31 TAC §§357.3 - 357.5, 357.7, 357.12, 357.15
The Texas Water Development Board (board) proposes amendments
to 31 TAC §§357.3 - 357.5, 357.7, 357.12, and 357.15, concerning
Regional Water Planning Guidelines. These amendments are proposed in order
to conform to the statutory changes of House Bill 1763, 79th Legislature,
Regular Session (2005) and House Bill 1378, 78th Legislature, Regular Session
(2003), and pursuant to the four-year rule review requirement of Texas Government
Code §2001.039.
The board proposes an amendment to §357.3(b) to correct the reference
to the Texas Commission on Environmental Quality. The rule still refers to
the Commission as the Texas Natural Resource Conservation Commission, instead
of its correct name, the Texas Commission on Environmental Quality.
The board proposes amending §357.4(h) to correct the name for the
Texas Commission on Environmental Quality.
The board proposes amending §357.5(d) and (e) to correct the name
for the Texas Commission on Environmental Quality. The board also proposes
amending §357.5(k)(1)(D) to replace the word "certified" with "approved."
The board proposes this because House Bill 1763 changed the groundwater management
plan certification process to an "approval" process. The board merely proposes
to correct the term to conform to House Bill 1763.
The board proposes amending §357.7(a)(3) and (7) to correct the name
for the Texas Commission on Environmental Quality.
The board proposes amending §357.12(a)(5)(C) - (E) to correct the
name for the Texas Commission on Environmental Quality. The board also proposes
amending §357.12(a)(6) to change public comment period for initially
prepared plans and regional water plan amendments from 30 days to 60 days.
The board proposes this in order to resolve a conflict that exists with §357.11(b)(3),
which currently requires public comments be accepted until 60 days after the
public hearing. The proposed amendment will make these two provisions consistent.
The board also proposes adding §357.12(e) to conform to House Bill 1378,
78th Legislature, Regular Session (2003). House Bill 1378 amended §16.053,
Water Code, to require regional water planning groups to provide the Texas
Water Advisory Council with a copy of the groups' regional water plans upon
request. The board merely proposes to add this requirement to §357.12.
The board proposes to amend §357.15(a) to substitute the word "certified"
with "approved" to reflect the change House Bill 1763 made to the groundwater
management plan certification process. The board also proposes to change "regional
water plan" to "state water plan" because House Bill 1763 amended §16.053(p),
Water Code, to change the conflict analysis between groundwater management
plans and regional water plans to be between groundwater management plans
and the state water plan. The board proposes amending §357.15(b) to delete
the phrase "Within 30 days of receipt of the petition" and to add the phrase
"provide technical assistance to" in order to make the rule consistent with
House Bill 1763. The board also proposes to add new language to §357.15(b)
to describe the process the board will use to resolve a petition from a groundwater
conservation district that a conflict exists between a groundwater management
plan and the state water plan. This process tracks the language of House Bill
1763. The process includes mediation between the groundwater conservation
district and the appropriate regional water planning group and requires the
board to resolve the conflict within 60 days of the mediation, if mediation
is not successful. The board also proposes amending §357.15(c) to delete
the first sentence and to conform the time period for the board to resolve
the conflict with the time period identified in House Bill 1763. The board
also proposes to change the time period for issuing notice of the board's
intent to resolve the conflict from 30 days notice to 15 days notice. The
board proposes this based on the short time frame it has to resolve the conflict
after mediation has concluded. The board proposes to amend §357.15(c)
to change the word "certified" to "approved" to conform to House Bill 1763.
The board also proposes amending §357.15(e) to replace "certified" with
"approved." The board also proposes removing the phrase "suspend the certification
of the plan" from §357.15(e) because that process was eliminated by House
Bill 1763. The board proposes amending the language concerning amending groundwater
management plans to conform to House Bill 1763, as well. Based on House Bill
1763, if the board determines the conflict should be resolved by a revision
to the groundwater management plan, the board must provide this information
to the groundwater conservation district, which shall revise its plan based
on this information. If the district disagrees with the decision of the board,
it may appeal the decision in Travis County district court. The language the
board proposes to §357.15(e) follows this process and is consistent with
House Bill 1763.
Pursuant to §2001.024, Government Code, James LeBas, Chief Financial
Officer, has determined that, for the first five-year period the amendments
are in effect, there are no additional estimated costs or lost revenues for
state or local governments as a result of enforcing or administering the amended
sections. There may be a cost to groundwater conservation districts if they
appeal a board decision to district court. However, that cost is discretionary
and cannot be determined by the board. There are also no estimated reductions
in costs or increased revenues for state and local governments as a result
of enforcing or administering the amended sections. Enforcing or administering
the amended sections does not have any foreseeable implications relating to
cost or revenues for state and local governments.
Pursuant to §2001.024, Government Code, Mr. LeBas has also determined
that, during the first five years the amendments, as proposed, are in effect
the public benefit anticipated as a result of enforcing the proposed amendments
is that the public will have an increased understanding of the rules and the
regional water planning process and the interactions between regional water
planning groups and groundwater conservation districts will be more efficient.
Pursuant to §2006.002, Government Code, Mr. LeBas has determined that
there is no adverse economic effect on small or micro-businesses as a result
of enforcing or administering the amended sections. Further, pursuant to §2001.022,
Government Code, Mr. LeBas has determined that these proposed amendments have
no effect on local economies. There is no anticipated economic cost to persons
who are required to comply with the amendments as proposed. There is no anticipated
effect on local employment in geographic areas affected by these proposed
amendments.
Comments on the proposal may be directed to Ron Pigott, Attorney, P.O.
Box 13231, Austin, Texas 78711-3231, by e-mail at Ron.Pigott@twdb.state.tx.us,
or by fax at (512) 463-5580. Comments will be accepted for 30 days following
the date of publication of this proposal in the
Texas Register
.
Ron Pigott, Attorney, certifies that the proposed amendments have been
reviewed by legal counsel and found to be within the state agency's authority
to adopt.
These amendments are proposed under the Texas Water Code, §6.101
and §16.053, which authorizes the board to adopt administrative rules
necessary to carry out the regional water planning process.
The statutory provision affected by the proposed amendments is Texas Water
Code §16.053.
§357.3.Designation of Regional Water Planning Areas.
(a)
(No change.)
(b)
The board shall review and update the designations of regional
water planning areas as necessary but at least every five years, on its own
initiative or upon recommendation of the executive administrator. The board
shall provide notice of its intent to amend the designations of regional water
planning areas 30 days before making any change by publishing notice of the
proposed change in the Texas Register and by mailing notice of the proposed
change 30 days before making any change to the affected regional water planning
groups, to each mayor of a municipality with a population of 1,000 or more
or which is a county seat that is located in whole or in part in the regional
water planning areas proposed to be impacted, to each water district or river
authority located in whole or in part in the regional water planning area
based upon lists of such water districts and river authorities obtained from
Texas
Commission on Environmental Quality
[
Natural Resource
Conservation Commission
], and to each county judge of a county located
in whole or in part in the regional water planning areas proposed to be impacted.
After the notice period, the board shall hold a public hearing at a location
to be determined by the board before making any changes to the designation
of a regional water planning area, and may thereafter take actions to change
the regional water planning area.
§357.4.Designation of Regional Water Planning Groups.
(a) - (g)
(No change.)
(h)
The regional water planning group, at its discretion may
add as non-voting members:
(1) - (2)
(No change.)
(3)
a representative designated by state or federal agencies,
including Texas
Commission on Environmental Quality
[
Natural
Resource Conservation Commission
] and Texas General Land Office, or
other entities that the regional water planning groups determine important
to the planning effort.
(i) - (m)
(No change.)
§357.5.Guidelines for Development of Regional Water Plans.
(a) - (c)
(No change.)
(d)
Use of population and water demands. In developing regional
water plans, regional water planning groups shall use:
(1)
state population and water demand projections contained
in the state water plan or adopted by the board after consultation with the
Texas
Commission on Environmental Quality
[
Natural Resource
Conservation Commission
], Texas Department of Agriculture, Texas Parks
and Wildlife Department, and regional water planning groups in preparation
for revision of the state water plan; or
(2)
in lieu of paragraph (1) of this subsection, population
or water demand projection revisions that have been adopted by the board,
after coordination with Texas
Commission on Environmental Quality
[
Natural Resource Conservation Commission
], Texas Department of Agriculture,
Texas Parks and Wildlife Department, and regional water planning groups when
the requesting regional water planning group demonstrates that the population
and water demand projections developed pursuant to paragraph (1) of this subsection
no longer represent a reasonable projection of anticipated conditions based
on changed conditions and availability of new information. Before requesting
a revision to the population and water demand projections, the regional water
planning group shall discuss the issue at a public meeting for which notice
has been posted pursuant to the Open Meetings Act in addition to being published
on the internet and mailed at least 14 days before the meeting to every person
or entity that has requested notice of regional water planning group activities.
The public will be able to submit oral or written comment at the meeting and
written comments for 14 days following the meeting. The regional water planning
group will summarize the public comments received in its request for projection
revisions. Within 45 days of receipt of a request from a regional water planning
group for revision of population or water demand projections, the executive
administrator shall consult with the requesting regional water planning group
and respond to their request.
(e)
Plan development. In developing regional water plans, regional
water planning groups shall:
(1)
ensure that water management strategies are adjusted to
provide for appropriate environmental water needs, including instream flows
and bays and estuaries inflows. Evaluation shall use environmental information
resulting from existing site-specific studies, or, in the absence of such
information, shall use state environmental planning criteria adopted by the
board for inclusion in the state water plan after coordinating with staff
of Texas
Commission on Environmental Quality
[
Natural Resource
Conservation Commission
] and Texas Parks and Wildlife Department;
(2) - (8)
(No change.)
(f) - (j)
(No change.)
(k)
Existing regional water planning efforts. In developing
a regional water plan, the regional water planning group shall consider the
following:
(1)
existing plans and information, including:
(A) - (C)
(No change.)
(D)
approved
[
certified
] groundwater
conservation district management plans;
(E) - (H)
(No change.)
(2)
(No change.)
(l)
(No change.)
§357.7.Regional Water Plan Development.
(a)
Regional water plan development shall include the following:
(1) - (2)
(No change.)
(3)
evaluation of adequacy of current water supplies legally
and physically available to the regional water planning area for use during
drought of record. The term "current" means water supply available at the
beginning of this task. This evaluation shall consider surface water and groundwater
data from the state water plan, existing water rights, contracts and option
agreements, other planning and water supply studies, and analysis of water
supplies currently available to the regional water planning area. Firm yields
for reservoirs shall be presented. Analysis of surface water available during
drought of record may be based on operational procedures other than firm yield
from reservoirs upon the documented decision of the regional water planning
group as long as the amount of water available due to the operational procedure
does not exceed the amount of water that would be available using system firm
yield. Firm yield is defined as the supply the reservoir can provide during
a drought of record using reasonable sedimentation rates and the assumption
that all senior water rights will be totally utilized. Until information is
provided by the Texas
Commission on Environmental Quality
[
Natural Resource Conservation Commission
], regional water planning groups
may use estimates of the projected amount of surface water that would be available
from existing water rights during a drought of record. Once this information
is available from the Texas
Commission on Environmental Quality
[
Natural Resource Conservation Commission
], the regional water planning
group shall incorporate it in its next planning cycle unless better site-specific
information is available. Until information is available from the board regarding
groundwater availability from modeling, the regional water planning groups
may use estimates of the projected amounts as long as they describe the method
used to arrive at those estimates. Once the groundwater availability modeling
information is available for an area within a region, that regional water
planning group shall incorporate such information in its next planning cycle
unless better site-specific information is available. The executive administrator,
after coordination with staff of the Texas
Commission on Environmental
Quality
[
Natural Resource Conservation Commission
] and the
Texas Parks and Wildlife Department, shall identify the methodology, in consultation
with representatives of regional water planning groups, to be used by regional
water planning groups to calculate water availability during drought of record.
The executive administrator shall provide available technical assistance to
the regional water planning groups upon request to assist them in selecting
appropriate methods and data to be used to determine water supply availability.
Water supplies based on contracted agreements shall be based on the terms
of the contract, which may be assumed to renew at the contract termination
date if the contract contemplates renewal or extensions. Results of evaluations
shall be reported:
(A) - (B)
(No change.)
(4) - (6)
(No change.)
(7)
evaluation of all water management strategies the regional
water planning group determines to be potentially feasible, including:
(A)
water conservation practices. The executive administrator
shall provide technical assistance to the regional water planning groups on
water conservation practices. The regional water planning group must consider
water conservation practices for each need identified in paragraph (4) of
this subsection.
(i)
The regional water planning group shall include water conservation
practices for each user group to which Texas Water Code §11.1271 applies.
The impact of these water conservation practices on water needs must be consistent
with the requirements in appropriate Texas
Commission on Environmental
Quality
[
Natural Resource Conservation Commission
] administrative
rules related to §11.1271.
(ii)
(No change.)
(iii)
For each water user group or wholesale water provider
that is to obtain water from a proposed interbasin transfer to which Texas
Water Code §11.085(l) applies, the regional water planning group shall
include a conservation water management strategy, pursuant to §11.085(1),
that will result in the highest practicable level of water conservation and
efficiency achievable. The regional water planning group shall determine and
report the projected water use in gallons per capita per day for municipal
uses based on its determination of the highest practicable level of water
conservation and efficiency achievable. The regional water planning group
shall develop conservation water management strategies based on this determination.
In preparing the evaluation, the regional water planning group shall seek
the input of the water user groups and wholesale water providers as to what
is the highest practicable level of water conservation and efficiency achievable,
in their opinion, and take that input into consideration. The regional water
planning groups shall develop the conservation water management strategy consistent
with the guidance provided by the Texas
Commission on Environmental Quality
[
Natural Resource Conservation Commission
] in its administrative
rules that implement Texas Water Code §11.085. The strategy evaluation
shall include a quantitative description of the quantity, cost, and reliability
of the water estimated to be conserved under the highest practicable level
of water conservation and efficiency achievable;
(iv)
(No change.)
(B)
drought management measures including water demand management.
The executive administrator shall provide technical assistance to the regional
water planning groups on drought management measures. The regional water planning
group must consider drought management measures for each need identified in
paragraph (4) of this subsection and must include such measures for each user
group to which Texas Water Code §11.1272 applies. The impact of these
drought management measures on water needs must be consistent with the guidance
provided by the Texas
Commission on Environmental Quality
[
Natural Resource Conservation Commission
] in its administrative rules
that implement Texas Water Code §11.1272. If the regional water planning
group does not adopt a drought management strategy for a need that goes beyond
the requirements of §11.1272, it must document the reason. Nothing in
this paragraph shall be construed as limiting the use of voluntary arrangements
by water users to forgo water usage during drought periods;
(C) - (D)
(No change.)
(E)
new supply development including construction and improvement
of surface water and groundwater resources, brush control, precipitation enhancement,
desalination, water supply that could be made available by cancellation of
water rights based on data provided by the Texas
Commission on Environmental
Quality
[
Natural Resource Conservation Commission
], aquifer
storage and recovery;
(F) - (G)
(No change.)
(8) - (14)
(No change.)
(b) - (e)
(No change.)
§357.12.Notice and Public Participation.
(a)
Regional water planning groups and any subregional water
planning groups shall provide for public participation which shall include
the following:
(1) - (4)
(No change.)
(5)
notice of the public meetings and public hearings required
by paragraphs (1), (3), and (4) of this subsection shall be published in a
newspaper of general circulation in each county located in whole or in part
in the regional water planning area before the 30th day preceding the date
of the public meeting or hearing and mailed to, at a minimum, the following:
(A) - (B)
(No change.)
(C)
each special or general law district or river authority
with responsibility to manage or supply water in the regional water planning
area based upon lists of such water districts and river authorities obtained
from Texas
Commission on Environmental Quality
[
Natural Resource
Conservation Commission
];
(D)
each retail public utility, defined as a community water
system, that serves any part of the regional water planning area or receives
water from the regional water planning area based upon lists of such entities
obtained from Texas
Commission on Environmental Quality
[
Natural Resource Conservation Commission
]; and
(E)
each holder of record of a water right for the use of surface
water the diversion of which occurs in the regional water planning area based
upon lists of such water rights holders obtained from Texas
Commission
on Environmental Quality
[
Natural Resource Conservation Commission
]; and
(6)
notice of the public meetings and public hearings shall
include:
(A) - (C)
(No change.)
(D)
information that the regional water planning group will
accept written and oral comments at the hearings required by paragraphs (3)
and (4) of this subsection, and information on how the public may submit written
comments separate from such hearings. The regional water planning group shall
specify a deadline for submission of public written comments of not earlier
than
60
[
30
] days after the hearings required by paragraphs
(3) and (4) of this subsection.
(b) - (d)
(No change.)
(e)
On request of the Texas Water Advisory
Council, a regional water planning group shall provide the council with a
copy of that group's regional water plan.
§357.15.Interaction with Groundwater Conservation District Management Plans.
(a)
A groundwater conservation district may file a written
petition with the executive administrator stating that a potential conflict
exists between the district's
approved
[
certified
] management
plan developed under Texas Water Code, §36.1071 and
the
[
an
] approved
state
[
regional
] water plan. A copy
of the petition shall be provided to the affected regional water planning
group. The petition must state:
(1)
(No change.)
(2)
the specific sections and provisions of the
approved
[
certified
] management plan and approved
state
[
regional
] water plan that are in conflict; and
(3)
(No change.)
(b)
If
[
Within 30 days of receipt of the petition,
if
] the executive administrator determines a conflict exists, the executive
administrator will
provide technical assistance to and
coordinate
with the groundwater conservation district and the affected regional water
planning group to resolve the conflict. Coordination may include any of the
following processes:
(1) - (2)
(No change.)
(3)
coordinating a formal mediation session between representatives
of the groundwater conservation district and the regional water planning group.
Not later than the 45th day after the date on which the groundwater conservation
district files a petition with the board, if the conflict has not been resolved,
the district and the involved regional water planning group shall mediate
the conflict. The district and the involved regional water planning group
may seek the assistance of the Center for Public Policy Dispute Resolution
at The University of Texas School of Law or an alternative dispute resolution
system established under Chapter 152, Civil Practice and Remedies Code, in
obtaining a qualified impartial third party to mediate the conflict. The cost
of the mediation services must be specified in the agreement between the parties
and the Center for Public Policy Dispute Resolution or the alternative dispute
resolution system. If the district and the involved regional water planning
group cannot resolve the conflict through mediation, the development board
shall resolve the conflict not later than the 60th day after the date the
mediation is completed as provided by subsections (c) and (d) of this section.
(c)
[
The executive administrator will inform the parties
how long they have to attempt to resolve the conflict.
] If the parties
do not reach resolution [
in that time period
], the executive administrator
will recommend a resolution to the conflict to the board
within 60 days
of the date the mediation is completed
. Before presenting the issue
to the board, the executive administrator will provide the regional water
planning group, the groundwater conservation district submitting the petition,
and any political subdivision determined by the executive administrator to
be affected by the issue
15
[
30
] days notice. If the
board finds that a conflict exists, the board shall adopt a resolution to
the conflict at a public meeting. Resolution may include:
(1)
(No change.)
(2)
requiring a revision to a district's
approved
[
certified
] management plan.
(d)
(No change.)
(e)
If the board requires a revision to the groundwater conservation
district's
approved
[
certified
] management plan, the
board shall [
suspend the certification of the plan and
] provide
information to the groundwater conservation district on what revisions are
required and why. The groundwater conservation district shall prepare any
revisions to its plan
based on the information provided
[
required
] by the board and hold, after notice, at least one public hearing.
The groundwater conservation district shall consider all public and board
comments, prepare, revise, and adopt its plan, and submit the revised plan
to the board [
for certification
] pursuant to Chapter 356 of this
title (related to Groundwater Management).
If the groundwater conservation
district disagrees with the decision of the board, the district may appeal
the decision to a district court in Travis County, Texas.
(f)
(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 January 20, 2006.
TRD-200600325
Wendall Corrigan Braniff
General Counsel
Texas Water Development Board
Proposed date of adoption: March 21, 2006
For further information, please call: (512) 475-2052