Part I.
Texas Natural Resource Conservation Commission
Chapter 7.
Memoranda of Understanding
30 TAC §7.103
The Texas Natural Resource Conservation Commission (TNRCC
or commission) proposes new §7.103, concerning entering into a Memorandum
of Understanding (MOU) between the Texas Parks and Wildlife Department and
the TNRCC.
EXPLANATION OF THE RULE.
The MOU establishes a formal mechanism by which the two agencies can improve
coordination and collaboration regarding the regulation of aquaculture facilities.
The agreement establishes an effective system for interagency review of applications,
lays out procedures for the exchange of information regarding aquaculture
issues, facilitates on-site visits and responses to emergency situations,
and eliminates duplication of effort between the two agencies.
FISCAL NOTE.
Stephen Minick, Strategic Planning and Appropriations Division, has determined
that for the first five-year period the section as proposed is in effect
there will be no significant fiscal implications for state or local government
as a result of enforcing or administering the section.
PUBLIC BENEFIT.
Mr. Minick has also determined that for each year of the first five years
the section as proposed is in effect the public benefit anticipated as a
result of enforcement of and compliance with the section will be improvements
in the coordination of efforts between state agencies in the regulation of
aquacultural activities, expedited enforcement of water quality regulations,
enhanced protection of water quality and protection of public health. There
are no economic costs to persons, including small businesses, who are required
to comply with the section as proposed.
TAKINGS IMPACT ASSESSMENT.
The commission has prepared a Takings Impact Assessment pursuant to Texas
Government Code, §2007.043, the following is a summary of that Assessment.
The specific purpose of the rules is to adopt a Memorandum of Understanding
between the commission and TPWD concerning the regulation of aquaculture
facilities. The rules will substantially advance this specific purpose by
clarifying the respective duties of the two agencies in the regulation of
aquaculture facilities. Promulgation and enforcement of these rules will
not burden private real property because they do not restrict or limit the
owner's right to the property that would otherwise exist in the absence of
the rulemaking.
SUBMITTAL OF COMMENTS.
Written comments on the proposal should mention Rule Log Number 96172-007-WT
and may be submitted to Lutrecia Oshoko, Texas Natural Resource Conservation
Commission, Office of Policy and Regulatory Development, MC 201, P.O. Box
13087, Austin, Texas, 78711-3087, (512) 239-4640. Comments may also be faxed
to (512) 239-5687. Written comments must be received by 5:00 p.m. 30 days
from the date of publication of this proposal in the
Texas Register
. For further information concerning this proposal,
please contact Tom Weber, Agriculture and Watershed Management Division,
(512) 239-5072.
STATUTORY AUTHORITY.
The new section is proposed under the Texas Water Code, §5.104, which
authorizes the commission to enter into a MOU with any other state agency
to clarify and provide for their functions on any matter within their jurisdictions.
In addition, this new section is proposed under the Texas Water Code §5.102,
which provides the commission with general powers to carry out duties under
the Texas Water Code, and §5.103, which provides the commission with
the authority to adopt any rule necessary to carry out the powers and duties
of the Texas Water Code and other laws of this state.
§7.103. Memorandum of Understanding (MOU) Between the Texas Natural Resource Conservation Commission (commission) and the Texas Parks and Wildlife Department (TPWD).
(a)
Need for agreement.
(1)
Both the commission and the TPWD seek to ensure that regulation
of aquaculture is conducted in a manner that is both collaborative and responsible.
(2)
The commission and TPWD are concerned about issues
relating to the raising of non-native aquatic species and the attendant concern
about escapement into natural ecosystems, including the introduction of disease
into natural ecosystems.
(3)
The commission and TPWD are concerned about the quality
of wastewater discharges from aquaculture facilities and their effects on
receiving waters in reservoirs, streams, bays and estuaries.
(4)
The commission and TPWD seek to establish an interagency
review procedure for applications requesting authorization to discharge wastewater
from aquaculture facilities.
(5)
The commission and TPWD seek to institute an effective
system by which coordination and collaboration can be achieved to expedite
enforcement actions in response to discharges from aquaculture facilities
that are found to contain contagious disease that may impact state waters.
(6)
Section 5.104 of the Texas Water Code authorizes the
commission to enter into a memorandum of understanding with any other state
agency.
(7)
It is the intention of this MOU to provide a formal
mechanism by which TPWD may review and provide feedback on aquaculture issues
that are subject to regulation by the commission and that have the potential
to affect natural resources within the jurisdiction of TPWD. This exchange
of information would assist the commission in making environmentally sound
decisions, and would improve coordination between the commission and TPWD.
(b)
Definitions. The following words and terms, when used in
this section, shall have the following meanings unless the context clearly
indicates otherwise:
(1)
Aquaculture - The business of producing or rearing aquatic
species (fish, crustaceans, and other organisms in either fresh or marine
waters) utilizing ponds, lakes, fabricated tanks and raceways, or other similar
structures.
(2)
Memorandum of Understanding (MOU) - A formal document
that clarifies and provides for the respective duties, responsibilities or
functions of the state agencies who are signatories on any matter or matters
under their jurisdiction that are not expressly assigned to either one of
them.
(c)
Responsibilities.
(1)
The commission. The responsibilities of the commission
relate primarily to its role as the natural resource agency with primary
responsibility over conservation of natural resources and the protection
of the environment, pursuant to §5.012 of the Texas Water Code.
(A)
The commission has general jurisdiction over the state's
water quality program including issuance of waste discharge permits, water
quality planning, and enforcement of water quality rules, standards, orders,
and permits.
(B)
The commission seeks to maintain the quality of water
in the state consistent with public health and enjoyment, the propagation
and protection of terrestrial and aquatic life, the operation of existing
industries, and the economic development of the state, and to require the
use of all reasonable methods to implement this policy.
(C)
The commission is responsible for review of applications
and subsequent issuance of waste discharge permits, temporary orders, emergency
orders, and registrations for authorization by rule.
(2)
TPWD. The responsibilities of TPWD relate primarily
to its functions as a natural resource agency, including its resource protection
functions, as designated by §12.001 of the Parks and Wildlife Code.
(A)
TPWD is the state agency with primary responsibility for
protecting the state's fish and wildlife resources.
(B)
TPWD provides recommendations that will protect fish and
wildlife resources to local, state, and federal agencies that approve, permit,
license, or construct developmental projects.
(C)
TPWD provides information on fish and wildlife resources
to any local, state, and federal agencies or private organizations that make
decisions affecting those resources.
(D)
TPWD regulates the taking, possession and conservation
of all kinds of marine life and other aquatic life.
(E)
TPWD regulates the introduction of fish, shellfish, and
aquatic plants into public water, pursuant to §66.015(b) of the Texas
Parks and Wildlife Code.
(F)
TPWD regulates the importation, possession and placing
into state water of harmful or potentially harmful exotic species of fish,
shellfish or aquatic plants, pursuant to §66.007(a) of the Texas Parks
and Wildlife Code.
(G)
TPWD is responsible for review of applications and subsequent
issuance of permits relating to the importation, possession and placing into
state water of harmful or potentially harmful exotic species of fish, shellfish
or aquatic plants, pursuant to §66.007(a) of the Texas Parks and Wildlife
Code.
(d)
Provisions. This MOU is to facilitate the coordination
and collaboration between the commission and TPWD with regard to aquaculture
facilities.
(1)
The executive director will provide notification to TPWD
of each application received which requests authorization for the discharge
or disposal of wastewater from aquaculture facilities. Notification shall
be mailed within 14 days of the stamped date of receipt. Notification shall
contain basic information on the proposed operation, including facility location,
name(s) of receiving water body, proposed flow rate and other similar descriptive
information so that TPWD may complete an initial assessment of the proposed
operation. Within 30 days of the date of transmittal of notification, unless
additional information is required, TPWD will complete its initial assessment
and;
(A)
provide the executive director with recommendations designed
to protect fish and wildlife resources, or
(B)
indicate that it has no comments. If no comments are received
within 30 days, the executive director will conclude that there are no comments
and continue its normal processing of the application.
(2)
Upon receipt of a request by TPWD for additional
information, the executive director will immediately provide such information
so long as it is contained in the application materials. If additional information
is not included in the application materials, and the information is necessary
for TPWD to make its evaluation, the executive director will request such
additional information from the applicant and provide it to TPWD as it becomes
available. If no information is forthcoming from the applicant, the executive
director will determine whether the application is technically sufficient
without such information. The executive director may then either file the
application and draft permit with the Office of Chief Clerk within the processing
time frames identified in agency rules or, in the event that the executive
director determines that this additional information is essential to complete
its technical review, determine whether it is appropriate to either suspend
processing or deem the application incomplete and return it to the applicant.
(3)
Upon receipt of additional information from the executive
director, TPWD will have 30 days to complete its review and either make its
final recommendations or indicate that it has no comments. If nothing is
received within 30 days, the executive director will conclude that there
are no comments and continue its normal processing of the application.
(4)
The scope of review by TPWD may include, but is not
limited to: consideration of especially sensitive receiving water conditions
(aquatic habitat), impacts of the discharge on substrate (scouring, sedimentation)
and water transparency, alteration of receiving water flow characteristics,
existing or attainable biological and recreational uses, discharge rate and
volume, and the likelihood of disease transmission.
(5)
Comments received from TPWD will be considered by
the executive director in making decisions on applications requesting authorization
for the discharge or disposal of wastewater from aquaculture facilities.
TPWD's comments will be evaluated in conjunction with all other applicable
factors and will be incorporated by the executive director whenever it is
consistent with the commission's responsibilities. In accordance with the
responsibilities of the commission as described in this document, the executive
director reserves the right to determine the final disposition of applications.
Upon making its preliminary recommendation regarding an application, the
executive director will provide a response to TPWD that contains a copy of
the draft permit, draft order, or final decision on an exemption or registration,
and documentation providing an explanation for any of TPWD's comments that
were not incorporated.
(6)
A new exotic species permit will not be issued by
TPWD to any aquaculture facility that proposes to discharge wastewater until
a commission waste discharge permit or other authorization has been issued
or it is determined that the facility is exempted from such requirements.
(7)
An interagency work group will be formed whose function
will be to meet at least annually to address aquaculture issues relating
to water quality, fish and wildlife resources, receiving stream habitat and
uses. This work group will serve to strengthen coordination of the commission
and TPWD activities related to the aquaculture industry and provide a conduit
for shared information. The work group shall be composed of members of each
agency and staffed at levels which are mutually agreeable as adequate to
accomplish the stated goals. Each agency shall designate a primary contact
person for this group and notify the other agency of any changes to the primary
contact person.
(8)
The executive director and TPWD will coordinate studies
related to applications that request authorizations for the discharge and
disposal of wastewater. This may include on-site visits, receiving water
assessments, sample collection, data analysis and related activities. Notification
of the activity noted in this section will be communicated to the appropriate
office at the other agency at least five days prior or as soon as is practicable.
TPWD will notify the appropriate commission Regional Office and Wastewater
Permits Section. The executive director will notify TPWD Resource Protection
Regional Office and headquarters.
(9)
The executive director and TPWD will strive to coordinate
responses to emergency conditions, investigation of unauthorized waste discharges,
and compliance inspections of aquaculture facilities. The executive director
and TPWD will provide notice to each other regarding site inspections, so
as to allow the other agency to participate if desired. Notifications of
scheduled compliance inspections will be communicated to the appropriate
office of the other agency at least five days beforehand. Notification of
other activities will be communicated as soon as practicable. TPWD will notify
the commission Regional Office and the executive director will notify TPWD
Resource Protection Regional Office.
(e)
General conditions.
(1)
The term of this MOU shall be from the effective date until
termination of this agreement. Any amendment to the MOU shall be made by
mutual agreement of the parties and shall be adopted by rule by both parties.
(2)
Each party shall adopt by rule the MOU. All amendments
shall also be adopted by rule. This MOU, and any subsequent amendment, shall
become effective 20 days after the date on which the rule is filed in the
office of the Secretary of State.
(3)
By signing this MOU, the signatories acknowledge that
they are acting upon proper authority from their governing bodies.
(4)
Any party may terminate this MOU so long as it provides
notice in writing to the other party 90 days in advance of the termination.
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 December 27, 1996.
TRD-9618658
Kevin McCalla
Director, Legal Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: January 3, 1997
For further information, please call: (512) 239-4640
30 TAC
(Editor's Note: The following proposed
sections submitted by the Texas Natural Resources will be serialized beginning
in the January 10, 1997, issue of the Texas Register.
50.
50. Action on Applications
.
Subchapter B. Action on Applications
Amendment - 30 TAC §50.17
Subchapter C. Action by Executive Director
New — 30 TAC §50.45
281.
Applications Processing
.
Undesignated Head: Applications Processing
Amendment — 30 TAC §§281.2, 281.3, 281.17-281.23
291.
Water Rates
.
Subchapter G. Certificates of Convenience and Necessity
Repeal — 30 TAC §291.108
295.
Water Rights, Procedural
.
Subchapter C. Notice Requirements for Water Use Permit Applications
Amendment — 30 TAC §295.158
Proposed date of adoption: April 2, 1997
297.
Water Rights, Substantive
.
Subchapter F. Amendments to Water Rights; Corrections to Water Rights
Repeal — 30 TAC §297.62
305.
Subchapter B. Emergency Orders, Temporary Orders, and Executive Director
Authorizations
New — 30 TAC §305.31, §305.32
Subchapter C. Application for Permit
New and Amendment — 31 TAC 305.41, 305.42, 305.44, 305.45, 305.52,
305.53, 305.54
Subchapter D. Amendments, Renewals, Transfers, Corrections, Revocation,
and Suspension of Permits
Repeal — 30 TAC §305.65
Amendment — 30 TAC §§305.62, 305.63, 305.66
321.
Control of Certain Activities by Rule
.
Subchapter O. Discharges from Aquaculture Production Facilities
New — 30 TAC §§321.271-321.280
Chapter 50, 281, 291, 295, 297, 305, 321, 331, 336,