4 TAC §1.330
The Texas Department of Agriculture (the department) proposes
new §1.330 concerning a memorandum of understanding (MOU) between the
department, Texas Natural Resource Conservation Commission (TNRCC), and the
Texas Parks and Wildlife Department (TPWD) regarding the regulation of aquaculture.
The new section is proposed under the Texas Agriculture Code (the Code) §12.016,
which provides the Department with the authority to adopt rules to administer
the Code; and the Code, §134.031, which requires the Texas Department
of Agriculture to enter into a memorandum of understanding with the Texas
Natural Resource Conservation Commission, and the Texas Parks and Wildlife
Department regarding the regulation of matters related to aquaculture. Proposed §1.330
defines requirements set out in Senate Bill (SB) 873, 76th Legislature, 1999,
for establishment of an Application Review Committee (ARC) to review wastewater
discharge authorization applications from aquaculture facilities to ensure
that the proposed discharge will not adversely affect a bay, an estuary, or
other water in the state. The new MOU delineates each agency's responsibilities
under the MOU, outlines coordination procedures for the review of individual
permit applications, registration applications, requests for exemption, and
notices of intent to be covered under a general permit, sets forth the responsibilities
of each agency pertaining to licensing and regulation of aquaculture facilities
within the state, and establishes the ARC. The ARC will be comprised of one
individual from each of the three agencies and has the authority to review
any request by an aquaculture facility for authority to discharge wastewater
or for an exemption when disputes among the agencies cannot be resolved at
the staff level. The section also sets forth the right of each agency to take
any action it deems necessary to protect its legal authority under state law
regardless of any provision in the MOU and sets forth general conditions including
the term of the MOU and amendment procedures.
Margaret Alvarez, coordinator for aquaculture, has determined that for
the first five-year period the MOU is in effect there will be no fiscal implications
for state or local government as a result of enforcing or administering the
MOU.
Ms. Alvarez also has determined that for each year of the first five years
the MOU is in effect the public benefit anticipated as a result of enforcing
the MOU would be the establishment of a process for interagency coordination
of permitting issues related to aquaculture. There will be no effect on microbusinesses,
small or large businesses. There is no anticipated economic cost to persons
who are required to comply with the MOU as proposed.
Comments on the proposal may be submitted to Margaret Alvarez, Coordinator
for Aquaculture, Texas Department of Agriculture, P. O. Box 12847, Austin,
Texas 78711. Comments must be received no later than 30 days from the date
of publication of the proposal in the
Texas Register.
The section is proposed under the Texas Agriculture Code (the
Code), § 134.031, which requires the Texas Department of Agriculture
to enter into a memorandum of understanding with the Texas Natural Resource
Conservation Commission, and the Texas Parks and Wildlife Department regarding
the regulation of matters related to aquaculture; and the Code, §12.016,
which provides the Department with the authority to adopt rules to administer
the Code.
The code affected by this proposal is the Texas Agriculture Code, Chapter
134.
§1.330.Memorandum of Understanding (MOU) between the Texas Natural Resource Conservation Commission (commission), the Texas Parks and Wildlife Department (TPWD), and the Texas Department of Agriculture (TDA).
(a)
Need for agreement.
(1)
The commission, TPWD, and TDA seek to ensure that regulation
of aquaculture is conducted in a manner that is both collaborative and responsible.
(2)
The commission, TPWD, and TDA are concerned about issues
relating to the raising of non-native aquatic species and the attendant concern
about escape into natural ecosystems, including the introduction of disease
into natural ecosystems.
(3)
The commission, TPWD, and TDA are concerned about the quality
of wastewater discharges from aquaculture facilities and their effects on
receiving waters in reservoirs, streams, bays, and estuaries.
(4)
The commission, TPWD, and TDA seek to establish an interagency
review procedure for applications requesting authorization to discharge wastewater
from aquaculture facilities.
(5)
The commission, TPWD, and TDA seek to institute an effective
system by which coordination and collaboration can be achieved to expedite
enforcement actions in response to discharges from aquaculture facilities
that are found to contain contagious disease that may impact state waters.
(6)
Texas Water Code, §5.104, authorizes the commission
to enter into an MOU with any other state agency.
(7)
Texas Agriculture Code, §134.031, directs the commission,
TPWD, and TDA to enter into an MOU for the regulation of matters relating
to aquaculture.
(8)
It is the intention of this MOU to provide a formal mechanism
by which TPWD and TDA may review and provide feedback on aquaculture issues
that are subject to regulation by the commission and that have the potential
to affect natural resources and the regulation of aquaculture within the jurisdiction
of TPWD or TDA. This exchange of information would assist the commission in
making environmentally sound decisions and would improve coordination between
the commission, TPWD, and TDA.
(b)
Definitions. The following words and terms, when used in
this section, shall have the following meanings unless the context clearly
indicates otherwise.
(1)
Application -- A request submitted by an aquaculture facility
to the commission for authorization to discharge under an individual permit
or registration; a Notice of Intent (NOI) to seek authorization under a general
permit; or a request for an exemption.
(2)
Aquaculture -- The business of producing or rearing aquatic
species (fish, crustaceans, and other organisms in either fresh or marine
waters) utilizing ponds, lakes, fabricated tanks and raceways, or other similar
structures.
(3)
Memorandum of Understanding (MOU) -- A formal document
that clarifies and provides for the respective duties, responsibilities, or
functions of the state agencies who are signatories on any matter or matters
under their jurisdiction that are not expressly assigned to either one of
them.
(c)
Responsibilities.
(1)
The commission. The responsibilities of the commission
relate primarily to its role as the natural resource agency with primary responsibility
over conservation of natural resources and the protection of the environment,
under Texas Water Code, §5.012.
(A)
The commission has general jurisdiction over the state's
water quality program including issuance of waste discharge permits, water
quality planning, and enforcement of water quality rules, standards, orders,
and permits.
(B)
The commission seeks to maintain the quality of water in
the state consistent with public health and enjoyment, the propagation and
protection of terrestrial and aquatic life, the operation of existing industries,
and the economic development of the state, and to require the use of all reasonable
methods to implement this policy.
(C)
The commission is responsible for review of NOIs and requests
for exemption, and review of applications and subsequent issuance of waste
discharge permits, temporary orders, emergency orders, and registrations.
(2)
TPWD. The responsibilities of TPWD relate primarily to
its functions as a natural resource agency, including its resource protection
functions, as designated by the Parks and Wildlife Code, §12.001.
(A)
TPWD is the state agency with primary responsibility for
protecting the state's fish and wildlife resources.
(B)
TPWD provides recommendations that will protect fish and
wildlife resources to local, state, and federal agencies that approve, permit,
license, or construct developmental projects.
(C)
TPWD provides information on fish and wildlife resources
to any local, state, and federal agencies or private organizations that make
decisions affecting those resources.
(D)
TPWD regulates the taking, possession, and conservation
of all kinds of marine life and other aquatic life.
(E)
TPWD regulates the introduction of fish, shellfish, and
aquatic plants into public water, under Texas Parks and Wildlife Code, §66.015(b).
(F)
TPWD regulates the importation, possession, and placing
into state water of harmful or potentially harmful exotic species of fish,
shellfish, or aquatic plants, under Texas Parks and Wildlife Code, §66.007(a).
(G)
TPWD is responsible for review of applications and subsequent
issuance of permits relating to the importation, possession, and placing into
state water of harmful or potentially harmful exotic species of fish, shellfish,
or aquatic plants, under Texas Parks and Wildlife Code, §66.007(a).
(3)
TDA. The responsibilities of TDA relate primarily to its
functions as a regulatory agency that oversees the licensing and regulation
of aquaculture operations under Texas Agriculture Code, Chapter 134.
(A)
TDA is responsible for establishing recordkeeping requirements
for commercial aquaculture facilities.
(B)
TDA is responsible for the review of applications and subsequent
issuance of aquaculture licenses under Texas Agriculture Code, Chapter 134,
to aquaculture facilities that produce and sell cultured species.
(C)
TDA is responsible for the review of applications and subsequent
issuance of aquaculture licenses under Texas Agriculture Code, Chapter 134,
for fish farm vehicles selling cultured species from the vehicle.
(d)
Provisions. This MOU is to facilitate the coordination
and collaboration between the commission, TPWD, and TDA with regard to aquaculture
facilities.
(1)
Coordination procedures for NOIs, applications for registrations,
and requests for exemptions.
(A)
The executive director will provide copies of all NOIs,
registration applications, and requests for exemption to TPWD and TDA within
14 days of the stamped date of receipt.
(i)
Within 45 days of the date of receipt of the NOI, registration
application, or request for exemption, by TPWD and TDA, each will complete
its initial assessment, and by letter shall:
(I)
provide the executive director with formal written recommendations
designed to protect fish and wildlife resources; or
(II)
indicate that it has no comments; or
(III)
request additional information from the commission.
(ii)
If the commission does not receive formal written comments
from TPWD or TDA within 45 days of the date of receipt of the NOI, registration
application, or request for exemption, by TPWD and TDA, the executive director
will conclude that there are no comments and continue normal processing of
the application.
(B)
Upon receipt of a request from TPWD or TDA for additional
information, the executive director will immediately provide such information
if it is contained in the application materials. If additional information
is not included in the application materials, and if the information is necessary
for TPWD or TDA to make its evaluation, the TPWD or TDA will request such
additional information from the applicant, notify the executive director of
this request, and ask the applicant to send a copy of its reply to the commission.
If the applicant does not provide the additional information to the TPWD or
TDA within 30 days of a request, the TPWD or TDA may request that the executive
director suspend processing of the application. If the executive director
determines that this additional information is essential to complete the technical
review, the executive director will determine whether it is appropriate to
either suspend processing or deem the application incomplete and return it
to the applicant.
(C)
Upon receipt of additional information from the executive
director or the applicant, the TPWD and TDA will each have 30 days to complete
its review and either make final recommendations or indicate by letter that
it has no comments. If formal written comments or additional information is
not received from the TPWD or TDA within 30 days, the executive director will
conclude that there are no comments and will continue normal processing of
the application.
(2)
Coordination procedures for individual permit applications.
(A)
The executive director will provide notification to TPWD
and TDA of each application received which requests individual permit authorization
for the discharge or disposal of wastewater from aquaculture facilities. Notification
shall be transmitted within 14 days of a request received from either TPWD
or TDA, or after the permit application has been assigned to a permit writer.
Notification shall include a copy of the application and any comments, memoranda,
letters, or other information incorporated in the application file following
date of application receipt so that TPWD and TDA may complete an initial assessment
of the proposed operation.
(i)
Within 45 days of the date of receipt of notification by
TPWD and TDA, each will complete its initial assessment, and by letter shall:
(I)
provide the executive director with formal written recommendations
designed to protect fish and wildlife resources; or
(II)
indicate that it has no comments; or
(III)
request additional information from the commission.
(ii)
If the commission does not receive formal written comments
from TPWD or TDA within 45 days of the date of receipt of the notification
by TPWD and TDA, the executive director will conclude that there are no comments
and continue normal processing of the application.
(B)
Upon receipt of a request from TPWD or TDA for additional
information, the executive director will immediately provide such information
if it is contained in the application materials. If additional information
is not included in the application materials, and if the information is necessary
for TPWD or TDA to make its evaluation, the TPWD or TDA will request such
additional information from the applicant, notify the executive director of
this request, and ask the applicant to send a copy of its reply to commission.
If the applicant does not provide the additional information to the TPWD or
TDA within 30 days of a request, the TPWD or TDA may request that the executive
director suspend processing of the application. If the executive director
determines that this additional information is essential to complete the technical
review, the executive director will determine whether it is appropriate to
either suspend processing or deem the application incomplete and return it
to the applicant.
(C)
Upon receipt of additional information from the executive
director or applicant, the TPWD and TDA will each have 30 days to complete
its review and either make final recommendations or indicate that it has no
comments. If formal written comments are not received from the TPWD or TDA
within 30 days, the executive director will conclude that there are no comments
and continue normal processing of the application.
(D)
In coordination with the TPWD and TDA, the commission shall,
within 120 days of the date of adoption of this MOU, establish guidelines
for a site assessment environmental report for new commercial shrimp facilities
located within the coastal zone. This report shall describe the existing environmental
conditions at the proposed site including aquatic habitat and the conditions
of water in the state into which a discharge is proposed. The report must
provide an assessment of any potential impacts of wastewater discharges on
sensitive aquatic habitats in the area of the proposed site, and significant
impacts related to the construction or operation of the facility, and any
mitigation actions proposed by the applicant.
(3)
Coordination procedures applicable to all applications.
(A)
The scope of review by TPWD may include, but is not limited
to: consideration of especially sensitive receiving water conditions (aquatic
habitat); impacts of the discharge on substrate (scouring, sedimentation)
and water transparency; alteration of receiving water flow characteristics;
existing or attainable biological and recreational uses; discharge rate and
volume; and the likelihood of disease transmission. Comments may be addressed
directly to the applicant by TPWD.
(B)
The scope of review by TDA may include, but is not limited
to, whether or not an application for the discharge or disposal of wastewater
from aquaculture facilities should be approved.
(C)
Formal written comments received from TPWD and TDA will
be considered by the executive director in making decisions on applications
requesting authorization for the discharge or disposal of wastewater from
aquaculture facilities. TPWD's and TDA's comments will be evaluated in conjunction
with all other applicable factors and will be incorporated by the executive
director whenever it is consistent with the commission's responsibilities.
In accordance with the responsibilities of the commission as described in
this document, the executive director reserves the right to determine the
final disposition of applications. Upon making a preliminary recommendation
regarding an application, the executive director will provide a response to
TPWD and TDA that contains a copy of the initial draft permit, draft order,
or final decision on an exemption or registration, and documentation providing
an explanation on why any of TPWD's and TDA's comments were not incorporated.
A final draft permit will be transmitted to the TPWD and the TDA.
(D)
TPWD shall, within 120 days of the date of adoption of
this MOU, develop guidelines identifying sensitive aquatic habitat within
the coastal zone. TPWD will provide the guidelines it develops to the executive
director and TDA. The executive director will consider the sensitive aquatic
habitat guidelines when reviewing wastewater discharge applications for new
aquaculture facilities or expansion of existing facilities in the coastal
zone.
(E)
TPWD shall, within 120 days of the date of adoption of
this MOU, develop guidelines which list the type of information it needs from
permit applicants, in addition to the commission wastewater permit application,
in order to make a determination as to whether the proposed discharges will
not adversely affect a bay, an estuary, or other water in the state. This
additional information will be used during the review of the permit application.
The TPWD will develop these guidelines with input from the stakeholders, the
commission, and TDA. When the guidelines are finalized by TPWD, the agencies
will make them available to stakeholders and applicants, and it is expected
that the requested information will routinely be required as part of any wastewater
discharge application. It is understood that occasions may arise when information
beyond that which is listed in the guidelines may be required by TPWD.
(F)
A new exotic species permit will not be issued by TPWD
to any aquaculture facility that proposes to discharge wastewater until a
commission waste discharge permit or other authorization has been issued or
it is determined that the facility is exempted from such requirements.
(G)
TDA will provide a copy of each aquaculture license application
received to the commission and TPWD. An aquaculture license will not be issued
by TDA to any aquaculture facility until a commission waste discharge permit
or other authorization has been issued, or it is determined that the facility
is exempted from such requirements.
(H)
An interagency work group will be formed whose function
will be to meet at least annually to address aquaculture issues relating to
water quality, fish and wildlife resources, and receiving stream habitat and
uses. This work group will serve to strengthen coordination of the commission,
TPWD, and TDA activities related to the aquaculture industry and provide a
conduit for shared information. The work group shall be composed of members
of each agency and staffed at levels which are mutually agreeable as adequate
to accomplish the stated goals. Each agency shall designate a primary contact
person for this group and notify the other agencies of any changes to the
primary contact person.
(I)
The executive director and TPWD will coordinate studies
related to applications that request authorizations for the discharge and
disposal of wastewater. This may include on-site visits, receiving water assessments,
sample collection, data analysis and related activities. Notification of these
activities will be provided at least five days prior to the activity or as
soon as is practicable. TPWD will notify the appropriate commission regional
office and the Wastewater Permitting Section. The executive director will
notify TPWD Resource Protection Regional Office and headquarters.
(J)
The executive director and TPWD will strive to coordinate
responses to emergency conditions, investigation of unauthorized waste discharges,
and compliance inspections of aquaculture facilities. The executive director
and TPWD will provide notice to each other regarding site inspections, so
as to allow the other agency to participate if desired. Notifications of scheduled
compliance inspections will be provided at least five days before the inspection.
Notification of other activities will be provided as soon as practicable.
TPWD will notify the commission regional office and the executive director
will notify TPWD Resource Protection Regional Office.
(K)
The executive director, TPWD, and TDA will strive to provide
to each agency, notification of public meetings and public hearings that relate
to aquaculture applications.
(L)
The executive director and TPWD will continue to develop
and provide to applicants, permit conditions and, as appropriate, guidance
related to disease, quarantine conditions, and emergency plans.
(e)
Application Review Committee.
(1)
Purpose.
(A)
The application review committee (ARC) will review wastewater
discharge authorization applications to ensure that the proposed discharges
will not adversely affect a bay, an estuary, or other water in the state.
(B)
The commission, TPWD, and TDA recognize the importance
of integrating and coordinating among themselves to ensure that this ultimate
goal, stated in subparagraph (A) of this paragraph, is achieved.
(C)
In order to accomplish this, the ARC will function as a
forum for discussion, answering questions and resolving differences, in an
attempt to come to consensus regarding the controls needed to meet the ultimate
goal.
(D)
The ARC shall primarily be used as a means for settling
unresolved disputes concerning aquaculture between the agencies.
(2)
Membership.
(A)
Each agency, the commission, TPWD, and TDA, will appoint
one member to the ARC.
(B)
Each agency shall appoint an alternate member of the committee.
(C)
If a member or alternate is unable to attend a meeting,
then that member or alternate will temporarily delegate his or her decision-making
authority to other staff of that agency for that meeting only.
(D)
At meetings of the ARC, technical specialists representing
the agencies may participate in or contribute to the committee's discussions
and other activities.
(E)
Within two weeks of the adoption of this MOU, each agency
will inform the other two agencies of the member and alternates.
(F)
An agency may change its member or alternate by providing
notice to each of the other members and alternates.
(3)
Applicability. The ARC may consider any wastewater discharge
application when disputes can not be resolved at the staff level.
(4)
Functioning of the ARC.
(A)
Meetings.
(i)
Meetings will be on an as needed basis.
(ii)
Any member of the ARC may request a meeting of the committee
to consider one or more discharge applications.
(iii)
Any meeting of the ARC to consider a specific discharge
permit application should, whenever possible, be requested prior to the public
notice of the application and preliminary decision.
(iv)
It is the responsibility of the member requesting the
meeting to notify all the members and alternates, and to establish a mutually
agreeable meeting time and location.
(v)
The meeting shall take place within seven calendar days
of the request.
(vi)
It is the responsibility of the agency requesting the
meeting to take minutes of the meeting, to provide the minutes for review
and comment of the other parties, and to provide a final version of the minutes
which reflects any comments received.
(B)
Decision making. The ARC will strive for unanimous consent
on all decisions. In the event that unanimous agreement cannot be reached
among members of the committee, the matter under consideration may be referred
to officials of the agencies for resolution in an expeditious manner. The
agencies agree that, while recognizing the areas of expertise and authority
of the members, decision- making deliberations will focus on the agencies'
mutual purpose of ensuring that the proposed discharge will not adversely
affect a bay, an estuary, or other water in the state.
(C)
Confidentiality. The ARC supports an open government policy
and it is understood and agreed that information subject to public disclosure
under the Texas Public Information Act shall be released upon written request.
(f)
General conditions.
(1)
The term of this MOU shall be from the effective date until
termination of this agreement. Any amendment to the MOU shall be made by mutual
agreement of the parties and shall be adopted by rule by all parties.
(2)
Each party shall adopt the MOU by rule. All amendments
shall also be adopted by rule. This MOU, and any subsequent amendment, shall
become effective 20 days after the date on which the rule is filed in the
Office of the Secretary of State.
(3)
By signing this MOU, the signatories acknowledge that they
are acting upon proper authority from their governing bodies.
(4)
Reservation of rights. Each agency has and reserves the
right to take whatever actions necessary to pursue or preserve any legal remedies
available to that agency, and nothing in this MOU is intended to waive or
foreclose any such right.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State, on May 24, 2001.
TRD-200102911
Dolores Alvarado Hibbs
Deputy General Counsel
Texas Department of Agriculture
Earliest possible date of adoption: July 8, 2001
For further information, please call: (512) 463-4075