TITLE natural-resources-and-conservation

Part XVI. Coastal Coordination Council

Chapter 504. Coastal Management Program

The Coastal Coordination Council (Council) proposes amendments to §504.1, relating to the Permitting Assistance Group, §504.10, relating to the scope of the Permitting Assistance Program, §504.11, relating to the Permitting Assistance Coordinator's functions, §504.13, relating to Assistance Products and Services, and §504.20, relating to Initiating the Preliminary Review Process. These amendments, which concern the Texas Coastal Management Program (CMP) Permitting Assistance Program, have three purposes. First, the amendments include certain technical revisions and "cleanup," including updating the rules to reflect that the permitting assistance coordinator (coordinator) is no longer an employee of the Texas Department of Economic Development and removing superfluous language in Appendix A of §504.10 of this rule. Specifically, §504.1(c) is added to reflect the status quo, which is that the chair of the Council appoints the coordinator with the advice of the four public members of the Council.

Second, based on experience gained from implementation of the CMP, the amendments refine and clarify the role of the coordinator with respect to individual permit applications pending before an agency. The Council is amending §504.11 and simultaneously proposing the repeal of §504.12 in order to establish that the coordinator's role is to assist the applicant and monitor the status of permit applications as well as identify differences between agencies over rules, interpretations or policies that create the potential for delay in agency permitting decisions. Under §504.12, a disagreement between agencies is a prerequisite to the coordinator's ability to provide certain types of assistance. Consequently, some applicants have inferred from §504.12 that the coordinator has the authority to resolve the conflict. The rules, however, do not give the coordinator such authority. Moreover, the statutory authority for this program does not predicate assistance to applicants upon the existence of interagency conflicts. Accordingly, these amendments delete the prerequisite of an interagency conflict and focus the coordinator's efforts on assisting applicants in producing all the information necessary for the permitting agency to decide on the permit application.

Third, the amendments clarify the roles of the coordinator and the Permitting Assistance Group (PAG) in resolving general differences among agencies and otherwise improving permitting processes. Section 504.11(2) is amended to establish that the coordinator is responsible for bringing recurring or general permitting issues, as opposed to issues with individual applications, to the attention of the PAG for discussion and resolution and for reporting the outcome to both the Council's executive committee and the Council.

Ms. Sally Davenport, associate deputy commissioner for resource management, has determined that for the first five-year period the rules are in effect there will be no fiscal implications for state government and positive fiscal implications for local governments as a result of administering the amendments. The rules will require no additional staff or resources to implement. The rules will make the CMP Permitting Assistance Program more effective and coastal local governments, who are eligible to receive permitting assistance, as well as small businesses and individuals, will have to expend fewer resources in the course of preparing permit applications and steering those applications through the permitting process.

Ms. Davenport also has determined that for the first five-year period the rules are in effect the public benefit expected is more efficiency in the permitting processes and applicants will expend fewer resources preparing permit applications. There will be no economic costs to small businesses. Small businesses in the Texas coastal zone are eligible to receive permitting assistance under the CMP Permitting Assistance Program. Therefore, they will expend fewer resources in the course of preparing permit applications.

Comments on the proposed amendments may be submitted to Ms. Carol Milner, Texas General Land Office, Texas Register Liaison, 1700 N. Congress Ave., Room 626, Austin, Texas, 78701-1495. Fax: (512) 463-6311. In order to be considered, comments must be received by 5 p.m., March 29, 1999.

Subchapter A. Permitting Assistance

31 TAC §504.1

The proposed amendments are pursuant to the rule-making authority in Texas Natural Resource Code §33.205(f) and (g).

Texas Natural Resource Code §33.205(f) and (g) are affected by the amendments to this section.

§504.1.Permitting Assistance Group.

(a)

The Permitting Assistance Group (PAG) has three functions.

(1)

The PAG provides permitting assistance to individuals and small businesses. The purpose of the Permitting Assistance Program [ Small Business Permitting Assistance Program (SBPAP) ] is [ both ] to serve as an outlet for basic permit information and to give individuals and small businesses direct access to agency staff so that they can receive project-specific assistance during the preapplication phase. The PAG also serves as a forum in which agencies can discuss and resolve differences over rules, interpretations, or policies and otherwise work to improve permitting processes.

(2)

The PAG conducts preliminary reviews of proposed permits submitted by individuals and small businesses. The primary purpose of preliminary reviews is to create greater predictability in permitting processes in the following ways.

(A)-(B)

(No change.)

(C)

The preliminary review process does not supplant the regular permitting process. Because its purpose is to foster predictability and not reach a final result, preliminary reviews may produce statements that must be qualified because the information provided by the applicant is incomplete, the review time is shorter, or public comment has been minimal.

(3)

The PAG provides individuals and small businesses applying for federal licenses or permits assistance in complying with CMP consistency requirements pursuant to 15 CFR §930.56. [ The preliminary review process does not supplant regular permitting processes. Its purpose is to foster predictability, not reach a final decision. Accordingly, preliminary reviews may produce statements or findings that must be qualified because information may be incomplete, review times shorter, or public comment minimal. ]

[ (4)

Under 15 CFR §930.56, the Council must provide applicants for federal licenses or permits assistance regarding the CMP consistency requirements applicable to the licenses or permits. The PAG will provide applicants for federal licenses or permits with that assistance. ]

(b)

Each council member representing an agency shall appoint a representative to the PAG. Each agency's PAG representative is responsible for providing the information that his or her [ their ] agency is required to provide under these rules. Council members not representing agencies may appoint a representative to the PAG.

(c)

The land commissioner, with the advice of the public members of the Council, shall appoint a Permitting Assistance Coordinator.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 16, 1999.

TRD-9900965

David Dewhurst

Chairman

Coastal Coordination Council

Earliest possible date of adoption: March 28, 1999

For further information, please call: (512) 305-9129


Subchapter B. [ Small Business ] Permitting Assistance Program

31 TAC §§504.10, 504.11, 504.13

The proposed amendments are pursuant to the rule-making authority in Texas Natural Resource Code §33.205(f) and (g).

Texas Natural Resource Code §33.205(f) and (g) are affected by the amendments to this section.

§504.10.Scope of the [ Small Business ] Permitting Assistance Program.

(a)

The Permitting Assistance Program [ SBAP ] is intended to provide assistance to individuals and small businesses. As used in this chapter, the term small business includes cities, counties, and special districts.

(b)

Assistance will be provided to individuals and small businesses for proposed activities in the coastal zone requiring either one or more agency or subdivision actions subject to the Coastal Management Program (CMP) or equivalent federal actions. These actions are listed in subsection (c) of this section [ "Appendix A" ].

[ Figure: 31 TAC §504.10(b) ]

(c)

Appendix A. Individual Agency or Subdivision Actions and Equivalent Federal Actions

(1)

The land office, the School Land Board, or a board for lease of state-owned lands shall comply with Texas Natural Resource Code §33.205(a) and (b) when issuing or approving:

(A)

a mineral lease plan of operations;

(B)

a geophysical or geochemical permit;

(C)

a coastal easement;

(D)

a miscellaneous easement;

(E)

a coastal lease;

(F)

a surface lease;

(G)

a structure registration;

(H)

a cabin permit;

(I)

a navigation district lease;

(J)

certification of a local government beach access or dune protection plan; or

(K)

an agency or subdivision wetlands mitigation bank.

(2)

The Public Utility Commission of Texas shall comply with Texas Natural Resource Code §33.205(a) and (b) when issuing a certificate of convenience and necessity.

(3)

The Railroad Commission of Texas shall comply with Texas Natural Resource Code §33.205(a) and (b) 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)

The Texas Transportation Commission shall comply with Texas Natural Resource Code §33.205(a) and (b) 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)

a transportation construction project or maintenance program.

(5)

The Texas Historical Commission and the Antiquities Committee shall comply with Texas Natural Resource Code §33.205(a) and (b) 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)

The Texas Natural Resource Conservation Commission shall comply with Texas Natural Resource Code §33.205(a) and (b) 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 for the purpose of construction of 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 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; or

(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.

(7)

The Parks and Wildlife Department shall comply with Texas Natural Resource Code §33.205(a) and (b) 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 Parks and Wildlife Department that requires the use or taking of any public land in a state park, wildlife management area, or preserve.

(8)

A subdivision shall comply with Texas Natural Resource Code §33.205(a) and (b) when issuing a dune protection permit or beachfront construction certificate that authorizes:

(A)

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;

(B)

construction activity that results in the disturbance of more than 7,500 cubic yards of dunes;

(C)

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

(D)

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.

(9)

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 under a rule that the council has certified under Texas Natural Resource Code §33.2052 and:

(A)

for a wastewater discharge permit, if the action is not a major permit modification that would:

(i)

increase pollutant loads to coastal waters; or

(ii)

result in relocation of an outfall to a critical area;

(B)

for solid, hazardous, or nonhazardous waste permits, if the action is not a Class III modification under rules of the Texas Natural Resource Conservation Commission; or

(C)

for any other action, if the action:

(i)

only extends the period of the existing authorization and does not authorize new or additional work or activity; or

(ii)

is not directly relevant to Texas Natural Resource Code §§33.205(a) and (b).

(10)

The council shall establish a program boundary to limit the geographic area in which the requirements of Texas Natural Resource Code §§33.205(a) and (b) apply. The boundary is the coastal facility designation line as defined by Appendix 1 to 31 TAC §19.2 as that appendix existed on the effective date of this section, as modified by Texas Natural Resource Code §33.203(7). Except as provided by paragraph (6)(A)-(J) of this subsection, this subchapter does not apply to an agency action authorizing an activity outside the program boundary.

(11)

The following are the equivalent federal actions:

(A)

Environmental Protection Agency: National Pollution Discharge Elimination System (NPDES) permits under 33 United States Code Annotated, §1342.

(B)

United States Army Corps of Engineers: Dredge and fill permits under 33 United States Code Annotated, §1344.

§504.11.Permitting Assistance Coordinator.

The permitting assistance coordinator (coordinator) will perform the following functions:

(1)

Assistance [ Administrative ] Function: When an applicant requests assistance, the coordinator shall be responsible for assisting the applicant and monitoring the status of the application until the permitting agency has all information necessary to decide to issue, condition, or deny the permit. The coordinator shall , upon the request of the applicant, be responsible for coordinating [ scheduling and conducting ] permitting assistance meetings between agencies' staff and small businesses and individuals to provide follow-up assistance and other products and services described in §504.13 of this title (relating to Assistance Products and Services).

(2)

Reporting [ and Ombudsman ] Function: The coordinator is responsible for identifying either differences between permitting agencies over rules, interpretations, or policies or any practice that creates the potential for delay in agency permitting decisions. The coordinator is responsible for reporting such matters to the PAG, placing them on the agenda of PAG meetings for discussion, and reporting to the Council and Council's Executive Committee on the disposition of those issues. Prior to each Council and Executive Committee meeting, [ Each month, ] the coordinator shall prepare and send to each council member a report containing data documenting the volume of permitting assistance requests and the results and effectiveness of permitting assistance activities. [ The coordinator shall be responsible for notifying agencies' PAG members when an application either cannot be completed and filed or may be denied because of a disagreement between agencies on application or permitting requirements. The agencies' PAG members shall be responsible for determining whether the disagreement can be resolved within the agencies' legal authority and reporting the results to the coordinator for inclusion in the monthly report to council members. ]

(3)

Outreach Function: The coordinator shall develop and implement a plan for maximizing small businesses' and individual's usage of the [ Small Business/Individual ] Permitting Assistance Program, including publicizing the program and increasing its accessibility to business groups and other organizations in communities in all parts of the coastal zone. The plan must be approved by the council members representing coastal citizens, coastal businesses, coastal local governments, and agriculture.

§504.13.Assistance Products and Services.

Upon the request of an individual or small business applicant, the permitting assistance coordinator shall provide the following:

(1)

[ (a) ] A list of permits or other approvals necessary for the proposed activity.

(A)

[ (1) ] This informs the individual and small business of what agencies or subdivisions must review and approve the proposed activity.

(B)

[ (2) ] This list may [ will ] be provided through the Texas Department of Economic Development [ TDOC ] comprehensive permit application procedure.

(2)

[ (b) ] A simple, understandable statement of all permit or approval requirements.

(A)

[ (1) ] This gives the individual and small business an initial indication of how the proposed activity must be designed, carried out, or maintained to receive the approvals identified under subsection (a) of this section.

(B)

[ (2) ] This information will be provided in the form of generic Texas Department of Economic Development [ TDOC ] materials.

(3)

[ (c) ] A coordinated schedule for each agency's or subdivision's decision on the action.

(A)

[ (1) ] This informs the individuals and small business of when and in what order the permitting agencies or subdivisions identified under subsection (a) of this section will review the proposed activity and decide to approve or disapprove the applications for the proposed activity.

(B)

[ (2) ] This information will be provided in the form of generic Texas Department of Economic Development [ TDOC ] materials.

(4)

[ (d) ] A list of all information the agencies or subdivisions need to declare the applications for the permits or other approvals administratively complete.

(A)

[ (1) ] This informs the individual and small business of the information that must be collected and included in each application before the permitting agencies or subdivisions can begin the review and approval process.

(B)

[ (2) ] This is a project-specific analysis of what information the applicant will need to supply with the applications. This analysis will, at a minimum, describe the information needed for the application to be declared administratively complete. It may also include additional information that would help expedite evaluation, processing, and action on the permit or other approval.

(5)

[ (e) ] Follow-up assistance:

(A)

[ (1) ] The purpose of follow-up assistance is to give the individual and small business the opportunity to obtain additional project-specific information from the appropriate permitting agencies and subdivisions after the small business has received the information as set forth in subsections (a), (b) (c) and (d) of this section. This gives the individual and small business the opportunity to describe the small business' needs more specifically and obtain explanations or clarifications about what information or data to produce and include with applications or how to complete applications.

(B)

[ (2) ] If the individual and small business needs follow-up assistance from more than one agency or subdivision, the coordinator will arrange a meeting or telephone call with the representatives of those agencies or subdivisions.

(C)

[ (3) ] Where possible, follow-up assistance will be provided at locations in the coastal zone.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 16, 1999.

TRD-9900966

David Dewhurst

Chairman

Coastal Coordination Council

Earliest possible date of adoption: March 28, 1999

For further information, please call: (512) 305-9129


Subchapter C. Preliminary Consistency Review

31 TAC §504.20

The proposed amendments are pursuant to the rule-making authority in Texas Natural Resource Code §33.205(f) and (g).

Texas Natural Resource Code §33.205(f) and (g) are affected by the amendments to this section.

§504.20.Initiating the Preliminary Review Process.

(a)

Any person seeking a permit or other proposed action listed in Appendix A of §504.10 [ §504.10(b) ] of this title (relating to Scope of the [ Small Business ] Permitting Assistance Program) or an agency or subdivision proposing an action listed in [ 504.10(b) ] Appendix A may request a preliminary review.

(b)-(d)

(No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 16, 1999.

TRD-9900967

David Dewhurst

Chairman

Coastal Coordination Council

Earliest possible date of adoption: March 28, 1999

For further information, please call: (512) 305-9129


Subchapter B. Permitting Assistance Program

31 TAC §504.12

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Coastal Coordination Council or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The Coastal Coordination Council (Council) proposes the repeal of §504.12 concerning the Texas Coastal Management Permitting Assistance Program (CMP). The purpose of the repeal is to refine and clarify the role of the permitting assistance coordinator (coordinator) with respect to individual permit applications pending before an agency. The Council, simultaneously with this repeal, is proposing amendments to §504.1, relating to the Permitting Assistance Group, §504.10, relating to the scope of the Permitting Assistance Program, §504.11, relating to the Permitting Assistance Coordinator's functions, §504.13, relating to Assistance Products and Services, and §504.20, relating to Initiating the Preliminary Review Process.

Section 504.12 is proposed for repeal and amendments to §504.11 are simultaneously proposed in order to establish that the coordinator's role is to advise and assist applicants regarding information permitting agencies require applicants to produce before permits can be issued. This is intended to refine and clarify the coordinator's role in light of experience with the implementation of the program. Under §504.12, a disagreement between agencies is a prerequisite to the coordinator's providing certain types of assistance. Consequently, some applicants have inferred from this that the coordinator has the authority to resolve the conflict. To the contrary, the rules do not give the coordinator any authority to mediate or arbitrate disagreements between agencies.

The statutory authority for this program does not predicate assistance to applicants upon the existence of interagency conflicts. Accordingly, the amendments to §504.11 delete the prerequisite of an interagency conflict and focus the coordinator's efforts on helping applicants produce all the information needed to allow the permitting agency to make a decision on the permit.

Ms. Sally Davenport, associate deputy commissioner for resource management, has determined that for the first five-year period the repeal is in effect there will be no fiscal implications for state government and positive fiscal implications for local governments as a result of administering the amendments. Because the repeal will make the CMP Permitting Assistance Program more effective, coastal local governments, who are eligible to receive permitting assistance, as well as small businesses and individuals, will have to expend fewer resources in the course of preparing permit applications and steering those applications through the permitting process.

Ms. Davenport also has determined that for the first five-year period the repeal is in effect the public benefit expected is that the permitting process will operate more efficiently and applicants will expend fewer resources preparing permit applications. There will be no economic costs to small businesses. Small businesses are in the Texas coastal zone and are eligible to receive permitting assistance under the CMP Permitting Assistance Program. Therefore, they will expend fewer resources in the course of preparing permit applications.

Comments on the proposed repeal may be submitted to Ms. Carol Milner, Texas General Land Office, Texas Register Liaison, 1700 N. Congress Ave., Room 626, Austin, Texas, 78701-1495. Fax: (512) 463-6311. In order to be considered, comments must be received by 5 p.m., March 29, 1999.

This repeal is pursuant to the Council's rule-making authority in Texas Natural Resource Code §33.205(f) and (g).

Texas Natural Resources Code, Ann. §33.205(f) and (g) are affected by the repeal of this section.

§504.12.Initial Customer Needs Assessment.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 8, 1999.

TRD-9900794

David Dewhurst

Chairman

Coastal Coordination Council

Earliest possible date of adoption: March 28, 1999

For further information, please call: (512) 305-9129