Part 1.
GENERAL LAND OFFICE
Chapter 1.
EXECUTIVE ADMINISTRATION
Subchapter G. PROCEDURES FOR SUBMITTING AND PROCESSING APPLICATIONS FOR APPROVAL OF PATENT IN LAND RELEASED BY THE STATE
31 TAC §§1.90 - 1.97
The General Land Office (GLO) proposes new Subchapter G,
relating to Procedures for Submitting and Processing Applications for Approval
of Patent in Land Released by the State. The new subchapter contains rules
concerning the requirements and the procedures for submitting and processing
applications to the General Land Office for approval by the School Land Board
of a patent in land released by the state pursuant to §11.084 and §11.085
of the Texas Natural Resources Code. Sections 11.084 and 11.085 were enacted
by the 77th Legislature, Regular Session, 2001, to provide the legislative
authorization to settle land title disputes between the state and a private
party, if the proposed constitutional amendment (Proposition #17) was approved.
Proposition #17 was approved by the voters of the state in the November 2001
election and certified by the Secretary of State on November 30, 2001. The
Constitutional Amendment and §11.084 and §11.085 of the Texas Natural
Resources Code were effective January 1, 2002.
This proposed new subchapter contains new §§1.90 - 1.97. The
proposed new sections provide orderly and efficient procedures for the GLO
to determine whether a person applying for a patent releasing all or a part
of the state's interest in land, excluding mineral rights, substantially meets
the criteria for issuance of a patent under §11.084 of the Texas Natural
Resources Code.
Section 1.90, relating to Purpose and Scope describes the purpose and scope
of the proposed subchapter.
Section 1.91, relating to Definitions, defines terms used in §11.084
and §11.085 of the Texas Natural Resources to explain the scope and limitations
of the words used in the statute.
Section 1.92, relating to Application Requirements, provide a detailed
explanation of the requirements for applications to be deemed complete by
the General Land Office. The purpose of this section is to assist applicants
in avoiding rejection of incomplete applications. The proposed rule also describes
the documents that must be submitted with an administratively complete application.
Section 1.93, relating to Limitation on Other Dispositions, provides applicants
with a grace period during which the GLO will not seek the School Land Board's
authorization to sell, convey, or otherwise dispose of land described in the
application. The purpose of the rule is to preserve the status quo after a
completed application has been filed claiming title to land that is currently
vested in the state of Texas.
Section 1.94, relating to Processing of Applications, sets forth the standards
by which the GLO reviews applications to determine whether the claimant substantially
meets the criteria for issuance of a patent under §11.084 of the Texas
Natural Resources Code. The section also sets forth the standards for the
General Land Office's decision to submit an application to the School Land
Board or to recommend that the Commissioner reject the application.
Section 1.95, relating to Patent Issuing Requirements, provides procedures
for releasing all or part of the state's interest in land where the School
Land Board has approved a patent. The proposed new rule explains to whom a
patent may be issued. It also describes the mineral rights reservation language
that will appear on patents issued under §11.084 and §11.085 of
the Texas Natural Resources Code.
Section 1.96, relating to Nonapplicability, describes which state lands
do not fall under §11.084 of the Texas Natural Resources Code.
Section 1.97, relating to Non-Use, states that §11.084 of the Texas
Natural Resources Code may not be used to resolve boundary disputes, change
the mineral reservation in an existing patent, determine the existence of
a vacancy, or obtain a deed of acquittance to excess acreage.
Larry R. Soward, Chief Clerk of the General Land Office, has determined
that there will be no fiscal implications for state or local government as
a result of enforcing or administering the proposed sections for each of the
first five years the sections as proposed will be in effect.
Larry R. Soward, Chief Clerk of the General Land Office, has determined
that, for each year of the first five years the sections are in effect, the
public benefits anticipated as a result of enforcing the sections are that
persons who have held state land under color of title, in the manner required
under §11.084 and §11.085 of the Texas Natural Resources Code, for
at least fifty years may obtain a release of the state's interest in the land
by the unanimous approval of the School Land Board. The proposed rules provide
for an orderly and efficient manner to process and evaluate claims under §11.084
and §11.085 of the Texas Natural Resources Code. There will be no effect
on small businesses.
Comments may be submitted to Ms. Melinda Tracy, Texas Register Liaison,
General Land Office, P.O. Box 12873, Austin, Texas, 78711-2873, melinda.tracy@glo.state.tx.us,
facsimile (512) 463-6311. In order to be considered, comments must be received
by no later than 30 days from the date of publication.
The proposed new subchapter and new rules are proposed under §11.084
and §11.085 of the Texas Natural Resources Code which provides the GLO
with authorization to promulgate rules regarding land title disputes between
the state and a private party.
Sections 11.084 and 11.085 of the Texas Natural Resources Code are affected
by these proposed rulemaking actions.
§1.90. Purpose and Scope.
(a)
These sections are intended to provide orderly and efficient
procedures for the General Land Office to determine whether a person applying
for patenting to release all or a part of the state's interest in land, excluding
mineral rights, substantially meets the criteria for issuance of a patent
under §11.084 of the Natural Resources Code.
(b)
These procedures shall apply to the initiation, review,
and determination of whether a person substantially meets the criteria for
issuance of a patent under §11.084 of the Natural Resources Code.
§1.91.Definitions.
The following words and phrases, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates otherwise.
(1)
Appropriate County -- The county or counties in which the
tract of land claimed by the claimant is located.
(2)
Board -- The School Land Board.
(3)
Claimant -- A person who has filed an application with
the General Land Office for a patent under §11.084 of the Natural Resources
Code.
(4)
Chain of Title -- Unbroken and successive written conveyances
of record, or other written forms of alienation recognized under the laws
of the state of Texas as sufficient to convey interests in land, affecting
the tract or tracts of land claimed by the claimant, arranged consecutively,
from on or before January 1, 1952, down to the present holder.
(5)
Color of Title -- An unbroken chain of transfers of the
claimed tract or tracts dating back at least as far as January 1, 1952
(6)
Commissioner -- The Commissioner of the General Land Office.
(7)
Deed -- A written instrument of conveyance, regular on
its face, that conformed to the requirements of Texas Property Code or the
laws of the state of Texas at the time of execution and that would have conveyed
title, except for title being in the state of Texas.
(8)
Documents Necessary To Support the Claim --
(A)
A deed to claimant or claimant's predecessors in interest
recorded in the county or counties in which the claimed tract or tracts is
located,
(B)
all instruments of conveyance or other forms of alienation
necessary to prove chain of title,
(C)
documentation the claimant deems necessary or assistive
in explaining the deed or chain of title, and
(D)
such other documentation as the commissioner shall deem
necessary to process the application.
(9)
Not Patentable Under the law in effect before January 1,
2002 -- Other than pursuant to the provisions of §11.084 and §11.085
of the Texas Natural Resources Code, claimant has no right to obtain a patent
on the tract or tracts in the application.
(10)
Person -- A natural person or persons or an entity or
entities that are recognized by, and are in good standing with, the state
of Texas at the time of the filing of the application.
(11)
Unanimously Approves -- An approval of all members of
the School Land Board, as opposed to approval of all members present and voting.
(12)
Actual Knowledge -- The claimant or claimant's predecessors
in interest possessing knowledge of a fact. Actual knowledge embraces facts
which a reasonably diligent inquiry and exercise of the means of information
at hand would disclose.
§1.92. Application Requirements.
(a)
A person claiming title to land Under §11.084 of the
Natural Resources Code may apply for a patent by filing with the commissioner:
(1)
an application on the form prescribed by the commissioner;
(2)
a notarized affidavit on the form prescribed by the Commissioner,
which among other things, requires that the claimant swear that the claimant
and, to the best of claimant's knowledge and belief, claimant's predecessors
in interest, acquired the land without actual knowledge that title to the
land was vested in the state of Texas; and
(3)
an attachment to the application which contains documents
necessary to support the claim.
(b)
The attachment to the application shall include:
(1)
a certified copy of the claimant's deed, or deed of claimant's
predecessors in interest, recorded in the appropriate county or counties;
(2)
a certified copy of the claimant's chain of title that
originated on or before January 1, 1952;
(3)
a copy of any boundary survey or plat of survey, in the
applicant's possession, which covers any of the deeded tract;
(4)
a sworn certificate from the tax assessors-collectors of
the taxing jurisdictions in which the claimed tract is located stating that
all taxes assessed on the claimed tract or tracts and any interest and penalties
associated with any periods of tax delinquency have been paid In the event
that public records concerning the tax payments on the claimed tract or tracts
are unavailable for any period the tax assessors-collectors of the taxing
jurisdictions in which the claimed tract is located shall provide the School
Land Board with a sworn certificate stating that, to the best of their knowledge:
(A)
all taxes have been paid; and
(B)
there are no outstanding taxes nor interest or penalties
currently due against the claimed tract or tracts; and
(5)
such other documentation as the applicant deems necessary
or assistive in explaining the deed or chain of title.
(c)
A $25 non-refundable application fee and the appropriate
filing fee for each document filed with the application shall be paid with
the filing of the application.
(d)
The person filing the application for consideration by
the School Land Board shall be solely responsible for the completeness of
the application.
§1.93. Limitation on Other Dispositions.
Filed applications shall not stay, delay or otherwise act in limitation
of the authority of the Board to sell, convey or otherwise dispose of any
surveyed, unsold, permanent school fund land under any other statutory authority;
provided however, if a completed application is on file with the General Land
Office prior to the time of the Board's final authorization of the sale, conveyance
or other disposition of land covered by the application, the General Land
Office will not seek the Board's authority to sell, convey or otherwise dispose
of the land for a period of forty-five (45) days following the General Land
Office's determination that the application is complete for consideration
by the Board.
§1.94. Processing of Applications.
(a)
The General Land Office shall review applications to determine
whether the claimant substantially meets the criteria for issuance of a patent
under §11.084 of the Natural Resources Code.
(b)
Except as otherwise provided in §1.93. above, if the
General Land Office determines that the application is complete for consideration
by the Board, the Commissioner shall convene the Board to determine whether
a patent is to be issued under §11.084 of the Natural Resources Code.
(c)
Applications determined by the General Land Office to not
substantially meet the criteria for issuance of a patent may be rejected by
the commissioner.
(d)
Applications which are not complete for consideration by
the Board within six (6) months after filing with the commissioner may be
rejected by the Commissioner.
(e)
Rejection of an application by the General Land Office,
or the Board's failure to unanimously approve the tract for patenting, terminates
all rights under the application.
§1.95. Patent Issuing Requirements.
(a)
If the Board unanimously approves the tract of land for
patenting to release all or part of the state's interest in the land, the
patent shall be issued by the General Land Office in accordance with the requirements
of the statutory authority and rules and regulations of the General Land Office
governing the issuance of patents generally.
(b)
Patents issued pursuant to §11.084 and §11.085
of the Natural Resources Code shall be issued in the name of the holder of
record title of the tract or tracts or to the first titleholder common to
multiple claimants. In the event of a multiple claim to the same tract, in
which there is no common titleholder, no patent shall issue.
(c)
Patents issued pursuant to §11.084 and §11.085
of the Natural Resources Code shall exclude mineral rights, with the following
to be stated on the patent: "PROVIDED HOWEVER, that there is reserved unto
the State of Texas for the use and benefit of the Permanent School Fund and
excluded from this grant, all oil, gas, coal, lignite, sulfur, and other mineral
substances from which sulfur may be derived or produced, salt, potash, uranium,
thorium, and all other minerals in and under the land described above wherever
located and by whatever method recovered, as well as the right to lease such
minerals and the right of ingress and egress to explore for and produce the
same."
§1.96. Nonapplicability.
Section 11.084 of the Natural Resource Code does not apply to:
(1)
beach land, submerged or filled land or islands; or
(2)
land that has been determined to be state-owned by judicial
decree.
§1.97.Non-Use.
Section 11.084 of the Natural Resource Code may not be used to:
(1)
resolve boundary disputes;
(2)
change the mineral reservation in an existing patent;
(3)
determine the existence of a vacancy; or
(4)
obtain a deed of acquittance to excess acreage.
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 April 22, 2002.
TRD-200202446
Larry Soward
Chief Clerk
General Land Office
Earliest possible date of adoption: June 2, 2002
For further information, please call: (512) 305-9129
Chapter 65.
WILDLIFE
Subchapter G. THREATENED AND ENDANGERED NONGAME SPECIES
31 TAC §65.173
The Texas Parks and Wildlife Department proposes an amendment
to §65.173, concerning Special Provisions. The amendment would allow
the department to issue a letter of authorization under specific circumstances,
to named individuals, which would authorize the temporary possession of threatened
and endangered species for relocation purposes. The amendment is necessary
because in the course of certain activities, such as power line maintenance
and roadway construction, work crews occasionally encounter threatened and
endangered animals that must be relocated.
Robert Macdonald, regulations coordinator, has determined that for each
of the first five years that the rule as proposed is in effect, there will
be no fiscal implications to state or local governments as a result of enforcing
or administering the rule.
Mr. Macdonald has also determined that for each of the first five years
the rule as proposed is in effect, the public benefit anticipated as a result
of enforcing or administering the rule as proposed will be the protection
of threatened and endangered resources.
There will be no effect on small businesses, microbusinesses, or persons
required to comply with the rule as proposed.
The department has not filed a local impact statement with the Texas Workforce
Commission as required by the Administrative Procedures Act, §2001.022,
as the agency has determined that the rule as proposed will not impact local
economies.
The department has determined that there will not be a taking of private
real property, as defined by Government Code, Chapter 2007, as a result of
the proposed rule.
Comments on the proposed rules may be submitted to Paul Robertson, Texas
Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744;
(512) 912-7044 or 1-800-792-1112 extension 7044 (e-mail: paul.robertson@tpwd.state.tx.us).
The rule is proposed under Parks and Wildlife Code, Chapter 67,
which authorizes the commission to establish any limits on the taking, possession,
propagation, transportation, importation, exportation, sale, or offering for
sale of nongame fish or wildlife that the department considers necessary to
manage the species; and under Chapter 68, which authorizes the commission
to make regulations necessary to administer the provisions of the chapter
and to attain its objectives, including regulations to govern limitations
on the capture, trapping, taking, or killing, or attempting to capture, trap,
take, or kill, and the possession, transportation, exportation, sale, and
offering for sale of endangered species.
The proposed rule affects Parks and Wildlife Code, Chapters 67 and 68.
§65.173.Special Provisions.
(a)
No person may release a threatened or endangered
species except as specifically provided by the department in a letter of authorization
issued prior to release.
(b)
The department may issue a
letter of authorization allowing the temporary possession of threatened and
endangered species for relocation purposes.
(1)
Letters of authorization shall be issued only
to competent persons experienced in the biological sciences who are:
(A)
employed by a governmental entity; or
(B)
engaged in paid environmental consultancy regarding
the activities for which the letter of authorization is sought.
(2)
Letters of authorization shall be issued to
named persons only.
(3)
The activities authorized by a letter of authorization
shall be performed only by the person in whose name the letter of authorization
is issued.
(4)
All animals possessed under a letter of authorization
shall be relocated and released as quickly as possible without placing avoidable
stress on the animals.
(5)
All relocated animals shall be released to suitable
habitat.
(6)
A letter of authorization does not absolve any
person from compliance with any other applicable state or federal law.
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 April 19, 2002.
TRD-200202437
Gene McCarty
Chief of Staff
Texas Parks and Wildlife Department
Earliest possible date of adoption: June 2, 2002
For further information, please call: (512) 389-4775
31 TAC §§65.315, 65.318 - 65.321
The Texas Parks and Wildlife Commission proposes amendments
to §§65.315 and 65.318 - 65.321, concerning the Migratory Game Bird
Proclamation. The amendment to §65.315, concerning Open Seasons and Bag
and Possession Limits - Early Season Species, adjusts the season dates for
early-season species of migratory game birds (with the exception of woodcock)
to account for calendar-shift. The amendment to §65.118, concerning Open
Seasons and Bag and Possession Limits - Late Season Species, adjusts the season
dates for late-season species of migratory game birds, also to account for
calendar-shift. The amendment to §65.319, concerning Extended Falconry
Season--Early Season Species, adjusts season dates for the take of early-season
species of migratory game birds by means of falconry. The amendment to §65.320,
concerning Extended Falconry Season--Late Season Species, adjusts season dates
for the take of late-season species of migratory game birds by means of falconry.
The amendment to §65.321, concerning Special Management Provisions, establishes
dates and special regulations for the take of light geese during the special
conservation season. The amendments are necessary to implement commission
policy to provide maximum hunter opportunity possible under frameworks issued
by the U.S. Fish and Wildlife Service (Service). The Service has not issued
regulatory frameworks for the 2002-2003 hunting seasons for migratory game
birds; thus, the department cautions that the proposed regulations are tentative.
However, the department intends to follow commission policy in adopting provisions
that provide maximum hunter opportunity to the greatest number of people under
the frameworks issued by the federal government.
Robert Macdonald, Wildlife Division regulations coordinator, has determined
that for the first five years that the amendments as proposed are in effect,
there will be no additional fiscal implications to state or local governments
of enforcing or administering the amendments.
Mr. Macdonald also has determined that for each of the first five years
the amendments are in effect, the public benefit anticipated as a result of
enforcing the rules as proposed will be the department's discharge of its
statutory obligation to manage and conserve the state's populations of migratory
game birds, as well as the implementation of commission policy to maximize
recreational opportunity for the citizenry.
There will be no adverse economic effects on small businesses, microbusinesses,
or persons required to comply with the rule as proposed.
The department has not drafted a local employment impact statement under
the Administrative Procedures Act, §2003.022, as the agency has determined
that the rule as proposed will not impact local economies.
The department has determined that there will not be a taking of private
real property, as defined by Government Code, Chapter 2007, as a result of
the proposed rule.
Comments on the proposed rules may submitted to Vernon Bevill, Texas Parks
and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (512)
389-4578 or 1-800-792-1112.
The amendments are proposed under Parks and Wildlife Code, Chapter
64, which authorizes the Commission and the Executive Director to provide
the open season and means, methods, and devices for the hunting and possessing
of migratory game birds.
The amendments affect Parks and Wildlife Code, Chapter 64.
§65.315.Open Seasons and Bag and Possession Limits--Early Season.
(a)
Rails.
(1)
Dates:
September 14-29, 2002 and October 26 - December
18, 2002
[
(2)
Daily bag and possession limits:
(A)
king and clapper rails: 15 in the aggregate per day; 30
in the aggregate in possession.
(B)
sora and Virginia rails: 25 in the aggregate per day; 25
in the aggregate in possession.
(b)
Dove seasons.
(1)
North Zone.
(A)
Dates:
September 1 - October 30, 2002
[
(B)
Daily bag limit: 15 mourning doves, white-winged doves,
and white-tipped (white-fronted) doves in the aggregate, including no more
than two white-tipped doves per day;
(C)
Possession limit: 30 mourning doves, white-winged doves,
and white-tipped doves in the aggregate, including no more than four white-tipped
doves in possession.
(2)
Central Zone.
(A)
Dates:
September 1 - October 29, 2002
[
(B)
Daily bag limit: 12 mourning doves, white-winged doves,
and white-tipped (white-fronted) doves in the aggregate, including no more
than two white-tipped doves per day;
(C)
Possession limit: 24 mourning doves, white-winged doves,
and white-tipped doves in the aggregate, including no more than four white-tipped
doves in possession.
(3)
South Zone.
(A)
Dates: Except in the special white-winged dove area as
defined in §65.314 of this title (relating to Zones and Boundaries for
Early Season Species),
September 20 - November 3, 2002, and December
21, 2002 - January 14, 2003
[
(B)
Daily bag limit: 12 mourning doves, white-winged doves,
and white-tipped (white-fronted) doves in the aggregate, including no more
than two white-tipped doves per day;
(C)
Possession limit: 24 mourning doves, white-winged doves,
and white-tipped doves in the aggregate, including no more than four white-tipped
doves in possession.
(4)
Special white-winged dove area.
(A)
Dates:
September 7, 8, 14, and 15, 2002
[
(i)
[
(ii)
[
(B)
Dates: September 20- November 3, 2002
and December 21, 2002- January 10, 2003.
(i)
Daily bag limit: 12 white-winged doves, mourning doves,
and white-tipped (white-fronted) doves, in the aggregate to include no more
than two white-tipped doves per day;
(ii)
Possession limit: 24 white-winged doves, mourning doves,
and white-tipped doves in the aggregate to include no more than four white-tipped
doves in possession.
(c)
Gallinules.
(1)
Dates:
September 14-29, 2002, and October 26-December
18, 2002
[
(2)
Daily bag and possession limits: 15 in the aggregate per
day; 30 in the aggregate in possession.
(d)
September teal-only season.
(1)
Dates:
September 14-29, 2002
[
(2)
Daily bag and possession limits: four in the aggregate
per day; eight in the aggregate in possession.
(e)
Red-billed pigeons, and band-tailed pigeons. No open season.
(f)
Shorebirds. No open season.
(g)
Woodcock:
December 18, 2002 - January 31, 2003
[
(h)
Common snipe (Wilson's snipe or jacksnipe):
October
19, 2002 - February 2, 2003
[
§65.318.Open Seasons and Bag and Possession Limits--Late Season.
Except as specifically provided in this section, the possession limit
for all species listed in this section shall be twice the daily bag limit.
(1)
Ducks, mergansers, and coots. The daily bag limit for ducks
is six, which may include no more than five mallards or Mexican mallards (Mexican
duck), only two of which may be hens, three scaup, one mottled duck, one pintail,
two redheads, one canvasback, and two wood ducks. The daily bag limit for
coots is 15. The daily bag limit for mergansers is five, which may include
no more than one hooded merganser. [
(A)
High Plains Mallard Management Unit:
October 19-21,
2002, and October 26, 2002 - January 19, 2003
[
(B)
North Zone:
October 26-27, 2002, and November 9, 2002
- January 19, 2003
[
(C)
South Zone:
October 26 - December 1, 2002, and December
14, 2002 - January 19, 2003
[
(2)
Geese.
(A)
Western Zone.
(i)
Light geese:
October 26, 2002 - February 9, 2003
[
(ii)
Dark geese:
October 26, 2002 - February 9, 2003
[
(B)
Eastern Zone.
(i)
Light geese:
October 26, 2002 - January 19, 2003
[
(ii)
Dark geese:
(I)
White-fronted geese:
October 26, 2002 - January 19,
2003
[
(II)
Canada geese and brant:
October 26, 2002 - January
19, 2003
[
(3)
Sandhill cranes. A free permit is required of any person
to hunt sandhill cranes in areas where an open season is provided under this
proclamation. Permits will be issued on an impartial basis with no limitation
on the number of permits that may be issued.
The daily bag limit is three.
The possession limit is six.
(A)
Zone A:
November 9, 2002 - February 9, 2003
[
(B)
Zone B:
November 30, 2002 - February 9, 2003
[
(C)
Zone C:
December 21, 2002 -January 19, 2003
[
(4)
Special Youth-Only Season. There shall be a special youth-only
duck season during which the hunting, taking, and possession of ducks, mergansers,
and coots is restricted to licensed hunters 15 years of age and younger accompanied
by a person 18 years of age or older, except for persons hunting by means
of falconry under the provisions of §65.320 of this chapter (relating
to Extended Falconry Season--Late Season Species). Bag and possession limits
in any given zone during the season established by this paragraph shall be
as provided for that zone by paragraph (1) of this section. Season dates are
as follows:
(A)
High Plains Mallard Management Unit:
October 12-13,
2002
[
(B)
North Zone:
October 19-20, 2002
[
(C)
South Zone:
October 19-20, 2002
[
§65.319.Extended Falconry Season--Early Season Species
(a)
It is lawful to take the species of migratory birds listed
in this section by means of falconry during the following Extended Falconry
Seasons:
(1)
mourning doves and white-winged doves:
November 19
- December 25, 2002
[
(2)
rails and gallinules:
December 19, 2002 - January
24, 2003
[
(3)
woodcock:
November 24 - December 17, 2002 and February
1 - March 10, 2003
[
(b)
The daily bag and possession limits for migratory game
birds under this section shall not exceed three and six birds respectively,
singly or in the aggregate.
§65.320.Extended Falconry Season--Late Season Species.
[
(1)
Ducks, coots, and mergansers:
(A)
[
(B)
[
(2)
[
§65.321.Special Management Provisions.
The provisions of paragraphs (1)-(3) of this section apply only to
the hunting of light geese. All provisions of this subchapter continue in
effect unless specifically provided otherwise in this section; however, where
this section conflicts with the provisions of this subchapter, this section
prevails.
(1)
Means and methods. In addition to the means and methods
authorized in §65.310(a) of this title (relating to Means , Methods,
and Special Requirements), the following means and methods are lawful during
the time periods set forth in paragraph (4) of this section:
(A)
shotguns capable of holding more than three shells; and
(B)
electronic calling devices.
(2)
Possession. During the time periods set forth in paragraph
(4) of this section:
(A)
there shall be no bag or possession limits; and
(B)
the provisions of §65.312 of this title (relating
to Possession of Migratory Game Birds) do not apply; and
(C)
a person may give, leave, receive, or possess legally taken
light geese or their parts, provided the birds are accompanied by a wildlife
resource document from the person who killed the birds. The wildlife resource
document is not required if the possessor lawfully killed the birds; the birds
are transferred at the personal residence of the donor or donee; or the possessor
also possesses a valid hunting license, a valid waterfowl stamp, and is HIP
certified. The wildlife resource document shall accompany the birds until
the birds reach their final destination, and must contain the following information:
(i)
the name, signature, address, and hunting license number
of the person who killed the birds;
(ii)
the name of the person receiving the birds;
(iii)
the number and species of birds or parts;
(iv)
the date the birds were killed; and
(v)
the location where the birds were killed (e.g., name of
ranch; area; lake, bay, or stream; county).
(3)
Shooting hours. During the time periods set forth in paragraph
(4) of this section, shooting hours are from one half-hour before sunrise
until one half-hour after sunset.
(4)
Special Light Goose Conservation Period.
(A)
From
January 20, 2003
[
(B)
From
February 10, 2003
[
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 April 19, 2002.
TRD-200202436
Gene McCarty
Chief of Staff
Texas Parks and Wildlife Department
Earliest possible date of adoption: June 2, 2002
For further information, please call: (512) 389-4775
31 TAC §§65.325 - 65.331
The Texas Parks and Wildlife Department proposes amendments
to §§65.325-65.327 and 65.329-65.331, and new §65.328, concerning
Commercial Nongame Permits. The amendment to §65.325, concerning Applicability,
eliminates language concerning the applicability of the regulations to certain
species and is necessary because those species are being removed from the
list of protected species. The amendment to §65.326, concerning Definitions,
adds a definition of ‘export.’ The amendment is necessary to define
an activity for enforcement purposes. The amendment to §65.327, concerning
Permit Required, changes the name of the commercial collection permit to ‘commercial
nongame permit,’ stipulates that commercial nongame permit holders may
purchase nongame wildlife only from persons holding dealer’s nongame
permit, and prohibits non-residents from engaging in commercial activities
unless they possess a non-resident commercial dealer permit issued in their
name . The amendment is necessary to make the name of the former commercial
collection permit more accurately reflect the nature of the permitted activities,
since many permit holders currently do not engage in collection activities;
to create a mechanism for the agency to capture data that otherwise would
be unavailable because of other aspects of this rulemaking that eliminate
the reporting requirements for holders of the former commercial collection
permit; and to prevent persons from engaging in commercial activities under
a non-resident commercial dealer permit while posing as an employee of an
out-of-state permit holder. New §65.328, concerning Means and Methods,
establishes the lawful manners and devices that may be employed to take nongame
wildlife. The new section is necessary to prevent the take of nontarget species,
to prevent waste, and to ensure that persons engaged in the take of nongame
wildlife under certain circumstance can be identified when not personally
present. The amendment to §65.329, concerning Permit Application, makes
nonsubstantive changes to reflect the name changes to the types of permits,
and is necessary to maintain consistent regulatory terminology. The amendment
to §65.330, concerning Record and Reporting Requirements, eliminates
the required annual report for holders of a commercial nongame permit, requires
a separate permit to be purchased for each permanent place of business, with
exceptions, sets the period of validity of a permit, and requires nongame
dealers to record, maintain, and report the permit number of nongame permittees
from whom they purchase or obtain nongame wildlife. The amendment is necessary
to eliminate unnecessary paperwork for general nongame permit holders, as
the department has determined that the data collected from them can be captured
from reports submitted by nongame dealer permit holders. The amendment to §65.331,
concerning Affected Species, removes species from the list of species to which
the rules apply. The amendment is necessary because the department has collected
enough data on certain species to assume that commercial trade in them currently
poses little or no danger to their well-being in the wild.
Robert Macdonald, regulations coordinator, has determined that for each
of the first five years that the rules as proposed are in effect, there will
be negligible fiscal implications to state and local governments as a result
of enforcing or administering the rules.
Mr. Macdonald has also determined that for each of the first five years
the rules as proposed are in effect, the public benefit anticipated as a result
of enforcing or administering the rules as proposed will be the discharge
of the agency’s statutory duty under Parks and Wildlife Code, Chapter
67, to develop and administer management programs to insure the continued
ability of nongame species of fish and wildlife to perpetuate themselves successfully.
There will be no adverse economic effect on small businesses, microbusinesses,
or persons required to comply with the rules as proposed.
The department has not filed a local impact statement with the Texas Workforce
Commission as required by the Administrative Procedures Act, §2001.022,
as the agency has determined that the rules as proposed will not impact local
economies.
The department has determined that there will not be a taking of private
real property, as defined by Government Code, Chapter 2007, as a result of
the proposed rules.
Comments on the proposed rules may be submitted to John Herron, Texas Parks
and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512)
389-4771 or 1-800-792-1112 extension 4771 (e-mail: john.herron@tpwd.state.tx.us).
The amendments and new section are proposed under Parks and Wildlife
Code, Chapter 67, which provides the commission with authority to establish
any limits on the take, possession, propagation, transportation, importation,
exportation, sale, or offering for sale of nongame fish or wildlife.
The proposed rules affect Parks and Wildlife Code, Chapter 67.
§65.325.Applicability.
(a)
Except as provided in
§65.330 of this title (relating
to Record and Reporting Requirements) and
subsection (b) of this section,
this subchapter applies
only
to the nongame wildlife listed in §65.331
of this title (relating to Affected Species), living or dead, including parts
of nongame wildlife and captive-bred nongame wildlife.
(b)
This subchapter does not apply to:
(1)
[
[
(2)
[
(3)
[
(4)
[
(5)
[
(6)
[
[
§65.326.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates otherwise.
All other words and terms shall have the meanings assigned by the Parks and
Wildlife Code or regulatory definitions adopted under the authority of Parks
and Wildlife Code.
(1)
Captive-bred--Any wildlife born in captivity from parents
held in captivity.
(2)
Commercial activity--The sale, offer for sale, exchange,
or barter of nongame wildlife.
(3)
Export--The transport of nongame wildlife
from Texas across a state or international boundary.
(4)
[
(5)
[
(6)
[
(A)
nongame wildlife or parts of nongame wildlife that have
been treated or prepared, by means other than refrigeration or freezing, to
prevent decomposition; or
(B)
parts of nongame wildlife that do not require treatment
or preparation to prevent decomposition.
§65.327.Permit Required.
(a)
Except as provided in this section or in §65.325 of
this title (relating to Applicability), no person [
(b)
A person possessing a valid commercial
nongame permit may sell nongame wildlife only to a person in possession of
a valid dealer’s nongame permit.
(c)
A person possessing a valid dealer’s
nongame permit may sell nongame wildlife to anyone.
(d)
No person may collect nongame wildlife
and subsequently treat it to create a processed product for sale, offer for
sale, exchange, or barter unless that person possesses a valid dealer’s
nongame permit.
(e)
[
(f)
A nongame dealer may, through commercial
activity, acquire nongame wildlife only from a person permitted under this
subchapter or a lawful out of state source.
[
[
(g)
[
(1)
the employer's permit
or a legible photocopy of the
permit
is maintained at the place of business during all activities
governed by this subchapter; and
(2)
the place of business has been identified on the application
required by §65.329 of this title (relating to Permit Application).
(h)
[
(i)
[
(j)
A permit issued under this subchapter
is valid through the August 31 immediately following the date of issuance.
§65.328.Means and Methods.
(a)
No person shall take or attempt to take nongame wildlife
by means of any vacuum-powered device.
(b)
Any device employed or emplaced to take or attempt to take
nongame wildlife and that is unattended shall be marked with a gear tag. The
gear tag must bear the name and address of the person using the device and
the date the device was set out. The information on the gear tag must be legible.
The gear tag is valid for 30 days following the date indicated on the tag.
(c)
Any device used to take turtles shall be set such that:
(1)
the opening or entrance to the device remains above water
at all times; and
(2)
the holding area of trap provides a sufficient area above
water to prevent trapped turtles from drowning.
§65.329.Permit Application.
(a)
An applicant for a dealer’s
nongame
permit
under this subchapter shall submit to the department a completed application
on a form supplied by the department, accompanied by the nonrefundable fee
specified in Chapter 53 of this title (relating to Finance).
(b)
The department reserves the right to refuse permit issuance
to any person finally convicted of any violation of Parks and Wildlife Code
during the five-year period immediately prior to an application for a permit
under this subchapter. This paragraph does not apply to convictions under
Parks and Wildlife Code, Chapter 31.
(c)
The department shall not issue a permit to any person who
has not complied with the applicable requirements of §65.330 of this
title (relating to Reporting Requirements).
(d)
Permits shall be issued to named individuals only, resident
or nonresident as applicable, and shall not be issued in the name of any firm,
organization, or institution.
§65.330.Record and Reporting Requirements.
(a)
A person possessing a commercial
nongame
[
(1)
continuously
maintain and possess upon their
person during any
permitted activity
[
(2)
maintain a current daily record of all sales, to include
the permit number of all nongame dealers purchasing nongame wildlife from
the permittee
[
(b)
A person possessing a nongame dealer permit shall:
(1)
maintain a current daily record of all purchases and sales
[
(2)
maintain a collection log, invoice, or receipt identifying
the source or origin of each specimen of nongame wildlife in possession
(to include the nongame permit number of all persons from whom nongame specimens
are purchased or acquired)
[
(3)
complete and submit to the department, on a form supplied
or approved by the department, an annual report for the period of August 1
through the following July 31. The report is due no later than August 15 of
each year.
[
(c)
All records required by this section shall be retained
and kept available for inspection
upon request of a department employee
acting within the official scope of duty
for a period of one year following
the period of validity of the permit under which they are required to be kept.
§65.331.Affected Species.
The following species are subject to the provisions of this subchapter.
Figure: 31 TAC §65.331
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 April 19, 2002.
TRD-200202435
Gene McCarty
Chief of Staff
Texas Parks and Wildlife Department
Earliest possible date of adoption: June 2, 2002
For further information, please call: (512) 389-4775
Chapter 363.
FINANCIAL ASSISTANCE PROGRAMS
The Texas Water Development Board (the board) proposes amendments
to 31 TAC Chapter 363, Financial Assistance Programs. The board proposes to
amend §§363.601-363.604, repeal §363.613, and adopt new §§363.1001-363.1017,
concerning the Storage Acquisition and State Participation Programs. The amendments
remove references to the State Participation Program from Subchapter F which
will be renamed to the Storage Acquisition Program. New §§363.1001-363.1017
will comprise new Subchapter J, State Participation Program. The new sections
incorporate statutory and constitutional authority recently enacted. Additionally
the new sections create a priority ranking system in order to be prepared
for the circumstance of multiple funding requests which exceed the amount
of available funding.
The amendments to Subchapter F are intended to clarify those requirements
relating specifically to the Storage Acquisition Program, which provides for
state ownership in projects through a general revenue financial program and
to remove provisions which relate specifically to the State Participation
Program, which provides for state ownership in projects through a bond-financed
program. The proposed amendments remove references to the State Participation
Program from the subchapter title, and from §§363.601-363.604. Section
363.613, relating to Administrative Cost Recovery for State Participation
Program, is proposed for repeal because it applies to the State Participation
Program and is not applicable to the Storage Acquisition Program.
New §363.1001 and §363.1002 are proposed to define the purpose
of new Subchapter J and necessary terms. Pursuant to the additional authority
provided in the Constitution of the State of Texas, Art. 3, §49-d-9 and
Texas Water Code §16.136, which allows the board to fund more than 50%
of proposed projects, the board proposes new §363.1003, Board Participation,
which identifies the circumstances pursuant to which the board will provide
state participation funds. Proposed §363.1003 provides that the board
may fund up to the total cost of the excess capacity in a project, provided
that at least 20% of the total facility capacity will serve existing need,
or that the applicant is willing to finance at least 20% of the total project
cost from sources other than the board's State Participation Account. The
board's current definition of existing need is the capacity necessary to serve
an area's estimated population for ten years after the date of the application.
Ten years is also equivalent to 20% of the standard planning horizon used
in the State Water Plan. Therefore, 20% is consistent with the board's current
policy regarding existing need, since the board does not participate in the
cost of existing needs under the current policy. Allowing applicants with
projects in which at least 20% of the total facility capacity does not serve
existing need to finance at least 20% from sources other than the State Participation
Account provides the board with the flexibility to fund such projects while
still keeping the state's monetary investment near or below 80% in any particular
project. This is also consistent with the board's current policy regarding
existing need since, in most cases, the cost of the capacity to serve existing
need is equal to the percent of existing need in the project.
New §363.1004, Application for Assistance, is proposed to specify
information required to be submitted by applicants in order to have a complete
application. Proposed new §363.1005, Approval of Engineering Feasibility
Report, specifies the procedures by which the executive administrator will
approve engineering feasibility reports. New §363.1006, Priority Rating
System, is proposed to establish a priority rating system for proposed projects.
Applications for state participation will be considered by the board in March
and October of each year, and must be received at least 45 days before such
board meetings. The executive administrator will rate projects based on scoring
criteria in §363.1007. If insufficient money is available, projects which
the legislature has specified as priority projects will first be considered
for funding. If funds remain, other projects will be considered based on the
scoring they receive.
New §363.1007 is proposed to identify the rating factors and point
structure to be used to rate projects seeking financial assistance from the
State Participation Account. The rating criteria will include projects which:
develop water; use innovative technologies; have previous board funding for
facility planning, design, or permitting; have developed a program of water
conservation; propose to use local funds for a portion of the project; and
will utilize the greatest percentage of total project facility capacity. Tie
scores will be broken by awarding a point to the project having the service
area which has the lowest median annual household income, based upon the most
current data available from the U.S. Bureau of the Census, for all of the
areas to be served by the project.
Proposed new §363.1008, Determination, describes criteria to be considered
for funding eligibility including the state's recovery of its investment,
cost of facility exceeding current financing capability of area to be served,
optimum regional development cannot reasonably be financed by local interests,
public interest will be served by acquisition of the facility, and facility
contemplates optimum regional development of the project. Proposed §363.1009,
Master Agreement, outlines provisions for a master agreement between the board
and a political subdivision. Proposed §363.1010, Construction, provides
for designation of a political subdivision as the manager of a project. Proposed §363.1011,
Disbursement of State Funds, provides that funds will be disbursed according
to contractual agreements between the board and the political subdivision.
Proposed §363.1012, Requirements of Application, provides that the
executive administrator will define the form and number of application to
be submitted and may request additional information. Proposed §363.1013,
Notice to Participating Political Subdivision and Others, establishes notice
requirements that the board must provide to co-owners of the facility if a
purchase of the board's interest in or use of the board's interest is proposed.
Proposed §363.1014, Consideration by Board, outlines procedures for board
consideration and notice of an application for purchase of the board's interest.
Proposed §363.1015, Resolution Authorizing Transfer, provides a mechanism
to prescribe terms and conditions if necessary for sale, transfer and lease
of the board's interest. Proposed §363.1016, Negotiation of Contracts,
provides for a transfer agreement, all provisions appropriate to the subject
of the transfer agreement, and attorney general approval. Proposed §363.1017,
Administrative Cost Recovery for State Participation Program, provides that
the board will assess fees for the purpose of recovering administrative costs
for participation in the program and establishes the method of payment. Fees
are set at .77% of the amount of total participation in a project by the board.
One-third is due at closing. The remainder may be paid over annual installments
with approval of the development fund manager.
Ms. Melanie Callahan, Director of Fiscal Services, has determined that
for the first five-year period these sections are in effect there will not
be fiscal implications on state and local government as a result of enforcement
and administration of the sections.
Ms. Callahan has also determined that for the first five years the sections
as proposed are in effect the public benefit anticipated as a result of enforcing
the sections will be clarification of distinctions between requirements relating
to the State Participation and Storage Acquisition Programs and establishment
of a method to prioritize projects if funds are not sufficient for all projects.
Ms. Callahan has determined there will not be economic costs to small businesses
or individuals required to comply with the sections as proposed.
Comments on the proposed amendments will be accepted for 30 days following
publication and may be submitted to Michael Wied, Attorney, Administration
and Northern Legal Services, Texas Water Development Board, P.O. Box 13231,
Austin, Texas, 78711-3231, by e-mail to michael.wied@twdb.state.tx.us or by
fax @ (512) 463-5580.
Subchapter F. STORAGE ACQUISITION PROGRAM
31 TAC §§363.601 - 363.604
The amendments are proposed under the authority of the Texas
Water Code §6.101 which provides the Texas Water Development Board with
the authority to adopt rules necessary to carry out the powers and duties
in the Water Code and other laws of the State.
The statutory provisions affected by the proposed amendments are Texas
Water Code Chapter 15 and 16.
§363.601.Scope of Subchapter.
The sections of this subchapter shall pertain to applications for financing
storage acquisition [
§363.602.Definitions of Terms.
The following word and terms, when used in this subchapter, shall have
the following meanings, unless the context clearly indicates otherwise.
(1)
Excess capacity--The difference between the foreseeable
needs of the area to be served by the useful life of the facility and the
existing needs for the area to be served by the facility.
(2)
Facility--A regional facility for which an application
has been submitted requesting financial assistance from the
Storage Acquisition
Program
[
(3)
Alternate facility--A construction project that would be
necessary to serve the excess capacity of the area to be served by the facility
in the event that the facility was not initially constructed to meet the excess
capacity.
(4)
Existing needs--Maximum capacity necessary for service
to the area receiving service from the facility for current population and
including the service necessary to serve the estimated population in the area
ten years from the date of the application.
§363.603.Application for Assistance.
An applicant for the board financial assistance in a project under
the Storage Acquisition
Program
[
§363.604.Determination.
The board may provide funding from the
Storage Acquisition Program
[
(1)
it is reasonable to expect that the state will recover
its investment in the facility based upon a determination that the revenue
to be generated by the projected number of customers served by the facility
will be sufficient to purchase the excess capacity owned by the state;
(2)
the estimated cost of the facility as set forth in the
application exceeds the current financing capabilities of the area to be served
by the facility based on a determination that the existing rates of the applicant
available for payment of the facility collected from the number of connections
at the end of construction and other revenues available for payment of the
facility;
(3)
the optimum regional development cannot be reasonably financed
by local interests based on a determination that the estimated cost to construct
the alternate facility and the revenue to be generated by the projected number
of customers of the facility;
(4)
the public interest will be served by acquisition of the
facility based on a determination that the cost of the facility to the public
are reduced by the state's participation in the facility; and
(5)
the facility to be constructed or reconstructed contemplates
the optimum regional development which is reasonably required under all existing
circumstances of the site based on a determination that design capacity of
the components of the facility are sufficient to meet the foreseeable needs
of the area over the useful life of the facility.
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 April 19, 2002.
TRD-200202432
Suzanne Schwartz
General Counsel
Texas Water Development Board
Proposed date of adoption: June 19, 2002
For further information, please call: (512) 463-7981
31 TAC §363.613
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Water Development Board or in the Texas Register office, Room 245,
James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the authority of the
Texas Water Code §6.101 which provides the Texas Water Development Board
with the authority to adopt rules necessary to carry out the powers and duties
in the Water Code and other laws of the State.
The statutory provisions affected by the proposed repeal Texas Water Code
Chapter 15, Subchapter E, and Chapter 16, Subchapters E and F.
§363.613.Administrative Cost Recovery for State Participation Program.
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 April 19, 2002.
TRD-200202433
Suzanne Schwartz
General Counsel
Texas Water Development Board
Proposed date of adoption: June 19, 2002
For further information, please call: (512) 463-7981
31 TAC §§363.1001 - 363.1017
The new sections are proposed under the authority of the
Texas Water Code §6.101 which provides the Texas Water Development Board
with the authority to adopt rules necessary to carry out the powers and duties
in the Water Code and other laws of the State.
The statutory provisions affected by the proposed new sections are Texas
Water Code Chapter 15, Subchapter E, and Chapter 16, Subchapters E and F.
§363.1001. Scope of Subchapter.
The sections of this subchapter shall pertain to applications for
financing state participation projects authorized by the Texas Water Code,
Chapter 16, Subchapters E and F. Unless in conflict with the provisions of
this subchapter, the provisions of Subchapter A of this chapter (relating
to General Provisions) shall apply to state participation projects.
§363.1002. Definitions of Terms.
The following words and terms, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates otherwise.
(1)
Excess capacity--The difference between the foreseeable
needs of the area to be served by the useful life of the facility and the
existing needs for the area to be served by the facility.
(2)
Facility--A regional facility for which an application
has been submitted requesting financial assistance from the state participation
account and that includes sufficient capacity to serve the existing needs
of the applicant and excess capacity.
(3)
Alternate facility--A construction project that would be
necessary to serve the excess capacity of the area to be served by the facility
in the event that the facility was not initially constructed to meet the excess
capacity.
(4)
Existing needs--Maximum capacity necessary for service
to the area receiving service from the facility for current population and
including the service necessary to serve the estimated population in the area
ten years from the date of the application.
§363.1003.Board Participation.
Unless otherwise directed by legislation, the board will only use the
State Participation Accounts of the Texas Water Development Fund I or the
Texas Water Development Fund II to provide financial assistance for all or
a part of the cost to construct the excess capacity of a proposed project
where
(1)
at least 20% of the total facility capacity of the proposed
project will serve existing need, or
(2)
the applicant will finance at least 20% of the total project
cost from sources other than the State Participation Account.
§363.1004.Application for Assistance.
In addition to any other information that may be required by the executive
administrator or the board, the applicant shall provide:
(1)
a resolution from its governing body which shall:
(A)
request financial assistance and identify the amount of
requested assistance;
(B)
designate the authorized representative to act on behalf
of the governing body; and
(C)
authorize the representative to execute the application,
appear before the board on behalf of the applicant, and submit such other
documentation as may be required by the executive administrator or the board;
(2)
a notarized affidavit from the authorized representative
stating that:
(A)
the decision to request financial assistance from the board
was made in a public meeting held in accordance with the Open Meetings Act
(Government Code, §551.001, et seq,) and after providing all such notice
as required by such Act;
(B)
the information submitted in the application is true and
correct according to best knowledge and belief of the representative;
(C)
the applicant has no outstanding judgments, orders, fines,
penalties, taxes, assessment or other enforcement or compliance issue of any
kind or nature by EPA, the commission, Texas Comptroller, Texas Secretary
of State, or any other federal, state or local government or identifying such
judgments, orders, fines, penalties, taxes, assessment or other enforcement
or compliance issue as may be outstanding for the applicant;
(D)
the applicant warrants compliance with the representations
made in the application in the event that the board provides the financial
assistance; and
(E)
the applicant will comply with all applicable federal laws,
rules, and regulations as well as the laws of this state and the rules and
regulations of the board;
(3)
a proposed schedule for purchase of the board's interest
in the project;
(4)
copies of any proposed or existing contracts for consultant
financial advisory, engineering, and bond counsel services to be used by the
applicant in applying for financial assistance or constructing the proposed
project. Contracts for engineering services should include the scope of services,
level of effort, costs, schedules, and other information necessary for adequate
review by the executive administrator;
(5)
a citation to the specific legal authority in the Texas
Constitution and statutes pursuant to which the applicant is authorized to
provide the service for which the applicant is receiving financial assistance
as well as the legal documentation identifying and establishing the legal
existence of the applicant as may be deemed necessary by the executive administrator;
(6)
if the applicant provides or will provide water supply
or treatment service to another service provider, or receives such service
from another service provider, the proposed agreement, contract, or other
documentation which legally establishes such service relationship, with the
final and binding agreements provided prior to closing;
(7)
documentation of the ownership interest, with supporting
legal documentation, of property on which proposed project shall be located,
or if the property is to be acquired, certification that the applicant has
the necessary legal power and authority to acquire the property;
(8)
if payment under the master agreement is based either wholly
or in part from revenues of contracts with others, a copy of any actual or
proposed contracts under which applicant's gross income is expected to accrue.
Prior to release of funds, an applicant shall submit executed copies of such
contracts to the executive administrator;
(9)
if an election is required by law to authorize participation
in the project, the executive administrator may require applicant to provide
the election date and election results as to each proposition necessary for
the participation of the applicant as part of the application.
(10)
Applicant shall submit an engineering feasibility report
signed and sealed by a professional engineer registered in the State of Texas.
The report, based on guidelines provided by the executive administrator, shall
provide:
(A)
description and purpose of the project;
(B)
entities to be served and current and future population;
(C)
the cost of the project;
(D)
a description of the alternatives considered and reasons
for selection of the project proposed;
(E)
sufficient information to evaluate the engineering feasibility;
(F)
a list of the census blocks within the facility service
area and the percent of current population to be served residing within each
census block;
(G)
a copy of the board or commission approved water conservation
plan, if any, or a copy of a proposed water conservation plan prepared in
accordance with §363.15 of this title relating to Required Water Conservation
Plan; and
(H)
maps and drawings as necessary to locate and describe the
project service area. The executive administrator may request additional information
or data as necessary to evaluate the project.
§363.1005.Approval of Engineering Feasibility Report.
(a)
The executive administrator will approve the engineering
feasibility report after determining that the items listed in §363.1004(10)
of this title (relating to Application for Assistance) have been completed,
the appropriate environmental determinations have been completed in accordance
with §363.14 of this title (relating to Environmental Assessment), the
project has been determined to be cost effective, and the financial assistance
recipient has agreed to incorporate all mitigating measures directed by the
executive administrator.
(b)
If changes occur in the project after approval of the engineering
feasibility data, the executive administrator may request additional engineering
and/or environmental information in order to ascertain that the financial
assistance commitment and environmental determination continues to be appropriate.
§363.1006.Priority Rating System.
(a)
The board will consider applications for financial assistance
from the State Participation Accounts at its meetings in March and October
of each year. An application may be submitted at any time. To be considered
by the board, and rated by the executive administrator, the application must
be received no later than 45 days before the board meeting date at which it
is to be presented to the board.
(b)
Prior to each board meeting at which applications may be
considered, the executive administrator shall:
(1)
for each application that the executive administrator has
determined is complete, identify the number of points that the application
is entitled to receive from the rating criteria identified in §363.1007
of this title (relating to Rating Criteria).
(2)
provide to the board a list of all completed applications,
the amount of funds requested and the total number of points that each application
received; and
(3)
identify to the board, the total amount of funds available
in the State Participation Account for new applications.
(c)
If there are funds in the State Participation Account to
fund all or part of any of the projects for which the executive administrator
has received completed applications during the preceding six months, the board
will first consider any projects that the legislature has determined shall
receive priority for financial assistance from the State Participation Account.
If, after considering projects with legislative priority, there are funds
available for other eligible projects in the State Participation Account,
then the board will consider such other applications received by the executive
administrator during the preceding six month period in descending numerical
order based on the rating points assigned to the application according to §363.1007
of this title. The board will consider the next application on the list only
if there are funds available in the account to fund all or, if acceptable
to the applicant, a part of the application.
§363.1007.Rating Criteria.
(a)
The factors to be used by the executive administrator to
rate projects seeking financial assistance from the State Participation Account,
and the points assigned to each factor, shall be as follows:
(1)
water development projects will receive 2 points, and wastewater
projects will receive 1 point;
(2)
projects which result in the development of a new, usable
supply of water through innovative technologies including, but not limited
to, desalinization, demineralization, other advanced water treatment practices,
wastewater reuse, floodwater harvesting, or aquifer storage and recovery will
receive 2 points;
(3)
projects which have received previous board funding for
facility planning, design, or permitting for the project being rated will
receive 1 point;
(4)
Water conservation programs required under §363.1004(10)(G)
of this title (relating to Application for Assistance) will be granted a maximum
of 2 points for each applicant based upon the following.
(A)
Applicants which have previously adopted a board approved
water conservation program or who have previously submitted a water conservation
program to the commission that has been deemed complete by the commission
will receive 1 point.
(B)
Applicants will receive 0.125 point for each of the following
elements that are found in the submitted water conservation program totalling
to a maximum sum of 1 rating point per applicant:
(i)
codes and ordinances which require the use of water-conserving
technologies;
(ii)
ordinances to promote efficiency and avoid waste;
(iii)
commercial and residential conservation audits for indoor
and landscape water uses;
(iv)
plumbing fixture replacement and retrofit programs;
(v)
recycling and reuse of reclaimed wastewater and/or gray
water;
(vi)
demonstrated submittals of accepted annual water conservation
reports to the board and/or the commission;
(vii)
demonstrated historical unexplained water loss of no
more than 15%;
(viii)
provision to update the program in intervals no longer
than once every five years.
(5)
Applicants which propose to use local funds for a portion
of the project will receive the number equal to the percentage of local ownership,
expressed as a decimal.
(6)
Applicants will receive a number equal to the percentage,
expressed as a decimal, of the total facility capacity that would be necessary
to serve the existing population that could use the facility at the time the
application is filed.
(b)
Between tie scores only, 1 point will be awarded to the
project having the service area which has the lowest median annual household
income, based upon the most current data available from the U.S. Bureau of
the Census, for all of the areas to be served by the project.
§363.1008.Determination.
The board may provide funding from the State Participation Account
when the information available to the board is sufficient for the board to
determine that:
(1)
it is reasonable to expect that the state will recover
its investment in the facility based upon a determination that the revenue
to be generated by the projected number of customers served by the facility
will be sufficient to purchase the excess capacity owned by the state;
(2)
the estimated cost of the facility as set forth in the
application exceeds the current financing capabilities of the area to be served
by the facility based on a determination that the existing rates of the applicant
available for payment of the facility collected from the number of connections
at the end of construction and other revenues available for payment of the
facility;
(3)
the optimum regional development cannot be reasonably financed
by local interests based on a determination that the estimated cost to construct
the alternate facility and the revenue to be generated by the projected number
of customers of the facility;
(4)
the public interest will be served by acquisition of the
facility based on a determination that the cost of the facility to the public
are reduced by the state's participation in the facility; and
(5)
the facility to be constructed or reconstructed contemplates
the optimum regional development which is reasonably required under all existing
circumstances of the site based on a determination that design capacity of
the components of the facility are sufficient to meet the foreseeable needs
of the area over the useful life of the facility.
§363.1009.Master Agreement.
The board and the political subdivision shall enter into and execute
a master agreement the text of which shall include, but not be limited to,
the responsibilities, duties, and liabilities of each party, including the
responsibility of a designated political subdivision to assure that proper
procedures are observed in advertising for bids and selecting a bidder to
construct the project; the board's cost of acquisition; procedures for disbursement
of board funds for the project; recognition of a political subdivision's right
of first refusal prior to any sale of the board's interest in the project;
a non-competitive clause; a schedule for purchase of the board's interest
in the project by the political subdivision; and any other provisions deemed
appropriate and necessary by the board.
§363.1010.Construction.
On projects to be constructed or enlarged by a political subdivision
or subdivisions, one political subdivision may be designated under an agreement
with the board to act as manager for the project and perform the functions
customarily performed by a manager-owner.
§363.1011.Disbursement of State Funds.
State funds expended for the acquisition and/or development of facilities
in a project shall be disbursed in accordance with the provisions of the master
agreement and any other contracts by the board pursuant thereto.
§363.1012.Requirements of Application.
A prospective purchaser of the board's ownership interest in a facility
or of the use of such board interest other than under terms specified in the
master agreement, shall submit an application in the form and number prescribed
by the executive administrator. The executive administrator may request any
additional information needed to evaluate the application, and may return
any incomplete applications.
§363.1013.Notice to Participating Political Subdivision and Others.
Upon receipt of an application by a prospective purchaser of the board's
ownership interest in a facility or use of the facility, the board will send
notice of its receipt by regular United States mail to all co-owners of the
facility, and any users of the facility or water from the facility.
§363.1014.Consideration by Board.
The application shall be scheduled on the board's agenda, and representatives
of the prospective purchaser and other interested parties shall be notified
of the time of the meeting.
§363.1015.Resolution Authorizing Transfer.
If the board approves the application, a transfer resolution will be
adopted which shall prescribe the terms and conditions necessary for the sale,
transfer, or lease, if such terms have not been specified in the master agreement
between the board and political subdivision.
§363.1016.Negotiation of Contracts.
Before the board's adoption of the transfer resolution, the executive
administrator shall negotiate a transfer agreement with the prospective purchaser
regarding the sale, transfer, or lease of board-owned interests. The transfer
agreement shall include the interest transferred, the character of the interest
transferred, the formula used to compute the price to be paid for the facilities
to be acquired, provisions governing lease or rental of facilities, a hold
harmless clause, recognition of the right of first refusal of any of the participating
political subdivisions, a clause stating the conditions under which the contract
may be terminated, and other provisions appropriate to the subject of the
transfer agreement including provisions setting standards for operation and
maintenance of the project. The attorney general of Texas shall approve as
to legality any contract authorized under this subchapter.
§363.1017.Administrative Cost Recovery for State Participation Program.
(a)
General. The board will assess fees for the purpose of
recovering administrative costs from all political subdivisions with which
the board agrees to participate in a state participation project under this
subchapter in an amount of 0.77% of the amount of the total participation
in the project by the board.
(b)
Payment Method. Payment of one-third of the fee is due
at closing. The balance of the fee may be paid in a limited number of annual
installments with the consent of the development fund manager.
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 April 19, 2002.
TRD-200202434
Suzanne Schwartz
General Counsel
Texas Water Development Board
Proposed date of adoption: June 19, 2002
For further information, please call: (512) 463-7981
Part 2.
TEXAS PARKS AND WILDLIFE DEPARTMENT
Subchapter N. MIGRATORY GAME BIRD PROCLAMATION
September 15 -30, 2001, and October 27 - December 19,
2001
].
September 1 - October 30, 2001
].
September 1-October 28, 2001
], and
December 26, 2002 - January
5, 2003
[
December 26, 2001 - January 6, 2002.
]
September 21-November 4, 2001, and
December 22, 2001 - January 15, 2002
].
September 1, 2, 8, and 9, 2001, September 21 - November 4, 2001 and December
22, 2001- January 11, 2002
].
(B)
] Daily bag limit: 10 white-winged
doves, mourning doves, and white-tipped (white-fronted) doves, in the aggregate
to include no more than five mourning doves and two white-tipped doves per
day;
(C)
] Possession limit: 20 white-winged
doves, mourning doves, and white-tipped doves in the aggregate to include
no more than 10 mourning doves and four white-tipped doves in possession.
September 15-30, 2001, and October 27, 2001-December
19, 2001
].
September
15-30, 2001
].
December 18, 2001-January 31, 2002
]. The daily bag limit is three.
The possession limit is six.
October 20 2001-February 3, 2002.
] The daily bag limit is eight. The possession limit is 16.
No person may take a canvasback duck
except during the period from December 27, 2001 through January 20, 2002.
]
October 20-22, 2001
, and October 27, 2001-January 20, 2002
].
October 27-28, 2001 , and November 10, 2001-January
20, 2002
].
October 27-November 25, 2001, and
December 8, 2001-January 20, 2002
].
October 27, 2001-February 10, 2002
]. The daily bag limit for light
geese is 20, and there is no possession limit.
October 27, 2001-February 10, 2002
]. The daily bag limit for dark
geese is five, which may not include more than one white-fronted goose.
October 27, 2001-January 20, 2002
]. The daily bag limit for light
geese is 20, and there is no possession limit.
October 27, 2001-January 20, 2002
]. The daily bag limit
for white-fronted geese is two.
October 27, 2001-January 20, 2002
]. The daily bag
limit is one Canada goose or one brant.
November 10, 2001-February 10, 2002
]. The daily bag limit is three.
The possession limit is six.
December 1, 2001-February 10, 2002
]. The daily bag limit is three.
The possession limit is six.
December 29, 2001-January 20, 2002
]. The daily bag limit is two.
The possession limit is four.
October 13-14, 2001
];
October
20-21, 2001
]; and
October
20-21, 2001
].
November 19-December 25, 2001
].
December 20, 2001-January 25, 2002
].
November 24-December 17, 2001, and February
1-March 10, 2002
].
(a)
]
It is lawful to take the species of migratory
birds listed in this section by means of falconry during the following Extended
Falconry Seasons.
(1)
] High Plains Mallard Management
Unit: no extended season; and
(2)
] Remainder of the state:
January 20 - February 3, 2003
[
January 21 - February 4, 2002
].
(b)
] The daily bag and possession
limits for migratory game birds under this section shall not exceed three
and six birds, respectively, singly or in the aggregate.
January 21, 2002
] through
March 30, 2003
[
March 31, 2002
], the
take of light geese is lawful in the Eastern Zone as defined in §65.317
of this title (relating to Zones and Boundaries for Late Season Species).
February 11, 2002
] through
March 30, 2003
[
March 31, 2002
], the
take of light geese is lawful in the Western Zone as defined in §65.317
of this title (relating to Zones and Boundaries for Late Season Species).
Subchapter O. COMMERCIAL NONGAME PERMITS
dead mountain lions, bobcats, or coyotes;
]
(2)
]
fish;
(3)
] the purchase, possession, or sale
of processed products
, except as provided in §65.327(d) of this
title (relating to Permit Required)
;
(4)
] teachers at accredited primary or
secondary educational institutions, provided that the nongame wildlife is
possessed solely for educational purposes and is not sold or transferred to
another person for the purpose of sale;
(5)
] persons or establishments selling
nongame wildlife for and ready for immediate consumption in individual portion
servings, and which are subject to limited sales or use tax; [
or
]
(6)
]
any person
[
persons
] 16 years of age or younger, provided the person is not engaged in
a commercial activity involving nongame wildlife;
or
(7)
] aquatic products possessed under a
valid bait dealer's license[
; or
]
(8)
albinos of any species of
nongame].
(3)
] Possession--actual care, custody, or
control of nongame wildlife.
(4)
] Resale--Any transaction or activity
in which a person purchases nongame wildlife or otherwise acquires nongame
wildlife for a consideration and subsequently transfers or delivers the same
nongame wildlife to any person in exchange for compensation or remuneration
of any kind.
(5)
] Processed product--
in this state
]
may
, for the purpose of commercial activity, take, attempt to take, possess,
import, export, or cause the export of nongame wildlife
[
possess
nongame wildlife for commercial purposes,
] or possess more than [
ten specimens of a single subspecies of nongame wildlife or more than
]
25 specimens of nongame wildlife [
in the aggregate,
] unless that
person possesses a valid commercial
nongame
[
collection
]
permit or a valid
dealer’s
nongame [
dealer
]permit
issued by the department.
(b)
] No person in this state may
resell nongame wildlife unless that person possesses a valid
dealer’s
nongame [
dealer
] permit issued by the department.
(c)
No person may sell nongame
wildlife unless that person possesses a valid commercial nongame collection
permit.]
(d)
No person may for the purpose
of sale, transport or ship nongame wildlife out of this state, or cause such
transport or shipment, unless that person possesses an applicable, valid nongame
permit issued by the department.]
(e)
] Except as provided by subsection
(h)
[
(f)
] of this section, a permit required by this subchapter
shall be possessed on the person of the permittee during any activity governed
by this subchapter
. A separate permit is required for each permanent
place of business. An
[
; however, an
] employee of [
the holder of
] a nongame
dealer
[
dealer's permit
]
may engage in commercial activity or the resale of nongame wildlife
only
at a permanent place of business operated by the permittee, provided
that:
(f)
] In the event that [
the holder of
] a nongame
dealer
[
dealer’s permit
] conducts
a commercial activity
[
activities
] at a place in addition
to
the permittee’s
[
a
] permanent place of business,
that person shall possess on their person
the original or
a legible
photocopy of a valid nongame dealer’s permit [
during all such activities
].
(g)
] This subchapter does not relieve any
person of the obligation to possess an appropriate hunting license for any
activity involving the take of nongame wildlife.
collection
] permit
issued under this subchapter
shall
, during the period of validity of the permit
:
collection activities
] a daily [
collection
] log indicating the date, location,
and number of specimens of each species collected and/or possessed [
during the period of validity of the permit, which shall be presented upon
the request of a department employee acting within the official scope of their
duties
]; and
complete and submit to the department a annual report
accompanied by the permittee's collection log, by the 15th of September of
each year
].
, which shall be presented upon request to department employee acting
within the official scope of their duties
];
, which shall be presented upon request
to an employee of the department acting within the official scope of their
duties
]; and
complete and submit to the department an annual report
by the 15th of September of each year.
]
Part 10.
TEXAS WATER DEVELOPMENT BOARD
and state participation
]projects authorized
by the Texas Water Code, Chapter 15, Subchapter E[
, and Chapter 16, Subchapters
E and F
]. Unless in conflict with the provisions of this subchapter,
the provisions of Subchapter A of this chapter (relating to General Provisions)
shall apply to storage acquisition [
and state participation
]projects.
state participation account
] and that includes sufficient
capacity to serve the existing needs of the applicant and excess capacity.
or state participation programs
] shall submit an application in the form and number prescribed by the
executive administrator. The executive administrator may request any additional
information needed to evaluate the application, and may return any incomplete
application.
state participation account
] when the information available
to the board is sufficient for the board to determine that:
Subchapter J. STATE PARTICIPATION PROGRAM
Chapter 368.
FLOOD MITIGATION ASSISTANCE PROGRAM