) of this chapter are met. (H) Emergency power is required for systems which serve more than 250 connections and do not meet the elevated storage requirement. Sufficient emergency power must be provided to deliver a minimum of 0.35 gallons per minute per connection to the distribution system in the event of the loss of normal power supply. Alternately, an emergency interconnection can be provided with another public water system that has emergency power and is able to supply at least 0.35 gallons per minute for each connection in the combined system. Emergency power facilities in systems serving 1,000 connections or greater must be serviced and maintained in accordance with level 2 maintenance requirements contained in the current NFPA 110 standards. Although not required, compliance with NFPA 110 standards is highly recommended for systems serving less than 1,000 connections. Logs of all emergency power use and maintenance must be maintained and kept on file for a period of not less than three years. These records must be made available, upon request, for commission review. (c)-(d) (No change.) (e) Water wholesalers. The following additional requirements apply to systems which supply wholesale treated water to other public water supplies. (1) -(2) (No change.) (3) Emergency power is required for each portion of the system which supplies more than 250 connections under direct pressure and does not provide an elevated storage capacity of at least 100 gallons per connection. If emergency power is required, it must be sufficient to deliver 20% of the minimum required service pump capacity in the event of the loss of normal power supply. When the wholesaler provides water through an air gap into the purchaser's storage facilities it will be the purchaser's responsibility to meet all minimum water system capacity requirements including emergency power. (f) (No change.) (g) Exceptions. Requests for exceptions to one or more of these Minimum Water System Capacity Requirements shall be considered on an individual basis. Any water system which requests an exception must demonstrate to the satisfaction of the executive director that the exception will not compromise the public health or result in a degradation of service or water quality as specified in sec.290. 39(i) of this title (relating to General Provisions). (1) (No change.) (2) Although elevated storage is the preferred method of pressure maintenance for systems of over 2,500 connections, it is recognized that local conditions may dictate the use of alternate methods utilizing hydropneumatic tanks and on- site emergency power equipment. Exceptions to the elevated storage requirements may be obtained based on application to and approval of the executive director. Special conditions apply to systems qualifying for an elevated storage exception. (A) The system must submit documentation sufficient to assure that the alternate method of pressure maintenance is capable of providing a safe and uninterrupted supply of water under pressure to the distribution system during all demand conditions. (i) A signed and sealed statement by a registered professional engineer must be provided which certifies that the pressure maintenance facilities are sized, designed and capable of providing a minimum pressure of at least 35 psi the distribution network at flow rates of 1.5 gpm per connection or greater. In addition, the engineer must certify that the emergency power facilities are capable of providing the greater of the average daily demand or 0.35 gpm per connection while maintaining distribution pressures of at least 35 psi, and that emergency power facilities powering production and treatment facilities are capable of supplying at least 0.35 gpm per connection to storage. (ii) The system's registered professional engineer must conduct a hydraulic analysis of the system under peak conditions. This must include an analysis of the time lag between the loss of the normal power supply and the commencement of emergency power as well as the minimum pressure that will be maintained within the distribution system during this time lag. In no case shall this minimum pressure within the distribution system be less than 20 psi. The results of this analysis must be submitted to the commission for review. (iii) For existing systems, the system's registered professional engineer must provide continuous 24 hour pressure chart recordings of distribution pressures maintained during past power failures, if available. The period reviewed should not be less than three years. (B) Emergency power facilities must be maintained and provided with necessary appurtenances to assure immediate and dependable operation in case of normal power interruption. (i) The facilities must be serviced and maintained in accordance with level two maintenance requirements contained in the current NFPA 110 standards and the manufacturers recommendations. (ii) The switching gear must be capable of bringing the emergency power generating equipment on line during a power interruption such that the pressure in the distribution network does not fall below 20 psi at any time. (iii) The minimum on-site fuel storage capacity shall be determined by the fuel demand of the emergency power facilities and the frequency of fuel delivery. An amount of fuel equal to that required to operate the facilities under-load for a period of at least eight hours must always be maintained on site. (iv) Residential rated mufflers or other means of effective noise suppression must be provided on each emergency power motor. (C) Battery powered or uninterrupted power supply pressure monitors and chart recorders which are configured to activate immediately upon loss of normal power must be provided for pressure maintenance facilities. These records must be kept for a minimum of three years and made available for review by the commission. Records must include chart recordings of all power interruptions including interruptions due to periodic emergency power "under-load" testing and maintenance. (D) An emergency response plan must be submitted detailing procedures to be followed and individuals to be contacted in the event of loss of normal power supply. (3) Any exception granted pursuant to these requirements shall be subject to review at the time of each routine sanitary survey of the system. Failure to demonstrate satisfactory survey findings may result in revocation of the exception. sec.290.46. Minimum Acceptable Operating Practices for Public Drinking Water Systems. (a) (No change.) (b) Microbiological. Submission of samples for microbiological analysis shall be as required by sec.sec.290.101-290.121 of this title (relating to Drinking Water Standards Governing Drinking Water Quality and Reporting Requirements for Public Water Supply Systems). Microbiological samples may be required by the commission for monitoring purposes in addition to the routine samples required by the drinking water standards. These samples shall be submitted to the Texas Department of Health Bureau of Laboratories or one of its approved laboratories. (A list of the approved laboratories can be obtained by contacting the Texas Department of Health Bureau of Laboratories). (c) (No change.) (d) Monthly operation reports. A monthly report of water works operation must be compiled. The report shall show the amounts of various chemicals, daily distribution system pumpages, dates of dead-end main flushes, cleanings of storage tanks, results of microbiological and chemical tests performed, and other pertinent data. Systems using surface water sources must also report raw and treated water analyses and daily turbidity analyses. A copy must be kept on file for review and made available during inspections. (1) A copy of the monthly report must be submitted to the Texas Natural Resource Conservation Commission, Water Utilities Division, P.O. Box 13087, MC 155, Capitol Station, Austin, Texas 78711-3087 by the 15th day of the following month. The copy submitted to the commission must contain all the information required by the drinking water standards and the results of any special monitoring tests which have been required. (2) Systems serving fewer than 100 connections which utilize ground water sources only are not required to compile monthly reports. (e) Operation by certified personnel. All systems, except transient noncommunity systems which utilize ground or purchased water, must be under the direct supervision of a certified water works operator. The operator shall ensure that the water system complies with the requirements of this section. (1) No district, municipality, firm, corporation, or individual, except transient noncommunity systems noted in sec.290.46(e), shall furnish to the public any drinking water, unless the production, processing, treatment, and distribution is at all times under the direct daily supervision of a competent water works operator holding a valid certificate of competency issued under the direction of the commission. A Grade "D" certificate is valid for systems with 250 or fewer connections. Systems serving in excess of 250 connections must employ an operator with a Grade "C" or higher certificate. Systems serving in excess of 1,000 connections must employ at least two Grade "C" certified operators. For all systems which treat surface water, at least one of the required operators must hold at least a grade "B" or higher surface water certificate or hold a grade "C" surface water certificate and have completed a commission recognized 20-hour Water Laboratory Course. (2) (No change.) (3) Systems which have sources which are classified as groundwater under the influence of surface water must be under the supervision of either an operator who has at least a Grade C Groundwater certificate and has completed additional training or an operator who has at least a Grade C surface water certificate. (A) Those systems which utilize cartridge filters must be under the supervision of at least a Grade C Groundwater operator who has completed a commission recognized 8-hour training course on monitoring and reporting requirements. (B) Those systems which utilize coagulant addition and direct filtration must be under the supervision of at least a Grade C Groundwater operator who has completed a commission recognized 20-hour Surface Water Production course and a commission recognized 8-hour training course on monitoring and reporting requirements. (C) Those systems which utilize complete surface water treatment must comply with the requirements of 30 TAC sec.290.46(e)(2). (4) Certified operators must provide the commission with written, dated and signed notice of the public water systems which they operate or are employed by when applying for, renewing, or upgrading their certification. This notice must be amended in writing within ten days of any change in responsibility. (f) Disinfectant residual and monitoring. Facilities shall be provided to maintain an adequate disinfectant residual throughout the distribution system and equipment shall be available for monitoring the concentration of the disinfectant. (1) (No change.) (2) The disinfectant residual in the distribution system must be tested periodically using a test kit which employs a diethyl-p-phenylenediamine (DPD) indicator. The record of these test results shall be maintained for at least three years. (A) Public water systems must conduct daily disinfectant residual tests at representative locations in the distribution system unless they utilize ground water or purchased water sources only and serve fewer than 250 connections or 750 persons daily. (B) Systems which utilize ground water or purchased water sources only and serve fewer than 250 connections or 750 persons daily must test the disinfectant residual at representative locations in the distribution system at least once every seven days. (C) (No change.) (D) Representative disinfectant residual monitoring locations shall include, but are not limited to, those identified in the bacteriological sample siting plan and those in the far reaches of the distribution system. Only residual tests taken at bacteriological sampling sites can be used for compliance monitoring. (g)-(h) (No change.) (i) Plumbing ordinance. Public water systems must adopt an adequate plumbing ordinance, regulations, or service agreement with provisions for proper enforcement to insure that neither cross-connections nor other unacceptable plumbing practices are permitted. See sec.290.47(b) of this title (relating to Appendices). Should sanitary control of the distribution system not reside with the purveyor, the entity retaining sanitary control shall be responsible for establishing and enforcing adequate regulations in this regard. The use of pipes and pipe fittings that contain more than 8.0% lead or solders and flux that contain more than 0.2% lead is prohibited for installation or repair of any public water supply and for installation or repair of any plumbing in a residential or nonresidential facility providing water for human consumption and connected to a public drinking water supply system. This requirement may be waived for lead joints that are necessary for repairs to cast iron pipe. (j) Customer Service Inspections. Effective January 1, 1996, a customer service inspection certification shall be completed prior to providing continuous water service to new construction, on any existing service when the water purveyor has reason to believe that cross-connections or other unacceptable plumbing practices exist, or after any material improvement, correction, or addition to the private plumbing facilities. See sec.290.47(d) of this title (relating to Appendices). (1) Individuals with the following credentials shall be recognized as capable of conducting a customer service inspection certification. (A) Plumbing Inspectors and Water Supply Protection Specialists licensed by the Texas State Board of Plumbing Examiners. (B) Certified Waterworks Operators and members of other water related professional groups who have completed a training course, passed an examination administered by the commission or its designated agent, and hold an endorsement granted by the commission or its designated agent. (C) Licensed Plumbers, at the discretion of the water purveyor, may perform customer service inspections on single-family residential services. (2) As unacceptable plumbing practices are discovered, they shall be promptly eliminated to prevent possible contamination of the water supplied by the public water system. The existence of a serious threat to the integrity of the public water supply shall be considered sufficient grounds for immediate termination of water service. Service can be restored only when the source of potential contamination no longer exists, or until sufficient additional safeguards have been taken. (3) Copies of properly completed inspection certifications must be kept on file by the water purveyor and made available, upon request, for commission review. These certifications shall be retained for a minimum of ten years. If the suggested certification form (see Appendix D, sec.290.47 of this title) is not used, the Inspection Certifications must minimally include the name and registration number of the inspector, the type of registration (Plumbing Inspectors, Water Supply Protection Specialists, Certified Operator, etc.), and be dated and signed. It must also certify that: (A) No direct connection between the public drinking water supply and a potential source of contamination exists. Potential sources of contamination are isolated from the public water system by an air-gap or an appropriate backflow prevention assembly in accordance with state plumbing regulation. Additionally, all pressure relief valves and thermal expansion devices are in compliance with state plumbing codes. (B) No cross-connection between the public drinking water supply and a private water source exists. Where an actual air gap is not maintained between the public water supply and a private water supply, an approved reduced pressure- zone backflow prevention assembly is properly installed and a service agreement exists for annual inspection and testing by a recognized backflow prevention assembly tester. See sec.290.44(h)(4)of this title (relating to recognized backflow prevention assembly testers). (C) No connection exists which would allow the return of water used for condensing, cooling or industrial processes back to the public water supply. (D) No pipe or pipe fitting which contains more than 8.0% lead exists in private plumbing facilities installed on or after July 1, 1988. (E) No solder or flux which contains more than 0.2% lead exists in private plumbing facilities installed on or after July 1, 1988. (F) No plumbing fixture is installed which is not in compliance with a state- approved plumbing code. (4) These customer service inspection requirements are not considered acceptable substitutes for and shall not apply to the sanitary control requirements stated in sec.290.115(5) of this title (relating to Exceptions to these standards). (k)-(q) (No change.) (r) Data on water system ownership and management. The commission shall be provided with information regarding water system ownership and management. (1) (No change.) (2) On an annual basis, each certified operator who supervises more than one water system shall provide the executive director written notices containing their certificate number, address and telephone number, and the name and identification number of each public water system which they supervise. Each operating company shall provide this information for itself and for each of its operators. See sec.290.47 of this title (relating to Appendices). (s) Boil water notification. In the event of low distribution pressures (below 20 psi), water outages, repeated unacceptable microbiological samples or failure to maintain adequate chlorine residuals, a boil water notification must be instituted by the water system owner or responsible official. The system must notify its customers within 24 hours using the prescribed notification format as specified in sec.290.47(e) of this title (relating to Appendices). Bilingual notification may be appropriate based upon local demographics. Boil water notices shall remain in effect until water distribution pressures in excess of 20 psi can consistently be maintained, a minimum of 0.2 mg/l free chlorine residual or 0.5 mg/l chloramine residual (measured as total chlorine) is present throughout the system and water samples collected for microbiological analysis are found negative for coliform organisms. Once the above conditions are met, the customers must be notified in a manner similar to the original notice. A copy of this notice shall be provided to the executive director. Other protective measures may be required at the discretion of the executive director. Line maintenance situations which effect only limited and localized segments of the distribution system are exempt from system-wide notification unless a significant public health risk is involved. (t)-(w) (No change.) (x) Abandoned wells. Abandoned public water supply wells owned by the system must be plugged with cement according to the Water Well Drillers Rules Chapter 338 of this title. Wells that are not in use and are non-deteriorated (as defined in 30 TAC 338) must be tested every five years or as required by the executive director to prove that they are in a non-deteriorated condition. The test results shall be sent to the commission's Water Utilities Division for review and approval. Deteriorated wells must be either plugged with cement or repaired to a non-deteriorated condition. (y) Electrical wiring. All water system electrical wiring must be installed in a securely mounted conduit in compliance with a local or national electrical code. sec.290.47. Appendices. (a) Appendix A. Recognition as a Superior or Approved Public Water System. Figure 1: 30 TAC sec.290.47(a) (b) Appendix B. Sample Service Agreement. Figure 2: 30 TAC sec.290.47(b) (c) Appendix C. Sample Sanitary Control Easement Document for a Public Water Well. Figure 3: 30 TAC sec.290.47(c) (d) Appendix D. Sample Service Inspection Certification. Figure 4: 30 TAC sec.290.47(d) (e) Appendix E. Boil Water Notification. Figure 5: 30 TAC sec.290.47(e) (f) Appendix F. Sample Backflow Prevention Assembly Test and Maintenance Report. Figure 6: 30 TAC sec.290.47(f) (g) Appendix G. Operator and/or Employment Notice. Figure 7: 30 TAC sec.290.47(g) 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 October 6, 1995. TRD-9512899 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 3, 1995 Proposal publication date: June 13, 1995 For further information, please call: (512) 239-4640 30 TAC sec.sec.290.47-290.50 The repeals are adopted under Texas Water Code, sec.5,103, which provides the commission the authority to adopt and enforce rules necessary to carry out its powers and duties under the laws of this state and the Texas Health and Safety Code, Chapter 341, Subchapter C, which governs sanitary standards of drinking water, protection of public water supplies, and bodies of water. 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 October 6, 1995. TRD-9512900 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 3, 1995 Proposal publication date: June 13, 1995 For further information, please call: (512) 239-4640 Drinking Water Standards Governing Drinking Water Quality and Reporting Requirements for Public Water Supply Systems 30 TAC sec.290.121 The new section is proposed under Texas Water Code, sec.5,103, which provides the commission the authority to adopt and enforce rules necessary to carry out its powers and duties under the laws of this state and the Texas Health and Safety Code, Chapter 341, Subchapter C, which governs sanitary standards of drinking water, protection of public water supplies, and bodies of water. sec.290.121. Laboratory Analyses. (a) All samples used to determine compliance with the rules of the commission for chemical, radiological, or bacteriological analyses must be submitted to a laboratory approved by the Texas Department of Health. Non-compliance tests, such as control tests taken to operate the system, may be run in the plant or local laboratory. (b) Methods of analysis shall be as specified in 40 Code of Federal Regulations sec.141.21(f) (microbiological), sec.141.22(a) (turbidity) , sec.141.23(f) (inorganics), sec.141.24(e), (f) and (g) (organics) and sec.141. 25 (radionuclides) of the National Primary Drinking Water Regulations, or by any alternative analytical technique as specified by the Department and approved by the Administrator under 40 Code of Federal Regulations sec.141.27. (c) The commission adopts by reference the Federal Regulations referred to in subsection (b) of this section. 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 October 6, 1995. TRD-9512901 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 3, 1995 Proposal publication date: June 13, 1995 For further information, please call: (512) 239-4640 Chapter 330. Municipal Solid Waste The Texas Natural Resource Conservation Commission (TNRCC) adopts an amendment to sec.330.4 and new sec.330.66, concerning municipal solid waste management facilities used in the transfer of grease trap waste, grit trap waste, septage, and other similar liquid waste. Transfer facilities meeting certain capacity requirements will be exempt from permit requirements and will be required to give notice of operation to the TNRCC and will be required to design and operate the facility in accordance with a new section. Section 330. 66 is adopted with changes to the proposed text as published in the July 11, 1995, issue of the Texas Register (20 TexReg 5049). Section 330.4 is adopted without changes to the proposed text as published in the July 11, 1995, issue of the Texas Register (20 TexReg 5049), and will not be republished. The amended and new sections are intended to encourage the development of certain liquid waste transfer stations, thereby reducing transportation costs for liquid waste. Due to federal requirements of Subtitle D of the Resource Conservation and Recovery Act, many landfills in Texas have ceased accepting certain types of liquid waste, and the costs associated with transporting such waste to an approved disposal or processing facility can cause a serious economic transportation burden. The changes are consistent with Senate Bill 963, 73rd Legislature (1993) which amended the Texas Solid Waste Disposal Act, Texas Health and Safety Code, sec.361.111. The bill exempts certain municipal solid waste management facilities involved in the transfer of municipal solid waste from the TNRCC municipal solid waste permit requirements. In order to qualify for permit exemption, the facility must comply with certain design and operational requirements, and must meet certain capacity limits. Comments were received from Waste Technologies, Inc., Scientific Consulting Laboratories, Inc., and American WasteWater Ltd. All three commenters expressed their support of the proposed rule. The TNRCC acknowledges their supportive comments. One commenter requested the financial assurance requirements be eliminated or amended because of the administrative costs associated with the maintenance of a financial assurance instrument. The TNRCC believes that there are means to keep financial assurance administrative costs minimized. TNRCC has added clarified language to sec.330.66(a)(2), (3), and (c)(6). The phrase "prior to operation" has been added to the end of sec.330.66(a)(2) and (3) to clarify the timing required for the specified action. In regard to sec.330.66(c)(6), reference numbers have been changed to be more specific, the phrase "upon approval of the executive director" has been added to clarify when financial assurance instrument will be released, and the sentence "No post- closure care for financial assurance is required" has been deleted because this concept is covered in Subchapter K of this title (relating to Financial Assurance). Subchapter A. General Information 30 TAC sec.330.4 The amendment is adopted under the authority of the Texas Water Code, sec.5.103, which provides the TNRCC with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state, and under Senate Bill 963, as passed by the 73rd Legislature; and pursuant to the Texas Solid Waste Disposal Act, Texas Health and Safety Code, sec.361.024, which provides the TNRCC with the authority to regulate municipal solid waste and adopt rules as necessary to regulate the operation, management, and control of solid waste under its jurisdiction. 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 October 16, 1995. TRD-9513229 Kevin McCalla Director, Legal Services Division Texas Natural Resource Conservation Commission Effective date: November 6, 1995 Proposal publication date: July 11, 1995 For further information, please call: (512) 239-6087 Subchapter E. Permit Procedures 30 TAC sec.330.66 The new section is adopted under the authority of the Texas Water Code, sec.5.103, which provides the Texas Natural Resource Conservation Commission (TNRCC) with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the Texas Water Code, the Texas Solid Waste Disposal Act, Texas Health and Safety Code, sec.361.024 and sec.361. 061, which provides the TNRCC with the authority to regulate municipal solid waste and adopt rules as necessary to regulate the operation, management and control of solid waste under its jurisdiction. sec.330.66. Liquid Waste Transfer Facility Design and Operation. (a) Applicability. (1) This section shall apply to a municipal solid waste management facility that handles only liquid waste and which is exempt from permit requirements under sec.330.4(r) of this title (relating to Permit Required). (2) New liquid waste transfer facilities with permanent holding vessels (fixed facilities) must comply with all requirements of this section prior to operation. (3) New liquid waste transfer facilities that only transfer from vehicle to vehicle must comply with applicable requirements of this section prior to operation. (4) Existing liquid waste transfer facilities must comply with applicable requirements of this section and must notify the Texas Natural Resource Conservation Commission (TNRCC) of their operation within 30 days of the effective date of these regulations. (5) Temporary storage facilities as defined in sec.312.147 of this title (relating to Temporary Storage) that store 8,000 gallons or less for a period of four days or less in mobile containers are not required to follow the liquid waste transfer station rules in this section. Owners and operators of temporary storage facilities that store 8,000 gallons or less for a period of four days or less must follow the notification rules in this section. (6) Secondary transporters of liquid wastes as defined in sec.312.148 of this title (relating to Secondary Transportation of Waste) are subject to all applicable requirements in this section. (7) This section is applicable to liquid waste transfer facilities located on or at other TNRCC authorized facilities. (b) Public meeting. The owner or operator of each liquid waste transfer facility shall conduct a public meeting in the local area within 30 days of facility operation, or as determined by the executive director, to describe the proposed action to the general public. A one time notice of the public meeting shall be provided by the facility owner or operator two weeks prior to the meeting in the format prescribed in the Health and Safety Code, sec.361. 0791(d) and (e) (relating to Public Meeting and Notice Requirements). Evidence that the meeting was held shall be submitted to the TNRCC in the form of a copy of the meeting notice as published and a notarized statement from the facility owner or operator stating that the meeting was held and stating the meeting date and location. This meeting requirement is applicable to all liquid waste transfer facilities. (c) Notification. The owner or operator shall notify the executive director in writing of the intent to operate a liquid waste transfer facility 30 days prior to the operation of the facility by completing a TNRCC Form entitled "Notice of Intent to Operate a Liquid Waste Transfer Facility," available from the TNRCC. The facility will be issued a registration number by the TNRCC upon receipt of the Form. Documentation of the facility design and operation shall be maintained as follows. (1) Waste data. For all liquid waste transfer facilities, documentation of the incoming and outgoing liquid waste rate shall be maintained at the facility or at the facility headquarters, as applicable. The incoming liquid waste rate shall be supported by trip ticket receipts and annual reports. Random sampling and analysis of the incoming waste should be conducted and records maintained. (2) Site plan. For fixed facilities only, a site layout plan, signed and sealed by a registered professional engineer, and a location map must be maintained at the facility. (3) Land-use. For all liquid waste transfer facilities, the owner or operator shall maintain documentation at the facility of local government approval/acceptance of the site location, e.g., conformity with local zoning restrictions, a building permit, license, nonconforming use authorization, deed restrictions, etc. These regulations do not grant authorization for any activities of the facility that are not in compliance with local government ordinances and regulations. (4) Site operating plan. (A) A site operating plan shall be maintained at the facility or at the facility headquarters for all liquid waste transfer facilities. The site operating plan shall include, at a minimum, a description of the general liquid waste data, the facility operation, facility maintenance, safety provisions, emergency procedures, fire protection, operating hours, spill control procedures, and vector control procedures. (B) For each facility, the plan shall also address alternate procedures in the event that the facility becomes inoperable for periods longer than 24 hours. (C) For all liquid waste transfer facilities, the liquid waste data shall be maintained to include an estimate of the amount of liquid waste to be received daily, the maximum amount of liquid waste to be stored, the maximum and average lengths of time that liquid waste is to remain on the site, and the intended destination of the liquid waste received. The data shall be maintained either at the facility or at the facility headquarters. (D) The plan shall address emergency procedures for catastrophic vessel failure, for accidental discharges, and for spills of liquid waste. For fixed storage facilities, a plan shall be maintained on site that addresses yearly vessel inspection and procedures to repair leaks, if found. In the event of a discharge or spill of waste at the transfer facility the owner or operator of the facility must take appropriate action to protect human health and the environment, e.g., notify local law enforcement and health authorities; dike the discharge area; clean up any waste discharge that occurs; or take such action as may be required or approved by federal, state, or local officials having jurisdiction so that the waste discharge no longer presents a public health or environmental problem. (5) Legal description. For all liquid waste transfer facilities, a legal description of the property, including the book and page number of the county deed records of the current property owner, shall be maintained at the site or at the facility headquarters. If the property is platted, the book and page number of the final plat record and a copy of the final plat shall be maintained on site or at the facility headquarters. (6) Evidence of financial assurance. For fixed facilities only, evidence of financial assurance shall be submitted to the TNRCC in accordance with sec.sec.330.9, 330. 282, 330.285, and 330.286 of this title, (relating to Financial Assurance). A cost estimate of the cost to close the facility shall be submitted with the notice. The financial assurance document shall be submitted prior to facility operation. The financial assurance instrument will be released upon approval of the executive director. (7) Statement of owner or operator. The following document shall be signed, notarized, and submitted with the notification form: (A) I, ________________________, state that I have knowledge of the facts set forth in the plans and that these facts are true and correct, to the best of my knowledge and belief. I further state that, to my knowledge and belief, the project does not in any way violate any law, rule, ordinance, or decree of the duly authorized governmental entity having jurisdiction. I further state that I am the facility owner or operator or am authorized to act for the owner or operator. ______________________________ (Signature) ______________________________ (Type Name and Title) ______________________________ (Date) (B) Notary public's certificate: Subscribed and sworn to before me, by the said ____________, this _____ day of ___________ 19___, to certify which witness my hand and seal of office. ______________________________ Notary Public in and for __________ County, Texas. My commission expires on _________. (d) Design criteria. (1) Facility design. The facility shall be designed in accordance with all local building codes, land development code requirements, and deed restrictions, if applicable. Building setback lines shall be followed, if applicable. Vehicle parking shall be provided on-site for equipment and employees. Necessary water connections for facility cleaning shall be provided. (2) Water pollution control. Lagoons, opentop storage facilities, and open vessels are prohibited. Underground storage facilities are prohibited. Provisions for the handling of spilled liquids and any washdown waters from the facility shall be provided. Normally, at fixed facilities, concrete pads with raised curbs around the perimeter, asphalt-paved areas with berms, or the equivalent containment facilities should be utilized to control spills of waste and any other contaminated water. Other spill control methods are acceptable. (3) Odor control. All liquid waste transfer facilities shall be designed to transfer liquids with a minimal time exposure of liquid waste to the air. The owner or operator shall consider all necessary measures to prevent or eliminate nuisance odors. All liquid waste shall be stored in odor retaining containers and vessels. The applicant should consider additional on-site buffer zones for odor control. The facility shall be designed and operated to prevent nuisance odors from leaving the property boundary of the facility. If nuisance odors are found to be passing the facility property boundary, the facility owner or operator may be required to suspend operations until the nuisance is abated. (4) Visual screening. Screening or other measures to minimize adverse visual impacts should be considered where appropriate. (5) Site drainage. For fixed facilities only, drainage provisions for controlling surface water on or near the site shall be provided. The locations of any proposed dikes, berms, storm sewers, levees, detention ponds, and the outfall point shall be identified in the site plan. (6) 100-year flood. If the fixed facility is located in a 100-year floodplain, the facility shall be designed to prevent washout of contaminants. Such designs normally include levees and other flood control structures. (7) Site access. The site access road from a publicly-owned roadway to each facility shall be at least a two-lane gravel or paved road, designed for the expected traffic flow. Safe on-site access for waste transporter vehicles shall be provided. The access road design shall include adequate turning radii according to the vehicles that will utilize the site and shall avoid disruption of normal traffic patterns. A positive means to control dust and mud shall be provided. (8) Access control. Access to each site should be controlled by a perimeter fence, four-foot barbed wire or six-foot chain-link, or equivalent, with lockable gates. A sign shall be provided that gives the site name, owner or operator's name, facility registration number, operating hours, telephone number, and site rules. (e) General prohibitions. A person may not cause, suffer, allow, or permit the collection, storage, transportation, processing, or disposal of liquid waste, or the use or operation of a liquid waste facility to store, process, or dispose of liquid waste, in violation of the Texas Solid Waste Disposal Act, or any regulations, rules, permit, license, order of the commission or in such a manner so as to cause: (1) the discharge or imminent threat of discharge of liquid waste into or adjacent to the waters in the state without obtaining specific authorization for such discharge from the commission; (2) the creation and maintenance of a nuisance; or (3) the endangerment of the human health and welfare or the environment. 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 October 16, 1995. TRD-9513230 Kevin McCalla Director, Legal Services Division Texas Natural Resource Conservation Commission Effective date: November 6, 1995 Proposal publication date: July 11, 1995 For further information, please call: (512) 239-6087 Chapter 335. Industrial Solid Waste and Hazardous Waste Subchapter K. Hazardous Substance Facilities Assessment and Remediation 30 TAC sec.335.352 The Texas Natural Resource Conservation Commission (Commission or TNRCC) adopts an amendment to sec.335.352, concerning hazardous substance facilities assessment and remediation. Section 335.352, is adopted without changes to the proposed text as published in the June 13, 1995, issue of the Texas Register (20 TexReg 4340) and will not be republished. The adopted amendment replaces the 1982 Federal Hazard Ranking System (HRS) with the 40 Code of Federal Regulations (CFR), Part 300, adopted by reference. The rule will go into effect on December 1, 1995 to allow sites being assessed under the old HRS to be completed. The replacement of the 1982 Federal HRS with the 40 CFR, Part 300 avoids duplication of effort by eliminating utilization of two versions of the HRS. No comments were received regarding this adoption. The amended section is adopted under the Texas Water Code, sec.sec.5.102, 5. 103, 5.105, and 26.011, which provides the Texas Natural Resource Conservation Commission with the authority to adopt any rules necessary to carry out its powers and duties under the code and other laws of the State of Texas, and to establish and approve all general policy of the commission; under the Texas Solid Waste Disposal Act, Texas Health and Safety Code, sec. sec.361.017, 361.024, and sec.361.002, which gives the Texas Natural Resource Conservation Commission the authority to regulate solid and hazardous wastes and to adopt rules and promulgate rules consistent with the general intent and purposes of the Act. The amended section affects the Health and Safety Code, Chapter 361. 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 October 11, 1995. TRD-9513218 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: December 1, 1995 Proposal publication date: June 13, 1995 For further information, please call: (512) 239-4640 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part XVI. Coastal Coordination Council Chapter 501. Coastal Management Program The Coastal Coordination Council (council) adopts amendments to sec.sec.501.1, 501.3 and 501.4, 501.10-501.14 of this title, concerning the Texas Coastal Management Program (CMP) general provisions and goals and policies. Sections 501.1, 501.3, 501.4, 501.13, and 501.14 are adopted with changes to the proposed text as published in the July 18, 1995, issue of the Texas Register (20 TexReg 5172). Sections 501.10-501.12 are adopted without changes and will not be republished. The following provisions shall be implemented and become enforceable at a date to be established by the council in the future: 31 TAC Chapter 505, Subchapter C (relating to Consistency and Council Review of Proposed State Agency Actions), Subchapter D (relating to Council Advisory Opinions on General Plans), and Subchapter E (relating to Consistency and Council Review of Local Government Actions) and 31 TAC Chapter 506 (relating to Council Procedures for Federal Consistency with Coastal Management Program Goals and Policies). The council shall publish notice of the implementation date(s) of these provisions in the Texas Register at least 30 days prior to such implementation date(s). Individual federal, state, and local subdivision actions need not comply with the CMP goals and Policies as set forth in Chapter 501 of this title (relating to Coastal Management Program) prior to the implementation of council review of such actions under Chapters 505 (relating to Council Procedures for State Consistency with Coastal Management Program Goals and Policies) and 506 (relating to Council Procedures for Federal Consistency with Coastal Management Program Goals and Policies. The council will implement the following provisions beginning February 1, 1996: Chapters 501 and 503, and Chapter 505, Subchapters A and B (relating to Purpose and Policy and State Agency Actions Subject to the Coastal Management Program and Council Review and Certification of Agency Rules). These amendments reflect statutory changes made by the 74th Legislature, 1995, in House Bill 3226, to be codified at Texas Natural Resources Code, Chapter 33. This preamble addresses changes adopted as the result of comments received on the July 18, 1995 proposals. To fully explain the adopted rules, this preamble also addresses changes to the September 27, 1994 rules made as the result of House Bill 3226. Chapter 501 of this title describes the council's coordinated approach to managing coastal resources and establishing the CMP goals and policies. The chapter is designed to coordinate efforts by agencies and subdivisions as they exercise their current authority within the framework of the CMP goals and policies. A commenter discussed the proposal to replace the phrase "greatest extent practicable" with "extent practicable" throughout Chapter 501 of this title. The proposed change was not made. The change was originally proposed to ensure internal consistency within the CMP rules, and not to reduce the degree of protection for coastal natural resource areas (CNRAs), nor was a lower standard intended. However, to avoid any ambiguity and to respond to public comments, the council decided not to make the change and has substituted the phrase to "the greatest extent practicable" throughout the rules. The council expects that the protective measures called for under these rules will be exercised to the fullest degree possible. Five commenters supported the proposed amendment of sec.501.1. Section 501.1 has been changed to conform to Texas Natural Resources Code, sec.33.204, to provide for a council report on January 15 of each odd-numbered year. In addition, sec.501.1 has been changed to conform to Texas Natural Resources Code, sec.33.209, which prohibits the adoption of special area management plans (SAMPS), by removing all references to Chapter 504 (relating to Special Area Management Planning), which has been repealed. Furthermore, sec.501.1 has been changed to delete provisions which indicated that the council will set standards for agency and subdivision actions. Texas Natural Resources Code, sec.33.205(a), now provides that the CMP will set standards to determine whether agency actions are consistent with the CMP goals and policies. This amendment clarifies that, under the CMP, the council will not directly set standards for activities conducted or regulated by agencies or subdivisions. One commenter proposed changing sec.501.1(a) to state that the purpose of the CMP is to more effectively and efficiently manage only those activities that may directly and significantly affect CNRAs. This change was not adopted. Instead, references to both "direct and significant" and "adverse" in this provision were deleted. Section 505.30, (relating to Agency Consistency Determination) allows an agency to find that an action is subject to the CMP, but that the action does not have a direct and significant impact on CNRAs. The terms "direct" and "significant" are defined in that section. Section 501.1(b) of this title has been changed to provide that the actions subject to review by the council are limited to those actions set forth in Texas Natural Resources Code, sec.33.2051 and sec.33.2053. Section 501.3, relating to Definitions, has been changed to conform to Texas Natural Resources Code, sec.sec.33.203-33.208, which amended the definitions of "coastal natural resource area", "council", and "agency or subdivision", and changes "Coastal Management Plan" to "Coastal Management Program". Section 501.3 has also been amended to conform to Texas Natural Resources Code, sec.sec.33.2051-33.2053 and sec.sec.33.209-33.211, which added definitions of "coastal barrier", "coastal historic area", "coastal preserve", "coastal shore area", "coastal waters", "coastal wetlands", "coastal zone," "critical area", "critical dune area", "critical erosion area", "Gulf beach", "hard substrate reef", "oyster reef", "proposed action", "special hazard area", "submerged land", "submerged aquatic vegetation", "tidal sand or mud flat", "water of the open Gulf of Mexico", "water under tidal influence". Pursuant to public comment, the proposal to change the definition of "adverse effects" or "adversely affect" in sec.501.3 to refer only to effects that are direct and significant has not been adopted. The rules apply to any action within the CMP boundary that may "adversely affect" a CNRA. In lieu of adopting this change to the definition of "adversely affect," the council has instead amended sec.505.30 of this title (relating to Agency Consistency Determination) to incorporate the concept of "direct and significant adverse effects." As amended, sec.505.30 now provides that if an adverse effect is not direct or significant, the agency may issue a finding of no direct and significant adverse effect and avoid imposition of the consistency requirement of the CMP pursuant to sec.505.30. "Direct" refers to impacts that are causally linked to the activity and "significant" refers to appreciable impacts on a CNRA. Ten commenters opposed the amendment of the definition of "practicable" in sec.501.3(a)(11). Six commenters supported the change. One commenter supported the change, but stated that the rules should include a provision that would give the state the legal ability to require incremental costs to be incurred if proportionate benefits would be realized by use of dredged material. The council has adopted the amendment of the definition as proposed. The definition of "practicable" in has been changed to conform to the established definition in the federal 404(b)(1) guidelines, published at 40 Code of Federal Regulations, sec.230.3(p). As the commenter suggested, the council has amended policies on shoreline erosion and beneficial use of dredged material to include specific and enforceable provisions designed to address the issue of incremental costs. These policies now require that incremental costs be expended to mitigate shoreline erosion from structures or to beneficially use dredged material from commercially navigable waterways, unless the resulting benefits do not justify the costs. In conjunction with the amendment of the definition of practicable, sec.501.14(i)(1)(Q) and (j)(4) have been revised to require beneficial use of dredge material and to require mitigation of erosion impacts unless the costs are not demonstrated to be reasonably proportionate to the benefits. The amendment to "practicable" coupled with changes to the substantive policies in sec.501.14(i) and (j), provide a clear and understandable standard for the beneficial use of dredged material and the mitigation of erosion impacts that will be required to protect Texas beaches. In response to public comments and to conform to the federal 404(b)(1) guidelines (40 Code of Federal Regulations, 230), the definition of "water- dependent use or facility" has been amended by deleting the last sentence of the definition. The definition of "coastal wetlands" in sec.501.3 has been changed to describe the inland extent of tidal influence as shown on the Texas Natural Resource Conservation Commission's (TNRCC's) stream segment maps and described under 30 TAC sec.307.10, Appendix C. This change was required by Texas Natural Resources Code, Chapter 33, as amended by House Bill 3226. Twelve commenters opposed deleting the word "greatest" from the term "greatest extent practicable" in sec.501.3(a)(2) and several other places in sec.501.14. Three commenters supported the change. This change was proposed to ensure internal consistency within the CMP rules, not to reduce the degree of protection for CNRAs, nor was a lower standard intended. However, to avoid any ambiguity and to respond to public comment, the council has substituted the phrase as "the greatest extent practicable" throughout the rules. The council expects that the protective measures called for under these rules will be exercised to the fullest degree possible. Therefore, the council did not adopt the proposed amendment. One commenter requested that sec.501.3(a)(6) be changed to incorporate the definition of "coastal waters" in sec.19.2 of this title (relating to Definitions). Incorporating the definition as suggested would conflict with House Bill 3226. Therefore, no change was made based on this comment. Fourteen commenters opposed the repeal of the definitions of "cumulative adverse effects" and "secondary adverse effects" in sec.501.3(a)(9) and (13). Two commenters supported the change. In conjunction with this amendment, one commenter supported the addition of a provision in sec.501.14(i) and (j) requiring consideration of cumulative and secondary impacts in the manner provided in the 404(b)(1) guidelines. The proposed repeal of the definitions resulted from the council's concern that the definitions were too ambiguous. The council has determined the definitions should be changed instead of either repealing them or keeping them as proposed. Modified definitions are therefore adopted. Accordingly, sec.501.14(i) and (j) have not been deleted. Changes were made however, to simplify those subsections. Five commenters requested changes to the definition of "water dependent use or facility" in sec.501.3(a)(14). Based on these comments, the last sentence of this definition has been deleted. One commenter supported the proposed amendment to sec.501.3(b) to conform the definitions of CNRAs to statutory definitions. This amendment is required by House Bill 3226 and is adopted. One commenter opposed substituting the word "other" for "otherwise" in sec.501.3(b)(1). The council did not make the suggested change as it would conflict with the language in House Bill 3226. One commenter requested that the definition of "coastal historic area" in sec.501.3(b)(2) be amended to include sites eligible for listing on the National Register of Historic Areas. The council did not make the suggested change because it would conflict with House Bill 3226. Another commenter requested that language that conflicts with the statutory definition of the term be deleted. The adopted amendments conform to House Bill 3226. Two commenters opposed the deletion of language in sec.501.3(b)(4) limiting the scope of the "coastal shore areas." The council did not make the suggested change as it would conflict with the language in House Bill 3226, as codified by Texas Natural Resources Code, Chapter 33. One commenter requested that the phrase "as the line existed on June 8, 1995" be added to sec.501.3(b)(5)(A). Another commenter supported the proposed amendment to sec.501.3(b)(5)(A) with no changes. The council adopted the amendment with no changes. The language of the amendment is based on the coastal facility designation line as it existed on June 8, 1995. One commenter opposed amending the definition of "Gulf beach" in sec.501.3(b) (8). The amended definition is required by House Bill 3226, therefore no change was made based on this comment. One commenter requested that sec.501.3(b)(16) be amended to delete the phrase "the term includes coastal wetlands." The council has adopted the amendment without the requested change as the change would conflict with the language in House Bill 3226. Three commenters opposed the amendment to sec.501.4 to require a two-thirds vote for council actions to protest the consistency of a proposed state action listed in sec.505.11(a) of this title (relating to Actions and Rules Subject to the Coastal Management Program), a federal action listed in sec.506.12 of this title (relating to Federal Actions Subject to the Coastal Management Program), or a subdivision action listed in sec.505.60 of this title (relating to Local Government Actions Subject to the Coastal Management Program). Two commenters supported the change. One commenter requested clarifying language. Section 501. 4 has been amended to conform to Texas Natural Resources Code, sec.33.204 and sec.33.206, relating to general council operating procedures, and to conform to Texas Natural Resources Code, sec.33.205, concerning unresolved consistency disputes. Because of the statutory changes, sec.501.4(f) has been amended to clarify that a vote of two-thirds of the council members is required to protest any state or subdivision license or permit or federal action, not a state rulemaking action. One commenter supported establishing the executive committee. No comments were received in opposition to this change. Section 501.4(c) has been changed to restore the provision for an executive committee. The executive committee consists of a representative of each council member. The executive committee shall assist the council by coordinating implementation of council directives. The executive committee shall also review policies, issues, and other matters within the jurisdiction of the council. Section 501.10(b) has been amended by deleting language that referred to "agencies, municipalities, counties, and activities." This deletion is made to conform to Texas Natural Resources Code, sec.33.205, as amended by House Bill 3226. Section 501.11 has been reorganized and amended to conform to House Bill 3226. One commenter opposed amending sec.501.11. Section 501.11(a) is amended to provide that a goal or policy may not require an agency or subdivision to perform an action that would exceed its constitutional or statutory authority. Section 501.11(b) is amended to provide that this chapter may not be applied in a manner that would result in the taking, damage, or destruction of property without compensation. Also, sec.501.11(c) is amended to clarify that there is no authority for the development of a SAMP. SAMPs are specifically prohibited by Texas Natural Resources Code, sec.33.209; therefore, sec.501.11(d) and (e) have been deleted. Section 501.12 and sec.501.14 of this chapter, concerning goals and policies, are amended to substitute the term "coastal zone" for the term "coastal area, " to conform with House Bill 3226. Seventeen commenters opposed the proposed amendment to replace the word "shall" with "should" in sec.501.13(a). One commenter supported the change, unless it raised a question regarding federal approval of the CMP. The proposed amendment has not been adopted because the council agrees it may not be consistent with federal standards for approval. One commenter requested that the amendment to sec.501.13(b) establishing a standard for consistency review of thresholds be changed to add the phrase "unique and significant." The council accepts the suggested language because it more accurately describes the standard the council believes is appropriate and the change has been made. The suggested language revises this provision to require that agency thresholds be set at levels reasonably calculated to ensure that actions that may have unique and significant adverse effects on CNRAs fall above applicable thresholds. This provision establishes criteria for judging the consistency of thresholds for referral with the CMP goals and policies. One commenter requested that sec.501.14(a) be amended to clarify the distinction between electric generating facilities and electric transmission lines. Section 501.14(a)(1)(B) and (C) are revised to reflect this change. The council accepts the requested language and has amended the section to eliminate the ambiguity. Section 501.14(c) is changed to conform to Texas Natural Resources Code, sec.33.203, which specifically defines various CNRAs. The council sought comment on repealing or revising the current specific policies on CNRAs in sec.501.14 because they might be interpreted to exceed current law or violate the prohibition on SAMPs that the legislature added to the Coastal Coordination Act in House Bill 3226. Thirty-eight commenters opposed either a repeal or a revision of the policies in sec.501.14. Three commenters supported such a repeal or revision. The council will not change or rewrite the policies as described. Section 501.14(c)(1)(B) requires relocation or discontinuance of certain wastewater discharges within "two years" of the effective date of this section. The original effective date of this section was June 15, 1995. However, the council has deferred implementation of the CMP. Therefore for purposes of sec.501.14(c)(2)(B), the council regards the effective date of Chapter 501 as the effective date of these amendments. Section 501.14(d)(1)(G) is changed to use "practicable" in the place of "practical, economic, and feasible." Under the provisions of this chapter, "practicable" is a defined term which incorporates consideration of a project's economic feasibility. This change was made to ensure consistent language is used throughout the rule. One commenter asked that sec.501.14(d)(1)(I), regarding interpretation of sec.501.14(d), be deleted. This change was made to eliminate confusion regarding the interpretation of these rules. Section 501.14(g)(2) is changed to clarify that nonpoint source pollution water quality management plans developed, maintained, and implemented by the Texas State Soil and Water Conservation Board are not subject to water quality standards. It is the discharges under such plans that may be reviewed for impacts to water quality. One commenter supported the inclusion of clarifying language in sec.501.14(g) dealing with water quality standards. Based on this comment, this language was clarified. The council proposed amendments to the provisions of sec.501.14(h) and (j) requiring consideration of cumulative and secondary effects from development in critical areas and dredging and dredged material disposal and placement. One commenter stated the TNRCC and the Railroad Commission (RRC) lack the statutory authority to implement the policies on critical areas in sec.501.14(h) and also lack authority to implement the policies on dredging and dredged material disposal and placement in sec.501.14(j) through water quality certification under the Clean Water Act, sec.401. Another commenter expressed concern that state-level application of these policies would be redundant and be detrimental to both state and federal programs in the future. The Texas Legislature reviewed the CMP and in House Bill 3226 expressly required the TNRCC and the RRC to comply with the CMP goals and policies when issuing 401 certifications. In addition, the TNRCC and RRC certified that they have the legal authority to implement these critical area and dredged material policies when they originally adopted rules to regulate these areas. The council agrees that these agencies have the statutory authority to apply the critical areas and dredging policies, which are the equivalent of the 404(b)(1) guidelines, through 401 certifications. Moreover, the council disagrees that application of these policies is redundant or problematic. The TNRCC and RRC are legally responsible for managing wetlands and other critical areas at the state level by issuing 401 certifications. The Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (COE) are legally responsible for managing wetlands and other critical areas at the federal level through administration of the 404 permitting program. As with the retention of the term "greatest" and the amendment of the definition of "practicable" discussed previously, the council wants to avoid conflicting state and federal standards unless there is a compelling reason and a clear purpose for the state's policy to vary from the federal government's. These policies simply ensure that state and federal agencies will apply the same policies when managing activities affecting wetlands and other critical areas. In a related comment, one commenter requested a clear statement that the critical areas policy, dredging and dredged material disposal and placement policies be made consistent with federal sec.404(b)(1) guidelines. The foregoing response, in combination with the responses to similar comments set forth in 19 TexReg 7606, 7612-13, 7631, and 7636 (September 27, 1994), which continue to be appropriate, responds to this commenter's concerns. The council's proposal to delete sec.501.14(h)(4) is not adopted because the major actions policy has been retained, with amendments described below. However, sec.501.14(h)(4) has been changed to conform to sec.501.15 of this title (relating to Major Actions Policy). One commenter supported the proposed amendment to the term "avoid and otherwise minimizes" in sec.501.14(i). This amendment has been adopted. Section 501.14(i)(1)(F)(iii) has been modified to conform to the definition of "avoid and otherwise minimize" to ensure the program rules are consistent. As stated previously, several commenters objected to changing the definition of "practicable" as proposed. The council amended sec.501.14(i)(1)(Q) to more clearly define the circumstances under which erosion mitigation would be required. Mitigation is required in instances where erosion is caused by construction or modification of jetties, breakwaters, groins, or shore stabilization projects. Mitigation is required to the extent the costs of mitigation are reasonably proportionate to the benefits of mitigation. Factors that shall be considered in determining whether the costs of mitigation are reasonably proportionate to the benefits include, but are not limited to, environmental benefits, recreational benefits, flood or storm protection benefits, erosion prevention benefits, and economic development benefits. The policy is not intended to include normal maintenance and rehabilitation of existing structures. References to the Code of Federal Regulations in sec. sec.501.14(h)(1) and (j)(1) regarding consideration of cumulative and secondary impacts have been deleted because the CMP now defines "cumulative adverse affects" and "secondary adverse affects" in a manner which is no longer based upon the 404(b)(1) guidelines. These changes were made in response to public comment. One commenter supported the deletion of sec.501.14(j)(2)(H)(iv) in conjunction with the repeal sec.501.15, (relating to Policy for Major Actions). The council is repealing the Major Actions Policy; but is also reproposing it with amendments. In response to public comment, sec.501.14(j)(4) has been changed to require beneficial use of dredged material taken from commercially navigable waterways. Section 501.14(j)(4), relating to beneficial use of dredged material, has been revised to require beneficial use of dredged material unless the costs of the beneficial use are substantially greater than non-beneficial use alternatives and unless incremental costs are not reasonably proportionate to the costs of the project and benefits that will result. Section 501.14(j)(4)(A) has also been revised by listing the factors to be considered in determining whether the costs of the beneficial use are not reasonably proportionate to the benefits. These factors include, but are not limited to, environmental benefits, recreational benefits, flood or storm protection benefits, erosion prevention benefits, and economic development benefits, the proximity of the beneficial use site to the dredge site, and the quantity and quality of the dredged material and its suitability for beneficial use. Application of this policy to maintenance dredging activities will take place through implementation of the Memorandum of Agreement (MOA) Between the Council and the COE (Regarding Review of Coastal Maintenance Dredging Activities, dated October 27, 1994). Because this MOA is crucial to the application of this policy to maintenance dredging through federal consistency review, sec.506.24(c) of this title (relating to Consistency Determinations for Federal Agency Activities Initiated Prior to Federal Approval of the Coastal Management Program) has been amended to specifically reference the MOA. The council and the COE recognize that review of dredged material disposal and placement practices should be phased in so that the COE's and local sponsors' existing planning and budgeting cycles for maintenance dredging activities may programmatically address these practices. The MOA phases in application of sec.501.14(j) in several ways. First, maintenance dredging projects in commercially navigable waterways in the coastal zone will be reviewed over the first three to five years after federal approval of the CMP. Second, if the council finds a maintenance dredging project inconsistent, the MOA requires the council and the COE to engage in an alternative dispute resolution process for a period of up to two years. Third, the final consistency determination for the project may include a schedule for implementing changes to current maintenance dredging practices required for a project to be consistent with the CMP. These three provisions are designed to mitigate situations where changes to current maintenance dredging practices will be required and funds are not immediately available to implement the changes. They are intended to provide flexibility for the COE and local sponsors to plan, budget for, and seek the necessary funding for the incremental costs of a beneficial use project, as compared to the cost of disposal in a non-beneficial manner, or any other funding needed under sec.501.14(j)(4)(B) or other provisions of the dredging and dredged material disposal and placement policy. One commenter stated that application of the 404(b)(1) guidelines to structures on pilings is not appropriate because these requirements do not apply to structures under federal law, only to discharge of dredged and fill material. While the commenter's analysis of the federal law is correct, the council believes that the 404(b)(1) guidelines can and should be applied to structures such as piers and docks through current state law authorities because structures on pilings can have the same impacts on wetlands and other critical areas as dredging and filling. Compliance with CMP policies which are based upon the 404(b)(1) guidelines is not beyond the statutory authority of any affected agency. One commenter opposed the provision in sec.501.14(j) requiring persons placing dredged material on the mean high tide line boundary between state submerged lands and uplands to secure a boundary agreement from the uplands owner so that title to state submerged lands dedicated to the Permanent School Fund is preserved. The commenter stated that "the CMP should be used to protect environmental concerns, not to shield the State from losing title to submerged lands and the minerals underlying said lands." The commenter suggested that the legislature should resolve this issue by constitutional amendment if necessary. The council's authority under the Coastal Coordination Act is not limited to environmental concerns, but rather encompasses a broad array of natural resource management issues. One of the State's most valuable natural resources is its submerged lands. Sound management of these lands is important for the coast and the State. It is both appropriate and within the council's statutory authority to establish policies regarding an activity that can result in the loss of state ownership of submerged lands. To be consistent with other changes made pursuant to public comment, commercially navigable waterways, as used in sec.501.14(j)(4), is intended to include waterways and associated facilities, developed, constructed or maintained pursuant to congressional authorization. One commenter requested that the term "local government" be replaced with "subdivision" in sec.501.14(k) because the term "subdivision" is used in Texas Natural Resources Code sec.33.2053. This subsection has been amended as requested. One commenter requested that sec.501.14(n) be revised to conform to House Bill 3226. The council has adopted this provision with changes to conform to House Bill 3226. Section 501.14(n) has been changed to require that development in coastal preserves by a person, other than the Parks and Wildlife Department, that involves the use or taking of any public land must comply with Texas Parks and Wildlife Code, Chapter 26. This amendment has been made to conform to the provisions of Texas Natural Resources Code, sec.33.2053(h). Section 501.14(p), relating to Transportation Projects, has been amended to conform to the provisions of Texas Natural Resources Code, sec.33.2053(d), by deleting references to the planning and design of such projects. Fourteen commenters opposed the amendment to sec.501.14(p), concerning transportation projects, on the grounds that the amendment exempted transportation projects from compliance with the CMP goals and policies. Two commenters supported the proposed amendment. The council has adopted the amendment as proposed because it conforms to House Bill 3226. The amendment is a technical change and does not exempt transportation projects from CMP compliance. An editorial change to the title of sec.501.14(r) has been made. The new title, "Appropriations of Water", more accurately describes the subject of the subsection. One commenter supported changing the title of sec.501.14(r). The council sought public comment on several areas which were not addressed in the proposed amendments. The council asked for input on whether the current specific policies which address CNRAs rather than specific actions should be retained in the rules, or whether the specific policies constitute a violation of House Bill 3226's prohibition on SAMPs. Specifically, comment was sought with respect to: sec.501.14(h), Development in critical areas; sec.501.14(i), Construction of waterfront facilities and other structures on state submerged lands and private submerged lands; sec.501.14(k), Construction in the beach/dune system; sec.501.14(l) Development in coastal hazard areas; and sec.501.14(n) Development in coastal preserves. Public comment did not support deletion or revision of these policies; therefore, no changes were made. General Comments One-hundred fifty-one commenters expressed concern with some or all portions of the proposed amendments. A number of these commenters opposed the proposed amendments; a number opposed changes that threatened federal approval; a number opposed changes not mandated by House Bill 3226; and a number were concerned about delaying the implementation of the CMP. Thirty-one commenters generally supported the proposed amendments. The council believes that the adopted rules agree with the letter of intent of House Bill 3226 and satisfy the approval requirements of the Federal Coastal Zone Management Act. Four commenters supported Texas' participation in the federal coastal zone management program and requested that the council evaluate the proposed amendments' effect on federal approval of the Texas CMP. Twenty-three commenters stated that they opposed the proposed amendments because they jeopardized federal approval of the CMP. The council believes the adopted rules now meet the approval requirements for CMP approval under the federal Coastal Zone Management Act. No change was made based on these comments. One commenter requested the council establish a schedule for implementation of the various provisions of the rules. This useful suggestion has been adopted and each preamble now contains implementation dates. One commenter opposed the expansion of a hazardous waste site in San Leon, Texas. The adopted rules will not apply to this site because the application for the facility was filed before the effective date of the rules. No change was made based on this comment. One commenter interpreted the information on fiscal impacts of the proposed amendments to constitute a five-year moratorium on implementation of the CMP. The fiscal impacts of the rules are estimated for a five-year period. This does not affect the effective date of the rules. The rules will go into effect as stated above and stay in effect until the council repeals or amends them. No change was made based on this comment. One commenter expressed interest in the CMP. The council welcomes interest by the public in conserving the coastal natural resources of the state. No change was made based on this comment. The following organizations generally supported the proposed amendments to the CMP rules: E Cross Cattle Co., Inc.; Texas Cattle Feeders Association; The Fordyce Company; Texas Mid-Continent Oil and Gas Association; County of Kenedy; City of Lake Jackson; City of Corpus Christi; Texas Independent Producers and Royalty Owners Association; Lavaca-Navidad River Authority; TriTech Regional Council; Iberia Petroleum Company; Mitchell Energy & Development Corporation; Railroad Commission of Texas; Everest Minerals Corporation; U.S. Department of the Army, Corps of Engineers; Coastal Bend Geological Library, Inc.; Port of Houston Authority; Trinity Improvement Association; Kling, Inc.; Briggs Ranches; Society of Independent Professional Earth Scientists; Texas Water Conservation Association; Mueller Engineering Corp., Petroleum Consultants; American Shoreline, Inc.; Texas and Southwestern Cattle Raisers Association; Southstar Corporation; South Texas Cotton and Grain Association, Inc.; Greater Corpus Christi Business Alliance Chamber of Commerce; King Ranch, Inc.; and Wilson Plaza North. The following organizations generally opposed the proposed amendments to the CMP rules: Texas Shrimp Association; National Oceanic and Atmospheric Administration; Blackburn & Carter; Arnold Construction Company, Inc.; City of Galveston; McFarlane & Associates; Steinhagen Oil Company, Inc.; U.S. Department of Interior; ABC Used Auto Parts; Gulf Coast Rod, Reel and Gun Club, Inc.; Crady, Jewett & McCulley, L.L.P.; General Land Office; Henry, Lowerre, Johnson, Hess and Frederick; Environmental Defense Fund; U.S. Environmental Protection Agency; Wells, Peyton, Beard, Greenberg, Hunt and Crawford, L.L.P.; The Benton Company; Boyt Properties; Ekistics Corporation, Environmental Impact Assessment and Socioeconomic Analysis; Lone Star Chapter Sierra Club; R. C. Deal & Associates; Port of Houston; League of Women Voters of Texas; League of Women Voters of Houston; Groves Brothers Machinery, Inc.; Corpus Christi Caller-Times; Mabry, Herbeck & Chilton, P.C.; United States Department of the Interior, Fish and Wildlife Service, Division of Ecological Services; Lower Laguna Madre Foundation; County of Jefferson; United States Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, Southeast Regional Office; Fort Bend Medical Clinic; Entrix, Inc.; Galveston Bay Conservation and Preservation Association; County of Jim Wells; The Shaddock Companies; Galveston Bay Foundation; Department of Planning & Transportation; Coastal Bend, Sierra Club; East Matagorda Bay Foundation; Greater Corpus Christi Business Alliance Chamber of Commerce; Whittington & Ewing Design Associates; Scenic Galveston; Houston Audubon Society; Audubon Council of Texas; Frontera Audubon Society; and Sea Pals'. The following organizations made specific written comments but did not express general support for or opposition to the proposed CMP rules: Liberty County; Port of Houston Authority; U.S. Department of Agriculture, Natural Resources Conservation Services; Houston-Galveston Area Council; Browning-Ferris Industries; Texas Historical Commission; Texas Water Development Board; Houston Lighting and Power; Texas Chemical Council; Texas Beach Advocate; Texas Water Conservation Association; UTMB-Galveston Department of OB/GYN; and the Department of the Navy, Naval Station Ingleside. The following organizations expressed general support for House Bill 3226 and an approvable CMP: South East Texas Regional Planning Commission; County of Hidalgo; Benckenstein & Oxford, L.L.P.; and Burrus Lumber Company. In addition to the many comments received during the comment period, some comments were received after the expiration of the comment period. While these comments have not been, for the most part, responded to individually as were comments received earlier, concerns expressed in those comments have been addressed in responses to many earlier comments. The council staff gratefully acknowledges the involvement of so many individuals, businesses, trade association, non-government organizations and public officials whose thoughtful comments we have read. Chapters 501, 503, 504, 505, and 506 have been revised and improved in light of these comments, reflecting as they do a broad spectrum of economic, ecological, and other concerns held by Texans throughout the state. Subchapter A. General Provisions 31 TAC sec.sec.501.1, 501.3, 501.4 The amendments are adopted pursuant to the authority provided in Texas Natural Resources Code, Chapter 33, Subchapter C, and Texas Natural Resources Code, Chapter 33, Subchapter F, sec.33.204(a), as amended by House Bill 3226, 74th Legislature, 1995, which require the council to promulgate rules adopting the CMP goals and policies. sec.501.1. Program for Special Management of Coastal Natural Resource Areas. (a) The purpose of the Texas Coastal Management Program (CMP) is to make more effective and efficient use of public funds and to more effectively and efficiently manage coastal natural resource areas (CNRAs) and the activities that may affect them. The program is based on goals and policies that guide the use and development of CNRAs, preserve and protect CNRAs, and improve government processes. The Coastal Coordination Council (council) will adopt rules promulgating the goals and policies. The Coastal Coordination Act requires agency or subdivision actions to comply with these goals and policies. (b) The council will exercise authority pursuant to the Coastal Coordination Act in the following ways. (1) The council will study and review the principal coastal problems of state concern. This review will include examination of the current status and future trends of CNRAs; examination of conflicts between competing uses of CNRAs; and examination of policy issues with respect to local, state, or national interests and concerns related to CNRAs. The council will examine alternative regulatory and other management approaches to these problems, identify data collection and research needs, and foster public education and participation. (2) The council will coordinate the performance of agencies, subdivisions, and programs by promulgating goals and policies to guide and serve as the basis for consistency review of agency and subdivision actions. The council will examine the goals and policies in this chapter annually to review the effectiveness of the program and will propose revisions to the goals and policies, as necessary. (3) The council will coordinate the measures required to resolve identified coastal problems and make coastal management processes more visible, accessible, coherent, consistent, and accountable by reviewing agency and subdivision actions for consistency with the goals and policies in this chapter. Actions subject to review are those set forth in Natural Resources Code, sec.33.2051 and sec.33.2053. The council shall employ consistency review of agency and subdivision rules and policies as the primary technique for ensuring that agency and subdivision actions are consistent with the goals and policies in this chapter. (c) As directed in the Coastal Coordination Act, the General Land Office (GLO) will assist the council in implementing a program for coastal management, which shall be entitled the Texas CMP. The council may on occasion request or receive assistance from additional agencies or subdivisions that have authority over or expertise relevant to a particular coastal problem that is before the council. The GLO, in coordination with other agencies and subdivisions, shall prepare an annual report reviewing the effectiveness of the program as required by Texas Natural Resources Code, sec.33.204(f). The GLO shall submit the report to the council for approval. On or before January 15 of each odd-numbered year, the GLO shall send to the legislature each of the previous two annual reports. (d) The Texas CMP will help local governments improve their ability to manage CNRAs and human activities affecting those resources. sec.501.3. Definitions and Abbreviations. (a) The following words, terms, and phrases, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) Adverse effects or adversely affect-Effects that result in the physical destruction or detrimental alteration of a CNRA. Such detrimental alterations are: (A) construction in critical dune areas and coastal hazard areas that increase risks to human safety or the potential for damage to property or CNRAs from floods, hurricanes, or other storms; (B) alterations that interfere with public use and enjoyment of, or access to and from, those CNRAs to which the public has a right of use, enjoyment, or access; (C) alterations that damage or destroy coastal historic areas; (D) alterations that harm the functions and values of CNRAs as habitat for terrestrial and aquatic wildlife; (E) alterations that disrupt wildlife corridors or fish or bird migratory routes; (F) discharges of pathogens, radioactive materials, dissolved minerals or solids, toxic substances, or suspended solids at levels harmful to humans or terrestrial or aquatic life or that significantly impair the aesthetic qualities of CNRAs; (G) alterations of salinity regimes, nutrient supply, oxygen concentration, or temperature regimes in coastal waters that are harmful to terrestrial or aquatic life; (H) alterations of hydrology, water flow, circulation patterns, water level, or surface drainage that are harmful to humans or terrestrial or aquatic life, impair the aesthetic qualities of CNRAs, or exacerbate erosion of shorelines or river deltas; (I) alterations of littoral and sediment transport processes that reduce the supply of sediments available to those processes or would otherwise exacerbate erosion of shorelines or river deltas; (J) alterations that increase losses of shore areas or other CNRAs from a rise in sea level with respect to the surface of the land, whether caused by actual sea-level rise or land surface subsidence; and (K) emission of air pollutants at levels that are harmful to humans or terrestrial or aquatic life or that significantly impair the aesthetic qualities of CNRAs. (2) Avoid and otherwise minimize-To avoid adverse effects to the greatest extent practicable. Adverse effects that cannot be avoided must then be minimized to the greatest extent practicable. (3) Coastal zone-The area within the boundary established in sec.503.1 of this title (relating to Coastal Management Program Boundary). (4) Coastal hazard areas-Special hazard areas and critical erosion areas. (5) Coastal natural resource area (CNRA)-Any area defined in Texas Natural Resources Code, sec.33.203(1) that is located within the coastal zone. (6) Coastal waters-Waters under tidal influence and waters in the open Gulf of Mexico. (7) Council-The Coastal Coordination Council. (8) Critical areas-A coastal wetland, an oyster reef, a hard substrate reef, submerged aquatic vegetation, or a tidal sand or mud flat. (9) Cumulative adverse effects-Adverse effects increasing in significance due to the collective effects of a number of actions. (10) Pollutant-Any constituent that contaminates or alters the physical, thermal, chemical, or biological quality of any CNRA so as to be harmful, detrimental, or injurious to humans, animal life, vegetation, or property or to the public health, safety, or welfare or that impairs the usefulness or the public enjoyment of CNRAs for any lawful purpose. (11) Practicable-Available and capable of being done after taking into consideration existing technology, cost, and logistics in light of the overall purpose of the activity. (12) Public beach-Any public beach as defined in the Texas Natural Resources Code, sec.61.013(c). (13) Secondary adverse effects-Adverse effects which would result from a proposed action and cause significant modifications or alterations to the physical or chemical characteristics of coastal natural resource areas beyond the limit of the immediate project area. (14) Water-dependent use or facility-An activity or facility that must be located in coastal waters or on submerged lands or that must have direct access to coastal waters in order to serve its basic purpose and function. Facilities that are water-dependent include, but are not limited to, public beach use and access facilities, boat slips, docks, breakwaters, marinas, wharves and other vessel loading or off-loading facilities, utility easements, boat ramps, navigation channels and basins, bridges and bridge approaches, revetments, shoreline protection structures, culverts, groins, saltwater barriers, navigational aids, mooring pilings, simple access channels, fish processing plants, boat construction and repair facilities, offshore pipelines and constructed wetlands below mean high water. Activities that are water-dependent include, but are not limited to, marine recreation (fishing, swimming, boating, wildlife viewing), industrial uses dependent on marine transportation or requiring large volumes of water that cannot be obtained at inland sites, mariculture, exploration for and production of oil and gas under coastal waters or submerged lands, and certain meteorological and oceanographic activities. (b) The following words, terms, and phrases, when used in this chapter, shall have the following meanings, with respect to CNRAs. (1) Coastal barrier-An undeveloped area on a barrier island, peninsula, or other protected area, as designated by United States Fish and Wildlife Service maps. (2) Coastal historic area-A site that is specially identified in rules adopted by the Texas Historical Commission as being coastal in character and that is: (A) a site on the National Register of Historic Places, designated under 16 United States Code, sec.470a and 36 Code of Federal Regulations, Part 63, Chapter, 1; or (B) a state archaeological landmark, as defined by Texas Natural Resources Code, Subchapter D, Chapter 191. (3) Coastal preserve-Any land, including a park or wildlife management area, that is owned by the state and that is subject to Chapter 26, Parks and Wildlife Code, because it is a park, recreation area, scientific area, wildlife refuge, or historic site; and designated by the Texas Parks and Wildlife Commission as being coastal in character. (4) Coastal shore area-An area within 100 feet landward of the high water mark on submerged land. (5) Coastal wetlands-Wetlands, as the term is defined by Texas Water Code, sec.11.052, located: (A) seaward of the Coastal Facility Designation Line, established by rules adopted under Texas Natural Resources Code, Chapter 40; (B) within rivers and streams to the extent of tidal influence, as shown on the Texas Natural Resource Conservation Commission's stream segment maps and described as follows: (i) Arroyo Colorado from FM Road 1847 to a yards) downstream of Cemetery Road south of the Port of Harlingen in Cameron County; (ii) Nueces River from US Highway 77 to the Calallen Dam 1.7 kilometers (1.1 miles) upstream of U.S. Highway 77 in Nueces/San Patricio County; (iii) Guadalupe River from State Highway 35 to the Guadalupe-Blanco River Authority Salt Water Barrier at 0.7 kilometers (0.4 miles) downstream of the confluence with the San Antonio River in Calhoun/Refugio County; (iv) Lavaca River from FM Road 616 to a miles) downstream of US Highway 59 in Jackson County; (v) Navidad River from FM Road 616 to Palmetto Bend Dam in Jackson County; (vi) Tres Palacios Creek from FM Road 521 to (0.4 mile) upstream of the confluence with Wilson Creek in Matagorda County; (vii) Colorado River from FM Road 521 to a 3 miles) downstream of the Missouri-Pacific Railroad in Matagorda County; (viii) San Bernard River from FM Road 521 to (2.0 miles) upstream of State Highway 35 in Brazoria County; (ix) Chocolate Bayou from FM Road 2004 to a 6 miles) downstream of State Highway 35 in Brazoria County; (x) Clear Creek from Interstate Highway 45 to yards) upstream of FM Road 528 in Galveston/Harris County; (xi) Buffalo Bayou (Houston Ship Channel) from Interstate 400 meters (440 yards) upstream of Shepherd Drive in Harris County; (xii) San Jacinto River from Interstate Highway 10 upstream to the Lake Houston dam in Harris County; (xiii) Cedar Bayou from Interstate Highway 10 to (1.4 miles) upstream of Interstate Highway 10 in Chambers/Harris County; (xiv) Trinity River from Interstate Highway 10 to (1.9 miles) downstream of US 90 in Liberty County; (xv) Neches River from Interstate Highway 10 to (7.0 miles) upstream of Interstate Highway 10 in Orange County; (xvi) Sabine River from Interstate Highway 10 upstream to Morgan Bluff in Orange County; or (C) within one mile of the mean high tide line of the portion of rivers and streams described by subparagraph (B) of this paragraph, except for the Trinity and Neches rivers. (i) For the portion of the Trinity River described by subparagraph (B) of this paragraph, coastal wetlands include those wetlands located between the mean high tide line on the western shoreline of that portion of the river and FM Road 565 and FM Road 1409 or located between the mean high tide line on the eastern shoreline of that portion of the river and FM Road 563. (ii) For the portion of the Neches River described by subparagraph (B) of this paragraph, coastal wetlands include those wetlands located within one mile of the mean high tide line of the western shoreline of that portion of the river or located between the mean high tide line on the eastern shoreline of that portion of the river and FM Road 105. (6) Critical dune area-A protected sand dune complex on the Gulf shoreline within 1,000 feet of mean high tide designated by the land commissioner under Texas Natural Resource Code, sec.63.121. (7) Critical erosion area-An area designated by the land commissioner under Texas Natural Resources Code, sec.33.601(b). (8) Gulf beach-A beach bordering the Gulf of Mexico that is: (A) located inland from the mean low tide line to the natural line of vegetation bordering the seaward shore of the Gulf of Mexico; or (B) part of a contiguous beach area to which the public has a right of use or easement: (i) continuously held by the public; or (ii) acquired by the public by prescription, dedication, or estoppel. (9) Hard substrate reef-A naturally occurring hard substrate formation, including a rock outcrop or serpulid worm reef, living or dead, in an intertidal or subtidal area. (10) Oyster reef-A natural or artificial formation that is: (A) composed of oyster shell, live oysters, and other living or dead organisms; (B) discrete, contiguous, and clearly distinguishable from scattered oyster shell or oysters; and (C) located in an intertidal or subtidal area. (11) Special hazard area-An area designated under 42 United States Code Annotated, sec.4001 et seq, as having special flood, mudslide or mudflow, or flood-related erosion hazards and shown on a Flood Hazard Boundary Map or Flood Insurance Rate Map as Zone A, AO, A1-30, AE, A99, AH, VO, V1-30, VE, V, M, or E. (12) Submerged land-Land located under waters under tidal influence or under waters of the open Gulf of Mexico, without regard to whether the land is owned by the state or a person other than the state. (13) Submerged aquatic vegetation-Rooted aquatic vegetation growing in permanently inundated areas in estuarine and marine systems. (14) Tidal sand or mud flat-A silt, clay, or sand substrate, without regard to whether it is vegetated by algal mats, that occur in intertidal areas and that are regularly or intermittently exposed and flooded by tides, including tides induced by weather. (15) Water of the open Gulf of Mexico-Water in this state, as defined by Texas Water Code, sec.26.001(5), that is part of the open water of the Gulf of Mexico and that is within the territorial limits of the state. (16) Water under tidal influence-Water in this state, as defined by Texas Water Code, sec.26.001(5), that is subject to tidal influence according to the Texas Natural Resource Conservation Commission's stream segment map. The term includes coastal wetlands. (c) The following abbreviations, when used in this chapter, shall have the following meanings. (1) GLO-General Land Office; (2) PUC-Public Utility Commission; (3) RRC-Railroad Commission of Texas; (4) SLB-School Land Board; (5) THC-Texas Historical Commission; (6) TNRCC-Texas Natural Resource Conservation Commission; (7) TPWD-Texas Parks and Wildlife Department; (8) TSSWCB-Texas State Soil and Water Conservation Board; (9) TWDB-Texas Water Development Board; and (10) TxDOT-Texas Department of Transportation. (d) To the extent that reference is made to statutory or regulatory terms or phrases which are not defined in this chapter, such terms and phrases retain the meaning provided in the pertinent agency or political subdivision policies or regulations. sec.501.4. General Procedures. (a) The commissioner of the GLO chairs the council and conducts all meetings. The council may select a vice chair who shall serve in the chair's absence. (b) The council shall meet at least four times a year, once in each calendar quarter. Council meetings shall be scheduled for February, May, August, and November. The chair or any three members of the council may call special meetings by sending a written request to the council secretary to post notice in accordance with the Texas Open Meetings Act, Texas Government Code, Title 5, Subtitle A, Chapter 551, and sending a copy of the request to all council members. (c) Each council member shall appoint a person to represent the member on an executive committee. The executive committee shall meet regularly in the interim between regular council meetings to coordinate implementation of council directives and review of policies, issues, or other matters that will or may be subject to council deliberation. The representative of the commissioner chairs the committee. The executive committee shall consider any matter a committee member refers to the committee. (d) The chair shall appoint a council secretary. The secretary shall record the minutes of the meetings and perform other duties required by the council or this chapter. (e) Council members may set items for the agenda by submitting them in writing to the secretary at least 14 days before a meeting, except that proposed actions that are the subject of a significant unresolved consistency dispute shall be placed on the agenda as provided in sec.505.34 and sec.505.66 of this title (relating to Referral of a Proposed Individual Agency Action to the Council for Consistency Review and Referral of Subdivision Actions to the Council for Consistency Review). The secretary shall notify all council members of the agenda by certified or overnight mail, hand-delivery, or telefax at least ten days before each meeting. The secretary shall notify the public of meetings as required by the Texas Open Meetings Act, Texas Government Code, Title 5, Subtitle A, Chapter 551. (f) A majority of the council members eligible to vote shall constitute a quorum and must be present for council action. To protest the consistency of a proposed state action listed in sec.505.11(a) of this title (relating to actions subject to the coastal management program), a federal action listed in sec.506.12 of this title (relating to federal actions subject to the coastal management program), or a subdivision action listed in sec.505.60 of this title (relating to review of local actions) shall require an affirmative vote of two- thirds of all council members. For all other actions, the council may act if a majority of a quorum agrees to the action. (g) Time periods in this chapter do not include the day of the act or event that activates the time period. If the last day of the time period is a Saturday, Sunday, or legal holiday, the time period is considered to end the next day subsequent that is not a Saturday, Sunday, or legal holiday. 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 authority. Issued in Austin, Texas, on October 13, 1995. TRD-9513133 Garry Mauro Chairman Coastal Coordination Council Effective date: November 3, 1995 Proposal publication date: July 18, 1995 For further information, please call: (512) 305-9129 Subchapter B. Goals and Policies 31 TAC sec.sec.501.10-501.14 The amendments are adopted pursuant to the authority provided in Texas Natural Resources Code, Chapter 33, Subchapter C, and Texas Natural Resources Code, Chapter 33, Subchapter F, sec.33.204(a), as amended by House Bill 3226, 74th Legislature, 1995, which require the council to promulgate rules adopting the CMP goals and policies. Chapter 501. Coastal Management Program. Subchapter B. Goals and Policies. sec.501.13. Administrative Policies. (a) Agency and subdivision rules and ordinances subject to sec.501.10 of this title (relating to Compliance with Goals and Policies) shall: (1) require applicants to provide information necessary for an agency or subdivision to make an informed decision on a proposed action listed in sec.505.11 of this title (relating to Actions and Rules Subject to the Coastal Management Program) or sec.505.60 of this title (relating to Local Government Actions Subject to the Coastal Management Program); (2) identify the monitoring established to ensure that activities authorized by actions listed in sec.505.11 of this title (relating to Actions and Rules Subject to the Coastal Management Program) or sec.505.60 of this title (relating to Local Government Actions Subject to the Coastal Management Program) comply with all applicable requirements; (3) identify circumstances in which agencies and subdivisions have the authority to issue variances from standards or requirements for the protection of CNRAs, including the grounds for granting variances; and (4) take into account the national interest as defined in the Texas CMP Document, Chapter XX. (b) A threshold for referral adopted by an agency under the provisions of Chapter 505 (relating to council procedures for consistency reviews) of this title shall be set at a level that is reasonably calculated to ensure that actions that may have unique and significant adverse effects on coastal natural resource areas are above the threshold for referral. sec.501.14. Policies for Specific Activities and Coastal Natural Resource Areas. (a) Construction of Electric Generating and Transmission Facilities. (1) Construction of electric generating facilities and electric transmission lines in the coastal zone shall comply with the policies in this subsection. (A) New electric generating facilities shall, where practicable, be located at previously developed sites. New electric generating facilities at undeveloped sites shall be located so that future expansion will avoid construction in critical areas, Gulf beaches, critical dunes, and washovers to the greatest extent practicable. To the extent applicable to the public beach, the policies in this subsection are supplemental to any further restrictions or requirements relating to the beach access and use rights of the public. (B) Electric generating facilities using once-through cooling systems shall be located and designed to have the least adverse effects practicable, including impingement or entrainment of estuarine organisms. (C) Electric generating facilities shall be constructed at sites selected to have the least adverse effects practicable on recreational uses of CNRAs and on areas used for spawning, nesting, and seasonal migrations of terrestrial and aquatic fish and wildlife species. (D) Electric transmission lines to or on Coastal Barrier Resource System Units and Otherwise Protected Areas designated on maps dated October 24, 1990, under the Coastal Barrier Resources Act, 16 United States Code Annotated, sec.3503, on coastal barriers shall: (i) be located, where practicable, in existing rights-of-way or previously disturbed areas if necessary to avoid or minimize adverse effects; and (ii) be located at sites at which future expansion shall avoid construction in critical areas, Gulf beaches, critical dunes, and washovers to the greatest extent practicable. (2) The PUC shall comply with the policies in this subsection when issuing certificates of convenience and necessity and adopting rules under Texas Civil Statutes, Public Utility Regulatory Act, Article 1446c, governing construction of electric generating facilities, electric transmission lines, and associated facilities in the coastal zone. (b) Construction, Operation, and Maintenance of Oil and Gas Exploration and Production Facilities. (1) Oil and gas exploration and production on submerged lands shall comply with the policies in this subsection. (A) In or near critical areas, facilities shall be located and operated and geophysical and other operations shall be located and conducted in such a manner as to avoid and otherwise minimize adverse effects, including those from the disposal of solid waste and disturbance resulting from the operation of vessels and wheeled or tracked vehicles, whether on areas under lease, easement, or permit or on or across access routes thereto. Where practicable, buffer zones for critical areas shall be established and directional drilling or other methods to avoid disturbance, such as pooling or unitization, shall be employed. (B) Lessees, easement holders, and permittees shall construct facilities in a manner that avoids impoundment or draining of coastal wetlands, if practicable, and shall mitigate any adverse effects on coastal wetlands impounded or drained in accordance with the sequencing requirements in this subsection. (C) Upon completion or cessation of operations, lessees, easement holders, and permittees shall remove facilities and restore any significantly degraded areas to pre-project conditions as closely as practicable, unless facilities can be used for maintenance or enhancement of CNRAs or unless restoration activities would further degrade CNRAs. (2) To the extent applicable to the public beach, the policies in this subsection are supplemental to any further restrictions or requirements relating to the beach access and use rights of the public. (3) The GLO and SLB shall comply with the policies in this subsection when approving oil, gas, and other mineral lease plans of operation and granting surface leases, easements, and permits and adopting rules under the Texas Natural Resources Code, Chapters 32, 33 and 51-53, governing oil and gas exploration and production on submerged lands. (c) Discharges of Wastewater and Disposal of Waste from Oil and Gas Exploration and Production Activities. (1) Disposal of oil and gas waste in the coastal zone shall comply with the policies in this subsection. (A) No new commercial oil and gas waste disposal pit shall be located in any CNRA. (B) Oil and gas waste disposal pits shall be designed to prevent releases of pollutants that adversely affect coastal waters or critical areas. (2) Discharge of oil and gas exploration and production wastewater in the coastal zone shall comply with the following policies. (A) All discharges shall comply with all provisions of surface water quality standards established by the TNRCC under subsection (f) of this section. (B) To the greatest extent practicable, new wastewater outfalls shall be located where the discharge will not adversely affect critical areas. Existing wastewater outfalls that adversely affect critical areas shall be either discontinued or relocated so as not to adversely affect critical areas within two years of the effective date of this section. (C) The RRC shall notify the TNRCC and the TPWD upon receipt of an application for a new permit to discharge produced waters to waters under tidal influence. In determining compliance with the policies in this subsection, the RRC shall consider the effects of salinity from the discharge. (3) The RRC shall comply with the policies in this subsection when issuing permits and adopting rules under the Texas Natural Resources Code, Chapter 91, for oil and gas waste, and under Texas Water Code, Chapter 26, and the Texas Natural Resources Code, Chapter 91, for oil and gas wastewater discharges. (d) Construction and Operation of Solid Waste Treatment, Storage, and Disposal Facilities. (1) Construction and operation of solid waste facilities in the coastal zone shall comply with the policies in this subsection. This subsection applies to both new facilities and areal expansion of existing facilities. (A) A landfill at which hazardous waste is received for a fee shall not be located in a critical area, critical dune area, critical erosion area, or a 100- year floodplain of a perennial stream, delineated on a flood map adopted by the Federal Emergency Management Agency after September 1, 1985, as zone A1-99, VO, or V1-30. This provision shall not apply to any facility for which a notice of intent to file an application, or an application, has been filed with the TNRCC as of September 1, 1985. (B) Except as provided in clauses (i) and (ii) of this subparagraph, a hazardous waste landfill shall not be located in a special hazard area existing before site development except in an area with a flood depth of less than three feet. Any hazardous waste landfill within a special hazard area must be designed, constructed, operated, and maintained to prevent washout of any hazardous waste by a 100-year flood. (i) The areal expansion of a landfill in a special hazard area may be allowed if the applicant demonstrates that the facility design will prevent the physical transport of any hazardous waste by a 100-year flood event. (ii) A new commercial hazardous waste management facility landfill unit may not be located in a special hazard area, unless the applicant demonstrates that the facility design will prevent the physical transport of any hazardous waste by a 100-year flood event. (C) Hazardous waste storage or processing facilities, land treatment facilities, waste piles, and storage surface impoundments shall not be located in special hazard areas unless they are designed, constructed, operated, and maintained to prevent washout of any hazardous waste by a 100-year flood. (D) Hazardous waste land treatment facilities, waste piles, storage surface impoundments, and landfills shall not be located within 1,000 feet of an area subject to active coastal shoreline erosion, if the area is protected by a barrier island or peninsula, unless the design, construction, and operational features of the facility will prevent adverse effects resulting from storm surge and erosion or scouring by water. On coastal shorelines which are subject to active shoreline erosion and which are unprotected by a barrier island or peninsula, a separation distance from the shoreline to the facility must be at least 5,000 feet, unless the design, construction, and operational features of the facility will prevent adverse effects resulting from storm surge and erosion or scouring by water. (E) Hazardous waste storage or processing facilities, land treatment facilities, waste piles, storage surface impoundments, and landfills shall not be located in coastal wetlands, or in any CNRA that is the critical habitat of an endangered species of plant or animal unless the design, construction, and operation features of the facility will prevent adverse effects on the critical habitat of the endangered species. (F) Hazardous waste land treatment facilities, waste piles, storage surface impoundments, and landfills shall not be located on coastal barriers. (G) Hazardous waste landfills are prohibited if there is a practicable alternative to such a landfill that is reasonably available to manage the types and classes of hazardous waste which might be disposed at the landfill. (H) The TNRCC shall not issue a permit for a new hazardous waste management facility or the areal expansion of an existing hazardous waste facility unless it finds that the proposed site, when evaluated in light of proposed design, construction, and operational features, reasonably minimizes possible contamination of coastal waters. (I) New solid waste facilities and areal expansion of existing solid waste facilities shall be sited, designed, constructed, and operated to prevent releases of pollutants that may adversely affect CNRAs and, at a minimum, comply with standards established under the Solid Waste Disposal Act, 42 United States Code Annotated, sec.sec.6901, et seq. (2) The TNRCC shall comply with the policies in this subsection when issuing permits and adopting rules under Texas Health and Safety Code, Chapter 361. (e) Prevention, Response and Remediation of Oil Spills. (1) The GLO regulations governing prevention of, response to and remediation of coastal oil spills shall provide for measures to prevent coastal oil spills and to ensure adequate response and removal actions. The GLO regulations for certification of vessels and facilities that handle oil shall be designed to ensure that vessels and facilities are capable of prompt response and adequate removal of unauthorized discharges of oil. The GLO regulations adopted pursuant to the Oil Spill Prevention and Response Act (OSPRA), Texas Natural Resources Code, Chapter 40, shall be consistent with the State Coastal Discharge Contingency Plan adopted pursuant to OSPRA; and the National Contingency Plan adopted pursuant to the Federal Water Pollution Control Act, 33 United States Code Annotated, Chapter 26. (2) Natural Resource Damage Assessment. GLO rules under OSPRA governing the assessment of damages to natural resources injured as the result of an unauthorized discharge of oil into coastal waters shall provide for reasonable and rational procedures for assessing damages and shall take into account the unique circumstances of the spill incident. The costs of assessing the damages shall not be disproportionate to the value of the injured resources. Plans for the restoration, rehabilitation, replacement or acquisition of equivalent resources shall provide for participation by the public and shall be designed to promote the restoration of the injured resources with all deliberate speed. The GLO rules shall be consistent with other state rules and policies and with the CMP goals and policies. (f) Discharge of Municipal and Industrial Wastewater to Coastal Waters. (1) TNRCC rules shall: (A) comply with the requirements of the Clean Water Act, 33 United States Code Annotated, sec.1251, et seq, and implementing regulations at Code of Federal Regulations, Title 40, which include establishing surface water quality standards in order to protect designated uses of coastal waters, including the protection of uses for water supply, recreational purposes, and propagation and protection of terrestrial and aquatic life, and establishing water-quality-based effluent limits, including toxicity monitoring and specific toxicity or chemical limits as necessary to protect designated uses of coastal waters; (B) provide for the assessment of water quality on a coastal watershed basis once every two years, as required by the Texas Water Code, sec.26.0135(d); (C) to the greatest extent practicable, provide that all permits for the discharge of wastewater within a given watershed or region of a single watershed contain the same expiration date in order to evaluate the combined effects of permitted discharges on water quality within that watershed or region; (D) identify and rank waters that are not attaining designated uses and establish total maximum daily pollutant loads in accordance with those rankings; and (E) require that increases in pollutant loads to coastal waters shall not: (i) impair designated uses of coastal waters; or (ii) result in degradation of coastal waters that exceed fishable/swimmable quality except in cases where lowering coastal water quality is necessary for important economic or social development. (2) Discharge of municipal and industrial wastewater in the coastal zone shall comply with the following policies. (A) Discharges shall comply with water-quality-based effluent limits. (B) Discharges that increase pollutant loadings to coastal waters shall not impair designated uses of coastal waters and shall not significantly degrade coastal water quality unless necessary for important economic or social development. (C) To the greatest extent practicable, new wastewater outfalls shall be located where they will not adversely affect critical areas. (3) The TNRCC shall comply with the policies in this subsection when adopting rules and authorizing wastewater discharges under Texas Water Code, Chapter 26. (4) The TNRCC shall consult with the Texas Department of Health when reviewing permit applications for wastewater discharges that may significantly adversely affect oyster reefs. (g) Nonpoint Source (NPS) Water Pollution. (1) State agencies and subdivisions with authority to manage NPS pollution shall cooperate in the development and implementation of a coordinated program to reduce NPS pollution in order to restore and protect coastal waters. (2) In an area that the TSSWCB identifies as having or having the potential to develop agricultural or silvicultural NPS water quality problems or an area within the coastal zone, the TSSWCB shall establish a water quality management plan certification program that provides, through the local soil and water conservation district, for the development, supervision, and monitoring of voluntary individual water quality management plans for agricultural and silvicultural lands. Each plan must be developed, maintained, and implemented under rules and criteria adopted by the TSSWCB and discharges under such a plan may not cause a violation of state water quality standards established by the TNRCC. The TSSWCB's rules shall certify a plan that satisfies the TSSWCB rules and criteria and discharges which do not cause a violation of state water quality standards established by the TNRCC. This policy is not intended, nor shall it be interpreted, to require the TSSWCB to establish non-voluntary requirements for the development, maintenance, or implementation of individual water quality management plans. (3) TNRCC rules under Texas Health and Safety Code, Chapter 366, governing on- site sewage disposal systems, and TNRCC rules under Texas Water Code, Chapter 26, Subchapter I, governing underground storage tanks, shall require that on- site disposal systems and underground storage tanks be located, designed, operated, inspected, and maintained so as to prevent releases of pollutants that may adversely affect coastal waters. (4) This policy shall not be interpreted or applied so as to require that either a National Pollution Discharge Elimination System (NPDES) permit for stormwater discharges issued under the Clean Water Act, sec.402(p), or an NPDES permit for a concentrated animal feeding operation, requiring no discharge up to and including a 25-year, 24-hour frequency storm, provide additional NPS pollution control measures in addition to those required in the permit. (h) Development in Critical Areas. (1) Dredging and construction of structures in, or the discharge of dredged or fill material into, critical areas shall comply with the policies in this subsection. In implementing this subsection, cumulative and secondary adverse effects of these activities will be considered. (A) The policies in this subsection shall be applied in a manner consistent with the goal of achieving no net loss of critical area functions and values. (B) Persons proposing development in critical areas shall demonstrate that no practicable alternative with fewer adverse effects is available. (C) In evaluating practicable alternatives, the following sequence shall be applied: (i) Adverse effects on critical areas shall be avoided to the greatest extent practicable. (ii) Unavoidable adverse effects shall be minimized to the greatest extent practicable by limiting the degree or magnitude of the activity and its implementation. (iii) Appropriate and practicable compensatory mitigation shall be required to the greatest extent practicable for all adverse effects that cannot be avoided or minimized. (D) Compensatory mitigation includes restoring adversely affected critical areas or replacing adversely affected critical areas by creating new critical areas. Compensatory mitigation should be undertaken, when practicable, in areas adjacent or contiguous to the affected critical areas (on-site). If on-site compensatory mitigation is not practicable, compensatory mitigation should be undertaken in close physical proximity to the affected critical areas if practicable and in the same watershed if possible (off-site). Compensatory mitigation should also attempt to replace affected critical areas with critical areas with characteristics identical to or closely approximating those of the affected critical areas (in-kind). The preferred order of compensatory mitigation is: (i) on-site, in-kind; (ii) off-site, in-kind; (iii) on-site, out-of-kind; and (iv) off-site, out-of-kind. (E) Mitigation banking is acceptable compensatory mitigation if use of the mitigation bank has been approved by the agency authorizing the development and mitigation credits are available for withdrawal. Preservation through acquisition for public ownership of unique critical areas or other ecologically important areas may be acceptable compensatory mitigation in exceptional circumstances. Examples of this include areas of high priority for preservation or restoration, areas whose functions and values are difficult to replicate, or areas not adequately protected by regulatory programs. Acquisition will normally be allowed only in conjunction with preferred forms of compensatory mitigation. (F) In determining compensatory mitigation requirements, the impaired functions and values of the affected critical area shall be replaced on a one- to-one ratio. Replacement of functions and values on a one-to-one ratio may require restoration or replacement of the physical area affected on a ratio higher than one-to-one. While no net loss of critical area functions and values is the goal, it is not required in individual cases where mitigation is not practicable or would result in only inconsequential environmental benefits. It is also important to recognize that there are circumstances where the adverse effects of the activity are so significant that, even if alternatives are not available, the activity may not be permitted regardless of the compensatory mitigation proposed. (G) Development in critical areas shall not be authorized if significant degradation of critical areas will occur. Significant degradation occurs if: (i) the activity will jeopardize the continued existence of species listed as endangered or threatened, or will result in likelihood of the destruction or adverse modification of a habitat determined to be a critical habitat under the Endangered Species Act, 16 United States Code Annotated, sec.sec.1531-1544; (ii) the activity will cause or contribute, after consideration of dilution and dispersion, to violation of any applicable surface water quality standards established under subsection (f) of this section; (iii) the activity violates any applicable toxic effluent standard or prohibition established under subsection (f) of this section; (iv) the activity violates any requirement imposed to protect a marine sanctuary designated under the Marine Protection, Research, and Sanctuaries Act of 1972, 33 United States Code Annotated, Chapter 27; or (v) taking into account the nature and degree of all identifiable adverse effects, including their persistence, permanence, areal extent, and the degree to which these effects will have been mitigated pursuant to subparagraphs (C) and (D) of this paragraph, the activity will, individually or collectively, cause or contribute to significant adverse effects on: (I) human health and welfare, including effects on water supplies, plankton, benthos, fish, shellfish, wildlife, and consumption of fish and wildlife; (II) the life stages of aquatic life and other wildlife dependent on aquatic ecosystems, including the transfer, concentration, or spread of pollutants or their byproducts beyond the site, or their introduction into an ecosystem, through biological, physical, or chemical processes; (III) ecosystem diversity, productivity, and stability, including loss of fish and wildlife habitat or loss of the capacity of a coastal wetland to assimilate nutrients, purify water, or reduce wave energy; or (IV) generally accepted recreational, aesthetic or economic values of the critical area which are of exceptional character and importance. (2) The TNRCC and the RRC shall comply with the policies in this subsection when issuing certifications and adopting rules under Texas Water Code, Chapter 26, and the Texas Natural Resources Code, Chapter 91, governing certification of compliance with surface water quality standards for federal actions and permits authorizing development affecting critical areas; provided that activities exempted from the requirement for a permit for the discharge of dredged or fill material, described in Code of Federal Regulations, Title 33, sec.323.4 and/or Code of Federal Regulations, Title 40, sec.232.3, including but not limited to normal farming, silviculture, and ranching activities, such as plowing, seeding, cultivating, minor drainage, and harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices, shall not be considered activities for which a certification is required. The GLO and the SLB shall comply with the policies in this subsection when approving oil, gas, or other mineral lease plans of operation or granting surface leases, easements, and permits and adopting rules under the Texas Natural Resources Code, Chapters 32, 33 and 51-53, and Texas Water Code, Chapter 61, governing development affecting critical areas on state submerged lands and private submerged lands, and when issuing approvals and adopting rules under Texas Civil Statutes, Article 5421u, for mitigation banks operated by subdivisions of the state. (3) Agencies required to comply with this subsection will coordinate with one another and with federal agencies when evaluating alternatives, determining appropriate and practicable mitigation, and assessing significant degradation. Those agencies' rules governing authorizations for development in critical areas shall require a demonstration that the requirements of paragraph (1)(A)-(G) of this subsection have been satisfied. (4) For any dredging or construction of structures in, or discharge of dredged or fill material into, critical areas that is subject to the requirements of sec.501.15 of this title (relating to Policy for Major Actions), data and information on the cumulative and secondary adverse affects of the project need not be produced or evaluated to comply with this subsection if such data and information is produced and evaluated in compliance with sec.501. 15(b)-(c) of this title (relating to Policy for Major Actions). (i) Construction of Waterfront Facilities and Other Structures on Submerged Lands. (1) Development on submerged lands shall comply with the policies in this subsection. (A) Marinas shall be designed and, to the greatest extent practicable, sited so that tides and currents will aid in flushing of the site or renew its water regularly. (B) Marinas designed for anchorage of private vessels shall provide facilities for the collection of waste, refuse, trash, and debris. (C) Marinas with the capacity for long-term anchorage of more than ten vessels shall provide pump-out facilities for marine toilets, or other such measures or facilities that provide an equal or better level of water quality protection. (D) Marinas, docks, piers, wharves and other structures shall be designed and, to the greatest extent practicable, sited to avoid and otherwise minimize adverse effects on critical areas from boat traffic to and from those structures. (E) Construction of docks, piers, wharves, and other structures shall be preferred instead of authorizing dredging of channels or basins or filling of submerged lands to provide access to coastal waters if such construction is practicable, environmentally preferable, and will not interfere with commercial navigation. (F) Piers, docks, wharves, bulkheads, jetties, groins, fishing cabins, and artificial reefs (including artificial reefs for compensatory mitigation) shall be limited to the minimum necessary to serve the project purpose and shall be constructed in a manner that: (i) does not significantly interfere with public navigation; (ii) does not significantly interfere with the natural coastal processes which supply sediments to shore areas or otherwise exacerbate erosion of shore areas; and (iii) avoids and otherwise minimizes shading of critical areas and other adverse effects. (G) Facilities shall be located at sites or designed and constructed to the greatest extent practicable to avoid and otherwise minimize the potential for adverse effects from: (i) construction and maintenance of other development associated with the facility; (ii) direct release to coastal waters and critical areas of pollutants from oil or hazardous substance spills or stormwater runoff; and (iii) deposition of airborne pollutants in coastal waters and critical areas. (H) Where practicable, pipelines, transmission lines, cables, roads, causeways, and bridges shall be located in existing rights-of-way or previously disturbed areas if necessary to avoid or minimize adverse effects and if it does not result in unreasonable risks to human health, safety, and welfare. (I) To the greatest extent practicable, construction of facilities shall occur at sites and times selected to have the least adverse effects on recreational uses of CNRAs and on spawning or nesting seasons or seasonal migrations of terrestrial and aquatic wildlife. (J) Facilities shall be located at sites which avoid the impoundment and draining of coastal wetlands. If impoundment or draining cannot be avoided, adverse effects to the impounded or drained wetlands shall be mitigated in accordance with the sequencing requirements of subsection (h) of this section. To the greatest extent practicable, facilities shall be located at sites at which expansion will not result in development in critical areas. (K) Where practicable, piers, docks, wharves, bulkheads, jetties, groins, fishing cabins, and artificial reefs shall be constructed with materials that will not cause any adverse effects on coastal waters or critical areas. (L) Developed sites shall be returned as closely as practicable to pre-project conditions upon completion or cessation of operations by the removal of facilities and restoration of any significantly degraded areas, unless: (i) the facilities can be used for public purposes or contribute to the maintenance or enhancement of coastal water quality, critical areas, beaches, submerged lands, or shore areas; or (ii) restoration activities would further degrade CNRAs. (M) Water-dependent uses and facilities shall receive preference over those uses and facilities that are not water-dependent. (N) Nonstructural erosion response methods such as beach nourishment, sediment bypassing, nearshore sediment berms, and planting of vegetation shall be preferred instead of structural erosion response methods. (O) Major residential and recreational waterfront facilities shall to the greatest extent practicable accommodate public access to coastal waters and preserve the public's ability to enjoy the natural aesthetic values of coastal submerged lands. (P) Activities on submerged land shall avoid and otherwise minimize any significant interference with the public's use of and access to such lands. (Q) Erosion of Gulf beaches and coastal shore areas caused by construction or modification of jetties, breakwaters, groins, or shore stabilization projects shall be mitigated to the extent the costs of mitigation are reasonably proportionate to the benefits of mitigation. Factors that shall be considered in determining whether the costs of mitigation are reasonably proportionate to the cost of the construction or modification and benefits include, but are not limited to, environmental benefits, recreational benefits, flood or storm protection benefits, erosion prevention benefits, and economic development benefits. (2) To the extent applicable to the public beach, the policies in this subsection are supplemental to any further restrictions or requirements relating to the beach access and use rights of the public. (3) The GLO and the SLB, in governing development on state submerged lands, shall comply with the policies in this subsection when approving oil, gas, and other mineral lease plans of operation and granting surface leases, easements, and permits and adopting rules under the Texas Natural Resources Code, Chapters 32, 33 and 51-53, and Texas Water Code, Chapter 61. (j) Dredging and Dredged Material Disposal and Placement. (1) Dredging and the disposal and placement of dredged material shall avoid and otherwise minimize adverse effects to coastal waters, submerged lands, critical areas, coastal shore areas, and Gulf beaches to the greatest extent practicable. The policies of this subsection are supplemental to any further restrictions or requirements relating to the beach access and use rights of the public. In implementing this subsection, cumulative and secondary adverse effects of dredging and the disposal and placement of dredged material and the unique characteristics of affected sites shall be considered. (A) Dredging and dredged material disposal and placement shall not cause or contribute, after consideration of dilution and dispersion, to violation of any applicable surface water quality standards established under subsection (f) of this section. (B) Except as otherwise provided in subparagraph (D) of this paragraph, adverse effects on critical areas from dredging and dredged material disposal or placement shall be avoided and otherwise minimized, and appropriate and practicable compensatory mitigation shall be required, in accordance with subsection (h) of this section. (C) Except as provided in subparagraph (D) of this paragraph, dredging and the disposal and placement of dredged material shall not be authorized if: (i) there is a practicable alternative that would have fewer adverse effects on coastal waters, submerged lands, critical areas, coastal shore areas, and Gulf beaches, so long as that alternative does not have other significant adverse effects; (ii) all appropriate and practicable steps have not been taken to minimize adverse effects on coastal waters, submerged lands, critical areas, coastal shore areas, and Gulf beaches; or (iii) significant degradation of critical areas under subsection (h) (1)(G)(v) of this section would result. (D) A dredging or dredged material disposal or placement project that would be prohibited solely by application of subparagraph (C) of this paragraph may be allowed if it is determined to be of overriding importance to the public and national interest in light of economic impacts on navigation and maintenance of commercially navigable waterways. (2) Adverse effects from dredging and dredged material disposal and placement shall be minimized as required in paragraph (1) of this subsection. Adverse effects can be minimized by employing the techniques in this paragraph where appropriate and practicable. (A) Adverse effects from dredging and dredged material disposal and placement can be minimized by controlling the location and dimensions of the activity. Some of the ways to accomplish this include: (i) locating and confining discharges to minimize smothering of organisms; (ii) locating and designing projects to avoid adverse disruption of water inundation patterns, water circulation, erosion and accretion processes, and other hydrodynamic processes; (iii) using existing or natural channels and basins instead of dredging new channels or basins, and discharging materials in areas that have been previously disturbed or used for disposal or placement of dredged material; (iv) limiting the dimensions of channels, basins, and disposal and placement sites to the minimum reasonably required to serve the project purpose, including allowing for reasonable overdredging of channels and basins, and taking into account the need for capacity to accommodate future expansion without causing additional adverse effects; (v) discharging materials at sites where the substrate is composed of material similar to that being discharged; (vi) locating and designing discharges to minimize the extent of any plume and otherwise control dispersion of material; and (vii) avoiding the impoundment or drainage of critical areas. (B) Dredging and disposal and placement of material to be dredged shall comply with applicable standards for sediment toxicity. Adverse effects from constituents contained in materials discharged can be minimized by treatment of or limitations on the material itself. Some ways to accomplish this include: (i) disposal or placement of dredged material in a manner that maintains physiochemical conditions at discharge sites and limits or reduces the potency and availability of pollutants; (ii) limiting the solid, liquid, and gaseous components of material discharged; (iii) adding treatment substances to the discharged material; and (iv) adding chemical flocculants to enhance the deposition of suspended particulates in confined disposal areas. (C) Adverse effects from dredging and dredged material disposal or placement can be minimized through control of the materials discharged. Some ways of accomplishing this include: (i) use of containment levees and sediment basins designed, constructed, and maintained to resist breaches, erosion, slumping, or leaching; (ii) use of lined containment areas to reduce leaching where leaching of chemical constituents from the material is expected to be a problem; (iii) capping in-place contaminated material or, selectively discharging the most contaminated material first and then capping it with the remaining material; (iv) properly containing discharged material and maintaining discharge sites to prevent and (v) timing the discharge to minimize adverse effects from unusually high water flows, wind, wave, and tidal actions. (D) Adverse effects from dredging and dredged material disposal or placement can be minimized by controlling the manner in which material is dispersed. Some ways of accomplishing this include: (i) where environmentally desirable, distributing the material in a thin layer; (ii) orienting material to minimize undesirable obstruction of the water current or circulation patterns; (iii) using silt screens or other appropriate methods to confine suspended particulates or turbidity to a small area where settling or removal can occur; (iv) using currents and circulation patterns to mix, disperse, dilute, or otherwise control the discharge; (v) minimizing turbidity by using a diffuser system or releasing material near the bottom; (vi) selecting sites or managing discharges to confine and minimize the release of suspended particulates and turbidity and maintain light penetration for organisms; and (vii) setting limits on the amount of material to be discharged per unit of time or volume of receiving waters. (E) Adverse effects from dredging and dredged material disposal or placement operations can be minimized by adapting technology to the needs of each site. Some ways of accomplishing this include: (i) using appropriate equipment, machinery, and operating techniques for access to sites and transport of material, including those designed to reduce damage to critical areas; (ii) having personnel on site adequately trained in avoidance and minimization techniques and requirements; and (iii) designing temporary and permanent access roads and channel spanning structures using culverts, open channels, and diversions that will pass both low and high water flows, accommodate fluctuating water levels, and maintain circulation and faunal movement. (F) Adverse effects on plant and animal populations from dredging and dredged material disposal or placement can be minimized by: (i) avoiding changes in water current and circulation patterns that would interfere with the movement of animals; (ii) selecting sites or managing discharges to prevent or avoid creating habitat conducive to the development of undesirable predators or species that have a competitive edge ecologically over indigenous plants or animals; (iii) avoiding sites having unique habitat or other value, including habitat of endangered species; (iv) using planning and construction practices to institute habitat development and restoration to produce a new or modified environmental state of higher ecological value by displacement of some or all of the existing environmental characteristics; (v) using techniques that have been demonstrated to be effective in circumstances similar to those under consideration whenever possible and, when proposed development and restoration techniques have not yet advanced to the pilot demonstration stage, initiating their use on a small scale to allow corrective action if unanticipated adverse effects occur; (vi) timing dredging and dredged material disposal or placement activities to avoid spawning or migration seasons and other biologically critical time periods; and (vii) avoiding the destruction of remnant natural sites within areas already affected by development. (G) Adverse effects on human use potential from dredging and dredged material disposal or placement can be minimized by: (i) selecting sites and following procedures to prevent or minimize any potential damage to the aesthetically pleasing features of the site, particularly with respect to water quality; (ii) selecting sites which are not valuable as natural aquatic areas; (iii) timing dredging and dredged material disposal or placement activities to avoid the seasons or periods when human recreational activity associated with the site is most important; and (iv) selecting sites that will not increase incompatible human activity or require frequent dredge or fill maintenance activity in remote fish and wildlife areas. (H) Adverse effects from new channels and basins can be minimized by locating them at sites: (i) that ensure adequate flushing and avoid stagnant pockets; or (ii) that will create the fewest practicable adverse effects on CNRAs from additional infrastructure such as roads, bridges, causeways, piers, docks, wharves, transmission line crossings, and ancillary channels reasonably likely to be constructed as a result of the project; or (iii) with the least practicable risk that increased vessel traffic could result in navigation hazards, spills, or other forms of contamination which could adversely affect CNRAs; (iv) provided that, for any dredging of new channels or basins subject to the requirements of sec.501.15 of this title (relating to Policy for Major Actions), data and information on minimization of secondary adverse effects need not be produced or evaluated to comply with this subparagraph if such data and information is produced and evaluated in compliance with sec.501. 15(b)(1) of this title (relating to Policy for Major Actions). (3) Disposal or placement of dredged material in existing contained dredge disposal sites identified and actively used as described in an environmental assessment or environmental impact statement issued prior to the effective date of this chapter shall be presumed to comply with the requirements of paragraph (1) of this subsection unless modified in design, size, use, or function. (4) Dredged material from dredging projects in commercially navigable waterways is a potentially reusable resource and must be used beneficially in accordance with this policy. (A) If the costs of the beneficial use of dredged material are reasonably comparable to the costs of disposal in a non- beneficial manner, the material shall be used beneficially. (B) If the costs of the beneficial use of dredged material are significantly greater than the costs of disposal in a non- beneficial manner, the material shall be used beneficially unless it is demonstrated that the costs of using the material beneficially are not reasonably proportionate to the costs of the project and benefits that will result. Factors that shall be considered in determining whether the costs of the beneficial use are not reasonably proportionate to the benefits include, but are not limited to: (i) environmental benefits, recreational benefits, flood or storm protection benefits, erosion prevention benefits, and economic development benefits; (ii) the proximity of the beneficial use site to the dredge site; and (iii) the quantity and quality of the dredged material and its suitability for beneficial use. (C) Examples of the beneficial use of dredged material include, but are not limited to: (i) projects designed to reduce or minimize erosion or provide shoreline protection; (ii) projects designed to create or enhance public beaches or recreational areas; (iii) projects designed to benefit the sediment budget or littoral system; (iv) projects designed to improve or maintain terrestrial or aquatic wildlife habitat; (v) projects designed to create new terrestrial or aquatic wildlife habitat, including the construction of marshlands, coastal wetlands, or other critical areas; (vi) projects designed and demonstrated to benefit benthic communities or aquatic vegetation; (vii) projects designed to create wildlife management areas, parks, airports, or other public facilities; (viii) projects designed to cap landfills or other waste disposal areas; (ix) projects designed to fill private property or upgrade agricultural land, if cost-effective public beneficial uses are not available; and (x) projects designed to remediate past adverse impacts on the coastal zone. (5) If dredged material cannot be used beneficially as provided in paragraph (4)(B) of this subsection, to avoid and otherwise minimize adverse effects as required in paragraph (1) of this subsection, preference will be given to the greatest extent practicable to disposal in: (A) contained upland sites; (B) other contained sites; and (C) open water areas of relatively low productivity or low biological value. (6) For new sites, dredged materials shall not be disposed of or placed directly on the boundaries of submerged lands or at such location so as to slump or migrate across the boundaries of submerged lands in the absence of an agreement between the affected public owner and the adjoining private owner or owners that defines the location of the boundary or boundaries affected by the deposition of the dredged material. (7) Emergency dredging shall be allowed without a prior consistency determination as required in the applicable consistency rule when: (A) there is an unacceptable hazard to life or navigation; (B) there is an immediate threat of significant loss of property; or (C) an immediate and unforeseen significant economic hardship is likely if corrective action is not taken within a time period less than the normal time needed under standard procedures. The council secretary shall be notified at least 24 hours prior to commencement of any emergency dredging operation by the agency or entity responding to the emergency. The notice shall include a statement demonstrating the need for emergency action. Prior to initiation of the dredging operations the project sponsor or permit-issuing agency shall, if possible, make all reasonable efforts to meet with council's designated representatives to ensure consideration of and consistency with applicable policies in this section. Compliance with all applicable policies in this section shall be required at the earliest possible date. The permit-issuing agency and the applicant shall submit a consistency determination within 60 days after the emergency operation is complete. (8) Mining of sand, shell, marl, gravel, and mudshell on submerged lands shall be prohibited unless there is an affirmative showing of no significant impact on erosion within the coastal zone and no significant adverse effect on coastal water quality or terrestrial and aquatic wildlife habitat within any CNRA. (9) The GLO and the SLB shall comply with the policies in this subsection when approving oil, gas, and other mineral lease plans of operation and granting surface leases, easements, and permits and adopting rules under the Texas Natural Resources Code, Chapters 32, 33, and 51-53, and Texas Water Code, Chapter 61, for dredging and dredged material disposal and placement. TxDOT shall comply with the policies in this section when adopting rules and taking actions as local sponsor of the Gulf Intracoastal Waterway under Texas Civil Statutes, Article 5415e-2. The TNRCC and the RRC shall comply with the policies in this subsection when issuing certifications and adopting rules under Texas Water Code, Chapter 26, and the Texas Natural Resources Code, Chapter 91, governing certification of compliance with surface water quality standards for federal actions and permits authorizing dredging or the discharge or placement of dredged material. The TPWD shall comply with the policies in this subsection when adopting rules at Chapter 57 of this title (relating to Fisheries) governing dredging and dredged material disposal and placement. The TPWD shall comply with the policies in paragraph (8) of this subsection when adopting rules and issuing permits under Texas Parks and Wildlife Code, Chapter 86, governing the mining of sand, shell, marl, gravel, and mudshell. (k) Construction in the Beach/Dune System. (1) Construction in critical dune areas and adjacent to Gulf beaches shall comply with the policies in this subsection. (A) Construction within a critical dune area that results in the material weakening of dunes and material damage to dune vegetation shall be prohibited. (B) Construction within critical dune areas that does not materially weaken dunes or materially damage dune vegetation shall be sited, designed, constructed, maintained, and operated so that adverse "effects" (as defined in sec.15.2 of this title, relating to Coastal Area Planning) on the sediment budget and critical dune areas are avoided to the greatest extent practicable. For purposes of this subsection, practicability shall be determined by considering the effectiveness, scientific feasibility, and commercial availability of the technology or technique. Cost of the technology or technique shall also be considered. Adverse effects (as defined in Chapter 15 of this title, relating to Coastal Area Planning) that cannot be avoided shall be: (i) minimized by limiting the degree or magnitude of the activity and its implementation; (ii) rectified by repairing, rehabilitating, or restoring the adversely affected dunes and dune vegetation; and (iii) compensated for on-site or off-site by replacing the resources lost or damaged seaward of the dune protection line. (C) Rectification and compensation for adverse effects that cannot be avoided or minimized shall provide at least a one-to-one replacement of the dune volume and vegetative cover, and preference shall be given to stabilization of blowouts and breaches and on-site compensation. (D) The ability of the public, individually and collectively, to exercise its rights of use of and access to and from public beaches shall be preserved and enhanced. (E) Non-structural erosion response methods such as beach nourishment, sediment bypassing, nearshore sediment berms, and planting of vegetation shall be preferred instead of structural erosion response methods. Subdivisions shall not authorize the construction of a new erosion response structure within the beach/dune system, except for a retaining wall located more than 200 feet landward of the line of vegetation. Subdivisions shall not authorize the enlargement, improvement, repair or maintenance of existing erosion response structures on the public beach. Subdivisions shall not authorize the repair or maintenance of existing erosion response structures within 200 feet landward of the line of vegetation except as provided in 15.6(d) of this title (relating to Concurrent Dune Protection and Beachfront Construction Standards). (2) The GLO shall comply with the policies in this subsection when certifying local government dune protection and beach access plans and adopting rules under the Texas Natural Resources Code, Chapters 61 and 63. Local governments required by the Texas Natural Resources Code, Chapters 61 and 63, and Chapter 15 of this title (relating to Coastal Area Planning) to adopt dune protection and beach access plans shall comply with the applicable policies in this subsection when issuing beachfront construction certificates and dune protection permits. (l) Development in Coastal Hazard Areas. (1) Subdivisions participating in the National Flood Insurance Program shall adopt ordinances or orders governing development in special hazard areas under Texas Water Code, Chapter 16, Subchapter I, and Texas Local Government Code, Chapter 240, Subchapter Z, that comply with construction standards in regulations at Code of Federal Regulations, Title 44, Parts 59-60, adopted pursuant to the National Flood Insurance Act, 42 United States Code Annotated, sec.sec.4001, et seq. (2) Pursuant to the standards and procedures under the Texas Natural Resources Code, Chapter 33, Subchapter H, the GLO shall adopt or issue rules, recommendations, standards, and guidelines for erosion avoidance and remediation and for prioritizing critical erosion areas. (m) Development Within Coastal Barrier Resource System Units and Otherwise Protected Areas on Coastal Barriers. (1) Development of new infrastructure or major repair of existing infrastructure within or supporting development within Coastal Barrier Resource System Units and Otherwise Protected Areas designated on maps dated October 24, 1990, under the Coastal Barrier Resources Act, 16 United States Code Annotated, sec.3503(a), shall comply with the policies in this subsection. (A) Development of publicly funded infrastructure shall be authorized only if it is essential for public health, safety, and welfare, enhances public use, or is required by law. (B) Infrastructure shall be located at sites at which reasonably foreseeable future expansion will not require development in critical areas, critical dunes, Gulf beaches, and washover areas within Coastal Barrier Resource System Units or Otherwise Protected Areas. (C) Infrastructure shall be located at sites that to the greatest extent practicable avoid and otherwise minimize the potential for adverse effects on critical areas, critical dunes, Gulf beaches, and washover areas within Coastal Barrier Resource System Units or Otherwise Protected Areas from: (i) construction and maintenance of roads, bridges, and causeways; and (ii) direct release to coastal waters, critical areas, critical dunes, Gulf beaches, and washover areas within Coastal Barrier Resource System Units or Otherwise Protected Areas of oil, hazardous substances, or stormwater runoff. (D) Where practicable, infrastructure shall be located in existing rights-of- way or previously disturbed areas to avoid or minimize adverse effects within Coastal Barrier Resource System Units or Otherwise Protected Areas. (E) Development of infrastructure shall occur at sites and times selected to have the least adverse effects practicable within Coastal Barrier Resource System Units or Otherwise Protected Areas on critical areas, critical dunes, Gulf beaches, and washover areas and on spawning or nesting areas or seasonal migrations of commercial, recreational, threatened, or endangered terrestrial or aquatic wildlife. (2) TNRCC rules and approvals for the creation of special districts and for infrastructure projects funded by issuance of bonds by water, sanitary sewer, and wastewater drainage districts under Texas Water Code, Chapter 50; water control and improvement districts under Texas Water Code, Chapter 50; municipal utility districts under Texas Water Code, Chapter 54; regional plan implementation agencies under Texas Water Code, Chapter 54; special utility districts under Texas Water Code, Chapter 65; stormwater control districts under Texas Water Code, Chapter 66; and all other general and special law districts subject to and within the jurisdiction of the TNRCC, shall comply with the policies in this subsection. TxDOT rules and approvals under Texas Civil Statutes, Article 6663 et seq, governing planning, design, construction, and maintenance of transportation projects, shall comply with the policies in this subsection. (n) Development in State Parks, Wildlife management Areas or Preserves. Development by a person other than the Parks and Wildlife Department that requires the use or taking of any public land in such areas shall comply with Texas Parks and Wildlife Code, Chapter 26. (o) Alteration of Coastal Historic Areas. (1) Development affecting a coastal historic area shall avoid and otherwise minimize alteration or disturbance of the site unless the site's excavation will promote historical, archaeological, educational, or scientific understanding. (2) The THC shall comply with the policies in this subsection when adopting rules and issuing permits under the Texas Natural Resources Code, Chapter 191, governing alteration of coastal historic areas. The THC shall comply with the policies in this subsection when issuing reviews under the National Historic Preservation Act, sec.106 (16 United States Code Annotated, sec.470f), and the regulations enacted pursuant thereto, Code of Federal Regulations, Title 36, Chapter 1, Part 63. (p) Transportation Projects. (1) Transportation construction projects and maintenance programs within the coastal zone shall comply with the policies in this subsection. (A) Pollution prevention procedures shall be incorporated into the construction and maintenance of transportation projects to minimize pollutant loading to coastal waters from erosion and sedimentation, use of pesticides and herbicides for maintenance of rights-of-way, and other pollutants from stormwater runoff. (B) Transportation projects shall be located at sites that to the greatest extent practicable avoid and otherwise minimize the potential for adverse effects from construction and maintenance of additional roads, bridges, causeways, and other development associated with the project; and direct release to CNRAs of pollutants from oil or hazardous substance spills, contaminated sediments or stormwater runoff. (C) Where practicable, transportation projects shall be located in existing rights-of-way or previously disturbed areas if necessary to avoid or minimize adverse effects. (D) Where practicable, transportation projects shall be located at sites at which future expansion will not require development in coastal wetlands except where such construction is determined to be essential for evacuation in the case of a natural disaster. (E) Construction and maintenance of transportation projects shall avoid the impoundment and draining of coastal wetlands. If impoundment or draining cannot be avoided, adverse effects to the impounded or drained wetlands shall be mitigated in accordance with the sequencing requirements of subsection (h) of this section. (F) Construction of transportation projects shall occur at sites and times selected to have the least adverse effects practicable on recreational uses of CNRAs and on spawning or nesting seasons or seasonal migrations of terrestrial or aquatic species. (G) Beach-quality sand from maintenance of roadways adjacent to Gulf beaches shall be beneficially used by placement on Gulf beaches where practicable. Where placement on Gulf beaches is not practicable, the material shall be placed in critical dune areas. (2) TxDOT rules and project approvals under Texas Civil Statutes, Article 6663b and 6663c, and Texas Civil Statutes, Article 6674a et seq, governing transportation projects within the coastal zone, shall comply with the policies in this subsection. (q) Emission of Air Pollutants. TNRCC rules under Texas Health and Safety Code, Chapter 382, governing emissions of air pollutants, shall comply with regulations at Code of Federal Regulations, Title 40, adopted pursuant to the Clean Air Act, 42 United States Code Annotated, sec.7401, et seq, to protect and enhance air quality in the coastal area so as to protect CNRAs and promote the public health, safety, and welfare. (r) Appropriations of Water. (1) Impoundments and diversion of state water within 200 stream miles of the coast, to commence from the mouth of the river thence inland, shall comply with the policies in this subsection. (A) The TNRCC shall administer the law so as to promote the judicious use and maximum conservation and protection of the quality of the environment and the natural resources of the state. It is the public policy of the state to provide for the conservation and development of the state's natural resources, including: (i) the control, storage, preservation, and distribution of the state's storm and floodwaters and the waters of its rivers and streams for irrigation, power, and other useful purposes; (ii) the reclamation and irrigation of the state's arid, semiarid, and other land needing irrigation; (iii) the reclamation and drainage of the state's overflowed land and other land needing drainage; (iv) the conservation and development of its forest, water, and hydroelectric power; (v) the navigation of the state's inland and coastal waters; and (vi) the maintenance of a proper ecological environment of the bays and estuaries of Texas and the health of related living marine resources. (B) In this subsection, "beneficial inflows" means a salinity, nutrient, and sediment loading regime adequate to maintain an ecologically sound environment in the receiving bay and estuary system that is necessary for the maintenance of productivity of economically important and ecologically characteristic sport or commercial fish and shellfish species and estuarine life upon which such fish and shellfish are dependent. (C) In its consideration of an application for a permit to store, take, or divert water, the TNRCC shall assess the effects, if any, of the issuance of the permit on the bays and estuaries of Texas. For permits issued within an area that is 200 river miles of the coast, to commence from the mouth of the river thence inland, the TNRCC shall include in the permit, to the greatest extent practicable when considering all public interests, those conditions considered necessary to maintain beneficial inflows to any affected bay and estuary system. (D) For the purposes of making a determination under subparagraph (C) of this paragraph, the TNRCC shall consider among other factors: (i) the need for periodic freshwater inflows to supply nutrients and modify salinity to preserve the sound environment of the bay or estuary, using any available information, including studies and plans specified in and other studies considered by the TNRCC to be reliable; together with existing circumstances, natural or otherwise, that might prevent the conditions imposed from producing benefits; (ii) the ecology and productivity of the affected bay and estuary system; (iii) the expected effects on the public welfare of not including in the permit some or all of the conditions considered necessary to maintain the beneficial inflows to the affected bay or estuary; (iv) the quantity of water requested and the proposed use of water by the applicant, as well as the needs of those who would be served by the applicant; (v) the expected effects on the public welfare of the failure to issue all or part of the permit being considered; and (vi) for the purposes of this subsection, the declarations as to preferences for competing uses of water as found in Texas Water Code, sec.11. 024 and sec.11.033, as well as the public policy statement in subparagraph (A) of this paragraph. (E) In its consideration of an application to store, take, or divert water, the TNRCC shall consider the effect, if any, of the issuance of the permit on existing instream uses and water quality of the stream or river to which the application applies. The TNRCC shall also consider the effect, if any, of the issuance of the permit on fish and wildlife habitats. (F) On receipt of an application for a permit to store, take, or divert water, the TNRCC shall send a copy of the permit application and any subsequent amendments to the TPWD. In making a final decision on any application for a permit, the TNRCC, in addition to other information, evidence, and testimony presented, shall consider all information, evidence, or testimony presented by the TPWD and the TWDB. (G) Permit conditions relating to beneficial inflows to affected bays and estuaries and instream uses may be suspended by the TNRCC if the TNRCC finds that an emergency exists and cannot practically be resolved in other ways. Before the TNRCC suspends a permit under this subparagraph, it must give written notice to the TPWD of the proposed suspension. The TNRCC shall give the TPWD an opportunity to submit comments on the proposed suspension within 72 hours from such time and the TNRCC shall consider those comments before issuing its order imposing the suspension. (H) In its consideration of an application for a permit under this section, the TNRCC shall assess the effects, if any, of the issuance of the permit on water quality in coastal waters. In its consideration of an application for a permit to store, take, or divert water in excess of 5,000 acre feet per year, the commission shall assess the effects, if any, on the issuance of the permit on fish and wildlife habitats and may require the applicant to take reasonable actions to mitigate adverse effects on such habitat. In determining whether to require an applicant to mitigate adverse effects on a habitat, the TNRCC may consider any net benefit to habitat produced by the project. The TNRCC shall offset against any mitigation required by the United States Fish and Wildlife Service pursuant to Code of Federal Regulations, Title 33, sec.sec.320-330, any mitigation authorized by this section. (I) Unappropriated water and other water of the state stored in any facility acquired by and under the control of the TWDB may be released without charge to relieve any emergency condition arising from drought, severe water shortage, or other calamity, if the TNRCC first determines the existence of the emergency and requests the TWDB to release the water. (J) Five percent of the annual firm yield of water in any reservoir and associated works constructed with state financial participation within 200 river miles of the coast, to commence from the mouth of the river thence inland, is appropriated to the TPWD for use to make releases to bays and estuaries and for instream uses, and the TNRCC shall issue permits for this water to the TPWD under procedures adopted by the TNRCC. This subparagraph applies only to reservoirs and associated works on which construction begins on or after September 1, 1985. This subsection does not limit or repeal any other authority of or law relating to the TPWD or the TNRCC. (K) The TWDB, in coordination with the TNRCC and TPWD, shall identify ways to assist in providing flows to meet instream needs, including protection of water quality, protection of terrestrial or aquatic wildlife habitat, and bay and estuary inflow needs, in the implementation of the Texas Water Bank, Texas Water Code, Chapter 15, Subchapter K. This may include, but not be limited to, the purchase by the TPWD and/or the TWDB of water rights deposited in the Texas Water Bank in order to provide for existing instream uses and beneficial inflows to bays and estuaries if funds are available and such purchase is not prohibited by law. The TNRCC shall facilitate the approval of any necessary permit amendments to achieve this purpose. (L) An applicant for a new or amended water right permit shall submit a water conservation plan in accordance with 30 TAC sec.295.9 (relating to Conservation Plan). The TNRCC shall consider the information contained in the conservation plan in determining whether any feasible alternative to the proposed appropriation exists, whether the proposed amount to be appropriated as measured at the point of diversion is reasonable and necessary for the proposed use, the term and other conditions of the water right and to ensure that reasonable diligence will be used to avoid waste and achieve water conservation. Based upon its review, the TNRCC may deny or grant, in whole or in part, the requested appropriation. (2) The TNRCC rules and authorizations under Texas Water Code, Chapter 11, governing review and action on applications for new permits or amendments proposing changes to existing permits for diversions or impoundments of state water within 200 stream miles of the coast, and TNRCC rules and approvals governing creation of districts and issuance of district bonds for levee and flood control projects within the coastal zone, shall comply with the policies in this subsection. (s) Levee and Flood Control Projects. (1) Drainage, reclamation, channelization, levee construction or modification, or flood- or floodwater-control infrastructure projects shall be designed, constructed, and maintained to avoid the impoundment and draining of coastal wetlands to the greatest extent practicable. If impoundment or draining of coastal wetlands cannot be avoided, adverse effects to the wetlands shall be mitigated in accordance with the sequencing requirements in subsection (h) of this section. (2) TNRCC rules and approvals for the levee construction, modification, drainage, reclamation, channelization, or flood- or floodwater-control projects, pursuant to the Texas Water Code, sec.16.236, shall comply with the policies in this subsection. 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 authority. Issued in Austin, Texas, on October 13, 1995. TRD-9513132 Garry Mauro Chairman Coastal Coordination Council Effective date: November 3, 1995 Proposal publication date: July 18, 1995 For further information, please call: (512) 305-9129 31 TAC sec.501.2 The Coastal Coordination Council (council) adopts the repeal of sec.501.2, concerning the Texas Coastal Management Program (CMP), related to Findings. The council is adopting the repeal of sec.501.2 because there will be new language proposed for this section. As a result, the former section is procedurally repealed and new language is concurrently proposed to address public and council concerns that the detailed list of benefits and adverse impacts on coastal natural resource areas described in sec.501.2 might inadvertently be read to create a legal presumption that the council, when evaluating an action for consistency with the CMP goals and policies, may only consider the benefits and adverse impacts listed in such section. Such a presumption would limit the council's flexibility to evaluate actions in light of overall costs and benefits of an activity. These changes are made to conform to amendments to the Coastal Coordination Act also made by the 74th Legislature, 1995, in House Bill 3226, to be codified at Texas Natural Resources Code, Chapter 33. No comments were received regarding the repeal of sec.501.2. The repeal is adopted pursuant to the council's authority in Texas Natural Resources Code, sec.sec.33.051-33.054, 33.202, 33.204, 33.205, 33.2051-33.2053, as amended by House Bill 3226, 74th Legislature, 1995. 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 authority. Issued in Austin, Texas, on October 13, 1995. TRD-9513136 Garry Mauro Chairman Coastal Coordination Council Effective date: November 3, 1995 Proposal publication date: July 18, 1995 For further information, please call: (512) 305-9129 31 TAC sec.501.15 The Coastal Coordination Council (council) adopts the repeal of sec.501.15, concerning the Texas Coastal Management Program (CMP), Policy for Major Actions. The council is adopting the repeal of sec.501.15 because the subsection is concurrently reproposed with language procedurally added to the subsection to address the concern that the section imposed additional requirements on activities for which a federal environmental impact statement is required. Texas Natural Resources Code, sec.33.053, as amended by the 74th Legislature, 1995, in House Bill 3226, specifies the elements of the CMP. In general, the elements of the CMP are limited to the minimum required for federal approval. Thirteen commenters opposed the repeal of sec.501.15. Five commenters supported the change. Because repeal of the section could affect federal approval of the CMP, the council has adopted the proposed repeal of the major actions policy and is proposing new language, narrowing the scope of the policy. List of Commenters: Railroad Commission; Environmental Defense Fund; Mitchell Energy; United States Department of Commerce, National Oceanic and Atmospheric Administration, Habitat Conservation Division; Steinhagen Oil Company, Inc.; Texas Cattle Feeders Association; Port of Houston; Baker and Botts, L.L.P.; and Henry, Lowerre, Johnson, Hess and Frederick. The repeal is adopted pursuant to the council's authority in Texas Natural Resources Code, sec.sec.33.051-33.054, 33.202, 33.204, 33.205, 33.2052-2053, and 33.206-33.208, as amended by House Bill 3226, 74th Legislature, 1995, as codified in Texas Natural Resources Code, Chapter 33. 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 authority. Issued in Austin, Texas, on October 13, 1995. TRD-9513137 Garry Mauro Chairman Coastal Coordination Council Effective date: November 3, 1995 Proposal publication date: July 18, 1995 For further information, please call: (512) 305-9129 Chapter 503. Coastal Management Program Boundary 31 TAC sec.503.1 The Coastal Coordination Council (council) adopts an amendment to sec.503. 1, concerning the Coastal Management Program (CMP) Boundary, with changes to the proposed text as published in the July 18, 1995, issue of the Texas Register (20 TexReg 5181). The amendment to sec.503.1 is required to conform the CMP rules to statutory changes made by the 74th Legislature, 1995, in House Bill 3226, to be codified at Texas Natural Resource Code, sec.33.2053(k). The following provisions shall be implemented and become enforceable at a date to be established by the council in the future: 31 TAC Chapter 505, Subchapter C (relating to Consistency and Council Review of Proposed State Agency Actions), Subchapter D (relating to Council Advisory Opinions on General Plans), and Subchapter E (relating to Consistency and Council Review of Local Government Actions) and 31 TAC Chapter 506 (relating to Council Procedures for Federal Consistency with Coastal Management Program Goals and Policies). The council shall publish notice of the implementation date(s) of these provisions in the Texas Register at least 30 days prior to such implementation date(s). Individual federal, state, and local subdivision actions need not comply with the CMP goals and Policies as set forth in Chapter 501 of this title (relating to Coastal Management Program) prior to the implementation of council review of such actions under Chapters 505 (relating to Council Procedures for State Consistency with Coastal Management Program Goals and Policies) and 506 (relating to Council Procedures for Federal Consistency with Coastal Management Program Goals and Policies). The council will implement the following provisions beginning February 1, 1996: Chapters 501 and 503, and Chapter 505, Subchapters A and B (relating to Purpose and Policy and State Agency Actions Subject to the Coastal Management Program and Council Review and Certification of Agency Rules). This preamble addresses changes adopted as the result of comments received on the July 18, 1995 proposals. To fully explain the adopted rules, this preamble also addresses changes to the September 27, 1994 rules made as the result of House Bill 3226. The CMP boundary delineates the coastal zone. Under House Bill 3226, the Legislature provided that the inland boundary for the CMP follow a modification of the coastal facility designation line, which is the line adopted under the Oil Spill Prevention and Response Act of 1991, Texas Natural Resources Code, Chapter 40 (OSPRA). The facility designation line generally delineates the area within which facilities must apply for certification under OSPRA. Generally, the CMP boundary encompasses the area within Texas lying seaward of the coastal facility designation line. The CMP boundary is established to delineate regulatory jurisdiction. It does not demark for title purposes, the boundary between public and private land. The CMP boundary also includes coastal wetlands landward of the coastal facility designation line. The boundary encompasses areas within the following Texas counties: Cameron, Willacy, Kenedy, Kleberg, Nueces, San Patricio, Aransas, Refugio, Calhoun, Victoria, Jackson, Matagorda, Brazoria, Galveston, Harris, Chambers, Liberty, Jefferson, and Orange. The seaward limit of the CMP boundary extends into the Gulf of Mexico to the limit of state title and ownership under the Submerged Lands Management Act (43 United States Code, sec.sec.1301 et seq), i.e. three marine leagues. The boundary may be described as consisting of: the inland boundary, the boundary with the State of Louisiana, the seaward boundary, the boundary with the Republic of Mexico, and the excluded federal lands. The inland boundary is described in three portions: the roadway portion of boundary as described in sec.503.1(b)(1)(A), a tidal portion of boundary as described in sec.503.1(b)(1)(B), and a wetlands portion of the boundary as described in sec.503.1(b)(1)(C). The roadway portion of boundary, in sec.503.1(b)(1)(A) is based upon the coastal facility designation line. The tidal portion of boundary, in sec.503.1(b)(1)(B), is based upon the stream segment maps maintained by the Texas Natural Resource Conservation Commission and further described under 30 TAC sec.307.10, Appendix C. The boundary also includes coastal wetlands, which generally are within one mile of the mean high tide line of the tidal river and stream segments described in sec.503.1(b)(1)(B). Along the Trinity and Neches rivers, certain wetlands located greater than one mile from the mean high tide line are also coastal natural resource areas (CNRAs). The wetlands included are those defined under Texas Water Code, sec.11.502, as meaning "an area (including a swamp, marsh, bog, prairie pothole, or similar area) having a predominance of hydric soils that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support and that under normal circumstances supports the growth and regeneration of hydrophytic vegetation." One commenter requested that the title of the chapter be changed to read "Coastal Management Program Boundary" to avoid confusion between Chapters 503 and 501. This change was made to clarify the chapter's contents. Twenty commenters opposed the amendments to the CMP boundary in sec.503.1. Most of these commenters stated that the amendment made the boundary confusing and raised questions regarding federal approval of the CMP because it excluded areas of tidal waters from the coastal zone. One commenter supported the proposed amendments. The council has not adopted the amendment as proposed, but has adopted amendments described previously. The changes conform the boundary to House Bill 3226. The boundary now includes all tidal waters and is drawn and described in a simpler and less confusing manner. Seventeen commenters requested that oil and gas exploration and production activities "be exempt from the rules of the CMP inland of a line 100 yards from coastal waters." One commenter requested that oil and gas exploration and production activities be exempt landward of the OSPRA's coastal facility designation line. One commenter requested the boundary in Brazoria County be modified to follow Farm to Market Road 2004 to County Road 227, County Road 227 to Farm to Market Road 523 to County Road 690 (levee road), County Road 690 and the hurricane levee to the Brazos River diversion, the Brazos River diversion and the hurricane protection levee to State Highway 36, State Highway 36 to Farm to Market Road 2611, and Farm to Market Road 2611 to the Matagorda County line. Three commenters requested that the boundary be modified to exclude Liberty County. One commenter stated that if Liberty County was excluded, other areas should be excluded also. The council has not adopted these requested changes because they would conflict with House Bill 3226, which specifically delineates the boundary, and these suggested changes are not authorized by the statute. One commenter requested the council establish a schedule for implementation of the various provisions of the rules. This useful suggestion has been adopted and each preamble now contains implementation dates. Minor editorial changes have been made to sec.503.1(a) and sec.503.1(b)(1)(B) (iii) to clarify these subsections. One commenter requested that a map of the boundary be included in the rule. Detailed maps are included in the adopted rule. The following organizations generally supported the proposed amendments to the CMP rules: E Cross Cattle Co., Inc.; Texas Cattle Feeders Association; The Fordyce Company; Texas Mid-Continent Oil and Gas Association; County of Kenedy; City of Lake Jackson; City of Corpus Christi; Texas Independent Producers and Royalty Owners Association; Lavaca-Navidad River Authority; TriTech Regional Council; Iberia Petroleum Company; Mitchell Energy & Development Corporation; Railroad Commission of Texas; Everest Minerals Corporation; U. S. Department of the Army, Corps of Engineers; Coastal Bend Geological Library, Inc.; Port of Houston Authority; Trinity Improvement Association; Kling, Inc.; Briggs Ranches; Society of Independent Professional Earth Scientists; Texas Water Conservation Association; Mueller Engineering Corp., Petroleum Consultants; American Shoreline, Inc.; Texas and Southwestern Cattle Raisers Association; Southstar Corporation; South Texas Cotton and Grain Association, Inc.; Greater Corpus Christi Business Alliance Chamber of Commerce; King Ranch, Inc.; and Wilson Plaza North. The following organizations generally opposed the proposed amendments to the CMP rules: Texas Shrimp Association; National Oceanic and Atmospheric Administration; Blackburn & Carter; Arnold Construction Company, Inc.; City of Galveston; McFarlane & Associates; Steinhagen Oil Company, Inc.; U. S. Department of Interior; ABC Used Auto Parts; Gulf Coast Rod, Reel and Gun Club, Inc.; Crady, Jewett & McCulley, L.L.P.; General Land Office; Henry, Lowerre, Johnson, Hess and Frederick; Environmental Defense Fund; U. S. Environmental Protection Agency; Wells, Peyton, Beard, Greenberg, Hunt and Crawford, L.L.P.; The Benton Company; Boyt Properties; Ekistics Corporation, Environmental Impact Assessment and Socioeconomic Analysis; Lone Star Chapter Sierra Club; R. C. Deal & Associates; Port of Houston; League of Women Voters of Texas; League of Women Voters of Houston; Groves Brothers Machinery, Inc.; Corpus Christi Caller-Times; Mabry, Herbeck & Chilton, P.C.; United States Department of the Interior, Fish and Wildlife Service, Division of Ecological Services; Lower Laguna Madre Foundation; County of Jefferson; United States Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, Southeast Regional Office; Fort Bend Medical Clinic; Entrix, Inc.; Galveston Bay Conservation and Preservation Association; County of Jim Wells; The Shaddock Companies; Galveston Bay Foundation; Department of Planning & Transportation; Coastal Bend, Sierra Club; East Matagorda Bay Foundation; Greater Corpus Christi Business Alliance Chamber of Commerce; Whittington & Ewing Design Associates; Scenic Galveston; Houston Audubon Society; Audubon Council of Texas; Frontera Audubon Society; and Sea Pals'. The following organizations made specific written comments but did not express general support for or opposition to the proposed CMP rules: Liberty County; Port of Houston Authority; U. S. Department of Agriculture, Natural Resources Conservation Services; Houston-Galveston Area Council; Browning-Ferris Industries; Texas Historical Commission; Texas Water Development Board; Houston Lighting and Power; Texas Chemical Council; Texas Beach Advocate; Texas Water Conservation Association; UTMB-Galveston Department of OB/GYN; and the Department of the Navy, Naval Station Ingleside. The following organizations expressed general support for House Bill 3226 and an approvable CMP: South East Texas Regional Planning Commission; County of Hidalgo; Benckenstein & Oxford, L.L.P.; and Burrus Lumber Company. In addition to the many comments received during the comment period, some comments were received after the expiration of the comment period. While these comments have not been, for the most part, responded to individually as were comments received earlier, concerns expressed in those comments have been addressed in responses to many earlier comments. The council staff gratefully acknowledges the involvement of so many individuals, businesses, trade association, non-government organizations and public officials whose thoughtful comments we have read. Chapters 501, 503, 504, 505, and 506 have been revised and improved in light of these comments, reflecting as they do a broad spectrum of economic, ecological, and other concerns held by Texans throughout the state. The amendment is adopted under Texas Natural Resources Code, sec.33.204(a), as amended by House Bill 3226, 74th Legislature, 1995, which provides the council with the authority to promulgate rules adopting the CMP goals and policies. sec.503.1. Coastal Management Program Boundary. (a) General Description of the Coastal Management Program Boundary. The coastal management program boundary delineates the coastal zone. The inland part of the boundary is a modification of the coastal facility designation line, which is the line the State of Texas adopted under the Oil Spill Prevention and Response Act of 1991 (Texas Natural Resources Code, Chapter 40) to describe areas where oil spills are likely to enter coastal waters. Generally, the boundary encompasses the area within Texas lying seaward of the coastal facility designation line. It also includes coastal wetlands landward of the coastal facility designation line. The boundary includes areas within the following Texas counties: Cameron, Willacy, Kenedy, Kleberg, Nueces, San Patricio, Aransas, Refugio, Calhoun, Victoria, Jackson, Matagorda, Brazoria, Galveston, Harris, Chambers, Liberty, Jefferson, and Orange. The seaward reach of the boundary extends into the Gulf of Mexico to the limit of state title and ownership under the Submerged Lands Management Act (43 United States Code, sec.sec.1301 et seq), that is, three marine leagues. The following maps outline the coastal management program boundary. Figure: 31 TAC sec.503.1(a). (b) Particular Description of the Coastal Management Program Boundary. The boundary is more particularly described in terms of the inland boundary, the boundary with the State of Louisiana, the seaward boundary, the boundary with the Republic of Mexico, and the excluded federal lands. (1) The inland boundary. The inland boundary encompasses the following areas: (A) Roadway portion of boundary. The boundary begins at the International Toll Bridge in Brownsville, thence northward along U.S. Highway 77 to the junction of Paredes Lines Road (FM Road 1847) in Brownsville, thence northward along FM Road 1847 to the junction of FM Road 106 east of Rio Hondo, thence westward along FM Road 106 to the junction of FM Road 508 in Rio Hondo, thence northward along FM Road 508 to the junction of FM Road 1420, thence northward along FM Road 1420 to the junction of State Highway 186 east of Raymondville, thence westward along State Highway 186 to the junction of U.S. Highway 77 near Raymondville, thence northward along U.S. Highway 77 to the junction of FM Road 774 in Refugio, thence eastward along FM Road 774 to the junction of State Highway 35 south of Tivoli, thence northward along State Highway 35 to the junction of State Highway 185 between Bloomington and Seadrift, thence northwestward along State Highway 185 to the junction of FM Road 616 in Bloomington, thence northeastward along FM Road 616 to the junction of State Highway 35 east of Blessing, thence southward along the State Highway 35 to the junction of FM Road 521 north of Palacios, thence northeastward along FM Road 521 to the junction of State Highway 36 south of Brazoria, thence northward along State Highway 36 to the junction of State Highway 332 in Brazoria, thence eastward along State Highway 332 to the junction of FM Road 2004 in Lake Jackson, thence northeastward along FM Road 2004 to the junction of Interstate Highway 45 between Dickinson and La Marque, thence northwestward along Interstate Highway 45 to the junction of Interstate Highway 610 in Houston, thence east and northward along Interstate Highway 610 to the junction of Interstate Highway 10 in Houston, thence eastward along Interstate Highway 10 to the Louisiana State line. (B) Tidal portion of boundary. The boundary runs at a distance of 100 yards inland from the mean high tide lines along each of the following tidal river and stream segments from the points where they intersect the roadway boundary described in subparagraph (A) of this paragraph: (i) on the Arroyo 100 meters (110 yards) downstream of Cemetery Road south of Port Harlingen in Cameron County; (ii) on the Nueces River, to Calallen Dam 1.7 kilometers (1.1 miles) upstream of U.S. Highway 77 in Nueces/San Patricio County; (iii) on the Guadalupe River, to the Guadalupe-Blanco River Authority Salt Water Barrier 0.7 kilometers (0.4 mile) downstream of the confluence of the San Antonio River in Calhoun and Refugio Counties; (iv) on the Lavaca kilometers (5.3 miles) downstream of U.S. Highway 59 in Jackson County; (v) on the Navidad River, to Palmetto Bend Dam in Jackson County; (vi) on Tres Palacios kilometer (1.0 mile) upstream of the confluence of Wilson Creek in Matagorda County; (vii) on the Colorado kilometers (1.3 miles) downstream of the Missouri- Pacific Railroad in Matagorda County; (viii) on the San 3.2 kilometers (2.0 miles) upstream of State Highway 35 in Brazoria County; (ix) on Chocolate Bayou, (2.6 miles) downstream of State Highway 35 in Brazoria County; (x) on Clear Creek, (110 yards) upstream of FM Road 528 in Galveston/Harris County; (xi) on Buffalo Bayou, (440 yards) upstream of Shepherd Drive in Harris County; (xii) on the San Jacinto River, to Lake Houston Dam in Harris County; (xiii) on Cedar Bayou, (1.4 miles) upstream of Interstate Highway 10 in Chambers/Harris County; (xiv) on the Trinity kilometers (1.9 miles) downstream of U.S. Highway 90 in Liberty County; (xv) on the Neches kilometers (7.0 miles) upstream of Interstate Highway 10 in Orange County; and (xvi) on the Sabine River, to Morgan Bluff in Orange County. (C) Wetlands portion of boundary. Except for the part of the boundary adjacent to the Trinity and Neches rivers, the boundary includes wetlands lying within one mile inland of the mean high tide lines of the tidal river and stream segments identified in subparagraph (B) of this paragraph. (i) Adjacent to the Trinity River, the boundary includes wetlands within the area located between the mean high tide line on the western shoreline of the river and Farm-to-Market Road 565 and Farm-to-Market Road 1409, and wetlands within the area located between the mean high tide line on the eastern shoreline of that portion of the river and Farm-to-Market Road 563. (ii) Adjacent to the Neches River, the boundary includes wetlands within one mile of the mean high tide line on the western shoreline of the river, and wetlands within the area located between the mean high tide line on the eastern shoreline of that portion of the river and Farm-to-Market Road 105. (2) The boundary with the State of Louisiana. The boundary with the State of Louisiana begins in Orange County at Morgans Bluff, the northernmost extent of tidal influence, along the adjudicated boundary between the State of Texas and the State of Louisiana, as established by the United States Supreme Court in Texas v. Louisiana, 410 U.S. 702 (1973); thence it continues in a southerly direction along the adjudicated boundary out into the Gulf of Mexico until it intersects the seaward boundary. (3) The seaward boundary. The seaward boundary is that line marking the seaward limit of Texas title and ownership under the Submerged Lands Act (43 United States Code, sec.1301 et seq), as recognized by the United States Supreme Court in United States v. Louisiana et al., 364 U.S. 502 (1960). (4) The boundary with the Republic of Mexico. The boundary with the Republic of Mexico begins at a point three marine leagues into the Gulf of Mexico where the line marking the seaward limit of Texas title and ownership under the Submerged Lands Act (43 United States Code, sec.sec.1301 et seq) intersects the international boundary between the United States and the Republic of Mexico, as established pursuant to the Treaty of Guadalupe-Hildago (February 2, 1848) between the United States and the Republic of Mexico; thence it continues in a westerly direction along the international border with the Republic of Mexico until it meets the International Toll Bridge in Brownsville. (5) The excluded federal lands. The excluded federal lands are those lands owned, leased, held in trust by, or whose use is otherwise by law subject solely to the discretion of the federal government, its officers or 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 authority. Issued in Austin, Texas, on October 13, 1995. TRD-9513131 Garry Mauro Chairman Coastal Coordination Council Effective date: November 3, 1995 Proposal publication date: July 18, 1995 For further information, please call: (512) 305-9129 Chapter 504. Special Area Management Planning 31 TAC sec.sec.504.1-504.8 The Coastal Coordination Council (council) adopts the repeal of Chapter 504, sec.sec.504.1-504.8, concerning the establishment of procedural requirements for the development of special area management plans (SAMPs) for the Texas Coastal Management Program (CMP). The council is repealing sec.sec.504.1-504.8 because House Bill 3226, sec.4 (74th Legislature, 1995), to be codified at Texas Natural Resources Code Annotated, sec.33.209, prohibits the council from developing or approving SAMPs. One commenter expressed concern that SAMPs be left to the local governments to adopt. The commenter stated that regulation at the local level was more effective. Chapter 504 is being repealed from the Coastal Management Program under a statutory directive from the legislature. No change was made based on this comment. One commenter believed that repealing Chapter 504 would weaken the CMP and impact the state's ability to protect coastal resources because areas of particular concern would not be adequately addressed. Continued revisions to the CMP, statutorily mandated and added by the council, have maintained the ability of the state to protect the coastal resources. No change was made based on this comment. The United States Department of Commerce and the National Oceanic and Atmospheric Administration submitted comments regarding the repeal of Chapter 504. The repeals are adopted under the Texas Natural Resources Code Annotated, sec.33.209, which prohibits the council from developing or approving SAMPs. 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 authority. Issued in Austin, Texas, on October 13, 1995. TRD-9513138 Garry Mauro Chairman Coastal Coordination Council Effective date: November 3, 1995 Proposal publication date: July 18, 1995 For further information, please call: (512) 305-9129 Chapter 505. Council Procedures for State Consistency with Coastal Management Program Goals and Policies The Coastal Coordination Council (council) adopts amendments to sec.sec.505. 10, 505.11, 505.20-505.22, 505.26, 505.30-505.39, 505.42, 505.51, 505.52, 505. 60, 505.62-505.71, and 505.74, concerning council procedures for state and local government consistency with Coastal Management Program (CMP) goals and policies, Sections 505.10, 505.11, 505.20-505.22, 505.26, 505.30-505.33, 505. 35-505.39, 505.42, 505.51, 505.52, 505.60, 505.63-505.65, 505.68, 505.71 and 505.74 with changes to the proposed text as published in the July 18, 1995, issue of the Texas Register (20 TexReg 5198). Sections 505.34, 505.62, 505.66, 505.67, 505.69 and 505.70 are adopted without changes and will not be republished. These amendments are adopted pursuant to the Texas Natural Resources Code, sec.sec.33.205, 33.2051-33.2053, 33.206 and 33.208, as amended to reflect statutory changes made by the 74th Legislature, 1995, in House Bill 3226. The following provisions shall be implemented and become enforceable at a date to be established by the council in the future: 31 TAC Chapter 505, Subchapter C (relating to Consistency and Council Review of Proposed State Agency Actions), Subchapter D (relating to Council Advisory Opinions on General Plans), and Subchapter E (relating to Consistency and Council Review of Local Government Actions) and 31 TAC Chapter 506 (relating to Council Procedures for Federal Consistency with Coastal Management Program Goals and Policies). The council shall publish notice of the implementation date(s) of these provisions in the Texas Register at least 30 days prior to such implementation date(s). Individual federal, state, and local subdivision actions need not comply with the CMP goals and Policies as set forth in Chapter 501 of this title (relating to Coastal Management Program) prior to the implementation of council review of such actions under Chapters 505 (relating to Council Procedures for State Consistency with Coastal Management Program Goals and Policies) and 506 (relating to Council Procedures for Federal Consistency with Coastal Management Program Goals and Policies. The council will implement the following provisions beginning February 1, 1996: Chapters 501 and 503, and Chapter 505, Subchapters A and B (relating to Purpose and Policy and State Agency Actions Subject to the Coastal Management Program and Council Review and Certification of Agency Rules). This preamble addresses changes adopted as the result of comments received on the July 18, 1995 proposals. To fully explain the adopted rules, this preamble also addresses changes to the September 27, 1994 rules made as the result of House Bill 3226. Chapter 505 describes the council's procedures for ensuring that actions by state agencies and political subdivisions are consistent with the CMP goals and policies. This chapter also establishes a voluntary process whereby state agencies and local governments can seek council input on and review of long-term "general plans" which contemplate actions affecting the coastal zone. To conform to House Bill 3226, a change is made to limit the number of actions referred to the council for consistency review to a manageable level and to ensure that council review is reserved for those actions presenting unique and significant unresolved consistency issues. This change will streamline the review process and response to public comments. To conform to House Bill 3226, the following changes are made to Chapter 505: "action" is changed to "proposed action," "local government" is changed to "subdivision," "public beach" is changed to "Gulf beach," and "Consistency Review Group" is changed to "Permitting Assistance Group." One commenter supported the proposed changes to sec.505.11(a). Section 505. 11(a), concerning actions and rules subject to the CMP, is changed to conform to House Bill 3226, which contains the exclusive list of proposed actions that may adversely affect coastal natural resource areas (CNRAs). Section sec.505. 11(b) is now sec.505.11(c) and a new subsection (b) has been added to provide the exclusive list of proposed agency rulemaking actions that must be consistent with the CMP goals and policies. Under Texas Natural Resources Code, sec.33.203(23), as amended by House Bill 3226, an "agency or subdivision action" means an action described in Texas Natural Resources Code, sec.33.2051 or sec.33.2053. The actions listed in Texas Natural Resources Code, sec.33.2053, are proposed agency or subdivision permitting actions that are subject to the provisions of the CMP. These actions are listed in sec.505.11(a) of the CMP rules. The actions listed in Texas Natural Resources Code, sec.33.2051, are agency rulemaking actions that are subject to the provisions of the CMP. These actions are listed in sec.505.11(b) and (c) of the CMP rules. These rulemaking actions include any rulemaking related to the specific permitting actions listed in Texas Natural Resources Code, sec.33.2053, including thresholds for referral adopted under Texas Natural Resources Code, sec.33.2052(b). Therefore, sec.505.11(b)(4) is changed to clarify that the agency rules governing proposed actions described under sec.505.11(a), and thresholds for referral of such actions, are included in the exclusive list of proposed agency rulemaking actions that must be consistent with the CMP goals and policies. Some commenters voiced concern about the timely coordination of the numerous approval and reviews involved when proposing major construction projects. Section 505.11(a)(4) is changed to provide that preparation of an environmental document for a transportation construction project or maintenance program is an action by the Texas Department of Transportation (TxDOT) that is subject to the CMP. This change will help streamline the numerous reviews and approvals that may be required between the time a transportation improvement project is identified and the construction is initiated by ensuring that a consistency review is conducted during the public involvement and environmental approval phase of a project. Section 505.11(c) is now redesignated sec.505.11(d) and has been edited to conform to House Bill 3226 and to permit descriptions in sec.505.11(a). Section 505.11(d) is now sec.505.11(e) and sec.505.11(e)(4) is amended to conform to Texas Natural Resources Code, sec.33.206(h), which provides that the council may not protest a proposed action pertaining to an application filed prior to the implementation date of Subchapter C of this chapter (relating to Consistency and Council Review of Proposed State Agency Actions). Three comments opposed the proposed amendments. One commenter suggested changing sec.505.11(e)(5) to prohibit the review of actions taken pursuant to an enforcement order. In response to these comments, and because actions taken pursuant to an enforcement order issued prior to the implementation date of Subchapter C are not subject to the CMP, no change has been made. To clarify the contents of these sections, the following titles were changed: 1. sec.505.21 is now "Effect of Council Certification of Agency Rules and Rule Amendments." 2. sec.505.22 is now "Consistency Required for New Rules and Rule Amendments Subject to the Coastal Management Program." 3. sec.505.26 is now "Approval of Thresholds for Referral." Several commenters objected to the proposed amendments to Chapter 505, Subchapter B, relating to Council Certification of Agency Rules and Approval of Thresholds for Referral. In response to these comments, Subchapter B, as adopted, differs from the proposed rule, as described below. Certification of agency rules and approval of thresholds will be accomplished using a procedure set forth in Subchapter B of this chapter. The proposal to rely on the procedures set forth in Subchapter C of this chapter for council review of agency permits and actions was not changed. In response to comments requesting clarification of the subject matter of Subchapter B, the title of Subchapter B is changed to "Council Review and Certification of Agency Rules." The following changes are made to Subchapter B for clarification: sec.505. 20(e) (relating to council denial of certification of agency rules) is moved to sec.505.25 (related to Revocation of Certification); and sec.505.22 (relating to Consistency Required for New Rules and Rule Amendments Subject to the Coastal Management Program) is changed to establish the procedures agencies will follow when proposing a new rule or rule amendment that is subject to the consistency requirements of the CMP. Chapter 505, Subchapter B, was changed in response to public comments. The comments were that the process for certification of agency rules must provide: (1) an opportunity for early council and public involvement in review of agency rules prior to adoption; (2) for certification of agency rules by a majority vote of the council, rather than a two-third vote of the council for finding the rules inconsistent; (3) for affirmative action by the council to certify agency rules subject to the CMP; and (4) standards for certification of agency rules. Section 505.20 and sec.505.22 were changed in response to these comments. Section 505.20, concerning Council Review and Certification of Existing Agency Rules, is changed to conform to Texas Natural Resources Code, sec.33. 2052. Section 505.20(a) is amended to require the agency submitting its rules for certification to submit a reasoned statement supporting the agency's determination that the rule is consistent with the CMP goals and policies. The language regarding grounds for decertification, formerly in sec.505.20(e), is now in sec.505.25. Changes in response to comments and for editorial purposes have been made to sec.505.20(b) and (c). Section 505.20(b) discusses the procedure for council review of agency rules and sec.505.20(c) contains the standard for determining whether existing agency rules are consistent with the CMP goals and policies. Section 505.21, concerning the effect of council certification of agency rules, is changed to conform to Texas Natural Resources Code, sec.33.2052(b). The change provides that after an agency's rules are certified and its thresholds approved, the agency's consistency determination is final and not subject to review except as set out in sec.505.32. Section 501.21 is also changed to reference certification of new rules pursuant to sec.505.23 (relating to Council Certification of Rules or Rule Amendments), and certifications of existing rules pursuant to sec.505.20 (relating to Council review and Certification of Existing Agency Rules). Editorial changes are also made to sec.505.22 (relating to Consistency Required for New Rules and Rule Amendments Subject to the Coastal Management Program). Section 505.22 is similar to the section as published in the September 27, 1994, issue of the Texas Register (19 TexReg 7687). This section establishes procedures agencies must follow to ensure that new rules and rule amendments are consistent with the CMP goals and policies. Section 505.22(a) requires an agency to include in the preamble published in the Texas Register notice that a proposed rule or rule amendment is subject to the CMP and must be consistent with the CMP, a reasoned justification explaining the basis upon which the agency concluded the rule was consistent, and requesting public comment on the consistency of the rule. Section 505.22(b) requires the agency to submit a copy of the proposed rule or rule amendment to the council secretary at the time it is filed with the Texas Register. The secretary will distribute the rule and all supporting materials to the council members, who should file comments on the matter with the agency during the comment period. Section 505.22(c) suggests that council members comment, through the Texas Administrative Procedure Act, on an agency's proposed rules. Section 505.22(d) allows agencies to seek clarification of a council-member comment or question by placing the rules on the agenda of the council or executive committee. Finally, sec.505.22(e) requires agencies to affirm that the rule or rule amendment is consistent with the CMP goals and policies upon adoption of the rule. Section 505.26 (relating to Approval of Thresholds for Referral) establishes the procedures the council will follow for review and approval of agency thresholds. The procedures for rule certification in sec.505.20 and sec.505.23 will be used for approving thresholds. Section 505.26 (relating to Approval of Thresholds for Referral) establishes the procedures the council will follow for review and approval of agency thresholds. The council will rely on the procedures for rule certification set forth the sec.505.20 and sec.505.23. Section 505.26 also requires that thresholds for referral be set at the appropriate level above the threshold that present unique and significant consistency issues, as provided in sec.505.13(b). In response to comments requesting clarification of the subject matter of Subchapter C, the title to Subchapter C is changed to "Consistency and Council Review of Proposed State Agency Actions." To clarify Subchapter C, the following headings are changed: 1. sec.505.32 is changed to "Requirements for Referral of a Proposed Agency Action"; 2. sec.505.34 is changed to "Referral of a Proposed Agency Action to the Council for Consistency Review"; 3. sec.505.35 is changed to "Council Procedures for Review of a Proposed Agency Action"; 4. sec.505.36 is changed to "Standard for Council Review of a Proposed Agency Action"; and 5. sec.505.37 is changed to "Activities Pending Council Review of a Proposed Agency." To conform with Texas Natural Resources Code, sec.33.205(b), sec.505.30, concerning Agency Consistency Determination, is changed to provide that an agency shall prepare a consistency determination when proposing a permitting action listed under sec.505.11(a). Such a consistency determination must either affirm that the agency has taken into account the CMP goals and policies and that the proposed action is consistent with the CMP goals and policies or that the agency has determined the proposed action will not have a direct and significant adverse effect on CNRAs. Section 505.30(b) also discusses "direct" and "significant" impacts. "Direct" refers to impacts that are causally linked to an activity; "significant" refers to appreciable impacts on CNRAs. Section 505.30(c) is changed to conform to the changes made in sec.505.30(a) and (b). In response to comments suggesting that the council enhance public participation, the following subsections of Chapter 505 are changed to provide greater opportunity for public comment on, and participation in, the preliminary review process: 1. sec.505.31(b) and sec.505.63(b) are changed to require the council secretary to publish in the Texas Register notice that a request for preliminary consistency review has been filed and to request public comment on the request for 30 days; 2. sec.505.31(c) and sec.505.63(c) are changed to require the permitting assistance group to consider the public comments before issuing a preliminary determination of consistency; and 3. A change is made to sec.505.31(d)(6), regarding preliminary consistency determinations in assisting individuals or small businesses with proposed applications, requiring the permitting assistance group to consider all public comments before issuing a preliminary consistency finding. One commenter expressed several objections to the preliminary review process in sec.505.31. Since the preliminary review process is prescribed by House Bill 3226, the council has not adopted the requested changes. The permitting assistance group's structure, responsibilities, and procedures are delineated in Texas Natural Resource Code, sec.33.205(f) and (g). Section 505. 31, concerning preliminary review of proposed agency actions by the council is changed to extend its provisions to state agency and subdivision permitting actions, is amended to incorporate these changes by extending its provisions to state agency and subdivision permitting actions. The permitting assistance group's responsibilities also include assistance to individuals or small businesses. References to memoranda of agreement are deleted. To conform to Texas Natural Resources Code, sec.33.205(h), a new sec.505.31(e) is added. This subsection provides that if the council has made a preliminary finding of consistency, the council may only accept referral of the action if the agency or subdivision has substantially changed the permit or proposed action since the preliminary finding was issued. To conform to Texas Natural Resources Code, sec.33.205, sec.505.32, concerning requirements for referral of a proposed agency action, is changed to establish which items may be referred to the council, to clarify the effect of thresholds, and to establish new time schedules for council review. References to memoranda of agreement are deleted because the statutory changes made by House Bill 3226 do not provide for establishing memoranda of agreement. To conform to Texas Natural Resources Code, sec.33.205, and to reflect the changes to sec.505.11 and sec.505.32 of these rules, editorial changes are made to sec.505.33. To conform to Texas Natural Resources Code, sec.33.205, which streamlined the council review process, sec.505.34, concerning referral of a proposed agency action to the council for consistency review, is changed to limit the council's time to act on a referral and to provide that any three council members must agree there is a significant unresolved consistency issue in order for the council to accept a request for referral. To conform to Texas Natural Resources Code, sec.33.204, sec.505.35, concerning Council Procedures for Review of a Proposed Agency Action, is changed, to ensure that the council considers applicable laws and rules, and limit the council's time to act on a referral. Several commenters proposed deleting the requirement in sec.505.36(b)(1), for documentation in the agency record to support a council presumption that the agency's consistency determination is valid. One commenter suggested alternative language. The council has not made this change because it may not conform to the requirements imposed by federal law. However, sec.505.36, concerning the standard of council review for a proposed agency action, is changed to reflect changes to other sections in this chapter, and sec.505.36(b) (1) is changed to provide that the council will presume the agency's consistency determination is valid if documented by the agency's findings of fact and conclusions of law. To conform to Texas Natural Resources Code, sec.33.206, the remand process in sec. 505.38, concerning council action on review of a proposed agency action, is replaced with procedures by which the council may affirm or protest an agency's proposed action and report those findings to the agency. A proposed action is deemed consistent with the CMP goals and policies unless protested by a two- thirds vote of the entire council. Section 505.38(b) is changed to clarify that the council cannot require an agency to perform an action that would exceed the agency's constitutional or statutory authority. To conform with Texas Natural Resources Code, sec.33.206, and to respond to public comment, sec.505.39, concerning agency action after council protest, is changed to make the procedures for council referral of a matter to the attorney general more specific and to provide additional time for the council to act. Section 505.39(a) provides that in response to a protest by the council, an agency must respond to the council secretary within 20 days. The secretary is then to distribute the agency's response to the council members by hand- delivery, facsimile, or overnight mail. Section 505.39(b) is changed to allow any three council members to call a special meeting to consider requesting the attorney general's opinion on the consistency of the proposed action with the CMP goals and policies. A council member's request for a special meeting must be submitted in writing to the council secretary within ten days of the date the agency notifies the council of its decision. A special meeting to consider whether to request an opinion from the attorney general must be held within 20 days of the date the third request for a special meeting was received by the council secretary. Subsection 505.39(c) is changed to provide that if the council finds that the agency did not amend or modify the proposed action either to conform substantially with the council's recommendations or to achieve the same results as the council's recommendations, the council shall refer the matter to the attorney general for a legal opinion on consistency of the proposed action with the CMP goals and policies. Referral to the attorney general requires a majority vote of a quorum of the council. As provided in sec.505. 39(c), the agency is stayed from taking the proposed action until the attorney general issues the opinion. Section 505.39(c) is also changed to set out the information the attorney general must use as a basis for his opinion. In determining whether the proposed action is inconsistent, the attorney general shall consider the council's findings and recommendations and the agency's response to the recommendations. sec.To conform to Texas Natural Resources Code, sec.33.208, sec.505.42, concerning enforcement, is changed to provide that an agency or subdivision with jurisdiction over a proposed action shall enforce the CMP provisions. Section 505.42(b) is changed to clarify that if the attorney general determines that an agency's proposed action is inconsistent with CMP goals and policies, the attorney general will file suit to enforce the CMP rules, unless the council directs the attorney general to postpone filing a lawsuit until such time as negotiations are complete or exhausted. Section 505.42(c) is also changed to provide for settlement agreements between the council and the agency or subdivision prior to issuance of the attorney general's opinion. If the dispute between the council and the agency is settled, the council may withdraw the request for an opinion. If the opinion has been requested and issued, the council may direct the attorney general to postpone filing a lawsuit until such time as negotiations are complete or exhausted. One commenter opposed the proposed amendments to Subchapter D of this chapter, concerning council advisory opinions on general plans. One commenter supported the proposed amendments. Another commenter requested repeal of sec.sec.505.50- 505.53. The council has revised the proposed amendments. In response to these comments, sec.505.50 and sec.505.52 are changed to provide that the council may consider a general plan only at the request of the agency responsible for the general plan. Other minor changes to clarify this subchapter were made. The provision for the issuance of an advisory opinion by the council regarding a general plan is deleted from sec.505.52 as sec.505.51 already provides that an agency may request that the council issue an advisory opinion regarding a general plan. In sec.505.51(d), the deadline for council action on a request for an advisory opinion is changed from 60 to 90 days. In response to comments requesting enhanced public participation in the CMP program, Subchapter E, Consistency and Council Review of Subdivision Actions, is changed to provide notice and opportunity for public comment in the preliminary consistency review process. Subchapter E is also changed to conform to changes in sec.505.39 and sec.505.42 regarding referral of state agency actions to the attorney general. The council also changed sec.505.64 and sec.505.68 to make the process for council review of local government actions the same as the process for council review of state agency actions. To conform to Texas Natural Resources Code, sec.33.2051, and in response to public comment suggesting the council clarify that the project size descriptions in sec.505.60(1)-(4) apply to both dune protection permits and certain beachfront construction certificates, sec.505.60, concerning subdivision actions subject to the CMP, is change to specify that dune protection permits and certain beachfront construction certificates are the only subdivision actions that are subject to council review. Texas Natural Resources Code, sec.33.205(b), requires that a subdivision affirm that it took into account the CMP goals and policies by issuing a written consistency determination. Section 505.62, concerning subdivision consistency determinations, is changed to conform to the new statute. In response to comments requesting the council enhance public participation in the CMP program, sec.505.63(b) is changed to require public notice and comment of a request for preliminary consistency review from a political subdivision. Section 505.63(c) is changed to require the permitting assistance group to consider the public comments received before issuing a preliminary consistency determination. As proposed, sec.505.63(d) is deleted because the statutory changes made by House Bill 3226 did not provide for establishing memoranda of agreement. Section 505.64(3), proposed for deletion, is now retained and changed because this section sets out the requirements for referral of a subdivision action. A subdivision action may be referred to the council only if the action for which referral is sought was authorized, the consistency determination for the proposed action was contested in writing by a council member or other person, a request for referral has been filed within ten days of the date the action was proposed, at least three council members agree within 13 days of the date the action was proposed that there is a significant unresolved dispute regarding the proposed action's consistency with the CMP goals and policies, and the matter is placed on the council agenda. Section 505.65, concerning filing of request for referral, is changed to apply to subdivision actions, the same procedures described under sec.505.33 for state agency actions. To conform to Texas Natural Resource Code, sec.33.205, as amended by House Bill 3226, and sec.505.34, the procedures described for referral of a state action, sec.505.66(c) and (d), concerning referral of subdivision actions to the council for consistency review, are changed. The changes expedite the process by which a matter is referred to the council by establishing shorter time schedules for council review. Section 505.67, concerning council procedures for review of subdivision actions, is changed to conform to the procedures described for review of state actions under sec.505.35. The change reflect modifications in time schedules by limiting the length and format of testimony which the council may receive. Section 505.68 is changed to conform to the changes made in sec.505.64. Section 505.68(b)(2) is also changed to retain the council presumption that a subdivision action is consistent with the CMP if the determination is documented by the underlying record. To conform to Texas Natural Resources Code, sec.33.206, sec.505.70, concerning council action on review of subdivision action, is changed to replace the remand process with procedures by which the council may affirm or protest an agency's proposed action and report those findings to the agency. A proposed action is consistent with the CMP goals and policies unless protested by a two-thirds vote of the council as a whole. Pursuant to Texas Natural Resources Code, sec.33.206, and to conform to sec.505.39, sec.505.71, concerning subdivision action after council protest, is changed to ensure that the attorney general will base its opinion on the findings and recommendations of the council. Section 505.74, concerning enforcement, is changed to provide that an agency or subdivision with jurisdiction over a proposed action shall enforce the CMP provisions. The section is also changed to conform to sec.505.42. One commenter requested the council establish a schedule for implementation of the various provisions of the rules. This useful suggestion has been adopted and each preamble now contains implementation dates. The following organizations generally supported the proposed amendments to the CMP rules: E Cross Cattle Co., Inc.; Texas Cattle Feeders Association; The Fordyce Company; Texas Mid-Continent Oil and Gas Association; County of Kenedy; City of Lake Jackson; City of Corpus Christi; Texas Independent Producers and Royalty Owners Association; Lavaca-Navidad River Authority; TriTech Regional Council; Iberia Petroleum Company; Mitchell Energy & Development Corporation; Railroad Commission of Texas; Everest Minerals Corporation; U. S. Department of the Army, Corps of Engineers; Coastal Bend Geological Library, Inc.; Port of Houston Authority; Trinity Improvement Association; Kling, Inc.; Briggs Ranches; Society of Independent Professional Earth Scientists; Texas Water Conservation Association; Petroleum Geologist; Mueller Engineering Corp., Petroleum Consultants; American Shoreline, Inc.; Texas and Southwestern Cattle Raisers Association; Southstar Corporation; South Texas Cotton and Grain Association, Inc.; Greater Corpus Christi Business Alliance Chamber of Commerce; King Ranch, Inc.; and Wilson Plaza North. The following organizations generally opposed the proposed amendments to the CMP rules: Texas Shrimp Association; National Oceanic and Atmospheric Administration; Blackburn & Carter; Arnold Construction Company, Inc.; City of Galveston; McFarlane & Associates; Steinhagen Oil Company, Inc.; U. S. Department of Interior; ABC Used Auto Parts; Gulf Coast Rod, Reel and Gun Club, Inc.; Crady, Jewett & McCulley, L.L.P.; General Land Office; Henry, Lowerre, Johnson, Hess and Frederick; Environmental Defense Fund; U. S. Environmental Protection Agency; Wells, Peyton, Beard, Greenberg, Hunt and Crawford, L.L.P.; The Benton Company; Boyt Properties; Ekistics Corporation, Environmental Impact Assessment and Socioeconomic Analysis; Lone Star Chapter Sierra Club; R. C. Deal & Associates; Port of Houston; League of Women Voters of Texas; League of Women Voters of Houston; Groves Brothers Machinery, Inc.; Corpus Christi Caller-Times; Mabry, Herbeck & Chilton, P.C.; United States Department of the Interior, Fish and Wildlife Service, Division of Ecological Services; Lower Laguna Madre Foundation; County of Jefferson; United States Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, Southeast Regional Office; Fort Bend Medical Clinic; Entrix, Inc.; Galveston Bay Conservation and Preservation Association; County of Jim Wells; The Shaddock Companies; Galveston Bay Foundation; Department of Planning & Transportation; Coastal Bend, Sierra Club; East Matagorda Bay Foundation; Greater Corpus Christi Business Alliance Chamber of Commerce; Whittington & Ewing Design Associates; Scenic Galveston; Houston Audubon Society; Audubon Council of Texas; Frontera Audubon Society; and Sea Pals'. The following organizations made specific written comments but did not express general support for or opposition to the proposed CMP rules: Liberty County; Port of Houston Authority; U. S. Department of Agriculture, Natural Resources Conservation Services; Houston-Galveston Area Council; Browning-Ferris Industries; Texas Historical Commission; Texas Water Development Board; Houston Lighting and Power; Texas Chemical Council; Texas Beach Advocate; Texas Water Conservation Association; UTMB-Galveston Department of OB/GYN; and the Department of the Navy, Naval Station Ingleside. The following organizations expressed general support for House Bill 3226 and an approvable CMP: South East Texas Regional Planning Commission; County of Hidalgo; Benckenstein & Oxford, L.L.P.; and Burrus Lumber Company. In addition to the many comments received during the comment period, some comments were received after the expiration of the comment period. While these comments have not been, for the most part, responded to individually as were comments received earlier, concerns expressed in those comments have been addressed in responses to many earlier comments. The council staff gratefully acknowledges the involvement of so many individuals, businesses, trade association, non-government organizations and public officials whose thoughtful comments we have read. Chapters 501, 503, 504, 505, and 506 have been revised and improved in light of these comments, reflecting as they do a broad spectrum of economic, ecological, and other concerns held by Texans throughout the state. The amendments are adopted under the Texas Natural Resources Code, sec.33. 204(a), as amended by House Bill 3226, 74th Legislature, 1995, which provides the council with the authority to promulgate rules adopting the CMP goals and policies and pursuant to the Texas APA, Subchapter A, sec.2001.004, which requires the council to adopt rules of practice setting forth the nature and requirements of all formal and informal procedures. Subchapter A. Purpose and Policy and State Agency Actions Subject to the Coastal Management Program. 31 TAC sec.505.10, sec.505.11 sec.505.10. Purpose and Policy. (a) The purpose of this chapter is to ensure that state actions, subdivision actions and general plans subject to the Texas Coastal Management Program (CMP) are consistent with the CMP goals and policies. The Coastal Coordination Council (council) intends to use the consistency process to: (1) adequately identify, address, and resolve consistency issues to the maximum extent practicable prior to final agency action; (2) minimize the number of actions referred to the council for review or study by ensuring adequate review at the agency level and by referring to the council only those actions that present unique or significant consistency issues; (3) avoid the creation of an additional layer of bureaucracy; (4) avoid subjecting to regulation actions not currently subject to regulation; and (5) provide procedural safeguards to ensure proper notice, opportunity for hearing, and fairness in decision-making. (b) Accordingly, it is the intent of the council that consistency be achieved primarily through individual agency rules that will reflect the CMP goals and policies. sec.505.11. Actions and Rules Subject to the Coastal Management Program. (a) For purposes of this chapter and Chapter 501 of this title (relating to Coastal Management Program), the following is an exclusive list of proposed individual agency actions that may adversely affect a coastal natural resource area (CNRA) and that therefore must be consistent with the CMP goals and policies: (1) for the land office, the School Land Board, or a board for lease of state- owned lands when issuing or approving: (A) a mineral lease plan of operations; (B) a geophysical or geochemical permit; (C) a miscellaneous easement; (D) a surface lease; (E) a structure registration; (F) a coastal easement; (G) a coastal lease; (H) a cabin permit; (I) a navigation district lease; (J) certification of a subdivision beach access or dune protection plan; or (K) an agency or subdivision wetlands mitigation bank. (2) for the Public Utility Commission of Texas (PUC) when issuing a certificate of convenience and necessity. (3) for the Railroad Commission of Texas (RRC) when issuing: (A) a wastewater discharge permit; (B) a waste disposal or storage pit permit; or (C) a certification of a federal permit for the discharge of dredge or fill material. (4) for the Texas Transportation Commission when approving: (A) an acquisition of a site for the placement or disposal of dredge material from, or the expansion, relocation, or alteration of, the Gulf Intracoastal Waterway; or (B) an environmental document for a transportation construction project or maintenance program. (5) for the Texas Historical Commission (THC) when issuing: (A) a permit for destruction, alteration, or taking of a coastal historic area; or (B) a review of a federal undertaking affecting a coastal historic area. (6) for the Texas Natural Resource Conservation Commission (TNRCC) when issuing or approving: (A) a wastewater discharge permit; (B) a permit for a new concentrated animal feeding operation located one mile or less from a critical area or coastal waters; (C) a permit for solid or hazardous waste treatment, storage, or disposal; (D) creation of a special purpose district or approval of bonds to construct infrastructure on coastal barriers; (E) levee improvement or flood control projects; (F) a certification of a federal permit for the discharge of dredge or fill material; (G) a declaration of an emergency and request for an emergency release of water; (H) a new permit for an annual appropriation of: (i) 5,000 or more acre-feet of water within the program boundary; or (ii) 10,000 or more acre-feet of water outside the program boundary but within 200 stream miles of the coast; (I) an amendment to a water permit for an increase in the annual appropriation of: (i) 5,000 or more acre-feet of water within the program boundary; or (ii) 10,000 or more acre-feet of water outside the program boundary but within 200 stream miles of the coast; (J) a change in the purpose of use of an annual appropriation of water to a more consumptive use of: (i) 5,000 or more acre-feet of water within the program boundary; or (ii) 10,000 or more acre-feet of water outside the program boundary but within 200 stream miles of the coast. (K) The council may not review an action of the TNRCC described by subparagraphs (H)-(J) of this paragraph taken to implement a part of the Trans- Texas Water Program that the Trans-Texas Water Program Policy Management Committee has found to be consistent with the CMP goals and policies. To find that the program is consistent with the CMP goals and policies, the Trans-Texas Water Program Policy Committee must: (i) include at least three members of the council, or representatives of those members, as voting members of the committee; and (ii) make the finding by a majority vote of those members or their representatives. (7) for the Texas Parks and Wildlife Department (TPWD) when issuing or approving: (A) an oyster lease; (B) a permit for taking, transporting, or possessing threatened or endangered species; (C) a permit for disturbing marl, sand, shell, or gravel on state-owned land; or (D) development by a person other than the TPWD that requires the use or taking of any public land in a state park, wildlife management area or preserve. (b) For purposes of this chapter and chapter 501 of this title (relating to the Coastal Management Program), the following is an exclusive list of proposed agency rulemaking actions that must be consistent with the CMP goals and policies: (1) a land office rule governing the prevention of, response to, or remediation of a coastal oil spill; (2) TNRCC rules governing air pollutant emissions, on-site sewage disposal systems, or underground storage tanks; (3) a State Soil and Water Conservation Board rule governing agricultural or silvicultural nonpoint source pollution; (4) any rule governing an individual action described in subsection (a) of this section, including thresholds for referral. (c) An agency's promulgation of rules governing or authorizing actions listed in subsection (a) or (b) of this section constitutes an action subject to the CMP as provided in Subchapter B of this chapter (relating to Council Certification of State Agency Rules and Approval of Thresholds for Referral). (d) An action to renew, amend, or modify an existing permit, certificate, lease, easement, approval or other action is not an action under this section if the action is taken pursuant to rules that the council has certified as consistent under Subchapter B of this title (relating to Council Certification of State Agency Rules and Approval of Thresholds for Referral) and: (1) for a wastewater discharge permit, if the action is not a major permit modification that would increase pollutant loads to coastal waters or would result in relocation of an outfall to a critical area; (2) for solid and hazardous waste permits, if the action is not a Class III modification as defined in TNRCC rules; or (3) for any other action, if the action only extends the time period of the existing authorization without authorizing new or additional work or activities or is not directly relevant to the CMP goals and policies. (e) Whenever more than one state agency is involved in issuing a consistency determination for a single project, consideration should be given to the preparation of one consistency determination for all state agencies involved. (1) Where multiple state consistency determinations are required, state agencies should consider coordinated preparation of the consistency determinations or designation of a lead agency for development of a single consistency determination. In the case where a single consistency determination will be prepared, such determination must be completed before final action is taken on any permit or authorization listed in subsection (a) of this section and required for the project. The single consistency determination must indicate whether each of the proposed actions listed in subsection (a) of this section and required for the project is consistent with the CMP goals and policies and must include information on each proposed action sufficient to support the consistency determination. (2) An applicant, project sponsor, or other entity undertaking a project which requires more than one action listed in subsection (a) of this section may request in writing from the council either coordinated preparation of the consistency determinations or designation of a lead agency for development of a single consistency determination. (3) To avoid duplication and time delays, it is the intent of the council, whenever possible, to provide for coordinated consistency determinations where multiple determinations are required. The council may direct the Permitting Assistance Group (as identified in sec.505.31(c) of this title (relating to Preliminary Review of Proposed Agency Actions by the Coastal Coordination Council)) to respond to the request and facilitate coordinated consistency determinations or preparation of a single determination by a lead agency, under guidance issued by the council. (4) The council may not protest a proposed action by an agency or subdivision pertaining to an application filed with that agency or subdivision prior to the effective date of Subchapter C of this title (relating to Consistency and Council Review of Proposed State Agency Actions). (5) The council shall not review actions listed in this subsection if such actions are taken pursuant to an enforcement order issued prior to the effective date of Subchapter C of this title (relating to Consistency and Council Review of Proposed State Agency Actions). 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 authority. Issued in Austin, Texas, on October 13, 1995. TRD-9513142 Garry Mauro Chairman Coastal Coordination Council Effective date: November 3, 1995 Proposal publication date: July 18, 1995 For further information, please call: (512) 305-9129 Subchapter B. Council Review and Certification of Agency Rules 31 TAC sec.sec.505.20-505.22, 505.26 The amendments are adopted under the Texas Natural Resources Code, sec.33. 204(a), as amended by House Bill 3226, 74th Legislature, 1995, which provides the council with the authority to promulgate rules adopting the CMP goals and policies and pursuant to the Texas APA, Subchapter A, sec.2001.004, which requires the council to adopt rules of practice setting forth the nature and requirements of all formal and informal procedures. sec.505.20. Council Review and Certification of Existing Agency Rules. (a) An agency may seek council certification of any rule governing or authorizing actions listed in sec.505.11(a) of this title (relating to Actions and Rules Subject to the Coastal Management Program) that was proposed prior to the effective date of this section by filing a Request for Certification with the council secretary. The request shall include a copy of the rule for which the agency seeks council certification and a reasoned statement supporting the agency's determination that the rule is consistent with the CMP goals and policies. (b) The council secretary shall distribute copies of the Request for Certification, including all supporting information, to all council members and shall place the matter on the agenda of the earliest council meeting at which consideration is practicable. Prior to the council meeting, the secretary shall publish in the Texas Register a notice of availability and request public comment on the Request for Certification. (c) The council shall make a determination as to whether the rule should be certified as consistent with the CMP goals and policies on or before the 120th day after the secretary received the Request for Certification. (d) If the council finds that the rule incorporates or otherwise requires the agency to comply with all applicable goals and policies of the program, the council shall issue a written certification of the rule. (e) If the council finds that the rule does not incorporate or otherwise require the agency to comply with all applicable goals and policies of the program, the council shall issue a written statement denying certification of the rule, explaining the basis for such denial, and recommending rule amendments necessary to obtain certification. sec.505.21. Effect of Council Certification of Agency Rules and Rule Amendments. Upon the council's certification of an agency's rules pursuant to sec.505.20 of this title (relating to Council Review and Certification of Existing Agency Rules) or sec.505.23 of this title (relating to Certification of Proposed New Rules and Rule Amendments), the agency's rules are incorporated into the CMP goals and policies, and any threshold for referral approved pursuant to sec.505.26 of this title (relating to Council Review and Approval of Thresholds for Referral) relating to actions under those rules shall become operative and limit the council's authority to review individual actions of the agency, as provided in sec.505.32 of this title (relating to Requirements for Referral of a Proposed Agency Action). After an agency's rules are certified and an agency's thresholds are approved, the agency's consistency determination for an action is final and is not subject to referral and review, except as provided by sec.505.32 of this title (relating to Requirements for Referral of a Proposed Agency Action). sec.505.22. Consistency Required for New Rules and Rule Amendments Subject to the Coastal Management Program. (a) When proposing to adopt or amend a rule listed in 505.11(b) after the effective date of this section, an agency shall include in the preamble to the proposed rule as published in the Texas Register the following: (1) A statement that the proposed rule or rule amendment is subject to the Coastal Management Program and must be consistent with all applicable CMP policies; (2) a reasoned justification explaining the basis upon which the agency concluded the proposed rule is consistent with each applicable CMP policy; and (3) a request for public comment on the consistency of the proposed rule or rule amendment. (b) Simultaneously with the filing of a proposed rule or rule amendment with the Texas Register , the agency shall submit a copy of the proposed rule or rule amendment to the council secretary who shall distribute it to all council members. (c) During the comment period provided by the agency, council members should comment on the consistency of the proposed rule or rule amendment. As provided in the Administrative Procedure Act, the agency shall consider and respond to the comments of the public and the council on the consistency of the proposed rule or rule amendment. (d) In addition to pre-certification review pursuant to sec.505.24 of this title (relating to Pre-Certification Review of Draft Rule or Rule Amendments), an agency may seek clarification or resolution of consistency issues regarding the proposed rule or rule amendment by placing the matter on the agenda of the council or executive committee. (e) Upon adoption of the rule or rule amendment, an agency shall affirm that it has taken into account the goals and policies of the CMP by issuing a reasoned determination that the rule or rule amendment is consistent with the CMP goals and policies. sec.505.26. Approval of Thresholds for Referral. As applicable, the provisions of or sec.505.20 of this title (relating to Council Review and Certification of Existing Agency Rules) or sec.505.23 of this title (relating to Council Certification of Rule and Rule Amendments) shall be applied in requesting and responding to a request for approval of thresholds. Notwithstanding any other provision of this section to the contrary, when applying sec.505.20 or sec.505.23 to thresholds, the term "threshold" or "thresholds" shall be substituted for the term "rule" or "rules" and the term "approval" shall be substituted for the term "certified" or "certification." Thresholds for referral shall be set a level consistent with the standard in sec.501.13(b) of this title (relating to Administrative Policies). 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 authority. Issued in Austin, Texas, on October 13, 1995. TRD-9513145 Garry Mauro Chairman Coastal Coordination Council Effective date: November 3, 1995 Proposal publication date: July 18, 1995 For further information, please call: (512) 305-9129 Subchapter C. Consistency and Council Review of Proposed State Agency Actions 31 TAC sec.sec.505.30-505.39, 505.42 The amendments are adopted under the Texas Natural Resources Code, sec.33. 204(a), as amended by House Bill 3226, 74th Legislature, 1995, which provides the council with the authority to promulgate rules adopting the CMP goals and policies and pursuant to the Texas APA, Subchapter A, sec.2001.004, which requires the council to adopt rules of practice setting forth the nature and requirements of all formal and informal procedures. sec.505.30. Agency Consistency Determination. (a) An agency, when proposing an action listed in sec.505.11(a) of this title (relating to Actions and Rules Subject to the Coastal Management Program) that may adversely affect a coastal natural resource area, shall comply with the CMP goals and policies. (b) An agency subject to subsection (a) of this section shall affirm that it has taken into account the CMP goals and policies by issuing a written determination that a proposed action is consistent with the program goals and policies or will not have any direct and significant impacts on applicable CNRAs. For purposes of these determinations, "direct" refers to impacts that are causally linked to an activity; "significant" refers to appreciable impacts on CNRAs. The agency shall include in its written determination one of the following statements: (1) Consistency Determination. The (State Agency Name) has reviewed this proposed action for consistency with the Texas Coastal Management Program (CMP) goals and policies in accordance with the regulations of the Coastal Coordination Council, and has determined that the proposed action is consistent with the applicable CMP goals and policies. (2) Determination of No Direct and Significant Adverse Effect. The (State Agency Name) has reviewed this proposed action for consistency with the CMP goals and policies in accordance with the regulations of the Coastal Coordination Council, and has determined that the proposed action will not have a direct and significant adverse effect on the coastal natural resource areas (CNRAs) identified in the applicable policies. (c) For actions that exceed the thresholds for referral, the agency shall provide a written explanation supporting the determination made under subsection (b) of this section. The explanation shall describe the basis for the agency's determination, include a description of the proposed action and its probable impacts on CNRAs, identify the CMP goals and policies applied to the proposed action, and explain how the proposed action is consistent with the applicable goals and policies or why the proposed action does not adversely affect any CNRAs. (d) When publishing notice of receipt of an application or request for agency proposed action, the agency shall include a statement that the application or requested action is subject to the CMP and must be consistent with the CMP goals and policies. The agency shall include the council secretary on any public notice list maintained by the agency for proposed actions subject to the CMP. Upon proposal of an action listed on sec.505.11(a) of this title (relating to Actions and Rules Subject to the Coastal Management Program), the agency shall provide to the council secretary a one-page notice that an action subject to the CMP has been proposed. (e) Agencies shall maintain a record of all proposed actions that are subject to the CMP and provide such record to the council on a quarterly basis. sec.505.31. Preliminary Review of Proposed Agency Actions by the Coastal Coordination Council. (a) An agency, subdivision, or applicant for a permit may request and receive a preliminary consistency review of any action listed in sec.505.11(a) of this title (relating to Actions and Rules Subject to the Coastal Management Program) or sec.505.60 of this title (relating to Subdivision Actions Subject to the Coastal Management Program) prior to the agency's proposed action. (b) A request for preliminary consistency review or a request for permitting assistance pursuant to subsection (d) of this section, shall be submitted in writing to the council secretary, the chair of the Permitting Assistance Group (as identified in subsection (c) of this section), and the agency, subdivision, or applicant, as appropriate. Upon receipt of either type of request, the council secretary shall publish in the Texas Register notice of the request including a brief explanation of the matter and the consistency issues presented, if any, and request public comment on the consistency of the matter. Public comments shall be accepted for 30 days and be directed to the secretary who shall, upon close of the comment period, immediately distribute them to all members of the Permitting Assistance Group. A request for preliminary consistency review should identify all other local, state, and federal permits or authorizations subject to the program associated with the application. (c) The council shall create a Permitting Assistance Group. The Permitting Assistance Group shall be composed of representatives of council member agencies and other interested council members. (1) The Permitting Assistance Group shall be convened as directed by the council or as necessary to respond to a request for preliminary consistency review. (2) After considering the public comments received and within 45 days of receipt of a request for preliminary consistency review, the Permitting Assistance Group shall require that the following written information be produced: (A) a statement from each agency or subdivision required to permit or approve the project as to whether the agency or subdivision anticipates approving or denying the application; (B) if an agency or subdivision intends to deny an application, the agency's or subdivision's explanation of the grounds for denial and recommendations for resolving the grounds in a way that would allow the application to be approved; (C) if enough information is already available, a preliminary finding as to whether the project is likely to be found consistent with the CMP goals and policies; and (D) if the project is likely to be found inconsistent with the CMP goals and policies, an explanation and recommendation for resolving the inconsistency in a way that would allow the project to be found consistent. (d) An individual or small business may request and receive assistance with filing applications for permits or other proposed actions described by sec.505.11(a) of this title (relating to Actions and Rules Subject to the Coastal Management Program). The Permitting Assistance Group shall coordinate preapplication assistance and shall provide to an individual or a small business, on request: (1) a list of the permits or other approvals necessary for the project; (2) a simple, understandable statement of all permit requirements; (3) a coordinated schedule for each agency's or subdivision's decision on the action; (4) a list of all the information the agencies or subdivisions need to declare an application for a permit or other approval administratively complete; (5) assistance in completing the applications as needed; and (6) if enough information is already available, and after considering all public comments, a preliminary finding as to whether the project is likely to be found consistent with the CMP goals and policies. (e) If an agency, subdivision, or applicant has received a preliminary finding of consistency under subsection (c)(2)(C) or (d)(6) of this section and a request for referral was filed on that action alleging a significant unresolved dispute regarding the proposed action's consistency, the council may accept the request for referral only if the agency or subdivision has substantially changed the permit or proposed action since the preliminary finding was issued. sec.505.32. Requirements for Referral of a Proposed Agency Action. (a) A proposed action of an agency listed in sec.505.11(a) of this title (relating to Actions and Rules Subject to the Coastal Management Program) may be referred to the council for review to determine consistency with the CMP goals and policies only if: (1) the agency has proposed the action for which referral is sought; (2) the consistency determination for the proposed action was contested by: (A) a council member or an agency that was a party in a formal hearing under Government Code, Chapter 2001, or in an alternative dispute resolution process; or (B) a council member or other person by the filing of written comments with the agency before the action was proposed if the proposed action is one for which a formal hearing under Government Code, Chapter 2001, is not available; (3) a person described by subsection (a)(2) of this section files a request for referral within ten days of the date the action is proposed alleging a significant unresolved dispute regarding the proposed action's consistency with the CMP goals and policies; and (4) any three council members agree within 13 days of the date the action is proposed that there is a significant unresolved dispute regarding the proposed action's consistency with the CMP goals and policies and the matter is placed on the agenda for a council meeting. (b) If consistency review thresholds are in effect under sec.505.26 of this title (relating to Council Review and Approval of Thresholds for Referral) , the council may not review a proposed action for consistency with the CMP goals and policies unless the requirements of subsection (a) of this section are satisfied and: (1) if the proposed action is one for which a formal hearing under Government Code, Title 10, Subtitle A, Chapter 2001, is available: (A) the action exceeds the applicable thresholds and the agency's consistency determination was contested in a formal hearing or an alternative dispute resolution process; or (B) the action does not exceed the applicable thresholds but may directly and adversely affect a critical area, critical dune area, coastal park, wildlife management area or preserve, or Gulf beach and a state agency contested the agency's consistency determination in a formal hearing; or (2) if the proposed action is one for which a formal hearing under Government Code, Chapter 2001, is not available to contest the agency's determination, the action exceeds the applicable thresholds. (c) For purposes of this subchapter, an action subject to the contested case provisions of Government Code, Chapter 2001, is proposed when a notice of a decision or order is issued under Government Code, sec.2001.142. (d) The council must consider and act on a matter referred under this section before the 26th day after the date the agency or subdivision proposed the action. sec.505.33. Filing of Request for Referral. To seek council review of a proposed action under sec.505.32 of this title (relating to Requirements for Referral of a Proposed Agency Action), a person described in sec.505.32(a)(2) of this title (relating Requirements for Referral of a Proposed Agency Action) may file a Request for Referral of an agency action listed in sec.505.11 (a) of this title (relating to Actions and Rules Subject to the Coastal Management Program) with the council secretary. The request must be filed no later than ten days after the agency has proposed the action for which consistency review is sought. The Request for Referral shall include: (1) the names, addresses, and signatures of all persons joining in the request; (2) a certificate of service indicating that copies of the request have been provided by hand delivery or certified mail to: (A) the agency proposing the action for which review is sought; (B) the applicant, if any, before the agency; and (C) if the proposed action was the subject of a formal hearing under Government Code, Chapter 2001, all persons who were named as parties to the proceeding or their representatives; (3) a description of the proposed action for which review is sought indicating the date of the agency's proposed action and a copy of the proposed order, permit, or other official agency decision document; (4) a statement demonstrating, by reference to the requirements of sec.505.32 of this title (relating to Requirements for Referral of a Proposed Agency Action), that the proposed action is subject to referral; and (5) a clear and concise statement of the significant unresolved dispute regarding the proposed action's consistency with the CMP goals and policies, including specific reference to the applicable goals and policies and to the applicable facts in the agency's decision record. sec.505.35. Council Procedures for Review of a Proposed Agency Action. (a) The council secretary shall, by certified mail or hand delivery, provide notice of the hearing at which the council will review a proposed action to: (1) the agency proposing the action under review; (2) the applicant, if any, before the agency; (3) the person(s) filing the Request for Referral; (4) if the action was the subject of a formal hearing under Government Code, Chapter 2001, before the agency, all persons who were named as parties to the proceeding or their representatives; and (5) the governor, for the purpose of designating a local elected official to the council pursuant to the Texas Natural Resources Code, sec.33. 204(d). (b) The notice to the applicant and the agency shall include a statement that no person may conduct activities authorized by the proposed agency action that would irreparably alter or damage the CNRA identified in the applicable policy. (c) In conducting reviews, the council shall consider only: (1) the record before the agency proposing the action under review; (2) the agency's findings; (3) applicable laws and rules; (4) any additional information provided by that agency; and (5) the oral or written testimony of any person regarding the CMP as the testimony relates to the agency's proposed action under review. (d) If the agency did not hold a hearing, make a record, or make findings, the council may hold a hearing and make findings necessary for a complete and thorough review. (e) The council must consider and act on a matter referred before the 26th day after the date the agency proposed the action. sec.505.36. Standard of Council Review of a Proposed Agency Action. (a) The only basis on which the council may protest a proposed agency action is that the proposed action is inconsistent with the CMP goals and policies. (b) Following certification of an agency's rules as consistent with the CMP goals and policies pursuant to Subchapter B of this chapter: (1) the council shall presume that the agency's consistency determination is valid if it is supported by the agency's findings of fact and conclusions of law; (2) the burden shall be on the person filing the request for referral to demonstrate that the agency's proposed action is inconsistent with the CMP goals and policies; and (3) any thresholds for referral approved pursuant to sec.505.26 of this title (relating to Council Review and Approval of Thresholds for Referral) shall become operative and limit the council's authority to review individual proposed actions of an agency as provided in sec.505.32 of this title (relating to Requirements for Referral of a Proposed Agency Action). sec.505.37. Activities Pending Council Review of a Proposed Agency Action. Pending council review of an individual agency proposed action, no person may conduct activities authorized by the agency action that would irreparably alter or damage the CNRA identified in the applicable policy, except as otherwise provided by the Texas Administrative Procedure Act, sec.2001.054. sec.505.38. Council Action on Review of a Proposed Agency Action. (a) The council may affirm or protest an agency's proposed action. A proposed action is consistent with the CMP goals and policies and approved by the council unless the council determines the proposed action to be inconsistent with the CMP and protests the proposed action. If the council protests the proposed action, the council shall report its findings in writing to the agency or subdivision. The report shall: (1) specify how the proposed action is inconsistent with the CMP goals and policies; and (2) include specific recommendations of the council regarding how the proposed action may be modified or amended to make it consistent with the CMP goals and policies. (b) The council may recommend that an agency undertake only such actions as are within the authority of the agency. A goal or policy may not require an agency to perform an action that would exceed the constitutional or statutory authority of the agency to which the goal or policy applies. (c) To protest an agency's consistency determination requires an affirmative vote of at least two-thirds of all council members. sec.505.39. Agency Action After Council Protest. (a) After the council has protested a proposed action and reported its findings to the agency, the agency shall review the findings and recommendations and determine whether to modify or amend the proposed action to make it consistent with the CMP goals and policies. The agency shall notify the council secretary of its decision within 20 days of the date the agency receives the council's written protest. The secretary shall provide a copy of the notification to each council member by hand-delivery, facsimile, or overnight mail. (b) Any three regular members of the council may call a special meeting to consider requesting the attorney general to issue an opinion on the consistency of the proposed action with the CMP goals and policies. A council member's request for a special meeting shall be submitted in writing to the council secretary within ten days of the date the agency notifies the council of its decision. A special meeting to consider whether to request an opinion from the attorney general shall be held within 20 days of the date the third request for a special meeting was received by the Council secretary. (c) If the council finds that the agency did not amend or modify the proposed action either to conform substantially with the council's recommendations or to achieve the same results as the council's recommendations, the council shall refer the matter to the attorney general for a legal opinion on consistency of the proposed action with the CMP goals and policies. The agency is stayed from taking the proposed action until the attorney general issues the opinion. The attorney general shall issue an opinion before the 26th day after the date the council requests the opinion. The attorney general shall base the opinion on the record before the agency and the council. In determining whether the proposed action is inconsistent, the attorney general shall consider the council's findings and recommendations and the agency's response to the recommendations. sec.505.42. Enforcement. (a) The agency or subdivision with jurisdiction over a proposed action shall enforce provisions of the CMP. (b) If the attorney general issues an opinion under sec.505.39 of this title (relating to Agency Action After Council Protest) that a proposed agency or subdivision action is inconsistent with the CMP the attorney general shall file suit in a district court of Travis County unless otherwise directed by the council. (c) Notwithstanding the request for an opinion or the filing of a suit, the council, the agency and if a suit is filed, the attorney general, may enter into a settlement agreement with regard to the proposed action. 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 authority. Issued in Austin, Texas, on October 13, 1995. TRD-9513146 Garry Mauro Chairman Coastal Coordination Council Effective date: November 3, 1995 Proposal publication date: July 18, 1995 For further information, please call: (512) 305-9129 Subchapter D. Council Advisory Opinions on General Plans 31 TAC sec.505.51, sec.505.52 The amendments are adopted under the Texas Natural Resources Code, sec.33. 204(a), as amended by House Bill 3226, 74th Legislature, 1995, which provides the council with the authority to promulgate rules adopting the CMP goals and policies and pursuant to the Texas APA, Subchapter A, sec.2001.004, which requires the council to adopt rules of practice setting forth the nature and requirements of all formal and informal procedures. sec.505.51. Request for a Non-Binding Advisory Opinion and Council Action. (a) An agency or subdivision which has produced a general plan described or listed in sec.505.50 of this title (relating to General Plans) may request a non-binding advisory opinion on the consistency of its general plan. (b) The request for an advisory opinion shall be submitted in writing to the council secretary. The council secretary shall forward copies of the request to all council members. The council shall consider the general plan at the first reasonable opportunity. (c) Prior to council issuance of an advisory opinion, the chair of the council may direct the executive committee to review the general plan and make a recommendation to the council regarding the consistency of the plan. (d) The council shall issue the advisory opinion within 90 days of receiving the request from the agency or subdivision. (e) The advisory opinion shall indicate whether actions taken pursuant to the plan are likely to be consistent or inconsistent with the Texas Coastal Management Program (CMP) goals and policies. The advisory opinion shall also: (1) identify all goals and policies that apply to the general plan; (2) identify any consistency issues of concern to the council; (3) identify portions or provisions of the plan that are likely to lead to future inconsistent actions; and (4) include recommendations for the resolution of consistency issues identified in paragraphs (2) and (3) of this subsection. sec.505.52. Request for Council Participation in the Development of General Plans. (a) An agency or subdivision which is producing a general plan described or listed in sec.505.50 of this title (relating to General Plans) may request council participation in the development of a plan by submitting a written request to the council secretary. The council shall participate in the plan development according to the schedule of the agency developing the plan. (b) The council may direct the executive committee, or a subcommittee of the group, to participate in the development of the plan and make regular reports to the council. (c) At the request of an agency or subdivision which is producing a general plan described or listed in sec.505.50 of this title (relating to General Plans), the council may enter into a memorandum of agreement establishing the manner of council participation in plan development, the criteria to be used in evaluating the plan, criteria to determine the adequacy of alternatives for resolving potential inconsistencies in the plan with the CMP goals and policies, and such other matters as are deemed appropriate by the parties to the agreement. 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 authority. Issued in Austin, Texas, on October 13, 1995. TRD-9513144 Garry Mauro Chairman Coastal Coordination Council Effective date: November 3, 1995 Proposal publication date: July 18, 1995 For further information, please call: (512) 305-9129 Subchapter E. Consistency and Council Review of Local Government Actions 31 TAC sec.sec.505.60, 505.62-505.71, 505.74 The amendments are adopted under the Texas Natural Resources Code, sec.33. 204(a), as amended by House Bill 3226, 74th Legislature, 1995, which provides the council with the authority to promulgate rules adopting the CMP goals and policies and pursuant to the Texas APA, Subchapter A, sec.2001.004, which requires the council to adopt rules of practice setting forth the nature and requirements of all formal and informal procedures. sec.505.60. Subdivision Actions Subject to the Coastal Management Program. For purposes of this chapter and Chapter 501 of this title (relating to Coastal Management Program), issuance of a dune protection permit or beachfront construction certificate are the only proposed actions by a subdivision that may adversely affect a coastal natural resource area and that therefore must be consistent with the CMP goals and policies provided such actions authorize: (1) construction activity that is located 200 feet or less landward of the line of vegetation and that results in the disturbance of more than 7,000 square feet of dunes or dune vegetation; (2) construction activity that results in the disturbance of more than 7,500 cubic yards of dunes; (3) a coastal shore protection project undertaken on a Gulf beach or 200 feet or less landward of the line of vegetation and that affects more than 500 linear feet of Gulf beach; or (4) a closure, relocation, or reduction in existing public beach access or public beach access designated in an approved local government beach access plan, other than for a short term. sec.505.63. Preliminary Review of a Subdivision Action by the Coastal Coordination Council. (a) Prior to taking final action, a subdivision may request preliminary consistency review for any proposed action listed in sec.505.60 of this title (relating to Subdivision Actions Subject to the Coastal Management Program). (b) A request for preliminary consistency review shall be submitted in writing to the council secretary, the chair of the Permitting Assistance Group (as identified in sec.505.31(c) of this title (relating to Preliminary Review of Proposed Agency Actions by the Coastal Coordination Council), and the applicant. Upon receipt of such request, the council secretary shall publish in the Texas Register notice of the request including a brief explanation of the matter and the consistency issues presented, if any, and request public comment on the consistency of the matter. Public comments shall be accepted for 30 days and be directed to the secretary who shall, upon close of the comment period, immediately distribute them to all members of the Permitting Assistance Group. (c) The Permitting Assistance Group shall convene and, after considering the public comment received, respond to a request for preliminary consistency review in accordance with the pertinent provisions of sec.505.31 of this title (relating to Preliminary Review of Proposed Agency Actions by the Coastal Coordination Council). sec.505.64. Requirements for Referral of Subdivision Actions. A proposed subdivision action listed in sec.505.60 of this title (relating to Subdivision Actions Subject to the Coastal Management Program) may be referred to the council for review to determine consistency with the CMP goals and policies only when: (1) the subdivision proposed the action for which referral is sought; (2) the consistency determination for the proposed action was contested by a council member or other person by the filing of written comments with the subdivision; (3) a person described in paragraph (2) of this section files a request for referral within ten days of the date the action was proposed alleging a significant unresolved dispute regarding the proposed action's consistency with the CMP goals and policies; and (4) any three council members agree within 13 days of the date the action was proposed that there is a significant unresolved dispute regarding the proposed action's consistency with the CMP goals and policies and the matter is placed on the agenda for a council meeting. sec.505.65. Filing of Request for Referral. (a) To seek council review of an action identified in sec.505.60 of this title (relating to Subdivision Actions Subject to the Coastal Management Program), a council member or other person must contest the consistency determination for the proposed action in accordance with sec.505.32 of this title (relating to Requirements for Referral of a Proposed Agency Action). (b) The Request for Referral shall: (1) contain the names, addresses, and signatures of all persons joining in the request; (2) contain a certificate of service indicating that requestor has provided copies of the request by personal delivery or certified service to: (A) the subdivision proposing the action for which review is sought; and (B) the applicant, if other than the subdivision; (3) describe the proposed action for which review is sought, indicate the date of the proposed subdivision action, and include a copy of the order, permit, or other official subdivision proposal; (4) demonstrate, by reference to the requirements of sec.505.64 of this title (relating to Requirements for Referral of Subdivision Actions), that the action is one subject to referral; (5) include a clear and concise statement of the claimed inconsistencies with the CMP goals and policies, including specific reference to the applicable goals and policies and to the applicable facts in the subdivision's proposal; or (6) include a clear and concise statement of the significant unresolved dispute regarding the proposed action's consistency with the CMP goals and policies. (c) The Request for Referral must be filed with the council secretary no later than ten days after the subdivision has proposed the action for which referral is sought. sec.505.68. Standard of Council Review for Subdivision Actions. (a) The only basis on which the council may protest a proposed subdivision action is that the proposed action is inconsistent with the CMP goals and policies. (b) Following the land office's certification of a subdivision's dune protection and beach access plan under sec.15.3(o) of this title (relating to Administration) as consistent with the CMP goals and policies: (1) the subdivision's consistency determination is final and is not subject to referral and review, except as provided in sec.505.64 of this title (relating to Requirements for Referral of Subdivision Actions); and (2) the council shall presume that the subdivision's consistency determination is valid, if such determination is documented by the underlying record, and the burden shall be on the person filing the Request for Referral to demonstrate that the subdivision's proposed action is inconsistent with the CMP goals and policies. sec.505.71. Subdivision Action After Council Protest. (a) After the council has protested a proposed subdivision action and reported its findings to the subdivision, the subdivision shall review the findings and recommendations and determine whether to modify or amend the proposed action to make it consistent with the CMP goals and policies. The subdivision shall notify the council secretary of its decision within 20 days of the date the subdivision receives the council's written protest. The secretary shall provide a copy of the notification to each council member by hand-delivery, facsimile, or overnight mail. (b) Any three regular members of the council may call a special meeting to consider requesting the attorney general to issue an opinion on the consistency of the proposed action with the CMP goals and policies. A council member's request for a special meeting shall be submitted in writing to the council secretary within ten days of the date the subdivision notifies the council of its decision. A special meeting to consider whether to request an opinion from the attorney general shall be held within 20 days of the date the third request for a special meeting was received by the council secretary. (c) If the council finds that the subdivision did not amend or modify the proposed action either to conform substantially with the council's recommendations or to achieve the same results as the council's recommendations, the council shall refer the matter to the attorney general for a legal opinion on consistency of the proposed action with the CMP goals and policies. (d) The subdivision is stayed from taking the proposed action until the attorney general issues the opinion. The attorney general shall issue an opinion before the 26th day after the date the council requests the opinion. The attorney general shall base the opinion on the record before the subdivision and the council. In determining whether the proposed action is inconsistent, the attorney general shall consider the council's findings and recommendations and the subdivision's response to the recommendations. sec.505.74. Enforcement. (a) The agency or subdivision with jurisdiction over a proposed action shall enforce the CMP provisions. (b) If the attorney general issues an opinion pursuant to sec.505.71 of this title (relating to Subdivision Action After Council Protest) finding that a proposed subdivision action is inconsistent with the CMP and the agency or subdivision fails to implement the council's recommendation, the attorney general shall file suit in a district court of Travis County unless otherwise directed by the council. (c) Notwithstanding the request for an opinion or the filing of a suit, the council, the subdivision and, if a suit is filed, the attorney general, may enter into a settlement agreement with regard to the proposed action. 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 authority. Issued in Austin, Texas, on October 13, 1995. TRD-9513143 Garry Mauro Chairman Coastal Coordination Council Effective date: November 3, 1995 Proposal publication date: July 18, 1995 For further information, please call: (512) 305-9129 Subchapter B. Council Certification of State Agency Rules and Approval of Thresholds for Referral 31 TAC sec.sec.505.23-505.25 The Coastal Coordination Council (council) adopts the repeal of sec.sec.505. 23-505.25, concerning the Texas Coastal Management Program (CMP), related to council procedures. These sections are repealed because new language is concurrently proposed to address the concern that the former section conflicted with proposed amendments to other sections of Chapter 505 that are published contemporaneously herewith and to address provisions of House Bill 3226, enacted by the 74th Legislature, 1995, to be codified at Texas Natural Resources Code, Chapter 33. Several commenters supported the repeal of sec.505.23 (relating to Effect of Council Certification of Proposed New Rules and Rule Amendments); one commenter supported the repeal of sec.505.24 (relating to Basis for Council Certification of Agency Rules); and one commenter supported the repeal of sec.505.25 (relating to Preliminary Council Review of Draft Rules or Rule Amendments). The repeals are adopted under the Texas Natural Resources Code, sec.sec.33.053, 33.204(a), 33.205, 33.2051-33.2053, and 33.206-33.208, which provides the council with the authority to promulgate rules. 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 authority. Issued in Austin, Texas, on October 13, 1995. TRD-9513147 Garry Mauro Chairman Coastal Coordination Council Effective date: November 3, 1995 Proposal publication date: July 18, 1995 For further information, please call: (512) 305-9129 Subchapter C. Consistency and Council Review of Individual State Agency Actions 31 TAC sec.505.40, sec.505.41 The Coastal Coordination Council (council) adopts the repeal of sec.505.40 of this title (relating to Council Review of an Agency Action on Remand) and sec.505.41 of this title (relating to Judicial Review), concerning the Texas Coastal Management Program (CMP). The sections are repealed because they conflict with proposed amendments to other sections of Chapter 505 that are published contemporaneously herewith and to address provisions of House Bill 3226, made by the 74th Legislature, 1995, in House Bill 3226, to be codified at Texas Natural Resources Code, Chapter 33. No comments were received regarding the adoption of the repeals. The repeals are adopted under the Texas Natural Resources Code, sec.sec.33.053, 33.204(a), 33.205, 33.2051-33.2053, and 33.206-33.208, which provides the council with the authority to promulgate rules. 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 authority. Issued in Austin, Texas, on October 13, 1995. TRD-9513141 Garry Mauro Chairman Coastal Coordination Council Effective date: November 3, 1995 Proposal publication date: July 18, 1995 For further information, please call: (512) 305-9129 31 TAC sec.sec.505.61, 505.72, 505.73 The Coastal Coordination Council (council) adopts repeals of sec.sec.505.61, 505.72 and 505.73, concerning the Texas Coastal Management Program (CMP), related council procedures. These sections are repealed because they conflict with proposed amendments to other sections of Chapter 505 that are published contemporaneously herewith and to address provisions of House Bill 3226, 74th Legislature, 1995, to be codified at Texas Natural Resources Code, Chapter 33. No comments were received regarding the adoption of the repeals. The repeals are adopted under the Texas Natural Resources Code, sec.sec.33.053, 33.204(a), 33.205, 33.2051-33.2053, and 33.206-33.208, which provides the council with the authority to promulgate rules. 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 authority. Issued in Austin, Texas, on October 13, 1995. TRD-9513139 Garry Mauro Chairman Coastal Coordination Council Effective date: November 3, 1995 Proposal publication date: July 18, 1995 For further information, please call: (512) 305-9129 Chapter 506. Council Procedures for Federal Consistency with Coastal Management Program Goals and Policies 31 TAC sec.sec.506.11, 506.12, 506.20-506.22, 506.24-506.28, 506. 30, 506.32- 506.34, 506.40-506.44 The Coastal Coordination Council (council) adopts amendments to sec.sec.506. 11, 506.12, 506.20-506.22, 506.24-506.28, 506.30, 506.32-506.34, and 506. 40- 506.44, concerning council procedures to ensure that actions taken or authorized by federal agencies are consistent with the Texas Coastal Management Program (CMP) goals and policies. Sections 506.11, 506.12, 506.20, 506.21, 506.24- 506.28, 506.30, 506.32-506.34 and 506.40-506.44 are adopted with changes to the proposed text as published in the July 18, 1995, issue of the Texas Register (20 TexReg 5198). Section 506.22 is adopted without changes and will not be republished. These amendments are adopted pursuant to Texas Natural Resources Code, Chapter 33, Subchapters C and F (Coastal Coordination Act) as amended to reflect statutory changes made by the 74th Legislature, 1995, in House Bill 3226. The following provisions shall be implemented and become enforceable at a date to be established by the council in the future: 31 TAC Chapter 505, Subchapter C (relating to Consistency and Council Review of Proposed State Agency Actions), Subchapter D (relating to Council Advisory Opinions on General Plans), and Subchapter E (relating to Consistency and Council Review of Local Government Actions) and 31 TAC Chapter 506 (relating to Council Procedures for Federal Consistency with Coastal Management Program Goals and Policies). The council shall publish notice of the implementation date(s) of these provisions in the Texas Register at least 30 days prior to such implementation date(s). Individual federal, state, and local subdivision actions need not comply with the CMP goals and Policies as set forth in Chapter 501 of this title (relating to Coastal Management Program) prior to the implementation of council review of such actions under Chapters 505 (relating to Council Procedures for State Consistency with Coastal Management Program Goals and Policies) and 506 (relating to Council Procedures for Federal Consistency with Coastal Management Program Goals and Policies). The council will implement the following provisions beginning February 1, 1996: Chapters 501 and 503, and Chapter 505, Subchapters A and B (relating to Purpose and Policy and State Agency Actions Subject to the Coastal Management Program and Council Review and Certification of Agency Rules). This preamble addresses changes adopted as the result of comments received on the July 18, 1995 proposals. To fully explain the adopted rules, this preamble also addresses changes to the September 27, 1994 rules made as the result of House Bill 3226. House Bill 3226 amended Texas Natural Resources Code, sec. sec.33.004, 33.051- 33. 053, 33.055, 33.202(a), 33.204-33.208, and added sec.sec.33.2051-33.2053 and sec.sec.33.209-33.211, requiring several changes to this chapter. First, new terms, "federal agency action" and "federal agency activity," are added to the law and define the federal matters subject to the CMP. These new terms are inserted at sec.sec.506.20-506.22, 506.25-506.30, 506.34, 506.40, 506.43, and 506. 44 of this chapter to conform to the new law. Second, Texas Natural Resources Code, sec.33.206(d), requires the council to adopt procedural rules for the review of federal actions, activities, and outer continental shelf plans that incorporate the provisions of federal regulations governing those reviews. Section 33.206(d) also requires that those rules provide that the chair or three members of the council may request additional time or information necessary to review these federal agency decisions. The adopted rule reflects these statutory requirements. This chapter identifies the federal actions which may be reviewed by the council to determine consistency with the CMP goals and policies, requires applicants and federal agencies to prepare consistency certifications and determinations, establishes council procedures for review and action on consistency certifications and determinations, and identifies information necessary for the state to evaluate the certifications and determinations. This chapter establishes the parameters of the council's jurisdiction and its procedures for reviewing federal actions which may adversely affect coastal natural resource areas (CNRAs), including procedures for public input and participation in the decisions of the council. One commenter proposed to change the definition of "federal agency action" in sec.506.11 to exempt from the CMP renewals and amendments to federal licenses or permits. This term is defined in House Bill 3226 and cannot be changed by rule. However, the provision governing renewal and amendment of state-issued permits was changed to limit and clarify when renewals or amendments of federal agency action are subject to the CMP. The council may review any permit or license renewal or amendment that results in increased impacts to CNRAs. The definitions of federal agency activity and federal license or permit in sec.506.11 are amended to reference the specific activities, licenses, and permits listed under sec.506.12 of this chapter. These amendments provide public notice of the activities, licenses, and permits that may be subject to council review excepting those in sec.506.12(f). Some commenters objected to the proposed amendment to sec.506.11 deleting the definition of "federal assistance." Because this amendment would have exempted all federal financial assistance decisions from council review and because of House Bill 3226, this proposed change is not adopted. Implementation of federal consistency by state coastal management programs and federal agencies is important for federal approval of Texas CMP. Federal activities subject to consistency must, pursuant to 15 Code of Federal Regulations, Part 930, include those supported by federal financial assistance. Furthermore, Texas Natural Resources Code, sec.33.203(24), defines "federal agency activity" to include financial assistance. Therefore, the amendment is not adopted. Some commenters proposed adding a definition of "federal license or permit described in OCS plan." No change was made based on this comment because amendments to provisions that apply to the consistency review of OCS plans define federal activities, which includes but are not limited to federal licenses or permits. In the plan, the applicant must describe the proposed federal activity subject to federal consistency review and certify that such activities comply with the Texas CMP. Section 506.12(a), relating to Federal Actions, Federal Agency Activities and Development Projects, and Outer Continental Shelf Plans Subject to the Coastal Management Program, lists the federal actions within the coastal zone which may adversely affect a CNRA. Section 506.12(b) lists the federal actions outside the coastal zone, but within outer continental shelf (OCS) waters, or on excluded federal land within the coastal zone which may adversely affect a CNRA. Except as provided in sec.506.12(f), the federal actions listed in sec.506. 12(a)(2), (a)(3), (b)(2) and (b)(3) are exclusive lists of federal actions subject to the CMP. Section 506.12(a)(1) and (b)(1), relating to federal agency activities and development projects, includes activities and development projects subject to the CMP, but are not the only activities and projects the council may review. Some commenters proposed deleting federal activities or federal agency actions from the lists in sec.506.12(a) and (b) of this chapter. Another commenter proposed removing applications for federal financial assistance under sec.506.12(a)(3) from the CMP. These changes were not made because deletion of these federal actions from sec.506.12 might have constrained the state's ability to review federal actions subject to the CMP, unless the rules were amended to add items to the list. The council determined that it would be prudent to retain all items on the list and determine the applicable CMP policies in the context of reviewing the actual federal project or authorization subject to the CMP. With respect to applications for federal financial assistance in sec.506. 12(a)(3), the two specific assistance programs previously listed have been deleted and replaced with a general categorical description of federal assistance for state and local government activities that may adversely affect CNRAs. In addition, it is the council's intent to limit review of federal assistance to the programmatic requirements of the grants and operating agreements between the federal agency and the state applicant as they relate to matters covered by the CMP policies. The council will not review decisions such as selection of priorities among competing projects and allocation of funds among different regions of the state. Such discretionary decisions are specifically excluded from council review. Also, the council has changed sec.506.12(a)(3) to clarify that the term "federal assistance" does not include administration of federal funds after the state applicant has received them, such as the Texas Water Development Board's administration of the State Revolving Fund and the Colonias Wastewater Treatment Assistance Program. Finally, the council recognizes that the reproposed sec.501.15, Major Action Policy, does not apply to federal financial assistance for the Colonia Wastewater Treatment Assistance Program or the State Revolving Fund because federal assistance to these programs does not require an environmental impact statement. Some commenters, concerned about duplicative review, proposed that the procedure for council review be streamlined. Therefore, sec.506.12(g) was added to ensure that once the council reviews a complete application for federal agency action or federal assistance and finds it consistent, the council will not review subsequent actions by state agencies, subdivisions or federal agencies which implement the activity described in the application. This change will prevent duplicative council review for actions previously considered in a sec.506.12(a)(3) review. One commenter asked that sec.506.21(b), relating to Notifications of Negative Determinations, be clarified. This subsection is edited to clarify the language. To conform with a Memorandum of Agreement (MOA) executed between the council and the United States Army Corps of Engineers, sec.506.24(c), relating to Consistency Determinations for Federal Agency Activities, is changed. This subsection makes specific reference to the MOA as executed. Some commenters proposed certain changes to achieve consistency with applicable federal guidelines. Section 506.28, relating to General Consistency Agreements, has been modified by deleting a general reference to "agency activities" and by adding "activity other than a development project." This change will enhance consistency with applicable federal regulations and better define the circumstances under which general consistency agreements are appropriately issued. In response to comments received suggesting that the council enhance public participation in implementing the Texas CMP, sec.sec.506.25(a), 506.32(a), and 506. 41(a) have been changed to require the council secretary to publish notice in the Texas Register announcing the availability for inspection of consistency determinations and certifications, and to request comment on referral of federal action to the council for a determination of consistency with the CMP goals and policies. These changes require the submission of comments to the council secretary within 30 days of publication of the notice in the Texas Register. In response to comments received suggesting the council enhance public participation, sec.sec.506.27(a), 506.28(a), 506.34(a), 506.41(d) and 506.43(a) have been amended to require the council to consider public comments received prior to determining whether to accept referral of a matter and whether to concur with the consistency certification or determination. These changes ensure that the public will have full input into the council's deliberations regarding the consistency of federal actions subject to the CMP. To conform to a new standard for council review, imposed by House Bill 3226 for referral of federal agency actions, federal agency activities, and outer continental shelf plans, sec. sec.506.25(d), 506.26(a), 506.32(d), 506.33(a), 506. 41(d) and 506.42(a) are changed. The actions, activities, and plans will be referred to the council only when any three members of the council agree that a significant unresolved issue is presented regarding consistency with the CMP goals and policies. To conform with House Bill 3226, changes have been made to sec.sec.506.25(c), 506.32(c), and 506.41(c). These changes allow the chair or any three council members to extend the public comment period or to convene a public hearing to accept testimony on a federal consistency determination or certification. Editorial changes were also made to these sections. To conform with House Bill 3226, changes have been made to sec.sec.506.27(c), 506.34(c), and 506.43(c). These modifications establish the voting requirements applicable to council action on federal agency actions. A vote of two-thirds of the council is required to find a federal action inconsistent with the CMP goals and policies. The council modified sec.sec.506.33(d), 506.34(a), 506.42(e), and 506.43(a) to compress the time schedule for council review of and action on federal licenses, permits, and activities described in detail in OCS plans. Technical corrections to the deadlines for council action in sec.505.26(e) and sec.506. 33(d) were necessary to conform to the time schedules in the rule. As a result of these changes, such federal actions must be referred to the council for review within 45 days of receipt of a consistency determination. Any objection to a consistency determination must be made within 90 days of the date the consistency determination is provided to the council secretary, or the action is deemed consistent. These changes are made to implement the time schedules in House Bill 3226. One commenter proposed deleting the requirement in sec.506.40(b)(4) that the council consider its advisory policies when conducting consistency reviews for certifications for outer continental shelf plans. This change has not been made because the council must use its advisory policies when evaluating OCS plans for consistency in order to conform to federal coastal zone regulations. The council requested comment on what policies under Chapter 501, Subchapter B, of this title (relating to Goals and Policies), if any, might apply to any of the federal activities or federal agency actions that have been proposed for deletion under sec.506.12 of this chapter (relating to Federal Agency Actions, Federal Agency Activities and Development Projects, and Outer Continental Shelf Plans Subject to the Coastal Management Program). No comments were received on this matter and no changes were made in response to this request for comments. The council also requested comment on what policies, if any, should be added to Chapter 501, Subchapter B, of this title to provide standards for consistency review of federal activities, licenses, or permits. Some of the policies were proposed for deletion from the list in sec.506.12. The council has determined that the CMP includes policies which may be applicable to these listed items, depending on the particular facts and circumstances of the project authorized or undertaken pursuant to the federal activity, license or permit. For example, the selection of remedial actions by the United States Environmental Protection Agency (EPA) was retained because, depending on the design and location of the remedial action, the CMP policies governing waste disposal treatment, storage and disposal found in sec.501.14(d) of this title (relating to Policies for Specific Activities and Coastal Natural Resource Areas) or development in critical areas found in sec.501.14(h) of this title (relating to Policies for Specific Activities and Coastal Natural Resource Areas) could apply to this listed federal action. Therefore, no change was made to the list of policies applicable to consistency review of sec.506.12 actions. One commenter supported the proposed repeal of sec.sec.506.50-506.52 of this chapter, relating to notice, referral and council review of applications for federal financial assistance. As discussed above, sec.506.12(a)(3), regarding applications for federal financial assistance, was not deleted from the CMP. Therefore, in response to this and other comments, sec.506.50 and sec.506.52 are repealed but are also being reproposed with changes. To conform to statutory procedures for referral of federal agency activities to the council defined in House Bill 3226, sec.506.51(a) and (b) are changed. A written referral by three council members is now required. Previously, the council chair, acting alone, could refer such applications to the council. Twenty-one commenters objected to and one commenter supported the proposal to limit federal actions subject to the CMP. Specifically, these commenters objected to the deletion of items from the list in sec.506.12; language in the definitions and other provisions making that list exclusive; and eliminating state review of federal agency financial assistance through the repeal of sec.506.50 (relating to Notice to the Council of Applications for Federal Assistance) and sec.506.52 (relating to Council Hearing to Review Applications for Federal Assistance). In response to these comments, and to ensure comprehensive coverage of federal actions subject to the CMP, the proposed changes were not made. However, the council added new sec.506.12(f), which provides certainty and predictability to individual permittees and licensees about unlisted licenses and permits subject to review. Five commenters objected to shortened time schedules in sec.sec.506.33, 506.34, 506.42, and 506.43, for state review of federal actions subject to the CMP. One commenter supported the changes. The time schedules are shortened as proposed to streamline the review process, while providing adequate time for the council to review federal actions. Two commenters opposed exempting renewal or amendment of existing federal permits from CMP review in sec.505.11. One commenter supported the change. Section 506.11, relating to Definitions, is changed to allow the council to review amendments. The standard for review of federal permit changes is the same as the standard for reviewing state permit changes in sec.505.24 of this title (relating to Pre-Certification Review of Draft Rules or Draft Rule Amendments). Three commenters objected to the proposed federal consistency review procedures stating that they fail to provide adequate opportunity for public participation in the state's review and concurrence decision. Changes were made to sec.sec.506.25(b), 506.32(b), and 506.41(b) to preserve adequate opportunity for public participation. One commenter requested that the title of sec.506.34, be changed from "Council Hearing to Review Federal License or Permit" to "Council Hearing to Review a Federal Agency Action" to reflect the contents of the chapter. This change has been made. One commenter requested that sec.sec.506.40-506.44, relating to review of OCS plans, be revised to conform to federal law. These sections are changed to conform to federal coastal zone management regulations. The changes provide that the chair or any three members of the council may take action; the council will review all federal licenses and permits at the same time it reviews the OCS plan; and the public comment period can be extended by the council. The requested changes were made and these sections were revised accordingly. One commenter requested the council establish a schedule for implementation of the various provisions of the rules. This useful suggestion has been adopted and each preamble now contains implementation dates. The following organizations generally supported the proposed amendments to the CMP rules: E Cross Cattle Co., Inc.; Texas Cattle Feeders Association; The Fordyce Company; Texas Mid-Continent Oil and Gas Association; County of Kenedy; City of Lake Jackson; City of Corpus Christi; Texas Independent Producers and Royalty Owners Association; Lavaca-Navidad River Authority; TriTech Regional Council; Iberia Petroleum Company; Mitchell Energy & Development Corporation; Railroad Commission of Texas; Everest Minerals Corporation; U. S. Department of the Army, Corps of Engineers; Coastal Bend Geological Library, Inc.; Port of Houston Authority; Trinity Improvement Association; Kling, Inc.; Briggs Ranches; Society of Independent Professional Earth Scientists; Texas Water Conservation Association; Mueller Engineering Corp., Petroleum Consultants; American Shoreline, Inc.; Texas and Southwestern Cattle Raisers Association; Southstar Corporation; South Texas Cotton and Grain Association, Inc.; Greater Corpus Christi Business Alliance Chamber of Commerce; King Ranch, Inc.; and Wilson Plaza North. The following organizations generally opposed the proposed amendments to the CMP rules: Texas Shrimp Association; National Oceanic and Atmospheric Administration; Blackburn & Carter; Arnold Construction Company, Inc.; City of Galveston; McFarlane & Associates; Steinhagen Oil Company, Inc.; U. S. Department of Interior; ABC Used Auto Parts; Gulf Coast Rod, Reel and Gun Club, Inc.; Crady, Jewett & McCulley, L.L.P.; General Land Office; Henry, Lowerre, Johnson, Hess and Frederick; Environmental Defense Fund; U. S. Environmental Protection Agency; Wells, Peyton, Beard, Greenberg, Hunt and Crawford, L.L.P.; The Benton Company; Boyt Properties; Ekistics Corporation, Environmental Impact Assessment and Socioeconomic Analysis; Lone Star Chapter Sierra Club; R. C. Deal & Associates; Port of Houston; League of Women Voters of Texas; League of Women Voters of Houston; Groves Brothers Machinery, Inc.; Corpus Christi Caller-Times; Mabry, Herbeck & Chilton, P.C.; United States Department of the Interior, Fish and Wildlife Service, Division of Ecological Services; Lower Laguna Madre Foundation; County of Jefferson; United States Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, Southeast Regional Office; Fort Bend Medical Clinic; Entrix, Inc.; Galveston Bay Conservation and Preservation Association; County of Jim Wells; The Shaddock Companies; Galveston Bay Foundation; Department of Planning & Transportation; Coastal Bend, Sierra Club; East Matagorda Bay Foundation; Greater Corpus Christi Business Alliance Chamber of Commerce; Whittington & Ewing Design Associates; Scenic Galveston; Houston Audubon Society; Audubon Council of Texas; Frontera Audubon Society; and Sea Pal's. The following organizations made specific written comments but did not express general support for or opposition to the proposed CMP rules: Liberty County; Port of Houston Authority; U. S. Department of Agriculture, Natural Resources Conservation Services; Houston-Galveston Area Council; Browning-Ferris Industries; Texas Historical Commission; Texas Water Development Board; Houston Lighting and Power; Texas Chemical Council; Texas Beach Advocate; Texas Water Conservation Association; UTMB-Galveston Dept. of OB/GYN; and the Department of the Navy, Naval Station Ingleside. The following organizations expressed general support for House Bill 3226 and an approvable CMP: South East Texas Regional Planning Commission; County of Hidalgo; Benckenstein & Oxford, L.L.P.; and Burrus Lumber Company. In addition to the many comments received during the comment period, some comments were received after the expiration of the comment period. While these comments have not been, for the most part, responded to individually as were comments received earlier, concerns expressed in those comments have been addressed in responses to many earlier comments. The council staff gratefully acknowledges the involvement of so many individuals, businesses, trade association, non-government organizations and public officials whose thoughtful comments we have read. Chapters 501, 503, 504, 505, and 506 have been revised and improved in light of these comments, reflecting as they do a broad spectrum of economic, ecological, and other concerns held by Texans throughout the state. The amendments are adopted pursuant to the Texas Natural Resource Code, sec.33.204(a), as amended by House Bill 3226, 74th Legislature, 1995, which provides the council with the authority to promulgate rules that adopt the CMP goals and policies and pursuant to Texas APA, Subchapter A, sec.2001.004, which requires the council to adopt rules of practice setting forth the nature and requirements of all formal and informal procedures. sec.506.11. Definitions. The following words, terms, and phrases, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Applicant-Any individual, public or private corporation, partnership, association, or other entity organized or existing under the laws of any state, or any state, regional, or local government that, following management program approval, files an application for a federal agency action to conduct an activity affecting the coastal zone. Applicant agency -Any agency or subdivision or any related public entity such as a special purpose district, which, following federal CMP approval, submits an application for federal assistance. Coastal zone-The portion of the coastal area located within the boundaries established by the CMP under Texas Natural Resources Code, sec.33.2053(k), and described in Chapter 503 of this title (relating to Coastal Management Program Boundary). Consistency certification -The statement submitted by an applicant for a federal agency action subject to federal consistency review certifying that the proposed activity requiring the federal agency action is consistent with the CMP goals and policies. Consistency determination -The statement and supporting documentation submitted by a federal agency undertaking or planning a federal agency activity subject to federal consistency review certifying that the federal agency activity is consistent with the CMP goals and policies to the maximum extent practicable. Federal agency action-A federal license or permit that a federal agency may issue that represents the proposed federal authorization, approval, or certification needed by the applicant to begin an activity. An action to renew, amend, or modify an existing license or permit shall not be considered an action subject to the CMP if the action only extends the time period of the existing authorization without authorizing new or additional work or activities, would not increase pollutant loads to coastal waters or result in relocation of a wastewater outfall to a critical area, or is not otherwise directly relevant to the policies in sec.501.14 of this title (relating to Policies for Specific Activities and Coastal Natural Resource Areas). Federal agency activity-A function that is performed by or for a federal agency in the exercise of its statutory responsibility, including financial assistance, the planning, construction, modification, or removal or a public work, facility, or any other structure, and the acquisition, use, or disposal of land or water resources. The term does not include the issuance of a federal license or permit. Federal assistance -Assistance provided under a federal program to an applicant agency through grant or contractual arrangements, loans, subsidies, guarantees, insurance, or other forms of financial aid. Except as otherwise requested by the applicant agency, council review of federal assistance for consistency with the CMP goals and policies is limited to federal programmatic requirements for project level funding. Agency management decisions such as funding priorities and allocation of funds among various projects are not subject to review. For purposes of the review procedures in this chapter, the term includes only the transfer or commitment of funds from the federal agency directly to an applicant agency. Federal license or permit-Any authorization, certification, approval, or other form of permission which any federal agency is empowered to issue to an applicant. Outer continental shelf (OCS) plan-A plan for the exploration or development of, or production from, an area leased under the Outer Continental Shelf Lands Act (43 United States Code Annotated, sec.sec.1331-1356) and the rules adopted under that Act that is submitted to the secretary of the United States Department of the Interior after federal approval of the CMP. sec.506.12. Federal Agency Actions, Federal Agency Activities and Development Projects, and Outer Continental Shelf Plans Subject to the Coastal Management Program. (a) For purposes of this section, the following federal actions within the CMP boundary may adversely affect coastal natural resource areas (CNRAs): (1) Federal Agency Activities and Development Projects: (A) United States Department of the Interior. Modifications to the boundaries of the Coastal Barrier Resource System under 16 United States Code Annotated, sec.3503(c); (B) United States Environmental Protection Agency. Selection of remedial actions under 42 United States Code Annotated, sec.9604(c); (C) United States Army Corps of Engineers: (i) small river and harbor improvement projects under 33 United States Code Annotated, sec.577; (ii) water resources development projects under 42 United States Code Annotated, sec.1962d-5; (iii) small flood control projects under 33 United States Code Annotated, sec.701s; (iv) small beach erosion control projects under 33 United States Code Annotated, sec.426g; (v) operation and maintenance of civil works projects under the Code of Federal Regulations, Title 33, Parts 335 and 338; (vi) dredging projects under the Code of Federal Regulations, Title 33, Part 336; (vii) approval for projects for the prevention or mitigation of damages to shore areas attributable to federal navigation projects pursuant to 33 United States Code Annotated, sec.426i; and (viii) approval for projects for the placement on state beaches of beach- quality sand dredged from federal navigation projects pursuant to 33 United States Code Annotated, sec.426j; (D) Federal Emergency Management Agency: (i) model floodplain ordinances; and (ii) approval or suspension of a community's eligibility to sell flood insurance under the Code of Federal Regulations, Title 44, Part 59, Subpart B; (E) General Services Administration: (i) acquisitions under 40 United States Code Annotated, sec.602 and sec.603; and (ii) construction under 40 United States Code Annotated, sec.605; (F) All federal agencies. All other development projects. (2) Federal Agency Actions: (A) Environmental Protection Agency: (i) National Pollution Discharge Elimination System (NPDES) permits under 33 United States Code Annotated, sec.1342; (ii) ocean dumping permits under 33 United States Code Annotated, sec.1412; (iii) approvals under 42 United States Code Annotated, sec.6924(d); and (iv) approvals of National Estuary Program Comprehensive Conservation Management Plans under 33 United States Code Annotated, sec.1330f; (B) United States Army Corps of Engineers: (i) ocean dumping permits under 33 United States Code Annotated, sec.1413; (ii) dredge and fill permits under 33 United States Code Annotated, sec.1344; (iii) permits under 33 United States Code Annotated, sec.401; (iv) permits under 33 United States Code Annotated, sec.403; and (v) Memoranda of Agreement for mitigation banking; (C) United States Department of Transportation: (i) approvals under 23 United States Code Annotated, sec.106; and (ii) approvals under 33 United States Code Annotated, sec.525; (D) Federal Aviation Administration. Certificates under 49 United States Code Annotated, sec.1432; (E) Federal Energy Regulatory Commission: (i) certificates under 15 United States Code Annotated, sec.717f; (ii) licenses under 16 United States Code Annotated, sec.797(e); and (iii) exemptions under 16 United States Code Annotated, sec.2705(d); (F) Nuclear Regulatory Commission. Licenses under 42 United States Code Annotated, sec.2133. (3) State and Local Government Applications for Federal Assistance. Federal assistance for state and local government activities that may adversely affect CNRAs. Federal assistance does not include applications from local governments and subdivisions to the Texas Water Development Board for financial assistance through the State Water Pollution Control Revolving Fund or the Colonia Wastewater Treatment Assistance Program. (b) For purposes of this section, the following are federal actions outside the CMP boundary but within OCS waters, or on excluded federal land located within the coastal zone, that may adversely affect CNRAs. (1) Federal Activities and Development Projects: All federal agencies. Activities in OCS waters or within the coastal zone occurring within federal lands excluded from the CMP boundary but which may adversely affect CNRAs. (2) Federal Agency Actions: (A) United States Department of the Interior: (i) permits under 43 United States Code Annotated, sec.1340, in OCS waters; and (ii) rights-of-way under 43 United States Code Annotated, sec.1334(e) , in OCS waters; (B) Environmental Protection Agency: (i) NPDES permits under 33 United States Code Annotated, sec.1342, in OCS waters; (ii) ocean dumping permits under 33 United States Code Annotated, sec.1412, in OCS waters; (C) United States Army Corps of Engineers. Ocean dumping permits under 33 United States Code Annotated, sec.1413, in OCS waters; (D) United States Department of Transportation: Deep water port licenses under 33 United States Code Annotated, sec.1503, in OCS waters. (3) OCS Exploration, Development, and Production Activities. United States Department of the Interior: (A) Federal agency actions described in detail in OCS plans, including pipeline activities, that may adversely affect CNRAs; (B) OCS lease sales within the western and central Gulf of Mexico under 43 United States Code Annotated, sec.1337. (c) In the event that a proposed activity requiring a state agency or subdivision action that falls below thresholds for referral approved under Chapter 505, Subchapter B of this title (relating to Council Certification of State Agency Rules and Approval of Thresholds for Referral) requires an equivalent federal permit or license under this chapter, the council may only determine the state agency or subdivision action's consistency by using the process provided in Chapter 505 of this title (relating to Council Procedure for State Consistency with Coastal Management Program Goals and Policies). The council's determination regarding the consistency of an action under this subsection constitutes the state's determination regarding consistency of the equivalent federal action. (d) If an activity requiring a state agency or subdivision action above thresholds requires an equivalent federal permit or license, the council may determine the consistency of the state agency or subdivision action or the federal license or permit, but not both. (e) The determinations regarding the consistency of an action made by the council under subsections (c) and (d) of this section constitute the state's determination regarding consistency of the equivalent agency or subdivision action or federal action. (f) On a one-time basis, and subject to the provisions of paragraph (1) of this subsection and federal law, the council may elect to review a proposed federal license or permit action of a type that is not listed in sec.506.12(a) (2) of this title or a state or local government application for federal assistance of a type that is not listed in sec.506.12(a)(3) of this title. (1) Once the council has reviewed a proposed federal license or permit action of a type that is not listed in sec.506.12(a)(2) of this title, the council may not review any other proposed federal license or permit action of that type unless the council amends sec.506.12(a)(2) of this title to add the federal license or permit action to the list of such actions in sec.506.12(a)(2) of this title. Once the council has reviewed a state or local government application for federal assistance of a type that is not specifically listed in sec.506.12(a)(3) of this title, the council may not review any other state or local government application for federal assistance of that type unless the council amends sec.506.12(a)(3) of this title to add that specific type of action to the list of actions in sec.506.12(a)(3) of this title. (2) Except as provided in this subsection, the list of federal actions described in sec.506.12(a)(2) and (3) of this title is an exclusive list of federal licenses and permits and state and local government applications for federal assistance that are subject to council review. The council may amend the list of actions described in sec.506.12(a)(2) and (3) of this title from time to time, and any federal actions described in such amended lists shall be subject to council review. (g) If the council determines a federal agency action or application for federal assistance to be consistent with the CMP goals and policies, subsequent actions taken by state agencies or subdivisions or federal agencies to implement the activity described in the application shall not be subject to review by the council if the application for the federal agency action or federal assistance describes the activity in sufficient detail to determine consistency of the completed activity. sec.506.20. Consistency Determinations for Federal Agency Activities and Development Projects. (a) At the earliest practicable time, but in no event later than 90 days prior to final approval, a federal agency considering the approval of a federal agency activity or development project listed in sec.506.12 of this title (relating to Federal Agency Actions, Federal Agency Activities, Outer Continental Shelf Plans and Development Plans Subject to the Coastal Management Program) shall provide the council secretary with a consistency determination that includes the following information: (1) a brief statement, based upon an evaluation of the relevant CMP provisions, indicating whether or not the proposed activity or development project will be undertaken in a manner consistent with the CMP, to the maximum extent practicable; and (2) a detailed description of the proposed activity or development project and its associated facilities which is adequate to permit an assessment of their probable effects on CNRAs, and comprehensive data and information sufficient to support the federal agency's consistency statement. The amount of detail in the statement evaluation, activity description, and supporting information shall be commensurate with the expected effects of the activity or development project on CNRAs. While federal agencies must be consistent to the maximum extent practicable with the enforceable, mandatory policies of the CMP, the agencies need only demonstrate adequate consideration of policies which are in the nature of recommendations. Federal agencies need not evaluate effects for which the CMP does not contain mandatory or recommended policies. (b) The chair or any three members of the council may request the federal agency to provide additional information as provided by federal regulations. sec.506.21. Notification of Negative Determinations. (a) If a federal agency determines that a proposed activity or development project listed in sec.506.12 of this title (relating to Federal Actions Subject to the Coastal Management Program) will not adversely affect any CNRA, the federal agency shall at the earliest practicable time, but in no event later than 90 days prior to final approval, provide the chair of the council with a notification briefly providing the reasons for the federal agency's negative determination. (b) If the council disagrees with the negative determination and the federal agency does not modify the activity or the development project to achieve consistency with the program, the governor, with the assistance of the chair of the council, may seek mediation of the matter in accordance with federal law (as provided in the Code of Federal Regulations, Title 15, Part 930, Subpart G, sec.sec.930.110 et seq). sec.506.24. Consistency Determinations for Federal Agency Activities Initiated Prior to Federal Approval of the Coastal Management Program. (a) Federal agencies shall provide a consistency determination for ongoing activities listed in sec.506.12 of this title (relating to Federal Actions Subject to the Coastal Management Program), other than development projects, initiated prior to federal approval of the CMP where the agency retains discretion to reassess and modify the activity. In accordance with the Code of Federal Regulations, Title 15, Part 930, Subpart C, sec.930.38(a), federal agencies shall provide the council with a consistency determination for such ongoing activities no later than 120 days after program approval. (b) Federal agencies shall provide a consistency determination, in accordance with the Code of Federal Regulations, Title 15, Part 930, Subpart C, sec.930.38(b), for phased development projects described in sec.506.23(b) of this title (relating to Consistency Determinations for Development Projects) and initiated prior to federal approval of the CMP, for those phases of the project for which the agency retains discretion to reassess and modify the activity following CMP approval. (c) The council shall review consistency determinations for the United States Army Corps of Engineers' ongoing maintenance of commercially navigable waterways as provided in the Memorandum of Agreement Between the Texas Coastal Coordination Council and the United States Army Corps of Engineers (Review of Coastal Maintenance Dredging Activities for Consistency with the Goals and Policies of the Texas Coastal Management Program, dated October 27, 1994). sec.506.25. Public Notice and Comment. (a) Upon receipt of a consistency determination for a federal agency activity, the council secretary shall publish public notice of the consistency determination in the Texas Register. (b) The public notice shall provide a summary of the proposed federal agency activity, announce the availability of the consistency determination for inspection, and request comment on whether the federal agency activity should be referred to the council for review and whether the activity is or is not consistent with the CMP goals and policies. Comments shall be submitted to the council secretary within 30 days of publication of the notice in the Texas Register . (c) When appropriate, the chair or any three members of the council may extend the public comment period or schedule a public hearing on: (1) the consistency determination; and (2) whether referral to the council is appropriate. (d) After the close of the public comment period, the council members shall consider any comments received in response to the public notice and determine whether the federal activity should be placed on the agenda for review because it presents a significant unresolved dispute regarding consistency with the CMP goals and policies. Upon the council members' decision, the council secretary shall immediately notify all council members, applicant, federal agency, and other affected parties, if any. sec.506.26. Referral of Federal Agency Activities. (a) The council shall review any federal agency activity that any three members of the council agree presents a significant unresolved issue regarding consistency with the CMP goals and policies and place the matter on the agenda of a meeting of the council for review. (b) To refer a federal activity to the council, any three members of the council must submit the action to the council secretary in writing. (c) The council secretary shall place the action on the agenda of the earliest council meeting at which consideration of the federal agency activity is reasonably practicable. If no regularly scheduled council meeting will allow the council to complete a review of the action within 45 days of receipt of the consistency certification, the council secretary shall notify the chair, who shall schedule a special meeting. (d) If the council does not place the federal agency activity on the agenda of a council meeting for review, within 45 days of the date the council secretary receives a consistency determination with all required information, then the chair shall notify the federal agency of the status of the review and the basis for further delay and request an extension of time to review the matter. (e) The federal agency may presume council agreement with the federal agency's consistency determination 45 days after the date the council secretary receives a consistency determination with all required information, unless the chair or any three members of the council request an extension of time to review the matter. Federal agencies shall approve the first request for an extension of 15 days or less. In considering whether a longer or additional extension period is appropriate, federal agencies should consider the magnitude and complexity of, or the information contained in, the consistency determination. (f) A federal agency shall not grant final approval for an federal agency activity identified in sec.506.12 of this title (relating to Federal Agency Actions, Federal Agency Activities, Outer Continental Shelf Plans Subject to the Coastal Management Program) until after the expiration of 90 days from the date the federal agency provides the council secretary with its consistency determination, unless the federal agency and the council agree to an alternative period of time. sec.506.27. Council Hearing to Review Federal Agency Activities. (a) Following referral of a federal agency activity, the council shall consider the public comments received, the relevant CMP goals and policies, information submitted by the federal agency, and other relevant information and determine whether the activity is consistent with the CMP goals and policies within 90 days of the date the council secretary received the consistency determination. (b) The council secretary shall, by certified mail or hand delivery, provide notice of the hearing at which the council will review the federal agency activity to the federal agency. (c) If the council decides to disagree with a consistency determination, the council shall notify the federal agency and the assistant administrator of its decision to disagree with the consistency determination. An affirmative vote of two-thirds of the council members is required for the council to disagree with a consistency determination. (d) The council's finding that a proposed activity is inconsistent with the CMP goals and policies shall include: (1) a description of how the proposed activity is inconsistent with specific CMP goals and policies; (2) a description of any available alternative measures that would permit the proposed activity to be conducted in a manner consistent to the maximum extent practicable with the CMP; and (3) in cases where the council's finding is based upon the federal agency's failure to supply sufficient information, the council shall include a description of the nature of the information requested and the necessity of having such information to determine the consistency of the federal activity with the CMP. (e) If the council finds that a proposed activity is inconsistent with the CMP goals and policies and the federal agency does not modify the activity to achieve consistency with the program, the governor, with the assistance of the chair of the council, may seek secretarial mediation (as provided in Code of Federal Regulations, Title 15, Part 930, Subpart G, sec. sec.930.110 et seq). sec.506.28. General Consistency Agreements for Federal Activities; Interagency Coordination Groups for Federal Development Projects. (a) The council may issue a general consistency agreement with respect to a federal activity other than a development project. Prior to issuance of a general consistency agreement, the council shall request and consider public comments on the matter. If the conditions of a general consistency agreement are satisfied, the federal activity is deemed consistent, to the maximum extent practicable, with the CMP goals and policies and will not be subject to council review under sec.505.26 of this title (relating to Referral of Federal Activities and Development Projects). (b) The council shall issue a consistency agreement for a federal development project for which: (1) the federal agency has elected to establish an interagency coordination group whose duties include advising the federal agency on the consistency of the project; (2) the interagency coordination group includes among its voting members a minimum of three council members from natural resource agencies or their representatives; (3) the interagency coordination group, including a majority of the council members or their representatives on the interagency coordination group, finds that the federal development project is consistent, to the maximum extent practicable, with the CMP goals and policies; and (4) the federal agency adopts the finding of the interagency coordination group and submits it to the council as its consistency determination for the project. (c) Disposal or placement of dredged material in existing dredge disposal sites identified and actively used as described in an environmental assessment or environmental impact statement issued prior to the effective date of this chapter shall be presumed consistent with sec.501.14(j) (1) of this title (relating to Policies for Specific Activities and Coastal Natural Resource Areas), unless such existing disposal or placement is modified in design, size, use, or function, provided that the material is generated by maintenance dredging of commercially navigable waterways for which a federal development project undergoes evaluation pursuant to the interagency coordination group process under subsection (b) of this section and such process was initiated prior to the adoption of this chapter, and provided further, if the interagency coordination group approves the project that requires disposal or placement in confined sites and/or beneficial use of the dredged material from those waterways and results in cessation of open water disposal of dredged material and such project is authorized in a final supplemental environmental impact statement. sec.506.30. Consistency Certifications for Federal Agency Actions. (a) Upon filing an application for a federal agency action listed under sec.506.12 of this title (relating to Federal Actions Subject to the Coastal Management Program), the applicant shall provide to the council secretary a consistency certification that reads as follows: The proposed activity complies with Texas' approved coastal management program and will be conducted in a manner consistent with such program. (b) The applicant shall include with the consistency certification all of the following information: (1) a detailed description of the proposed activity and its associated facilities which is adequate to permit an assessment of their probable effects on CNRAs. Maps, diagrams, technical data, and other relevant material must be submitted when a written description will not adequately describe the proposed activity. The applicant may submit the federal application and all supporting material provided to the federal agency to meet the requirements of this paragraph, if the application and supporting material contain the required material; (2) a list identifying all federal, state, and local permits or authorizations subject to the CMP and required for the proposed activity and its associated facilities; (3) a brief assessment relating to the relevant elements of the CMP and the probable effects of the proposed activity and its associated facilities on CNRAs; and (4) a brief set of findings, derived from the assessment, indicating that the proposed activity, its associated facilities, and their effects are all consistent with the CMP goals and policies. (c) Applicants shall, to the extent practicable, consolidate related federal agency actions identified in sec.506.12 of this title (relating to Federal Actions Subject to the Coastal Management Program) to assist the council in minimizing duplication of effort and unnecessary delays by reviewing all federal agency actions relating to a project at the same time. (d) The chair or any three members of the council may request the applicant to submit additional information as provided by federal regulations. If the chair or three members of the council have not notified the applicant within 15 days that additional information is required, the certification shall be considered complete for purposes of activating the time periods within which the council must act on the certification. sec.506.32. Public Notice and Comment. (a) Upon receipt of a consistency certification for a proposed federal agency action, the council secretary shall publish public notice of the consistency certification in the Texas Register. (b) The public notice shall provide a summary of the proposed activity, announce the availability of the consistency certification for inspection, and request comment on whether the federal agency action should be referred to the council for review and whether the action is or is not consistent with the CMP goals and policies. Comments shall be submitted to the council secretary within 30 days of publication of the notice in the Texas Register. (c) When appropriate, the chair or any three members of the council may extend the public comment period or schedule a public hearing on: (1) the consistency certification; and (2) whether referral to the council is appropriate. (d) After the close of the public comment period, the council members shall consider any comments received in response to the public notice and determine whether the proposed federal agency action presents a significant unresolved dispute regarding consistency with the CMP goals and policies and should be placed on the agenda of the council for review. Upon council members' decision, the council secretary shall immediately notify all council members, applicant, federal agency, and other affected parties, if any. sec.506.33. Referral of Federal Agency Action. (a) The council shall review any federal agency action that any three members agree presents a significant unresolved dispute regarding consistency with the CMP goals and policies. (b) To refer a federal agency action, any three members must submit the request for referral to the council secretary in writing within 45 days of receipt of the consistency certification. (c) The council secretary shall add the action to the agenda of the earliest council meeting at which consideration of the action is reasonably practicable. If no regularly scheduled council meeting will allow the council to complete a review of the action within 90 days of receipt of the consistency certification, the council secretary shall notify the chair, who shall schedule a special meeting. (d) If the council has not issued a decision with respect to a proposed federal agency action within 45 days of the date when the council secretary receives a consistency certification with all required information, then the chair shall notify the applicant and the federal agency of the status of the review and the basis for further delay. (e) If any three members of the council do not refer a proposed federal agency action to the council within 45 days of the date when the council secretary receives a consistency certification with all required information, then that proposed federal agency action is conclusively presumed to be consistent with the CMP. sec.506.34. Council Hearing to Review a Federal Agency Action. (a) Following referral of a proposed federal agency action, the council shall consider the public comments received, the relevant CMP goals and policies, information submitted by the federal agency or applicant, and other relevant information and determine whether the proposed action is consistent with the CMP goals and policies within 90 days of the date the council secretary received the consistency certification. (b) The council secretary shall, by certified mail or hand delivery, provide notice of the hearing at which the council will review the proposed federal action to the federal agency and the applicant. (c) If the council decides to object to a consistency certification, the council shall notify the applicant, the federal agency, and the assistant administrator. The affirmative vote of two-thirds of the council members shall be required to object to a consistency determination. (d) The council's objection shall include: (1) a description of how the proposed federal agency activity is inconsistent with specific CMP goals and policies; (2) a description of any available alternative measures that would permit the proposed activity to be conducted in a manner consistent with the CMP; (3) in cases where the council objects on the grounds of insufficient information, a description of the nature of the information requested and the necessity of having such information to determine the consistency of the activity with the CMP; and (4) a statement informing the applicant of a right of appeal to the secretary of commerce on the grounds that the proposed activity is consistent with the objectives or purposes of the federal Coastal Zone Management Act (CZMA), 16 United States Code Annotated, sec.sec.1451-1464, or is necessary in the interest of national security as provided in the Code of Federal Regulations, Title 15, Part 930, Subpart H, sec.sec.930.120 et seq. (e) If the council finds that the proposed federal action is inconsistent with the CMP goals and policies, the federal agency shall not proceed with the federal action, except as provided in the appeals process established in the Code of Federal Regulations, Title 15, Part 930, Subpart H, sec.sec.930.120 et seq. sec.506.40. Consistency Certifications for Outer Continental Shelf Plans. (a) Upon submission to the secretary of the interior or designee of an OCS plan, which must include a detailed description of the proposed activities which will require federal actions subject to federal consistency review, the person submitting the plan shall provide the council secretary with a copy of the plan along with a consistency certification that reads as follows: The proposed activities described in detail in this plan comply with Texas' approved coastal management program and will be conducted in a manner consistent with such program. (b) The person submitting the OCS plan shall include all of the following information in support of the consistency certification: (1) a detailed description of the proposed activities and their associated facilities which is adequate to permit an assessment of their probable effects on CNRAs. Maps, diagrams, technical data, and other relevant material must be submitted when a written description will not adequately describe the proposed activities; (2) a list identifying all federal, state, and local actions subject to the CMP and required for the proposed activities and their associated facilities; (3) a brief assessment relating the probable effects of the activities and their associated facilities on CNRAs to the relevant elements of the CMP; and (4) a brief set of findings, derived from the assessment, indicating that federal actions authorizing each of the proposed activities will be consistent with the CMP goals and policies. In considering whether such federal actions will be consistent with the CMP, associated facilities authorized under such actions and the effects of such associated facilities shall be considered. (c) The council strongly encourages persons submitting OCS plans to consolidate related federal licenses and permits that are not required to be described in detail in the plan but which are subject to council review. This consolidation will minimize duplication of effort and unnecessary delays by providing for council review of all licenses and permits relating to an OCS plan at the same time. (d) The chair or any three members of the council may request the person submitting the plan to submit additional information as provided in federal regulations. The chair or three members of the council have not notified the person submitting the plan within 15 days that additional information is required, the certification shall be considered complete for purposes of activating the time periods within which the council must act on the certification. sec.506.41. Public Notice and Comment. (a) Upon receipt of a consistency certification for an OCS plan, the council secretary shall publish public notice of the consistency certification in the Texas Register. (b) The public notice shall provide a summary of the OCS plan, announce the availability of the consistency certification for inspection, and request comment on whether any part of the OCS plan relating to federal agency actions required to authorize proposed activities described in detail in the OCS plan should be referred to the council for review and whether any part is or is not consistent with the CMP goals and policies. Comments shall be submitted to the council secretary within 30 days of publication of the notice in the Texas Register . (c) When appropriate, the chair or any three members of the council may extend the public comment period or schedule a public hearing on: (1) the consistency certification; and (2) whether referral to the council is appropriate. (d) After the close of the public comment period on the OCS plan, the council shall consider any comments received in response to the public notice and determine whether any part of the OCS plan relating to federal agency actions required to authorize proposed activities described in detail in the OCS plan presents significant unresolved issues regarding consistency with the CMP goals and policies and should be placed on the agenda of a meeting of the council for review. Upon the council's decision, the council secretary shall immediately notify the council members, applicant, federal agency, and other affected parties, if any. sec.506.42. Referral of an Outer Continental Shelf Plan. (a) The council shall review any part of an OCS plan relating to federal agency actions required to authorize proposed activities described in detail in the OCS plan which any three members agree presents a significant unresolved dispute regarding consistency with the CMP goals and policies. (b) To refer part of an OCS plan, three members of the council must submit the request for referral to the council secretary in writing within 45 days of receipt of the consistency certification. (c) The council secretary shall place the action on the agenda of the earliest council meeting at which consideration of the action is reasonably practicable. If no regularly scheduled council meeting will allow the council to act on the action within 90 days of receipt of the consistency certification, the council secretary shall notify the chair, who shall schedule a special meeting. (d) If the council has not issued a decision with respect to a matter referred under the provisions of this section within 45 days of the date the council secretary received the consistency certification with all required information, then the chair shall notify the person submitting the plan, the secretary of the interior, and the assistant administrator of the status of the review and the basis for further delay. (e) If any three members of the council do not refer any federal actions that will be required to authorize an activity described in detail in an OCS plan to the council within 45 days of the date the council secretary receives a consistency certification with all required information, then the council's concurrence with the consistency certification shall be conclusively presumed. sec.506.43. Council Hearing to Review Outer Continental Shelf Plan. (a) Following referral of part of an OCS plan, the council shall consider the public comments received, the relevant CMP goals and policies, information submitted by the federal agency or applicant, and other relevant information and determine whether any part of the OCS plan relating to federal agency actions required to authorize proposed activities described in detail in the OCS plan is consistent with the CMP goals and policies within 90 days of the date the council secretary received the consistency certification. (b) The council secretary shall, by certified mail or hand delivery, provide notice of the hearing at which the council will review a part of the OCS plan to the person submitting the OCS plan, the secretary of the interior, and the assistant administrator. (c) If the council decides to object to a consistency certification, the council shall notify the person submitting the plan, the secretary of the interior, and the assistant administrator. The affirmative vote of two-thirds of the council members is required to object to a consistency certification. (d) The council's objection shall include: (1) a description of how the activity requiring the federal action described in the OCS plan will be inconsistent with the CMP goals and policies; (2) a description of any available alternative measures that would permit the activity requiring the federal action to be conducted in a manner consistent with the CMP; (3) in cases where the council objects on the grounds of insufficient information, a description of the nature of the information requested and the necessity of having such information to determine the consistency with the CMP of the federal action authorizing the activity described in the OCS plan; and (4) a statement informing the person submitting the plan of a right of appeal to the secretary of commerce on the grounds that the federal action authorizing the activity described in the OCS plan will be consistent with the objectives or purposes of the CZMA or is necessary in the interest of national security as provided in the Code of Federal Regulations, Title 15, Part 930, Subpart H, sec.sec.930.120 et seq. (e) If the council objects to a consistency certification related to a federal action authorizing an activity described in detail in an OCS plan , the federal agency shall not take the federal action when it is proposed, except as provided in the appeals process established in the Code of Federal Regulations, Title 15, Part 930, Subpart H, sec.sec.930.120 et seq. sec.506.44. Effect of Council Concurrence. (a) If the council either issues a concurrence or is conclusively presumed to concur with the consistency certification of a person submitting an OCS plan, then the person submitting the plan shall not be required to submit additional consistency certifications to the council secretary for the individual federal actions that will be required to authorize the activities described in detail in the OCS plan. (b) To allow the council to monitor those federal actions that relate to activities described in detail in an OCS plan whose consistency certification has received council concurrence, the person submitting the OCS plan shall provide the council secretary with copies of applications for those federal actions when they are filed. 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 authority. Issued in Austin, Texas, on October 13, 1995. TRD-9513148 Garry Mauro Chairman Coastal Coordination Council Effective date: November 3, 1995 Proposal publication date: July 18, 1995 For further information, please call: (512) 305-9129 31 TAC sec.506.50, sec.506.52 The Coastal Coordination Council (council) adopts the repeal of sec.506.50 and sec.506.52, concerning consistency review of federal assistance. The council repeals sec.505.50 and sec.505.52 because of the concern that there do not appear to be any policies in sec.501.14 of this title (relating to Policies for Specific Activities and Coastal Natural Resource Areas) against which to judge the consistency of provision of federal assistance with the goals and policies of the CMP. New language is concurrently proposed regarding these sections. Further, subjecting federal assistance to consistency review would result in multiple consistency reviews relating to the same activity. In virtually every situation, a license or permit will be required to conduct the activity for which assistance is provided. Therefore, eliminating the potential for consistency review of federal assistance eliminates the possibility for duplicative consistency reviews relating to the same activity. No comments were received regarding the repeal of this chapter. The repeals are adopted pursuant to Texas Natural Resources Code, sec.33. 206(d), which authorizes the council to develop procedures for review of federal actions. 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 authority. Issued in Austin, Texas, on October 13, 1995. TRD-9513149 Garry Mauro Chairman Coastal Coordination Council Effective date: November 3, 1995 Proposal publication date: July 18, 1995 For further information, please call: (512) 305-9129 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part XI. Texas Juvenile Probation Commission Chapter 347. Title IV-E Federal Foster Care Program 37 TAC sec.sec.347.1, 347.3, 347.5, 347.7, 347.9, 347.11, 347.13, 347.15, 347.17, 347.19, 347.21 The Texas Juvenile Probation Commission (TJPC) adopts amendments to sec.sec.sec.sec.347.1, 347.3, 347.5, 347.7, 347.9, 347.11, 347.13, 347.15, 347.17, 347. 19, and 347.21, concerning Title IV-E of the Social Security Act in which the federal government reimburses the Texas Department of Protective and Regulatory Services (TDPRS) for part of the foster care costs of eligible children. TJPC has contracted with TDPRS to make these federal funds available to eligible children in the juvenile justice system. These amendments are adopted without changes to the proposed text as published in the June 9, 1995, issue of the Texas Register (20 TexReg 4203). This rule is being amended to allow TJPC to monitor departments bi-annually instead of quarterly. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Human Resources Code, sec.sec.141. 001, 141.041, and 141.042, which provides the Texas Juvenile Probation Commission with the authority to improve the effectiveness of juvenile probation services and provide alternatives to commitment of juveniles by providing financial aid to juvenile boards to establish and improve the probation services, and to adopt rules for these purposes. 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 October 11, 1995. TRD-9513009 Rosa Tapia Administrative Technician IV Texas Juvenile Probation Commission Effective date: November 1, 1995 Proposal publication date: June 9, 1995 For further information, please call: (512) 443-2001 Texas Department of Insurance Exempt Filing Notification Pursuant to the Insurance Code, Chapter 5, Subchapter L (Editor's Note: As required by the Insurance Code, Article 5.96 and 5. 97, the Texas Register publishes notices of actions taken by the Department of Insurance pursuant to Chapter 5, Subchapter L, of the Code. Board action taken under these articles is not subject to the Administrative Procedure Act. These actions become effective 15 days after the date of publication or on a later specified date. The text of the material being adopted will not be published, but may be examined in the offices of the Department of Insurance, 333 Guadalupe, Austin.) The Commissioner of Insurance at a hearing scheduled under Docket Number 2171 on October 6, 1995, at 9:00 a.m. in Room 100 of the Texas Department of Insurance Building, 333 Guadalupe Street in Austin, Texas, adopted the amendments proposed by the National Council on Compensation Insurance ("NCCI") pertaining to the standard workers' compensation and employers' liability insurance policy ("the policy"). The ten changes made to the current policy are set forth as follows. In addition, the endorsements listed in #10 are amended to allow coverages excluded by the policy language to be included on the policy, if requested. Three endorsements are withdrawn as the language for these endorsements is included in the amended policy language. Notice of the public hearing was published in the September 1, 1995, issue of the Texas Register (20 TexReg 6818). 1. General Section C. Workers' Compensation Law is amended by adding language to clarify the exclusion of any federal workers or workmen's compensation law and any federal occupational disease law under the policy. The purpose of this language is to exclude Federal coverages, such as: Longshore and Harbor Workers' Compensation Act; Defense Base Act; Nonappropriated Fund Instrumentalities Act; Outer Continental Shelf Lands Act; Federal Coal Mine Health and Safety Act of 1969; and any other federal compensation obligation. The coverage provided by the policy is not changed as a result of this revision. 2. Part Two-Employers Liability Insurance, C. Exclusions, 7. is amended to list the employer conduct toward employees that will not be covered by the policy as they fall outside common law negligence, which is the principal risk covered by employers' liability. 3. Part Two-Employers Liability Insurance, C. Exclusions, 8. is amended to exclude coverage under the Longshore and Harbor Workers' Compensation Act, the Nonappropriated Fund. Instrumentalities Act, the Outer Continental Shelf Lands Act, the Defense Base Act, the Federal Coal Mine Health and Safety Act of 1969, any other federal workers' or workmen's compensation law or other federal occupational disease law, or any amendment to these laws. 4. Part Two-Employers Liability Insurance, C. Exclusions, 9. is amended to exclude coverage for work subject to the Federal Employers' Liability Act, any other federal laws obligating an employer to pay damages to an employee due to bodily injury arising out of or in the course of employment, or any amendments to those laws. 5. Part Two-Employers Liability Insurance, C. Exclusions, 10. excludes bodily injury to a master or member of the crew of any vessel. The exclusionary language of the Maritime Exclusion Endorsement WC000202 becomes part of the policy language, which clarifies that damages under the Jones Act are excluded. 6. Part 2 Employers Liability Insurance, C. Exclusions, 11. excludes fines and penalties imposed for violation of federal or state law. This section provides clear notice that fines or penalties imposed for violation of federal or state law are not covered. 7. Part Two-Employers Liability Insurance, C. Exclusions, 12. excludes damages under the Migrant and Seasonal Agricultural Worker Protection Act and under any other federal law awarding damages for violation of those laws or regulations issued thereunder, and any amendments to those laws. 8. Part Two, Employers Liability Insurance, I. Actions Against Us includes a provision that the insurer is not relieved of an obligation to pay due to the bankruptcy or insolvency of the insured. 9. Part Three-Other States Insurance, A. 2. is amended to read "If you begin work in any one of those states after the effective date of this policy and are not insured or are not self-insured for such work, all provisions of the policy will apply as though that state were listed in Item 3.A. of the Information Page." 10. Part Three-Other States Insurance, A. 4. adds this language to the policy: "If you have work on the effective date of this policy in any state not listed in Item 3.A. of the Information Page, coverage will not be afforded for that state unless we are notified within thirty days." In conjunction with the adopted changes outlined above, the following endorsements are revised to allow federal coverages that are excluded by the changes to the policy to be included on the policy, if requested: Defense Base Act Coverage Endorsement-WC000101; Longshore and Harbor Workers' Compensation Act Coverage Endorsement-WC000106; Nonappropriated Fund Instrumentalities Act Coverage Endorsement-WC000108; Outer Continental Shelf Lands Act Coverage Endorsement-WC000109; and Maritime Coverage Endorsement-WC000201. In addition, the following endorsements are withdrawn for use with Texas workers' compensation and employers' liability insurance policies: Federal Employers' Liability Act Exclusion Endorsement-WC000105; Longshore and Harbor Workers' Compensation Act Exclusion Endorsement-WC000107; and Maritime Exclusion Endorsement-WC000202 as the exclusion of these coverages is now part of the amended policy language. The Commissioner of Insurance adopted this matter pursuant to the Insurance Code, Articles 5.56, 5.57 and 5.96. The Commissioner of Insurance amended the policy language for workers' compensation and employers' liability policies and endorsements by adopting the changes set forth above and attached hereto and incorporated by reference, by Commissioner's Order Number 95-1066. A copy of the petition containing the full text of the proposed changes to the workers' compensation and employers liability insurance policy and the proposed changes to endorsements is available for review in the Office of the Chief Clerk of the Texas Department of Insurance, 333 Guadalupe Street, Austin, Texas 78714- 9104. For further information or to request copies of the petition, please contact Angie Arizpe at (512) 322-4147, (refer to Reference Number W-0695-14). IT IS THEREFORE THE ORDER of the Commissioner of Insurance that the standard policy language for the Texas workers' compensation and employers' liability insurance policy, the amended endorsements and the deleted endorsements are hereby adopted to be applicable to new and renewal workers' compensation insurance policies with an effective date on or after 12:01 a.m. November 4, 1995, which is the 15th day after notice of this action is published in the Texas Register. For new and renewal workers' compensation insurance policies with an effective date on or after 12:01 a.m. November 4, 1995 and prior to 12:01 a.m. April 1, 1996, either the current policy language and endorsements or the amended policy language and endorsements adopted under this order may be used. However, it is further ordered that all new and renewal workers' compensation insurance policies with an effective date on or after 12:01 a.m. April 1, 1996, shall be issued with the amended policy language and endorsements attached hereto and made a part of this Order. This notification is made pursuant to the Insurance Code, Article 5.96, which exempts it from the requirements of the Administrative Procedure Act. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 13, 1995. TRD-9513187 Alicia M. Fechtel General Counsel and Chief Clerk Texas Department of Insurance Effective date: November 4, 1995 For further information, please call: (512) 463-6327