Part 1.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Chapter 101.
GENERAL AIR QUALITY RULES
Subchapter H. EMISSIONS BANKING AND TRADING
The Texas Commission on Environmental Quality (commission) proposes
amendments to §§101.302, 101.306, 101.372, 101.373, 101.376, and
101.378; and the repeal of §101.338. The commission proposes new §§101.305,
101.338, 101.339, and 101.375. The repealed, new, and amended sections will
be submitted to the United States Environmental Protection Agency (EPA) as
revisions to the Texas State Implementation Plan (SIP).
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
The Emissions Banking and Trading Program (EBTP) has been designed to offer
flexibility and provide a market-based method of meeting required emission
reductions. The program makes use of several types of emission credits including
emission reduction credits (ERCs), mobile emission reduction credits (MERCs),
discrete emission reduction credits (DERCs), and mobile discrete emission
reduction credits (MDERCs). Flexibility has been built into the rules to create
incentives for the early or permanent retirement of volatile organic compounds
(VOC) and nitrogen oxides (NO
x
) emissions credits.
In the October 5, 2005, edition of the
Federal
Register
(70 FR 58154), the EPA published the proposed conditional
approval of the DERC program as part of the SIP. The conditional approval
was based on the commission submitting corrected program deficiencies to the
EPA by December 1, 2006. Unless the commission adopts and submits these corrections,
the EPA will have to issue a finding of disapproval. These proposed revisions
address the deficiencies, which the commission committed to correct in a letter
to the EPA dated September 8, 2005.
The proposed corrections include the prohibition of the future generation
of DERCs from permanent shutdowns and allow only DERCs generated from permanent
shutdowns before September 30, 2002, to remain available for use for no more
than five years from the date of the commission's commitment letter. Any DERCs
generated after September 30, 2002, would be removed from the DERC registry
and not be available for use. The conditions also required revisions to §101.302(f)
and §101.372(f)(7) and (8) to clarify that the EPA must approve individual
transactions involving emission reductions generated in another state or nation
as well as those transactions from one nonattainment area to another or from
attainment counties into nonattainment areas. The proposed revisions would
revise Subchapter H, Emissions Banking and Trading, to include program audit
and reporting requirements to satisfy the EPA's requirements for open market
trading programs. The requirements concerning program audits were not included
in the EPA publication of conditional approval but were the subject of discussion
between the commission and the EPA.
The conditions also required the change to Form DEC-1, Notice of Generation
and Generator Certification of Discrete Emission Credits; Form MDEC-1, Notice
of Generation and Generator of Mobile Discrete Emission Credits; and Form
DEC-2, Notice of Intent to Use Discrete Emission Credits, to include a waiver
to federal statute of limitations defense for generators and users of discrete
emission credits. With the revision of these forms and adoption of the proposed
rule changes, the commission will have corrected all identified deficiencies
in the DERC program.
The proposed rules also reflect changes to the Texas Health and Safety
Code (THSC), §382.0172(c). Senate Bill (SB) 784 was adopted by the 79th
Legislature, 2005, and allows additional options for credit from emission
reductions achieved outside of the United States. The revisions would allow
the commission more discretion in its authorization to approve the substitution
and crediting of emission reductions outside the United States that may be
used to satisfy reduction or trading requirements.
SECTION BY SECTION DISCUSSION
§101.302. General Provisions.
The commission proposes administrative changes throughout the rules to
conform with Texas Register requirements and agency guidelines.
In order to better organize similar rule requirements, the commission proposes
to delete §101.302(a)(2) and relocate this language concerning emission
creditable reductions occurring outside the United States to a new §101.305,
Emission Reductions Achieved Outside the United States.
The commission proposes to amend §101.302(d)(1)(C)(vi) to allow the
rejection of an emission credit quantification protocol if the EPA objects
to the protocol during a 45-day adequacy review period or if the EPA publishes
in the
Federal Register
a disapproval of the
protocol. This does not impact the procedures to approve the quantification
protocol. The commission has in practice always worked with the EPA to approve
new quantification protocols. This revision clarifies in the rule that the
quatification protocols would not be approved if the EPA objects.
§101.305. Emission Reductions Achieved Outside
the United States.
The proposed new §101.305 would combine the existing language on using
emission reductions from outside the United States that would be moved from §101.302(f)(3)
and (a)(2) for better organization. The proposed revisions would also reflect
the change to THSC, §382.0172(c), enacted under SB 784, which allows
facilities to substitute emission reductions in criteria pollutants outside
the United States if it is a reduction in an air contaminant for which the
area, where the facility is located, has been designated as nonattainment,
or if the reduction will result in a greater overall health benefit for the
area. This will allow the continuance of beneficial emission credit programs
for reductions in Ciudad Juárez in the event of El Paso being reclassified
as an attainment area.
The commission is moving the rules governing optional credit to their own
sections (§§101.305, 101.338, and 101.375) so that they may be
considered separately by EPA for approval into the SIP and will not delay
approval of other portions of the EBTP.
§101.306. Emission Credit Use.
The proposed amendment to §101.306(a)(5) would modify the section
to be consistent with the allowed use of ERCs under §101.399, Allowance
Banking and Trading. This revision is necessary because of a previous adoption
of Chapter 101, Subchapter H, Division 6, Highly-Reactive Volatile Organic
Compound Emissions Cap and Trade Program, and allows facilities to use ERCs
as allowances under the highly-reactive volatile organic compound cap and
trade program.
§101.338. Emission Reductions Achieved Outside
the United States.
The existing §101.338 would be repealed. The proposed new §101.338
would reflect the revisions to THSC, §382.0172(c) and provide the commission
more discretion in approving the substitution of emission reductions achieved
outside the United States for emissions from electric generating or grandfathered
facilities. The commission would also modify the arrangement of the existing
section to parallel the arrangement of language in §101.305 and §101.375.
§101.339. Program Audits and Reports.
The proposed new §101.339 includes program audits and report requirements
for emission credit programs applicable to electric generating and grandfathered
facilities. The proposed section contains similar audit and report requirements
as are applicable to the commission's other open market trading programs.
These requirements are used by the commission and the EPA to evaluate the
effectiveness of the program and include reportable items such as effect on
ozone attainment, number of allowances or credits traded, cost of allowances
or credits, and number of allowances in each compliance account.
§101.372. General Provisions.
In order to better organize similar rule requirements, the commission proposes
to delete §101.372(a)(2) and relocate this language concerning emission
creditable reductions occurring outside the United States to a new §101.375,
Emission Reductions Achieved Outside the United States. The commission proposes
to amend §101.372(d)(1)(C)(vi) to require the rejection of a quantification
protocol if the EPA objects to the quantification protocol during the 45-day
adequacy review period or if the EPA publishes in the
Federal Register
a disapproval of the quantification protocol. This
does not impact the procedures to approve the quantification protocol. The
commission has in practice always worked with the EPA to approve new quantification
protocols. This revision clarifies in the rule that the quantification protocols
would not be approved if the EPA objects. The commission also proposes to
remove language from this section concerning credits for emission reductions
outside the United States and the options for applying them. This language,
modified to be consistent with the changes to THSC, §382.0172(c), enacted
under SB 784, would be moved to the new §101.375 in order to be considered
separately by the EPA for approval into the SIP and not delay approval of
other portions of the EBTP.
§101.373. Discrete Emission Reduction Credit
Generation and Certification.
The proposed amendments to §101.373(a)(1) and (2) would remove the
ability to generate DERCs from facility shutdowns. The commission proposes
this action to respond to the
Federal Register
notice
requiring the correction of program deficiencies prior to the approval of
the EBTP into the SIP. The EPA has stated that open market trading programs
are intended to encourage innovative and creative emission reductions and
shutdowns generally do not fall into this category. Shutdowns are also problematic
for these programs because of the possibility that a facility may shut down
in one area, generate and sell credits, but then relocate operations to other
areas or states. Additionally, when activity level increases cause emission
increases, mitigating reductions are typically not required. Thus, allowing
the generation of tradable credits as a result of activity level decreases
(including shutdowns) may tend to promote emissions increases. Such patterns
of activity related to shutdowns have the potential to interfere with attainment.
§101.375. Emission Reductions Achieved Outside
the United States.
The proposed new §101.375 would relocate the existing language on
using emission reductions from outside the United States in §101.372(f)(8)
and (a)(2). The proposed revisions would also reflect the SB 784 change to
THSC, §382.0172(c), which allows facilities to substitute emission reductions
in criteria pollutants outside the United States if it is a reduction in an
air contaminant for which the area, where the facility is located, has been
designated as nonattainment, or if the reduction will result in a greater
overall health benefit for the area. This will allow the continuance of beneficial
emission credit programs for reductions in Ciudad Juárez in the event
of El Paso being reclassified as an attainment area.
The commission is moving the rules governing optional credit to their own
sections (§§101.305, 101.338, and 101.375) so that they may be
considered separately by EPA for approval into the SIP and will not delay
approval of other portions of the EBTP.
§101.376. Discrete Emission Credit Use.
The proposed amendment to §101.376 would correct the rule references
to reflect the pending reorganization of 30 TAC §106.261 and repeal of
30 TAC §106.262 under Rule Project Number 2005-016-106-PR concerning
maintenance, startup, and shutdown emissions.
§101.378. Discrete Emission Credit Banking
and Trading.
The proposed amendment to §101.378 would change the lifetime of DERCs
generated from shutdowns strategy. Companies that have previously certified
DERCs from shutdown strategies will have no more than five years from the
September 8, 2005, commitment letter to the EPA to use the DERCs. As a result,
DERCs that were generated from shutdowns prior to September 30, 2002, would
be available for use until September 8, 2010. After that date, the DERCs that
were generated from shutdowns before September 30, 2002, will be removed from
the DERC registry and will no longer be available for use. DERCs generated
from shutdowns after September 30, 2002, may not be used. The reason for this
action is included in the discussion of changes to §101.373 in this preamble.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Nina Chamness, Analyst, Strategic Planning and Assessment Section, has
determined that, for the first five-year period the proposed rules are in
effect, no fiscal implications are anticipated for the agency or other units
of state or local governments as a result of administration or enforcement
of the proposed rules. The proposed rules affect the EBTP and DERCs. Typically,
governmental organizations do not participate in the DERC program.
The proposed rules implement EPA requirements concerning the EBTP, implement
changes made by SB 784, 79th Legislature, and make other organizational and
administrative changes to allow for more clarity in the administration of
the EBTP.
The EPA is requiring the removal from the commission's DERC registry of
credits generated after September 30, 2002, from permanent shutdowns so that
the EBTP can be approved as a revision to the SIP. Only those DERCs generated
from shutdowns prior to September 30, 2002, can be used in the EBTP, and they
must be used by September 8, 2010.
The proposed rules also clarify that the EPA has to approve inclusions
in the EBTP of emission reductions generated in another state or nation. The
rules further clarify that the EPA must approve the inclusion of emission
reductions in the EBTP if they are generated in and traded between nonattainment
areas as well as those generated in an attainment area and traded to a nonattainment
area. The proposed rules also implement THSC, §382.0172(c), as amended
by SB 784, 79th Legislature, to give the agency more discretion in approving
the use, by a Texas facility, of emission reduction credits generated outside
the United States to satisfy emission reduction requirements.
PUBLIC BENEFITS AND COSTS
Ms. Chamness also determined that for each year of the first five years
the proposed rules are in effect, the public benefit anticipated from the
changes seen in the proposed rules will be the reduction of air contaminants
and improved health and safety of Texas citizens. By disallowing DERCs for
shutdown activities, staff estimates that approximately 19,774 tons of NO
The loss of post-September 30, 2002, DERCs generated from permanent shutdowns
will have a fiscal effect. The value of a DERC varies by nonattainment area
and by contaminant. In the Houston-Galveston-Brazoria nonattainment area (HGB),
the value of NO
x
DERCs range from $145 per ton
to $2,100 per ton. In the Beaumont-Port Arthur nonattainment area (BPA), the
value of NO
x
DERCs are estimated to be $750 per
ton, and a carbon monoxide credit is estimated to be worth $700 per ton. The
DERCs generated prior to September 30, 2002, represent the majority of the
shutdown DERCs the commission currently has on its registry with an approximate
total value of $40 million in HGB and $600,000 in BPA. These credits remain
available for compliance or trading by the 11 sites holding them until September
8, 2010, and will retain their full value until then. The loss of DERCs generated
from permanent shutdowns after September 30, 2002, is estimated to cost, area
wide, from $183,470 in HGB to $604,870 in BPA. These DERCs will expire on
the effective date of this rule.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
No adverse fiscal implications are anticipated for small or micro-businesses
as a result of the proposed rules because they do not generally participate
in the EBTP.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission has reviewed this proposed rulemaking and determined that
a local employment impact statement is not required because the proposed rules
do not adversely affect a local economy in a material way for the first five
years that the proposed rules are in effect.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the proposed rulemaking in light of the regulatory
impact analysis requirements of Texas Government Code, §2001.0225, and
determined that the rulemaking action does meet the definition of a "major
environmental rule" as defined in that statute. A "major environmental rule"
is a rule, the specific intent of which is to protect the environment or reduce
risks to human health from environmental exposure and that may adversely affect
in a material way the economy, productivity, competition, jobs, the environment,
or the public health and safety of the state or a sector of the state. The
proposed amendments to Chapter 101 and revisions to the SIP would phase out
DERCs generated from shutdowns prior to September 30, 2002, require removal
of DERCs generated from shutdowns after September 30, 2002, from the DERC
registry, implement the provisions of SB 784, reorganize various rules, correct
one citation, specify the time the EPA has to object to quantification protocols,
eliminate future generation of shutdown DERCs, and add a reference to the
highly-reactive volatile organic compound cap and trade program. With the
exception of the portions of the rulemaking regarding shutdown DERCs, the
proposed amendments to Chapter 101 are not specifically intended to protect
the environment or reduce risks to human health from environmental exposure
to air pollutants; although, the underlying emissions banking and trading
programs are intended to achieve these goals. The rulemaking provides flexibility
regarding credits near the Texas-Mexico border by implementing SB 784 and
makes various administrative changes. The changes to shutdown DERCs generation
and use are proposed to bring the DERC program into compliance with EPA program
requirements, allowing the DERC program to be approved as part of the SIP
and to ensure air quality standards will be met. This rulemaking does not
meet any of the four applicability criteria of a "major environmental rule"
as defined in the Texas Government Code. Texas Government Code, §2001.0225
applies only to a major environmental rule, the result of which is to: 1)
exceed a standard set by federal law, unless the rule is specifically required
by state law; 2) exceed an express requirement of state law, unless the rule
is specifically required by federal law; 3) exceed a requirement of a delegation
agreement or contract between the state and an agency or representative of
the federal government to implement a state and federal program; or 4) adopt
a rule solely under the general powers of the agency instead of under a specific
state law. Specifically, the banking and trading program amendments in this
proposal were developed to implement the provisions of SB 784, limit the use
of DERCs generated from shutdowns to bring the banking and trading program
into compliance with federal requirements, and make several administrative
changes. This rulemaking does not exceed an express requirement of federal
or state law or a requirement of a delegation agreement, and was not developed
solely under the general powers of the agency, but was specifically developed
under federal law and authorized under the THSC.
The rulemaking implements requirements of 42 United States Code (USC), §7410,
which requires states to adopt a SIP that provides for "implementation, maintenance,
and enforcement" of the national ambient air quality standard (NAAQS) in each
air quality control region of the state. While 42 USC, §7410 does not
require specific programs, methods, or reductions to meet the standard, SIPs
must include "enforceable emission limitations and other control measures,
means or techniques (including economic incentives such as fees, marketable
permits, and auctions of emissions rights), as well as schedules and timetables
for compliance as may be necessary or appropriate to meet the applicable requirements
of this chapter," (meaning 42 USC, Chapter 85, Air Pollution Prevention and
Control). It is true that the Federal Clean Air Act (FCAA) does require some
specific measures for SIP purposes, such as the inspection and maintenance
program, but those programs are the exception, not the rule, in the SIP structure
of 42 USC, §7410. The provisions of the FCAA recognize that states are
in the best position to determine what programs and controls are necessary
or appropriate in order to meet the NAAQS. This flexibility allows states,
affected industry, and the public, to collaborate on the best methods to attain
the NAAQS for the specific regions in the state. Even though the FCAA allows
states to develop their own programs, this flexibility does not relieve a
state from developing a program that meets the requirements of 42 USC, §7410.
Thus, while specific measures are not generally required, the emission reductions
are required. States are not free to ignore the requirements of 42 USC, §7410,
and must develop programs to assure that the nonattainment areas of the state
will be brought into attainment on schedule.
The requirement to provide a fiscal analysis of adopted regulations in
the Texas Government Code was amended by SB 633 during the 75th Legislature,
1997. The intent of SB 633 was to require agencies to conduct a regulatory
impact analysis of extraordinary rules. These are identified in the statutory
language as major environmental rules that will have a material adverse impact
and will exceed a requirement of state law, federal law, or a delegated federal
program, or are adopted solely under the general powers of the agency. With
the understanding that this requirement would seldom apply, the commission
provided a cost estimate for SB 633 that concluded "based on an assessment
of rules adopted by the agency in the past, it is not anticipated that the
bill will have significant fiscal implications for the agency due to its limited
application." The commission also noted that the number of rules that would
require assessment under the provisions of the bill was not large. This conclusion
was based, in part, on the criteria set forth in the bill that exempted proposed
rules from the full analysis unless the rule was a major environmental rule
that exceeds a federal law. As discussed earlier in this preamble, 42 USC, §7410
does not require specific programs, methods, or reductions in order to meet
the NAAQS; thus, states must develop programs for each nonattainment area
to ensure that area will meet the attainment deadlines. Because of the ongoing
need to address nonattainment issues, the commission routinely proposes and
adopts SIP rules. The legislature is presumed to understand this federal scheme.
If each rule proposed for inclusion in the SIP was considered to be a major
environmental rule that exceeds federal law, then every SIP rule would require
the full regulatory impact analysis contemplated by SB 633. This conclusion
is inconsistent with the conclusions reached by the commission in its cost
estimate and by the Legislative Budget Board in its fiscal notes. Because
the legislature is presumed to understand the fiscal impacts of the bills
it passes, and that presumption is based on information provided by state
agencies and the Legislative Budget Board, the commission contends that the
intent of SB 633 was only to require the full regulatory impact analysis for
rules that are extraordinary in nature. While the SIP rules will have a broad
impact, that impact is no greater than is necessary or appropriate to meet
the requirements of 42 USC, §7410. For these reasons, rules adopted for
inclusion in the SIP fall under the exception in Texas Government Code, §2001.0225(a),
because they are specifically required by federal law.
In addition, 42 USC, §7502(a)(2) requires attainment as expeditiously
as practicable, and 42 USC, §7511(a), requires states to submit ozone
attainment demonstration SIPs for ozone nonattainment areas such as the HGB
area. The adopted rules, which will reduce ambient concentrations of ozone
precursors in nonattainment areas, will be submitted to the EPA as one of
several measures in the federally approved SIP. As discussed earlier in this
preamble, the banking and trading scheme in the adopted rules are necessary
to address some of the elevated criteria pollutant levels observed in various
nonattainment areas in Texas; this scheme will result in reductions in criteria
pollutants in nonattainment areas and help bring areas into compliance with
the air quality standards established under federal law as NAAQS.
The commission has consistently applied this construction to its rules
since this statute was enacted in 1997. Since that time, the legislature has
revised the Texas Government Code but left this provision substantially unamended.
The commission presumes that "when an agency interpretation is in effect at
the time the legislature amends the laws without making substantial change
in the statute, the legislature is deemed to have accepted the agency's interpretation."
As discussed, this rulemaking action implements requirements of 42 USC, §7410.
There is no contract or delegation agreement that covers the topic that is
the subject of this action. Therefore, the rulemaking does not exceed a standard
set by federal law, exceed an express requirement of state law, exceed a requirement
of a delegation agreement, nor is it adopted solely under the general powers
of the agency. Finally, this rulemaking action was not developed solely under
the general powers of the agency, but is authorized by specific sections of
THSC, Chapter 382 (also known as the Texas Clean Air Act), and Texas Water
Code that are cited in the STATUTORY AUTHORITY section of this preamble, including
THSC, §§382.011, 382.012, 382.014, 382.016, 382.017, 382.021, and
382.034. Therefore, this rulemaking action is not subject to the regulatory
analysis provisions of Texas Government Code, §2001.0225(b), because
the rulemaking does not meet any of the four applicability requirements.
The commission invites public comment regarding the draft regulatory impact
analysis determination during the public comment period.
TAKINGS IMPACT ASSESSMENT
The commission completed a takings impact assessment for this rulemaking
action under Texas Government Code, §2007.043. The proposed amendments
to Chapter 101 and revisions to the SIP would phase out DERCs generated from
shutdowns prior to September 30, 2002, require removal of DERCs generated
from shutdowns after September 30, 2002, from the DERC registry, implement
the provisions of SB 784, reorganize various rules, correct one citation,
specify the time the EPA has to object to quantification protocols, eliminate
future generation of shutdown DERCs, and add a reference to the highly-reactive
volatile organic compound cap and trade program. Specifically, the banking
and trading program amendments in this proposal were developed to implement
the provisions of SB 784, limit the use of DERCs generated from shutdowns
to comply with federal requirements, and make several administrative changes.
Promulgation and enforcement of the proposed amendments will not burden private
real property. The proposed rules do not affect private property in a manner
that restricts or limits an owner's right to the property that would otherwise
exist in the absence of a governmental action. Additionally, the credits created
under these rules are not property rights (§101.372(j)). Because DERCs
are not property, phasing out shutdown DERCs does not constitute a taking.
Consequently, this rulemaking action does not meet the definition of a takings
under Texas Government Code, §2007.002(5).
Additionally, Texas Government Code, §2007.003(b)(4) provides that
Chapter 2007 does not apply to this rulemaking action because it is reasonably
taken to fulfill an obligation mandated by federal law. The changes regarding
shutdown DERCs within this proposal were developed to meet the EPA conditional
program approval so that these requirements can be approved into the SIP and
used to meet NAAQS set by the EPA under 42 USC, §7409. States are primarily
responsible for ensuring attainment and maintenance of NAAQS once the EPA
has established them. Under 42 USC, §7410, and related provisions, states
must submit, for approval by the EPA, SIPs that provide for the attainment
and maintenance of NAAQS through control programs directed to sources of the
pollutants involved. Therefore, one purpose of this rulemaking action is to
meet the air quality standards established under federal law as NAAQS. However,
this rulemaking is only one step among many necessary for attaining the ozone
NAAQS.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission determined that this rulemaking action relates to an action
or actions subject to the Texas Coastal Management Program (CMP) in accordance
with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources
Code, §§33.201
et seq
.), and the
commission's rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency
with the CMP. As required by §281.45(a)(3) and 31 TAC §505.11(b)(2),
relating to Actions and Rules Subject to the Coastal Management Program, the
commission's rules governing air pollutant emissions must be consistent with
the applicable goals and policies of the CMP. The commission reviewed this
action for consistency with the CMP goals and policies in accordance with
the rules of the Coastal Coordination Council, and determined that the action
is consistent with the applicable CMP goals and policies. The CMP goal applicable
to this rulemaking action is the goal to protect, preserve, and enhance the
diversity, quality, quantity, functions, and values of coastal natural resource
areas (31 TAC §501.12(l)). No new sources of air contaminants will be
authorized and the proposed revisions will maintain the same level of emissions
control as the existing rules. The CMP policy applicable to this rulemaking
action is the policy that the commission's rules comply with federal regulations
in 40 Code of Federal Regulations, to protect and enhance air quality in the
coastal areas (31 TAC §501.14(q)). This rulemaking action complies with
40 Code of Federal Regulations Part 51, Requirements for Preparation, Adoption,
and Submittal of Implementation Plans. Therefore, in accordance with 31 TAC §505.22(e),
the commission affirms that this rulemaking action is consistent with CMP
goals and policies.
The commission solicits comments on the consistency of the proposed rulemaking
with the CMP during the public comment period.
EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM
The new and amended sections are applicable requirements under the Federal
Operating Permits Program, but no revisions to operating permits will be required.
ANNOUNCEMENT OF HEARING
The commission will hold a public hearing on this proposal in Austin on
May 22, 2006, at 2:00 p.m. in Building B, Room 201A, at the commission's central
office located at 12100 Park 35 Circle. The hearing is structured for the
receipt of oral or written comments by interested persons. Individuals may
present oral statements when called upon in order of registration. Open discussion
will not be permitted during the hearing; however, commission staff members
will be available to discuss the proposal 30 minutes before the hearing and
will answer questions before and after the hearing.
Persons who have special communication or other accommodation needs who
are planning to attend the hearing should contact Lola Brown, Office of Legal
Services, at (512) 239-0348. Requests should be made as far in advance as
possible.
SUBMITTAL OF COMMENTS
Comments may be submitted to Lola Brown, Texas Register Team, Office of
Legal Services, MC 205, P.O. Box 13087, Austin, Texas 78711-3087, or faxed
to (512) 239-4808. Comments must be received by 5:00 p.m., May 30, 2006, and
should reference Rule Project Number 2005-054-101- PR. Copies of the proposed
rules can be obtained from the commission's Web site at
http://www.tceq.state.tx.us/nav/rules/propose_adopt.html
. For further
information, please contact Beecher Cameron, Air Permits Division, at (512)
239-1495 or Steve Sun, Air Permits Division, at (512) 239-3554.
1.
EMISSION CREDIT BANKING AND TRADING
30 TAC §§101.302, 101.305, 101.306
STATUTORY AUTHORITY
The amended and new sections are proposed under Texas Water Code, §5.103,
concerning Rules, and §5.105, concerning General Policy, that authorize
the commission to adopt rules necessary to carry out its powers and duties
under the Texas Water Code; and under Texas Health and Safety Code (THSC), §382.017,
concerning Rules, that authorizes the commission to adopt rules consistent
with the policy and purposes of the Texas Clean Air Act. The amended and new
sections are also proposed under THSC, §382.002, concerning Policy and
Purpose, that establishes the commission purpose to safeguard the state's
air resources, consistent with the protection of public health, general welfare,
and physical property; §382.011, concerning General Powers and Duties,
that authorizes the commission to control the quality of the state's air;
and §382.012, concerning State Air Control Plan, that authorizes the
commission to prepare and develop a general, comprehensive plan for the control
of the state's air. The amended and new sections are also proposed under THSC, §382.014,
concerning Emission Inventory, that authorizes the commission to require a
person whose activities cause air contaminant emissions to submit information
to enable the commission to develop an emissions inventory; §382.016,
concerning Monitoring Requirements, that authorizes the commission to prescribe
reasonable requirements for the measuring and monitoring of air contaminant
emissions; and §382.051 and §382.0518, concerning Permitting Authority
of Commission and Preconstruction Permit, that authorize the commission to
issue preconstruction and operating air permits. The amended and new sections
are also proposed under 42 USC, §7410(a)(2)(A), that requires state implementation
plans to include enforceable measures or techniques, including economic incentives
such as fees, marketable permits, and auction of emission rights.
The proposed amended and new sections implement THSC, §§382.002,
382.011, 382.012, and 382.017; and Senate Bill 784, 79th Legislature, 2005.
§101.302.General Provisions.
(a)
Applicable pollutants. Reductions of criteria pollutants,
excluding lead, or precursors of criteria pollutants for which an area is
designated nonattainment, may qualify as emission credits. Reductions of one
pollutant may not be used to meet the requirements for another pollutant,
unless [
[
[
[
[
[
[
[
[
[
[
(b) - (c)
(No change.)
(d)
Protocol.
(1)
All generators or users of emission credits shall use a
protocol that has been submitted by the executive director to the EPA for
approval, if existing for the applicable facility or mobile source, to measure
and calculate baseline emissions. If the generator or user wishes to deviate
from a protocol submitted by the executive director, EPA approval is required
before the protocol can be used. Protocols must be used as follows.
(A) - (B)
(No change.)
(C)
If the executive director has not submitted a protocol
for the applicable facility or mobile source to the EPA for approval, the
following requirements apply:
(i) - (v)
(No change.)
(vi)
quantification protocols shall not be accepted for use
with this division
if the executive director receives a letter objecting
to the use of the protocol from the EPA during the 45-day adequacy review
or the EPA proposes disapproval of the protocol in the
Federal Register
[
(2) - (3)
(No change.)
(e)
(No change.)
(f)
Geographic scope. Except as provided in
§101.305
of this title (relating to Emission Reductions Achieved Outside the United
States)
[
(1)
(No change.)
(2)
the emission credit was generated in a nonattainment area
that has an equal or higher nonattainment classification than the nonattainment
area of use, and a demonstration has been made and approved by the executive
director and the EPA to show that the emissions from the nonattainment area
where the emission credit is generated contribute to a violation of the national
ambient air quality standard in the nonattainment area of use
.
[
[
[
[
[
(g) - (l)
(No change.)
§101.305.Emission Reductions Achieved Outside the United States.
(a)
A facility may use reductions achieved outside the United
States of criteria pollutants or precursors of criteria pollutants if the
facility meets the requirements of subsection (c) of this section.
(b)
A facility may use reductions achieved outside the United
States of criteria pollutants or precursors of criteria pollutants and substitute
these reductions for reductions in other criteria pollutants if the facility
meets the requirements of subsection (c) of this section; and
(1)
the reduction is substituted for the reduction of another
criteria pollutant if the substitution results in a greater health benefit
and is of equal or greater benefit to the overall air quality of the area;
or
(2)
a reduction of an air contaminant for which the area in
which the facility is located has been designated as nonattainment or which
leads to the formation of a criteria pollutant for which an area has been
designated as nonattainment is substituted for any air contaminant for which
the area has been designated as nonattainment or leads to the formation of
any criteria pollutant for which the area has been designated as nonattainment.
(c)
The use of reductions outside the United States must be
approved by the executive director and the United States Environmental Protection
Agency, and the user of the emission reduction must:
(1)
demonstrate to the executive director that the reduction
is real, permanent, enforceable, quantifiable, and surplus to any applicable
international, federal, state, or local law;
(2)
demonstrate that the use of the reduction does not cause
localized health impacts, as determined by the executive director;
(3)
submit all supporting information for calculations and
modeling, and any additional information requested by the executive director;
and
(4)
be located within 100 kilometers of the Texas - Mexico
border.
(d)
This section does not apply to reductions in emissions
of lead.
§101.306.Emission Credit Use.
(a)
Uses for emission credits. Unless precluded by a commission
order or a condition or conditions within an authorization under the same
commission account number, emission credits may be used as the following:
(1) - (4)
(No change.)
(5)
an annual allocation of allowances as provided in §101.356
and §101.399
of this title (relating to Allowance Banking and Trading);
(6) - (7)
(No change.)
(b) - (c)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on April 13, 2006.
TRD-200602142
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Earliest possible date of adoption: May 28, 2006
For further information, please call: (512) 239-0348
30 TAC §101.338
(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 Commission on Environmental Quality or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY
The repeal is proposed under Texas Water Code, §5.103, concerning
Rules, and §5.105, concerning General Policy, that authorize the commission
to adopt rules necessary to carry out its powers and duties under the Texas
Water Code; and under Texas Health and Safety Code (THSC), §382.017,
concerning Rules, that authorizes the commission to adopt rules consistent
with the policy and purposes of the Texas Clean Air Act. The repeal is also
proposed under THSC, §382.002, concerning Policy and Purpose, that establishes
the commission purpose to safeguard the state's air resources, consistent
with the protection of public health, general welfare, and physical property; §382.011,
concerning General Powers and Duties, that authorizes the commission to control
the quality of the state's air; and §382.012, concerning State Air Control
Plan, that authorizes the commission to prepare and develop a general, comprehensive
plan for the control of the state's air. The repeal is also proposed under
THSC, §382.014, concerning Emission Inventory, that authorizes the commission
to require a person whose activities cause air contaminant emissions to submit
information to enable the commission to develop an emissions inventory; §382.016,
concerning Monitoring Requirements, that authorizes the commission to prescribe
reasonable requirements for the measuring and monitoring of air contaminant
emissions; and §382.051 and §382.0518, concerning Permitting Authority
of Commission and Preconstruction Permit, that authorize the commission to
issue preconstruction and operating air permits. The repeal is also proposed
under 42 USC, §7410(a)(2)(A), that requires state implementation plans
to include enforceable measures or techniques, including economic incentives
such as fees, marketable permits, and auction of emission rights.
The proposed repeal implements THSC, §§382.002, 382.011, 382.012,
and 382.017; and Senate Bill 784, 79th Legislature, 2005.
§101.338.Emission Reductions Achieved Outside the United States.
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 13, 2006.
TRD-200602143
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Earliest possible date of adoption: May 28, 2006
For further information, please call: (512) 239-0348
30 TAC §101.338, §101.339
STATUTORY AUTHORITY
The new sections are proposed under Texas Water Code, §5.103, concerning
Rules, and §5.105, concerning General Policy, that authorize the commission
to adopt rules necessary to carry out its powers and duties under the Texas
Water Code; and under Texas Health and Safety Code (THSC), §382.017,
concerning Rules, that authorizes the commission to adopt rules consistent
with the policy and purposes of the Texas Clean Air Act. The new sections
are also proposed under THSC, §382.002, concerning Policy and Purpose,
that establishes the commission purpose to safeguard the state's air resources,
consistent with the protection of public health, general welfare, and physical
property; §382.011, concerning General Powers and Duties, that authorizes
the commission to control the quality of the state's air; and §382.012,
concerning State Air Control Plan, that authorizes the commission to prepare
and develop a general, comprehensive plan for the control of the state's air.
The new sections are also proposed under THSC, §382.014, concerning Emission
Inventory, that authorizes the commission to require a person whose activities
cause air contaminant emissions to submit information to enable the commission
to develop an emissions inventory; §382.016, concerning Monitoring Requirements,
that authorizes the commission to prescribe reasonable requirements for the
measuring and monitoring of air contaminant emissions; and §382.051 and §382.0518,
concerning Permitting Authority of Commission and Preconstruction Permit,
that authorize the commission to issue preconstruction and operating air permits.
The new sections are also proposed under 42 USC, §7410(a)(2)(A), that
requires state implementation plans to include enforceable measures or techniques,
including economic incentives such as fees, marketable permits, and auction
of emission rights.
The proposed new sections implement THSC, §§382.002, 382.011,
382.012, and 382.017; and Senate Bill 784, 79th Legislature, 2005.
§101.338.Emission Reductions Achieved Outside the United States.
(a)
A grandfathered or electing electric generating facility
(EGF) may use reductions achieved outside the United States of criteria pollutants
or precursors of criteria pollutants if the facility meets the requirements
of subsection (c) of this section.
(b)
A grandfathered or electing EGF may use reductions achieved
outside the United States of criteria pollutants or precursors of criteria
pollutants and substitute these reductions for reductions in other criteria
pollutants if the facility meets the requirements of subsection (c) of this
section; and
(1)
the reduction is substituted for the reduction of another
criteria pollutant if the substitution results in a greater health benefit
and is of equal or greater benefit to the overall air quality of the area;
or
(2)
a reduction of an air contaminant for which the area in
which the facility is located has been designated as nonattainment or which
leads to the formation of a criteria pollutant for which an area has been
designated as nonattainment is substituted for any air contaminant for which
the area has been designated as nonattainment or leads to the formation of
any criteria pollutant for which the area has been designated as nonattainment.
(c)
The use of reductions outside the United States must be
approved by the executive director and the United States Environmental Protection
Agency, and the user of the emission reduction must:
(1)
demonstrate to the executive director that the reduction
is real, permanent, enforceable, quantifiable, and surplus to any applicable
international, federal, state, or local law;
(2)
demonstrate that the use of the reduction does not cause
localized health impacts, as determined by the executive director;
(3)
submit all supporting information for calculations and
modeling, and any additional information requested by the executive director;
and
(4)
be located within 100 kilometers of the Texas - Mexico
border.
(d)
This section does not apply to reductions in emissions
of lead.
§101.339.Program Audits and Reports.
(a)
No later than three years after the effective date of this
division, and every three years thereafter, the executive director will audit
this program.
(1)
The audit will evaluate the impact of the program on the
state's ozone attainment demonstration, the availability and cost of allowances,
compliance by the participants, and any other elements the executive director
may choose to include.
(2)
The executive director will recommend measures to remedy
any problems identified in the audit. The trading of allowances may be discontinued
by the executive director in part or in whole and in any manner, with commission
approval, as a remedy for problems identified in the program audit.
(3)
The audit data and results will be completed and submitted
to the United States Environmental Protection Agency (EPA) and made available
for public inspection within six months after the audit begins.
(b)
No later than September 30 following the end of each control
period, the executive director shall develop and make available to the general
public and EPA, a report that includes:
(1)
number of allowances allocated to each compliance account;
(2)
total number of allowances allocated under this division;
(3)
number of actual nitrogen oxides (NO
x
) allowances subtracted from each compliance account based on the
actual NO
x
emissions from the site; and
(4)
a summary of all trades completed under this division.
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 13, 2006.
TRD-200602144
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Earliest possible date of adoption: May 28, 2006
For further information, please call: (512) 239-0348
30 TAC §§101.372, 101.373, 101.375, 101.376, 101.378
STATUTORY AUTHORITY
The amended and new sections are proposed under Texas Water Code, §5.103,
concerning Rules, and §5.105, concerning General Policy, that authorize
the commission to adopt rules necessary to carry out its powers and duties
under the Texas Water Code; and under Texas Health and Safety Code (THSC), §382.017,
concerning Rules, that authorizes the commission to adopt rules consistent
with the policy and purposes of the Texas Clean Air Act. The amended and new
sections are also proposed under THSC, §382.002, concerning Policy and
Purpose, that establishes the commission purpose to safeguard the state's
air resources, consistent with the protection of public health, general welfare,
and physical property; §382.011, concerning General Powers and Duties,
that authorizes the commission to control the quality of the state's air;
and §382.012, concerning State Air Control Plan, that authorizes the
commission to prepare and develop a general, comprehensive plan for the control
of the state's air. The amended and new sections are also proposed under THSC, §382.014,
concerning Emission Inventory, that authorizes the commission to require a
person whose activities cause air contaminant emissions to submit information
to enable the commission to develop an emissions inventory; §382.016,
concerning Monitoring Requirements, that authorizes the commission to prescribe
reasonable requirements for the measuring and monitoring of air contaminant
emissions; and §382.051 and §382.0518, concerning Permitting Authority
of Commission and Preconstruction Permit, that authorize the commission to
issue preconstruction and operating air permits. The amended and new sections
are also proposed under 42 USC, §7410(a)(2)(A), that requires state implementation
plans to include enforceable measures or techniques, including economic incentives
such as fees, marketable permits, and auction of emission rights.
The proposed amended and new sections implement THSC, §§382.002,
382.011, 382.012, and 382.017; and Senate Bill 784, 79th Legislature, 2005.
§101.372.General Provisions.
(a)
Applicable pollutants. Reductions of volatile organic compounds
(VOC), nitrogen oxides (NO
x
), carbon monoxide
(CO), sulfur dioxide (SO
2
), and particulate matter
with an aerodynamic diameter of less than or equal to a nominal ten microns
(PM
10
) may qualify as discrete emission credits
as appropriate. Reductions of other criteria pollutants are not creditable.
Reductions of one pollutant may not be used to meet the reduction requirements
for another pollutant, unless[
[
[
[
[
[
[
[
[
[
[
(b) - (c)
(No change.)
(d)
Protocol.
(1)
All generators or users of discrete emission credits must
use a protocol which has been submitted by the executive director to the EPA
for approval, if existing for the applicable facility or mobile source, to
measure and calculate baseline emissions. If the generator or user wishes
to deviate from a protocol submitted by the executive director, EPA approval
is required before the protocol can be used. Protocols shall be used as follows.
(A) - (B)
(No change.)
(C)
If the executive director has not submitted a protocol
for the applicable facility or mobile source to the EPA for approval, the
following applies:
(i) - (iii)
(No change.)
(iv)
the chosen quantification protocol shall be made available
for public comment for a period of 30 days and shall be viewable on the commission's
Web
[
(v)
(No change.)
(vi)
quantification protocols shall not be accepted for use
with this division (relating to Discrete Emission Credit Banking and Trading)
if the executive director receives a letter objecting to the use of the protocol
from the EPA during the 45-day adequacy review or the EPA proposes disapproval
of the protocol in the
Federal Register
[
(2) - (3)
(No change.)
(e)
(No change.)
(f)
Geographic scope. Except as provided in
paragraph
(7) of this subsection and §101.375 of this title (relating to Emission
Reductions Achieved Outside the United States)
[
(1) - (7)
(No change.)
[
[
[
[
(g) - (i)
(No change.)
(j)
Authorization to emit. A discrete emission credit created
under this division is a limited authorization to emit the specified pollutants
in accordance with the provisions of this section, the
Federal Clean
Air Act
[
(k) - (m)
(No change.)
§101.373.Discrete Emission Reduction Credit Generation and Certification.
(a)
Methods of generation.
(1)
Discrete emission reduction credits (DERC) may be generated
using one of the following methods or any other method that is approved by
the executive director:
[
(A)
[
(B)
[
(2)
DERCs may not be generated by the following strategies:
(A)
permanent or temporary shutdowns
[
(B) - (K)
(No change.)
(b) - (d)
(No change.)
§101.375.Emission Reductions Achieved Outside the United States.
(a)
A facility may use discrete emission credits for reductions
achieved outside the United States of criteria pollutants or precursors of
criteria pollutants if the facility meets the requirements of subsection (c)
of this section.
(b)
A facility may use reductions achieved outside the United
States of criteria pollutants or precursors of criteria pollutants and substitute
these reductions for reductions in other criteria pollutants if the facility
meets the requirements of subsection (c) of this section; and
(1)
the reduction is substituted for the reduction of another
criteria pollutant if the substitution results in a greater health benefit
and is of equal or greater benefit to the overall air quality of the area;
or
(2)
a reduction of an air contaminant for which the area in
which the facility is located has been designated as nonattainment or which
leads to the formation of a criteria pollutant for which an area has been
designated as nonattainment is substituted for any air contaminant for which
the area has been designated as nonattainment or leads to the formation of
any criteria pollutant for which the area has been designated as nonattainment.
(c)
The use of reductions outside the United States must be
approved by the executive director and the United States Environmental Protection
Agency, and the user of the emission reduction must:
(1)
demonstrate to the executive director that the reduction
is real, permanent, enforceable, quantifiable, and surplus to any applicable
international, federal, state, or local law;
(2)
demonstrate that the use of the reduction does not cause
localized health impacts, as determined by the executive director;
(3)
submit all supporting information for calculations and
modeling, and any additional information requested by the executive director;
and
(4)
be located within 100 kilometers of the Texas - Mexico
border.
(d)
This section does not apply to reductions in emissions
of lead.
§101.376.Discrete Emission Credit Use.
(a) - (b)
(No change.)
(c)
Discrete emission credit use prohibitions. A discrete emission
credit may not be used under this division:
(1) - (3)
(No change.)
(4)
to allow an emissions increase of an air contaminant above
a level authorized in a permit or other authorization that exceeds the limitations
of
§106.261
[
(5) - (6)
(No change.)
(d) - (e)
(No change.)
§101.378.Discrete Emission Credit Banking and Trading.
(a)
(No change.)
(b)
Life of a discrete emission credit. A discrete emission
credit is available for use after the DEC-1 Form, Notice of Generation and
Generator Certification of Discrete Emission Credits, has been received, deemed
creditable by the executive director, and deposited in the commission credit
registry in accordance with subsection (a) of this section, and may be used
anytime thereafter
except as stated in this subsection
. All credits
are deposited in the credit registry and reported as available credits until
they are used or withdrawn.
(1)
Discrete emission credits generated from
shutdown strategies prior to September 30, 2002, will be available for use
until September 8, 2010.
(2)
Discrete emission credits certified from
facility shutdowns after September 30, 2002, may not be used.
(c)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on April 13, 2006.
TRD-200602145
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Earliest possible date of adoption: May 28, 2006
For further information, please call: (512) 239-0348
Subchapter A. REQUIREMENTS OF WATER RIGHTS APPLICATIONS GENERAL PROVISIONS
1.
GENERAL REQUIREMENTS
30 TAC §295.17
The Texas Commission on Environmental Quality (commission)
proposes new §295.17.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULE
The Rio Grande below Fort Quitman is regulated by the Rio Grande Watermaster
under Texas Water Code, §11.326 and §11.327. 30 TAC Chapter 303,
Operation of the Rio Grande contains the Rio Grande Watermaster's rules. These
rules recognize that the water rights in this area were adjudicated by a court,
Senate Bill (SB) 1902, and House Bill (HB) 2250, 78th Legislature, 2003,
amended Texas Water Code (TWC), §11.3271, Powers and Duties of Rio Grande
Watermaster, by amending Subsection (e), and adding Subsections (f) - (k).
The provisions of the two bills are identical except for Subsection (j), relating
to central repositories for documents.
Subsection (e) of the bills was amended to provide that the Rio Grande
Watermaster's duties shall include activities relating to situations of imminent
threat to public health and safety or the environment and required that the
commission adopt rules which define situations of imminent threat and address
the watermaster's duties in response to terrorism.
Subsections (f) - (i) provide that the commission may issue a permit which
allows a person to place groundwater in the river and store it in a reservoir
for release at a later time. The commission is to write rules which will account
for any discharge, delivery, conveyance, storage, diversion, or associated
loss of water conveyed down the Rio Grande. The rules must also protect other
water right holders which store water in the reservoir and be consistent with
the 1944 Treaty between the United States and Mexico. The commission may not
issue this permit if it determines that the water to be conveyed will degrade
the water quality of the Rio Grande. These permits will be called water-in-transit
permits.
Subsection (j) of the two bills requires the watermaster to maintain a
place available to the public that will contain copies of documents which
the commission requires to be filed in connection with water rights in the
lower, middle, or upper basin of the Rio Grande. SB 1902 provides that the
watermaster is the "official recorder" of "all instruments, including deeds,
deeds of trust, financing statements, security agreements, and liens" filed
in connection with water rights. HB 2250 provides that the watermaster shall
"maintain a central repository" that includes "certified copies of all instruments,
including deeds, deeds of trust, and liens" filed in connection with water
rights.
SB 1902 also provides that an instrument should be filed "in the same manner
as required by other law for the same type of instrument," and that "the filing
of an instrument under this subsection results in the same legal and administrative
status and consequences as a filing under other law for the same type of instrument."
Further, an instrument filed under this law "shall be construed by a court,
financial institution, or other affected person in the same manner as an instrument
of the same type that is filed under other law." HB 2250 does not include
any of this quoted language, but instead provides that "a lien against a water
right shall not be effective against third parties unless a certified copy
of the instrument is filed with the watermaster," but that the law "does not
affect the validity of a lien as between the holder of the water right and
the holder of the lien or the requirements or validity of any other law governing
the perfection and recordation of these instruments."
Both bills allow a fee to be collected for filing these instruments. SB
1902 further states that the commission shall adopt rules which "prescribe
the procedures necessary for the proper implementation of this subsection,
including reasonable transition provisions, if appropriate."
To implement this legislation, the commission proposes to concurrently
amend this chapter; 30 TAC Chapter 297, Water Rights, Substantive; and 30
TAC Chapter 303; Operation of the Rio Grande.
The proposed rule implements the provisions of the two bills. Concerning
rules for terror threats, the proposed commission rules require the Watermaster
to communicate with the agency Homeland Security Coordinator if activities
are noted which may be suspicious. Concerning the bed and banks provisions
of these two bills, the commission proposes procedures that will protect existing
surface water right holders in the Rio Grande and will allow the commission
and State of Texas to comply with the Rio Grande Treaty between the United
States and Mexico.
Concerning the provisions of the bills relating to filing documents with
the Rio Grande Watermaster, the two bills are in conflict relating to the
effect of filing and failure to file. The commission has determined that it
should not adopt rules relating to the legal effect of filing or failing to
file documents with the Rio Grande Watermaster because the commission does
not regulate these matters. Therefore, the commission leaves the questions
of the ramifications and effect of filing or failing to file documents with
the commission to interpretation of the statutes by the courts. These rules
would provide procedures for filing documents with the Rio Grande Watermaster.
The new rule in this chapter would provide that water-in-transit permits
are not governed by this chapter but that Chapter 303 contains the requirements
for these water-in-transit permits.
SECTION DISCUSSION
Proposed new §295.17 would provide that this chapter does not apply
to water-in-transit permits. These permits are governed by Chapter 303.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Nina Chamness, Analyst, Strategic Planning and Grants Management Section,
has determined that, for the first five-year period the proposed rules are
in effect, fiscal implications are anticipated for the agency as a result
of administration or enforcement of the proposed rule. The proposed amendments
address additional duties and responsibilities of the Rio Grande Watermaster
as well as procedures to allow for the storage of water-in-transit in the
Rio Grande system. No fiscal implications are anticipated for local governments
since typically they do not transport water to sell to customers outside their
constituency base. A local government will be subject to the same costs as
other entities holding this type of water right if it decides to apply for
a water-in-transit permit.
The proposed rulemaking seeks to implement provisions of SB 1902 and HB
2250, 78th Legislature, that amended the Texas Water Code and affected the
duties and functions of the Rio Grande Watermaster. The rulemaking proposes
changes to TAC Chapters 295, 297, and 303. The proposed amendments to Chapters
295 and 297 provide that water-in-transit permits for the Rio Grande are governed
by provisions in Chapter 303 instead of Chapters 295 and 297.
The proposed rulemaking would implement provisions to: give the Rio Grande
Watermaster the authority to take actions when there are imminent threats
to public health, public safety, and the environment; provide for the permitting
of privately owned groundwater that an owner may wish to sell and transport
(water-in-transit) to a buyer using the Rio Grande River and its reservoirs
as a means of delivery; and maintain, for public use, a central repository
that includes certified copies of instruments the commission requires to be
filed in connection with water rights in the lower, middle, and upper Rio
Grande basins.
The proposed rulemaking would require the Rio Grande Watermaster to modify
the water accounting methods currently in use. New procedures to issue a permit
for this type of water right will have to be developed. It will be necessary
to investigate and verify the increased volume and diversions of water flowing
through the Rio Grande system because of these new permits. Daily monitoring
and evaluation will be needed to compute the direct and indirect losses of
privately owned water put into, and diverted from, the Rio Grande system so
that current existing water rights will not be impacted by this new water
right.
The proposed rulemaking may generate additional fee revenue for the agency.
Revenue generated by application fees under this proposed rulemaking may range
from $100 to $53,000 per application depending on the size and type of the
groundwater source. Revenue from recording fees will also be generated at
$1.25 per page of the application. Revenue from annual assessment fees for
water-in-transit would be determined by the water holder's apportioned share
of fees needed to cover Rio Grande Watermaster operations. This fee, which
varies on an annual basis, could be as much as $45,000 per 100,000 acre-feet
of water-in-transit.
Fees assessed to administer the Watermaster programs are deposited into
the Watermaster Administration Account 158. The amount of fee revenue available
for use by the agency to administer the Watermaster programs is determined
through the legislative appropriations process. Projected revenue collected
in this account is approximately $2.2 million over the 2006/2007 biennium.
Of this amount, the agency is authorized to use $1.7 million in the 2006/2007
biennium. Currently, additional revenue generated by water-in-transit permits
could not be used to cover the cost of implementing the proposed rulemaking.
The agency submitted an exceptional item request in its Legislative Appropriation
Request for Fiscal Years 2006 and 2007 to allow it to use the total amount
of revenue collected in Account 158 to administer the Watermaster programs,
however, this exceptional item request was not approved. The agency will again
submit an exceptional item request in its Legislative Appropriation Request
for Fiscal Years 2008 and 2009 to allow usage of the total amount of revenue
collected.
The proposed rulemaking would have a number of operational impacts for
the Rio Grande Watermaster. The costs of developing and implementing the procedures
needed to account for additions and diversions of water-in-transit, monitor
and investigate water activities on a daily basis, and establish and maintain
a central repository for required documentation of water rights within the
Rio Grande Watermaster division is estimated to be $90,000 per year, roughly
the equivalent of three full-time employees at the level of a Watermaster
Specialist I.
PUBLIC BENEFITS AND COSTS
Ms. Chamness also determined that for each year of the first five years
the proposed new rules are in effect, the public benefit anticipated from
the changes seen in the proposed rules would be the possible availability
of more water in a region where water is scarce, greater accessibility to
public records pertaining to water rights in the Rio Grande basins, and increased
protection of public health, public safety, and the environment if situations
of imminent threat arise.
Fiscal implications are anticipated for businesses and individuals who
apply for a water-in-transit permit under this proposed rulemaking. Costs
for obtaining this type of permit would vary depending on the characteristics
of the site and the number of acre-feet of water placed in the system.
Applicants will be required to conduct a hydrological assessment of the
water source, which staff experience indicates could cost between $15,000
to $30,000, depending on the location and geological formation of the groundwater
aquifer. Geological engineering models may be required to complete the evaluation
regarding any groundwater surface water connection. Applicants will also be
required to publish notices in the newspapers of 16 counties of the Rio Grande
Water division for which they intend to obtain this type of permit. This cost
is estimated to be between $300 to $500 per newspaper publication. Applicants
will also have to mail a notice to the 1,600 water right account holders in
the Rio Grande Watermaster division costing approximately $600 total. Applicants
will also have to pay an application fee and a user fee for the permit. These
costs could range from $100 to $52,000, depending upon the amount of water
discharged for transit. These fees are based on the amount of water that is
being transported and therefore increases if more water is used. There is
a $50,000 maximum on use fees. Recording fees will be $1.25 per page of the
permit application. Fees for filing copies of liens will be assessed at $16
for the first page and $2.00 for each additional page of the document. If
a water-in-transit right had to be amended, the applicant would have to pay
$100 per amendment. A water-in-transit holder will have to pay an annual assessment
fee that all water right holders in the Rio Grande division pay. This fee
varies from year to year, but a water-in-transit permit holder could pay as
much as $45,000 per each 100,000 acre-feet of water-in-transit, depending
on the annual assessment rate calculated by the watermaster and approved by
the commission to provide for compensation of all watermaster activities multiplied
by the authorized amount of water both discharged into the Rio Grande and
maximum authorized diverted and the intended and authorized use of that water.
Entities with this type of water right will be required to install pumping
and metering equipment. Pumping equipment ranges from an estimated $800 -
$5,000 per unit, and metering equipment will cost about $500 per site.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
No adverse fiscal implications are anticipated for small or micro-businesses
due to the administration and implementation of the proposed rule. Small and
micro-businesses are not expected to apply for a water-in-transit permit.
If a small or micro-business elected to obtain a water-in-transit permit,
it would be subject to the same costs that other entities pay to obtain that
permit.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission has reviewed this proposed rulemaking and determined that
a local employment impact statement is not required because the proposed rules
do not adversely affect a local economy in a material way for the first five
years that the proposed rules are in effect.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the proposed rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225 and determined
that the rulemaking is not subject to §2001.0225 because it does not
meet the definition of a "major environmental rule" as defined in the act.
The intent is to indicate that Chapter 295 does not apply to water-in-transit
permits and to refer the reader to Chapter 303 for the requirements for those
permits. The purpose of the rule is not to protect the environment or reduce
risks to human health due to environmental exposure.
The commission reviewed the proposed rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225 and determined
that the rulemaking is not subject to §2001.0225 because it does not
meet the definition of a "major environmental rule" as defined in the act.
The intent of the rulemaking concerning terror threats is not to reduce risks
to human health from environmental exposure, but to provide new duties for
the Rio Grande Watermaster relating to actions during terror threats. The
rules relating to terror threats could be considered to protect the environment.
However, these rules do not exceed a standard set by federal law, exceed an
express requirement of state law, or exceed a requirement of a delegation
agreement or contract between the state and an agency of the federal government,
and these rules are not adopted under the general powers of the agency instead
of a specific state law. The rules relating to bed and banks permits are not
for the purpose of protecting the environment or protection from environmental
exposure, but are to allow the conveyance and storage of groundwater in the
river and to protect existing water rights. The recordkeeping rules are not
for the purpose of protecting the environment or reducing risks from environmental
exposure but are to provide a local public place for documents to be filed.
TAKINGS IMPACT ASSESSMENT
The commission evaluated these proposed rules in Chapter 295 and performed
a preliminary assessment of whether Texas Government Code, Chapter 2007 is
applicable. These rules are simply a procedural statement which refers the
reader to another chapter for water-in-transit permit requirements. The rules
do not affect private real property. Thus, these new rules do not constitute
a taking under the Texas Government Code.
The commission evaluated the proposed rules and performed a preliminary
assessment of whether Texas Government Code, Chapter 2007 is applicable. Concerning
actions to be taken by the Rio Grande Watermaster due to terror threats, the
rules are written in response to a real and substantial threat to public health
and safety, are designed to significantly advance the health and safety purpose,
and do not impose a greater burden than is necessary to achieve the health
and safety purpose.
For the bed and banks permits and the recordkeeping requirements of the
rules, none of the exceptions in §2007.003(b) apply to this rulemaking.
The specific purpose of these proposed rules is to allow the commission to
issue bed and banks permits for conveyance of groundwater to be stored in
a reservoir, and to provide new duties for the Rio Grande Watermaster relating
to bed and banks permits for conveyance of groundwater to be stored in a reservoir,
recordkeeping, and monitoring water right activities in the Rio Grande basin.
The proposed rules would substantially advance this stated purpose by providing
procedures for each of these duties.
There are no burdens imposed on private real property due to these rules
requiring the Rio Grande Watermaster to issue bed and banks permits and keep
records. The rules on recordkeeping do not impact real property. The new rules
relating to these bed and banks permits in the Rio Grande are specifically
written to prevent any impact on their property because under the "Rule of
Capture" persons may pump water from their land if they are not wasting the
water or causing subsidence or other damage to other land. These rules do
not affect that law. Additionally, a permittee will not be allowed to remove
all of the water put into the river under the permit. This limit on how much
water can be taken from the river is necessary to protect water right holders
and to comply with the 1944 Treaty, both of which are required in Texas Water
Code, §11.3271. Thus, these new rules do not constitute a taking under
the Texas Government Code.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rules and found that they are neither
identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2)
or (4), nor will they affect any action/authorization identified in Coastal
Coordination Act Implementation Rules, 31 TAC §505.11(a)(6). The purpose
of the rulemaking is to provide notice that this chapter does not apply to
applications for water-in-transit in the Rio Grande and to provide a cross-reference
to rules that are applicable to water-in-transit in the Rio Grande. Therefore,
the proposed rule is not subject to the Texas Coastal Management Program.
Written comments on the consistency of this rulemaking may be submitted
to the contact person at the address listed under the SUBMITTAL OF COMMENTS
section of this preamble.
SUBMITTAL OF COMMENTS
Comments may be submitted to Joyce Spencer, MC 205, Office of Legal Services,
Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087,
or faxed to (512) 239-4808. All comments should reference Rule Project Number
2004-014-295-CE. Comments must be received by 5:00 p.m., May 30, 2006. Copies
of the proposed rules can be obtained from the commission's Web site at
STATUTORY AUTHORITY
The new section is proposed under amendments to Texas Water Code, TWC, §11.3271,
which provides that the Rio Grande Watermaster's duties include activities
related to situations of imminent threat to public health and the environment,
storing water in a reservoir for release at a later time, water-in-transit
that is being conveyed down the bed and banks of the Rio Grande under a permit
and rules issued by the commission, and maintaining a central repository for
the public that includes certified copies of instruments that the commission
requires to be filed in connection with water rights in the lower, middle,
or upper basin of the Rio Grande and that are subject to a water right. The
proposed new section is also authorized by TWC, §5.103, which provides
the commission with the authority to adopt rules necessary to carry out its
powers and duties under the TWC; and TWC, §5.013(1), which provides that
the commission has general jurisdiction over water and water rights including
the issuance of water rights permits, water rights adjudication, cancellation
of water rights, and enforcement of water rights.
This proposed new section implements TWC, §11.3271, and TWC, §5.103.
§295.17.Water-in-Transit in the Rio Grande.
This chapter only applies to applications for water-in-transit in the
Rio Grande to the extent that the rules for water-in-transit applications
in the Rio Grande in Chapter 303 of this title (relating to Operation of the
Rio Grande) do not govern or do not expressly conflict with this chapter.
The applicable rules for water-in-transit in the Rio Grande are in Chapter
303 of this title.
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 14, 2006.
TRD-200602169
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Earliest possible date of adoption: May 28, 2006
For further information, please call: (512) 239-5017
Subchapter A. DEFINITIONS AND APPLICABILITY
30 TAC §297.2
The Texas Commission on Environmental Quality (commission)
proposes new §297.2.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULE
The Rio Grande below Fort Quitman is regulated by the Rio Grande Watermaster
under Texas Water Code, §11.326 and §11.327. 30 TAC Chapter 303,
Operation of the Rio Grande, contains the Rio Grande Watermaster's rules.
These rules recognize that the water rights in this area were adjudicated
by a court,
State v. Hidalgo County Water Control &
Improv. Dist. No. 18
, 443 S.W.2d 728 (Tex. App. - Corpus Christi 1969),
Senate Bill (SB) 1902, and House Bill (HB) 2250, 78th Legislature, 2003,
amended Texas Water Code (TWC), §11.3271, Powers and Duties of Rio Grande
Watermaster, by amending Subsection (e), and adding Subsections (f) - (k).
The provisions of the two bills are identical except for Subsection (j), relating
to central repositories for documents.
Subsection (e) of the bills was amended to provide that the Rio Grande
Watermaster's duties shall include activities relating to situations of imminent
threat to public health and safety or the environment and required that the
commission shall adopt rules which define situations of imminent threat and
address the watermaster's duties in response to terrorism.
Subsections (f) - (i) provide that the commission may issue a permit which
allows a person to place groundwater in the river and store it in a reservoir
for release at a later time. The commission is to write rules which will account
for any discharge, delivery, conveyance, storage, diversion, or associated
loss of water conveyed down the Rio Grande. The rules must also protect other
water right holders which store water in the reservoir and be consistent with
the 1944 Treaty between the United States and Mexico. The commission may not
issue this permit if it determines that the water to be conveyed would degrade
the water quality of the Rio Grande. These permits will be called water-in-transit
permits.
Subsection (j) of the two bills requires the watermaster to maintain a
place available to the public that will contain copies of documents which
the commission requires to be filed in connection with water rights in the
lower, middle, or upper basin of the Rio Grande. SB 1902 provides that the
watermaster is the "official recorder" of "all instruments, including deeds,
deeds of trust, financing statements, security agreements, and liens" filed
in connection with water rights. HB 2250 provides that the watermaster shall
"maintain a central repository" that includes "certified copies of all instruments,
including deeds, deeds of trust, and liens" filed in connection with water
rights.
SB 1902 also provides that an instrument should be filed "in the same manner
as required by other law for the same type of instrument," and that "the filing
of an instrument under this subsection results in the same legal and administrative
status and consequences as a filing under other law for the same type of instrument."
Further, an instrument filed under this law "shall be construed by a court,
financial institution, or other affected person in the same manner as an instrument
of the same type that is filed under other law." HB 2250 does not include
any of this quoted language, but instead provides that "a lien against a water
right shall not be effective against third parties unless a certified copy
of the instrument is filed with the watermaster," but that the law "does not
affect the validity of a lien as between the holder of the water right and
the holder of the lien or the requirements or validity of any other law governing
the perfection and recordation of these instruments."
Both bills allow a fee to be collected for filing these instruments. SB
1902 further states that the commission shall adopt rules which "prescribe
the procedures necessary for the proper implementation of this subsection,
including reasonable transition provisions, if appropriate."
To implement this legislation, the commission proposes to concurrently
amend this chapter; 30 TAC Chapter 295, Water Rights, Procedural; and 30 TAC
Chapter 303; Operation of the Rio Grande.
The proposed rule implements the provisions of the two bills. Concerning
rules for terror threats, the proposed commission rules require the Watermaster
to communicate with the agency Homeland Security Coordinator if activities
are noted which may be suspicious. Concerning the bed and banks provisions
of these two bills, the commission proposes procedures that will protect existing
surface water right holders in the Rio Grande and will allow the commission
and State of Texas to comply with the Rio Grande Treaty between the United
States and Mexico.
Concerning the provisions of the bills relating to filing documents with
the Rio Grande Watermaster, the two bills are in conflict relating to the
effect of filing and failure to file. The commission has determined that it
should not adopt rules relating to the legal effect of filing or failing to
file documents with the Rio Grande Watermaster because the commission does
not regulate these matters. Therefore, the commission leaves the questions
of the ramifications and effect of filing or failing to file documents with
the commission to interpretation of the statutes by the courts. These rules
would provide procedures for filing documents with the Rio Grande Watermaster.
The new rule in this chapter would provide that water-in-transit permits
are not governed by this chapter but that Chapter 303 contains the requirements
for these water-in-transit permits.
SECTION DISCUSSION
Proposed §297.2 provides that this chapter does not apply to water-in-transit
permits. These permits are governed by Chapter 303.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Nina Chamness, Analyst, Strategic Planning and Grants Management Section,
has determined that, for the first five-year period the proposed new rule
is in effect, fiscal implications are anticipated for the agency as a result
of administration or enforcement of the proposed rule. The proposed amendments
address additional duties and responsibilities of the Rio Grande Watermaster
as well as procedures to allow for the storage of water-in-transit in the
Rio Grande system. No fiscal implications are anticipated for local governments
since typically they do not transport water to sell to customers outside their
constituency base. A local government would be subject to the same costs as
other entities holding this type of water right if it decides to apply for
a water-in-transit permit.
The proposed rulemaking seeks to implement provisions of SB 1902 and HB
2250, 78th Legislature, that amended the Texas Water Code and affected the
duties and functions of the Rio Grande Watermaster. The rulemaking proposes
changes to Chapters 295, 297, and 303 of the Texas Administrative Code. The
proposed amendments to Chapters 295 and 297 provide that water-in-transit
permits for the Rio Grande are governed by provisions in Chapter 303 instead
of Chapters 295 and 297.
The proposed rulemaking would implement provisions to: give the Rio Grande
Watermaster the authority to take actions when there are imminent threats
to public health, public safety, and the environment; provide for the permitting
of privately owned groundwater that an owner may wish to sell and transport
(water-in-transit) to a buyer using the Rio Grande River and its reservoirs
as a means of delivery; and maintain, for public use, a central repository
that includes certified copies of instruments the commission requires to be
filed in connection with water rights in the lower, middle, and upper Rio
Grande basins.
The proposed rulemaking will require the Rio Grande Watermaster to modify
the water accounting methods currently in use. New procedures to issue a permit
for this type of water right will have to be developed. It will be necessary
to investigate and verify the increased volume and diversions of water flowing
through the Rio Grande system because of these new permits. Daily monitoring
and evaluation will be needed to compute the direct and indirect losses of
privately owned water put into, and diverted from, the Rio Grande system so
that current existing water rights will not be impacted by this new water
right.
This proposed rulemaking may generate additional fee revenue for the agency.
Revenue generated by application fees under this proposed rulemaking may range
from $100 to $53,000 per application depending on the size and type of the
groundwater source. Revenue from recording fees would also be generated at
$1.25 per page of the application. Revenue from annual assessment fees for
water-in-transit will be determined by the water holder's apportioned share
of fees needed to cover Rio Grande Watermaster operations. This fee, which
varies on an annual basis, could be as much as $45,000 per 100,000 acre-feet
of water-in-transit.
Fees assessed to administer the Watermaster programs are deposited into
the Watermaster Administration Account 158. The amount of fee revenue available
for use by the agency to administer the Watermaster programs is determined
through the legislative appropriations process. Projected revenue collected
in this account is approximately $2.2 million over the 2006/2007 biennium.
Of this amount, the agency is authorized to use $1.7 million in the 2006/2007
biennium. Currently, additional revenue generated by water-in-transit permits
could not be used to cover the cost of implementing the proposed rulemaking.
The agency submitted an exceptional item request in its Legislative Appropriation
Request for Fiscal Years 2006 and 2007 to allow it to use the total amount
of revenue collected in Account 158 to administer the Watermaster programs,
however, this exceptional item request was not approved. The agency will again
submit an exceptional item request in its Legislative Appropriation Request
for Fiscal Years 2008 and 2009 to allow usage of the total amount of revenue
collected.
This proposed rulemaking would have a number of operational impacts for
the Rio Grande Watermaster. The costs of developing and implementing the procedures
needed to account for additions and diversions of water-in-transit, monitor
and investigate water activities on a daily basis, and establish and maintain
a central repository for required documentation of water rights within the
Rio Grande Watermaster division is estimated to be $90,000 per year, roughly
the equivalent of three full-time employees at the level of a Watermaster
Specialist I.
PUBLIC BENEFITS AND COSTS
Ms. Chamness also determined that for each year of the first five years
the proposed new rules are in effect, the public benefit anticipated from
the changes seen in the proposed rules will be the possible availability of
more water in a region where water is scarce, greater accessibility to public
records pertaining to water rights in the Rio Grande basins, and increased
protection of public health, public safety, and the environment when situations
of imminent threat arise.
Fiscal implications are anticipated for businesses and individuals who
apply for a water-in-transit permit under this proposed rulemaking. Costs
for obtaining this type of permit would vary depending on the characteristics
of the site and the number of acre-feet of water placed in the system.
Applicants will be required to conduct a hydrological assessment of the
water source, which staff experience indicates could cost between $15,000
to $30,000, depending on the location and geological formation of the groundwater
aquifer. Geological engineering models may be required to complete the evaluation
regarding any groundwater surface water connection. Applicants will also be
required to publish notices in the newspapers of 16 counties of the Rio Grande
Water division for which they intend to obtain this type of permit. This cost
is estimated to be between $300 to $500 per newspaper publication. Applicants
will also have to mail a notice to the 1,600 water right account holders in
the Rio Grande Watermaster division costing approximately $600 total. Applicants
will also have to pay an application fee and a user fee for the permit. These
costs could range from $100 to $52,000, depending upon the amount of water
discharged for transit. These fees are based on the amount of water that is
being transported and therefore increases if more water is used. There is
a $50,000 maximum on use fees. Recording fees will be $1.25 per page of the
permit application. Fees for filing copies of liens will be assessed at $16
for the first page and $2.00 for each additional page of the document. If
a water-in-transit right had to be amended, the applicant would have to pay
$100 per amendment. A water-in-transit holder would have to pay an annual
assessment fee that all water right holders in the Rio Grande division pay.
This fee varies from year to year, but a water-in-transit permit holder could
pay as much as $45,000 per each 100,000 acre-feet of water-in-transit, depending
on the annual assessment rate calculated by the watermaster and approved by
the commission to provide for compensation of all watermaster activities multiplied
by the authorized amount of water both discharged into the Rio Grande and
maximum authorized diverted and the intended and authorized use of that water.
Entities with this type of water right will be required to install pumping
and metering equipment. Pumping equipment ranges from an estimated $800 -
$5,000 per unit, and metering equipment will cost about $500 per site.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
No adverse fiscal implications are anticipated for small or micro-businesses
due to the administration and implementation of the proposed rule. Small and
micro-businesses are not expected to apply for a water-in-transit permit.
If a small or micro-business elected to obtain a water-in-transit permit,
it would be subject to the same costs that other entities pay to obtain that
permit.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission has reviewed this proposed rulemaking and determined that
a local employment impact statement is not required because the proposed rule
does not adversely affect a local economy in a material way for the first
five years that the proposed rule is in effect.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the proposed rulemaking for Chapter 297 in light
of the regulatory analysis requirements of Texas Government Code, §2001.0225
and determined that the rulemaking is not subject to §2001.0225 because
it does not meet the definition of a "major environmental rule" as defined
in the act. The intent of the rulemaking is to indicate that this chapter
does not apply to water-in-transit permits and to refer the reader to Chapter
303 for the requirements for those permits. The purpose of the rule is not
to protect the environment or reduce risk to human health due to environmental
exposure.
The commission reviewed the proposed rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225 and determined
that the rulemaking is not subject to §2001.0225 because it does not
meet the definition of a "major environmental rule" as defined in the act.
The intent of the rulemaking concerning terror threats is not to reduce risks
to human health from environmental exposure, but to provide new duties for
the Rio Grande Watermaster relating to actions during terror threats. The
rules relating to terror threats could be considered to protect the environment.
However, these rules do not exceed a standard set by federal law, exceed an
express requirement of state law, or exceed a requirement of a delegation
agreement or contract between the state and an agency of the federal government,
and these rules are not adopted under the general powers of the agency instead
of a specific state law. The rules relating to bed and banks permits are not
for the purpose of protecting the environment or protection from environmental
exposure, but are to allow the conveyance and storage of groundwater in the
river and to protect existing water rights. The recordkeeping rules are not
for the purpose of protecting the environment or reducing risks from environmental
exposure but are to provide a local public place for documents to be filed.
The commission invites public comment on the draft regulatory impact analysis
determination.
TAKINGS IMPACT ASSESSMENT
The commission evaluated these proposed rules and performed a preliminary
assessment of whether Texas Government Code, Chapter 2007 is applicable. These
rules are simply a procedural statement which refers the reader to another
chapter for water-in-transit permit requirements. Thus, these new rules do
not constitute a taking under the Texas Government Code.
The commission evaluated the proposed rule and performed a preliminary
assessment of whether Texas Government Code, Chapter 2007 is applicable. Concerning
actions to be taken by the Rio Grande Watermaster due to terror threats, the
rules are written in response to a real and substantial threat to public health
and safety, are designed to significantly advance the health and safety purpose,
and do not impose a greater burden than is necessary to achieve the health
and safety purpose.
For the bed and banks permits and the recordkeeping requirements of the
rules, none of the exceptions in §2007.003(b) apply to this rulemaking.
The specific purpose of these proposed rules is to allow the commission to
issue bed and banks permits for conveyance of groundwater to be stored in
a reservoir, and to provide new duties for the Rio Grande Watermaster relating
to bed and banks permits for conveyance of groundwater to be stored in a reservoir,
recordkeeping, and monitoring water right activities in the Rio Grande basin.
The proposed rules would substantially advance this stated purpose by providing
procedures for each of these duties.
There are no burdens imposed on private real property due to these rules
requiring the Rio Grande Watermaster to issue bed and banks permits and keep
records. The rules on recordkeeping do not impact real property. The rules
relating to these bed and banks permits in the Rio Grande are specifically
written to prevent any impact on their property because under the "Rule of
Capture" persons may pump water from their land if they are not wasting the
water or causing subsidence or other damage to other land. These rules do
not affect that law. Additionally, a permittee will not be allowed to remove
all of the water put into the river under the permit. This limit on how much
water can be taken from the river is necessary to protect water right holders
and to comply with the 1944 Treaty, both of which are required in Texas Water
Code, §11.3271. Thus, these new rules do not constitute a taking under
the Texas Government Code.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rules and found that they are neither
identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2)
or (4), nor will they affect any action/authorization identified in Coastal
Coordination Act Implementation Rules, 31 TAC §505.11(a)(6). The purpose
of the rulemaking is to provide notice that this chapter does not apply to
applications for water-in-transit in the Rio Grande and to provide a cross-reference
to rules that are applicable to water-in-transit in the Rio Grande. Therefore,
the proposed rule is not subject to the Texas Coastal Management Program.
Written comments on the consistency of this rulemaking may be submitted
to the contact person at the address listed under the SUBMITTAL OF COMMENTS
section of this preamble.
SUBMITTAL OF COMMENTS
Comments may be submitted to Joyce Spencer, MC 205, Office of Legal Services,
Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087,
or faxed to (512) 239-4808. All comments should reference Rule Project Number
2004-014-295-CE. Comments must be received by 5:00 p.m., May 30, 2006. Copies
of the proposed rules can be obtained from the commission's Web site at
STATUTORY AUTHORITY
The new section is proposed under amendments to Texas Water Code, TWC, §11.3271,
which provides that the Rio Grande Watermaster's duties include activities
related to situations of imminent threat to public health and the environment,
storing water in a reservoir for release at a later time, water-in-transit
that is being conveyed down the bed and banks of the Rio Grande under a permit
and rules issued by the commission, and maintaining a central repository for
the public that includes certified copies of instruments that the commission
requires to be filed in connection with water rights in the lower, middle,
or upper basin of the Rio Grande and that are subject to a water right. The
proposed new section is also authorized by TWC, §5.103, which provides
the commission with the authority to adopt rules necessary to carry out its
powers and duties under the TWC; and TWC, §5.013(1), which provides that
the commission has general jurisdiction over water and water rights including
the issuance of water rights permits, water rights adjudication, cancellation
of water rights, and enforcement of water rights.
This proposed new section implements TWC, §11.3271, and TWC, §5.103.
§297.2.Water-in-Transit in the Rio Grande.
This chapter only applies to applications for water-in-transit in the
Rio Grande to the extent that the rules for water-in-transit applications
in the Rio Grande in Chapter 303 of this title (relating to Operation of the
Rio Grande) do not govern or do not expressly conflict with this chapter.
The applicable rules for water-in-transit in the Rio Grande are in Chapter
303 of this title.
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 14, 2006.
TRD-200602170
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Earliest possible date of adoption: May 28, 2006
For further information, please call: (512) 239-5017
The Texas Commission on Environmental Quality (commission) proposes
amendments to §§303.1, 303.2, 303.21 - 303.23, 303.53, 303.55, and
303.72. The commission also proposes new §§303.18, 303.40, and 303.74
- 303.93.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
The Rio Grande below Fort Quitman is regulated by the Rio Grande Watermaster
under Texas Water Code, §11.326 and §11.327. Chapter 303, Operation
of the Rio Grande, of 30 Texas Administrative Code (TAC) contains the Rio
Grande Watermaster's rules. These rules recognize that the water rights in
this area were adjudicated by a court,
State v. Hidalgo
County Water Control & Improv. Dist. No. 18
, 443 S.W.2d 728 (Tex.
App. - Corpus Christi 1969),
writ ref'd n.r.e.
,
and that below Amistad Reservoir, water rights are not based on the priority
system (first in time is first in right) as in the rest of the state.
Senate Bill (SB) 1902, and House Bill (HB) 2250, 78th Legislature, 2003,
amended Texas Water Code (TWC), §11.3271, Powers and Duties of Rio Grande
Watermaster, by amending Subsection (e), and adding Subsections (f) - (k).
The provisions of the two bills are identical except for Subsection (j), relating
to central repositories for documents.
Subsection (e) of the bills was amended to provide that the Rio Grande
Watermaster's duties shall include activities relating to situations of imminent
threat to public health and safety or the environment and required that the
commission adopt rules which define situations of imminent threat and address
the watermaster's duties in response to terrorism.
Subsections (f) - (i) provide that the commission may issue a permit which
allows a person to convey groundwater in the river, which may include, but
does not require, storage in a reservoir for release at a later time. The
commission is to write rules which will account for any discharge, delivery,
conveyance, storage, diversion, or associated loss of water conveyed down
the Rio Grande. The rules must also protect other water right holders which
store water in the reservoir and be consistent with the 1944 Treaty between
the United States and Mexico. Because groundwater will be introduced into
the Rio Grande and will be conveyed in the river under this permit, this water
must be shared with Mexico under the 1944 Treaty. The commission may not issue
this permit if it determines that the water to be conveyed would degrade the
water quality of the Rio Grande. These permits will be called water-in-transit
permits.
Subsection (j) of the two bills requires the watermaster to maintain a
place available to the public that will contain copies of documents which
the commission requires to be filed in connection with water rights in the
lower, middle, or upper basin of the Rio Grande. SB 1902 provides that the
watermaster is the "official recorder" of "all instruments, including deeds,
deeds of trust, financing statements, security agreements, and liens" filed
in connection with water rights. HB 2250 provides that the watermaster shall
"maintain a central repository" that includes "certified copies of all instruments,
including deeds, deeds of trust, and liens" filed in connection with water
rights.
SB 1902 also provides that an instrument should be filed "in the same manner
as required by other law for the same type of instrument," and that "the filing
of an instrument under this subsection results in the same legal and administrative
status and consequences as a filing under other law for the same type of instrument."
Further, an instrument filed under this law "shall be construed by a court,
financial institution, or other affected person in the same manner as an instrument
of the same type that is filed under other law." HB 2250 does not include
any of this quoted language, but instead provides that "a lien against a water
right shall not be effective against third parties unless a certified copy
of the instrument is filed with the watermaster," but that the law "does not
affect the validity of a lien as between the holder of the water right and
the holder of the lien or the requirements or validity of any other law governing
the perfection and recordation of these instruments."
Both bills allow a fee to be collected for filing these instruments. SB
1902 further states that the commission shall adopt rules which "prescribe
the procedures necessary for the proper implementation of this subsection,
including reasonable transition provisions, if appropriate."
The proposed rules implement the provisions of the two bills. Concerning
rules for terror threats, the proposed commission rules require the Watermaster
to communicate with the agency Homeland Security Coordinator if activities
are noted which may be suspicious. Concerning the bed and banks provisions
of these two bills, the commission proposes procedures that will protect existing
surface water right holders in the Rio Grande and will allow the commission
and State of Texas to comply with the Rio Grande Treaty between the United
States and Mexico.
Concerning the provisions of the bills relating to filing documents with
the Rio Grande Watermaster, the two bills are in conflict relating to the
effect of filing and failure to file. The commission has determined that it
should not adopt rules relating to the legal effect of filing or failing to
file documents with the Rio Grande Watermaster because the commission does
not regulate these matters. Therefore, the commission leaves the questions
of the ramifications and effect of filing or failing to file documents with
the commission to interpretation of the statutes by the courts. These rules
will provide procedures for filing documents with the Rio Grande Watermaster.
SECTION BY SECTION DISCUSSION
The proposed amendment to §303.1, General, would clarify which water
rights will be regulated under Chapter 303, Operation of the Rio Grande. Also,
the proposed amendment states that any other rules, regulations, and orders
relating to water rights will apply to water rights regulated under Chapter
303 unless Chapter 303 expressly provides otherwise. These amendments are
needed to describe what rules will apply to water rights in the Rio Grande
below Fort Quitman.
The proposed addition of new §303.2(19) is necessary to define the
Treaty between the United States and Mexico because reference to the Treaty
is made in the new rules for water-in-transit permits. Proposed new §303.2(23)
is necessary to define "Water-in-transit" permits, which are required by HB
2250 and SB 1902. This definition of "Water-in-transit" tracks the language
in the statutes. Section 303.2(19) - (21) is renumbered §303.2(20) -
(22), and §303.2(22) and (23) is renumbered §303.2(24) and (25)
because of these added definitions. Water-in-transit is groundwater that may
or may not be stored in a reservoir for later use.
Proposed new §303.18 concerns threats to public health and safety
and the environment and would provide that the Rio Grande Watermaster will
implement the agency's Homeland Security Coordination Plan. Additionally,
under §303.18, the Watermaster shall require water right holders to cease
diversions if the Watermaster determines that continued diversion would pose
a hazard to public health and safety and the environment. These provisions
are necessary to implement the requirements of SB 1902 and HB 2250 that require
that the Rio Grande Watermaster determine situations of threat and the duties
he will perform.
The proposed amendment to §303.21 adds subsection (b)(4), which provides
that water-in-transit accounts are not eligible for allocation under §303.22,
Allocations to Accounts, and that these accounts are regulated in Subchapters
I and J of Chapter 303. These accounts are not subject to allocation to other
accounts because the water is under contractual sale to a buyer. These additions
to the rules are necessary for the allocation process for water right holders
to work after water-in-transit permits have been issued.
Proposed amendments to §303.22(a) provide that this subsection allowing
allocation does not apply to water-in-transit accounts. Also, the amendments
to subsection (a), relating to allocations of water, provide that allocations
to accounts shall be based on water in the usable storage of Falcon and Amistad
Reservoirs minus the water-in-transit held in storage in these reservoirs.
Water in water-in-transit accounts are deducted from usable storage after
the municipal, domestic, and industrial reserve water is deducted. The amount
of water in the water-in-transit accounts must be deducted from the water
that will be allocated to other accounts because the water in the water-in-transit
accounts is not available for allocation. This water is going to the buyer
of this groundwater. These rules are needed to provide how allocation will
be done with the addition of this new type of permit.
Proposed amendments to §303.22(f)(3) add water-in-transit accounts
to accounts that will have water deducted when the operating reserve is less
than zero acre-feet. Accounts will be deducted by the amount necessary to
provide 48,000 acre-feet for the operating reserve. Once the operating reserve
is back to 75,000 acre-feet, other accounts will be restored to the amount
in the account before the negative allocation, but water-in-transit accounts
will not be restored. This requirement is necessary because the water in water-in-transit
accounts is specific water that has been purchased and that has been added
to the river outside of the normal allocation process. Thus, using water that
is normally in the Rio Grande to replace this additional water could injure
water right holders who are allocated water that is normally in the Rio Grande.
Section 303.23 is proposed to be amended to delete water-in-transit from
the water that can be distributed to water rights accounts in subsection (a).
This subsection is necessary because requiring water for existing water right
holders to be given to water-in-transit accounts would impair the rights of
the existing water right holders. Proposed new subsection (d) provides that
water available to water right holders above Amistad and all Rio Grande tributaries
shall not be distributed to water-in-transit accounts. This section is necessary
because water above Amistad is available to the water right holders in a priority
system.
Proposed new §303.40 provides that Subchapter E, Amendments to and
Sales of Water Rights, does not apply to water-in-transit permits. Amendments
to and sales of water-in-transit permits are governed by Subchapters I and
J of Chapter 303, therefore, this exclusion from §303.40 is necessary.
The proposed amendment to §303.53(b) provides that contracts of sale
relating to water-in-transit contractual sales which are filed with the commission
shall include an aerial photograph or United States Geological Survey topographic
map with the location of the discharge point or points. This language needs
to be added to the section because contracts of sale regarding water-in-transit
permits will need to include photographs or maps of the discharge points,
as well as diversion points, which are required in maps and photographs in
the existing rule. This requirement for water-in-transit permits is necessary
because the Rio Grande Watermaster needs to know where this water is coming
into the river in order to properly administer all the water rights in the
river.
The proposed amendments to §303.55(e) would prohibit buyer's or seller's
water in storage accounts from exceeding their annual authorized amount while
a buyer's or seller's Class A or Class B storage may not exceed 1.41 times
the water right holder's recognized amount in acre-feet. This change is included
in this rule package to clarify to what type of storage the requirement relates.
The proposed amendments to §303.72(a) add "water-in-transit diversion"
and "water-in-transit discharge" to the formula for calculating assessment
rates for water right holders in the Rio Grande Watermaster's Division. Also,
these two terms are defined in this subsection. These changes are necessary
in order to assess water-in-transit permit holders for the watermaster's services.
Proposed new Subchapter I, §§303.74 - 303.90, sets out the requirements
for obtaining a bed and banks permit for water-in-transit. These rules are
necessary to provide the procedural requirements for preparing and filing
an application for water-in-transit with the commission.
Proposed new §303.74, General, provides that Subchapter I is applicable
to water rights permits for water-in-transit. Other rules and orders of the
commission related to water rights are also applicable unless in conflict
with the provisions of Subchapter I.
Proposed new §303.75 sets out the requirements for an application
for a water-in-transit permit. The section specifies specific application
contents, including a description of the water quality of the water to be
discharged, the date of the proposed discharge, an analysis of the losses
that must be calculated, and the maximum amount of water which may be stored
in the reservoirs. The loss calculations will become part of the water-in-transit
permit. The water source, including a hydrological determination regarding
any interaction between surface water and groundwater, is also required because
any pumping of groundwater that is connected to surface water would impact
treaty obligations to Mexico. This rule is necessary to provide what an applicant
must put in an application to obtain a water-in-transit permit.
Proposed new §303.76 relates to forms which will be provided to applicants.
While the forms are not mandatory, the information required by the forms is
mandatory. Requirements for supplemental information are set out.
Proposed new §303.77 describes how to prepare an application and when
the application may be changed, and by whom.
Proposed new §303.78 would provide that the applicant must provide
a name and address, as well as other information, even if acting as an agent
for another. A partnership must designate that it is a partnership and a trustee
must designate that it is a trustee.
Proposed new §303.79 would provide that the applicant must clearly
state the name and location of the underground reservoir which will serve
as the source of the groundwater. This information is necessary for the executive
director to determine the water quality and location of the discharge.
Proposed new §303.80 would provide that the applicant must give the
executive director the total specific amount of water to be discharged and
diverted. This information is necessary for the watermaster to account for
this water in the river and in the reservoir.
Proposed new §303.81 would provide that the application must include
the method and rate of diversion for each diversion point, and would provide
that the applicant provide the location of each discharge and diversion point.
This information is necessary for the watermaster to administer water-in-transit
permits and requires that the applicant provide the location of each discharge
and diversion point.
Proposed new §303.82 contains requirements for who should sign the
application. Requirements for who signs an application for individuals, joint
applications, partnerships, estates, corporations, political subdivisions,
and trustees, are given. These requirements are necessary for the commission
to ensure that signatories to these applications actually represent the applicant.
Proposed new §303.83 requires that the application be sworn. This
requirement is necessary to ensure that the commission bases its permits on
accurate information.
Proposed new §303.84 provides that the applicant provide information
describing how the application addresses a water supply need in a manner that
is consistent with the state water plan or the approved regional plan of the
area. The applicant may also request a waiver. This requirement is necessary
for the commission to comply with TWC, §11.134, which requires the commission
to grant a water right permit only if the application addresses a water supply
need in a manner consistent with the state or regional plan.
Proposed new §303.85 addresses filing fees for these applications.
Subsection (a) would provide that fees are to be submitted with the application
and staff cannot further process an application without the fees. Subsection
(b) sets out the filing, recording, and notices fees. The application fee
is based on the total amount of water to be discharged. Amendments are $100
per right requested to be amended, and recording fees are $1.25 per page of
application. Subsections (b)(3) and (c) set out that the applicant must pay
the cost of any required mailed and published notice. These fees are necessary
to reimburse the state for the expenses of processing an application for a
water-in-transit permit. Subsection (d) sets out a one-time transit fee of
$1.00 per acre-foot of water discharged. This fee is necessary to reimburse
the state for use of the bed and banks of the river.
Under subsection (e), if the fee is over $1,000, the applicant must pay
at least half, and then pay the rest within 180 days of receiving notice that
the application is granted. The permit will be annulled if the fee is not
paid. Subsection (f) provides that the total one-time transit fee shall not
exceed $50,000. Subsection (g) provides that inquiries as to fees should be
made in advance to the executive director. In case of a disagreement between
the applicant and the executive director over the amount of the fee, the application
will be filed "under protest" and the amount will be placed in suspense until
the issue is resolved. Under subsection (h), all fees other than filing and
recording fees will be returned to the applicant if they have not been expended
or if the permit is not granted. The applicant must notify the executive director
of his social security or federal identification number to receive these fees.
These rules are necessary to administer the fee requirements for these permits.
Proposed new §303.86 provides notice requirements for water-in-transit
applications. Subsection (a) requires notice by mail to the persons set out
in subsection (d) and published notice as set out in subsection (c). Subsection
(b) describes the required content of a notice. Subsection (c) requires published
notice in each county in the Rio Grande water division at least 30 days before
the commission or executive director considers the application. Subsection
(d)(1) provides mailed notice must be received by water right holders within
the Rio Grande division 30 days before the commission or the executive director
considers the application. Subsection (d)(2) provides who received mailed
notice. These rules are required to provide notice of an application in compliance
with Texas Water Code, Chapter 11.
Proposed new §303.87 provides notice requirements for hearings. No
further notice, other than the notice of the commission's agenda to consider
the hearing request, of the time and place of the hearing is necessary other
than advising the applicant, executive director, public interest council,
and persons who have notified the commission of their interest in the application.
This rule is required for providing notice of hearings to interested persons.
Proposed new §303.88 would provide requirements for requesting a hearing
on a water rights application. Subsection (b) would provide that Chapter 55
of this title (relating to Requests for Reconsideration and Contested Case
Hearings; Public Comment) would govern hearing requests and commission consideration
of hearing requests.
Proposed new §303.89 requires the commission to conduct public hearings
under the provisions of Chapter 80 of this title (relating to Contested Case
Hearings). Proposed new §303.90 provides that the executive director
may issue a permit if the provisions of Chapter 50 of this title (relating
to Actions on Applications and Other Authorizations) are met. These rules
are necessary to ensure that procedural rules for hearings for water-in-transit
permits are consistent with the procedural rules for hearings for other permits.
Proposed new Subchapter J, §303.91 and §303.92 pertains to the
administration of Rio Grande bed and banks permits for water-in-transit.
Proposed new §303.91(a) provides that the purpose of the subchapter
is to describe the administrative responsibilities of the watermaster regarding
water-in-transit permits. Subsection (b) sets out how the accounts in Amistad
and Falcon Reservoirs are established, and how water-in-transit will be accounted
for in those accounts. Water-in-transit accounts are the first accounts to
be eliminated if there is not storage space left in the reservoir. Water lost
due to storage space limitations will not be restored. These provisions are
necessary to provide how accounting for water-in-transit accounts will be
done to ensure existing water rights are protected.
Proposed new §303.91(c) requires that the watermaster keep records
of all authorized discharges and diversions and advise the operator of those
facts. All discharges and diversions must be metered. Notice to the watermaster
is required for replacements of a permanent facility or any changes in rating
and a change in location of a discharge or diversion point. Subsection (d)
requires that the accounting be consistent with the 1944 Treaty with Mexico.
No water can be credited to water-in-transit accounts unless it has been discharged
to the Rio Grande under a water-in-transit permit and has been credited to
the United States' share of water by the International Boundary and Water
Commission (IBWC). Any accounting must be consistent with any accounting done
by the IBWC. These rules are necessary to ensure that accounting for these
permits will protect existing water rights and comply with the 1944 Treaty.
Proposed new subsection (e) provides that each diverter must obtain a certification
from the watermaster prior to diversion and provides requirements for certifications.
Subsection (f) provides that diverters shall be charged for their diversions
and sets out provisions for this. Subsection (g) requires ownership records
for diversions. Subsection (h) requires certification to be posted and provides
requirements for that posting. Subsection (i) requires diverters to install
and maintain measuring devices. The watermaster must approve the installation
and operation, and the diverter shall bear the costs of these devices. Proposed
new subsection (j) states that each diverter shall divert water only in accordance
with the approved certification. These rules are necessary for the watermaster
to be able to accurately enforce water rights in the Rio Grande.
Proposed new subsection (k) establishes requirements for reports to be
made to the commission. Water right holders are responsible for reporting
use based on their records. Proposed new subsection (l) provides that the
watermaster shall maintain an accurate inventory of the water in Falcon and
Amistad Reservoirs, including water-in-transit and maintain accurate records
and institute necessary procedures to perform this function. Proposed new
subsection (m) provides that the watermaster shall submit monthly reports
to each water right holder showing the status of the account. Water right
holders must tell the watermaster of any errors in the report within 20 days
of distribution of the report. Proposed new subsection (n) requires certification
requests to be submitted in advance to allow for travel time. The watermaster
may waive travel time in cases of excess flow in the river. These rules are
necessary for the water right holders to have accurate information on which
to base their decisions to request water.
Proposed new subsection (o) provides that the watermaster may not authorize
"no charge water" to water-in-transit accounts. This rule is necessary because
water-in-transit permits only apply to private groundwater discharged into
the Rio Grande and by allowing such rights to divert "no charge water" existing
water rights could be affected.
Proposed new §303.92 provides that any action of a watermaster may
be appealed to the executive director by any person. This rule is necessary
to provide a mechanism for a water right holder to obtain review of the watermaster's
action.
Proposed new Subchapter K provides procedures for filing certified copies
of instruments with the watermaster. Proposed new §303.93 sets out what
copies should be filed, when they should be filed, and the fee to be charged.
These rules are proposed to provide procedures to comply with SB 1902 and
HB 2250, new §11.3271(j) of the Water Code.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Nina Chamness, Analyst, Strategic Planning and Grants Management Section,
has determined that, for the first five-year period the proposed rules are
in effect, fiscal implications are anticipated for the agency as a result
of administration or enforcement of the proposed rules. The proposed amendments
address additional duties and responsibilities of the Rio Grande Watermaster
as well as procedures to allow for the storage of water-in-transit in the
Rio Grande system. No fiscal implications are anticipated for local governments
since typically they do not transport water to sell to customers outside their
constituency base. A local government would be subject to the same costs as
other entities holding this type of water right if it decides to apply for
a water-in-transit permit.
The proposed rulemaking seeks to implement provisions of SB 1902 and HB
2250, 78th Legislature, that amended the Texas Water Code and affected the
duties and functions of the Rio Grande Watermaster. The rulemaking proposes
changes to Chapters 295, 297, and 303 of the Texas Administrative Code. The
proposed amendments to Chapters 295 and 297 provide that water-in-transit
permits for the Rio Grande are governed by provisions in Chapter 303 instead
of Chapters 295 and 297.
The proposed rulemaking would implement provisions to: give the Rio Grande
Watermaster the authority to take actions when there are imminent threats
to public health, public safety, and the environment; provide for the permitting
of privately owned groundwater that an owner may wish to sell and transport
(water-in-transit) to a buyer using the Rio Grande River and its reservoirs
as a means of delivery; and maintain, for public use, a central repository
that includes certified copies of instruments the commission requires to be
filed in connection with water rights in the lower, middle, and upper Rio
Grande basins.
The proposed rulemaking would require the Rio Grande Watermaster to modify
the water accounting methods currently in use. New procedures to issue a permit
for this type of water right will have to be developed. It will be necessary
to investigate and verify the increased volume and diversions of water flowing
through the Rio Grande system because of these new permits. Daily monitoring
and evaluation will be needed to compute the direct and indirect losses of
privately owned water put into, and diverted from, the Rio Grande system so
that current existing water rights will not be impacted by this new water
right.
This proposed rulemaking may generate additional fee revenue for the agency.
Revenue generated by application fees under this proposed rulemaking may range
from $100 to $53,000 per application depending on the size and type of the
groundwater source. Revenue from recording fees will also be generated at
$1.25 per page of the application. Revenue from annual assessment fees for
water-in-transit will be determined by the water holder's apportioned share
of fees needed to cover Rio Grande Watermaster operations. This fee, which
varies on an annual basis, could be as much as $45,000 per 100,000 acre-feet
of water-in-transit.
Fees assessed to administer the Watermaster programs are deposited into
the Watermaster Administration Account 158. The amount of fee revenue available
for use by the agency to administer the Watermaster programs is determined
through the legislative appropriations process. Projected revenue collected
in this account is approximately $2.2 million over the 2006/2007 biennium.
Of this amount, the agency is authorized to use $1.7 million in the 2006/2007
biennium. Currently, additional revenue generated by water-in-transit permits
could not be used to cover the cost of implementing the proposed rulemaking.
The agency submitted an exceptional item request in its Legislative Appropriation
Request for Fiscal Years 2006 and 2007 to allow it to use the total amount
of revenue collected in Account 158 to administer the Watermaster programs,
however, this exceptional item request was not approved. The agency will again
submit an exceptional item request in its Legislative Appropriation Request
for Fiscal Years 2008 and 2009 to allow usage of the total amount of revenue
collected.
This proposed rulemaking will have a number of operational impacts for
the Rio Grande Watermaster. The costs of developing and implementing the procedures
needed to account for additions and diversions of water-in-transit, monitor
and investigate water activities on a daily basis, and establish and maintain
a central repository for required documentation of water rights within the
Rio Grande Watermaster division is estimated to be $90,000 per year, roughly
the equivalent of three full-time employees at the level of a Watermaster
Specialist I.
PUBLIC BENEFITS AND COSTS
Ms. Chamness also determined that for each year of the first five years
the proposed rules are in effect, the public benefit anticipated from the
changes seen in the proposed rules will be the possible availability of more
water in a region where water is scarce, greater accessibility to public records
pertaining to water rights in the Rio Grande basins, and increased protection
of public health, public safety, and the environment when situations of imminent
threat arise.
Fiscal implications are anticipated for businesses and individuals who
apply for a water-in-transit permit under this proposed rulemaking. Costs
for obtaining this type of permit will vary depending on the characteristics
of the site and the number of acre-feet of water placed in the system.
Applicants will be required to conduct a hydrological assessment of the
water source, which staff experience indicates could cost between $15,000
to $30,000, depending on the location and geological formation of the groundwater
aquifer. Geological engineering models may be required to complete the evaluation
regarding any groundwater surface water connection. Applicants will also be
required to publish notices in the newspapers of 16 counties of the Rio Grande
Water division that they intend to obtain this type of permit. This cost is
estimated to be between $300 to $500 per newspaper publication. Applicants
will also have to mail a notice to the 1,600 water right account holders in
the Rio Grande Watermaster division costing approximately $600 total. Applicants
will also have to pay an application fee and a user fee for the permit. These
costs could range from $100 to $52,000, depending upon the amount of water
discharged for transit. These fees are based on the amount of water that is
being transported and therefore increases if more water is used. There is
a $50,000 maximum on use fees. Recording fees will be $1.25 per page of the
permit application. Fees for filing copies of liens will be assessed at $16
for the first page and $2.00 for each additional page of the document. If
a water-in-transit right had to be amended, the applicant would have to pay
$100 per amendment. A water-in-transit holder will have to pay an annual assessment
fee that all water right holders in the Rio Grande division pay. This fee
varies from year to year, but a water-in-transit permit holder could pay as
much as $45,000 per each 100,000 acre-feet of water-in-transit, depending
on the annual assessment rate calculated by the watermaster and approved by
the commission to provide for compensation of all watermaster activities multiplied
by the authorized amount of water both discharged into the Rio Grande and
maximum authorized diverted and the intended and authorized use of that water.
Entities with this type of water right will be required to install pumping
and metering equipment. Pumping equipment ranges from an estimated $800 -
$5,000 per unit, and metering equipment will cost about $500 per site.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
No adverse fiscal implications are anticipated for small or micro-businesses
due to the administration and implementation of the proposed rules. Small
and micro-businesses are not expected to apply for a water-in-transit permit.
If a small or micro-business elected to obtain a water-in-transit permit,
it would be subject to the same costs that other entities pay to obtain that
permit.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission has reviewed this proposed rulemaking and determined that
a local employment impact statement is not required because the proposed rules
do not adversely affect a local economy in a material way for the first five
years that the proposed rules are in effect.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the proposed rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225 and determined
that the rulemaking is not subject to §2001.0225 because it does not
meet the definition of a "major environmental rule" as defined in the act.
The intent of the rulemaking concerning terror threats is not to reduce risks
to human health from environmental exposure, but to provide new duties for
the Rio Grande Watermaster relating to actions during terror threats. The
rules relating to terror threats could be considered to protect the environment.
However, these rules do not exceed a standard set by federal law, exceed an
express requirement of state law, or exceed a requirement of a delegation
agreement or contract between the state and an agency of the federal government,
and these rules are not adopted under the general powers of the agency instead
of a specific state law. The rules relating to bed and banks permits are not
for the purpose of protecting the environment or protecting from environmental
exposure, but are to allow the conveyance and storage of groundwater in the
river and to protect existing water rights. The recordkeeping rules are not
for the purpose of protecting the environment or reducing risks from environmental
exposure but are to provide a local public place for documents to be filed.
The commission invites public comment on the draft regulatory impact analysis
determination.
TAKINGS IMPACT ASSESSMENT
The commission evaluated these proposed rules and performed a preliminary
assessment of whether Texas Government Code, Chapter 2007 is applicable. Concerning
actions to be taken by the Rio Grande Watermaster due to terror threats, the
rules are written in response to a real and substantial threat to public health
and safety, are designed to significantly advance the health and safety purpose,
and do not impose a greater burden than is necessary to achieve the health
and safety purpose.
For the bed and banks permits and the recordkeeping requirements of the
rules, none of the exceptions in §2007.003(b) apply to this rulemaking.
The commission further evaluated these proposed rules and performed a preliminary
assessment of whether these proposed rules constitute a takings under Texas
Government Code, Chapter 2007. The specific purpose of these proposed rules
is to allow the commission to issue bed and banks permits for conveyance of
groundwater to be stored in a reservoir, and to provide new duties for the
Rio Grande Watermaster relating to bed and banks permits for conveyance of
groundwater to be stored in a reservoir, recordkeeping, and monitoring water
right activities in the Rio Grande basin. The proposed rules would substantially
advance this stated purpose by providing procedures for each of these duties.
There are no burdens imposed on private real property due to these rules
requiring the Rio Grande Watermaster to issue bed and banks permits and keep
records. The rules on recordkeeping do not impact real property. The new rules
relating to these bed and banks permits in the Rio Grande are specifically
written to prevent any impact on existing water rights in the Rio Grande.
Any impact on landowners' groundwater is not a burden on their property because
under the "Rule of Capture" persons may pump water from their land if they
are not wasting the water or causing subsidence or other damage to other land.
These rules do not affect that law. Additionally, a permittee will not be
allowed to remove all of the water put into the river under the permit. This
limit on how much water can be taken from the river is necessary to protect
water right holders and to comply with the 1944 Treaty, both of which are
required in Texas Water Code, §11.3271. Thus, these new rules do not
constitute a taking under the Texas Government Code.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rules and found that they are neither
identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2)
or (4), nor will they affect any action/authorization identified in Coastal
Coordination Act Implementation Rules, 31 TAC §505.11(a)(6). The purpose
of the rulemaking is to define situations of imminent threat to public health
and safety and the environment, including terrorism response; provide for
the method and procedures by which water-in-transit permits will be issued;
and provide for the methods that the Rio Grande Watermaster will account for
any discharge, delivery, conveyance, storage, diversion, or associated loss
of water conveyed down the bed and banks of the Rio Grande. Additionally,
this rulemaking establishes procedures and fees for the Watermaster to maintain
a central repository for all instruments that the commission requires to be
filed in connection with water rights relating to the water division of the
Rio Grande. None of these activities are identified in the rules. Therefore,
the proposed rules are not subject to the Texas Coastal Management Program.
SUBMITTAL OF COMMENTS
Comments may be submitted to Joyce Spencer, MC 205, Office of Legal Services,
Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087,
or faxed to (512) 239-4808. All comments should reference Rule Project Number
2004-014-295-CE. Comments must be received by 5:00 p.m., May 30, 2006. Copies
of the proposed rules can be obtained from the commission's Web site at
Subchapter A. INTRODUCTORY PROVISIONS
30 TAC §303.1, §303.2
STATUTORY AUTHORITY
The amendments are proposed under amendments to Texas Water Code (TWC), §11.3271,
which provide that the Rio Grande Watermaster's duties include activities
related to situations of imminent threat to public health and the environment,
storing water in a reservoir for release at a later time, water-in-transit
that is being conveyed down the bed and banks of the Rio Grande under a permit
and rules issued by the commission, and maintaining a central repository for
the public that includes certified copies of instruments that the commission
requires to be filed in connection with water rights in the lower, middle,
or upper basin of the Rio Grande and that are subject to a water right. The
proposed amendments are also authorized by TWC, §5.103, which provides
the commission with the authority to adopt rules necessary to carry out its
powers and duties under the TWC, and TWC, §5.013(1), which provides that
the commission has general jurisdiction over water and water rights including
the issuance of water rights permits, water rights adjudication, cancellation
of water rights, and enforcement of water rights.
This proposal implements TWC, §11.3271, and TWC, §5.103.
§303.1.General.
This chapter is
[
§303.2.Definitions.
The following words and terms when used in this chapter shall have
the following meanings.
(1) - (18)
(No change.)
(19)
Treaty--The 1944 water sharing treaty
between the United States and Mexico, and all related amendments and minute
orders adopted by the International Boundary Water Commission.
(20)
[
(21)
[
(22)
[
(A)
the sum of allottee's annual authorized amount of water
minus actual use for the year to date, plus the allottee's contract water
balance; or
(B)
the amount in the allottee's storage account.
(23)
Water-in-transit--Privately owned water,
not including state water, that a person has pumped from an underground reservoir
and that is in transit between the point of discharge into the Rio Grande
and the place or the point of diversion by a person who has contracted with
the owner of the water to purchase the water, and that may be stored in a
reservoir for later use.
(24)
[
(A)
Class A water right--A water right in the Lower or Middle
Rio Grande Basin designated as a Class A right and held under a certificate
of adjudication, granted in the Adjudication of the Lower and Middle Rio Grande
River in
State v. Hidalgo County Water Control &
Improv. Dist. No. 18
[
(B)
Class B water right--A water right in the Lower or Middle
Rio Grande Basin designated as a Class B right and held under a certificate
of adjudication, granted in the Adjudication of the Lower and Middle Rio Grande
River in
State v. Hidalgo County Water Control &
Improv. Dist. No. 18
[
(25)
[
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 14, 2006.
TRD-200602171
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Earliest possible date of adoption: May 28, 2006
For further information, please call: (512) 239-5017
30 TAC §303.18
STATUTORY AUTHORITY
The new section is proposed under amendments to Texas Water Code, TWC, §11.3271,
which provide that the Rio Grande Watermaster's duties include activities
related to situations of imminent threat to public health and the environment,
storing water in a reservoir for release at a later time, water-in-transit
that is being conveyed down the bed and banks of the Rio Grande under a permit
and rules issued by the commission, and maintaining a central repository for
the public that includes certified copies of instruments that the commission
requires to be filed in connection with water rights in the lower, middle,
or upper basin of the Rio Grande and that are subject to a water right. The
proposed new section is also authorized by TWC, §5.103, which provides
the commission with the authority to adopt rules necessary to carry out its
powers and duties under the TWC, and TWC, §5.013(1), which provides that
the commission has general jurisdiction over water and water rights including
the issuance of water rights permits, water rights adjudication, cancellation
of water rights, and enforcement of water rights.
This proposal implements TWC, §11.3271, and TWC, §5.103.
§303.18.Threats to Public Health and Safety and the Environment.
(a)
The watermaster shall implement the procedures adopted
by the agency during times of threats to public health and safety and the
environment related to the waters of the Rio Grande below Fort Quitman, Texas.
(b)
The watermaster shall report activities that pose a threat
to public health, safety, and the environment regarding waters of the Rio
Grande under the watermaster's jurisdiction as required by the agency's procedures
regarding homeland security.
(c)
The watermaster shall gather and distribute information
from and to the Rio Grande water users, and assist water users in efforts
to recover from an emergency.
(d)
The watermaster shall require water users to immediately
cease any and all diversions of water during emergency periods when the watermaster
declares that continued diversion and use of water would pose a hazard to
public health and safety and the environment.
(e)
The watermaster shall maintain records of water users to
enable the watermaster to provide notification of a threat to the water users
in the watermaster's division.
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 14, 2006.
TRD-200602172
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Earliest possible date of adoption: May 28, 2006
For further information, please call: (512) 239-5017
30 TAC §§303.21 - 303.23
STATUTORY AUTHORITY
The amendments are proposed under amendments to Texas Water Code, TWC, §11.3271,
which provide that the Rio Grande Watermaster's duties include activities
related to situations of imminent threat to public health and the environment,
storing water in a reservoir for release at a later time, water-in-transit
that is being conveyed down the bed and banks of the Rio Grande under a permit
and rules issued by the commission, and maintaining a central repository for
the public that includes certified copies of instruments that the commission
requires to be filed in connection with water rights in the lower, middle,
or upper basin of the Rio Grande and that are subject to a water right. The
proposed amendments are also authorized by TWC, §5.103, which provides
the commission with the authority to adopt rules necessary to carry out its
powers and duties under the TWC, and TWC, §5.013(1), which provides that
the commission has general jurisdiction over water and water rights including
the issuance of water rights permits, water rights adjudication, cancellation
of water rights, and enforcement of water rights.
This proposal implements TWC, §11.3271, and TWC, §5.103.
§303.21. Amistad/Falcon Reservoirs Accounts [
(a)
(No change.)
(b)
When there is adequate water to do so, the watermaster
shall maintain the following accounts:
(1)
(No change.)
(2)
an operating reserve of 75,000 acre-feet; [
(3)
(No change.)
(c)
(No change.)
(d)
Water-in-transit accounts are not eligible
for an allocation under §303.22 of this title (relating to Allocations
to Accounts) and are regulated under Subchapter I of this chapter (relating
to Rio Grande Bed and Banks Permits for Water-in-Transit) and Subchapter J
of this chapter (relating to Administration of Rio Grande Bed and Banks Permits
for Water-in-Transit).
§303.22.Allocations to Accounts.
(a)
Allocations
to Middle and Lower Rio Grande accounts,
which do not include water-in-transit accounts,
shall be based on water
in the usable storage of Falcon and Amistad Reservoirs
minus the water-in-transit
held in storage at Falcon and Amistad Reservoirs
. Such storage shall
be computed as the total storage in Amistad and Falcon Reservoirs as reported
by the International Boundary and Water Commission on the last Saturday of
each month, less
the water-in-transit and
the amount of water in
dead storage, which is water behind the dams that cannot be released due to
hydrologic restrictions. To determine the amount of water to be allocated
to the various accounts, computations shall be made in the following sequence:
(1) - (3)
(No change.)
(4)
from the remaining storage, deduct the
total amount of water held in storage from water-in-transit.
[
(b) - (e)
(No change.)
(f)
If the amount of usable water is insufficient to carry
out all the steps specified in subsections (a) and (b) of this section, the
computations will be made in the specified sequence, with the following adjustments.
(1) - (2)
(No change.)
(3)
If the balance available for the operating reserve is less
than 75,000 acre-feet, but greater than zero acre-feet, then that amount will
be the amount allocated to the operating reserve. If the operating reserve
is less than zero acre-feet, the watermaster will deduct from the Class A
,
[
(g) - (h)
(No change.)
§303.23.Distribution of Available Waters--Upper Rio Grande and All Rio Grande Tributaries.
(a)
Distribution of waters in the Upper Rio Grande and all
Rio Grande tributaries shall be based upon the amount of water authorized
per annum and the priority date of the water right. Water rights holders in
the Upper Rio Grande and all Rio Grande tributaries are entitled to waters
flowing in these watercourses
excluding water-in-transit,
which
can be beneficially used and which are used in accordance with §303.11
of this title (relating to Records of Diversions--General) and §303.13
of this title (relating to Records--Upper Rio Grande and All Rio Grande Tributaries).
All waters
excluding water-in-transit
which cannot be so used shall
be available to the Lower and Middle Rio Grande system.
(b) - (c)
(No change.)
(d)
Distribution of available waters from the
Rio Grande above Amistad and all Rio Grande tributaries shall not be eligible
for distribution or use to water-in-transit accounts.
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 14, 2006.
TRD-200602173
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Earliest possible date of adoption: May 28, 2006
For further information, please call: (512) 239-5017
30 TAC §303.40
STATUTORY AUTHORITY
The new section is proposed under amendments to Texas Water Code, TWC, §11.3271,
which provide that the Rio Grande Watermaster's duties include activities
related to situations of imminent threat to public health and the environment,
storing water in a reservoir for release at a later time, water-in-transit
that is being conveyed down the bed and banks of the Rio Grande under a permit
and rules issued by the commission, and maintaining a central repository for
the public that includes certified copies of instruments that the commission
requires to be filed in connection with water rights in the lower, middle,
or upper basin of the Rio Grande and that are subject to a water right. The
proposed new section is also authorized by TWC, §5.103, which provides
the commission with the authority to adopt rules necessary to carry out its
powers and duties under the TWC, and TWC, §5.013(1), which provides that
the commission has general jurisdiction over water and water rights including
the issuance of water rights permits, water rights adjudication, cancellation
of water rights, and enforcement of water rights.
This proposal implements TWC, §11.3271, and TWC, §5.103.
§303.40.Applicability.
This subchapter does not apply to water-in-transit permits. These permits
are regulated under Subchapter I of this chapter (relating to Rio Grande Bed
and Banks Permits for Water-in-Transit) and Subchapter J of this chapter (relating
to Administration of Rio Grande Bed and Banks Permits for Water-in-Transit).
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 14, 2006.
TRD-200602174
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Earliest possible date of adoption: May 28, 2006
For further information, please call: (512) 239-5017
30 TAC §303.53, §303.55
STATUTORY AUTHORITY
The amendments are proposed under amendments to Texas Water Code, TWC, §11.3271,
which provide that the Rio Grande Watermaster's duties include activities
related to situations of imminent threat to public health and the environment,
storing water in a reservoir for release at a later time, water-in-transit
that is being conveyed down the bed and banks of the Rio Grande under a permit
and rules issued by the commission, and maintaining a central repository for
the public that includes certified copies of instruments that the commission
requires to be filed in connection with water rights in the lower, middle,
or upper basin of the Rio Grande and that are subject to a water right. The
proposed amendments are also authorized by TWC, §5.103, which provides
the commission with the authority to adopt rules necessary to carry out its
powers and duties under the TWC, and TWC, §5.013(1), which provides that
the commission has general jurisdiction over water and water rights including
the issuance of water rights permits, water rights adjudication, cancellation
of water rights, and enforcement of water rights.
This proposal implements TWC, §11.3271, and TWC, §5.103.
§303.53.Documents Needed To File.
(a)
(No change.)
(b)
The contract will be accompanied by an aerial photograph
or United States Geological Survey topographic map with the location of diversion
points and areas to be irrigated described thereon.
In water-in-transit
contractual sales, the contract must also include an aerial photograph or
United States Geological Survey topographic map with the location of the discharge
point(s).
(c)
(No change.)
§303.55.Accounting for Contract Sale Water.
(a) - (d)
(No change.)
(e)
At no time will buyer's or seller's
Class A or Class
B
[
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 14, 2006.
TRD-200602175
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Earliest possible date of adoption: May 28, 2006
For further information, please call: (512) 239-5017
30 TAC §303.72
STATUTORY AUTHORITY
The amendment is proposed under amendments to Texas Water Code, TWC, §11.3271,
which provide that the Rio Grande Watermaster's duties include activities
related to situations of imminent threat to public health and the environment,
storing water in a reservoir for release at a later time, water-in-transit
that is being conveyed down the bed, and banks of the Rio Grande under a permit
and rules issued by the commission, and maintaining a central repository for
the public that includes certified copies of instruments that the commission
requires to be filed in connection with water rights in the lower, middle,
or upper basin of the Rio Grande and that are subject to a water right. The
proposed amendments are also authorized by TWC, §5.103, which provides
the commission with the authority to adopt rules necessary to carry out its
powers and duties under the TWC, and TWC, §5.013(1), which provides that
the commission has general jurisdiction over water and water rights including
the issuance of water rights permits, water rights adjudication, cancellation
of water rights, and enforcement of water rights.
This proposal implements TWC, §11.3271, and TWC, §5.103.
§303.72.Determination of Assessment Rates.
(a)
After a commission order is issued approving the assessment
income needed for the next fiscal year, the executive director shall calculate
assessment rates for water use and storage based on the following formula:
[
(b) - (c) (No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on April 14, 2006.
TRD-200602176
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Earliest possible date of adoption: May 28, 2006
For further information, please call: (512) 239-5017
30 TAC §§303.74 - 303.90
STATUTORY AUTHORITY
The new sections are proposed under amendments to Texas Water Code, TWC, §11.3271,
which provide that the Rio Grande Watermaster's duties include activities
related to situations of imminent threat to public health and the environment,
storing water in a reservoir for release at a later time, water-in-transit
that is being conveyed down the bed and banks of the Rio Grande under a permit
and rules issued by the commission, and maintaining a central repository for
the public that includes certified copies of instruments that the commission
requires to be filed in connection with water rights in the lower, middle,
or upper basin of the Rio Grande and that are subject to a water right. The
proposed new sections are also authorized by TWC, §5.103, which provides
the commission with the authority to adopt rules necessary to carry out its
powers and duties under the TWC, and TWC, §5.013(1), which provides that
the commission has general jurisdiction over water and water rights including
the issuance of water rights permits, water rights adjudication, cancellation
of water rights, and enforcement of water rights.
This proposal implements TWC, §11.3271, and TWC, §5.103.
§303.74.General.
This subchapter is applicable to water rights permits for water-in-transit
in the Rio Grande below Fort Quitman, Texas. All other rules, regulations,
or orders promulgated or issued by the commission regarding water rights are
also applicable to water-in-transit water rights unless in conflict with the
provisions of this subchapter, in which event this subchapter shall govern.
§303.75.Requirements for an Application to Convey Water-in-Transit in the Bed and Banks of the Rio Grande.
(a)
The purpose of this section is to provide the application
content requirements for a bed and banks permit authorization for water-in-transit
in the Rio Grande under Texas Water Code, §11.3271.
(b)
A person who intends to discharge private water that originates
from an underground reservoir into the Rio Grande and wishes to divert and
use the discharged water must submit an application to the commission containing
the following information:
(1)
the name, mailing address, and telephone number of the
applicant;
(2)
the location(s) of the proposed groundwater reservoir from
which the water will originate identified on a United States Geological Survey
(USGS) 7.5 minute topographical map(s);
(3)
the location(s) of the point of the proposed discharge(s)
into the Rio Grande and diversion(s) as identified on a USGS 7.5 minute topographical
map(s);
(4)
the appropriate ownership or lease documents evidencing
applicant's authority to develop the proposed project;
(5)
the source, including a hydrological determination regarding
any interaction between the groundwater source and state waters, amount, and
rates of the proposed discharge and diversion;
(6)
a description of the quality of the water proposed to be
discharged and a description of the Rio Grande water quality at the proposed
discharge point with documentation that the discharge will not degrade the
Rio Grande;
(7)
the date of the proposed discharge of the groundwater into
the Rio Grande;
(8)
an analysis of the amount of water that will be lost under
differing flow regimes to transportation, evaporation, seepage, channel, treaty
accounting, or other associated losses for each reach of the Rio Grande from
the point of discharge to Amistad or Falcon Reservoir, including losses associated
with storage in these reservoirs, and carriage losses from these reservoirs
to the point of diversion. The losses shall be quantified for each reach of
the Rio Grande below Amistad Reservoir as listed in §303.2 of this title
(relating to Definitions) and for the appropriate reaches above Amistad Reservoir.
(9)
the maximum amount of water which may be stored in Amistad
and/or Falcon Reservoir;
(10)
any other information the executive director may need
to complete an analysis of the application.
(c)
The method and calculation of any losses including, but
not limited to, carriage, treaty accounting completed by the International
Boundary and Water Commission (IBWC), storage, and that are associated with
any permit issued under this section shall be quantified and made a provision
of the permit and shall be subject to the review and approval of the executive
director. The method of loss calculation shall be consistent with procedures
used by the IBWC.
§303.76.Use of Forms.
The executive director will furnish, without charge, forms and instructions
for preparing an application. The use of such forms is not mandatory, but
the information required by such forms must be provided. Supplements may be
attached if there is not sufficient space on the printed form. If supplements
are used, the data and information entered on the form must be separated into
paragraphs numbered to correspond with those on the printed form. A supplement
explaining the project and planned operation may be attached to an application.
§303.77.Preparation of Application.
(a)
All applications must be typewritten or printed legibly
in ink. Illegible applications will be returned to the applicant.
(b)
Applicants will be notified if additional information is
needed to process an application.
(c)
Upon express written or verbal approval of the applicant
or the applicant's agent, any employee of the commission may make non-substantive
changes in any documents submitted by the applicant.
(d)
Substantive changes in an application may be made only
by the applicant or the applicant's agent who submitted the application and
only in the form of a written, notarized amendment to the application signed
by the proper person; provided, however, that no substantive changes may be
made after an application has been filed with the chief clerk by the executive
director.
(e)
The executive director shall file the application with
the chief clerk once the application has been determined to be administratively
complete.
§303.78.Name and Address.
(a)
Each applicant must provide its full name, post-office
address, telephone number, and social security or federal identification number.
(b)
If the applicant is a partnership, it must be designated
by the firm name followed by the words "a partnership."
(c)
If the applicant is acting as trustee for another, it must
be designated by the trustee's name followed by the word "trustee."
(d)
If one other than the named applicant executes the application,
the name, position, post-office address, and telephone number of the person
executing the application must be given.
§303.79.Source of Supply.
The applicant must clearly state the name and location of the underground
reservoir from which the water will originate. If the source has no name,
it may be designated as "an unnamed reservoir."
§303.80.Amount of Discharge and Diversion.
The total amount of water to be discharged and diverted must be stated
in cubic feet per second and acre-feet annually.
§303.81.Rate and Method of Diversion.
The application must:
(1)
include the maximum rate of diversion for each diversion
point in gallons per minute or cubic feet per second;
(2)
describe the method to be used as portable pump, stationary
pump, or gravity flow;
(3)
include the location of point(s) of discharge and diversion.
These locations must also be shown on the application maps with reference
to a corner of an original land survey and/or other survey point of record,
giving both course and distance; and
(4)
include the distance and direction from the nearest county
seat or town.
§303.82.Signature of Applicant.
The application must be signed as follows.
(1)
If the applicant is an individual, the application must
be signed by the applicant or the applicant's duly appointed agent. An agent
must provide written evidence with the application of his or her authority
to represent the applicant. If the applicant is an individual doing business
under an assumed name, the applicant must attach to the application an assumed
name certificate from the county clerk of the county in which the principal
place of business is located.
(2)
A joint application must be signed by each applicant or
each applicant's duly authorized agent, with written evidence of such agency
to be submitted with the application. If land is owned by both husband and
wife, each must sign the application. Joint applicants must select one among
them to act for and represent the others in pursuing the application with
the commission, with written evidence of such representation to be submitted
with the application.
(3)
If the application is by a partnership, the application
must be signed by one of the general partners. If the applicant is a partnership
doing business under an assumed name, it must attach to the application an
assumed name certificate from the county clerk of the county in which the
principal place of business is located.
(4)
If the applicant is an estate or guardianship, the application
must be signed by the duly appointed guardian or representative of the estate,
and a current copy of the letters issued by the court must be attached to
the application.
(5)
If the applicant is a corporation, public district, county,
municipality, or other corporate entity, the application must be signed by
a duly authorized official. Written evidence in the form of by-laws, charters,
or resolutions which specify the authority of the official to take such action
must be submitted. A corporation may file a corporate affidavit as evidence
of the official's authority to sign.
(6)
If the applicant is acting as trustee for another, the
applicant must sign as trustee, and in the application must disclose the nature
of the trust agreement and give the name and current address of each trust
beneficiary.
§303.83.Sworn Application Required.
Each applicant must subscribe and swear to the application before any
person entitled to administer oaths, who must also sign his or her name and
affix his or her seal of office to the application.
§303.84.Consistency With State And Regional Water Plans.
An application must contain information describing how it addresses
a water supply need in a manner that is consistent with the state water plan
or the applicable approved regional water plan for any area in which the proposed
appropriation is located or, in the alternative, describe conditions that
warrant a waiver of this requirement.
§303.85.Fees for Filing an Application.
(a)
Fees. Statutory fees must accompany an application in order
for it to be considered by the commission. The executive director's staff
are expressly prohibited from processing any application unless the proper
fees are tendered. The executive director shall charge and collect for the
benefit of the state the applicable fees, and it shall be his duty to make
a record at the time same becomes due and to render an account to the party
charged. Each fee is a separate charge and is in addition to other fees, unless
provided otherwise.
(b)
Filing, recording, and notice fees. The following fees
must be submitted with any application for a water-in-transit permit or any
application for an amendment to a water-in-transit permit.
(1)
Application filing fees are established as follows.
(A)
Fees for a water-in-transit permit application must be
based upon the total amount of water requested to be discharged for transit
as follows:
(i)
less than 100 acre-feet - $100;
(ii)
100 - 5,000 acre-feet - $250;
(iii)
5,001 - 10,000 acre-feet - $500;
(iv)
10,001 - 250,000 acre-feet - $1,000; and
(v)
greater than 250,000 acre-feet - $2,000.
(B)
Fees to amend a water-in-transit right are $100 per right
requested to be amended.
(2)
Recording fees are $1.25 per page of the application.
(3)
The applicant must pay the total cost of mailing notice
to persons in the Rio Grande water division. The executive director will advise
the applicant of the number of persons to whom notice is mailed and the total
mailing cost. A water-in-transit permit or amendment will require notice to
all owners of water rights within the Rio Grande water division of any such
application.
(c)
Publication. The cost of any required publication must
be paid by the applicant directly to the newspaper involved. Publication is
required in newspapers of general circulation throughout the basin.
(d)
One-time transit fees. A use fee of $1.00 per acre-foot
of water discharged for transit shall be charged.
(e)
Payment of fees exceeding $1,000. If the total fee for
a permit exceeds $1,000, the applicant must pay at least one-half of the use
fee when the application is filed, and one-half within 180 days after notice
is mailed to the applicant that the permit is granted. If the applicant does
not pay all of the amount owed before beginning to use state water under the
permit, the permit is annulled and reverts to the status of a pending, filed
application requiring notice, the payment of notice fees, and the balance
of the use fees.
(f)
Maximum fees. The one-time transit use fee shall not exceed
$50,000.
(g)
Inquiries as to fees. Any inquiries as to fees must be
made in advance to the executive director. The applicant is charged with the
duty of tendering correct fees according to law. In case of disagreement between
the applicant and the executive director over the proper amount of the fees
required, the application will be filed "under protest" and the fees paid
by the applicant will be placed in suspense until the issue is resolved.
(h)
Return of fees.
(1)
Other than the filing and recording fees required by statute,
all fees paid pertaining to an application for a water-in-transit permit which
have not been expended in the processing of the application will be placed
in suspense until action is taken by the commission upon the application.
(2)
If the permit is not granted, unexpended fees will be returned
to the applicant.
(3)
If the application is granted in part, excess use fees
will be returned to the applicant.
(4)
No fees will be returned to any applicant who has failed
to notify the executive director of the applicant's social security or federal
identification number.
§303.86.Notice Requirements for Water-in-Transit Applications.
(a)
At the time an application for a water-in-transit permit
has been filed by the executive director with the chief clerk, the commission
shall give notice by mail to those persons specified in subsection (d) of
this section. At such time, the chief clerk shall furnish a copy of the notice
to the applicant, and the applicant must publish notice, pursuant to subsection
(c) of this section.
(b)
A notice of application and commission action must:
(1)
include the name and address of the applicant;
(2)
include the date on which the application was received
by the commission;
(3)
include the date the application was filed by the executive
director with the chief clerk;
(4)
include that the executive director has determined that
the application is administratively complete;
(5)
include the application number;
(6)
include the type of permit the applicant is seeking;
(7)
include the purpose and extent of the proposed transfer
of water;
(8)
identify the source of supply, place of discharge, and
the place where the water is to be diverted;
(9)
specify the time and location where the commission will
consider the application;
(10)
identify all potentially affected groundwater districts;
(11)
give any additional information the executive director
considers necessary.
(c)
The applicant must publish the notice in newspapers of
general circulation in each county within the Rio Grande water division. The
date of publication must be on or before the date of publication directed
by the chief clerk.
(d)
Notice by mail.
(1)
The commission shall mail the notice by first-class mail,
postage prepaid, to persons listed in this section after the executive director
has declared the application administratively complete.
(2)
For an application for a water-in-transit permit pursuant
to Texas Water Code, §11.3271 or for an amendment to a Texas Water Code, §11.3271
permit, notice must be mailed to:
(A)
each claimant or appropriator of water within the Rio Grande
water division below Fort Quitman, Texas, the record of whose claim or appropriation
has been filed with the commission or its predecessor agencies;
(B)
all groundwater districts potentially impacted by the application;
and
(C)
other persons who in the judgment of the commission might
be affected.
§303.87.Notice of Hearing.
A hearing on an application may be held without the necessity of issuing
further notice other than advising the applicant, executive director, public
interest counsel, and all persons who have in writing notified the commission
of their interest in the application of the time and place where the hearing
is to convene. The chief clerk will mail such notice to these persons not
less than 30 days before the date of the hearing.
§303.88.Request for Public Hearing.
A request for public hearing on an application for a water-in-transit
permit or amendment is governed by Chapter 55, Subchapter G of this title
(relating to Requests for Contested Case Hearing and Public Comment on Certain
Applications).
§303.89.Public Hearing.
The commission may conduct a public hearing as provided by in Chapter
80 of this title (relating to Contested Case Hearings).
§303.90.Action on Application Without Public Hearing.
If no hearing requests are filed as provided for in §303.87 of
this title (relating to Notice of Hearing) and §303.88 of this title
(relating to Request for Public Hearing) the executive director may issue
the permit if the requirements of Chapter 50 of this title (relating to Action
on Applications and Other Authorizations) are met.
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 14, 2006.
TRD-200602177
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Earliest possible date of adoption: May 28, 2006
For further information, please call: (512) 239-5017
:
]
(1)
]
urban airshed modeling demonstrates that one
ozone precursor may be substituted for another, subject to executive director
and United States Environmental Protection Agency (EPA) approval
.
[
; or
]
(2)
the facility generating the emission reductions
is located outside the United States; and
]
(A)
the substitution:
]
(i)
results in a greater health benefit and
is of equal or greater benefit to the overall air quality of the area, as
determined by the executive director;
]
(ii)
is from the reduction of an air contaminant
for which the area has been designated as nonattainment or which leads to
the formation of a criteria pollutant for which an area has been designated
as nonattainment; and
]
(iii)
is for any air contaminant for which
the area has been designated as nonattainment or leads to the formation of
a criteria pollutant for which the area has been designated as nonattainment;
and
]
(B)
the user:
]
(i)
demonstrates that the use of the reduction
does not cause localized health impacts, as determined by the executive director;
]
(ii)
submits all supporting information for
calculations and modeling, and any additional information requested by the
executive director; and
]
(iii)
is located within 100 kilometers of
the Texas - Mexico border.
]
after a proposed disapproval of the protocol
by the EPA in the
Federal Register
].
paragraph (3) of this subsection
], only emission
reductions generated in nonattainment areas can be certified. An emission
credit must be used in the nonattainment area in which it is generated unless
the user has obtained prior written approval of the executive director and
the EPA; and[
:
]
; or
]
(3)
a facility is using emission reductions
generated outside the United States that have been determined by the executive
director to be real, permanent, enforceable, quantifiable, and surplus to
any applicable international, federal, state, or local law and the result
would provide a greater health benefit to the area as determined by the executive
director; and the facility:
]
(A)
demonstrates that the use of the reduction
does not cause localized health impacts, as determined by the executive director;
]
(B)
submits all supporting information for
calculations and modeling, and any additional information requested by the
executive director; and
]
(C)
is located within 100 kilometers of the
Texas - Mexico border.
]
2.
EMISSIONS BANKING AND TRADING ALLOWANCES
4.
DISCRETE EMISSION CREDIT BANKING AND TRADING
:
]
(1)
]
urban airshed modeling demonstrates that
one may be substituted for another subject to approval by the executive director
and the
United States Environmental Protection Agency (EPA).
[
EPA; or
]
(2)
the facility generating the emission reductions
is located outside the United States and:
]
(A)
the substitution:
]
(i)
results in a greater health benefit and
is of equal or greater benefit to the overall air quality of the area, as
determined by the executive director;
]
(ii)
is from the reduction of a criteria pollutant
for which the area has been designated as nonattainment or which leads to
the formation of a criteria pollutant for which an area has been designated
as nonattainment; and
]
(iii)
is for any criteria pollutant for which
the area has been designated as nonattainment or leads to the formation of
a criteria pollutant for which the area has been designated as nonattainment;
and
]
(B)
the user:
]
(i)
demonstrates that the use of the reduction
does not cause localized health impacts, as determined by the executive director;
]
(ii)
submits all supporting information for
calculations and modeling, and any additional information requested by the
executive director; and
]
(iii)
is located within 100 kilometers of
the Texas - Mexico border.
]
web
] site;
after a proposed disapproval of the protocol by the EPA in the
Federal Register
].
paragraphs (7)
and (8) of this subsection
], only emission reductions generated in the
State of Texas may be creditable and used in the state with the following
limitations.
(8)
A facility may use discrete emission reductions
generated outside the United States provided that the emission reductions
are quantifiable, real, and surplus to any applicable international, federal,
state, or local law and the result would provide a greater health benefit
to the area as determined by the executive director. The applicant must:
]
(A)
demonstrate that the use of the reduction
does not cause localized health impacts, as determined by the executive director;
]
(B)
submit all supporting information for
calculations and modeling, and any additional information requested by the
executive director; and
]
(C)
be located within 100 kilometers of the
Texas - Mexico border.
]
FCAA
], and the
Texas Clean Air Act
[
TCAA
], as well as regulations promulgated thereunder. A discrete emission
credit does not constitute a property right. Nothing in this division should
be construed to limit the authority of the commission or the EPA to terminate
or limit such authorization.
(A)
the permanent shutdown of a facility that
causes a loss of capability to produce emissions;
]
(B)
] the installation and operation
of pollution control equipment that reduces emissions below the level required
of the facility; or
(C)
] a change in the manufacturing
process that reduces emissions below the level required of the facility.
temporary
shutdown
] or permanent curtailment of an activity at a facility;
§106.261(3) or (4) or §106.262(3)
] of this title (relating to Facilities (Emission Limitations)[
; and Facilities (Emission and Distance Limitations)
]) except as approved
by the executive director. This paragraph does not apply to limit the use
of discrete emission reduction credits (DERC) or mobile discrete emission
reduction credits in lieu of allowances under §101.356(h) of this title;
Chapter 295.
WATER RIGHTS, PROCEDURAL
Chapter 297.
WATER RIGHTS, SUBSTANTIVE
Chapter 303.
OPERATION OF THE RIO GRANDE
These sections are
] applicable
to water rights in the Rio Grande Basin below Fort Quitman, and water rights
in that portion of the Nueces-Rio Grande Coastal Basin in Starr, Hidalgo,
Willacy
,
and Cameron Counties whose source of water is the Rio
Grande, excluding the Pecos and Devils watersheds. All other rules, regulations,
or orders promulgated or issued by the commission
relating to water rights
are also applicable to these water rights unless
expressly stated
otherwise or
in conflict with the provisions of this chapter, in which
event this chapter shall govern.
(19)
] Tributary diverter--A water
right holder, an agent, or an exempt domestic and livestock user on the Rio
Grande below Fort Quitman and above Amistad Reservoir or on a tributary of
the Rio Grande with no right to call for releases from Amistad or Falcon Reservoirs.
(20)
] Upper Rio Grande--That portion
of the Rio Grande Basin, including tributaries, in Texas from Amistad dam
upstream to Fort Quitman, excluding the Pecos and Devils watersheds.
(21)
] Usable balance--The quantity
of water in acre-feet an allottee has available for use, and is based upon
whichever is less:
(22)
] Water right--A right acquired
under the laws of the state to impound, divert, and/or use water.
State v.
Hidalgo Co. Water Con. & Irr. Dist. No. Eighteen
], 443 S.W.2d
728 (Tex. App. - Corpus Christi 1969
)
,
writ ref'd n.r.e.
[
writ ref'd n.r.e.)
], or issued
by the commission. If converted to a domestic, municipal, and industrial (DMI)
water right, a Class A water right is converted to 50% of the existing water
right.
State v.
Hidalgo Co. Water Con. & Irr. Dist. No. Eighteen
], 443 S.W.2d
728 (Tex. App. - Corpus Christi 1969
)
,
writ ref'd n.r.e.
[
writ ref'd n.r.e.)
], or issued
by the commission. If converted to a DMI water right, a Class B water right
is converted to 40% of the existing water right.
(23)
] Water right holder--One
who owns a water right.
Subchapter B. WATERMASTER--REGULATORY FUNCTIONS
Subchapter C. ALLOCATION AND DISTRIBUTION OF WATERS Accounts--Amistad/Falcon Reservoirs ].
and
]
(4)
after the deduction of the operating reserve,
the remaining water will be allocated to the Class A and Class B accounts.
]
and
] Class B
, and water-in-transit
accounts,
via negative allocations, the amount necessary to provide 48,000 acre-feet
for the operating reserve account. A negative allocation will be made on a
pro rata basis, from all Class A
,
[
and
] Class B
, and water-in-transit
accounts containing water at the time, based
on the amount of water in such accounts. The watermaster will keep accurate
records of the negative allocations affecting each Class A
,
[
and
] Class B
, and water-in-transit
account. When the operating
reserve has been restored to 48,000 acre-feet, negative allocations will cease.
When the operating reserve has been restored to 75,000 acre-feet, and sufficient
water is available, all accounts
(excluding water-in-transit accounts)
from which water has been deducted will be restored to the amount of
water in each account prior to the negative allocation period and any new
allotments will be made in accordance with subsections (a) and (b) of this
section.
Subchapter E. AMENDMENTS TO AND SALES OF WATER RIGHTS
Subchapter F. CONTRACTUAL SALES
irrigation
] storage [
account
] exceed 1.41 times
the water right holder's recognized amount in acre-feet.
Subchapter H. FINANCING RIO GRANDE WATERMASTER OPERATIONFigure: 30 TAC §303.72(a)]
Subchapter I. RIO GRANDE BED AND BANKS PERMITS FOR WATER-IN-TRANSIT
Subchapter J. ADMINISTRATION OF RIO GRANDE BED AND BANKS PERMITS FOR WATER-IN-TRANSIT