INTRODUCTION

The Edwards Aquifer Authority ("Authority") proposes amendments to §§711.68, 711.100, 711.102, 711.104, 711.112, 711.134, 711.176, 711.302, 711.338, 711.402 and 711.406 of its rules in order to correct errors in the text of those rules as published in the Texas Register and codified in the Texas Administrative Code.

BRIEF EXPLANATION OF EACH AMENDMENT

On October 10 and 11, 2000, and on December 18, 2000, the Authority issued final orders adopting its Chapter 711 rules (relating to Groundwater Withdrawal Permits). Those final orders were published in the November 3, 2000, and the January 12, 2001, issues of the Texas Register (25 TexReg 10996-11076) (2000) (adopting Subchapters A, B, E, F, G, and I of Chapter 711), (26 TexReg 633-688) (2001) (adopting Subchapters C, D, H, K, L, and M of Chapter 711).

Sixteen inconsistencies appear in these rules as published in the Texas Register and as codified in Title 31, Texas Administrative Code. By the term "inconsistencies," the Authority refers to instances in which the language that was published in the Texas Register and codified in the Texas Administrative Code does not reflect the language adopted by the Board of Directors of the Authority ("Board"), as reflected in the Board minutes on file at the Authority's offices. The amendments that are the subject of this notice are proposed to correct these inconsistencies. As a result of these amendments, the Authority's rules, as codified in the Texas Administrative Code, will reflect the rules that were approved by the Board. The following is a brief description and explanation of each amendment.

Section 711.68 of the Authority's rules specifies the uses to which water withdrawn from a well during the interim authorization period may be placed. Section 711.68, as published in the Texas Register and codified in the Texas Administrative Code, states that "during the interim authorization period, a person owning a well qualifying for interim authorization status may beneficially use groundwater withdrawn from the aquifer through the well only for the purpose(s) of use designated in the person's declaration and falling within one or more of the following categories...." The version of §711.68 adopted by the Board states that "during the interim authorization period, a person owning a well qualifying for interim authorization status may beneficially use groundwater withdrawn from the aquifer through the well for the purpose(s) of use designated in the person's declaration and falling within one or more of the following categories...." The word "only" was mistakenly published in the Texas Register and codified in the Texas Administrative Code. The Authority proposes to amend §711.68 to correct this error.

Section 711.100 of the Authority's rules identifies those who may apply for an additional regular permit, states when such an application may be made, describes the attributes of such a permit, and lists the elements that an applicant must prove in order to be granted such a permit. Subparagraph (B) of subsection (j)(8) of that section, as published in the Texas Register and codified in the Texas Administrative Code, mistakenly contains the phrase "of this chapter." The version of subparagraph (B) adopted by the Board does not include that phrase. The Authority proposes to amend §711.100 to correct this error.

Section 711.102 of the Authority's rules identifies those who may apply for a term permit, states when such an application may be made, describes the attributes of that type of permit, and lists the elements that an applicant must prove in order to be granted such a permit. Paragraph (14) of subsection (f) of that section, as published in the Texas Register and codified in the Texas Administrative Code, mistakenly includes the plural term "systems" instead of the singular "system." The version of paragraph (14) adopted by the Board uses the singular. The Authority proposes to amend §711.102 to correct this error.

Section 711.104 of the Authority's rules identifies those who may apply for an emergency permit, describes the attributes of that type of permit, and lists the elements that an applicant must prove in order to be granted such a permit. Paragraph (7) of subsection (e) of that section, as published in the Texas Register and codified in the Texas Administrative Code, mistakenly includes the adjective "beneficial" instead of the adverb "beneficially." The version of paragraph (7) adopted by the Board uses the adverb "beneficially." The Authority proposes to amend §711.104 to correct this error.

Section 711.112 of the Authority's rules identifies the contents of well construction permits issued by the Authority. Paragraph (13) of that section, as published in the Texas Register and codified in the Texas Administrative Code, mistakenly contains the phrase "of the chapter" instead of the phrase "of this chapter." The version of paragraph (13) adopted by the Board includes the phrase "of this chapter." The Authority proposes to amend §711.112 to correct this error.

Section 711.134 of the Authority's rules lists the conditions to which all groundwater withdrawal permits issued by the Authority are subject. Paragraph (14) of that section, as published in the Texas Register and codified in the Texas Administrative Code, mistakenly includes the word "and" at the end of that subsection. The version of paragraph (14) adopted by the Board does not include the word "and" at the end of that subsection. The Authority proposes to amend §711.134 to correct this error.

Section 711.176 of the Authority's rules establishes and explains how groundwater withdrawal amounts in initial regular permits will be determined. Subsection (b) of that section sets forth the method of calculating a groundwater withdrawal amount under six different scenarios. Subsection (b) of that section, as published in the Texas Register and codified in the Texas Administrative Code, mistakenly includes the plural word "amounts" instead of the singular "amount." The version of subsection (b) adopted by the Board uses the singular. The Authority proposes to amend §711.176 to correct this error.

Subsection (c) of §711.176 explains that initial regular permits may be issued with provisional groundwater withdrawal amounts. Subsection (c), as published in the Texas Register and codified in the Texas Administrative Code, contains several punctuation errors. Specifically, it does not include a period after the phase "groundwater withdrawal amount" in the first sentence. Also, it includes a period after the parenthetical "(relating to Proportional Adjustment of Initial Regular Permits)" and begins a new sentence immediately following that parenthetical. The version of subsection (c) adopted by the Board includes a period after the phase "groundwater withdrawal amount" in the first sentence and a comma (instead of a period) after the parenthetical. The Authority proposes to amend §711.176 to correct these errors as well.

Section 711.302 of the Authority's rules concerns the authority of the Board to issue an order increasing the cap on permitted withdrawals and lists several findings that the Board must make in order to allow for such action. Paragraph (1) of that section lists one of those findings and, as published in the Texas Register and codified in the Texas Administrative Code, refers to "Comal Springs and San Marcos Springs." The version of §711.302 adopted by the Board refers to "Comal Springs or San Marcos Springs." The Authority proposes to §711.302 to correct this error.

Section 711.338 of the Authority's rules concerns the transfer of "base irrigation groundwater." Subsection (a) of that section, as published in the Texas Register and codified in the Texas Administrative Code, mistakenly begins "except as provided in subsection (b), . . . ." The version of subsection (a) adopted by the Board begins "except as provided in subsections (b) and (c), . . . ." The Authority proposes to amend §711.338 to correct this error.

Also, the version of §711.338 adopted by the Board includes subsection (c), which states as follows:

"A permittee may temporarily transfer by a lease with a term not in excess of ten years the place of use for all or part of an initial regular permit issued for base irrigation groundwater to another place of use not owned by the permittee. If the permittee subsequently transfers the ownership of the place of use of the initial regular permit to a third party, then §711.328(c) of this chapter (relating to Transfer of Ownership) would then control, and the base irrigation groundwater shall pass with the transfer of ownership of the irrigated lands identified as the place of use in the initial regular permit. However, the third party to which the permittee transferred the ownership of the place of use of the initial regular permit shall take title of the irrigated lands subject to the lease during its term."

Subsection (c) was omitted in its entirety from the version of §711.338 that was published in the Texas Register and codified in the Texas Administrative Code. The Authority proposes to amend §711.338 to correct this error.

Also, the Authority's response to public comment bearing on the addition of subsection (c) to §711.338 was omitted from the Texas Register as well. In that response, the Authority noted that the basic points of §1.34(c) of the Act is that groundwater should be available for irrigation purposes within the jurisdiction of the Authority and that Base Irrigation Groundwater (BIG) should remain appurtenant to the place of use identified in the original initial regular permits (IRPs) issued by the Authority. However, and also as explained in that response, the purpose of the appurtenancy rule would not be served by prohibiting transfers of a well owner's BIG to another place of use not owned by the owner of the BIG if the transfer is temporary and for a sufficiently short period of time such as not to constitute a transfer of the BIG to another place of use in violation of the appurtenancy rule and so long as the groundwater will continue to be used for irrigation purposes. In this context, if the owner of the place of use identified in the IRP to which the BIG is appurtenant sought to transfer the ownership of the place of use, then the appurtenancy rule would control over the transfer of the BIG to another place of use not owned by the transferor and the transferee would acquire the BIG due to the operation of §1.34(c) of the Act, although such acquisition would be subject to the term of the lease by which the temporary transfer of the place of use (but not the purpose of use) was effectuated. In this context, the BIG would continue to be used for irrigation purposes so long as the irrigated lands to which the BIG is appurtenant continue to be suitable for irrigation and the BIG would not be permanently severed from the irrigated lands constituting the original place of use in the original IRP in violation of the appurtenancy rule.

Section 711.402 of the Authority's rules concerns the duty of well owners to install and operate meters on their wells. Subsection (d) of that section, as published in the Texas Register and codified in the Texas Administrative Code, concerns the accuracy of such a meter and states that it "shall ensure an error of not greater than +five percent." The version of subsection (d) adopted by the Board states that such a meter "shall ensure an error of not greater than ± five percent." The Authority proposes to amend §711.402 to correct this error.

Section 711.406 of the Authority's rules concerns approval for the installation of meters. Subsections (a) and (b) of this section, as published in the Texas Register and codified in the Texas Administrative Code, include several errors in punctuation. Specifically, as published in the Texas Register and codified in the Texas Administrative Code, these subsections mistakenly include several commas and omit one comma. Also, paragraph (1) of subsection (b) of that section, as published in the Texas Register and codified in the Texas Administrative Code, states that the general manager shall approve an application to install or modify a meter if the application shows that "the meter . . . has a certified error of not greater than +five percent." The version of paragraph (1) of subsection (b) adopted by the Board refers to the requirement that "the meter . . . has a certified error of not greater than ± five percent." The Authority proposes to amend §711.406 to correct these errors.

FISCAL NOTE

Gregory M. Ellis, General Manager of the Authority, is responsible for approving the Fiscal Note that was prepared for these proposed amendments. Mr. Ellis has determined that for each year of the first five years that these proposed amendments will be in effect, there will be no: (1) additional costs; (2) reduction in costs; (3) loss in revenues; or (4) increase in revenues to state or local governments expected as a result of enforcing or administering these amendments.

PUBLIC BENEFIT AND COST NOTE

Mr. Ellis is responsible for approving the Public Benefit and Cost note that was prepared for these proposed amendments. Mr. Ellis has determined that for each year of the first five years that the proposed amendments will be in effect, the public benefits expected as a result of adoption of the proposed amendments will be elimination of any possible confusion regarding the rules that are the subject of these amendments and to assure that the version of the Authority's rules codified in the Texas Administrative Code reflects precisely the version of those rules that were actually approved by the Board. Mr. Ellis has determined that for each year of the first five years that the proposed amendments will be in effect, there are no probable economic costs to persons required to comply with these amendments.

LOCAL EMPLOYMENT IMPACT STATEMENT

Section 2001.022 of the Texas Government Code requires agencies to request that the Texas Workforce Commission prepare a Local Employment Impact Statement (LEIS) if the agency determines that a rule may affect a local economy. Mr. Ellis has determined that the proposed amendments will not affect a local economy and that, therefore, there is no need to request the preparation of a LEIS.

REQUEST FOR WRITTEN COMMENTS ON THE PROPOSED AMENDMENTS FROM INTERESTED PERSONS

Interested persons may submit written comments on these proposed amendments. Comments must be submitted in writing to Ms. Brenda Davis, Docket Clerk, Edwards Aquifer Authority, 1615 North St. Mary's Street, San Antonio, Texas 78215, within 30 days of the publication of this notice in the Texas Register . The written comments should be filed on 81/2 x 11-inch paper and be typed or legibly written. Written comments must indicate whether the comments are generally directed at all of the proposed amendments, or whether they are directed at specific proposed amendments. If directed at specific proposed amendments, the number of the rule proposed to be amended must be identified and followed by the comments thereon.

Subchapter D. INTERIM AUTHORIZATION