31 TAC §§357.2, 357.4 - 357.7, 357.10 - 357.13
The Texas Water Development Board (the board) adopts amendments
to §§357.2, 357.4 - 357.7, and 357.10 - 357.13 concerning the Regional
Water Planning Guidelines. Sections 357.2, 357.5 - 357.7, 357.11 and 357.12
are adopted with changes to the proposed text as published in the April 6,
2001, issue of the
Texas Register
(26 TexReg
2635). Sections 357.4, 357.10 and 357.13 are adopted without changes and will
not be republished. The changes are based on recommendations received from
regional water planning groups, their consultants, board staff, and the public
regarding the first round of regional water planning. These amendments are
designed to improve the regional water planning process.
The amendment to §357.2 adds a definition for wholesale water provider.
This assists the regional water planning groups in more accurately identifying
suppliers of water for regional needs pursuant to §16.053 of the Texas
Water Code. It will also broaden the scope of the planning performed because
the board will provide each regional water planning group with a list of the
persons and entities that qualify as wholesale water providers. The definition
was revised from the proposed version based on comments received that stated
that some water suppliers were not properly included in the definition. The
board removed the language that made it discretionary to add some water suppliers
and made the language mandatory. The board also revised the definition to
make it clear the determination of wholesale water provider is based on wholesale
sales during the planning period, not the planning cycle, in order to have
proper inclusion of all wholesale water providers in the planning analysis.
This will not cause a larger number of water providers to be evaluated and
planned for than in the current process where the regional water planning
groups designate major water providers at their discretion. This change will
provide a more complete planning process and recognizes the complex water
transactions that occur in Texas where water may be sold several times before
reaching the ultimate user. It will also provide uniformity in the designation
and analysis of water providers. The section was also further revised from
its proposed version based on public comment to substitute the term "retail
public utility" for "utility" in §357.7 and to define retail public utility
consistently with Chapter 13 of the Texas Water Code. Retail public utility
is added and defined as described in §13.002(19), Texas Water Code. This
will ensure thorough planning and will avoid unnecessary confusion.
Amendments to §357.4 require non-voting regional water planning group
members to be provided the same notification and materials that voting members
are provided. This will enable non-voting members to be more effective on
the group and ensure more participation in the planning process. The rest
of the changes to this section are renumbering changes to account for this
new requirement.
The amendments to §357.5(d)(1) and (2) add the Texas Department of
Agriculture as an agency that the board will consult when adopting state population
and water demand projections. The proposed rule has been further revised based
on comments received recommending the regional water planning groups also
be added as consultant. These amendments will ensure that the board has gathered
as much information as possible to provide accurate projections. Due to public
comment, the proposed §357.5(d)(2) has been further revised to provide
criteria for when it is appropriate for a regional water planning group to
request revisions to the population and water demand projections. By requiring
requests to demonstrate that new information or changed conditions requires
a change to the projections, revisions will only be done when necessary and
the regional water planning groups will have notice of what evidence they
must present to request a revision. Further, the revisions also require the
regional water planning groups to hold a public meeting on the revision request
prior to submitting the request to the board. The public must have an opportunity
to submit oral and written comments and these comments will be summarized
in the request for revisions. This will ensure the public has meaningful comment
opportunities prior to the adoption of revisions to projections.
The amendments to §357.5(e)(1) and (4) are to clarify the regional
water planning groups' responsibility to adjust their water management strategies
to provide for environmental needs, to include environmental analyses in the
planning process, and to clarify the information about environmental impacts
of water management strategies that must be included in the regional water
plans. This amendment will help protect natural resources as required by Texas
Water Code §16.053(a) and provide environmental information for evaluating
water management strategies as required by Water Code §16.053(e)(5)(F).
Based on public comment, the board revised the first sentence of §357.5(e)(1)
to remove a typographical error from the proposed rule. The phrase "on water
management strategies" was removed from the end of the first sentence of the
paragraph. This will ensure the paragraph is correct and understandable.
In addition, the changes to §357.5(e)(4) will also require the regional
water planning groups to state and document why cost-effective water management
strategies that are environmentally sensitive are not considered and adopted.
The proposed rule was further revised based on comment to provide criteria
for determining cost-effectiveness and environmental sensitivity. The board
revised the rules to require the regional water planning groups to use the
criteria described in §357.7(a)(8)(i) and (ii). This will provide the
regional water planning groups with guidance and utilize analyses already
required for planning. The regional water planning groups are also required
to submit to the public for comment, during a public meeting, the process
by which they will identify those water management strategies that are potentially
feasible to meet the needs of the region. These changes will provide a better
public understanding of the process, thus improving the public's participation,
and ensure a better description of the regional planning groups' analysis
process, including their analysis of environmental impacts.
The amendment to §357.5(e)(5) remove unnecessary language to clarify
that regional water plans must incorporate water conservation planning and
drought contingency planning as required by Texas Water Code §16.053(e).
The amendment to §357.5(e)(7) clarifies that the drought triggers
must apply to the sources of water used to supply water users. This change
is to clarify an incorrect reference and will provide the regional water planning
groups more guidance on the use of drought triggers in their regional water
plans.
The deletion of §357.5(m) is to remove a subsection that will no longer
apply. This subsection applied to actions of a regional water planning group
before the adoption of a regional water plan. The 16 regional water planning
groups have now adopted regional water plans.
Amendments to §357.6 remove the requirement that regional water planning
groups send inquiry letters to all other regional water planning groups about
the need to form informational subareas. The amendment changes this to a discretionary
function of the regional water planning groups. This will save costs associated
with sending out numerous letters inquiring about informational subareas and
lets the regions choose when and where the subareas would best be formed.
The section does retain, however, the requirement that the information subarea
be formed if one regional planning group has asked for it and the conditions
of the section are met. The board revised the proposed rule based on comments
received. The section has been revised to make it clear the request to form
an information subarea must come from a regional water planning group and
undeleted the language that had been deleted in the proposed rules regarding
developing the scope of work to describe how information will be exchanged
by the regional water planning groups in the information subarea. These revisions
will remove any confusion regarding forming an information subarea and will
establish the process for exchanging information prior to planning activities.
Amendments throughout §357.7 would remove the term major water provider
and replace it with wholesale water provider. As noted above, wholesale water
provider is a broader term and will enhance the scope of water planning by
requiring a more detailed review of projected demands, adequacy of existing
supplies, needs and potential solutions for these wholesale water providers.
Based on a public comment received, the board further revised proposed §357.7
to replace the term "utility" with "retail public utility" as defined by Chapter
13 of the Texas Water Code to ensure inclusion of municipal corporations,
water supply corporations, and political subdivisions of the state within
the definition, which will ensure proper planning analysis. The phrase "for
municipal use" has also been added to proposed §357.7 in response to
the public comment with regard to retail public utilities that provide more
than 280 acre-feet per year to further clarify the intent of the section and
to prevent municipal corporations, water supply corporations, and political
subdivisions from being excluded from the analysis. The board further revised §357.7
due to public comment to remove all references to the requirement that regional
water planning groups designate in their contracts with the board which counties
will be reported by individual utilities and which will be reported by wholesale
water provider or other reporting unit. This will provide the regional water
planning groups more time to determine how to report for the counties within
their region and ensure better analyses in the regional water plans.
The amendments to §357.7(a)(1) add the phrase "businesses dependent
on natural water resources" to the analysis required of the regional water
planning groups of the economic activities in the region. This is to encourage
the regional water planning groups to identify and consider those businesses
that operate on natural water resources, such as boat rental businesses and
guided fishing tours, and provide a more complete analysis of the regions.
Amendments to §357.7(a)(2) - (5) would break the paragraphs into two
subparagraphs to clarify that analysis should be by city, utility, and category,
as well as wholesale water provider. Counties with more than five utilities
that supply more than 280 acre-feet of water per year may be evaluated at
the level of wholesale water provider or some other common association, rather
than utility. This option for counties with more than five utilities acknowledges
that meaningful analysis of water demands and needs can be done at a higher,
more cost-effective level in some cases. This will result in regional water
plans that are more detailed and comprehensive, thus increasing the quality
of the regional water plans.
Proposed §357.7(a)(2) was revised based on public comments recommending
that the water savings from the use of the plumbing fixtures identified in
Chapter 372 of the Texas Health and Safety Code should be included in the
demand analysis, not the supply analysis. This water savings was in the demand
analysis in the first round of regional water planning and keeping it there
will avoid unnecessary confusion for the next round of planning.
The proposed §357.7(a)(3) was revised based on public comments received
regarding water availability and using a standard other than firm yield. The
proposed rule has been revised to state that current available water supplies
includes only that water that is physically and legally available at the time
the regional water planning group begins its analysis under this section.
The proposed rule was also revised to allow the regional water planning groups
to use an operational procedure other than firm yield when analyzing surface
water during the drought of record so long as the amount of water available
does not exceed the system firm yield. This will delegate more authority to
the regional water planning groups in determining the best procedure to use
to determine water availability and drought response while maintaining uniformity
and consistency among the regional water plans. Amendments to this section
also require the regional water planning groups to use the Texas Natural Resource
Conservation Commission's water availability model information and the board's
groundwater availability model information once it is available unless better
site-specific information is available for use. This will provide the regional
water planning groups with the most accurate data and enhance the value of
the regional water plans. The changes also allow regional water planning groups
to assume that water supplies based on contractual agreements will continue
past the existing term of the contract if the contract contemplates renewal
or extension. This reflects the reality that such contracts are typically
renewed or extended.
Amendment to §357.7(a)(5) will require the water management strategies
recommended by the regional water plans to meet the water supply obligations
necessary to implement recommended water management strategies of wholesale
water providers and water users for which drought of record plans are developed
under the paragraph. This change will improve the quality and effectiveness
of the plans for drought of record to provide a sufficient supply of water.
Amendments to §357.7(a)(6) allow the regional water planning groups
to present data in units smaller than those required by §357.7(a)(2)
- (5). This allows the regional water planning groups to determine the appropriate
reporting unit if they wish to focus on smaller units.
The amendments to §357.7(a)(7) require the regional water planning
groups to consider and adopt water conservation strategies unless it is inappropriate
and documents its reasons. This change will enhance the consideration of water
conservation in regional water plans. Further, several regions recommended
this change as a means of more specifically addressing conservation in the
regional water plans. The amendments also simplify the evaluation requirements
for water management strategies. This will simplify the data that the regional
water planning groups need to report in their regional water plans. Based
on public comments received, the board further revised the proposed rule to
separate water conservation and drought response into separate subparagraphs
to make it clear the two concepts are separate and distinct. This will avoid
confusion and ensure compliance with the requirements for regional water planning
in §16.053, Texas Water Code. To further clarify that these concepts
are separate and to avoid confusion with the term "water management strategies,"
the board also renamed these concepts "water conservation practices" and "drought
management measures." Also based on public comment, the board added aquifer
storage and recovery to the list of water management strategies involving
new supply development in proposed §357.7(a)(7)(E). The proposed rules
had deleted aquifer storage and recovery from the list of potential water
management strategies but it is a valid water management strategy that should
be listed.
The amendments to §357.7(a)(8) require the regional water planning
groups to include in their regional water plans a clear discussion of the
cost, quantity, and environmental impacts associated with each water management
strategy evaluated in terms of present costs and discounted present value
costs. The method of analysis must be determined before the analysis begins.
The amendments also add the effects on water quality as a factor that must
be considered when evaluating water management strategies. These changes will
assist the regional water planning groups in evaluating water management strategies
and will ensure that all of the required analyses of Texas Water Code §16.053
are included. It more thoroughly defines the environmental analysis that must
be done for water management strategies. It will also provide the public with
a clear discussion of alternatives and means to make comparisons. The amendments
to 357.7(a)(8) also add standards for analysis of interbasin transfers. Based
on public comment, this provision was revised to make it clear interbasin
transfers as used in this section only applies to surface water. This will
ensure that all regional water plans include the same elements in their analysis
and will provide information needed by the Texas Natural Resource Conservation
Commission when reviewing interbasin transfers. Due to public comment, the
board also revised §357.7(a)(8)(C) to clarify what is meant by an evaluation
of the threats to agricultural and natural resources in the regional water
planning area. By referring to §357.7(a)(1), the regional water planning
groups will know which threats are to be evaluated and will prevent them from
performing unnecessary work. This will enhance the regional water plans and
avoid unnecessary expense.
The proposed changes to §357.7(a)(8)(A)(ii) are withdrawn due to the
passage of Senate Bill 2 during the 77th Session of the Texas Legislature.
This bill enacts changes that will affect the analysis described in §357.7(a)(8)(A)(ii)
and, therefore, the board will need to revise this rule in the future. Because
the proposed revisions need to be amended in the future, they are withdrawn
and the language remains unchanged.
The amendments to §357.7(a)(9) remove a redundant term from §357.7(a)(9)(B).
This subsection requires the regional water planning groups to make specific
recommendations of water management strategies or long-term scenarios to meet
long-term needs. It further defines long-term scenario as a combination of
various water management strategies. Removing the word "alternatives" from
this subsection clarifies the meaning of scenarios and removes confusion of
the work to be performed.
The addition of §357.7(a)(11) requires the regional water planning
groups to have a separate chapter in the regional water plans to consolidate
the water conservation and drought management recommendation of the regional
water plans. This will make it much easier for the board and the public to
identify the water conservation and drought management strategies of the regional
water plans, which will facilitate the board and the public making effective,
timely comments on initially prepared plans. This will also enhance the public
participation, which is a cornerstone of the §16.053 of the Texas Water
Code.
The amendments to §357.10 clarify that the regional water planning
groups must submit their initially prepared regional water plans, adopted
regional water plans, and data in the format required by this chapter and
the executive administrator. This ensures consistency of the plans and data
submitted and ensures that the requirements of §16.053 of the Texas Water
Code and this chapter are met. The amendments require the regional water planning
groups to include, in their regional water plans, a summary of the comments
received from the public, the board, other Texas state agencies, and federal
agencies. The amendments also clarify that the regional water planning groups
are required to explain how the regional water plan was changed based on the
comments received or state why a change was unnecessary. These amendments
ensure meaningful public participation in the planning process, a cornerstone
of Texas Water Code §16.053, by making sure they have the ability to
address the initially prepared regional water plans and that their comments
will be considered by the regional water planning groups. It also results
in regional water plans that have considered comments from all sources.
Amendments to §357.11 change some of the requirements for submitting
initially prepared regional water plans and clarify that the regional water
planning groups submit their initially prepared regional water plans to the
public at the same time they are submitted to the board. The changes require
the regional water planning groups to certify that the initially prepared
plan is complete and that it has been adopted by the group. This will help
ensure that the requirements of Texas Water Code §16.053 and chapters
355, 357, and 358 of this title are met. The changes will improve the efficiency
of plan adoption process, allow the regional water planning groups to start
collecting comments on the initially prepared plan from all sources at the
same time, and assures the public that it is receiving an initially prepared
plan that is thoroughly considered.
The amendments to §357.11 also extend the time the board has to provide
comments on the initially prepared plans from 30 to 120 days. The changes
establish that the time period state and federal agencies have to submit comments
is also 120 days. This will provide the board and other governmental agencies
with sufficient time to study the initially prepared plans and make appropriate
and comprehensive comments. Each of these entities is reviewing plans from
all regions and should be given a longer time to review the plans. Also, the
short time deadlines of the initial regional water planning cycle are not
a factor in the future cycles. Based on public comment, the board also extended
the time the public has to comment on the initially prepared plans from 60
days to a minimum of 90 days. The regional water planning groups will have
to accept public comment at least 30 days before the public hearing held on
the plan and then at least another 60 days after the public hearing. Lastly,
public comment also prompted the board to add a 30-day comment period for
regional water plan amendments. A shorter comment period for amendments is
justified because amendments do not involve the review of entire regional
water plans, only those sections that are being amended. These changes will
guarantee the public the ability to comment on any regional water plan being
adopted and will provide sufficient time to submit meaningful comments to
the regional water planning groups.
The amendments to §357.12 would clarify that the regional water planning
groups must adopt an initially prepared plan before the public hearing. This
change is similar to the one in §357.11 and assures the public that it
is receiving and commenting on a thoroughly considered initially prepared
plan. It provides the public with an initially prepared plan that is one step
away from becoming the adopted plan of the regional water planning group.
Therefore, comments made by the public and others would be directly considered
for potential revision and adoption in the regional water plan.
The amendments to §357.12(b) provide the regional water planning groups
with alternative places they may place copies of their initially prepared
regional water plan in compliance with §16.053(h)(3) of the Texas Water
Code. That section requires placement of the initially prepared plan in each
county courthouse in the region. Existing rules require the initially prepared
plan to be placed in the county clerk's office. Some of the regional water
planning groups had been required to pay a substantial fee to county clerks
for posting their initially prepared regional water plans in county clerks'
offices. This amendment will provide less costly alternatives that fit the
requirements of the state law. Based on public comment, the proposed §357.12(b)
was further amended to make it clear that the regional water plans must be
provided to at least one public library in each county that is within the
regional water planning area to provide the public with access to the plans
for review and copy. This change merely clarifies an existing requirement.
The amendments to §357.12(d) require the regional water planning groups
to publish their agenda, meeting notices, initially prepared regional water
plans, and adopted regional water plans on the Internet. The amendments provide
that the regional water planning groups can satisfy this requirement by submitting
their material to the board for publishing on the board's web site. This will
provide the public with an easy way to access regional water planning material
and enhance public participation.
Lastly, the amendments to §357.13 clarify that projects brought to
the board for funding must be consistent with the approved regional water
plans, as required by §16.053(j) of the Texas Water Code. The changes
describe how the board will determine if a project is consistent with an approved
regional water plan.
The board conducted a hearing on the proposed rules on April 23, 2001,
in Room 118, Stephen F. Austin Building, 1700 North Congress Avenue, Austin,
Texas. The following made comments to board staff, either written or orally,
at the public hearing or within the prescribed period following the publication
of the proposed rules. The South Central Texas Regional Water Planning Group,
the National Wildlife Federation, the Texas Committee on Natural Resources,
the Environmental Defense Fund, the Texas Center for Policy Studies, the Lone
Star Chapter of the Sierra Club, the TeXas Economist, and individuals.
An individual commented that there seems to be a conflict between the board's
rules, especially the definition of wholesale water provider in §357.2(9),
and the Texas Natural Resource Conservation Commission's application and approval
process for certificates of convenience and necessity because it appears wholesale
water providers are being given a superior position. The board makes no change
to the rules based on this comment. The designation of wholesale water providers
is a tool for planning for water. Based on the first round of regional water
planning, the board determined that there is a need to broaden the scope of
planning in the next round. Using wholesale water providers will bring uniformity
to the regional plans while causing the analysis to take into account the
complex water transactions that occur in Texas through wholesale water providers.
There is no preference given to wholesale water providers by these rules.
The South Central Texas Regional Water Planning Group commented that the
proposed change to §357.2(9) is helpful but fails to provide for proper
inclusion of water suppliers such as Bexar Metropolitan Water District. It
recommended the language be amended to include wholesale water providers and
retail water providers. The board adopts a change to §357.2(9) based
on this comment. The board amends the definition of wholesale water provider
to require the inclusion of entities that expect to enter contracts to sell
more than 1000 acre-feet of water wholesale during the planning period to
ensure inclusion of all significant wholesale water providing entities. However,
the board does not add retail water providers to the definition because they
are already included in §357.7 in the language requiring analysis by
retail public utilities that provide more than 280 acre-feet per year.
The South Central Texas Regional Water Planning Group commented that it
supports the changes to §357.4. The commentor has requested no change
but supports the rule as published.
Texas Parks and Wildlife commented that it supports the changes to §357.4
because it is necessary in order for the non-voting members to effectively
support the regional water planning groups. The commentor has requested no
change but supports the rules as published.
The South Central Texas Regional Water Planning Group commented that it
concurs with the addition of the Texas Department of Agriculture to the list
of consultants the board will use for developing population and water demand
projections in §357.5(d)(1), but it recommends the section be further
revised to include the regional water planning groups as consultants, as well.
The group also commented that the first round of regional water planning required
the regional water planning groups to use dry year water use coefficients
that resulted in the development of plans to meet needs as if every year is
going to be a dry year. It suggests the methods and data used in calculating
projections be revised. The board adopts a change to §357.5(d)(1) based
on this comment. The section is revised to include regional water planning
groups as consultants to enhance the accuracy and reliability of projections
by adding expertise and fact knowledge. The board does not adopt a change
to the rules based on the comment regarding dry year water use coefficients.
During the first round of planning, the board provided the regional water
planning groups with projections by decade. The drought of record projections
were used for every tenth year. The board did not develop projections for
years other than this tenth year in every decade. This process will be repeated
as the board develops projections for the second round of planning.
The National Wildlife Federation, the Texas Committee on Natural Resources,
the Environmental Defense Fund, the Texas Center for Policy Studies, and the
Lone Star Chapter of the Sierra Club submitted a joint comment recommending
a change to §357.5(d)(2) to ensure that revisions to population and water
demand projections are made only when new information or changed conditions
demonstrate that the projections are no longer accurate. The board adopts
changes to §357.5(d)(2) based on this comment. The board revises the
section to require the regional water planning groups to base requests for
projection revisions on new information or changed conditions that demonstrate
the current projections no longer represent a reasonable projection of anticipated
conditions. The rule has also been revised to require the regional water planning
groups to first hold a public meeting and allow public comment before requesting
revisions. Public comments received will have to be summarized in their request
for revisions.
The South Central Texas Regional Water Planning Group commented that §357.5(e)(1)
should not be amended as proposed because the changes appear to be the reverse
of the process used in the first round of regional water planning. It also
asked how regional water planning groups are supposed to determine appropriate
provision for environmental needs. Lastly, it recommended not adopting the
changes because the explanation for the changes appears to be inconsistent
with the proposed language. The board adopts no changes to the rules based
on this comment. The revision is not a reversal of the process used in the
first round of regional water planning. Instead, the revision conforms the
rule to the practice used in the first round and more clearly aligns this
rule with §16.053(e)(5)(F), Texas Water Code, which requires the regional
water plans to include consideration of appropriate provision for environmental
water needs. The board also believes the rule already provides guidance for
determining appropriate environmental water needs. The rule states the regional
water planning groups should use the environmental information obtained from
site-specific studies or, in the absence of such information, the state environmental
planning criteria adopted by the board for inclusion in the state water plan.
Therefore, the board does not believe the proposed rule contradicts its stated
purpose.
The National Wildlife Federation, the Texas Committee on Natural Resources,
the Environmental Defense Fund, the Texas Center for Policy Studies, and the
Lone Star Chapter of the Sierra Club submitted a joint comment that additional
refinements to §357.5(e)(1) are needed to avoid ambiguity and ensure
a comprehensive review of environmental water needs. They recommend the rules
address two distinct evaluations of environmental flows: minimizing adverse
impacts from proposed water management strategies and providing for adverse
impacts from current water management practices. Lastly, they recommend removing
the phrase "water management strategies" from the end of the first sentence
of §357.5(e)(1). The board adopts changes to the rules based on this
comment. The phrase "water management strategies" at the end of the first
sentence of §357.7(e)(1) is removed because it is a typographical error
that causes confusion in the section. However, the board does not adopt any
other revisions based on this comment. The language used in the rule is from §16.053,
Texas Water Code. To adopt the language recommended by the commentor would
be beyond the scope of the law.
The Texas Parks and Wildlife Department submitted a comment supporting
the changes to §357.5(e)(1) and also recommended removing the phrase
"water management strategies" from the end of the first sentence. The board
adopts changes to the rules based on this comment. The phrase "water management
strategies" at the end of the first sentence of §357.7(e)(1) is removed
because it is a typographical error that causes confusion in the section.
The Texas Parks and Wildlife Department also commented on the proposed
amendments to §357.5(e)(4). It supports the proposed changes because
they should increase public involvement. The commentor has requested no change
but supports the rule as published.
The South Central Texas Regional Water Planning Group commented that the
proposed revisions to §357.5(e)(4) appear to require the regional water
planning groups to justify each water management strategy not selected. It
says it is more appropriate to justify the selection instead of justifying
all non-selections. The board adopts no changes to the rules based on this
comment. The rule does not require the regional water planning groups to justify
each water management strategy not selected, but only those strategies that
were not selected if they were more environmentally sensitive or cost effective
than the strategy selected.
The National Wildlife Federation, the Texas Committee on Natural Resources,
the Environmental Defense Fund, the Texas Center for Policy Studies, and the
Lone Star Chapter of the Sierra Club submitted a joint comment that the revisions
to §357.5(e)(4) should help to establish a better planning process but
should include an explicit explanation of how cost-effectiveness and environmental
sensitivity will be determined. The board adopts changes to §357.5(e)(4)
based on this comment. The board revises the section to require the regional
water planning groups to use the criteria described in §357.7(a)(8)(i)
and (ii) for determining cost-effectiveness and environmental sensitivity.
The National Wildlife Federation, the Texas Committee on Natural Resources,
the Environmental Defense Fund, the Texas Center for Policy Studies, and the
Lone Star Chapter of the Sierra Club submitted a joint comment that the role
of drought contingency planning in §357.5(e)(5) should be further developed.
They suggest that strategies like paying users not to use water in times of
drought may be less than the costs associated with providing that water. The
board adopts no changes to the rules based on this comment. The proposed revisions
to §357.7(a)(11) require the regional water planning groups to have a
separate chapter in the regional water plans to consolidate the water conservation
and drought management recommendations of the regional water plans. This will
emphasize conservation and drought contingency in the regional water plans
and make it much easier for the board and the public to identify the water
conservation and drought management strategies of the regional water plans,
which will facilitate the board and the public making effective, timely comments
on initially prepared plans.
The South Central Texas Regional Water Planning Group recommends deleting §357.5(e)(7)(B)
because regional water planning groups do not have implementation authority
and must defer to the Drought Contingency Plans adopted by local public and
private water suppliers and water districts. It suggests that the Texas Natural
Resource Conservation Commission could summarize the Drought Contingency Plans
in each region and submit the summaries for inclusion in the regional water
plans. The board adopts no changes to the rules based on this comment. The
language objected to by the South Central Texas Regional Water Planning Group
is required by §16.053(e)(3)(C), Texas Water Code.
The National Wildlife Federation, the Texas Committee on Natural Resources,
the Environmental Defense Fund, the Texas Center for Policy Studies, and the
Lone Star Chapter of the Sierra Club submitted a joint comment that clear
direction is needed regarding the treatment of environmental flow needs. They
recommend that §357.5(l) be revised to require regional water planning
groups to assess environmental water needs, develop recommendations for meeting
them, and the board, Texas Parks and Wildlife Department, and the Texas Natural
Resource Conservation Commission provide planning criteria to guide the development
of the assessments and recommendations. The board adopts no changes to the
rules based on this comment. The requirements the commentor wishes to add
have already been included in §357.5(e)(1) and do not need to be repeated.
The South Central Texas Regional Water Planning Group commented that the
revisions to §357.6(6) are confusing and recommended changing the section
to make it clear that a request to form an information subarea must come from
a regional water planning group and the scopes of work will include how descriptions
of how information will be exchanged if a subarea is formed. The board adopts
changes to §357.6(6) based on this comment. The board added language
to the provision to make it clear the request to form an information subarea
must come from a regional water planning group and undeleted the language
that had been deleted in the proposed rules regarding developing the scope
of work to describe how information will be exchanged by the regional water
planning groups in the information subarea.
The National Wildlife Federation, the Texas Committee on Natural Resources,
the Environmental Defense Fund, the Texas Center for Policy Studies, and the
Lone Star Chapter of the Sierra Club submitted a joint comment that §357.7(a)(1)
needs to emphasize the requirement to consider the effect of water management
strategies on springs, including springs that do not provide a significant
source of water for human demands. They stated that the term "natural water
resources" causes ambiguity and should be defined as a subset of natural resource
that includes water-in-place within a spring, stream, river, impoundment,
bay, or the Gulf of Mexico and aquatic species and water-dependent wildlife
that rely on that water. In the alternative, they suggested excluding power
plants from the businesses that are dependent on natural water resources.
The board adopts no changes to the rules based on this comment. An analysis
of the effect of water management strategies on springs is already required
by §357.7(a)(8)(A). The term "natural water resources" relates to liveries,
marinas, fishing guide services, ecotourism, and similar businesses that could
be drastically affected by water management strategies. The board sees no
reason to limit this term with a narrow definition but instead leaves it to
the regional water planning groups to include those businesses within their
regions that qualify as the region determines.
The Texas Parks and Wildlife Department submitted a comment strongly supporting
the amendments to §357.7(a)(1) because they will ensure that liveries,
marinas, fishing guide services, ecotourism, and similar businesses that could
be drastically affected by water management strategies will be considered.
The commentor has requested no change but supports the rule as published.
Freese & Nichols commented that the term "utilities" in §357.7(a)(2)(A)(ii)
excludes municipal corporations, water supply corporations, and political
subdivisions of the state. It recommends using the term "retail public utility"
instead to include these entities. The board adopts changes to §357.7
based on this comment. The term "utility" is replaced with "retail public
utility" and the term is defined at §357.2(8), in accordance with the
definition of Chapter 13 of the Texas Water Code. The phrase "for municipal
use" has been added to the language regarding providing more than 280 acre-feet
per year to further clarify the intent of the section and to prevent the entities
identified by the commentor from being excluded from the analysis.
Freese & Nichols submitted a comment that the term "retail public utilities"
should be used in §357.7(a)(2)(A)(iii) in place of "utilities." It also
commented that it may not be possible to determine if a city and some other
retail public utility service the same area because cities are not required
to obtain certificates of convenience and necessity. The board adopts changes
to §357.7 based on this comment. The term "utility" has been replace
with "retail public utility" throughout the section. The board adopts no change
based on the commentor's remark about the difficulty in determining if a municipality
and another retail public utility service the same area because this is not
a matter to be addressed in the rules but by the regions as they develop their
regional water plans.
The South Central Texas Regional Water Planning Group commented that it
supports the extension of planning to smaller cities and water supply entities
in §357.7(a)(2)(A)(iii) but objects to the requirement that regional
water planning groups designate up front which counties will be reported by
individual utility and which will be reported by wholesale water provider
or other unit because not all necessary information will be available to them
to make this designation. The board adopts changes to §357.7 based on
this comment. The requirement for the regional water planning groups to designate
in their contracts with the board which counties will be reported by individual
utilities and which will be reported by wholesale water provider or other
reporting unit has been removed everywhere it appeared in the proposed rules.
The Texas Parks and Wildlife Department commented that §357.7(a)(2)(A)(iv)
should include instream flows and freshwater inflows to estuaries as categories
of water demands. The board makes no changes to the rules based on this comment.
State law provides that water for environmental purposes will be provided
for by conditioning surface water rights to provide appropriate amounts for
environmental purposes. This concept is included in the board rules to maintain
consistency and avoid confusion.
The National Wildlife Federation, the Texas Committee on Natural Resources,
the Environmental Defense Fund, the Texas Center for Policy Studies, and the
Lone Star Chapter of the Sierra Club submitted a joint comment that §357.7(a)(2)(A)(iv)
should include environmental water needs as a category of water demand to
ensure a comprehensive approach to planning. The board makes no changes to
the rules based on this comment. State law provides that water for environmental
purposes will be provided for by conditioning surface water rights to provide
appropriate amounts for environmental purposes. This concept is included in
the board rules to maintain consistency and avoid confusion.
The TeXas Economist commented that the effect of price on demand for water
should be included and non-price conservation effects should be excluded from
demand projections. The board adopts no changes to the rules based on this
comment. The number of variables involved in such an analysis makes any conclusions
ambiguous at best. Further, the regional water planning groups have the discretion
to include the effect of the price of water in the analysis of water management
strategies where the price of the water provided from the strategy could impact
the water use.
The National Wildlife Federation, the Texas Committee on Natural Resources,
the Environmental Defense Fund, the Texas Center for Policy Studies, and the
Lone Star Chapter of the Sierra Club submitted a joint comment that §357.7(a)(3)
should require regional water planning groups to assume compliance with Chapter
372 of the Texas Health and Safety Code. They state that any region-specific
determinations on this should be limited to issues like the rate at which
existing structures are likely to be renovated or replaced and the rules should
clearly state that this determination does not constitute the implementation
of a water conservation component of water planning. Water conservation strategies
can only be met through consideration of proactive measures that would realize
conservation savings not otherwise reasonably expected to occur. They further
state that water availability from reservoirs must be evaluated using a consistent
state-wide approach. The option of using values higher than the firm yield
should be limited to those instances when adequate documentation exists to
demonstrate that the higher amount will be reasonably available. The board
adopts changes to §357.7(a)(3) based on this comment as it relates to
limiting the use of values other than firm yield. The rule is revised to state
that a higher value can only be used as long as the amount of water available
due to the operational procedures does not exceed the amount of water that
would be available using system firm yield. The board makes no rule changes
based on the comment related to plumbing fixtures because the time frames
for retrofitting are different throughout the regional water planning areas
and the state. Site-specific, local knowledge is needed to determine how much
water will be conserved due to the switch to new plumbing fixtures. Using
this amount of water conserved in the supply category instead of demand does
not alter the determination of need, since need is the amount of demand minus
the amount of supply.
The Texas Parks and Wildlife Department supports the amendments to §357.7(a)(3)
because the water availability models are capable of representing environmental
flow needs and the groundwater availability models will be able to provide
information about the effect of groundwater pumping on surface water features
like springs. The commentor has requested no change but supports the rule
as published.
The South Central Texas Regional Water Planning Group comments that §357.7(a)(3)
should be revised to include water management strategies in progress as part
of the supply available as of the projected date of implementation. It also
comments that the water savings from using plumbing fixtures identified in
Chapter 372 of the Texas Health and Safety Code should not be included in
supply but instead as a water management strategy to be evaluated and possibly
included in the plan. It recommends the regional water planning groups have
the discretion to choose which version of the water availability model they
use and that groundwater conservation district management plan projections
be used until the groundwater availability models are ready. Once the models
are ready, the regions should use those subject to groundwater district management
plans. Lastly, it suggest that water supply contracts always be considered
part of existing water supply available. The board adopts a change to §357.7(a)(3)
based on this comment as it relates to the water supply available to the region
during the planning process. The board revises the rule to make it clear that
only that water which is legally and physically available to the region at
the time the regional water planning group begins this task may be counted
as available water. Water should not be considered available from projects
under way because, even though it is unlikely, it is possible the project
will not be completed and the regional water plan will need to be revised
to adjust the supply and water management strategies relying on this supply.
The board makes no changes to the rules based on the comment relating to consideration
of the water savings from plumbing fixtures as water supply. It is inappropriate
to leave this water savings out of the analysis of needs and instead include
it as a water management strategy because the determination of surpluses and
shortages will be inaccurate, can lead to the false identification of need,
and cause the regional water planning group to develop strategies for a need
that does not exist. The board does not make any changes based on the comment
related to water availability models, either. The run 3 version of the water
availability model is the one that regional water planning groups will use
because it provides the worse case scenario for drought of record analysis
of current rights. Therefore, the regional water planning groups will not
need to choose between runs of the models. The board also does not adopt a
rule change based on the comment related to the groundwater availability model
being subject to groundwater district management plans. This goes beyond the
scope of the law. Section 16.053(e)(5)(B) requires regional water planning
groups to consider certified groundwater conservation district management
plans but does not subject the regional water plans or the groundwater availability
models to these management plans. Lastly, the board adopts no changes to the
rules based on the comment that water supply contracts should always be assumed
to be a continuous supply of water. While it is unusual for such contracts
not to be renewed, planning efforts should include a verification that the
contracts include the ability to renew or extend to ensure appropriate consideration
of water supply, needs, and water management strategies.
The National Wildlife Federation, the Texas Committee on Natural Resources,
the Environmental Defense Fund, the Texas Center for Policy Studies, and the
Lone Star Chapter of the Sierra Club submitted a joint comment that §357.7(a)(4)
should ensure that social and economic impacts of not meeting environmental
needs should be evaluated and reported. The board makes no changes to the
rules based on this comment. State law provides that water for environmental
purposes will be provided for by conditioning surface water rights to provide
appropriate amounts for environmental purposes. This concept is included in
the board rules to maintain consistency and avoid confusion.
The South Central Texas Regional Water Planning Group commented that the
term "needs" used in §357.7(a)(4) is confusing because it is synonymous
with "shortage" in the section and it confuses the public when they hear they
have no need (shortage) for water for a particular area. The board adopts
no changes to the rules based on this comment. The term "needs" comes from §16.053,
Texas Water Code. The board uses the term to be consistent with the statute
and believes switching to "shortages" now would cause more confusion than
the commentor identifies because the 16 regional water planning groups have
finished the first round of regional water planning using the term "needs"
and are accustomed to it.
The National Wildlife Federation, the Texas Committee on Natural Resources,
the Environmental Defense Fund, the Texas Center for Policy Studies, and the
Lone Star Chapter of the Sierra Club submitted a joint comment that §357.7(a)(5)(C)
should make clear that the use of drought management as a means of limiting
demand is one method of meeting water needs, such as purchasing dry-year options.
The board makes no changes to the rules based on this comment. The rules do
acknowledge the validity of drought-related demand management and allow the
regional water planning groups to select drought-related demand management
strategies.
The National Wildlife Federation, the Texas Committee on Natural Resources,
the Environmental Defense Fund, the Texas Center for Policy Studies, and the
Lone Star Chapter of the Sierra Club submitted a joint comment that water
conservation and drought response should be more carefully separated in §357.7(a)(7)(A)
to make clear that these are separate and distinct concepts and mere adherence
to existing legal requirements for water-efficient plumbing fixtures does
not constitute a water conservation strategy within the meaning of the rules.
The board adopts a change to the rule based on this comment. The board splits §357.7(a)(7)(A)
into §357.7(a)(7)(A) and (B) to separate water conservation and drought
response as recommended and uses the terms "water conservation practices"
and "drought management measures" to further delineate the concepts as separate
and distinct. As for the comment related to mere adherence to existing legal
requirements for water-efficient plumbing fixtures not constituting a water
conservation strategy, the board adopts no changes to the rules because it
believes that mere adherence by purchasing the proper plumbing fixtures is
not a water conservation strategy but retrofitting existing fixtures and accelerating
the conversion process can constitute conservation practices.
The TeXas Economist recommends that the regional water planning groups
be required to examine the benefits and costs of meeting 80%, 90%, and 100%
of demand during the drought of record and if it is determined the net benefits
of meeting less than 100% of demand are greater than the benefits from meeting
all demand then the regional water planning group need not develop a strategy
to meet 100% of demand. The commentor states that the regional water planning
groups should be provided with the probabilities of experiencing droughts
of record. The board adopts no changes to the rules based on this comment.
The selection of water management strategies under §16.053, Texas Water
Code, is not based on a cost-benefit analysis. The law requires the regional
water planning groups to consider all potentially feasible strategies. Only
if there is no feasible strategy can the regional water planning group decide
to not meet a need. The rules do allow for funding for the regional water
planning groups to perform cost-benefit analysis at §355.93(b)(5) of
this title if the water management strategy must receive a state or federal
permit, the regional water planning group has completed the analysis required
by §357.7(a)(6), and the regional water planning group has demonstrated
that a cost-benefit analysis is necessary to determine which water management
strategy to select. Lastly, §16.053, Texas Water Code, requires the regional
water plans to have specific provisions for water management strategies to
be used during a drought of record. Therefore, the probability of experiencing
the drought of record is not part of the analysis and conflicts with statutory
requirements.
The South Central Texas Regional Water Planning Group opposes the revisions
to projecting water demands in §357.7(a)(7)(A) because they will give
a significantly different result than the procedures used in the first round
of regional water planning. It predicts the water demand projections under
the revisions will be higher, giving the impression that demand reduction
is not working, which will be hard to explain to the public due to the complexity
of the process. It recommends that water demand projections continue to reflect
the potentials for demand reduction and remove drought response from the section.
The board makes changes to §357.7(a)(2) and (3) based on this comment.
The municipal water savings from the use of water-efficient plumbing fixtures
is removed from the supply analysis and placed back in the demand analysis
to avoid confusion. However, the amount of the water savings must be clearly
identified in the regional water plan and cannot include aggressive measures
taken to retrofit or accelerate conversion, which will still be considered
a water conservation strategy. Drought response is required by §16.053,
Texas Water Code.
The Texas Parks and Wildlife Department supports the changes to §357.7(a)(7)
and recommends requiring the inclusion of water conservation savings from
plumbing fixtures required by law. The board makes changes to §357.7(a)(2)
and (3) based on this comment. The water savings from the use of water-efficient
plumbing fixtures is removed from the supply analysis and placed back in the
demand analysis to avoid confusion. The water savings from plumbing fixtures
has been moved to §357.7(a)(2) due to the comment from the South Central
Texas Regional Water Planning Group.
The South Central Texas Regional Water Planning Group recommended that
aquifer storage and recovery be added to §357.7(a)(7)(C). The board adopts
changes to §357.7(a)(7)(E) to add aquifer storage and recovery to the
list of new supply development water management strategies. The board believes
this is the appropriate place to list aquifer storage and recovery because
the strategy involves digging new wells and installing new equipment.
An individual commented that cost-benefit studies should be performed for
all proposed reservoirs prior to any other efforts. The board makes no changes
to the rules based on this comment. The rules include appropriate processes
for cost-benefit analyses. For new reservoir analysis, the costs and benefits
are more appropriately addressed at the stage where the regional water planning
groups determine feasibility of the strategy.
Individuals using a form letter commented that regional water plans should
include an economically sound assessment of the relative costs and benefits
of water supply options. The board makes no changes to the rules based on
this comment. The rules include appropriate processes for cost-benefit analyses.
To require more will incur high expenses and only yield a small benefit to
the planning process.
The TeXas Economist recommends the water management strategy tables include
a field showing the discounted present value of capital and overhead and maintenance
costs as a component of the cost evaluation. The board adopts no changes to
the rules based on this comment. The rules correctly allow this and the board
intends to specify the inclusion of this data in the contracts with the political
subdivisions that represent the regional water planning groups.
The National Wildlife Federation, the Texas Committee on Natural Resources,
the Environmental Defense Fund, the Texas Center for Policy Studies, and the
Lone Star Chapter of the Sierra Club submitted a joint comment supporting
the revisions to §357.7(a)(8)(A) because they will help ensure better
informed decisions. The commentor has requested no change but supports the
rule as published.
The National Wildlife Federation, the Texas Committee on Natural Resources,
the Environmental Defense Fund, the Texas Center for Policy Studies, and the
Lone Star Chapter of the Sierra Club submitted a joint comment stating that
it is not clear what is meant by "threats to agricultural and natural resources
of the regional planning area" in §357.7(a)(8)(C) and recommend changing
the text to "for each threat to agricultural and natural resources identified
pursuant to §357.7(a)(1), a discussion of how that threat would be addressed
or affected by the water management strategies evaluated." The board adopts
changes to §357.7(a)(8)(C) as recommended by the commentors.
The Canadian River Management Water Authority commented that the board
should clarify that §357.7(a)(8)(F) only relates to surface water-based
water management strategies. The board made changes to §357.7(a)(8)(F)
based on this comment. The provision was modified to clarify that it only
applied to surface water.
The Texas Parks and Wildlife Department support the amendments to §357.7(a)(8)
because they will greatly improve the regional water plans and ensure a more
seamless transition from planning to permitting. The commentor has requested
no change but supports the rule as published.
Numerous individuals submitted a form letter stating that the rules should
ensure the regional water plans include flows needed to maintain healthy fish
and wildlife in streams, rivers, and coastal bays and aggressive water conservation
measures beyond the use of efficient plumbing fixtures. The board makes no
changes to the rules based on this comment. State law provides that water
for environmental purposes will be provided for by conditioning surface water
rights to provide appropriate amounts for environmental purposes. This concept
is included in the board rules to maintain consistency and avoid confusion.
As for aggressive water conservation measures, each region must determine
how aggressive it will pursue conservation beyond basic law on plumbing fixtures.
An individual commented that conservation measures should include maximum
management and use of grey water for outdoor watering and new projects that
have significant adverse environmental impacts should be accepted only if
less-damaging options have been shown insufficient for meeting water needs.
The board makes no changes to the rules based on this comment. State law provides
that water for environmental purposes will be provided for by conditioning
surface water rights to provide appropriate amounts for environmental purposes.
This concept is included in the board rules to maintain consistency and avoid
confusion. The regional water planning groups must develop water management
strategies, pursuant to §357.5(e)(4), that are cost effective and environmentally
sensitive unless they can demonstrate that a particular strategy is inappropriate.
An individual commented that new projects that have significant adverse
environmental impacts should be accepted only if less-damaging options have
been shown, after consultation with Texas environmental study groups and thorough
public consideration, to be unworkable. The rules must protect water resources
for both human and wildlife needs. The board adopts no changes to the rules
based on this comment. The regional water planning groups must develop water
management strategies, pursuant to §357.5(e)(4), that are cost effective
and environmentally sensitive unless they can demonstrate that a particular
strategy is inappropriate.
Numerous individuals submitted form letters stating that regional water
plans should include an assessment of the environmental water needs, including
an assessment of the extent to which the full exercise of existing water rights
would impair environmental flows and options for addressing that. Regional
water plans should include a preliminary, quantitative analysis of the impacts
from proposed projects on fish and wildlife habitat, spring flows, endangered
species, and required minimum instream flows and freshwater flows to bays
and estuaries. Conservation measures should be mandatory unless the regional
water planning group can demonstrate special circumstances that make particular
measures inappropriate. Lastly, regional water planning groups should consider
methods for temporarily reducing demand during dry periods. The board makes
no changes to the rules based on this comment. State law provides that water
for environmental purposes will be provided for by conditioning surface water
rights to provide appropriate amounts for environmental purposes. This concept
is included in the board rules to maintain consistency and avoid confusion.
As for conservation measures being mandatory, §357.7(a)(7)(A) does require
the regional water planning groups to consider water conservation practices
for each need identified and document the reason if such a practice is not
adopted. Lastly, drought management measures are also part of the rules, at §357.7(a)(7)(B)
and regional water planning groups are required to consider drought management
measures and document their reasons if they do not adopt such measures.
The National Wildlife Federation, the Texas Committee on Natural Resources,
the Environmental Defense Fund, the Texas Center for Policy Studies, and the
Lone Star Chapter of the Sierra Club submitted a joint comment that the revisions
to §357.7(a)(11) are a significant improvement to the planning process
and will ensure better consideration of these critical management strategies
and improve the opportunity for public participation. The commentor has requested
no change but supports the rule as published.
The South Central Texas Regional Water Planning Group comments that water
conservation and drought management strategies should also be discussed in
other chapters of the regional water plans and recommends that §357.7(a)(11)
be revised to require water conservation and drought management to be in separate
chapters of the regional water plans, not the same chapter, in order to avoid
confusing the ideas. The board makes no changes to the rules based on this
comment. The board does not see an increased benefit from separating conservation
and drought management into separate chapters of the regional water plans
but it would increase the cost of the plans.
The Texas Parks and Wildlife Department supports the revisions to §357.7(a)(11)
because they will emphasize the importance of conservation and drought management
within the context of the regional water plans. The commentor has requested
no change but supports the rule as published.
The National Wildlife Federation, the Texas Committee on Natural Resources,
the Environmental Defense Fund, the Texas Center for Policy Studies, and the
Lone Star Chapter of the Sierra Club submitted a joint comment that the changes
to §357.10(a)(3) are an improvement because they will help build confidence
in the plans and encourage interested members of the public to participate
in the public comment process. The commentor has requested no change but supports
the rule as published.
The Texas Parks and Wildlife Department supports the amendments to §357.10.
The commentor has requested no change but supports the rule as published.
The Texas Parks and Wildlife Department strongly supports the amendments
to §357.11. The commentor has requested no change but supports the rule
as published.
The South Central Texas Regional Water Planning Group commented that the
board and other state and federal agencies do not need 120 days to review
the initially prepared plans. Regional water planning groups will need at
least 6 months and as much as 25 percent of the budget to respond to reviews
and complete the plans for final delivery. Instead, it recommends that the
board should review and comment within 45 days of completion of each task.
If the review of the initially prepared plans shows a need for major revisions,
the board should require a second review prior to the release of the approved
plan. Time for review should be 60 days and the regional water planning groups
would deliver final plans 60 to 90 days after that. This would reduce the
review process from 10 to 12 months down to 5 to 6 months. It also recommends
that only oral comments should be accepted at official public hearings. The
board makes no changes to the rules based on this comment. The board disagrees
with this assessment of the impact of the rule revision. In the first round
of planning, the regional water planning groups made significant revisions
to their plans after the board commented on the completed tasks and some tasks
were submitted before completion. As a result, the initially prepared plans
were significantly changed from the chapters reviewed previously, which makes
a 60-day comment period insufficient. Also, other state and federal agencies
reviewing the initially prepared plans do not have the resources to review
all of the plans simultaneously and could not complete their reviews of all
16 plans within 60 days.
The National Wildlife Federation, the Texas Committee on Natural Resources,
the Environmental Defense Fund, the Texas Center for Policy Studies, and the
Lone Star Chapter of the Sierra Club submitted a joint comment that the revised
time frames should also apply to amendments to regional water plans and that
there is no justification for the disparity between review times for reviews
by the public and reviews by governmental agencies. They stated that 30 days
is not adequate for reviewing the initially prepared plans. They recommend
at least 90 days. The board makes changes to §357.11 based on this comment.
Section 357.11(b)(3) is amended to change the time period for public comment
to the initially prepared plans after the public hearing is held by the regional
water planning group from 30 days to 60 days. This provides the public with
a minimum of 90 days to submit comment because the regional water planning
groups will also be required to accept public comment at least 30 days before
the public hearing, as well. The regional water planning groups can exceed
the 90-day period if they choose. Also, §357.11(f) is amended to add
a 30-day public comment period to the regional water planning amendment process.
Because amendments are not nearly as involved as adopting entire regional
water plans, 30 days is a sufficient time for all persons and entities to
submit comments to the regional water planning groups.
The National Wildlife Federation, the Texas Committee on Natural Resources,
the Environmental Defense Fund, the Texas Center for Policy Studies, and the
Lone Star Chapter of the Sierra Club submitted a joint comment that it is
unclear whether §357.12(b) retains the requirements that a copy of the
plan be available in a public library in each county within the regional water
planning area and recommends revising the language to make it clear this is
required. They also recommend that at least one copy of each report, planning
document, and other work product be made available for review and copying
at the board's offices. The board does make changes to §357.12(b) to
include the phrase "in each county" after the term "public library" to make
it clear the regional water plans have to be available in at least one public
library in each county that is within the regional water planning area. Also,
the board does make copies of reports, planning documents, and other work
products available for review and copying at its offices in Austin, Texas.
The Texas Parks and Wildlife Department supports the changes to §357.12(d).
The commentor has requested no change but supports the rule as published.
Several individuals sent form letters stating that the rules should protect
the state's abundant wildlife resources and natural heritage. An individual
commented that conservation and protection are the only means of ensuring
the rivers stay flowing and the board should work for nature, not industry
and blood money. Another individual stated that the rules should protect the
state's wildlife resources and provide a balance between human life and wildlife
needs. The board makes no changes to the rules based on these comments. The
commentors do not request a specific rule change and the board's rules are
consistent with state law that requires water for environmental purposes to
be provided for by conditioning surface water rights to provide appropriate
amounts for environmental purposes.
An individual commented that she was concerned about the transfer of water
from the Ogalalla Aquifer to San Antonio or other places. The board makes
no changes to the rules based on this comment. The comment is not within the
scope of the rules.
An individual commented that the board should carefully plan water usage
and projects in order to not jeopardize the state's fish and wildlife resources.
She stated that shipment of water to San Antonio could leave Matagorda Bay
with only 20% of the freshwater inflow amount considered critical for species
to survive times of drought and the Marvin-Nichols dam would flood over 62,000
acres of east Texas forest, including thousands of acres of rich bottomland
hardwoods. The Dallas-Fort Worth area should curtail wasteful water usage
rather than construct the dam. Lastly, the water plan for the Rio Grande Valley
does not consider river flows necessary for fish and wildlife and the river
has stopped flowing to the Gulf of Mexico in recent times. The board makes
no changes to the rules based on these comments. The comments are not within
the scope of the rules.
An individual commented that stricter usage guidelines and quotas should
be used and stricter regulations put in place in times of water shortages.
Limits on golf course and residential lawn watering can decrease the demand
for water. The board makes no changes to the rules based on this comment.
The commentor does not request a specific rule change and the board rules
already require drought management measures and conservation practices unless
the regional water planning groups find such measures and practices inappropriate
for a particular water management strategy and document the reason.
An individual commented that the board should consider a state policy to
stabilize population since that will greatly help on water and other issues.
The board makes no changes to the rules based on this comment. The comment
is not within the scope of the rules.
An individual commented that the panhandle should not be required to export
water to down-state cities. The board makes no changes to the rules based
on this comment. The comment is not within the scope of the rules.
An individual commented that the consequences of planning, especially the
potential destruction of the environment, should be considered before making
decision. The board makes no changes to the rules based on these comments.
The commentors do not request a specific rule change and the board's rules
are consistent with state law that requires water for environmental purposes
to be provided for by conditioning surface water rights to provide appropriate
amounts for environmental purposes.
The National Marine Fisheries Service commented that it would like notification
of all future meetings of regional water planning groups and river authorities
in response to Senate Bill 1. The Service is particularly concerned with any
proposed reduction of current fresh water inflows from the development of
regional water plans and any other proposed alterations or reductions of river
inflows into Texas bays and estuaries. Lastly, the Service asked for copies
of any draft water management plans that have been developed, especially in
regions G, H, I, K, L, M, N, and P. The board makes no changes to the rules
based on this comment as it is not within the scope of the rules.
The amendments are adopted under the authority granted in Texas
Water Code, §6.101, which provides the board with the authority to adopt
rules necessary to carry out its powers and duties under the Texas Water Code
and laws of Texas, and under the authority of Texas Water Code, §16.053,
which requires the board to develop rules to provide procedures for adoption
of regional water plans by regional water planning groups and approval of
regional water plans by the board, and to govern procedures to be followed
in carrying out the responsibilities under §16.053, Water Code.
§357.2.Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise. Words
defined in the applicable provisions of the Texas Water Code, Chapter 16,
and not defined here shall have the meanings provided in Chapter 16.
(1)
Board--The Texas Water Development Board.
(2)
Drought of record--The period of time when natural hydrological
conditions provided the least amount of water supply.
(3)
Executive administrator--The executive administrator of
the board or a designated representative.
(4)
Long-term water needs--Those needs which must be met by
implementation of water management strategies within the next 30 to 50 years
based on federal census years (2040, 2050, etc).
(5)
Near-term water needs--Those needs which must be met by
implementation of water management strategies within the next 30 years based
on federal census years (2000, 2010, 2020, 2030, etc).
(6)
Political subdivision--City, county, district or authority
created under the Texas Constitution, Article III, §52, or Article XVI, §59,
any other political subdivision of the state, any interstate compact commission
to which the state is a party, and any nonprofit water supply corporation
created and operating under Acts of the 43rd Legislature, 1933, 1st Called
Session, Chapter 76, (Vernon's Texas Civil Statutes, Article 1434a).
(7)
Regional water plan--Plan or amendment to an adopted or
approved regional water plan developed by a regional water planning group
for a regional water planning area pursuant to the Texas Water Code, §16.053
and this chapter.
(8)
Retail public utility--Any person, corporation, public
utility, water supply or sewer service corporation, municipality, political
subdivision or agency operation, maintaining, or controlling in this state
facilities for providing potable water service or sewer service, or both,
for compensation.
(9)
State water plan--The most recent state water plan adopted
by the board under the Texas Water Code, Chapter 16.
(10)
Wholesale water provider--Any person or entity, including
river authorities and irrigation districts, that has contracts to sell more
than 1000 acre-feet of water wholesale in any one year during the five years
immediately preceding the adoption of the last regional water plan. The regional
water planning groups shall include as wholesale water providers other persons
and entities that enter or that the regional water planning group expects
or recommends to enter contracts to sell more than 1000 acre-feet of water
wholesale during the planning period.
§357.5.Guidelines for Development of Regional Water Plans.
(a)
Goals of plan. The regional water plan shall provide for
the orderly development, management, and conservation of water resources and
preparation for and response to drought conditions in order that sufficient
water will be available at a reasonable cost to ensure public health, safety,
and welfare; further economic development; and protect the agricultural and
natural resources of the regional water planning area.
(b)
Submittal of plan. The regional water planning group shall
prepare, adopt, and submit a regional water plan to the executive administrator
on or before January 5, 2001, and at least as frequently as every five years
thereafter, for board approval and inclusion in the state water plan.
(c)
Relation to state and local plans. Regional water plans
shall be consistent with Chapter 358 of this title (relating to State Water
Planning Guidelines) and this chapter. Regional water planning groups shall
consider and use as a guide the state water plan and local water plans provided
for in the Texas Water Code, §16.054.
(d)
Use of population and water demands. In developing regional
water plans, regional water planning groups shall use:
(1)
state population and water demand projections contained
in the state water plan or adopted by the board after consultation with the
Texas Natural Resource Conservation Commission, Texas Department of Agriculture,
Texas Parks and Wildlife Department, and regional water planning groups in
preparation for revision of the state water plan; or
(2)
in lieu of paragraph (1) of this subsection, population
or water demand projection revisions that have been adopted by the board,
after coordination with Texas Natural Resource Conservation Commission, Texas
Department of Agriculture, Texas Parks and Wildlife Department, and regional
water planning groups when the requesting regional water planning group demonstrates
that the population and water demand projections developed pursuant to paragraph
(1) of this subsection no longer represent a reasonable projection of anticipated
conditions based on changed conditions and availability of new information.
Before requesting a revision to the population and water demand projections,
the regional water planning group shall discuss the issue at a public meeting
for which notice has been posted pursuant to the Open Meetings Act in addition
to being published on the internet and mailed at least 14 days before the
meeting to every person or entity that has requested notice of regional water
planning group activities. The public will be able to submit oral or written
comment at the meeting and written comments for 14 days following the meeting.
The regional water planning group will summarize the public comments received
in its request for projection revisions. Within 45 days of receipt of a request
from a regional water planning group for revision of population or water demand
projections, the executive administrator shall consult with the requesting
regional water planning group and respond to their request.
(e)
Plan development. In developing regional water plans, regional
water planning groups shall:
(1)
ensure that water management strategies are adjusted to
provide for appropriate environmental water needs, including instream flows
and bays and estuaries inflows. Evaluation shall use environmental information
resulting from existing site-specific studies, or, in the absence of such
information, shall use state environmental planning criteria adopted by the
board for inclusion in the state water plan after coordinating with staff
of Texas Natural Resource Conservation Commission and Texas Parks and Wildlife
Department;
(2)
provide water management strategies to be used during a
drought of record;
(3)
protect existing water rights, water contracts, and option
agreements, but may consider potential amendments of water rights, contracts
and agreements. Any amendments will require the eventual consent of the owner;
(4)
provide specific recommendations of water management strategies
based upon identification, analysis, and comparison of all water management
strategies the regional water planning group determines to be potentially
feasible so that the cost effective water management strategies which are
environmentally sensitive are considered and adopted unless the regional water
planning group demonstrates that adoption of such strategies is not appropriate.
To determine cost-effectiveness, the regional water planning groups will use
the process described in §357.7(a)(8)(A)(i) of this title (relating to
Regional Water Plan Development) and, to determine environmental sensitivity,
the regional water planning groups shall use the process described in §357.7(a)(8)(A)(ii)
of this title. Before a regional water planning group begins the process of
identifying potentially feasible water management strategies, it shall document
the process by which it will list all possible water management strategies
and identify the water management strategies that are potentially feasible
for meeting a need in the region. Once this process is identified, the regional
water planning group shall present it to the public for comment at the public
meeting required by §357.12(a)(1) of this title (relating to Notice and
Public Participation);
(5)
incorporate water conservation planning and drought contingency
planning;
(6)
conduct their planning to achieve efficient use of existing
water supplies, explore opportunities for and the benefits of developing regional
water supply facilities or providing regional management of water facilities,
coordinate the actions of local and regional water resource management agencies,
provide substantial involvement by the public in the decision-making process,
and provide full dissemination of planning results;
(7)
for each source of water supply in the regional water planning
area designated in accordance with §357.7(a)(3) of this title, identify:
(A)
factors specific to each source of water supply to be considered
in determining whether to initiate a drought response, and
(B)
actions to be taken as part of the response; and
(8)
consider the effect of the regional water plan on navigation.
(f)
Existing law. Each regional water planning group shall
prepare its regional water plan to be consistent with all laws applicable
to water use in the regional water planning area.
(g)
Special water resources. The board may, on its own initiative
or upon recommendation of the executive administrator, identify as part of
its designation of regional water planning areas or amendment of such designation,
surface water resources as special water resources to facilitate planning
for surface water supplies currently obligated to meet demands outside the
regional water planning area which contains the special water resource. The
board shall consider the following characteristics when designating these
special water resources:
(1)
the water rights to the surface water resource are owned
in whole or in part by an entity headquartered in a regional water planning
area different from the one containing the surface water resource;
(2)
a water supply contract commits water from the surface
water resource to an entity headquartered in a regional water planning area
different from the one containing the surface water resource; or
(3)
an existing water supply option agreement may result in
water from the surface water resource being supplied to an entity headquartered
in a regional water planning area different from the one containing the surface
water resource.
(h)
Protecting rights to special water resources. When developing
a water plan that involves a special water resource, defined in subsection
(g) of this section, the regional water planning group for the regional water
planning area which contains the special water resource shall protect the
water rights, water supply contracts, and water supply option agreements associated
with the special water resource so that supplies obligated to meet demands
outside the regional water planning areas shall not be impacted. Any plans
that could impact the water rights, water supply contracts, or water supply
option agreements associated with the special water resource shall be based
only on potential adjustments to the water rights, water supply contracts
or option agreements by those entities holding interests in such water rights,
water supply contract, or water supply option agreements. Any amendments will
require the eventual consent of the owner. Each regional water planning group
and subgroup shall provide an initial notice to all holders of interests in
water rights, water supply contracts, or option agreements in the special
water resource in which such holders are provided the option of notifying
the regional water planning group or subgroup of whether the holder wishes
to receive all future notices of regional water planning group or subgroup
meetings. The regional water planning group or subgroup may provide options
for such holders to choose that delivery of future notice may be made by regular
mail, electronic mail, or facsimile transmission. All holders of interests
in water rights, water supply contracts, or option agreements in the special
water resource shall be provided notice of and an opportunity to comment on
the scope of work affecting the special water resource, and on the proposed
regional water plan, with such comments being submitted to the executive administrator
with submittal of the adopted regional water plan.
(i)
Emergency transfers. Regional water plans shall consider
emergency transfers of surface water including a determination of the part
of each water right for non-municipal use in the regional water planning area
that may be transferred without causing unreasonable damage to the property
of the non-municipal water rights holder in accordance with Texas Water Code, §11.139.
(j)
Simplified planning. If a regional water planning group
determines in its analysis of water needs that it has sufficient supplies
in the regional water planning area to meet the needs for the 50-year planning
period in accordance with this chapter, regional water planning groups may
perform simplified regional water planning as follows:
(1)
the identification of water supplies that are available
for voluntary redistribution within a regional water planning area or to other
regional water planning areas;
(2)
adoption of the state water plan information as the regional
water plan; or
(3)
other activities upon approval of the executive administrator.
(k)
Existing regional water planning efforts. In developing
a regional water plan, the regional water planning group shall consider the
following:
(1)
existing plans and information, including:
(A)
water conservation plans;
(B)
drought contingency plans;
(C)
certified groundwater conservation district management
plans;
(D)
publicly available plans of major agricultural, municipal,
manufacturing and commercial water users;
(E)
water management plans;
(F)
water availability requirements promulgated by a county
commissioners court in accordance with Texas Water Code, §35.019; and
(G)
any other information available from existing local or
regional water planning studies; and
(2)
existing programs and goals, including:
(A)
the state Clean Rivers Program;
(B)
the federal Clean Water Act; and
(C)
other planning goals including, but not limited to, regionalization
of water and wastewater services, where appropriate.
(l)
Instream and bay and estuary flows. In developing a regional
water plan, a regional water planning group shall consider environmental water
needs including instream flows and bay and estuary inflows.
§357.6.Preplanning.
Prior to the preparation of the regional water plans the regional water
planning group shall perform the following tasks:
(1)
after 30 day notice to the public as described in §357.12(a)(5)
and (6) of this title (relating to Notice and Public Participation), hold
at least one public meeting to gather suggestions and recommendations from
the public as to issues that should be addressed or provisions that should
be included in the regional or state water plan;
(2)
determine terms of participation as used in §357.7(a)(5)(C)(ii)
of this title (relating to Regional Water Plan Development);
(3)
prepare a scope of work that includes a detailed description
of tasks to be performed, identification of responsible parties for task execution,
a task schedule, task and expense budgets, and description of any interim
products, draft reports, and final reports that are to be developed as part
of the planning process;
(4)
approve any amendments to the scope of work only in an
open meeting of the regional water planning group where notice of the proposed
action was provided;
(5)
designate a political subdivision or political subdivisions
as a representative(s) of the regional water planning group eligible to apply
for financial assistance for scope of work and regional water plan development
pursuant to Chapter 355, Subchapter C of this title (relating to Regional
Water Planning Grants); and
(6)
a regional water planning group may ask any other regional
water planning group to designate a geographical region as an informational
subarea so that water planning information may be readily exchanged for such
informational subareas. Forming informational subareas facilitates the exchange
of information specified in §357.7(a)(2)-(4) of this title on population
and water demand data, on water supplies available, on water supply and demand
analysis results, and available information on environmental water needs,
in addition to any other information the regional water planning groups choose
to exchange. If a regional water planning group is asked by another regional
water planning group to form an informational subarea, the regional water
planning group must agree. The regional water planning group shall develop
its scope of work so that information can be exchanged with the responding
regional water planning group if the geographic region comprising the informational
subarea meets one or more of the following criteria:
(A)
is currently being provided wholesale or retail water service
by an entity whose headquarters is in the responding regional water planning
area or from sources of water or facilities within the responding regional
water planning area;
(B)
is within an area designated by the Texas Legislature as
an area, either in whole or in part, that may or shall be served by an entity
whose headquarters is in the responding regional water planning area or from
sources of water or facilities in the responding regional water planning area;
(C)
is an area identified in current or existing studies as
an area likely to be served in the future from entities whose headquarters
are in the responding regional water planning area or from sources of water
or facilities within the responding regional water planning area;
(D)
is an area where environmental water needs are impacted
or are potentially impacted by water management strategies that might be considered
by the regional water planning group; or
(E)
is designated by the executive administrator as an informational
subarea.
§357.7.Regional Water Plan Development.
(a)
Regional water plan development shall include the following:
(1)
description of the regional water planning area including
wholesale water providers, current water use, identified water quality problems,
sources of groundwater and surface water including major springs, major demand
centers, agricultural and natural resources, social and economic aspects of
the regional water planning area including information on current population
and primary economic activities including businesses dependent on natural
water resources, initial assessment of current preparations for drought within
the regional water planning area, summary of existing regional water plans,
summary of recommendations in state water plan, summary of local water plans,
and any identified threats to the agricultural and natural resources of the
regional water planning area due to water quantity problems or water quality
problems related to water supply;
(2)
presentation of current and projected population and water
demands. Results shall be reported:
(A)
by
(i)
city for cities with populations greater than 500 people,
(ii)
retail public utility for counties that have less than
five retail public utilities which provide more than 280 acre-feet per year
for municipal use,
(iii)
individual retail public utility or collective data for
all such retail public utilities that form a logical reporting unit, such
as being served by a common wholesale water provider or having a common source
or other association appropriate for the area, in the judgment of the regional
water planning group, for counties with more than five retail public utilities
which provide more than 280 acre-feet per year for municipal use, and
(iv)
categories of water use (including municipal not otherwise
reported, manufacturing, irrigation, steam electric power generation, mining,
and livestock watering) for each county or portion of a county in the regional
water planning area. If a county or portion of a county is in more than one
river basin, data shall be reported for each river basin;
(B)
for each wholesale water provider by category of water
use (municipal, manufacturing, irrigation, steam electric power generation,
mining, and livestock) for each county or portion of a county in the regional
water planning area. If a county or portion of a county is in more than one
river basin, data shall be reported for each river basin. The wholesale water
provider's current contractual obligations to supply water must be reported
in addition to any demands projected for the wholesale water provider;
(C)
to include an adjustment to each municipal demand due to
water savings from using plumbing fixtures identified in Chapter 372 of the
Texas Health and Safety Code. The regional water planning group shall determine
and report the extent to which such plumbing fixtures impact projected municipal
water use using parameters approved by the executive administrator.
(3)
evaluation of adequacy of current water supplies legally
and physically available to the regional water planning area for use during
drought of record. The term "current" means water supply available at the
beginning of this task. This evaluation shall consider surface water and groundwater
data from the state water plan, existing water rights, contracts and option
agreements, other planning and water supply studies, and analysis of water
supplies currently available to the regional water planning area. Firm yields
for reservoirs shall be presented. Analysis of surface water available during
drought of record may be based on operational procedures other than firm yield
from reservoirs upon the documented decision of the regional water planning
group as long as the amount of water available due to the operational procedure
does not exceed the amount of water that would be available using system firm
yield. Firm yield is defined as the supply the reservoir can provide during
a drought of record using reasonable sedimentation rates and the assumption
that all senior water rights will be totally utilized. Until information is
provided by the Texas Natural Resource Conservation Commission, regional water
planning groups may use estimates of the projected amount of surface water
that would be available from existing water rights during a drought of record.
Once this information is available from the Texas Natural Resource Conservation
Commission, the regional water planning group shall incorporate it in its
next planning cycle unless better site-specific information is available.
Until information is available from the board regarding groundwater availability
from modeling, the regional water planning groups may use estimates of the
projected amounts as long as they describe the method used to arrive at those
estimates. Once the groundwater availability modeling information is available
for an area within a region, that regional water planning group shall incorporate
such information in its next planning cycle unless better site-specific information
is available. The executive administrator, after coordination with staff of
the Texas Natural Resource Conservation Commission and the Texas Parks and
Wildlife Department, shall identify the methodology, in consultation with
representatives of regional water planning groups, to be used by regional
water planning groups to calculate water availability during drought of record.
The executive administrator shall provide available technical assistance to
the regional water planning groups upon request to assist them in selecting
appropriate methods and data to be used to determine water supply availability.
Water supplies based on contracted agreements shall be based on the terms
of the contract, which may be assumed to renew at the contract termination
date if the contract contemplates renewal or extensions. Results of evaluations
shall be reported:
(A)
by
(i)
city for cities with populations greater than 500 people,
(ii)
retail public utility for counties that have less than
five retail public utilities which provide more than 280 acre-feet per year
for municipal use,
(iii)
individual utility or collective data for all such retail
public utilities that form a logical reporting unit, such as being served
by a common wholesale water provider or having a common source or other association
appropriate for the area, in the judgment of the regional water planning group,
for counties with more than five retail public utilities which provide more
than 280 acre-feet per year for municipal use, and
(iv)
categories of water use (including municipal not otherwise
reported, manufacturing, irrigation, steam electric power generation, mining,
and livestock watering) for each county or portion of a county in the regional
water planning area. If a county or portion of a county is in more than one
river basin, data shall be reported for each river basin;
(B)
for each wholesale water provider by category of water
use (municipal, manufacturing, irrigation, steam electric power generation,
mining, and livestock) for each county or portion of a county in the regional
water planning area. If a county or portion of a county is in more than one
river basin, data shall be reported for each river basin. The wholesale water
provider's current contractual obligations to supply water must be reported
in addition to any demands projected for the wholesale water provider;
(4)
water supply and demand analysis comparing:
(A)
water demands as developed in paragraph (2)(A) of this
subsection with current water supplies available to the regional water planning
area as developed in paragraph (3)(A) of this subsection to determine if the
water users identified in paragraph (2)(A) of this subsection in the regional
water planning area will experience a surplus of supply or a need for additional
supplies. The social and economic impact of not meeting these needs shall
be evaluated by the regional water planning groups and reported by regional
water planning area and river basin. The executive administrator shall provide
available technical assistance to the regional water planning groups, upon
request, on water supply and demand analysis, including methods to evaluate
the social and economic impacts of not meeting needs. Other results shall
be reported by
(i)
city for cities with populations greater than 500 people,
(ii)
retail public utility for counties that have less than
five retail public utilities which provide more than 280 acre-feet per year
for municipal use,
(iii)
individual utility or collective data for all such retail
public utilities that form a logical reporting unit, such as being served
by a common wholesale water provider or having a common source or other association
appropriate for the area, in the judgment of the regional water planning group,
for counties with more than five retail public utilities which provide more
than 280 acre-feet per year for municipal use, and
(iv)
categories of water use (including municipal not otherwise
reported, manufacturing, irrigation, steam electric power generation, mining,
and livestock watering) for each county or portion of a county in the regional
water planning area. If a county or portion of a county is in more than one
river basin, data shall be reported for each river basin;
(B)
water demands as developed in paragraph (2)(B) of this
subsection with current water supplies available to the wholesale water provider
as developed in paragraph (3) of this subsection to determine if the wholesale
water providers in the regional water planning area will experience a surplus
of supply or a need for additional supplies. Results shall be reported for
each wholesale water provider by categories of water use (including municipal,
manufacturing, irrigation, steam electric power generation, mining, and livestock
watering) for each county or portion of a county in the regional water planning
area. If a county or portion of a county is in more than one river basin,
data shall be reported for each river basin. The executive administrator shall
provide available technical assistance to the regional water planning groups,
upon request, on water supply and demand analysis;
(5)
using the water supply needs identified in paragraph (4)
of this subsection, plans to be used during the drought of record to provide
sufficient water supply to meet the needs identified in paragraph (4) of this
subsection and in accordance with water management strategies and scenarios
described in paragraph (9) of this subsection as follows:
(A)
Water management strategies shall be developed for:
(i)
city for cities with populations greater than 500 people,
(ii)
retail public utility for counties that have less than
five retail public utilities which provide more than 280 acre-feet per year
for municipal use,
(iii)
individual utility or collective data for all such retail
public utilities that form a logical reporting unit, such as being served
by a common wholesale water provider or having a common source or other association
appropriate for the area, in the judgment of the regional water planning group,
for counties with more than five retail public utilities which provide more
than 280 acre-feet per year for municipal use, and
(iv)
categories of water use (including municipal not otherwise
reported, manufacturing, irrigation, steam electric power generation, mining,
and livestock watering) for each county or portion of a county in the regional
water planning area. If a county or portion of a county is in more than one
river basin, data shall be reported for each river basin;
(B)
water management strategies shall be developed for wholesale
water providers. The water management strategies shall also meet the new water
supply obligations necessary to implement recommended water management strategies
of other wholesale water providers and water users for which plans are developed
under of this paragraph. Results shall be reported for each wholesale water
provider by category of water use (municipal, manufacturing, irrigation, steam
electric power generation, mining, and livestock) for each county or portion
of a county in the regional water planning area. If a county or portion of
a county is in more than one river basin, data shall be reported for each
river basin;
(C)
The plan to be used for water supply during drought of
record shall meet all needs for the water use categories of municipal, manufacturing,
irrigation, steam electric power generation, mining, and livestock watering
except:
(i)
plans may identify those needs for which no water management
strategy is feasible. Full evaluation of water management strategies must
be presented and reasons given for why no water management strategies are
feasible; or
(ii)
where a political subdivision that provides water supply
(other than water supply corporations, counties, or river authorities) does
not participate in the regional water planning effort for needs located within
its boundaries or extraterritorial jurisdiction. The regional water planning
group shall establish terms of participation that shall be equitable and shall
not unduly hinder participation;
(6)
presentations of the data required in paragraphs (2) -
(5) of this subsection in subdivisions of the reporting units required such
as reporting irrigation for a county by splitting it into two or more reporting
units, if the regional planning group desires;
(7)
evaluation of all water management strategies the regional
water planning group determines to be potentially feasible, including:
(A)
water conservation practices. The executive administrator
shall provide technical assistance to the regional water planning groups on
water conservation practices. The regional water planning group must consider
water conservation practices for each need identified in paragraph (4) of
this subsection. If the regional water planning group does not adopt a water
conservation strategy for a need, it must document the reason;
(B)
drought management measures including water demand management.
The executive administrator shall provide technical assistance to the regional
water planning groups on drought management measures. The regional water planning
group must consider drought management measures for each need identified in
paragraph (4) of this subsection. If the regional water planning group does
not adopt a drought management strategy for a need, it must document the reason;
(C)
reuse of wastewater;
(D)
expanded use of existing supplies including systems optimization
and conjunctive use of resources, reallocation of reservoir storage to new
uses, voluntary redistribution of water resources including contracts, water
marketing, regional water banks, sales, leases, options, subordination agreements,
and financing agreements, subordination of existing water rights through voluntary
agreements, enhancements of yields of existing sources, and improvement of
water quality including control of naturally occurring chlorides;
(E)
new supply development including construction and improvement
of surface water and groundwater resources, brush control, precipitation enhancement,
desalination, water supply that could be made available by cancellation of
water rights based on data provided by the Texas Natural Resource Conservation
Commission, aquifer storage and recovery;
(F)
interbasin transfers; and
(G)
other measures;
(8)
evaluations of water management strategies by including:
(A)
a quantitative reporting of:
(i)
the quantity, reliability, and cost of water delivered
and treated for the end user's requirements, incorporating factors to be used
in the calculation of infrastructure debt payments, present costs, and discounted
present value costs provided by the executive administrator;
(ii)
environmental factors including effects on environmental
water needs, wildlife habitat, cultural resources, and effect of upstream
development on bays, estuaries, and arms of the Gulf of Mexico;
(B)
impacts on other water resources of the state including
other water management strategies and groundwater surface water interrelationships;
(C)
for each threat to agricultural and natural resources identified
pursuant to paragraph (1) of this subsection, a discussion of how that threat
will be addressed or affected by the water management strategies evaluated;
(D)
any other factors as deemed relevant by the regional water
planning group including recreational impacts;
(E)
equitable comparison and consistent application of all
water management strategies the regional water planning groups determines
to be potentially feasible for each water supply need;
(F)
consideration of the provisions in Texas Water Code, §11.085(k)(1)
for interbasin transfers of surface water. At a minimum, this consideration
shall include a summation of water needs in the basin of origin and in the
receiving basin, based on needs presented in the applicable approved regional
water plan; and
(G)
consideration of third party social and economic impacts
resulting from voluntary redistributions of water;
(9)
plans to meet needs, which shall include:
(A)
specific recommendations of water management strategies
to meet the near-term needs in sufficient detail to allow state agencies to
make financial or regulatory decisions to determine the consistency of the
proposed action before the state agency with an approved regional water plan;
and
(B)
specific recommendations of water management strategies
or long-term scenarios that meet the long-term needs. A long-term scenario
is a combination of various water management strategies;
(10)
regulatory, administrative, or legislative recommendations
that the regional water planning group believes are needed and desirable to:
facilitate the orderly development, management, and conservation of water
resources and preparation for and response to drought conditions in order
that sufficient water will be available at a reasonable cost to ensure public
health, safety, and welfare; further economic development; and protect the
agricultural and natural resources of the state and regional water planning
area. The regional water planning group may develop information as to the
potential impact once proposed changes in law are enacted; and
(11)
a chapter consolidating the water conservation and drought
management recommendations of the regional water plan.
(b)
Specific recommendations of water management strategies
to meet an identified need will not be shown as meeting the need for a political
subdivision if the political subdivision to supply or to be provided water
supplies objects to inclusion of the strategy for such political subdivision
and specifies its reasons for such objection. This does not prevent the inclusion
of the strategy to meet other needs.
(c)
The executive administrator shall provide technical assistance
within available resources to the regional water planning groups requesting
such assistance in performing regional water planning activities and if requested,
may facilitate resolution of conflicts within regional water planning areas.
§357.11.Adoption of Regional Water Plans by Regional Water Planning Groups.
(a)
Regional water planning groups shall concurrently submit
to the executive administrator and release to the public an initially prepared
regional water plan prior to adoption of the regional water plan. The initially
prepared plan submitted to the executive administrator must be in the electronic
and paper format specified by the executive administrator. The regional water
planning groups must certify that the initially prepared regional water plan
is complete and adopted by the regional water planning group.
(b)
The regional water planning groups shall receive and consider
the following comments when adopting a regional water plan:
(1)
the executive administrator's written comments, which shall
be provided to the regional water planning group within 120 days of receipt
of the initially prepared plan;
(2)
written comments received from any federal agency or Texas
state agency, which the regional water planning groups shall accept for at
least 120 days after the first public hearing notice is published pursuant
to §357.12(a)(3) and (5) of this title (relating to Notice and Public
Participation); and
(3)
any written or oral comments received from the public after
the first public hearing notice is published pursuant to §357.12(a)(3)
and (5) of this title until at least 60 days after the public hearing is held
pursuant to §357.12(a)(3) and (4) of this title.
(c)
The regional water planning group shall submit in a timely
manner to the executive administrator information on any known interregional
conflict between regional water plans.
(d)
The regional water planning group shall modify the regional
water plan to incorporate board resolutions of interregional conflicts.
(e)
The regional water planning group shall seek to resolve
conflicts with other regional water planning groups and shall participate
in any board sponsored efforts to resolve interregional conflicts.
(f)
A regional water planning group may amend an adopted regional
water plan at any meeting, after giving notice according to §357.12 of
this title and providing the public, the board, and other governmental entities
30 days to submit written or oral comments on the proposed amendment. A political
subdivision in the regional water planning area may request a regional water
planning group to consider specific changes to an adopted regional water plan.
A regional water planning group must formally consider such request within
180 days after its submittal and shall amend its adopted regional water plan
if it determines an amendment is warranted. A regional water planning group
may propose amendments to an approved regional water plan by submitting proposed
amendments to the board for its consideration and possible approval under
the standards and procedures of this chapter.
§357.12.Notice and Public Participation.
(a)
Regional water planning groups and any subregional water
planning groups shall provide for public participation which shall include
the following:
(1)
at least one public meeting prior to the preparation of
the regional water plan pursuant to §357.6(a)(1) of this title (relating
to Preplanning) held in some central location within the regional water planning
area;
(2)
ongoing opportunities for public input during preparation
of the regional water plan;
(3)
a public hearing following adoption of an initially prepared
regional water plan, to be held in a central location within the regional
water planning area;
(4)
a public hearing before adoption of an amendment to an
adopted regional water plan, including amendments required by the board's
resolution of interregional conflicts, to be held in a central location;
(5)
notice of the public meetings and public hearings required
by paragraphs (1), (3), and (4) of this subsection shall be published in a
newspaper of general circulation in each county located in whole or in part
in the regional water planning area before the 30th day preceding the date
of the public meeting or hearing and mailed to, at a minimum, the following:
(A)
each mayor of a municipality with a population of 1,000
or more or which is a county seat that is located in whole or in part in the
regional water planning area;
(B)
each county judge of a county located in whole or in part
in the regional water planning area;
(C)
each special or general law district or river authority
with responsibility to manage or supply water in the regional water planning
area based upon lists of such water districts and river authorities obtained
from Texas Natural Resource Conservation Commission;
(D)
each retail public utility, defined as a community water
system, that serves any part of the regional water planning area or receives
water from the regional water planning area based upon lists of such entities
obtained from Texas Natural Resource Conservation Commission; and
(E)
each holder of record of a water right for the use of surface
water the diversion of which occurs in the regional water planning area based
upon lists of such water rights holders obtained from Texas Natural Resource
Conservation Commission; and
(6)
notice of the public meetings and public hearings shall
include:
(A)
a date, time, and location of the public meeting or hearing;
(B)
a summary of the proposed action to be taken;
(C)
the name, telephone number, and address of the person to
whom questions or requests for additional information may be submitted; and
(D)
information that the regional water planning group will
accept written and oral comments at the hearings required by paragraphs (3)
and (4) of this subsection, and information on how the public may submit written
comments separate from such hearings. The regional water planning group shall
specify a deadline for submission of public written comments of not earlier
than 30 days after the hearings required by paragraphs (3) and (4) of this
subsection.
(b)
Regional water planning groups shall make copies of the
regional water plan available for public inspection at least one month before
a public hearing required or held in accordance with subsection (a)(3) and
(4) of this section by providing a copy of the regional water plan in at least
one public library in each county and either the county courthouse's law library,
the county clerk's office, or some other accessible place within the county
courthouse of each county having land in the regional water planning area
and include locations of such copies in the notice for public hearing.
(c)
Regional water planning groups and regional water planning
subgroups shall:
(1)
conduct all business in a meeting posted and held in accordance
with the Texas Open Meetings Act with a copy of all materials presented or
discussed available for public inspection prior to and following the meeting;
and
(2)
provide notice of regional water planning group and subregional
water planning meetings to persons who requested in writing receipt of such
notice.
(d)
Regional water planning groups shall publish agendas, meeting
notices, and current adopted initially prepared plans and adopted final regional
water plans on the Internet. This requirement can be met by submitting the
information, in the format specified by the executive administrator, to the
board to be posted on the board's web site.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 21, 2001.
TRD-200103512
Suzanne Schwartz
General Counsel
Texas Water Development Board
Effective date: July 11, 2001
Proposal publication date: April 6, 2001
For further information, please call: (512) 463-7981