Part 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

Chapter 30. OCCUPATIONAL LICENSES AND REGISTRATIONS

The Texas Commission on Environmental Quality (TCEQ, commission, or agency) proposes amendments to §§30.3, 30.111, 30.120 and 30.122.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES

The proposed amendments would create two new license classifications to be consistent with changes made to 30 TAC Chapter 344, Landscape Irrigation, Texas Occupations Code, §1903.251 and the addition of Texas Water Code (TWC), §49.238, and Local Government Code, §401.006, by House Bill (HB) 4, §13, HB 1656 §1, and Senate Bill (SB) 3, §2.34, 80th Legislature, 2007, Regular Session.

HB 4, §13 and §19 and SB 3, §2.34, direct the commission to adopt and enforce rules that govern: 1) the connection of an irrigation system to any water supply; 2) the design, installation, and operation of irrigation systems; 3) water conservation; and 4) the duties and responsibilities of irrigators. As a result of this legislation, in a separate rulemaking, amendments are being proposed to Chapter 344 to enhance the duties of the installer and eventually, eliminate the installer license altogether.

HB 1656, §1, directs municipalities with populations of 20,000 or more to adopt ordinances that require an installer of an irrigation system to be licensed by the commission and obtain a permit before installing an irrigation system. Those municipalities must adopt standards and specifications for designing, installing, and operating irrigation systems and include at a minimum, any rules adopted by the commission related to landscape irrigation. Those municipalities may also employ or contract with a licensed plumbing inspector or licensed irrigation inspector to enforce the ordinance. Additionally, HB 1656 allows water districts to adopt rules that meet the same criteria as municipalities and may employ or contract with a licensed plumbing inspector, a licensed irrigation inspector, the district's operator, or other governmental entity to enforce the rules.

The commission administers the Landscape Irrigators and Installers Licensing Program that currently includes licenses for installers and irrigators. The proposed amendments specify requirements for individuals to obtain and maintain an occupational license to sell, design, install, maintain, alter, repair, or service an irrigation system, provide consulting services relating to an irrigation system, connect an irrigation system to any water supply, or inspect irrigation systems and perform other enforcement duties as an employee or as a contractor of a water purveyor.

TWC, §37.002 requires the commission to adopt any rules necessary to establish occupational licenses and registrations prescribed by Texas Occupations Code, §1903.251. Therefore, to meet the statutory requirements, the agency must create a new irrigation technician and landscape irrigation inspector license classification. The proposed amendments would ensure that the agency's rules are consistent with statutory standards and that the rules are up-to-date and effective. The proposed amendments would also make grammatical and punctuation corrections and incorporate language modifications needed to improve readability and enhance enforceability.

The requirements of HB 1656 became effective September 1, 2007. As required by §19 of HB 4, and SB 3, the commission must adopt standards no later than June 1, 2008, with an effective date of January 1, 2009. The proposed effective date of the amendments to Chapter 30, Subchapters A and D is June 26, 2008.

SECTION BY SECTION DISCUSSION

Subchapter A - Administration of Occupational Licenses and Registrations

The proposed amendments to §30.3, Purpose and Applicability, would add Irrigation Technicians and Irrigation Inspectors as entities regulated by the commission.

Subchapter D - Landscape Irrigators and Installers

The proposed amendments would change the title of Subchapter D to Landscape Irrigators, Installers, Irrigation Technicians and Irrigation Inspectors.

The proposed amendments to §30.111, Purpose and Applicability, would add enforcement and inspection duties related to landscape irrigation systems. The proposed amendments would also allow individuals holding an irrigation technician license issued after December 31, 2008, to perform those duties approved for the installer licensees in Chapter 344. Additionally, the proposed amendments would require that those individuals that perform the tasks listed in proposed §30.111(a)(4), meet the qualifications of this chapter, be licensed according to Subchapter A, unless exempt under §30.129, and comply with the requirements of Chapter 344.

The proposed amendments to §30.120, Qualifications for Initial License, would detail the requirements for individuals to obtain an initial installer license prior to January 1, 2009 and for obtaining an initial irrigation technician license after December 31, 2008. Additionally, the proposed amendments would detail the requirements to obtain an initial irrigation inspector license.

The proposed amendments to §30.122, Qualifications for License Renewal, would detail the requirements for individuals to renew an installer license which expires prior to January 1, 2009 and to renew irrigation technician and irrigation inspector licenses.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

Nina Chamness, Analyst, Strategic Planning and Assessment, has determined that, for the first five-year period the proposed rules are in effect, no significant fiscal implications are anticipated for the agency or local governments as a result of administration or enforcement of the proposed rules. However, the agency's licensing revenue will increase as a result of the establishment of two new licenses for an irrigation inspector and for an irrigation technician. The agency has not been given the appropriation authority to utilize the fee revenue expected to be generated by these two new license programs.

The proposed amendments would create two new license classifications to be consistent with changes required by House Bill 1656, 80th Legislature, 2007, Regular Session. HB 1656, §2 and §3, allows municipalities and water districts to employ or contract with a licensed irrigation inspector or a licensed plumbing inspector to enforce ordinances or rules relating to irrigation systems which they have approved. The agency does not currently have a program to obtain and maintain an occupational license to perform inspections of landscape irrigation systems. To meet the statutory requirements of HB 1656, the agency must create a new landscape irrigation license classification. In addition, the requirement to have a licensed individual present during the installation, repair, alteration, or service of an irrigation system requires the agency to create a license for irrigation technicians to meet expected statewide demand for the installation of irrigation systems. The proposed amendments would establish the requirements for these two types of licenses. This fiscal note does not address the costs to hire a licensed plumbing inspector since this license program is not administered by the agency.

The agency expects to utilize existing appropriation authority to perform the administrative tasks needed to modify existing databases, mail needed notifications to licensees, and print needed forms and materials. Licensing fees for these new licensing classifications will be collected and deposited into the TCEQ Occupational Licensing Account 0468.

The fee for each license will be $111 for a three-year period. The number of licenses to be issued or renewed and the amount of revenue to be collected and deposited into Account 0468 during the first five years the proposed rules are in effect can be seen in the table below:

Figure: 30 TAC Chapter 30--Preamble

There are approximately 117 municipalities that will be required to adopt and enforce a landscape irrigation ordinance, and there are approximately 1,100 water districts that could choose to do so. The proposed rules will have a fiscal impact on local governments but that impact is not expected to be significant. Any staffing costs, licensing costs, or training costs incurred by municipalities and water districts could be recovered by these entities if they choose to increase permitting fees to cover their inspection costs. Staff estimates that the salary for an irrigation inspector could range from $29,000 to $50,000 per year depending on the requirements of the local government. Local governments would incur license exam fees and training costs for any employee serving as a licensed irrigation inspector. These costs are estimated to be $1,300 per applicant in the first year. A license fee of $111 would also be required in the first year. The license must be renewed every three years, and the employee would be required to earn continuing education credits to qualify for renewal. Training cost for continuing education and the license renewal fee is estimated to range from $450 to $560 every three years. If a local government decides to use a third party to inspect landscape irrigation systems, contract costs are estimated to be equivalent to or lower than the costs of hiring, training, and licensing an employee. It is also expected that any contract costs would be recovered by increasing permit fees.

PUBLIC BENEFITS AND COSTS

Nina 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 compliance with state law, increased consumer protection, and the promotion of water conservation through the adoption and enforcement of landscape irrigation ordinances.

Businesses and individuals who choose to perform landscape irrigation installations or inspections for municipalities and water districts are not expected to experience adverse fiscal impacts as a result of the proposed rules. Staffing, licensing, and training costs are expected to be in the same range as those incurred by local governments, and any such costs are expected to be recovered by the fee charged to do such inspections.

Staff does anticipate that some businesses could conduct training classes and administer license exams. Training and testing revenues could vary widely depending on how much the entity would charge to recoup its costs and make a profit. The proposed rules require that applicants for the irrigation inspector license take certain courses. Based on the costs of other licensing programs, staff estimates that businesses could charge as much as $500 for a basic irrigator training course, $500 for a backflow prevention assembly testing course, and $300 for an approved water conservation or water audit course. For an irrigation technician license, only one course, a basic irrigation technician course, estimated to cost $350, is required. Continuing education courses would be in the same price range as the courses taken to obtain an original license. Businesses administering license exams could charge as much as $100 per applicant.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

No adverse fiscal implications are anticipated for small or micro-businesses that might choose to train or test potential licensees, perform irrigation inspections, or provide irrigation technician services. Small or micro-businesses are expected to cover the costs of training their employees and obtaining the appropriate licenses when they perform irrigation services for their customers.

SMALL BUSINESS REGULATORY FLEXIBILITY ANALYSIS

The commission has reviewed this proposed rulemaking and determined that a small business regulatory flexibility analysis is not required because the proposed rules are required to implement state law and do not adversely affect a small or micro-business in a material way for the first five years that the proposed rules are in effect.

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 rules in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the proposed rules do not meet the criteria for a major environmental rule. Texas Government Code, §2001.0225, defines a major environmental rule as one that is specifically intended to protect the environment, or reduce risks to human health from environmental exposure. The proposed rules are intended to create a licensing program for individuals that perform installer duties and will in the future perform duties of an irrigation technician. An irrigation technician is defined as an individual that, under the direct supervision of a licensed irrigator, installs, maintains, alters, repairs, or services an irrigation system, or connects an irrigation system to any water supply. The proposed rules are also intended to create a licensing program for individuals that will perform irrigation inspector duties. An irrigation inspector is defined as a person who inspects irrigation systems and performs other enforcement duties as an employee or as a contractor of a water purveyor and is required to be licensed under Chapter 30. Training requirements and enforcement for noncompliance for the irrigation technician and irrigation inspector would be addressed in the proposed rules. Protection of human health and the environment may be a by-product of the proposed rules, but it is not the specific intent of the proposed rules. Furthermore, the proposed rules would not adversely affect, in a material way, the economy, a section of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state, because the rules would simply add licensing requirements for irrigation technicians and irrigation inspectors and address training requirements and enforcement for noncompliance. The proposed rules do not meet the definition of a major environmental rule as defined in the Texas Government Code.

In addition, the proposed amended sections are not subject to Texas Government Code, §2001.0225, because they do not meet the criteria specified in Texas Government Code, §2001.0225(a). Texas Government Code, §2001.0225(a), applies to a rule adopted by an agency, 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.

The proposed amended sections to Chapter 30 do not meet any of these requirements. First, there are no federal standards that these rules would exceed. The United States Environmental Protection Agency does not have a federal program for landscape irrigation systems and does not establish requirements for states that implement their own landscape irrigation programs. Second, the rules do not exceed an express requirement of state law but are being adopted to implement state law. Third, there is no delegation agreement that would be exceeded by these rules. Fourth, the commission adopts these rules to allow licensing requirements for irrigation technicians and irrigation inspectors and address training requirements and enforcement for noncompliance in compliance with the statute. Therefore, the commission does not adopt the rules solely under the commission's general powers. These rules do not meet the criteria for a major environmental rule as defined by Texas Government Code, §2001.0225.

The commission invites public comment on the draft regulatory impact analysis determination.

Written comments on the draft regulatory impact analysis determination may be submitted to the contact person at the address listed under the SUBMITTAL OF COMMENTS section of this preamble.

TAKINGS IMPACT ASSESSMENT

The commission evaluated these proposed rules and performed an assessment of whether these proposed rules constitute a taking under Texas Government Code, Chapter 2007. The purpose of these proposed rules is to ensure consistency between the rules and their applicable statutes, by creating a licensing program for irrigation inspectors and irrigation technicians. Promulgation and enforcement of these proposed rules would be neither a statutory nor a constitutional taking of private real property. Specifically, the subject proposed regulations do not affect a landowner's rights in private real property because this rulemaking does not burden or restrict or limit the owner's right to property and reduce its value by 25% or more beyond that which would otherwise exist in the absence of the regulations. These proposed rules would only make non-substantive changes to the existing rules and proposed new regulations that do not affect private real property.

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.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed this rulemaking for consistency with the Coastal Management Program (CMP) goals and policies in accordance with the regulations of the Coastal Coordination Council and determined that the rulemaking is editorial, administrative, and procedural in nature and will have no substantive effect on commission actions subject to the CMP and is, therefore, consistent with CMP goals and policies.

ANNOUNCEMENT OF HEARING

A public hearing on this proposal will be held in Austin on February 26, 2008, at 1:30 p.m. at the Texas Commission on Environmental Quality complex located at 12100 Park 35 Circle in Building C, Room 131. The hearing will be structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. A time limit may be established at the hearing to assure that enough time is allowed for every interested person to speak. There will be no open discussion during the hearing; however, an agency staff member will be available to discuss the proposal 30 minutes prior to the hearing.

Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact Kristin Smith, Office of Legal Services, at (512) 239-0177. Requests should be made as far in advance as possible.

SUBMITTAL OF COMMENTS

Written comments may be submitted to Kristin Smith, 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. Electronic comments may be submitted at: http://www5.tceq.state.tx.us/rules/ecomments/ . File size restrictions may apply to comments being submitted via the eComments system. All comments should reference Rule Project Number 2007-031-030-CE. The comment period closes March 3, 2008. Copies of the proposed rulemaking 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 Terry Thompson, Occupational Licensing Section, at (512) 239-6095.

Subchapter A. ADMINISTRATION OF OCCUPATIONAL LICENSES AND REGISTRATIONS

30 TAC §30.3

STATUTORY AUTHORITY

This amendment is proposed under Texas Water Code (TWC), §5.013, concerning the General Jurisdiction of the Commission; TWC, §5.102, concerning General Powers; and TWC, §5.103, concerning Rules. This amendment is also proposed under TWC, Chapter 37, §§37.001 - 37.015, concerning: Definitions; Rules; License or Registration Required; Qualifications; Issuance and Denial of Licenses and Registrations; Renewal of License or Registration; Licensing Examinations; Training; Continuing Education; Fees; Advertising; Complaints; Compliance Information; Practice of Occupation; Roster of License Holders and Registrants; and Power to Contract. This amendment is also proposed under Texas Occupations Code, §1903.053, concerning Standards, Texas Occupations Code, §1903.251, concerning License Required.

This proposed amendment implements TWC, §§5.013, 5.102, 5.103, 37.001 - 37.015 and Texas Occupations Code, §1903.053, and §1903.251.

§30.3.Purpose and Applicability.

(a) The purpose of this chapter is to consolidate the administrative requirements and establish uniform procedures for the occupational licensing and registration programs prescribed by Texas Water Code, Chapter 37. This subchapter contains general procedures for issuing, renewing, denying, suspending, and revoking occupational licenses and registrations. Subchapters B - L of this chapter (relating to Backflow Prevention Assembly Testers; Customer Service Inspectors; Landscape Irrigators , [ and ] Installers , Irrigation Technicians and Irrigation Inspectors ; Leaking Petroleum Storage Tank Corrective Action Project Managers and Specialists; Municipal Solid Waste Facility Supervisors; On-Site Sewage Facilities Installers, Apprentices, Designated Representatives, Maintenance Providers, and Site Evaluators; Water Treatment Specialists; Underground Storage Tank On-Site Supervisor Licensing and Contractor Registration; Wastewater Operators and Operations Companies; Public Water System Operators and Operations Companies; and Visible Emissions Evaluator Training Providers) contain the program-specific requirements related to each program.

(b) The requirements of this chapter apply to the following occupational licenses and registrations:

(1) backflow prevention assembly testers;

(2) customer service inspectors;

(3) landscape irrigators , [ and ] installers , irrigation technicians and irrigation inspectors ;

(4) leaking petroleum storage tank corrective action specialists and project managers;

(5) municipal solid waste facility supervisors;

(6) on-site sewage facility installers, designated representatives, apprentices, maintenance providers, and site evaluators;

(7) water treatment specialists;

(8) underground storage tank contractors and on-site supervisors;

(9) wastewater operators and operations companies;

(10) public water system operators and operations companies; and

(11) visible emissions evaluators training providers.

(c) Effective January 1, 2010, the installer license will no longer be valid and will be replaced by an irrigation technician license. No new or renewal installer license applications will be accepted after December 31, 2008. Existing installer licenses or those renewed after the effective date of these rules, but prior to January 1, 2009 will remain valid until December 31, 2009 or their expiration date, whichever occurs first.

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 17, 2008.

TRD-200800232

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 2, 2008

For further information, please call: (512) 239-0177

30 TAC §§30.111, 30.120, 30.122

STATUTORY AUTHORITY

These amendments are proposed under Texas Water Code (TWC), §5.013, concerning the General Jurisdiction of the Commission; TWC, §5.102, concerning General Powers; and TWC, §5.103, concerning Rules. These amendments are also proposed under TWC, Chapter 37, §§37.001 - 37.015, concerning: Definitions; Rules; License or Registration Required; Qualifications; Issuance and Denial of Licenses and Registrations; Renewal of License or Registration; Licensing Examinations; Training; Continuing Education; Fees; Advertising; Complaints; Compliance Information; Practice of Occupation; Roster of License Holders and Registrants; and Power to Contract. Additionally, these amendments are also proposed under TWC §49.238, concerning Irrigation Systems. These amendments are also proposed under Local Government Code, §401.006, concerning Irrigation Systems. These amendments are proposed under the Texas Occupations Code, §§1903.001, 1903.002, 1903.053 and 1903.251, concerning Definitions, Exemptions, Standards and License Required.

These proposed amendments implement TWC, §§5.013, 5.102, 5.103, 37.001 - 37.015; 49.238 and Local Government Code, §401.006; Texas Occupations Code, §§1903.001, 1903.002, 1903.053 and 1903.251.

§30.111.Purpose and Applicability.

(a) The purpose of this subchapter is to establish qualifications for issuing and renewing licenses to individuals who:

(1) sell, design, install, maintain, alter, repair, or service an irrigation system;

(2) provide consulting services relating to an irrigation system; [ or ]

(3) connect an irrigation system to any water supply ; or [ . ]

(4) inspect irrigation systems and perform other enforcement duties as an employee or as a contractor.

(b) An individual who performs any of the tasks listed in subsection (a) of this section must meet the qualifications of this subchapter and be licensed according to Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations), unless they are exempt under §30.129 of this title (relating to Exemptions); and must comply with the requirements in Chapter 344 of this title (relating to Landscape Irrigation).

§30.120.Qualifications for Initial License.

(a) To obtain an installer license prior to January 1, 2009 , an individual must [ have ]:

(1) meet [ met ] the requirements in Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations); and

(2) pass [ passed ] the applicable examination.

(b) Effective January 1, 2010, the installer license will no longer be valid and will be replaced by an irrigation technician license. No new installer license applications will be accepted after December 31, 2008. New installer licenses issued after the effective date of these rules will remain valid through December 31, 2009. The fee for initial installer licenses issued after the effective date of these rules will be prorated to reflect the validity period.

(c) [ (b) ] To obtain an irrigator license, an individual must [ have ]:

(1) meet [ met ] the requirements in Subchapter A of this chapter

(2) complete [ completed ] and pass [ passed ] the basic irrigator training course; and

(3) pass [ passed ] all sections of the applicable examination.

(d) To obtain an irrigation technician license, an individual must:

(1) meet the requirements in Subchapter A of this chapter;

(2) complete the basic irrigation technician course; and

(3) pass the applicable examination.

(e) To obtain an irrigation inspector license, an individual must:

(1) meet the requirements in Subchapter A of this chapter.

(2) successfully complete:

(A) the basic irrigator training course;

(B) an approved backflow prevention assembly testing training course;

(C) an approved water conservation or water audit course; and

(3) pass the applicable examination.

(f) An individual is ineligible to obtain an irrigation inspector license if the individual engages in or has financial or advisory interest in an entity that:

(1) sells, designs, installs, maintains, alters, repairs, or services an irrigation system;

(2) provides consulting services relating to an irrigation system; or

(3) connects an irrigation system to any water supply.

§30.122.Qualifications for License Renewal.

(a) To renew an installer license that expires prior to January 1, 2009 , an individual must meet the requirements in Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations).

(b) Effective January 1, 2010, the installer license will no longer be valid and will be replaced by an irrigation technician license. No installer license renewal applications will be accepted after December 31, 2008.

(c) Installer licenses renewed after the effective date of these rules, but prior to January 1, 2009, will remain valid until December 31, 2009. The fee for installer licenses renewed after the effective date of these rules will be prorated to reflect the validity period.

(d) [ (b) ] To renew an irrigator license, an individual must:

(1) meet the requirements in Subchapter A of this chapter; and

(2) complete 24 hours of approved training credits.

(e) To renew an irrigation technician license, an individual must:

(1) meet the requirements in Subchapter A of this chapter; and

(2) complete 16 hours of approved training credits.

(f) To renew an irrigation inspector license, an individual must:

(1) meet the requirements in Subchapter A of this chapter; and

(2) complete 24 hours of approved training credits.

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 17, 2008.

TRD-200800233

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 2, 2008

For further information, please call: (512) 239-0177

The Texas Commission on Environmental Quality (TCEQ or commission) proposes amendments to §§291.3, 291.14, 291.21, 291.41, 291.87, 291.88, 291.101, 291.105, 291.113, and 291.144.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES

In 2007, the 80th Legislature passed Senate Bill (SB) 3, House Bill (HB) 149, and HB 3475. Sections 2.05, Certificate of Convenience and Necessity (CCNs); 2.06, Consolidated Billing; 2.07, Rates; 2.08, CCNs; 2.32, Powers and Duties of Utilities; 2.39, CCNs; and 7.01, Rates, of SB 3; HB 149; and, HB 3475 relate to water utilities.

SB 3, §2.05, amended Texas Water Code (TWC), §13.002 (1-a) to alter the definition of "landowner" or "owner of a tract of land" to denote that the owner or multiple owners of a single deeded track of land are as shown on the appraisal roll of the appraisal district established for each county in which the property is located. This section of SB 3 also amended other definitions not addressed in this rulemaking.

SB 3, §2.06 amended TWC, Chapter 13, Subchapter E, by adding §13.147, Consolidated Billing and Collection Contracts, to allow a retail public utility providing water service to contract with a retail public utility providing sewer service for the billing and collection of the sewer service provider's fees and payments as part of a consolidated process. This service may only be provided by the water provider for customers that are served by both providers in an area covered by both providers' CCNs. If the water provider refuses to enter into a contract with the sewer provider, or if they cannot agree on the terms of the contract, the sewer service provider may petition the commission to issue an order requiring the water provider to provide that service.

SB 3, §2.07, amended TWC, Chapter 13, Subchapter F, by adding §13.188, Adjustment for Change in Energy Costs. This section allows the commission to adopt a procedure which allows a utility to file an application for an adjustment in the utility's rates to reflect an increase or decrease in documented energy costs through the use of a pass through clause. The pass through, whether an increase or a decrease, shall be implemented on no later than an annual basis, unless the commission determines a special circumstance applies.

SB 3, §2.08 and §2.39 amended TWC, Subchapter F, §13.2451, to allow a municipality to extend a CCN to area outside the municipality's extraterritorial jurisdiction (ETJ) so long as the municipality meets the criteria outlined in §13.241 for granting of a CCN. TWC, §13.241(c) was also added to allow the commission, after notice to the municipality and the opportunity for a hearing, to decertify an area outside the municipality's ETJ if the municipality does not provide service to the area on or before the fifth anniversary of the date the CCN was granted for the area. This section does not apply for an area that was transferred to a municipality on approval of the commission or in relation to which the municipality has spent public funds. TWC, §13.241(d), was added to stipulate that, if a conflict between this section and §13.245 arise, then §13.245 prevails. SB 3, §2.39, also amended TWC, Subchapter F, §13.2451, to specify that this section applies only to: (1) an application to obtain or amend a CCN submitted to the TCEQ on or after the effective date of this Act; (2) a proceeding to amend or revoke a CCN initiated on or after the effective date of this Act; (3) a CCN issued to a municipality regardless of the date the certificate was issued; (4) an application filed by a municipality to obtain or amend a CCN, regardless of the date the application was filed; and, (5) a proceeding to amend or revoke a CCN held by a municipality or by a utility owned by a municipality, regardless of the date the proceeding was initiated.

SB 3, §2.32, added Local Government Code, Subchapter Z, §402.911, to require a water service provider that meets specific criteria to provide a municipality or district with relevant customer information so the municipality or district may bill the customer directly for sewer service and verify water consumption. Relevant customer information includes name, address, phone number, monthly meter readings, monthly consumption information, billing adjustments, and specifics about the meter such as brand, model, age, and location. The legislation also requires a municipality or district to reimburse the water provider for its reasonable and actual costs for providing this service to the municipality or district. The municipality or district may also provide a notice to customers delinquent for more than 90 days for sewer service. This notice must include the past due amount, and the deadline by which the past due notice must be paid before water service is disconnected. After such a notice is provided, the municipality or district may notify the water service provider of a customer who fails to make timely payment. On receipt of this notice, the water service provider must discontinue water service to the municipality or district's sewer customer. This section applies to a water provider that is located in a county with a population greater than 1.3 million and in which a customer's sewer service is provided by a municipality or conservation and reclamation district for the same area, except for a nonprofit water supply or sewer service corporation created under TWC, Chapter 67, or a district created under TWC, Chapter 65.

SB 3, §7.01, amended TWC, Chapter 49, Subchapter H, by adding §49.2122, which allows a district to establish different charges, fees, rentals, or deposits among classes of customers that are based on any factor the district considers appropriate. These factors include the similarity of the type of customer to other customers; the type of service provided; the cost of facilities and operations including additional costs for security, recreational facilities, or fire protection; and/or the total revenue, including ad valorem tax revenues and connection fees received from a particular class of customers.

HB 149 amended TWC, Chapter 13, Subchapter C, by adding §13.046, which requires the commission by rule to provide a streamlined process to allow the retail public utility that takes over the nonfunctioning "retail" water or sewer utility to apply for a ruling on the reasonableness of the newly implemented rates. The bill further requires the commission to establish, in consultation with the utility, a reasonable amount of time for the retail public utility to bring the water or wastewater system into compliance, and prohibits the commission from imposing a penalty during this period for any violation that existed at the time the nonfunctioning system was taken over.

HB 3475 amended Local Government Code, §421.017 and applies to counties adjacent to an international border and in which a military installation and national recreational area are located. This bill affects these specific counties by allowing them to acquire, construct, operate, or maintain a water supply or sewage system to serve the unincorporated areas of the county.

SECTION BY SECTION DISCUSSION

Subchapter A: General Provisions

§291.3, Definition of Terms

The commission proposes to amend the definition of "Landowner" in §291.3(19) to add the phrase "as shown on the appraisal roll of the appraisal district established for each county in which the property is located" to match the language of TWC, §13.002(1-a), as amended by SB 3, in §2.05, 80th Legislative Session, 2007.

The commission proposes to add a definition for "Nonfunctioning system" in §291.3(28). The commission proposes the following definition: A utility under the supervision of a receiver or temporary manager pursuant to §291.142 and §291.143, respectively. The commission proposes this change to provide guidance for interpreting TWC, §13.046, as added by HB 149, 80th Legislative Session, 2007. The subsequent definitions were renumbered to accommodate this proposed new definition.

§291.14, Emergency Orders

The commission proposes to amend §291.14(b)(2) by adding a reference to TWC, §13.046, which requires the commission to establish a streamlined process whereby a retail public utility taking over a nonfunctioning retail water or sewer utility can immediately charge a reasonable rate for the services provided to the nonfunctioning utility's customers. The commission proposes to establish §291.14(b)(2) as the mechanism by which a retail public utility taking over a nonfunctioning retail water or sewer utility can immediately charge a reasonable rate for the services provided to the nonfunctioning utility's customers. The commission proposes this change to implement TWC, §13.046, as added by HB 149, 80th Legislative Session, 2007.

Subchapter B: Rates, Rate making, and Rates/Tariff Changes

§291.21, Form and Filing of Tariffs

The commission proposes to amend §291.21, to add a reference in §291.21(b)(2)(A)(vi) to allow for minor tariff changes for consolidated billing between a separate retail public water and sewer provider, as defined in §291.3(39), for the same service area under TWC, §13.147, as added by §2.06, SB 3, 80th Legislative Session, 2007. A retail public water and sewer provider is defined in §291.3(39) as "any person, corporation, public utility, water supply or sewer service corporation, municipality, political subdivision or agency operating, maintaining, or controlling in this state facilities for providing potable water service or sewer service, or both, for compensation." This proposed amendment is consistent with other minor tariff provisions regarding billing for sewer service.

The commission proposes to add new §291.21(k)(2)(E), which allows a retail public utility to charge a surcharge for interconnection costs, other costs incurred in making services available, and costs that will be incurred to bring the nonfunctioning system into compliance with the commission's rules. The commission proposes this change to implement TWC, §13.046, as added by HB 149, 80th Legislative Session, 2007.

The commission proposes to add new §291.21(k)(4) to allow the executive director to authorize a surcharge by a water or sewer provider to reflect an increase or decrease in documented energy costs without a contested case hearing. This proposed amendment would also require the executive director to hold an uncontested public meeting upon request by a legislator who represents the area served by the water and/or sewer utility or if the executive director determines that there is substantial public interest in the matter. An uncontested public meeting is for the purpose of providing information to the public. The commission proposes this change to implement TWC, §13.188, as amended by §2.07 of SB 3, 80th Legislative Session, 2007.

Suchapter C: Rate-Making Appeals

§291.41, Appeal of Rate-making Pursuant to the Texas Water Code, §13.043

The commission proposes to amend §291.41 to add a phrase in §291.41(i) to clarify that, to the extent of a conflict between this subsection and TWC, §49.2122, TWC, §49.2122, prevails. The commission proposes this change because TWC, §49.2122, as amended by §7.01 of SB 3, 80th Legislative Session, 2007, allows a district to establish different charges, fees, rentals, or deposits among classes of customers based on any factor the district considers appropriate, including the factors listed in TWC, §49.2122(a), unless the district has acted arbitrarily or capriciously.

Subchapter E: Customer Service and Protection

§291.87, Billing

The commission proposes to amend §291.87 to add new §291.87(g) to allow for a consolidated billing process between separate retail public water and sewer providers for the same service area to implement TWC, §13.147, as added by §2.06 of SB 3, 80th Legislative Session, 2007.

The commission proposes to add §291.87(g)(1) to clarify that this subsection applies to all retail public utilities. The commission proposes this change to implement TWC, §13.147, as added by §2.06 of SB 3, 80th Legislative Session, 2007.

The commission proposes to add §291.87(g)(2) to allow a retail public sewer utility to enter into a contract for consolidated billing, or seek a commission order requiring consolidated billing, from a retail public water utility service for the same service area. The commission proposes this change to implement TWC, §13.147(a), as added by §2.06 of SB 3, 80th Legislative Session, 2007.

The commission proposes to add §291.87(g)(3) to require that a contract or order between a retail public water and sewer provider for the same service area under this subsection must provide procedures and deadlines for submitting filing and customer information to the water service provider and for the delivery of collected fees and payments to the sewer service provider. The commission proposes this change to implement TWC, §13.147(b), as added by §2.06 of SB 3, 80th Legislative Session, 2007.

The commission proposes to add §291.87(g)(4) to require or allow a retail public water service provider that provides consolidated billing and collection of fees and payments to terminate the water services of a person whose sewage services account is in arrears for nonpayment and charge a customer a reconnection fee if the customer's water service is terminated for nonpayment of the customer's sewage services account. The commission proposes this change to implement TWC, §13.147(c), as added by §2.06 of SB 3, 80th Legislative Session, 2007.

The commission proposes to add §291.87(g)(5) to allow a retail public water service provider that provides consolidated billing and collection of fees and payments to impose on each customer of the retail public sewer service provider a reasonable fee to recover costs associated with providing consolidated billing and collection of fees and payments for sewage services. The commission proposes this change to implement TWC, §13.147(d), as added by §2.06 of SB 3, 80th Legislative Session, 2007.

The commission has renumbered the subsequent subsections based on the addition of new §291.87(g).

§291.88, Discontinuance of Service

The commission proposes to amend §291.88(e) to outline the duties of a water service provider to an area served by a sewer service provider in a county with a population of more than 1.3 million and in which a customer's sewer service is provided by a municipality or conservation and reclamation district that also provides water service to other customers and the same customer's water service is provided by another entity, but not including a nonprofit water supply and/or sewer service corporation created under TWC, Chapter 67, or a water district created under TWC, Chapter 65. The commission proposes this change to implement Local Government Code, §402.911, as added by §2.32 of SB 3, 80th Legislative Session, 2007.

The commission proposes to amend §291.88(e)(3)(A) to specify which political subdivisions this subsection applies. This section applies only to an area that is located in a county that has a population of more than 1.3 million and in which a customer's sewer service is provided by a municipality or conservation and reclamation district that also provides water service to other customers and the same customer's water service is provided by another entity. The commission proposes this change to implement Local Government Code, §402.911(a), as added by §2.32 of SB 3, 80th Legislative Session, 2007.

The commission proposes to amend §291.88(e)(3)(B) to require the water service provider to provide the municipality or district with any relevant customer information so that the municipality or district may bill users of the sewer service directly and verify the water consumption of users. Relevant customer information provided under this section includes the name, address, and telephone number of the customer of the water service provider; the monthly meter readings of the customer; monthly consumption information, including any billing adjustments; and certain meter information, such as brand, model, age, and location. The commission proposes this change to implement Local Government Code, §402.911(b), as added by §2.32 of SB 3, 80th Legislative Session, 2007.

The commission proposes to amend §291.88(e)(3)(C) to require the municipality or district to reimburse the water service provider for its reasonable and actual incremental costs for providing services to the municipality or district under this section. The commission also proposes a definition of incremental costs and proposes the circumstances under which the water service provider must provide the municipality or district with documentation certified by a certified public accountant. The commission proposes this change to implement Local Government Code, §402.911(c), as added by §2.32 of SB 3, 80th Legislative Session, 2007.

The commission proposes to amend §291.88(e)(3)(D) to allow for written notice to persons to whom the municipality's or district's sewer service system provides service if the person has failed to pay for the service for more than 90 days and specifies the content and delivery format of the notice. The commission proposes this change to implement Local Government Code, §402.911(d), as added by §2.32 of SB 3, 80th Legislative Session, 2007.

The commission proposes to amend §291.88(e)(3)(E) to allow for a notification to the water service provider for the failure of timely payment of sewer charges by a person and allow the sewer service provider to request that the water service provider discontinue service to the person. The commission proposes this change to implement Local Government Code, §402.911(e), as added by §2.32 of SB 3, 80th Legislative Session, 2007.

The commission proposes to amend §291.88(e)(3)(F) to clarify that this subsection does not apply to a nonprofit water supply or sewer service corporation created under TWC, Chapter 67, or a district created under TWC, Chapter 65. The commission proposes this change to implement Local Government Code, §402.911(f), as added by §2.32 of SB 3, 80th Legislative Session, 2007.

Subchapter G: Certificates of Convenience and Necessity

§291.101, Certificate Required

The commission proposes to amend §291.101(a) to reflect the legislature's intent to treat affected counties, adjacent to an international border in which a military installation and a national recreation area are located, in the same manner as a municipality. Municipalities are not required to obtain a CCN to provide service to an uncertificated area. The commission proposes this change to implement Local Government Code, §412.017, as amended by HB 3475, 80th Legislative Session, 2007.

§291.105, Contents of Certificate of Convenience and Necessity Applications

The commission proposes to amend §291.105(c)(1) by deleting the phrase "except as provided by paragraph (2) of this subsection, if." The language in existing paragraph (2) was deleted by the legislative amendments to corresponding language in TWC, §13.2451, by §2.08 of SB 3, 80th Legislative Session, 2007.

The commission proposes to add new §291.105(c)(2), to require a municipality that seeks to extend a certificate of public convenience and necessity beyond the municipality's extraterritorial jurisdiction to comply with TWC, §13.241. The commission proposes this change to implement TWC, §13.2451, as amended by §2.08 of SB 3, 80th Legislative Session. Under §2.39(4) of SB 3, 80th Legislative Session, this proposed amendment applies to any application filed by a municipality or by a utility owned by a municipality for a certificate of public convenience and necessity or for an amendment to a certificate, regardless of the date the application was filed.

The commission proposes to delete existing §291.105(c)(2), because the corresponding language in TWC, §13.2451 was deleted from TWC, §13.2451, by §2.08 of SB 3, 80th Legislative Session, 2007.

The commission proposes to add new §291.105(c)(3), to clarify that, if a conflict exists between TWC, §13.245 and this subsection, TWC, §13.245, prevails.

§291.113, Revocation or Amendment of Certificate

The commission proposes to amend §291.113 by adding a new §291.113(a)(5) to provide for the revocation or amendment of an area certificated to a municipality outside the municipality's extraterritorial jurisdiction when the municipality has not provided service to the area on or before the fifth anniversary of the date the certificate of public convenience and necessity was granted for the area, except that an area that was transferred to a municipality on approval of the commission or the executive director and in which the municipality has spent public funds may not be revoked or amended under this paragraph. The commission proposes this change to implement TWC, §13.2451(c), as added by §2.08 of SB 3, 80th Legislative Session, 2007. Pursuant to §2.39(3) and (5) of SB 3, 80th Legislative Session, 2007, this proposed amendment applies to a proceeding to amend or revoke a certificate of public convenience and necessity held by a municipality or by a municipally owned utility regardless of the date the proceeding was initiated and regardless of the date the certificate was issued.

Subchapter J: Enforcement, Supervision, and Receivership

§291.144, Fines and Penalties

The commission proposes to amend §291.144 to add §291.144(b) which would mandate that the commission not impose a penalty on the retail public utility taking over the nonfunctioning system for a period to be determined in cooperation with the retail public utility. The commission proposes this change to implement TWC, §13.046, as added by HB 149, 80th Legislative Session, 2007. With the addition of new (b), the current implied subsection (a) became subsection (a). The commission also proposes to delete the catchline in the existing implied subsection (a).

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

Nina Chamness, Analyst, Strategic Planning and Assessment, has determined that, for the first five-year period the proposed rule amendments are in effect, no significant 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 implement provisions (§§2.05, 2.06, 2.07, 2.08, 2.32, 2.39, and 7.01) of SB 3, HB 149, and HB 3475, 80th Legislature, Regular Session, 2007, regarding certain capabilities of retail public water utilities to provide water and sewer service in the state by amending various sections of Chapter 291.

Provisions and Fiscal Impact of SB 3

The proposed rules would: allow a retail public utility providing sewer service to contract with a separate retail public utility providing water service to establish a consolidated billing process to bill and collect sewer service provider fees; allow the agency to establish a procedure allowing a utility to apply for rate adjustments to reflect increases or decreases in its rates due to documented energy costs passed through to consumers; allow a municipality to extend a CCN to an area outside its ETJ under certain conditions; require water service providers located in a county with a population greater than 1.3 million to provide relevant customer information to municipalities or water districts so that they may bill customers directly for sewer service and verify water consumption; and, allow water districts to establish different charges, fees, rentals, or deposits among classes of customers based on factors the water district considers appropriate. The proposed rules implementing these provisions of SB 3 are not anticipated to have a significant fiscal impact on local governments since the rules are optional or allow an impacted local government to recoup the cost of providing services either to direct customers or other public water utilities. Staff cannot estimate the number of local governments that might choose to implement the various options afforded by the proposed rules to streamline their operations, increase their service areas, or increase rates to recoup the cost of providing water or sewer service.

Provisions and Fiscal Impact of HB 149

The proposed rules amend Chapter 291 to provide a streamlined process allowing a retail public utility taking over a nonfunctioning retail water or sewer utility to apply for a ruling by the agency on the reasonableness of newly implemented rates to recover service costs. The agency would be required to consult with the utility to establish a reasonable timeframe to bring the water or wastewater system into compliance with agency rules. The proposed rules would also prohibit the agency from imposing penalties during this period for violations existing at the time the nonfunctioning system was taken over by the functioning retail public utility. Since the proposed rules would allow a local government to recoup reasonable costs and avoid the payment of penalties for certain violations, no significant fiscal impacts are expected to affect local governments providing retail water and sewer services to an area previously serviced by a nonfunctioning water or sewer utility. Staff cannot estimate the number of local governments that might choose to take over a nonfunctioning retail water or sewer utility in the future; but in the near future, staff expects at least one municipality will take over a nonfunctioning system.

Provisions and Fiscal Impact of HB 3475

The proposed rules amend Chapter 291 to allow particular counties along the border to acquire, construct, operate, or maintain a water supply or sewage system to serve unincorporated areas of the county. The proposed rules are not anticipated to have a significant fiscal impact on the pertinent county governments since they would be allowed to seek financial assistance to construct such systems and allowed to establish water and wastewater rates to recoup service and operation costs. There may be as many as two counties that might choose to provide water and sewer service to their unincorporated areas.

PUBLIC BENEFITS AND COSTS

Nina 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 provision of safe, consistent, reasonably priced water and sewer services to the general public and compliance with state law.

Although some individual consumers may see an increase in the costs of retail water or sewer service, the proposed rules will help ensure that such services remain safely available and interruptions in such services are minimized as much as possible. By allowing retail water and wastewater providers the ability to charge reasonable rates to cover increased costs and thus provide incentives to take over failed water and sewer systems, consumers should experience continued confidence or greater convenience concerning retail public utilities providing safe drinking water and adequate sewer services.

The proposed rules are not anticipated to have a significant fiscal impact for the individuals or large businesses providing retail water or sewer services to the general public. The proposed rules are optional in many cases. Any rate increases are expected to cover costs, and the agency must ensure the costs are reasonable. Staff cannot estimate the number of providers of retail water and/or sewer utility services that might elect to implement the various options afforded by the proposed rules.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

No adverse fiscal implications are anticipated for small or micro-businesses that provide retail water and/or sewer services as a result of the proposed rules. The proposed rules are optional in many cases, and any rate increases that providers of retail water and sewer services choose to implement are required to be reasonable. If rates are increased, they are expected to increase to the extent needed to recover higher operating or compliance costs.

SMALL BUSINESS REGULATORY FLEXIBILITY ANALYSIS

The commission has reviewed this proposed rulemaking and determined that a small business regulatory flexibility analysis is not required because the proposed rules do not adversely affect a small or micro-business in a material way for the first five years that the proposed rules are in effect.

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 rule 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 Texas Administrative Procedures Act. A "major environmental rule" means 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, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state.

The specific intent of the proposed rules is to implement provisions enacted in SB 3, HB 149, and HB 3475, of the 80th Legislature, 2007. Generally, these proposed amendments are intended to impact only the economic regulation of water and sewer providers. More specifically, the provisions amend the definition of a landowner for the purpose of CCN regulation; allow for consolidated billing and collection contracts between retail public water and sewer providers; allow for adjustments to utility rates to account for increases or decreases in documented energy costs; revise the rules relating to obtaining, amending, and decertifying a municipality's CCN for water and sewer service; create new duties of a water service provider to certain political subdivisions that provide sewer service to the same area; allow a district to establish different utility rates among classes of customers; allow a utility that takes over a nonfunctioning utility to charge reasonable temporary rates and give the utility a reasonable period of time to bring the nonfunctioning system into compliance with commission rules before the commission assesses penalties; and allow certain counties to operate a utility in the same manner as a municipality under Local Government Code, Chapter 402. The proposed rules are not intended to have any impact on environmental regulations. Furthermore, the adopted rulemaking does not meet any of the four applicability requirements listed in Texas Government Code, §2001.0225(a).

This rulemaking does not qualify as a major environmental rule because it does not have as its specific intent the protection of the environment or the reduction of risk to human health from environmental exposure, nor will it have an adverse economic effect. Additionally, this rulemaking does not meet the definition of a major environmental rule because it does not meet any of the four applicability requirements listed in Texas Government Code, §2001.0225(a). Texas Government Code, §2001.0225, only applies 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. This rulemaking does not meet any of these four applicability requirements because the proposed rules: (1) are specifically required by state law, namely the TWC and Local Government Code, and do not exceed a standard set by federal law; (2) do not exceed the express requirements of the TWC or Local Government Code; (3) do not exceed a requirement of federal delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; and, (4) the proposed rules will not be adopted solely under the general powers of the commission.

Based on the foregoing, the proposed rulemaking does not constitute a major environmental rule and thus is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225.

The commission invites public comment regarding this draft regulatory impact analysis determination. Written comments on the draft regulatory impact analysis determination may be submitted to the contact person at the address listed under the SUBMITTAL OF COMMENTS section of this preamble.

TAKINGS IMPACT ASSESSMENT

The commission evaluated these proposed amendments to Chapter 291 and performed an analysis of whether these proposed rules constitute a taking under Texas Government Code, Chapter 2007. The intent of the proposed rules is to implement amendments enacted in SB 3, HB 140, and HB 3475, 80th Legislature, 2007.

The proposed rules would substantially advance the intent of the rulemaking by amending the definition of a landowner for the purpose of CCN regulation, allowing for consolidated billing and collection contracts between retail public water and sewer providers, allowing for adjustments to utility rates to account for increases or decreases in documented energy costs, revising the rules relating to obtaining, amending, and decertifying a municipality's CCN for water and sewer service, creating new duties of a water service provider to certain political subdivisions that provide sewer service to the same area, allowing a district to establish different utility rates among classes of customers, allowing a utility that takes over a nonfunctioning utility to charge reasonable temporary rates and give the utility a reasonable period of time to bring the nonfunctioning system into compliance with commission rules before the commission assesses penalties, and allowing certain counties to operate a utility in the same manner as a municipality under Local Government Code, Chapter 402.

Promulgation and enforcement of these proposed rules will constitute neither a statutory nor a constitutional taking of private real property. The proposed regulations do not adversely affect a landowner's rights in private real property, in whole or in part, temporarily or permanently, because this proposed rulemaking does not burden nor restrict or limit the owner's right to property. More specifically, these rules implement CCN regulations, water and sewer utility rate regulations, and other related regulations of water and sewer service providers, none of which imposes any burdens or restrictions on private real property. Therefore, the proposed amendments do not constitute a taking under Texas Government Code, Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the proposed rules and found that they are neither identified in 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). Therefore, the proposed rules are 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.

ANNOUNCEMENT OF HEARING

The commission will hold a public hearing on this proposal in Austin on February 26, 2008, at 2:00 p.m. in Building E, Room 201S, 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 prior to the hearing.

Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact John Gaete, Office of Legal Services at (512) 239-6091. Requests should be made as far in advance as possible.

SUBMITTAL OF COMMENTS

Comments may be submitted to John Gaete, 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. Electronic comments may be submitted at http://www5.tceq.state.tx.us/rules/ecomments/ . File size restrictions may apply to comments submitted via the eComments system. All comments should reference Rule Project Number 2007-048-291-PR. The comment period closes March 3, 2008. 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 Tammy Holguin-Benter, Water Supply Division, at (512) 239-6136.

Subchapter A. GENERAL PROVISIONS

30 TAC §291.3, §291.14

STATUTORY AUTHORITY

The amendments are proposed under Texas Water Code (TWC), §5.102, which provides the commission the general powers to carry out duties under TWC and TWC, §5.103, which provides the commission with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the TWC and other laws of this state. In addition, TWC, §13.041, states that the commission may regulate and supervise the business of every water and sewer utility within its jurisdiction and may do all things, whether specifically designated in TWC, Chapter 13 or implied in TWC, Chapter 13, necessary and convenient to the exercise of this power and jurisdiction. Further, TWC, §13.041 also states that the commission shall adopt and enforce rules reasonably required in the exercise of its powers and jurisdiction, including rules governing practice and procedure before the commission. Finally, TWC, §13.046 requires the commission to adopt rules that allow a retail public utility that takes over the provision of services for a nonfunctioning retail water or sewer utility service provider to charge a reasonable rate for the services provided to the customers of the nonfunctioning system.

The proposed amendments implement TWC, §13.002 and §13.046.

§291.3.Definitions of Terms.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.

(1) Acquisition adjustment--

(A) The difference between:

(i) the lesser of the purchase price paid by an acquiring utility or the current depreciated replacement cost of the plant, property, and equipment comparable in size, quantity, and quality to that being acquired, excluding customer contributed property; and

(ii) the original cost of the plant, property, and equipment being acquired, excluding customer contributed property, less accumulated depreciation.

(B) A positive acquisition adjustment results when subparagraph (A)(i) of this paragraph is greater than subparagraph (A)(ii) of this paragraph.

(C) A negative acquisition adjustment results when subparagraph (A)(ii) of this paragraph is greater than subparagraph (A)(i) of this paragraph.

(2) Affected county--A county to which Local Government Code, Chapter 232, Subchapter B, applies.

(3) Affected person--Any landowner within an area for which an application for a new or amended certificate of public convenience and necessity is filed; any retail public utility affected by any action of the regulatory authority; any person or corporation, whose utility service or rates are affected by any proceeding before the regulatory authority; or any person or corporation that is a competitor of a retail public utility with respect to any service performed by the retail public utility or that desires to enter into competition.

(4) Affiliated interest or affiliate--

(A) any person or corporation owning or holding directly or indirectly 5.0% or more of the voting securities of a utility;

(B) any person or corporation in any chain of successive ownership of 5.0% or more of the voting securities of a utility;

(C) any corporation 5.0% or more of the voting securities of which is owned or controlled directly or indirectly by a utility;

(D) any corporation 5.0% or more of the voting securities of which is owned or controlled directly or indirectly by any person or corporation that owns or controls directly or indirectly 5.0% or more of the voting securities of any utility or by any person or corporation in any chain of successive ownership of 5.0% of those utility securities;

(E) any person who is an officer or director of a utility or of any corporation in any chain of successive ownership of 5.0% or more of voting securities of a public utility;

(F) any person or corporation that the commission, after notice and hearing, determines actually exercises any substantial influence or control over the policies and actions of a utility or over which a utility exercises such control or that is under common control with a utility, such control being the possession directly or indirectly of the power to direct or cause the direction of the management and policies of another, whether that power is established through ownership or voting of securities or by any other direct or indirect means; or

(G) any person or corporation that the commission, after notice and hearing, determines is exercising substantial influence over the policies and action of the utility in conjunction with one or more persons or corporations with which they are related by ownership or blood relationship, or by action in concert, that together they are affiliated within the meaning of this section, even though no one of them alone is so affiliated.

(5) Agency--Any state board, commission, department, or officer having statewide jurisdiction (other than an agency wholly financed by federal funds, the legislature, the courts, the Workers? Compensation Commission, and institutions for higher education) which makes rules or determines contested cases.

(6) Allocations--For all retail public utilities, the division of plant, revenues, expenses, taxes, and reserves between municipalities, or between municipalities and unincorporated areas, where such items are used for providing water or sewer utility service in a municipality or for a municipality and unincorporated areas.

(7) Base rate--The portion of a consumer's utility bill which is paid for the opportunity of receiving utility service, excluding stand-by fees, which does not vary due to changes in utility service consumption patterns.

(8) Billing period--The usage period between meter reading dates for which a bill is issued or in nonmetered situations, the period between bill issuance dates.

(9) Certificate--The definition of certificate is that definition given to certificate of convenience and necessity in this subchapter.

(10) Certificate of Convenience and Necessity--A permit issued by the commission which authorizes and obligates a retail public utility to furnish, make available, render, or extend continuous and adequate retail water or sewer utility service to a specified geographic area.

(11) Certificate of Public Convenience and Necessity--The definition of certificate of public convenience and necessity is that definition given to certificate of convenience and necessity in this subchapter.

(12) Class of service or customer class--A description of utility service provided to a customer which denotes such characteristics as nature of use or type of rate.

(13) Code--The Texas Water Code.

(14) Corporation--Any corporation, joint-stock company, or association, domestic or foreign, and its lessees, assignees, trustees, receivers, or other successors in interest, having any of the powers and privileges of corporations not possessed by individuals or partnerships, but shall not include municipal corporations unless expressly provided otherwise in the Texas Water Code.

(15) Customer--Any person, firm, partnership, corporation, municipality, cooperative, organization, or governmental agency provided with services by any retail public utility.

(16) Customer service line or pipe--The pipe connecting the water meter to the customer's point of consumption or the pipe which conveys sewage from the customer's premises to the service provider's service line.

(17) Facilities--All the plant and equipment of a retail public utility, including all tangible and intangible real and personal property without limitation, and any and all means and instrumentalities in any manner owned, operated, leased, licensed, used, controlled, furnished, or supplied for, by, or in connection with the business of any retail public utility.

(18) Incident of tenancy--Water or sewer service, provided to tenants of rental property, for which no separate or additional service fee is charged other than the rental payment.

(19) Landowner--An owner or owners of a tract of land including multiple owners of a single deeded tract of land as shown on the appraisal roll of the appraisal district established for each county in which the property is located .

(20) License--The whole or part of any commission permit, certificate, registration, or similar form of permission required by law.

(21) Licensing--The commission process respecting the granting, denial, renewal, revocation, suspension, annulment, withdrawal, or amendment of a license, certificates of convenience and necessity, or any other authorization granted by the commission in accordance with its authority under the Texas Water Code.

(22) Main--A pipe operated by a utility service provider that is used for transmission or distribution of water or to collect or transport sewage.

(23) Mandatory water use reduction--The temporary reduction in the use of water imposed by court order, government agency, or other authority with appropriate jurisdiction. This does not include water conservation measures that seek to reduce the loss or waste of water, improve the efficiency in the use of water, or increase the recycling or reuse of water so that a water supply is made available for future or alternative uses.

(24) Member--A person who holds a membership in a water supply or sewer service corporation and who is a record owner of a fee simple title to property in an area served by a water supply or sewer service corporation, or a person who is granted a membership and who either currently receives or will be eligible to receive water or sewer utility service from the corporation. In determining member control of a water supply or sewer service corporation, a person is entitled to only one vote regardless of the number of memberships the person owns.

(25) Membership fee--A fee assessed each water supply or sewer service corporation service applicant that entitles the applicant to one connection to the water or sewer main of the corporation. The amount of the fee is generally defined in the corporation's bylaws and payment of the fee provides for issuance of one membership certificate in the name of the applicant, for which certain rights, privileges, and obligations are allowed under said bylaws. For purposes of Texas Water Code, §13.043(g), a membership fee is a fee not exceeding approximately 12 times the monthly base rate for water or sewer service or an amount that does not include any materials, labor, or services required for or provided by the installation of a metering device for the delivery of service, capital recovery, extension fees, buy-in fees, impact fees, or contributions in aid of construction.

(26) Municipality--A city, existing, created, or organized under the general, home rule, or special laws of this state.

(27) Municipally owned utility--Any retail public utility owned, operated, and controlled by a municipality or by a nonprofit corporation whose directors are appointed by one or more municipalities.

(28) Nonfunctioning system--A utility under the supervision of a receiver or temporary manager pursuant to §291.142 of this title (relating to Operation of Utility That Discontinues Operation or Is Referred for Appointment of a Receiver) and §291.143 of this title (relating to Operation of a Utility by a Temporary Manager), respectively.

(29) [ (28) ] Person--Any natural person, partnership, cooperative corporation, association, or public or private organization of any character other than an agency or municipality.

(30) [ (29) ] Physician--Any public health official, including, but not limited to, medical doctors, doctors of osteopathy, nurse practitioners, registered nurses, and any other similar public health official.

(31) [ (30) ] Point of use or point of ultimate use--The primary location where water is used or sewage is generated; for example, a residence or commercial or industrial facility.

(32) [ (31) ] Potable water--Water that is used for or intended to be used for human consumption or household use.

(33) [ (32) ] Premises--A tract of land or real estate including buildings and other appurtenances thereon.

(34) [ (33) ] Public utility--The definition of public utility is that definition given to water and sewer utility in this subchapter.

(35) [ (34) ] Purchased sewage treatment--Sewage treatment purchased from a source outside the retail public utility's system to meet system requirements.

(36) [ (35) ] Purchased water--Raw or treated water purchased from a source outside the retail public utility's system to meet system demand requirements.

(37) [ (36) ] Rate--Includes every compensation, tariff, charge, fare, toll, rental, and classification or any of them demanded, observed, charged, or collected, whether directly or indirectly, by any retail public utility, or water or sewer service supplier, for any service, product, or commodity described in Texas Water Code, §13.002(23), and any rules, regulations, practices, or contracts affecting any such compensation, tariff, charge, fare, toll, rental, or classification.

(38) [ (37) ] Ratepayer--Each person receiving a separate bill shall be considered as a ratepayer, but no person shall be considered as being more than one ratepayer notwithstanding the number of bills received. A complaint or a petition for review of a rate change shall be considered properly signed if signed by any person, or spouse of any such person, in whose name utility service is carried.

(39) [ (38) ] Reconnect fee--A fee charged for restoration of service where service has previously been provided. It may be charged to restore service after disconnection for reasons listed in §291.88 of this title (relating to Discontinuance of Service) or to restore service after disconnection at the customer's request.

(40) [ (39) ] Retail public utility--Any person, corporation, public utility, water supply or sewer service corporation, municipality, political subdivision or agency operating, maintaining, or controlling in this state facilities for providing potable water service or sewer service, or both, for compensation.

(41) [ (40) ] Retail water or sewer utility service--Potable water service or sewer service, or both, provided by a retail public utility to the ultimate consumer for compensation.

(42) [ (41) ] Safe drinking water revolving fund--The fund established by the Texas Water Development Board to provide financial assistance in accordance with the federal program established under the provisions of the Safe Drinking Water Act and as defined in Texas Water Code, §15.602.

(43) [ (42) ] Service--Any act performed, anything furnished or supplied, and any facilities or lines committed or used by a retail public utility in the performance of its duties under the Texas Water Code to its patrons, employees, other retail public utilities, and the public, as well as the interchange of facilities between two or more retail public utilities.

(44) [ (43) ] Service line or pipe--A pipe connecting the utility service provider's main and the water meter or for sewage, connecting the main and the point at which the customer's service line is connected, generally at the customer's property line.

(45) [ (44) ] Sewage--Ground garbage, human and animal, and all other waterborne type waste normally disposed of through the sanitary drainage system.

(46) [ (45) ] Standby fee--A charge imposed on unimproved property for the availability of water or sewer service when service is not being provided.

(47) [ (46) ] Tap fee--A tap fee is the charge to new customers for initiation of service where no service previously existed. A tap fee for water service may include the cost of physically tapping the water main and installing meters, meter boxes, fittings, and other materials and labor. A tap fee for sewer service may include the cost of physically tapping the main and installing the utility's service line to the customer's property line, fittings, and other material and labor. Water or sewer taps may include setting up the new customer's account, and allowances for equipment and tools used. Extraordinary expenses such as road bores and street crossings and grinder pumps may be added if noted on the utility's approved tariff. Other charges, such as extension fees, buy-in fees, impact fees, or contributions in aid of construction (CIAC) are not to be included in a tap fee.

(48) [ (47) ] Tariff--The schedule of a retail public utility containing all rates, tolls, and charges stated separately by type or kind of service and the customer class, and the rules and regulations of the retail public utility stated separately by type or kind of service and the customer class.

(49) [ (48) ] Temporary water rate provision--A provision in a utility's tariff that allows a utility to adjust its rates in response to mandatory water use reduction.

(50) [ (49) ] Test year--The most recent 12-month period for which representative operating data for a retail public utility are available. A utility rate filing must be based on a test year that ended less than 12 months before the date on which the utility made the rate filing.

(51) [ (50) ] Utility--The definition of utility is that definition given to water and sewer utility in this subchapter.

(52) [ (51) ] Water and sewer utility--Any person, corporation, cooperative corporation, affected county, or any combination of those persons or entities, other than a municipal corporation, water supply or sewer service corporation, or a political subdivision of the state, except an affected county, or their lessees, trustees, and receivers, owning or operating for compensation in this state equipment or facilities for the production, transmission, storage, distribution, sale, or provision of potable water to the public or for the resale of potable water to the public for any use or for the collection, transportation, treatment, or disposal of sewage or other operation of a sewage disposal service for the public, other than equipment or facilities owned and operated for either purpose by a municipality or other political subdivision of this state or a water supply or sewer service corporation, but does not include any person or corporation not otherwise a public utility that furnishes the services or commodity only to itself or its employees or tenants as an incident of that employee service or tenancy when that service or commodity is not resold to or used by others.

(53) [ (52) ] Water use restrictions--Restrictions implemented to reduce the amount of water that may be consumed by customers of the system due to emergency conditions or drought.

(54) [ (53) ] Water supply or sewer service corporation--Any nonprofit corporation organized and operating under Texas Water Code, Chapter 67, that provides potable water or sewer service for compensation and that has adopted and is operating in accordance with by-laws or articles of incorporation which ensure that it is member-owned and member-controlled. The term does not include a corporation that provides retail water or sewer service to a person who is not a member, except that the corporation may provide retail water or sewer service to a person who is not a member if the person only builds on or develops property to sell to another and the service is provided on an interim basis before the property is sold. For purposes of this chapter, to qualify as member-owned, member-controlled a water supply or sewer service corporation must also meet the following conditions.

(A) All members of the corporation meet the definition of "member" under this section, and all members are eligible to vote in those matters specified in the articles and bylaws of the corporation. Payment of a membership fee in addition to other conditions of service may be required provided that all members have paid or are required to pay the membership fee effective at the time service is requested.

(B) Each member is entitled to only one vote regardless of the number of memberships owned by that member.

(C) A majority of the directors and officers of the corporation must be members of the corporation.

(D) The corporation's by-laws include language indicating that the factors specified in subparagraphs (A) - (C) of this paragraph are in effect.

(55) [ (54) ] Wholesale water or sewer service--Potable water or sewer service, or both, provided to a person, political subdivision, or municipality who is not the ultimate consumer of the service.

§291.14.Emergency Orders.

(a) The commission may issue emergency orders, with or without a hearing:

(1) to compel a water or sewer service provider that has obtained or is required to obtain a certificate of public convenience and necessity to provide continuous and adequate water service, sewer service, or both, if the discontinuance of the service is imminent or has occurred because of the service provider's actions or failure to act. These orders may contain provisions requiring specific utility actions to ensure continuous and adequate utility service and compliance with regulatory guidelines;

(2) to compel a retail public utility to provide an emergency interconnection with a neighboring retail public utility for the provision of temporary water or sewer service, or both, for not more than 90 days if service discontinuance or serious impairment in service is imminent or has occurred; and/or

(3) to establish reasonable compensation for the temporary service required under paragraph (2) of this subsection and may allow the retail public utility receiving the service to make a temporary adjustment to its rate structure to ensure proper payment.

(b) The commission or executive director may also issue orders under Chapter 35 of this title (relating to Emergency and Temporary Orders and Permits; Temporary Suspension or Amendment of Permit Conditions):

(1) to appoint a temporary manager under Texas Water Code, §5.507 and §13.4132; and/or

(2) to approve an emergency rate increase under Texas Water Code, §5.508 , [ and ] §13.4133 and §13.046 .

(c) If an order is issued under this section without a hearing, the order shall fix a time, as soon after the emergency order is issued as is practicable, and place for a hearing to be held before the commission.

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 17, 2008.

TRD-200800210

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 2, 2008

For further information, please call: (512) 239-6091

30 TAC §291.21

STATUTORY AUTHORITY

The amendment is proposed under Texas Water Code (TWC), §5.102, which provides the commission the general powers to carry out duties under the TWC and §5.103, which provides the commission with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the TWC and other laws of this state. In addition, TWC, §13.041, states that the commission may regulate and supervise the business of every water and sewer utility within its jurisdiction and may do all things, whether specifically designated in TWC, Chapter 13 or implied in TWC, Chapter 13, necessary and convenient to the exercise of this power and jurisdiction. Further, TWC, §13.041, also states that the commission shall adopt and enforce rules reasonably required in the exercise of its powers and jurisdiction, including rules governing practice and procedure before the commission. Additionally, TWC, §13.046 requires the commission to adopt rules that allow a retail public utility that takes over the provision of services for a nonfunctioning retail water or sewer utility service provider to charge a reasonable rate for the services provided to the customers of the nonfunctioning system. Finally, TWC, §13.188, mandates that the commission shall adopt a procedure allowing a utility to file an application with the commission to timely adjust the utility's rates to reflect an increase or decrease in documented energy costs.

The proposed amendment implements TWC, §§13.046, 13.147 and 13.188.

§291.21.Form and Filing of Tariffs.

(a) Approved tariff. A utility may not directly or indirectly demand, charge, or collect any rate or charge, or impose any classifications, practices, rules, or regulations different from those prescribed in its approved tariff filed with the commission or with the municipality exercising original jurisdiction over the utility, except as noted in this subsection. A utility may charge the rates proposed under Texas Water Code (TWC), §13.187(a) (relating to Statement of Intent to Change Rates) after the proposed effective date, unless the rates are suspended or the commission or a judge sets interim rates. The regulatory assessment required in TWC, §5.235(n) does not have to be listed on the utility's approved tariff to be charged and collected but must be included in the tariff at the earliest opportunity. A person who possesses facilities used to provide water utility service or a utility that holds a certificate of public convenience and necessity to provide water service that enters into an agreement in accordance with TWC, §13.250(b)(2), may collect charges for wastewater services on behalf of another retail public utility on the same bill with its water charges and shall at the earliest opportunity include a notation on its tariff that it has entered into such an agreement. A utility may enter into a contract with a county to collect solid waste disposal fees and include those fees on the same bill with its water charges and shall at the earliest opportunity include a notation on its tariff that it has entered into such an agreement.

(b) Requirements as to size, form, identification, minor changes, and filing of tariffs.

(1) Tariffs filed with applications for certificates of convenience and necessity.

(A) Every public utility shall file with the commission the number of copies of its tariff required in the application form containing schedules of all its rates, tolls, charges, rules, and regulations pertaining to all of its utility service when it applies for a certificate of convenience and necessity to operate as a public utility. The tariff must be on the form the commission prescribes or another form acceptable to the commission.

(B) Every water supply or sewer service corporation shall file with the commission the number of copies of its tariff required in the application form containing schedules of all its rates, tolls, charges, rules, and regulations pertaining to all of its utility service when it applies for a certificate of convenience and necessity to operate as a retail public utility.

(2) Minor tariff changes. Except for an affected county, a public utility's approved tariff may not be changed or amended without commission approval. An affected county may change rates for water or wastewater service without commission approval but shall file a copy of the revised tariff with the commission within 30 days after the effective date of the rate change.

(A) The executive director may approve the following minor changes to tariffs:

(i) service rules and policies;

(ii) changes in fees for customer deposits, meter tests, return check charges, and late charges, provided they do not exceed the maximum allowed by the applicable sections;

(iii) implementation of a purchased water or sewage treatment provision, a temporary water rate provision in response to mandatory reductions in water use imposed by a court, government agency, or other authority, or water use fee provision previously approved by the commission;

(iv) surcharges over a time period determined by the executive director to reflect the change in the actual cost to the utility for sampling costs, commission inspection fees, or at the discretion of the executive director, other governmental requirements beyond the utility's control;

(v) addition of the regulatory assessment as a separate item or to be included in the currently authorized rate;

(vi) addition of a provision allowing a utility to collect wastewater charges in accordance with TWC, §13.250(b)(2) or §13.147(d) ;

(vii) rate adjustments to implement authorized phased or multi-step rates or downward rate adjustments to reconcile rates with actual costs; or

(viii) addition of a production fee charged by a groundwater conservation district as a separate item calculated by multiplying the customer's total consumption, including the number of gallons in the base bill, by the actual production fee per thousand gallons.

(B) The addition of an extension policy to a tariff or a change to an existing extension policy does not qualify as a minor tariff change because it must be approved or amended in a rate change application.

(3) Tariff revisions and tariffs filed with rate changes. The utility shall file three copies of each revision or in the case of a rate change, the number required in the application form. Each revision must be accompanied by a cover page that contains a list of pages being revised, a statement describing each change, its effect if it is a change in an existing rate, and a statement as to impact on rates of the change by customer class, if any. If a proposed tariff revision constitutes an increase in existing rates of a particular customer class or classes, then the commission may require that notice be given.

(4) Rate schedule. Each rate schedule must clearly state the territory, subdivision, city, or county in which the schedule is applicable.

(5) Tariff sheets. Tariff sheets must be numbered consecutively. Each sheet must show an effective date, a revision number, section number, sheet number, name of the utility, the name of the tariff, and title of the section in a consistent manner. Sheets issued under new numbers must be designated as original sheets. Sheets being revised must show the number of the revision, and the sheet numbers must be the same.

(c) Composition of tariffs. A utility's tariff, including those utilities operating within the corporate limits of a municipality, must contain sections setting forth:

(1) a table of contents;

(2) a list of the cities and counties, and subdivisions or systems, in which service is provided;

(3) the certificate of convenience and necessity number under which service is provided;

(4) the rate schedules;

(5) the service rules and regulations, including forms of the service agreements, if any, and customer service inspection forms required to be completed under §290.46(j) of this title (relating to Minimum Acceptable Operating Practices for Public Drinking Water Systems) if the form used deviates from that specified in §290.47(d) of this title (relating to Appendices);

(6) the extension policy;

(7) an approved drought contingency plan as required by §288.20 of this title (relating to Drought Contingency Plans for Municipal Uses by Public Water Suppliers); and

(8) the form of payment to be accepted for utility services.

(d) Tariff filings in response to commission orders. Tariff filings made in response to an order issued by the commission must include a transmittal letter stating that the tariffs attached are in compliance with the order, giving the application number, date of the order, a list of tariff sheets filed, and any other necessary information. Any service rules proposed in addition to those listed on the commission's model tariff or any modifications of a rule in the model tariff must be clearly noted. All tariff sheets must comply with all other sections in this chapter and must include only changes ordered. The effective date and/or wording of the tariffs must comply with the provisions of the order.

(e) Availability of tariffs. Each utility shall make available to the public at each of its business offices and designated sales offices within Texas all of its tariffs currently on file with the commission or regulatory authority, and its employees shall lend assistance to persons requesting information and afford these persons an opportunity to examine any of such tariffs upon request. The utility also shall provide copies of any portion of the tariffs at a reasonable cost to reproduce such tariff for a requesting party.

(f) Rejection. Any tariff filed with the commission and found not to be in compliance with this section must be so marked and returned to the utility with a brief explanation of the reasons for rejection.

(g) Change by other regulatory authorities. Tariffs must be filed to reflect changes in rates or regulations set by other regulatory authorities and must include a copy of the order or ordinance authorizing the change. Each utility operating within the corporate limits of a municipality exercising original jurisdiction shall file with the commission a copy of its current tariff that has been authorized by the municipality.

(h) Purchased water or sewage treatment provision.

(1) A utility that purchases water or sewage treatment may include a provision in its tariff to pass through to its customers changes in such costs. The provision must specify how it is calculated and affects customer billings.

(2) This provision must be approved by the commission in a rate proceeding. A proposed change in the method of calculation of the provision must be approved in a rate proceeding.

(3) Once the provision is approved, any revision of a utility's billings to its customers to allow for the recovery of additional costs under the provision may be made only upon issuing notice as required by paragraph (4) of this subsection. The executive director's review of a proposed revision is an informal proceeding. Only the commission, the executive director, or the utility may request a hearing on the proposed revision. The recovery of additional costs is defined as an increase in water use fees or in costs of purchased water or sewage treatment.

(4) A utility that wishes to revise utility billings to its customers pursuant to an approved purchased water or sewer treatment or water use fee provision to allow for the recovery of additional costs shall take the following actions prior to the beginning of the billing period in which the revision takes effect:

(A) submit a written notice to the executive director; and

(B) mail notice to the utility's customers. Notice may be in the form of a billing insert and must contain the effective date of the change, the present calculation of customer billings, the new calculation of customer billings, and the change in charges to the utility for purchased water or sewage treatment or water use fees. The notice must include the following language: "This tariff change is being implemented in accordance with the utility's approved (purchased water) (purchased sewer) (water use fee) adjustment clause to recognize (increases) (decreases) in the (water use fee) (cost of purchased) (water) (sewage treatment). The cost of these charges to customers will not exceed the (increased) (decreased) cost of (the water use fee) (purchased) (water) (sewage treatment)."

(5) Notice to the commission must include a copy of the notice sent to the customers, proof that the cost of purchased water or sewage treatment has changed by the stated amount, and the calculations and assumptions used to determine the new rates.

(6) Purchased water or sewage treatment provisions may not apply to contracts or transactions between affiliated interests.

(i) Effective date. The effective date of a tariff change is the date of approval by the executive director unless otherwise stated in the letter transmitting the approval or the date of approval by the commission, unless otherwise specified in a commission order or rule. The effective date of a proposed rate increase under TWC, §13.187 is the proposed date on the notice to customers and the commission, unless suspended and must comply with the requirements of §291.8(b) of this title (relating to Administrative Completeness).

(j) Tariffs filed by water supply or sewer service corporations. Every water supply or sewer service corporation shall file, for informational purposes only, one copy of its tariff showing all rates that are subject to the appellate jurisdiction of the commission and that are in force for any utility service, product, or commodity offered. The tariff must include all rules and regulations relating to or affecting the rates, utility service or extension of service or product, or commodity furnished and shall specify the certificate of convenience and necessity number and in which counties or cities it is effective.

(k) Surcharge.

(1) A surcharge is an authorized rate to collect revenues over and above the usual cost of service.

(2) If specifically authorized for the utility in writing by the executive director or the municipality exercising original jurisdiction over the utility, a surcharge to recover the actual increase in costs to the utility may be collected over a specifically authorized time period without being listed on the approved tariff for:

(A) sampling fees not already included in rates;

(B) inspection fees not already included in rates;

(C) production fees or connection fees not already included in rates charged by a groundwater conservation district; [ or ]

(D) other governmental requirements beyond the control of the utility ; or [ . ]

(E) costs under TWC, §13.046 to allow the retail public utility to charge a reasonable rate for interconnection costs, other costs incurred in making services available and costs that will be incurred to bring the nonfunctioning system into compliance with the commission's rule.

(3) A utility shall use the revenues collected pursuant to a surcharge only for the purposes noted and handle the funds in the manner specified according to the notice or application submitted by the utility to the commission, unless otherwise directed by the executive director. The utility may redirect or use the revenues for other purposes only after first obtaining the approval of the executive director.

(4) The executive director may authorize a surcharge to reflect an increase or decrease in documented energy costs. Documented decreases in energy costs must be refunded within a reasonable time to the utility's customers. The pass through, whether an increase or decrease, shall be implemented on no later than an annual basis unless the executive director determines a special circumstance applies. This adjustment is an uncontested matter not subject to a contested case hearing, however the executive director shall hold an uncontested public meeting on the request of a member of the legislature who represents the area served by the water and/or sewer utility or if the executive director determines that there is substantial public interest in the matter.

(l) Temporary water rate.

(1) A utility's tariff may include a temporary water rate provision that will allow the utility to increase its retail customer rates during periods when a court, government agency, or other authority orders mandatory water use reduction measures that affect the utility customers' use of water service and the utility's water revenues. Implementation of the temporary water rate provision will allow the utility to recover from customers revenues that the utility would otherwise have lost due to mandatory water use reductions in accordance with the temporary water rate provision approved by the commission. If a utility obtains a portion of its water supply from another unrestricted water source or water supplier during the time the temporary water rate is in effect, the rate resulting from implementation of the temporary water rate provision must be adjusted to account for the supplemental water supply and to limit over-recovery of revenues from customers. A temporary water rate provision may not be implemented by a utility if there exists an available, unrestricted, alternative water supply that the utility can use to immediately replace, without additional cost, the water made unavailable because of the action requiring a mandatory reduction of use of the affected water supply.

(2) The temporary water rate provision must be approved by the commission in a rate proceeding before it may be included in the utility's approved tariff or implemented as provided in this subsection. A proposed change in the temporary water rate must be approved in a rate proceeding. A utility that has filed a rate change within the last 12 months may file a request for the limited purpose of obtaining a temporary water rate provision.

(3) A utility may request a temporary water rate provision using the formula in this paragraph to recover 50% or less of the revenues that would otherwise have been lost due to mandatory water use reductions through a limited rate proceeding. The formula for a temporary water rate provision under this paragraph is:

Figure: 30 TAC §291.21(l)(3) (No change.)

(A) The utility shall file a temporary water rate application prescribed by the executive director and provide customer notice as required in the application, but is not required to provide complete financial data to support its existing rates. Notice must include a statement of when the temporary water rate provision would be implemented, the classes of customers affected, the rates affected, information on how to protest the rate change, the required number of protests to ensure a hearing, the address of the commission, the time frame for protests, and any other information that is required by the executive director in the temporary water rate application. The utility's existing rates are not subject to review in the proceeding and the utility is only required to support the need for the temporary rate. A request for a temporary water rate provision under this paragraph is not considered a statement of intent to increase rates subject to the 12-month limitation in §291.23 of this title (relating to Time between Filings).

(B) The utility shall establish that the projected revenues that will be generated by the temporary water rate provision are required by the utility to pay reasonable and necessary expenses that will be incurred by the utility during the time mandatory water use reductions are in effect.

(4) A utility may request a temporary water rate provision using the formula in paragraph (3) of this subsection or any other method acceptable to the commission to recover up to 100% of the revenues that would otherwise have been lost due to mandatory water use reductions.

(A) If the utility requests authorization to recover more than 50% of lost revenues, it shall submit financial data to support its existing rates as well as the temporary water rate provision even if no other rates are proposed to be changed. The utility shall complete a rate application and provide notice in accordance with the requirements of §291.22 of this title (relating to Notice of Intent To Change Rates). The utility's existing rates are subject to review in addition to the temporary water rate provision.

(B) The utility shall establish that the projected revenues that will be generated by the temporary water rate provision are required by the utility to pay reasonable and necessary expenses that will be incurred by the utility during the time mandatory water use reductions are in effect; that the rate of return granted by the commission in the utility's last rate case does not adequately compensate the utility for the foreseeable risk that mandatory water use reductions will be ordered; and that revenues generated by existing rates do not exceed reasonable cost of service.

(5) The utility may place the temporary water rate into effect only after:

(A) the temporary water provision has been approved by the commission and included in the utility's approved tariff in a prior rate proceeding;

(B) there is an action by a court, government agency, or other authority requiring mandatory water use reduction measures that affect the utility's customers' use of utility services; and

(C) issuing notice as required by paragraph (7) of this subsection.

(6) The utility may readjust its rates using the temporary water rate provision as necessary to respond to modifications or changes to the original order requiring mandatory water use reductions by reissuing notice as required by paragraph (7) of this subsection. The executive director's review of the proposed implementation of an approved temporary water rate provision is an informal proceeding. Only the commission, the executive director, or the utility may request a hearing on the proposed implementation.

(7) A utility that wishes to place a temporary water rate into effect shall take the following actions prior to the beginning of the billing period in which the temporary water rate takes effect:

(A) submit a written notice, including a copy of the notice received from the court, government agency, or other authority requiring the reduction in water use, to the executive director; and

(B) mail notice to the utility's customers. Notice may be in the form of a billing insert and must contain the effective date of the implementation and the new rate the customers will pay after the temporary water rate is implemented. The notice must include the following language: "This rate change is being implemented in accordance with the temporary water rate provision approved by the Texas Commission on Environmental Quality to recognize the loss of revenues due to mandatory water use reduction ordered by (name of entity issuing order). The new rates will be effective on (date) and will remain in effect until the mandatory water use reductions are lifted or expired. The purpose of the rate is to ensure the financial integrity of the utility. The utility will recover through the rate (the percentage authorized by the temporary rate) % of the revenues the utility would otherwise have lost due to mandatory water use reduction by increasing the volume charge from ($ per 1,000 gallons to $ per 1,000 gallons)."

(8) A utility shall stop charging a temporary water rate as soon as is practical after the order that required mandatory water use reduction is ended, but in no case later than the end of the billing period that was in effect when the order was ended. The utility shall notify its customers of the date that the temporary water rate ends and that its rates will return to the level authorized before the temporary water rate was implemented.

(9) If the commission initiates an inquiry into the appropriateness or the continuation of a temporary water rate, it may establish the effective date of its decision on or after the date the inquiry is filed.

(m) Multiple system consolidation. Except as otherwise provided in subsection (o) of this section, a utility may consolidate its tariff and rate design for more than one system if:

(1) the systems included in the tariff are substantially similar in terms of facilities, quality of service, and cost of service; and

(2) the tariff provides for rates that promote water conservation for single-family residences and landscape irrigation.

(n) Regional rates. The commission, where practicable, shall consolidate the rates by region for applications submitted with a consolidated tariff and rate design for more than one system.

(o) Exemption. Subsection (m) of this section does not apply to a utility that provided service in only 24 counties on January 1, 2003.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 17, 2008.

TRD-200800211

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 2, 2008

For further information, please call: (512) 239-6091

30 TAC §291.41

STATUTORY AUTHORITY

The amendment is proposed under Texas Water Code (TWC), §5.102, which provides the commission the general powers to carry out duties under the TWC and §5.103, which provides the commission with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the TWC and other laws of this state. In addition, TWC, §13.041, states that the commission may regulate and supervise the business of every water and sewer utility within its jurisdiction and may do all things, whether specifically designated in TWC, Chapter 13 or implied in TWC, Chapter 13, necessary and convenient to the exercise of this power and jurisdiction. Further, TWC, §13.041, also states that the commission shall adopt and enforce rules reasonably required in the exercise of its powers and jurisdiction, including rules governing practice and procedure before the commission.

The proposed amendment implements TWC, §49.2122.

§291.41.Appeal of Rate-making Pursuant to the Texas Water Code, §13.043.

(a) Any party to a rate proceeding before the governing body of a municipality may appeal the decision of the governing body to the commission. This subsection does not apply to a municipally owned utility, but does include privately owned utilities operating within the corporate limits of a municipality. An appeal under this subsection may be initiated by filing with the commission a petition signed by a responsible official of the party to the rate proceeding or its authorized representative and accompanied by the filing fee as required by Texas Water Code, §5.235 and by serving a copy of the petition on all parties to the original proceeding. The appeal must be initiated within 90 days after the date of notice of the final decision of the governing body.

(b) An appeal under Texas Water Code, §13.043(b) must be initiated within 90 days after the effective date of the rate change or, if appealing under §13.043(b)(2) or (5), within 90 days after the date on which the governing body of the municipality or affected county makes a final decision. An appeal is initiated by filing an original and four copies of a petition for review with the commission and by filing a copy of the petition with the entity providing service and with the governing body whose decision is being appealed if it is not the entity providing service. The petition must be signed by the lesser of 10,000 or 10% of the ratepayers whose rates have been changed and who are eligible to appeal under subsection (c) of this section.

(c) Retail ratepayers of the following entities may appeal the decision of the governing body of the entity affecting their water or sewer utility rates to the commission:

(1) a nonprofit water supply or sewer service corporation created and operating under Texas Water Code, Chapter 67;

(2) a utility under the jurisdiction of a municipality inside the corporate limits of the municipality;

(3) a municipally owned utility, if the ratepayers reside outside the corporate limits of the municipality;

(4) a district or authority created under the Texas Constitution, Article III, §52, or Article XVI, §59, that provides water or sewer service to household users; and

(5) a utility owned by an affected county, if the ratepayers' rates are actually or may be adversely affected. For the purposes of this subchapter, ratepayers who reside outside the boundaries of the district or authority shall be considered a separate class from ratepayers who reside inside those boundaries; and

(6) in an appeal under this subsection, the retail public utility shall provide written notice of hearing to all affected customers in a form prescribed by the executive director.

(d) In an appeal under Texas Water Code, §13.043(b), each person receiving a separate bill is considered a ratepayer, but one person may not be considered more than one ratepayer regardless of the number of bills the person receives. The petition for review is considered properly signed if signed by a person, or the spouse of the person, in whose name utility service is carried.

(e) The commission shall hear an appeal under this section de novo and fix in its final order the rates the governing body should have fixed in the action from which the appeal was taken. The commission may:

(1) in an appeal under the Texas Water Code, §13.043(a), include reasonable expenses incurred in the appeal proceedings;

(2) in an appeal under the Texas Water Code, §13.043(b), included reasonable expenses incurred by the retail public utility in the appeal proceedings;

(3) establish the effective date;

(4) order refunds or allow surcharges to recover lost revenues;

(5) consider only the information that was available to the governing body at the time the governing body made its decision and evidence of reasonable expenses incurred in the appeal proceedings; or

(6) establish interim rates to be in effect until a final decision is made.

(f) A retail public utility that receives water or sewer service from another retail public utility or political subdivision of the state, including an affected county, may appeal to the commission, a decision of the provider of water or sewer service affecting the amount paid for water or sewer service. An appeal under this subsection must be initiated within 90 days after notice of the decision is received from the provider of the service by filing a petition by the retail public utility and accompanied by the filing fee as required by Texas Water Code, §5.235.

(g) An applicant requesting service from an affected county or a water supply or sewer service corporation may appeal to the commission a decision of the county or water supply or sewer service corporation affecting the amount to be paid to obtain service other than the regular membership or tap fees. An appeal under Texas Water Code, §13.043(g) must be initiated within 90 days after written notice of the amount to be paid to obtain service is provided to the service applicant or member of the decision of an affected county or water supply or sewer service corporation affecting the amount to be paid to obtain service as requested in the applicant's initial request for that service. The appeal must be accompanied by a $100 filing fee as required by Texas Water Code, §5.235.

(1) If the commission finds the amount charged to be clearly unreasonable, it shall establish the fee to be paid and shall establish conditions for the applicant to pay any amounts due to the affected county or water supply or sewer service corporation. Unless otherwise ordered, any portion of the charges paid by the applicant that exceed the amount determined in the commission's order shall be repaid to the applicant with interest at a rate determined by the commission within 30 days of the signing of the order.

(2) In an appeal brought under this subsection, the commission shall affirm the decision of the water supply or sewer service corporation if the amount paid by the applicant or demanded by the water supply or sewer service corporation is consistent with the tariff of the water supply or sewer service corporation and is reasonably related to the cost of installing on-site and off-site facilities to provide service to that applicant, in addition to the factors specified under subsection (i) of this section.

(3) A determination made by the commission on an appeal from an applicant for service from a water supply or sewer service corporation under this subsection is binding on all similarly situated applicants for service, and the commission may not consider other appeals on the same issue until the applicable provisions of the tariff of the water supply or sewer service corporation are amended.

(h) The commission may, on a motion by the executive director or by the appellant under subsection (a), (b), or (f) of this section, establish interim rates to be in effect until a final decision is made.

(i) In an appeal under this section, the commission shall ensure that every rate made, demanded, or received by any retail public utility or by any two or more retail public utilities jointly is just and reasonable. Rates must not be unreasonably preferential, prejudicial, or discriminatory but must be sufficient, equitable, and consistent in application to each class of customers. The commission shall use a methodology that preserves the financial integrity of the retail public utility. To the extent of a conflict between this subsection and Texas Water Code, §49.2122, Texas Water Code, §49.2122 prevails.

(j) A customer of a water supply corporation may appeal to the commission a water conservation penalty. The customer shall initiate an appeal under Texas Water Code, §67.011(b) within 90 days after the customer receives written notice of the water conservation penalty amount from the water supply corporation per its tariff. The appeal must be accompanied by a $100 filing fee as required by Texas Water Code, §5.235. The commission shall approve the water supply corporation's water conservation penalty if:

(1) the penalty is clearly stated in the tariff;

(2) the penalty is reasonable and does not exceed six times the minimum monthly bill in the water supply corporation's current tariff; and

(3) the water supply corporation has deposited the penalty in a separate account dedicated to enhancing water supply for the benefit of all of the water supply corporation's customers.

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 17, 2008.

TRD-200800212

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 2, 2008

For further information, please call: (512) 239-6091

30 TAC §291.87, §291.88

STATUTORY AUTHORITY

The amendments are proposed under Texas Water Code (TWC), §5.102, which provides the commission the general powers to carry out duties under the TWC and §5.103, which provides the commission with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the TWC and other laws of this state. In addition, TWC, §13.041, states that the commission may regulate and supervise the business of every water and sewer utility within its jurisdiction and may do all things, whether specifically designated in TWC, Chapter 13 or implied in TWC, Chapter 13, necessary and convenient to the exercise of this power and jurisdiction. Further, TWC, §13.041, also states that the commission shall adopt and enforce rules reasonably required in the exercise of its powers and jurisdiction, including rules governing practice and procedure before the commission.

The proposed amendments implement TWC, §13.147 and Local Government Code, §402.911.

§291.87.Billing.

(a) Authorized rates. Bills must be calculated according to the rates approved by the regulatory authority and listed on the utility's approved tariff. Unless specifically authorized by the commission, a utility may not apply a metered rate to customers in a subdivision or geographically defined area unless all customers in the subdivision or geographically defined area are metered.

(b) Due date.

(1) The due date of the bill for utility service may not be less than 16 days after issuance unless the customer is a state agency. If the customer is a state agency, the due date for the bill may not be less than 30 days after issuance unless otherwise agreed to by the state agency. The postmark on the bill or the recorded date of mailing by the utility if there is no postmark on the bill, constitutes proof of the date of issuance. Payment for utility service is delinquent if the full payment, including late fees and regulatory assessments, is not received at the utility or at the utility's authorized payment agency by 5:00 p.m. on the due date. If the due date falls on a holiday or weekend, the due date for payment purposes is the next work day after the due date.

(2) If a utility has been granted an exception to the requirements for a local office in accordance with §291.81(d)(3) of this title (relating to Customer Relations), the due date of the bill for utility service may not be less than 30 days after issuance.

(c) Penalty on delinquent bills for retail service. Unless otherwise provided, a one-time penalty of either $5.00 or 10% for all customers may be charged for delinquent bills. If, after receiving a bill including a late fee, a customer pays the bill in full except for the late fee, the bill may be considered delinquent and subject to termination after proper notice under §291.88 of this title (relating to Discontinuance of Service). An additional late fee may not be applied to a subsequent bill for failure to pay the prior late fee. The penalty on delinquent bills may not be applied to any balance to which the penalty was applied in a previous billing. No such penalty may be charged unless a record of the date the utility mails the bills is made at the time of the mailing and maintained at the principal office of the utility. Late fees may not be charged on any payment received by 5:00 p.m. on the due date at the utility's office or authorized payment agency. The commission may prohibit a utility from collecting late fees for a specified period if it determines that the utility has charged late fees on payments that were not delinquent.

(d) Deferred payment plan. A deferred payment plan is any arrangement or agreement between the utility and a customer in which an outstanding bill will be paid in installments. The utility shall offer a deferred payment plan to any residential customer if the customer's bill is more than three times the average monthly bill for that customer for the previous 12 months and if that customer has not been issued more than two disconnection notices at any time during the preceding 12 months. In all other cases, the utility is encouraged to offer a deferred payment plan to residential customers who cannot pay an outstanding bill in full but are willing to pay the balance in reasonable installments. A deferred payment plan may include a finance charge that may not exceed an annual rate of 10% simple interest. Any finance charges must be clearly stated on the deferred payment agreement.

(e) Rendering and form of bills.

(1) Bills for water and sewer service shall be rendered monthly unless otherwise authorized by the commission, or unless service is terminated before the end of a billing cycle. Service initiated less than one week before the next billing cycle begins may be billed with the following month's bill. Bills shall be rendered as promptly as possible following the reading of meters. One bill shall be rendered for each meter.

(2) The customer's bill must include the following information, if applicable, and must be arranged so as to allow the customer to readily compute the bill with a copy of the applicable rate schedule:

(A) if the meter is read by the utility, the date and reading of the meter at the beginning and at the end of the period for which the bill is rendered;

(B) the number and kind of units metered;

(C) the applicable rate class or code;

(D) the total amount due for water service;

(E) the amount deducted as a credit required by a commission order;

(F) the amount due as a surcharge;

(G) the total amount due on or before the due date of the bill;

(H) the due date of the bill;

(I) the date by which customers must pay the bill in order to avoid addition of a penalty;

(J) the total amount due as penalty for nonpayment within a designated period;

(K) a distinct marking to identify an estimated bill;

(L) any conversions from meter reading units to billing units, or any other calculations to determine billing units from recording or other devices, or any other factors used in determining the bill;

(M) the total amount due for sewer service;

(N) the gallonage used in determining sewer usage;

(O) the local telephone number or toll free number where the utility can be reached.

(3) Except for an affected county or for solid waste disposal fees collected under a contract with a county or other public agency, charges for nonutility services or any other fee or charge not specifically authorized by the Texas Water Code or these rules or specifically listed on the utility's approved tariff may not be included on the bill.

(f) Charges for sewer service. Utilities are not required to use meters to measure the quantity of sewage disposed of by individual customers. When a sewer utility is operated in conjunction with a water utility that serves the same customer, the charge for sewage disposal service may be based on the consumption of water as registered on the customer's water meter. Where measurement of water consumption is not available, the utility shall use the best means available for determining the quantity of sewage disposal service used. A method of separating customers by class shall be adopted so as to apply rates that will accurately reflect the cost of service to each class of customer.

(g) Consolidated billing and collection contracts.

(1) This subsection applies to all retail public utilities.

(2) A retail public utility providing water service may contract with a retail public utility providing sewer service to bill and collect the sewer service provider's fees and payments as part of a consolidated process with the billing and collection of the water service provider's fees and payments. The water service provider may provide that service only for customers who are served by both providers in an area covered by both providers' certificates of public convenience and necessity. If the water service provider refuses to enter into a contract under this section or if the water service provider and sewer service provider cannot agree on the terms of a contract, the sewer service provider may petition the commission to issue an order requiring the water service provider to provide that service.

(3) A contract or order under this subsection must provide procedures and deadlines for submitting filing and customer information to the water service provider and for the delivery of collected fees and payments to the sewer service provider.

(4) A contract or order under this subsection may require or permit a water service provider that provides consolidated billing and collection of fees and payments to:

(A) terminate the water services of a person whose sewage services account is in arrears for nonpayment; and

(B) charge a customer a reconnection fee if the customer's water service is terminated for nonpayment of the customer's sewage services account.

(5) A water service provider that provides consolidated billing and collection of fees and payments may impose on each sewer service provider customer a reasonable fee to recover costs associated with providing consolidated billing and collection of fees and payments for sewage services.

(h) [ (g) ] Overbilling and underbilling. If billings for utility service are found to differ from the utility's lawful rates for the services being provided to the customer, or if the utility fails to bill the customer for such services, a billing adjustment shall be calculated by the utility. If the customer is due a refund, an adjustment must be made for the entire period of the overcharges. If the customer was undercharged, the utility may backbill the customer for the amount that was underbilled. The backbilling may not exceed 12 months unless such undercharge is a result of meter tampering, bypass, or diversion by the customer as defined in §291.89 of this title (relating to Meters). If the underbilling is $25 or more, the utility shall offer to such customer a deferred payment plan option for the same length of time as that of the underbilling. In cases of meter tampering, bypass, or diversion, a utility may, but is not required to, offer a customer a deferred payment plan.

(i) [ (h) ] Estimated bills. When there is good reason for doing so, a water or sewer utility may issue estimated bills, provided that an actual meter reading is taken every two months and appropriate adjustments made to the bills.

(j) [ (i) ] Prorated charges for partial-month bills. When a bill is issued for a period of less than one month, charges should be computed as follows.

(1) Metered service. Service shall be billed for the base rate, as shown in the utility's tariff, prorated for the number of days service was provided; plus the volume metered in excess of the prorated volume allowed in the base rate.

(2) Flat-rate service. The charge shall be prorated on the basis of the proportionate part of the period during which service was rendered.

(3) Surcharges. Surcharges approved by the commission do not have to be prorated on the basis of the number of days service was provided.

(k) [ (j) ] Prorated charges due to utility service outages. In the event that utility service is interrupted for more than 24 consecutive hours, the utility shall prorate the base charge to the customer to reflect this loss of service. The base charge to the customer shall be prorated on the basis of the proportionate part of the period during which service was interrupted.

(l) [ (k) ] Disputed bills.

(1) A customer may advise a utility that a bill is in dispute by written notice or in person during normal business hours. A dispute must be registered with the utility and a payment equal to the customer's average monthly usage at current rates must be received by the utility prior to the date of proposed discontinuance for a customer to avoid discontinuance of service as provided by §291.88 of this title.

(2) Notwithstanding any other section of this chapter, the customer may not be required to pay the disputed portion of a bill that exceeds the amount of that customer's average monthly usage at current rates pending the completion of the determination of the dispute. For purposes of this section only, the customer's average monthly usage will be the average of the customer's usage for the preceding 12-month period. Where no previous usage history exists, consumption for calculating the average monthly usage will be estimated on the basis of usage levels of similar customers under similar conditions.

(3) Notwithstanding any other section of this chapter, a utility customer's service may not be subject to discontinuance for nonpayment of that portion of a bill under dispute pending the completion of the determination of the dispute. The customer is obligated to pay any billings not disputed as established in §291.88 of this title.

(m) [ (l) ] Notification of alternative payment programs or payment assistance. Any time customers contact a utility to discuss their inability to pay a bill or indicate that they are in need of assistance with their bill payment, the utility or utility representative shall provide information to the customers in English and in Spanish, if requested, of available alternative payment and payment assistance programs available from the utility and of the eligibility requirements and procedure for applying for each.

(n) [ (m) ] Adjusted bills. There is a presumption of reasonableness of billing methodology by a sewer utility for winter average billing or by a water utility with regard to a case of meter tampering, bypassing, or other service diversion if any one of the following methods of calculating an adjusted bill is used:

(1) estimated bills based upon service consumed by that customer at that location under similar conditions during periods preceding the initiation of meter tampering or service diversion. Such estimated bills must be based on at least 12 consecutive months of comparable usage history of that customer, when available, or lesser history if the customer has not been served at that site for 12 months. This subsection, however, does not prohibit utilities from using other methods of calculating bills for unmetered water when the usage of other methods can be shown to be more appropriate in the case in question;

(2) estimated bills based upon that customer's usage at that location after the service diversion has been corrected;

(3) calculation of bills for unmetered consumption over the entire period of meter bypassing or other service diversion, if the amount of actual unmetered consumption can be calculated by industry recognized testing procedures; or

(4) a reasonable adjustment is made to the sewer bill if a water leak can be documented during the winter averaging period and winter average water use is the basis for calculating a customer's sewer charges. If the actual water loss can be calculated, the consumption shall be adjusted accordingly. If not, the prior year average can be used if available. If the actual water loss cannot be calculated and the customer's prior year's average is not available, then a typical average for other customers on the system with similar consumption patterns may be used.

(o) [ (n) ] Equipment damage charges. A utility may charge for all labor, material, equipment, and all other actual costs necessary to repair or replace all equipment damaged due to negligence, meter tampering or bypassing, service diversion, or the discharge of wastes that the system cannot properly treat. The utility may charge for all actual costs necessary to correct service diversion or unauthorized taps where there is no equipment damage, including incidents where service is reconnected without authority. An itemized bill of such charges must be provided to the customer. A utility may not charge any additional penalty or any other charge other than actual costs unless such penalty has been expressly approved by the commission and filed in the utility's tariff. Except in cases of meter tampering or service diversion, a utility may not disconnect service of a customer refusing to pay damage charges unless authorized to in writing by the executive director.

(p) [ (o) ] Fees. Except for an affected county, utilities may not charge disconnect fees, service call fees, field collection fees, or standby fees except as authorized in this chapter.

(1) A utility may only charge a developer standby fees for unrecovered costs of facilities committed to a developer's property under the following circumstances:

(A) under a contract and only in accordance with the terms of the contract;

(B) if service is not being provided to a lot or lots within two years after installation of facilities necessary to provide service to the lots has been completed and if the standby fees are included on the utility's approved tariff after a rate change application has been properly filed. The fees cannot be billed to the developer or collected until the standby fees have been approved by the commission or executive director; or

(C) for purposes of this subsection, a manufactured housing rental community can only be charged standby fees under a contract or if the utility installs the facilities necessary to provide individually metered service to each of the rental lots or spaces in the community.

(2) Except as provided in §291.88(h)(2) of this title and §291.89(c) of this title other fees listed on a utility's approved tariff may be charged when appropriate. Return check charges included on a utility's approved tariff may not exceed the utility's documentable cost.

(q) [ (p) ] Payment with cash. When a customer pays any portion of a bill with cash, the utility shall issue a written receipt for the payment.

(r) [ (q) ] Voluntary contributions for certain emergency services.

(1) A utility may implement as part of its billing process a program under which the utility collects from its customers a voluntary contribution including a voluntary membership or subscription fee, on behalf of a volunteer fire department or an emergency medical service. A utility that collects contributions under this section shall provide each customer at the time the customer first becomes a customer, and at least annually thereafter, a written statement:

(A) describing the procedure by which the customer may make a contribution with the customer's bill payment;

(B) designating the volunteer fire department or emergency medical service to which the utility will deliver the contribution;

(C) informing the customer that a contribution is voluntary;

(D) if applicable, informing the customer the utility intends to keep a portion of the contributions to cover related expenses; and

(E) describing the deductibility status of the contribution under federal income tax law.

(2) A billing by the utility that includes a voluntary contribution under this section must clearly state that the contribution is voluntary and that it is not required to be paid.

(3) The utility shall promptly deliver contributions that it collects under this section to the designated volunteer fire department or emergency medical service, except that the utility may keep from the contributions an amount equal to the lesser of:

(A) the utility's expenses in administering the contribution program; or

(B) 5.0% of the amount collected as contributions.

(4) Amounts collected under this section are not rates and are not subject to regulatory assessments, late payment penalties, or other utility related fees, are not required to be shown in tariffs filed with the regulatory authority, and non-payment may not be the basis for termination of service.

§291.88.Discontinuance of Service.

(a) Disconnection with notice.

(1) Notice requirements. Proper notice shall consist of a separate written statement which a utility must mail or hand deliver to a customer before service may be disconnected. The notice must be provided in English and Spanish if necessary to adequately inform the customer and must include the following information:

(A) the words "termination notice" or similar language approved by the executive director written in a way to stand out from other information on the notice;

(B) the action required to avoid disconnection, such as paying past due service charges;

(C) the date by which the required action must be completed to avoid disconnection. This date must be at least ten days from the date the notice is provided unless a shorter time is authorized by the executive director;

(D) the intended date of disconnection;

(E) the office hours, telephone number, and address of the utility's local office;

(F) the total past due charges;

(G) all reconnect fees that will be required to restore water or sewer service if service is disconnected.

(H) if notice is provided by a sewer service provider under subsection (e) of this section, the notice must also state:

(i) that failure to pay past due sewer charges will result in termination of water service; and

(ii) that water service will not be reconnected until all past due and currently due sewer service charges and the sewer reconnect fee are paid.

(2) Reasons for disconnection. Utility service may be disconnected after proper notice for any of the following reasons:

(A) failure to pay a delinquent account for utility service or failure to comply with the terms of a deferred payment agreement.

(i) Payment by check which has been rejected for insufficient funds, closed account, or for which a stop payment order has been issued is not deemed to be payment to the utility.

(ii) Payment at a utility's office or authorized payment agency is considered payment to the utility.

(iii) The utility is not obligated to accept payment of the bill when an employee is at the customer's location to disconnect service;

(B) violation of the utility's rules pertaining to the use of service in a manner which interferes with the service of others;

(C) operation of non-standard equipment, if a reasonable attempt has been made to notify the customer and the customer is provided with a reasonable opportunity to remedy the situation;

(D) failure to comply with deposit or guarantee arrangements where required by §291.84 of this title (relating to [ Service ] Applicant and Customer Deposit);

(E) failure to pay charges for sewer service provided by another retail public utility in accordance with subsection (e) of this section; and

(F) failure to pay solid waste disposal fees collected under contract with a county or other public agency.

(b) Disconnection without notice. Utility service may be disconnected without prior notice for the following reasons:

(1) where a known and dangerous condition related to the type of service provided exists. Where reasonable, given the nature of the reason for disconnection, a written notice of the disconnection, explaining the reason service was disconnected, shall be posted at the entrance to the property, the place of common entry or upon the front door of each affected residential unit as soon as possible after service has been disconnected;

(2) where service is connected without authority by a person who has not made application for service;

(3) where service has been reconnected without authority following termination of service for nonpayment under subsection (a) of this section;

(4) or in instances of tampering with the utility's meter or equipment, bypassing the same, or other instances of diversion as defined in §291.89 of this title (relating to Meters).

(c) Disconnection prohibited. Utility service may not be disconnected for any of the following reasons:

(1) failure to pay for utility service provided to a previous occupant of the premises;

(2) failure to pay for merchandise, or charges for non-utility service provided by the utility;

(3) failure to pay for a different type or class of utility service unless the fee for such service is included on the same bill or unless such disconnection is in accordance with subsection (e) of this section;

(4) failure to pay the account of another customer as guarantor thereof, unless the utility has in writing the guarantee as a condition precedent to service;

(5) failure to pay charges arising from an underbilling due to any faulty metering, unless the meter has been tampered with or unless such underbilling charges are due under §291.89 of this title [ (relating to Meters) ];

(6) failure to pay an estimated bill other than a bill rendered pursuant to an approved meter-reading plan, unless the utility is unable to read the meter due to circumstances beyond its control;

(7) failure to comply with regulations or rules regarding anything other than the type of service being provided including failure to comply with septic tank regulations or sewer hook-up requirements;

(8) refusal of a current customer to sign a service agreement; or,

(9) failure to pay standby fees.

(d) Disconnection due to utility abandonment. No public utility may abandon a customer or a certificated service area unless it has complied with the requirements of §291.114 of this title (relating to Requirement to Provide Continuous and Adequate Service) and obtained approval from the commission.

(e) Disconnection of water service due to nonpayment of sewer charges.

(1) Where sewer service is provided by one retail public utility and water service is provided by another retail public utility, the retail public utility that provides the water service shall disconnect water service to a customer who has not paid undisputed sewer charges if requested by the sewer service provider and if an agreement exists between the two retail public utilities regarding such disconnection or if an order has been issued by the commission specifying a process for such disconnections.

(A) Before water service may be terminated, proper notice of such termination must be given to the customer and the water service provider by the sewer service provider. Such notice must be in conformity with subsection (a) of this section.

(B) Water and sewer service shall be reconnected in accordance with subsection (h) of this section. The water service provider may not charge the customer a reconnect fee prior to reconnection unless it is for nonpayment of water service charges in accordance with its approved tariff. The water service provider may require the customer to pay any water service charges which have been billed but remain unpaid prior to reconnection. The water utility may require the sewer utility to reimburse it for the cost of disconnecting the water service in an amount not to exceed $50. The sewer utility may charge the customer its approved reconnect fee for nonpayment in addition to any past due charges.

(C) If the retail public utilities providing water and sewer service cannot reach an agreement regarding disconnection of water service for nonpayment of sewer charges, the commission may issue an order requiring disconnections under specified conditions.

(D) The commission will issue an order requiring termination of service by the retail public utility providing water service if either:

(i) the retail public utility providing sewer service has obtained funding through the State or Federal government for the provision, expansion or upgrading of such sewer service; or,

(ii) the commission finds that an order is necessary to effectuate the purposes of the Texas Water Code.

(2) A utility providing water service to customers who are provided sewer service by another retail public utility may enter into an agreement to provide billing services for the sewer service provider. In this instance, the customer may only be charged the tariffed reconnect fee for nonpayment of a bill on the water service provider's tariff.

(3) This section outlines the duties of a water service provider to an area served by a sewer service provider of certain political subdivisions.

(A) This section applies only to an area:

(i) that is located in a county that has a population of more than 1.3 million; and

(ii) in which a customer's sewer service is provided by a municipality or conservation and reclamation district that also provides water service to other customers and the same customer's water service is provided by another entity.

(B) For each person the water service provider serves in an area to which this section applies, the water service provider shall provide the municipality or district with any relevant customer information so that the municipality or district may bill users of the sewer service directly and verify the water consumption of users. Relevant customer information provided under this section includes the name, address, and telephone number of the customer of the water service provider, the monthly meter readings of the customer, monthly consumption information, including any billing adjustments, and certain meter information, such as brand, model, age, and location.

(C) The municipality or district shall reimburse the water service provider for its reasonable and actual incremental costs for providing services to the municipality or district under this section. Incremental costs are limited to only those costs that are in addition to the water service provider's costs in providing its services to its customers, and those costs must be consistent with the costs incurred by other water utility providers. Only if requested by the wastewater provider, the water service provider must provide the municipality or district with documentation certified by a certified public accountant of the reasonable and actual incremental costs for providing services to the municipality or district under this section.

(D) A municipality or conservation and reclamation district may provide written notice to a person to whom the municipality's or district's sewer service system provides service if the person has failed to pay for the service for more than 90 days. The notice must state the past due amount owed and the deadline by which the past due amount must be paid or the person will lose water service. The notice may be sent by First Class mail or hand-delivered to the location at which the sewer service is provided.

(E) The municipality or district may notify the water service provider of a person who fails to make timely payment after the person receives notice under subparagraph (D) of this paragraph. The notice must indicate the number of days the person has failed to pay for sewer service and the total amount past due. On receipt of the notice, the water service provider shall discontinue water service to the person.

(F) This subsection does not apply to a nonprofit water supply or sewer service corporation created under Texas Water Code, Chapter 67, or a district created under Texas Water Code, Chapter 65.

(f) Disconnection for ill customers. No utility may discontinue service to a delinquent residential customer when that customer establishes that some person residing at that residence will become seriously ill or more seriously ill if service is discontinued. To avoid disconnection under these circumstances, the customer must provide a written statement from a physician to the utility prior to the stated date of disconnection. Service may be disconnected in accordance with subsection (a) of this section if the next month's bill and the past due bill are not paid by the due date of the next month's bill, unless the customer enters into a deferred payment plan with the utility.

(g) Disconnection upon customer request. A utility shall disconnect service no later than the end of the next working day after receiving a written request from the customer.

(h) Service restoration.

(1) Utility personnel must be available during normal business hours to accept payment on the day service is disconnected and the day after service is disconnected, unless the disconnection is at the customer's request or due to the existence of a dangerous condition related to the type of service provided. Once the past due service charges and applicable reconnect fees are paid or other circumstances which resulted in disconnection are corrected, the utility must restore service within 36 hours.

(2) Reconnect Fees.

(A) A reconnect fee, or seasonal reconnect fee as appropriate, may be charged for restoring service if listed on the utility's approved tariff.

(B) A reconnect fee may not be charged where service was not disconnected, except in circumstances where a utility representative arrives at a customer's service location with the intent to disconnect service because of a delinquent bill, and the customer prevents the utility from disconnecting the service.

(C) Except as provided under §291.89(c) of this title [ (relating to Meters) ] when a customer prevents disconnection at the water meter or connecting point between the utility and customer sewer lines, a reconnect fee charged for restoring water or sewer service after disconnection for nonpayment of monthly charges shall not exceed $25 provided the customer pays the delinquent charges and requests to have service restored within 45 days. If a request to have service reconnected is not made within 45 days of the date of disconnection, the utility may charge its approved reconnect fee or seasonal reconnect fee.

(D) A reconnect fee cannot be charged for reconnecting service after disconnection for failure to pay solid waste disposal fees collected under a contract with a county or other public agency.

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 17, 2008.

TRD-200800213

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 2, 2008

For further information, please call: (512) 239-6091

30 TAC §§291.101, 291.105, 291.113

STATUTORY AUTHORITY

The amendments are proposed under Texas Water Code (TWC), §5.102, which provides the commission the general powers to carry out duties under the TWC and §5.103, which provides the commission with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the TWC and other laws of this state. In addition, TWC, §13.041, states that the commission may regulate and supervise the business of every water and sewer utility within its jurisdiction and may do all things, whether specifically designated in TWC, Chapter 13, or implied in TWC, Chapter 13, necessary and convenient to the exercise of this power and jurisdiction. Further, TWC, §13.041, also states that the commission shall adopt and enforce rules reasonably required in the exercise of its powers and jurisdiction, including rules governing practice and procedure before the commission.

The proposed amendments implement TWC, §13.2451 and Local Government Code, §402.017.

§291.101.Certificate Required.

(a) Unless otherwise specified, a utility, a utility operated by an affected county except an affected county to which Local Government Code, §412.017 applies , or a water supply or sewer service corporation may not in any way render retail water or sewer utility service directly or indirectly to the public without first having obtained from the commission a certificate that the present or future public convenience and necessity requires or will require that installation, operation, or extension. Except as otherwise provided by this subchapter, a retail public utility may not furnish, make available, render, or extend retail water or sewer utility service to any area to which retail water or sewer service is being lawfully furnished by another retail public utility without first having obtained a certificate of public convenience and necessity that includes the area in which the consuming facility is located.

(b) A person that is not a retail public utility or a utility or water supply corporation that is operating under provisions pursuant to the Texas Water Code, §13.242(c) may not construct facilities to provide water or sewer service to more than one service connection not on the property owned by the person and that are within the certificated service area of a retail public utility without first obtaining written consent from the retail public utility.

(c) A district may not provide services within an area for which a retail public utility holds a certificate of convenience and necessity or within the boundaries of another district without the district's consent, unless the district has a valid certificate of convenience and necessity to provide services to that area.

(d) A supplier of wholesale water or sewer service may not require a purchaser to obtain a certificate of public convenience and necessity if the purchaser is not otherwise required by this chapter to obtain the certificate.

§291.105.Contents of Certificate of Convenience and Necessity Applications.

(a) Application. To obtain a certificate of public convenience and necessity (CCN) or an amendment to a certificate, a public utility or water supply or sewer service corporation shall submit to the commission an application for a certificate or for an amendment as provided by this section. Applications for CCNs or for an amendment to a certificate must contain an original and three copies of the following materials, unless otherwise specified in the application:

(1) the appropriate application form prescribed by the commission, completed as instructed and properly executed;

(2) a map and description of only the proposed service area by:

(A) metes and bounds survey certified by a licensed state land surveyor or a registered professional land surveyor;

(B) the Texas State Plane Coordinate System or any standard map projection and corresponding metadata;

(C) verifiable landmarks, including a road, creek, or railroad line; or

(D) a copy of the recorded plat of the area, if it exists, with lot and block number; and

(E) maps as described in §291.119 of this title (relating to Filing of Maps);

(F) a general location map; and

(G) other maps as requested by the executive director or required by §281.16 of this title (relating to Applications for Certificates of Convenience and Necessity);

(3) a description of any requests for service in the proposed service area;

(4) any evidence as required by the commission to show that the applicant has received the necessary consent, franchise, permit, or license from the proper municipality or other public authority;

(5) an explanation of the applicant's reasons for contending that issuance of a certificate as requested is necessary for the service, accommodation, convenience, or safety of the public;

(6) a capital improvements plan, including a budget and estimated time line for construction of all facilities necessary to provide full service to the entire proposed service area, keyed to maps showing where such facilities will be located to provide service;

(7) a description of the sources of funding for all facilities;

(8) for utilities or water supply or sewer service corporation previously exempted for operations or extensions in progress as of September 1, 1975, a list of all current customer locations which were being served on September 1, 1975, and an accurate location of them on the maps submitted. Current customer locations which were not being served on that date should also be located on the same map in a way which clearly distinguishes the two groups;

(9) disclosure of all affiliated interests as defined by §291.3 of this title (relating to Definitions of Terms);

(10) to the extent known, a description of current and projected land uses, including densities;

(11) a current financial statement of the applicant;

(12) according to the tax roll of the central appraisal district for each county in which the proposed service area is located, a list of the owners of each tract of land that is:

(A) at least 25 acres; and

(B) wholly or partially located within the proposed service area;

(13) if dual certification is being requested, and an agreement between the affected utilities exists, a copy of the agreement;

(14) for a water CCN for a new or existing system, a copy of:

(A) the approval letter for the commission-approved plans and specifications for the system or proof that the applicant has submitted either a preliminary engineering report or plans and specification for the first phase of the system unless §290.39(j)(1)(D) of this title (relating to General Provisions) applies;

(B) other information that indicates the applicant is in compliance with §291.93 of this title (relating to Adequacy of Water Utility Service) for the system; or

(C) a contract with a wholesale provider that meets the requirements in §291.93 of this title;

(15) for a sewer CCN for a new or existing facility, a copy of:

(A) a wastewater permit or proof that a wastewater permit application for that facility has been filed with the commission;

(B) other information that indicates that the applicant is in compliance with §291.94 of this title (relating to Adequacy of Sewer Service) for the facility; or

(C) a contract with a wholesale provider that meets the requirements in §291.94 of this title; and

(16) any other item required by the commission or executive director.

(b) Application within the municipal boundaries or extraterritorial jurisdiction of certain municipalities.

(1) This subsection applies only to a municipality with a population of 500,000 or more.

(2) Except as provided by paragraph (3) of this subsection, the commission may not grant to a retail public utility a CCN for a service area within the boundaries or extraterritorial jurisdiction of a municipality without the consent of the municipality. The municipality may not unreasonably withhold the consent. As a condition of the consent, a municipality may require that all water and sewer facilities be designed and constructed in accordance with the municipality's standards for facilities.

(3) If a municipality has not consented under paragraph (2) of this subsection before the 180th day after the date the municipality receives the retail public utility's application, the commission shall grant the CCN without the consent of the municipality if the commission finds that the municipality:

(A) does not have the ability to provide service; or

(B) has failed to make a good faith effort to provide service on reasonable terms and conditions.

(4) A commitment by a city to provide service must, at a minimum, provide that the construction of service facilities will begin within one year and will be substantially completed within two years after the date the retail public utility's application was filed with the municipality.

(5) If the commission makes a decision under paragraph (3) of this subsection regarding the granting of a CCN without the consent of the municipality, the municipality or the retail public utility may appeal the decision to the appropriate state district court.

(c) Extension beyond extraterritorial jurisdiction.

(1) If [ Except as provided by paragraph (2) of this subsection, if ] a municipality extends its extraterritorial jurisdiction to include an area certificated to a retail public utility, the retail public utility may continue and extend service in its area of public convenience and necessity under the rights granted by its certificate and this chapter.

(2) A municipality that seeks to extend a certificate of public convenience and necessity beyond the municipality's extraterritorial jurisdiction must ensure that the municipality complies with Texas Water Code (TWC), §13.241, in relation to the area covered by the portion of the certificate that extends beyond the municipality's extraterritorial jurisdiction.

[ (2) The commission may not extend a municipality's CCN beyond its extraterritorial jurisdiction without the written consent of the landowner who owns the property in which the certificate is to be extended. For those areas served by a municipality out its extraterritorial jurisdiction before September 1, 2005, pursuant to a CCN, a landowner in such an area who regularly receives and pays for service from the municipality is deemed to have consented to the CCN, unless the landowner specifically objects in writing to such service.]

(3) To the extent of a conflict between this subsection and TWC, §13.245, TWC, §13.245 prevails.

(d) Area within municipality.

(1) If an area is within the boundaries of a municipality, all retail public utilities certified or entitled to certification under this chapter to provide service or operate facilities in that area may continue and extend service in its area of public convenience and necessity within the area under the rights granted by its certificate and this chapter, unless the municipality exercises its power of eminent domain to acquire the property of the retail public utility under this subsection. Except as provided by Texas Water Code, §13.255, a municipally owned or operated utility may not provide retail water and sewer utility service within the area certificated to another retail public utility without first having obtained from the commission a CCN that includes the areas to be served.

(2) This subsection may not be construed as limiting the power of municipalities to incorporate or extend their boundaries by annexation, or as prohibiting any municipality from levying taxes and other special charges for the use of the streets as are authorized by Texas Tax Code, §182.025.

(3) In addition to any other rights provided by law, a municipality with a population of more than 500,000 may exercise the power of eminent domain in the manner provided by Texas Property Code, Chapter 21, to acquire a substandard water or sewer system if all the facilities of the system are located entirely within the municipality's boundaries. The municipality shall pay just and adequate compensation for the property. In this subsection, substandard water or sewer system means a system that is not in compliance with the municipality's standards for water and wastewater service.

(A) A municipality shall notify the commission no later than seven days after filing an eminent domain lawsuit to acquire a substandard water or sewer system and also notify the commission no later than seven days after acquiring the system.

(B) With the notification of filing its eminent domain lawsuit, the municipality, in its sole discretion, shall either request that the commission cancel the CCN of the acquired system or transfer the certificate to the municipality and the commission shall take such requested action upon notification of acquisition of the system.

§291.113.Revocation or Amendment of Certificate.

(a) A certificate or other order of the commission does not become a vested right and the commission at any time after notice and hearing may on its own motion or on receipt of a petition revoke or amend any certificate of public convenience and necessity with the written consent of the certificate holder or if it finds that:

(1) the certificate holder has never provided, is no longer providing service, is incapable of providing service, or has failed to provide continuous and adequate service in the area or part of the area covered by the certificate;

(2) in an affected county, the cost of providing service by the certificate holder is so prohibitively expensive as to constitute denial of service, provided that, for commercial developments or for residential developments started after September 1, 1997, in an affected county, the fact that the cost of obtaining service from the currently certificated retail public utility makes the development economically unfeasible does not render such cost prohibitively expensive in the absence of other relevant factors;

(3) the certificate holder has agreed in writing to allow another retail public utility to provide service within its service area, except for an interim period, without amending its certificate; [ or ]

(4) the certificate holder has failed to file a cease and desist action under Texas Water Code, §13.252 within 180 days of the date that it became aware that another retail public utility was providing service within its service area, unless the certificate holder demonstrates good cause for its failure to file such action within the 180 days ; or [ . ]

(5) in an area certificated to a municipality outside the municipality's extraterritorial jurisdiction, the municipality has not provided service to the area on or before the fifth anniversary of the date the certificate of public convenience and necessity was granted for the area, except that an area that was transferred to a municipality on approval of the commission or the executive director and in which the municipality has spent public funds may not be revoked or amended under this paragraph.

(b) As an alternative to decertification under subsection (a) of this section, the owner of a tract of land that is at least 50 acres and that is not in a platted subdivision actually receiving water or sewer service may petition the commission under this subsection for expedited release of the area from a certificate of public convenience and necessity so that the area may receive service from another retail public utility. Prior to the petition being filed with the commission, the petitioner shall deliver, via certified mail, a copy of the petition to the certificate holder, who may submit information to the commission to controvert information submitted by the petitioner. The petitioner must demonstrate that:

(1) a written request for service, other than a request for standard residential or commercial service, has been submitted to the certificate holder, identifying:

(A) the area for which service is sought shown on a map with descriptions according to §291.105(a)(2)(A) - (G) of this title (relating to Contents of Certificate of Convenience and Necessity Applications);

(B) the time frame within which service is needed for current and projected service demands in the area;

(C) the level and manner of service needed for current and projected service demands in the area; and

(D) any additional information requested by the certificate holder that is reasonably related to determination of the capacity or cost for providing the service;

(2) the certificate holder has been allowed at least 90 calendar days to review and respond to the written request and the information it contains;

(3) the certificate holder:

(A) has refused to provide the service;

(B) is not capable of providing the service on a continuous and adequate basis within the time frame, at the level, or in the manner reasonably needed or requested by current and projected service demands in the area; or

(C) conditions the provision of service on the payment of costs not properly allocable directly to the petitioner's service request, as determined by the commission; and

(4) the alternate retail public utility from which the petitioner will be requesting service is capable of providing continuous and adequate service within the time frame, at the level, and in the manner reasonably needed or requested by current and projected service demands in the area. An alternate retail public utility is limited to:

(A) an existing retail public utility; or

(B) a district proposed to be created under Texas Constitution, Article 16, §59 or Article 3, §52. If an area is decertificated under a petition filed in accordance with subsection (d) of this section in favor of such a proposed district, the commission may order that final decertification is conditioned upon the final and unappealable creation of the district and that prior to final decertification the duty of the certificate holder to provide continuous and adequate service is held in abeyance.

(c) A landowner is not entitled to make the election described in subsection (b) of this section but is entitled to contest the involuntary certification of its property in a hearing held by the commission if the landowner's property is located:

(1) within the boundaries of any municipality or the extraterritorial jurisdiction of a municipality with a population of more than 500,000 and the municipality or retail public utility owned by the municipality is the holder of the certificate; or

(2) in a platted subdivision actually receiving water or sewer service.

(d) Within 90 calendar days from the date the commission determines the petition filed under subsection (b) of this section to be administratively complete, the commission or executive director shall grant the petition unless the commission or executive director makes an express finding that the petitioner failed to satisfy the elements required in subsection (b) of this section and supports its finding with separate findings and conclusions for each element based solely on the information provided by the petitioner and the certificate holder. The commission or executive director may grant or deny a petition subject to terms and conditions specifically related to the service request of the petitioner and all relevant information submitted by the petitioner and the certificate holder. In addition, the commission may require an award of compensation as otherwise provided by this section.

(e) Texas Government Code, Chapter 2001, does not apply to any petition filed under subsection (b) of this section. The decision of the commission or executive director on the petition is final after any reconsideration authorized under §50.139 of this title (relating to Motion to Overturn Executive Director's Decision) and may not be appealed.

(f) Upon written request from the certificate holder, the executive director may cancel the certificate of a utility or water supply corporation authorized by rule to operate without a certificate of public convenience and necessity under Texas Water Code, §13.242(c).

(g) If the certificate of any retail public utility is revoked or amended, the commission may require one or more retail public utilities to provide service in the area in question. The order of the commission shall not be effective to transfer property.

(h) A retail public utility may not in any way render retail water or sewer service directly or indirectly to the public in an area that has been decertified under this section without providing compensation for any property that the commission determines is rendered useless or valueless to the decertified retail public utility as a result of the decertification.

(i) The determination of the monetary amount of compensation, if any, shall be determined at the time another retail public utility seeks to provide service in the previously decertified area and before service is actually provided but no later than the 90th calendar day after the date on which a retail public utility notifies the commission of its intent to provide service to the decertified area.

(j) The monetary amount shall be determined by a qualified individual or firm serving as independent appraiser agreed upon by the decertified retail public utility and the retail public utility seeking to serve the area. The determination of compensation by the independent appraiser shall be binding on the commission. The costs of the independent appraiser shall be borne by the retail public utility seeking to serve the area.

(1) If the retail public utilities cannot agree on an independent appraiser within ten calendar days after the date on which the retail public utility notifies the commission of its intent to provide service to the decertified area, each retail public utility shall engage its own appraiser at its own expense, and each appraisal shall be submitted to the commission within 60 calendar days after the date on which the retail public utility notified the commission of its intent to provide service to the decertified area.

(2) After receiving the appraisals, the commission or executive director shall appoint a third appraiser who shall make a determination of the compensation within 30 days after the commission receives the appraisals. The determination may not be less than the lower appraisal or more than the higher appraisal. Each retail public utility shall pay one-half of the cost of the third appraisal.

(k) For the purpose of implementing this section, the value of real property owned and utilized by the retail public utility for its facilities shall be determined according to the standards set forth in Texas Property Code, Chapter 21, governing actions in eminent domain and the value of personal property shall be determined according to the factors in this subsection. The factors ensuring that the compensation to a retail public utility is just and adequate shall include: the amount of the retail public utility's debt allocable for service to the area in question; the value of the service facilities of the retail public utility located within the area in question; the amount of any expenditures for planning, design, or construction of service facilities that are allocable to service to the area in question; the amount of the retail public utility's contractual obligations allocable to the area in question; any demonstrated impairment of service or increase of cost to consumers of the retail public utility remaining after the decertification; the impact on future revenues lost from existing customers ; necessary and reasonable legal expenses and professional fees; and other relevant factors.

(l) As a condition to decertification or single certification under Texas Water Code, §13.254 or §13.255, and on request by a retail public utility that has lost certificated service rights to another retail public utility, the commission may order:

(1) the retail public utility seeking to provide service to a decertified area to serve the entire service area of the retail public utility that is being decertified; and

(2) the transfer of the entire certificate of public convenience and necessity of a partially decertified retail public utility to the retail public utility seeking to provide service to the decertified area.

(m) The commission shall order service to the entire area under subsection (l) of this section if the commission finds that the decertified retail public utility will be unable to provide continuous and adequate service at an affordable cost to the remaining customers.

(n) The commission shall require the retail public utility seeking to provide service to the decertified area to provide continuous and adequate service to the remaining customers at a cost comparable to the cost of that service to its other customers and shall establish the terms under which the service must be provided. The terms may include:

(1) transferring debt and other contract obligations;

(2) transferring real and personal property;

(3) establishing interim service rates for affected customers during specified times; and

(4) other provisions necessary for the just and reasonable allocation of assets and liabilities.

(o) The retail public utility seeking decertification shall not charge the affected customers any transfer fee or other fee to obtain service other than the retail public utility's usual and customary rates for monthly service or the interim rates set by the commission, if applicable.

(p) The commission shall not order compensation to the decertificated retail public utility if service to the entire service area is ordered under this section.

(q) Within ten calendar days after receipt of notice that a decertification process has been initiated, a retail public utility with outstanding debt secured by one or more liens shall:

(1) submit to the executive director a written list with the names and addresses of the lienholders and the amount of debt; and

(2) notify the lienholders of the decertification process and request that the lienholder provide information to the executive director sufficient to establish the amount of compensation necessary to avoid impairment of any debt allocable to the area in question.

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 17, 2008.

TRD-200800214

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 2, 2008

For further information, please call: (512) 239-6091

30 TAC §291.144

STATUTORY AUTHORITY

The amendment is proposed under Texas Water Code (TWC), §5.102, which provides the commission the general powers to carry out duties under the TWC and §5.103, which provides the commission with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the TWC and other laws of this state. In addition, TWC, §13.041, states that the commission may regulate and supervise the business of every water and sewer utility within its jurisdiction and may do all things, whether specifically designated in TWC, Chapter 13 or implied in TWC, Chapter 13, necessary and convenient to the exercise of this power and jurisdiction. Further, TWC, §13.041, also states that the commission shall adopt and enforce rules reasonably required in the exercise of its powers and jurisdiction, including rules governing practice and procedure before the commission. Finally, TWC, §13.046, requires the commission to provide a reasonable period for a retail public utility that takes over the provision of services for a nonfunctioning retail water or sewer utility service provider to bring the nonfunctioning system into compliance with the commission rules during which the commission shall not impose a penalty for any deficiency in the system that is present at the time the utility takes over the nonfunctioning system.

The proposed amendment implements TWC, §13.046.

§291.144.Fines and Penalties.

(a) [ Disposition. ] Fines and penalties collected under Texas Water Code, Chapter 13, from a retail public utility that is not a public utility in other than criminal proceedings shall be paid to the commission and deposited in the general revenue fund.

(b) The commission shall provide a reasonable period for the retail public utility that takes over a nonfunctioning system to bring the nonfunctioning system into compliance with commission rules, during which the commission may not impose a penalty for any deficiency in the system that is present at the time the utility takes over the nonfunctioning system. The commission must consult with the utility before determining the period and may grant an extension of the period for good cause.

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 17, 2008.

TRD-200800215

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 2, 2008

For further information, please call: (512) 239-6091

Subchapter A. INDUSTRIAL SOLID WASTE AND MUNICIPAL HAZARDOUS WASTE IN GENERAL

30 TAC §335.6, §335.25

The Texas Commission on Environmental Quality (commission or agency) proposes amendments to §335.6 and §335.25.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES

House Bills 1457 and 1719, 80th Legislature, 2007, Regular Session, amended Texas Water Code (TWC), §26.303(a)(1) and Texas Agriculture Code, §201.026(b), (c), (f) - (j), respectively. The rulemaking will meet the statutory requirements of House Bill 1719 which eliminates certain notification requirements and House Bill 1457 which eliminates the use of poultry carcasses as swine food.

House Bill 1719 eliminated the requirement to notify the commission of the burial of animal carcasses provided that at the time of disposal of animal carcasses on-site, the landowner has requested and complies with a water quality management plan developed for that site under Texas Agricultural Code, §201.026(f) as added by Acts 2001, 77th Legislature, Chapter 1189, §1 (relating to Nonpoint Source Pollution). House Bill 1457 eliminates the disposal option of using poultry carcasses as swine food.

SECTION BY SECTION DISCUSSION

Proposed §335.6(c) will exempt landowners who comply with a certified water quality management plan developed for their site under Texas Agricultural Code, §201.026(f) as added by Acts 2001, 77th Legislature, Chapter 1189, §1 (relating to Nonpoint Source Pollution) from notification requirements found in §335.6(a) and (b). This amendment will meet the statutory requirements of House Bill 1719.

The proposed amendment to §335.25(a)(6) would eliminate the disposal option of using poultry carcasses for swine food. Items following subsection (a)(6) will be re-numbered to acknowledge removal of this subsection. The elimination of the use of poultry carcasses as swine food will make this section consistent with the Texas Agriculture Code, which currently prohibits the use of poultry carcasses as swine food. These amendments will meet the statutory requirements of House Bill (HB) 1457.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

Nina Chamness, Analyst, Strategic Planning and Assessment, has determined that, for the first five-year period the proposed rulemaking is in effect, no significant 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 implement statutory changes required by HB 1457 and HB 1719, 80th Legislature by amending the appropriate sections of Chapter 335. HB 1457 eliminated the option to use poultry carcasses as swine food. HB 1719 eliminated the need for a landowner to notify the agency regarding the burial of animal carcasses if, at the time of burial, the landowner has requested and complies with a water quality management plan under Texas Agriculture Code, §201.026(f) as added by Acts 2001, 77th Legislature, Chapter 1189, §1 (relating to Nonpoint Source Pollution).

In general, local governments do not participate in the types of businesses that would generate poultry or other animal carcasses. Therefore, the proposed rulemaking is not anticipated to have a fiscal impact on local governments.

PUBLIC BENEFITS AND COSTS

Ms. Chamness also determined that for each year of the first five years the proposed rulemaking is in effect, the public benefit anticipated from the changes seen in the proposed rules will be compliance with state law and protection of public health and safety concerning disposal of animal carcasses.

The proposed rulemaking is not expected to have a significant fiscal impact on landowners and poultry growers required to properly manage the disposal of carcasses resulting from livestock and poultry die-offs. While the proposed rulemaking does eliminate one disposal method for poultry carcasses, other methods more commonly used remain available as disposal options. Given the remaining disposal options, disallowing the disposal of poultry carcasses by using them as swine food will not significantly change disposal methods used by producers, and no significant fiscal implications are expected as a result of this rulemaking. The rulemaking also eliminates the cost of preparing any paperwork to notify the agency of the burial of animal carcasses if the landowner requests and complies with a water quality management plan. However, any cost savings is not anticipated to be significant. Any cost savings or increases under the proposed rulemaking would vary depending on the location and size of the operation, and staff is unable to estimate the amount of savings.

Although the agency permits over 800 concentrated animal feeding operations (CAFOs) and 16-egg laying operations, it does not track how many of these operations are considered to be large or small businesses. Consequently, the agency does not have the necessary data available to determine the number of poultry operations and livestock operations statewide that may be affected by the proposed rules.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

No adverse fiscal implications are anticipated for small or micro-businesses as a result of the proposed rulemaking. The agency permits over 800 concentrated animal feeding operations (CAFOs) and 16-egg laying operations but does not have the data to determine how many animal operations statewide may be affected by the proposed rules nor does it have the data needed to determine how many of these facilities might be classified as small or micro-businesses.

While the proposed rulemaking does eliminate one disposal method for poultry carcasses, other methods more commonly used remain available as disposal options, and the elimination of the use of poultry carcasses as swine food is not expected to have a significant fiscal impact on small or micro-business poultry producers. The proposed rulemaking eliminates the cost of paperwork associated with carcass burial if a landowner requests and complies with a water quality management plan.

SMALL BUSINESS REGULATORY FLEXIBILITY ANALYSIS

The commission has reviewed this proposed rulemaking and determined that a small business regulatory flexibility analysis is not required because the proposed rules do not adversely affect a small or micro-business in a material way for the first five years that the proposed rulemaking is in effect.

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 rulemaking does not adversely affect any 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 "major environmental rule" as defined in the act.

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, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The specific intent of the proposed rulemaking is to conform commission rules to the newly amended language of Texas Agriculture Code, §201.026(g), as added by Acts 2001, 77th Legislature, Chapter 1189, §1 (relating to Nonpoint Source Pollution), and Texas Water Code, §26.303(a)(1). The proposed rulemaking does this by exempting landowners who comply with a certified water quality management plan under Texas Agriculture Code, §201.026(f) as added by Acts 2001, 77th Legislature, Chapter 1189, §1 (relating to Nonpoint Source Pollution) from the notification requirements imposed by §335.6(a) and (b), and by eliminating "cooking for swine food" as an acceptable method of disposal of poultry carcasses. Since the proposed rulemaking simply harmonizes commission rules with the Texas Agriculture Code and Texas Water Code, there will be no impact on the environment, human health, or public health and safety. In this same way, the proposed rulemaking will not adversely affect the economy, a sector of the economy, productivity, competition, or jobs within the state or a sector of the state. The commission concludes that the proposed rulemaking does not meet the definition of a major environmental rule.

Furthermore, even if the proposed rulemaking did meet the definition of a major environmental rule, it is not subject to Texas Government Code, §2001.0225 because it does not meet any of the four applicable requirements specified in §2001.0225(a). Texas Government Code, §2001.0225(a) applies only to a state agency's adoption of a major environmental rule that: 1) exceeds a standard set by federal law, unless the rule is specifically required by state law; 2) exceeds an express requirement of state law, unless the rule is specifically required by federal law; 3) exceeds 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) was adopted solely under the general powers of the agency instead of under a specific state law.

In this case, the proposed rulemaking does not meet any of these requirements. First, there are no applicable federal standards that this rulemaking would address. Second, the proposed rulemaking does not exceed an express requirement of state law, but rather is necessary to harmonize commission rules with Texas Agriculture Code, §201.026(g), as added by Acts 2001, 77th Legislature, Chapter 1189, §1 (relating to Nonpoint Source Pollution) and Texas Water Code, §26.303(a)(1). Third, the proposed rulemaking does not 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 or federal program. Finally, the commission adopts the proposed rulemaking under Texas Water Code, §§5.103, 5.105, and 26.303(a), and under Texas Health and Safety Code, §361.017 and §361.024. Therefore, the commission does not adopt the rule solely under the commission's general powers. The commission invites public comment on the draft regulatory impact analysis determination.

TAKINGS IMPACT ASSESSMENT

The commission evaluated these proposed rules and performed an analysis of whether they constitute a taking under Texas Government Code, Chapter 2007. The specific purpose of the proposed rulemaking is to conform commission rules to the newly amended language of Texas Agriculture Code, §201.026(g), as added by Acts 2001, 77th Legislature, Chapter 1189, §1 (relating to Nonpoint Source Pollution) and Texas Water Code, §26.303(a)(1). This rulemaking substantially advances that stated purpose by exempting landowners who comply with a certified water quality management plan under Texas Agriculture Code, §201.026(f) as added by Acts 2001, 77th Legislature, Chapter 1189, §1 (relating to Nonpoint Source Pollution) from the notification requirements imposed by §335.6(a) and (b), and by eliminating "cooking for swine food" as an acceptable method of disposal of poultry carcasses.

Promulgation and enforcement of the proposed rules will not be a statutory or constitutional taking of private real property. Specifically, the proposed rulemaking does not affect a landowner's rights in private real property because it does not burden (constitutionally), restrict, or limit the owner's right to real property and reduce its value by 25% or more beyond that which would otherwise exist in the absence of the regulations. In other words, the proposed rulemaking exempts landowners with a water quality management plan in place from notifying the commission before burying animal carcasses on their property, and eliminates "cooking for swine food" as an acceptable method of disposal of poultry carcasses. These actions will not affect private real property.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the proposed rules and determined that the proposed rules are neither identified in, nor will they affect, any action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11, concerning Actions and Rules Subject to the Texas Coastal Management Program (CMP). Therefore, the proposed rulemaking action is not subject to the CMP.

ANNOUNCEMENT OF HEARING

The commission will hold a public hearing on this proposal in Austin on February 26, 2008 at 10:00 am in E201S, 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 prior to the hearing.

Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact Kristin Smith, Office of Legal Services at (512) 239-0177. Requests should be made as far in advance as possible.

SUBMITTAL OF COMMENTS

Comments may be submitted to Kristin Smith, MC 205, Texas Register Team, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. Electronic copies may be submitted at http://www5.tceq.state.tx.us/rules/ecomments/ . All comments should reference Rule Project Number 2007-042-335-PR. The comment period closes March 3, 2008. Copies of the proposed rule can be obtained from the commission's Web site at http://www.tceq.state.tx.us/nav/rules/proposes_adopt.html . For further information, please contact Tom Weirich, Industrial and Hazardous Waste Permits Section, (512) 239-6609.

STATUTORY AUTHORITY

These amendments are proposed under Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission; TWC, §5.102, which establishes the commission's general authority to carry out its jurisdiction; TWC, §5.103, which requires the commission to adopt any rule necessary to carry out its powers and duties under this code and other laws of this state; TWC §5.105, which authorizes the commission to adopt rules as necessary to carry out its powers and duties under the TWC; and TWC, §26.303(a), which authorizes the commission to adopt rules for the safe and adequate handling, storage, transportation, and disposal of poultry carcasses. The amendments are also proposed under Texas Health and Safety Code (THSC), §361.017 and §361.024, which provide the commission the authority to adopt rules necessary to carry out its powers and duties under the Texas Solid Waste Disposal Act.

The proposed amendments implement TWC, §§5.013, 5.102, 5.103, 5.105, 26.303(a) and THSC, §361.017 and §361.024.

§335.6.Notification Requirements.

(a) Any person who intends to store, process, or dispose of industrial solid waste without a permit, as authorized by §335.2(d), (e), (f), or (h) of this title (relating to Permit Required) or §335.24 of this title (relating to Requirements for Recyclable Materials and Nonhazardous Recyclable Materials), shall notify the executive director in writing or using electronic notification software provided by the executive director, that storage, processing, or disposal activities are planned, at least 90 days prior to engaging in such activities. Recycling operations may commence 90 days after the initial notification of the intent to recycle, or upon receipt of confirmation that the executive director has reviewed the information found in this section. The executive director may require submission of information necessary to determine whether storage, processing, or disposal is compliant with the terms of this chapter. Required information may include, but is not limited to, information concerning waste composition, waste management methods, facility engineering plans and specifications, or the geology where the facility is located. Any registered generator who generates 1,000 kilograms or more of hazardous waste in any calendar month, must meet the requirements of this subsection by electronic notification using software provided by the executive director unless the executive director has granted a written request to use paper forms or an alternative notification method or the software does not have features capable of meeting the requirements.

(b) Any person who stores, processes, or disposes of municipal hazardous waste or industrial solid waste shall have the continuing obligation to immediately provide notice to the executive director in writing or using electronic notification software provided by the executive director, of any changes or additional information concerning waste composition, waste management methods, facility engineering plans and specifications, or the geology where the facility is located to that reported in subsection (a) of this section, authorized in any permit, or stated in any application filed with the commission. Any registered generator who generates 1,000 kilograms or more of hazardous waste in any calendar month, must meet the requirements of this subsection by electronic notification using software provided by the executive director unless the executive director has granted a written request to use paper forms or an alternative notification method or the software does not have features capable of meeting the requirements.

(c) A landowner who disposes of domestic or exotic animal carcasses and who complies with a certified water quality management plan developed for their site under Texas Agriculture Code, §201.026(f) as added by Acts 2001, 77th Legislature, Chapter 1189, §1 (relating to Nonpoint Source Pollution) is exempt from the notification requirements of subsections (a) and (b) of this section.

(d) [ (c) ] Any person who generates hazardous waste in a quantity greater than the limits specified in §335.78 of this title (relating to Special Requirements for Hazardous Waste Generated by Conditionally Exempt Small Quantity Generators) in any calendar month or greater than 100 kilograms in any calendar month of industrial Class 1 waste shall notify the executive director of such activity using electronic notification software or paper forms provided by the executive director. Any registered generator who generates 1,000 kilograms or more of hazardous waste in any calendar month, must meet the requirements of this subsection by electronic notification using software provided by the executive director unless the executive director has granted a written request to use paper forms or an alternative notification method or the software does not have features capable of meeting the requirements. The executive director may require submission of information necessary to determine whether the storage, processing, or disposal is compliant with the terms of this chapter. Notifications submitted pursuant to this section shall be in addition to information provided in any permit applications required by §335.2 of this title, or any reports required by §335.9 of this title (relating to Recordkeeping and Annual Reporting Procedures Applicable to Generators), §335.10 of this title (relating to Shipping and Reporting Procedures Applicable to Generators of Hazardous Waste or Class 1 Waste and Primary Exporters of Hazardous Waste), and §335.13 of this title (relating to Recordkeeping and Reporting Procedures Applicable to Generators of Hazardous Waste or Class 1 Waste and Primary Exporters of Hazardous Waste). Any person who provides notification pursuant to this subsection shall have the continuing obligation to immediately document any changes or additional information with respect to such notification and within 90 days of the occurrence of such change or of becoming aware of such additional information, provide notice to the executive director in writing or using electronic notification software provided by the executive director, of any such changes or additional information to that reported previously. Any registered generator who generates 1,000 kilograms or more of hazardous waste in any calendar month, must meet the requirements of this subsection by electronic notification using software provided by the executive director unless the executive director has granted a written request to use paper forms or an alternative notification method or the software does not have features capable of meeting the requirements. If waste is recycled on-site or managed pursuant to §335.2(d) of this title, the generator must also comply with the notification requirements specified in subsection (h) of this section. The information submitted pursuant to the notification requirements of this subchapter and to the additional requirements of §335.503 of this title (relating to Waste Classification and Waste Coding Required) shall include, but is not limited to:

(1) a description of the waste;

(2) a description of the process generating the waste;

(3) the composition of the waste;

(4) a proper hazardous waste determination which includes the appropriate EPA hazardous waste number(s) described in 40 Code of Federal Regulations (CFR) Part 261. Generators must determine whether such waste is hazardous as defined in 40 CFR Part 261 and submit the results of that hazardous waste determination to the executive director;

(5) the disposition of each solid waste generated, if subject to the notification requirement of this subsection, including the following information:

(A) whether the waste is managed on-site and/or off-site;

(B) a description of the type and use of each on-site waste management facility unit;

(C) a listing of the wastes managed in each unit;

(D) whether each unit is permitted, or qualifies for an exemption, under §335.2 of this title.

(e) [ (d) ] Any person who transports hazardous or Class 1 waste shall notify the executive director of such activity on forms furnished or approved by the executive director, except:

(1) industrial generators who generate less than 100 kilograms of Class 1 waste per month and less than the quantity limits of hazardous waste specified in §335.78 of this title and who only transport their own waste; and

(2) municipal generators who generate less than the quantity limits of hazardous waste specified in §335.78 of this title and who only transport their own waste.

(f) [ (e) ] Persons operating transfer facilities in accordance with §335.94 of this title (relating to Transfer Facility Requirements) shall notify the executive director of such activity.

(g) [ (f) ] Upon written request of the executive director, any person who ships, stores, processes, or disposes of industrial solid waste or hazardous waste, as defined in this subchapter, shall perform a chemical analysis of the solid waste and provide results of the analysis to the executive director.

(h) [ (g) ] Any person who stores, processes, or disposes of industrial solid waste or municipal hazardous waste shall notify the executive director in writing of any activity of facility expansion not authorized by permit, at least 90 days prior to conducting such activity. Such person shall submit to the executive director upon request such information as may reasonably be required to enable the executive director to determine whether such activity is compliant with this chapter.

(i) [ (h) ] Any person who conducts or intends to conduct the recycling of industrial solid waste or municipal hazardous waste as defined in §335.24 of this title or Subchapter H of this chapter (relating to Standards for the Management of Specific Wastes and Specific Types of Facilities) and who is required to notify under §335.24 of this title or Subchapter H of this chapter must submit in writing to the executive director, at a minimum, the following information: the type(s) of industrial solid waste or municipal hazardous waste to be recycled, the method of storage prior to recycling, and the nature of the recycling activity. New recycling activities require such notification a minimum of 90 days prior to engaging in such activities. Recycling operations may commence 90 days after the initial notification of the intent to recycle, or upon receipt of confirmation that the executive director has reviewed the information found in this section. Persons engaged in recycling of industrial solid waste or municipal hazardous waste prior to the effective date of this section shall submit such notification within 60 days of the effective date of this subsection.

(j) [ (i) ] The owner or operator of a facility qualifying for the small quantity burner exemption under 40 CFR §266.108 must provide a one-time signed, written notification to the EPA and to the executive director indicating the following:

(1) The combustion unit is operating as a small quantity burner of hazardous waste;

(2) The owner and operator are in compliance with the requirements of 40 CFR §266.108, §335.221(a)(19) of this title (relating to Applicability and Standards) and this subsection of this section; and

(3) The maximum quantity of hazardous waste that the facility may burn as provided by 40 CFR §266.108(a)(1).

(k) [ (j) ] Notification and regulation requirements on nonhazardous used oil, oil made characteristically hazardous by use (instead of mixing), CESQG hazardous used oil, and household used oil after collection that will be recycled are found in Chapter 324 of this title (relating to Used Oil).

(l) [ (k) ] Other portions of this chapter that relate to solid wastes that are recycled include §335.1 of this title (relating to Definitions), under the definition of (Solid Waste, (§335.17 of this title (relating to Special Definitions for Recyclable Materials and Nonhazardous Recyclable Materials), §335.18 of this title (relating to Variances from Classification as a Solid Waste), §335.19 of this title (relating to Standards and Criteria for Variances from Classification as a Solid Waste), §335.24 of this title, and Subchapter H of this chapter.

§335.25.Handling, Storing, Processing, Transporting, and Disposing of Poultry Carcasses.

(a) Acceptable methods for disposal of poultry carcasses include the following storage, processing, and disposal methods:

(1) placement in a landfill permitted by the commission to receive municipal or industrial solid waste;

(2) composting, as defined in §332.2 of this title (relating to Definitions), and as further described in §332.23 of this title (relating to Operational Requirements);

(3) cremation or incineration;

(4) extrusion;

(5) rendering; and

[ (6) cooking for swine food; and]

(6) [ (7) ] any other method the commission determines to be appropriate.

(b) Prior to disposition by any method listed in subsection (a) of this section, poultry facilities may:

(1) store poultry carcasses on site for no more than 72 hours provided that storage is in a varmint-proof receptacle to prevent odor, leakage, or spillage, but

(2) shall freeze, or refrigerate at a temperature of 40 degrees Fahrenheit or less, any poultry carcasses which require on-site storage for more than 72 hours.

(c) Poultry carcasses may not be disposed of by burial on-site except in the event of a major die-off that exceeds the capacity of a poultry facility to store and process poultry carcasses by the normal means used by the facility. A mortality rate of 0.3% or more per day of the facility's total poultry inventory shall be deemed a major die-off for the purposes of this section. This subsection supersedes any provisions of a permit or other authorization issued by the commission or its predecessor agencies which may have authorized on-site burial of poultry carcasses. This section does not authorize violation of any applicable regulations or laws.

(d) Transportation of poultry carcasses to an off-site location for final disposition shall be in accordance with applicable local, state or federal regulations or laws.

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 17, 2008.

TRD-200800235

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 2, 2008

For further information, please call: (512) 239-0177

The Texas Commission on Environmental Quality (commission, TCEQ, or agency) proposes the repeal of §§344.1, 344.4, 344.10, 344.49, 344.58 - 344.63, 344.70 - 344.73, 344.75, 344.77, and 344.90 - 344.96; and proposes new §§344.1, 344.20 - 344.24, 344.30 - 344.38, 344.40 - 344.43, 344.50 - 344.52, 344.60 - 344.65, 344.70 - 344.72, and 344.80.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES

The proposed new rules would establish the duties and responsibilities of irrigators, irrigation technicians, and irrigation inspectors; provide clarification for better enforcement; reflect the change in the agency name; update statutory references; and correct grammar and cross-references. The proposal would implement changes made to Texas Occupations Code (TOC), §1903.053 and §1903.251, and the addition of Texas Water Code (TWC), §49.238, and Texas Local Government Code (TLGC), §401.006, by House Bill (HB) 4, HB 1656, and Senate Bill (SB) 3, 80th Legislature, 2007. This proposal would also address local, state, and national demands for conserving and protecting the state's water resources.

Although technology and conservation methods have evolved over the years, no substantive changes have been incorporated into the existing rules since 1996. The proposed new rules would ensure that the agency's rules are up to date and consistent with statutory standards and help to ensure that the rules are effective. Because of the number of changes made, repealing the existing rules in their entirety and proposing new rules make the changes easier to present and understand. The proposed new rules are reorganized to provide better readability. The proposed new rules would revise existing criteria for the design, installation, service, and operation of irrigation systems to be consistent with best industry practices and technology.

House Bill 4 and SB 3 direct the commission to adopt rules that govern: 1) the connection of an irrigation system to any water supply; 2) the design, installation, and operation of irrigation systems; 3) water conservation; and 4) the duties and responsibilities of irrigators.

HB 1656 adds a new landscape irrigation license classification, irrigation inspector, and directs municipalities with populations of 20,000 or more to adopt ordinances that require irrigation inspectors be licensed by the commission and obtain a permit before installing an irrigation system. Municipalities must adopt standards and specifications for designing, installing, and operating irrigation systems and include any rules adopted by the agency that are related to landscape irrigation. Municipalities may employ or contract with a licensed plumbing inspector or licensed irrigation inspector to enforce the ordinance. Municipalities may collect a fee to recover costs of the program. Municipalities must exempt on-site sewage systems, agricultural irrigation systems, and irrigation systems connected to a well and used by the property owner for domestic use.

HB 1656 allows water districts to adopt rules that meet the same criteria as municipalities, except that districts may employ or contract with a licensed plumbing inspector, a licensed irrigation inspector, the district's operator, or another governmental entity to enforce the rules. Water districts must exempt on-site sewage systems, agricultural irrigation systems, and irrigation systems connected to a well and used by the property owner for domestic use.

As required by HB 4, §19 and SB 3, the commission must adopt standards no later than June 1, 2008, with an effective date of January 1, 2009. Therefore, the proposed effective date of the repeal of the existing Chapter 344 and replacement with new Chapter 344 is January 1, 2009.

The existing Chapter 344 would be repealed. A new chapter would be proposed that is consistent with HB 4, HB 1656, and SB 3, compatible with best irrigation practices, and that improves readability.

SECTION BY SECTION DISCUSSION

Subchapter A, Definitions

Proposed new §344.1, Definitions, would define air gap; Atmospheric Vacuum Breaker; backflow prevention; backflow prevention assembly; completion of irrigation system installation; consulting; cross-connection; design; design pressure; Double Check Valve; emission device; employed; head-to-head spacing; health hazard; hydraulics; inspector; installer, irrigation inspector; irrigation plan; irrigation services; irrigation system; irrigation technician; irrigation zone; irrigator; irrigator-in-charge, landscape irrigation; license; mainline; maintenance checklist; major maintenance, alteration, repair, or service; master valve; matched precipitation rate; new installation; non-health hazard; non-potable water; pass-through contract; potable water; Pressure Vacuum Breaker; reclaimed water; records of landscape irrigation activities; Reduced Pressure Principle Backflow Prevention Assembly; static water pressure; supervision; water conservation; zone flow; and zone valve. Three definitions in the existing section, "Non-toxic Substance," "Precipitation Zones," and "Toxic Substance" are not being proposed in the new section because the terms are not used in this chapter. The definition of "Council" in the existing section is not proposed in the new section. The definition is not necessary, because the use of the term "council" in §344.80 means the Irrigator Advisory Council.

Subchapter B, Standards of Conduct for Irrigators, Installers, Irrigation Technicians, and Irrigation Inspectors, and Local Requirements

Proposed new Subchapter B would establish certain standards of conduct for licensees and would establish requirements for local regulations and inspections. The new Subchapter B incorporates the existing §§344.90 - 344.92 and part of §344.93.

Proposed new §344.20, Purpose of Standards, would establish the reasons for these standards of conduct. The proposal would implement changes made to TOC, §1903.053 and §1903.251 and the addition of TWC, §49.238 and TLGC, §401.006, by HB 4, HB 1656 and SB 3, 80th Legislature, 2007. Proposed new §344.20 is similar to and would update the existing §344.90 to include irrigation inspectors and irrigation technicians.

Proposed new §344.21, Intent, would establish the intent of these standards. It is necessary to prescribe responsibilities of licensees in accordance with TOC, §1903.053(a)(4). The section is similar to the existing §344.91. Specific references to enforcement activities would be added by the proposed rule.

Proposed new §344.22, Proficiency in the Field of Irrigation; Representation of Qualifications, would establish the requirement that irrigators, installers, irrigation technicians, and inspectors exhibit knowledge and proficiency when performing irrigation activities. The proposed §344.22 would also establish the requirement that irrigators, installers, irrigation technicians, irrigation inspectors, and business owners accurately and truthfully represent their qualifications. The proposed new rule would require irrigators, installers, irrigation technicians, and inspectors to be knowledgeable of local requirements related to landscape irrigation. The requirements are necessary to help ensure efficient irrigation practices.

Proposed new §344.23, Irrigation Practice, would prohibit false, misleading or deceptive practices related to irrigation services. The existing rule, §344.93(c), only applies to false, misleading, or deceptive practices related to bidding or advertising of services and fees by irrigators or installers. The proposed new rule would add selling, installing, maintaining, altering, repairing, servicing or inspection to the prohibition. This new requirement is necessary to help ensure efficient irrigation practices.

Proposed new §344.24, Local Regulation and Inspection, would establish that irrigators, installers, irrigation technicians, and inspectors must comply with local requirements, ordinances, and regulations. The existing rule, §344.70, applies to irrigators and installers. The proposed new rule would add irrigation inspectors and irrigation technicians to the rule. The proposed new rule would allow regulatory authorities to inspect irrigation systems connected to their public water systems. The language is similar to existing §344.71, except the existing rule states that it "is not required to be inspected" and the proposed rule states that the system "may" be inspected. The proposed rule requires municipalities with a population of 20,000 or more and water districts that implement irrigation programs to verify that the irrigator that designs and installs an irrigation system holds a valid license and has obtained the necessary permits prior to the installation. These entities must also conduct inspections to verify that the design and installation meet the requirements contained in this chapter or the local ordinance or rules, if more stringent. The proposed rule would require each inspector to maintain a log of inspections for three years. The proposed rule would exempt from the inspection requirements a landscape irrigation system that is part of an on-site sewage disposal system, an agricultural operation or is connected to a well used by the property owner for domestic use. It is necessary to set these standards to better enforce the landscape irrigation rules.

Subchapter C, Requirements for Licensed Irrigators, Installers, Irrigation Technicians, and Irrigation Inspectors

Proposed new Subchapter C would establish the duties and responsibilities of irrigators, installers, irrigation technicians, landscape irrigation business owners, and irrigation inspectors. It is necessary to define the responsibilities of those who engage in landscape irrigation in order to provide a better understanding of these responsibilities and to better enforce the landscape irrigation rules. Proposed new Subchapter C incorporates the existing §§344.4, 344.49, and 344.58.

Proposed new §344.30, License Required, would require irrigators, installers, irrigation technicians, and irrigation inspectors to hold a valid license. The requirement in the existing chapter for installers to work under the supervision of a licensed irrigator when connecting an irrigation system to a water supply would continue. The proposed rule would establish an irrigation technician's role on January 1, 2009, to allow the irrigation technician to install, maintain, alter, repair, and service an irrigation system as well as connect an irrigation system to the water supply under the direction of a licensed irrigator. The licensed irrigator would be responsible for the work performed by an irrigation technician on a landscape irrigation system. This section also addresses the license requirements for an inspector that may be employed or contracted by a municipality or water district to enforce landscape irrigation ordinances or rules.

Proposed new §344.31, Exemption for Business Owner Who Provides Irrigation Services, would establish the conditions under which a business owner could engage in irrigation activities by employing an irrigator to supervise irrigation activities of the business, as established in TOC, Chapter 1903.

Proposed new §344.32, Responsibilities of a Business Owner Who Provides Irrigation Services, would place responsibility on the landscape irrigation business owner to ensure landscape irrigation services are supervised by a licensed irrigator serving as the irrigator-in-charge. The business owner would be responsible for verifying the validity of the license of any irrigator, installer or irrigation technician working for the business. Because the owner guides the direction of the company, a business owner must ensure irrigation activities are performed in a responsible manner.

Proposed new §344.33, Display of License, would make administrative changes to correct grammar and would require licensees to present their license upon request to any business owner, irrigator, or regulatory authority with jurisdiction over landscape irrigation. Additionally, the irrigator, installer, and irrigation technician licensee are accountable to provide proof of licensure when requested by any regulatory authority, irrigation system's owner, or prospective owner. Irrigators, installers, and irrigation technicians would be required to display their license at their place of business. The requirement for an irrigation inspector to present the license when requested by a regulatory authority is addressed in this section.

Proposed new §344.34, Use of License, would establish who may use a license and how it may be used. The proposed rule would establish a requirement that an irrigator-in-charge can perform irrigation services at only one entity as an irrigator-in-charge, but may work at other businesses performing irrigation services. The proposed rule would include requirements for the use of license and license number by an irrigation inspector.

Proposed new §344.35, Duties and Responsibilities of Irrigators, would establish that an irrigator would be responsible for all permits, contracts, agreements, advertising or other irrigation activity secured and performed using the irrigator's license. The proposed rule would require the irrigator to comply with all of the rules contained in the chapter when performing irrigation work. The proposed rule would require a licensed irrigator to supervise irrigation activities for an unlicensed business owner. It is necessary to set out specific requirements for irrigators doing these irrigation activities because TOC, Chapter 1903 addresses the duties and responsibilities for landscape irrigation activities.

Proposed new §344.36, Duties and Responsibilities of Installers and Irrigation Technicians, would establish the duties and responsibilities of licensed installers and irrigation technicians. The current duties and responsibilities of installers include connecting irrigation systems to water supplies and installing an approved backflow prevention method as indicated on the site irrigation plan or according to the licensed irrigator's instructions. The proposed rule would allow an irrigation technician, beginning January 1, 2009, to connect, maintain, alter, repair, service, and direct the installation of an irrigation system under the direct supervision of a licensed irrigator. It is necessary to define the duties and responsibilities of irrigation technicians to help ensure the safe and efficient operation of the irrigation system.

Proposed new §344.37, Duties and Responsibilities of Irrigation Inspectors, would establish that an irrigation inspector must enforce the rules or ordinances of the employing entity. It is necessary to establish the duties and responsibilities of irrigation inspectors to protect the water supply.

Proposed new §344.38, Irrigator, Installer, and Irrigation Technician Records, would establish the requirement that irrigators, installers, and irrigation technicians make all landscape irrigation designs, invoices, contracts, advertisements, warranties, or other irrigation business records or documents available upon request to any governing authority within two business days of a request. This change is necessary to help ensure effective enforcement of and compliance with regulations that relate to landscape irrigation.

Subchapter D, Licensed Irrigator Seal

The new subchapter removes the existing requirement for the licensed irrigator to submit a copy of the seal on letterhead or business stationery and to notify the executive director of any changes in the seal or rubber stamp facsimile. The executive director may obtain a copy of the seal or rubber stamp facsimile, if necessary, on a case-by-case basis. A seal is required on the design, irrigation plan and other documents provided to the irrigation system's owner. It is necessary to set requirements for the seal and for use of the seal. The proposed rule incorporates part of existing §344.59.

Proposed new §344.40, Seal Required, would require each licensed irrigator to obtain a seal. The proposed rule would prohibit licensed irrigators from engaging in landscape irrigation work until they possess the seal and license. The change is necessary to ensure effective enforcement of and compliance with regulations related to landscape irrigation to protect the water supply.

Proposed new §344.41, Seal Design, would prescribe the appearance of a seal. This new section contains requirements identical to those in the existing §344.60, except that the new section explains that the license number on the seal does not need to contain the leading zeros. The proposed rule would require the irrigator to be responsible for the security of the seal. The proposed rule would better explain the seal requirements.

Proposed new §344.42, Seal Display, would prescribe that the seal or electronic seal and signature be visible and legible on the original document and when the document is copied or reproduced. The proposed rule incorporates parts of §344.60 and would address new technology. It is necessary to explain the responsibilities of a licensed irrigator in displaying the seal on documents.

Proposed new §344.43, Seal Use, would establish the required uses of a seal. Grammatical changes were made from the existing rule. The change in structure would simplify the section. The section would also require irrigators to sign their legal name and affix their seal on documents presented to irrigation system owners or the owner's representative. The proposed rule would require the irrigator to accept responsibility for documents that have the seal, for work performed in accordance with the sealed document, and to ensure that a system was properly installed in accordance with rules and ordinances. The proposed rule would require irrigators to maintain a copy of all sealed documents for three years. The proposed rule would require that once a seal is utilized on a document, the seal cannot be altered. The proposed rule would describe how a seal could be used on a design or specification created by another irrigator. The proposed rule contains a new requirement that the irrigator sign below the seal rather than over the seal. The proposed change would make the irrigator's signature more legible. The proposed rule replaces existing §§344.61 - 344.63. It is necessary to explain the responsibilities of a licensed irrigator in using the seal on documents.

Subchapter E, Backflow Prevention and Cross-Connections

Proposed new §344.50, Backflow Prevention Methods, would establish a requirement that all irrigation systems connected to potable water supplies be connected through an approved backflow prevention method. The proposed new section describes the types of backflow prevention methods that are approved, the conditions of use, and installation standards. The change in structure from the existing chapter would improve the section's readability and help to ensure the protection of water supplies. This section would replace existing §344.73. The changes would provide irrigators, installers and irrigation technicians with a central location to determine which types of backflow prevention assemblies are appropriate for use in specific irrigation applications in Texas.

Proposed new §344.50(a) would establish the requirements for approved backflow prevention methods and their installation. The proposed rule also includes methods to determine which manufacturer's equipment, model, size, and method of installation are approved for use in the United States.

Proposed new §344.50(b) would establish the backflow prevention methods that are to be used in conditions that present a health hazard, and prescribe how the device must be installed. The standards are necessary to help ensure the protection of water supplies.

Proposed new §344.50(c) would explain that a backflow prevention device used in a landscape irrigation system designated as a health hazard must be inspected upon installation and annually thereafter. This requirement is in §290.44(h)(4) of this title and is included in this chapter as a convenience and better informs irrigators and irrigation system owners of backflow prevention requirements.

Proposed new §344.50(d) would establish when and how a double check valve backflow prevention assembly may be used and would allow the assembly to be used under conditions that do not present a health hazard. It is necessary to provide specific information in the use of a double check valve to help ensure proper use and to protect the water supply.

Proposed new §344.50(e) would establish certain installation requirements when a double check valve is installed below ground. The proposal includes a new provision that requires a clearance between any fill material and the bottom and the sides of the double check valve to allow for testing and repair. The proposal would require the installation of a y-type strainer on the discharge side of the double check valve. The standards are necessary to help ensure the protection of water supplies.

Proposed new §344.51, Specific Conditions and Cross-Connection Control, replaces existing §344.75, and would establish specific conditions relating to cross connections and would prescribe the requirements in different situations. The identification of these conditions is necessary to help ensure the protection of water supplies. Additionally, the title change would more accurately reflect the subject matter of the section.

Proposed new §344.51(a) would establish the approved backflow prevention method when chemicals are added to the water in the irrigation system. This requirement is necessary for the protection of water supplies and for consistency with 30 TAC Chapter 290, Public Drinking Water.

Proposed new §344.51(b) would prohibit the interconnection of potable and non-potable water sources in an irrigation system. This requirement is necessary for the protection of water supplies and for consistency with 30 TAC Chapter 290.

Proposed new §344.51(c) would establish that irrigation system components utilizing chemical additives must be connected to a potable water system using a reduced pressure principle backflow prevention assembly.

Proposed new §344.51(d) would establish specific requirements and limitations for irrigation systems that are located on a property that is served by an on-site sewage facility. Specific requirements that relate to the design and installation of an irrigation system that is located on a property that is served by an on-site sewage facility system are necessary for the preservation of the health and safety of the public.

Proposed new §344.52, Installation of Backflow Prevention Device, would describe how and when backflow prevention devices should be installed. The requirements will help protect the water supply.

Proposed new §344.52(a) would require backflow protection devices be installed on existing irrigation systems that do not have an approved backflow prevention method when certain maintenance, alterations, repairs, or service are made to the irrigation system. These systems could potentially contaminate water supplies and pose a health and safety risk.

Proposed new §344.52(b) would prohibit, if used, the installation of a master valve upstream of backflow prevention devices. The installation of an automatic master valve upstream of a backflow prevention assembly could prevent accurate testing of the backflow prevention device, as is required in 30 TAC Chapter 290.

Proposed new §344.52(c) would require an irrigator to have the backflow prevention device tested prior to the device being placed in service and to provide the results within 10 business days of the testing to the water purveyor and irrigation system's owner. The testing of the backflow prevention device would help protect the water supply.

Subchapter F, Standards for Designing, Installing, and Maintaining Landscape Irrigation Systems

Proposed new §344.60, Water Conservation, would promote water conservation practices in the field of irrigation. The proposed requirement would add that systems must also be operated to promote water conservation in addition to those requirements in the existing §344.72. The operation of irrigation systems affects the water efficiency of a system.

Proposed new §344.61, Minimum Standards for the Design of the Irrigation Plan, would change the standards for the design of irrigation systems by removing the requirements for wind derating that are currently in existing §344.77(c). The available industry information for wind derating is inadequate. The requirement for minimum standards for precipitation rates currently in existing §344.77(d) would be removed because there are more efficient means to achieve water conservation in irrigation systems. Proposed new §344.61 replaces existing §344.77 and would add new requirements. The change in structure from the existing rule is necessary to improve the readability of the section.

Proposed new §344.61(a) would require an irrigator to prepare an irrigation plan for each new installation site. The proposed rule explains how variances from the original plan must be addressed. The proposed rule would require a paper copy of the plan to be on site at all times during the installation of the irrigation system. The irrigation plan would promote water conservation.

Proposed new §344.61(b) would require that the irrigation plan for the proposed irrigation system include a statement of the areas covered and not covered by the irrigation system. A proper design must indicate the intended areas of irrigation. The design of an irrigation system is essential to conserve water.

Proposed new §344.61(c) would establish a list of items that are required in an irrigation plan. The proposed rule would set a scale to be used in drawing the irrigation plan. It is necessary to provide these requirements for designs because proposed new Subchapter F requires that specific design elements be used to conserve water.

Proposed new §344.62, Minimum Design and Installation Requirements, would establish limitations for the use of component parts in a design. Proposed new §344.62(a) replaces existing §344.77 and proposes new requirements. In order to protect the integrity and efficiency of the irrigation system and reduce risks to human health and the environment, the components of an irrigation system should not be used in excess of the limitations that are published by the manufacturer. Irrigation plans should not incorporate design elements that would cause a component to be used in a manner that would exceed the limitations published by the manufacturer.

Proposed new §344.62(b) would establish standards for the spacing of emission devices. The proposed rule would not allow spacing of emission devices further apart than the manufacturer's published specifications. To improve water conservation, the rule proposes a new requirement that does not allow the use of spray or rotary sprinkler heads in areas five feet wide or less and that have impervious surfaces on two or more sides. The rule also proposes a new requirement that irrigation system heads are no closer than four inches to a hardscape, such as a foundation, fence, concrete, asphalt, pavers, or stones set with mortar. The proposed new section would replace existing §344.77(a). It is necessary to establish these standards to promote water conservation.

Proposed new §344.62(c) would establish the requirement that the design and installation of an irrigation system's emission components must ensure that they operate within the manufacturer's published operating pressure range. Irrigation plans would be required to use emission devices that would operate at the minimum and not above the maximum sprinkler head pressure published by the manufacturer. The new section would replace existing §344.77(b). This standard is necessary because systems that operate above or below the recommended operating pressure are inefficient and are prone to either waste water or to result in insufficient irrigation.

Proposed new §344.62(d) would require the design and installation of irrigation systems so that water flow in the pipes would not exceed a velocity of five feet per second for polyvinyl chloride (PVC) pipe. The excessive velocity of flow can cause damage to components of the irrigation system, thus wasting water.

Proposed new §344.62(e) would establish a requirement for irrigation systems to have separate irrigation zones based on factors such as microclimate, plant material type, topographic features, soil conditions, and hydrological control. Separate zones would promote water conservation.

Proposed new §344.62(f) would establish a requirement for irrigation systems to have matched precipitation rates at all emission devices located in the same zone. Matched precipitation rates would promote water conservation.

Proposed new §344.62(g) would establish a requirement that irrigation systems not spray water over impervious surfaces such as concrete, asphalt, brick, wood, stones set with mortar, walls, fences, sidewalks, streets, etc. Limiting the spray of water over impervious surfaces would conserve water.

Proposed new §344.62(h) would require the master valve be located on the discharge side of the backflow prevention device, if a master valve is used on a newly installed or on an existing system. The location of the master valve could impact the testing of the backflow prevention device. If included, a master valve would conserve and protect the water supply.

Proposed new §344.62(i) would require the use of colored PVC pipe primer solvent. Colored PVC pipe primer solvent would promote better adhesion when cementing pipe joints together, thus minimizing leaking pipes, which would promote water conservation.

Proposed new §344.62(j) would establish the requirement that technology, in the form of rain or moisture sensors, or various other methods, be installed on all new automatic irrigation systems. The requirement could be met by other technologies that are designed to detect moisture and shut off the landscape irrigation system. The requirement would extend to new systems and those with automatic controllers that are replaced during a repair. The use of this technology would promote water conservation.

Proposed new §344.62(k) would establish a requirement for an isolation valve. The isolation valve would allow the water flowing to the irrigation system to be manually turned off without turning off the water supply at the water meter, thereby allowing water to be used for other purposes in a building. This would promote water conservation.

Proposed new §344.62(l) would establish that all piping must be covered according to the manufacturer's published specifications. If there are no specifications, a minimum coverage of six inches would be established by the proposed rule. A two inch minimum coverage is proposed for areas that have utilities or structures that prevent the minimum recommended coverage. The existing rule provides for a variance where utilities, tree roots, or man made structures are encountered. "Structures" in the existing rule would be changed to "man-made structures" for better understanding. A new requirement would require irrigators to use select fill, to compact all trenches and holes created during the installation of irrigation systems, and return the area to the original grade. The new section replaces existing §344.77(e). Pipes that are not properly covered can break more easily and result in wasted water.

Proposed new §344.62(m) would establish standards for the use of electrical wiring and wire splices in an irrigation system, including the minimum depth of cover for wiring. The depth of cover for wiring is necessary in order to conform to the National Electrical Code. The code is not a national law, but its observance is mandated in many states and local areas and represents best practices. The new section replaces §344.77(f). The proposed rule would require electrical wiring that is used to connect the automatic controller to any electrical component to be buried at least six inches deep. Use of approved electrical wiring and proper installation is critical to preventing a health hazard.

Proposed new §344.62(n) would establish that water within an irrigation system is non-potable. The rule would further establish that no drinking or domestic water outlets, such as hoses used to fill swimming pools or decorative fountains could be connected to an irrigation system. The rule would also establish conditions whereby a hose bib could be attached to the irrigation system. The proposed rule would require the hose to be labeled, "Nonpotable. Not safe for drinking." The proposed rule would help protect the water supply and public health.

Proposed new §344.62(o) would establish that effective January 1, 2010, an irrigator must be on-site at all times when landscape irrigation activities are being conducted. If the irrigator cannot be on-site, the irrigator would be responsible for ensuring a licensed irrigation technician is on-site to supervise the installation of the irrigation system. It is necessary to set out specific requirements for licensed irrigators during irrigation activities to help ensure the safe and efficient service of irrigation systems.

Proposed new §344.63, Completion of Irrigation System Installation, would establish that the irrigator providing on site supervision must complete four tasks. The first task would require the irrigator to conduct a final walk through with the irrigation system's owner or owner's representative to explain the operation of the system. Second, the irrigator would provide a maintenance checklist to the irrigation system's owner or the owner's representative. As part of the checklist, the irrigator would provide the manufacturer's manual for the automatic controller, a seasonal watering schedule, a list of parts that require maintenance and a recommended frequency of maintenance and a statement that the system has been installed according to all rules and ordinances and has been adjusted for the most efficient application of water. The checklist would require the signature of the irrigator and the irrigation system's owner or owner's representative. Third, the irrigator must attach a permanent sticker to each automatic controller showing the irrigator's name, license number, company name, telephone number and the dates of the warranty period. Finally, the irrigator would provide a copy of the design plan showing the actual placement of irrigation system components to the irrigation system's owner or owner's representative. It is necessary to set out specific requirements for licensed irrigators during irrigation activities to help ensure the safe and efficient installation of irrigation systems.

Proposed new §344.64, Maintenance, Alteration, Repair or Service of Irrigation Systems, would establish that the irrigator or business owner is responsible for all work performed during the maintenance, alteration, repair or service of irrigation systems during the warranty period. The irrigator or business owner is not responsible for the professional negligence of another irrigator who works on the same system. The proposed rule would require all trenches and holes created during the maintenance, alteration, repair, or service of an irrigation system be returned to the original grade. The proposed rule would require the use of colored PVC pipe primer solvent on pipes and fittings used in the maintenance, alteration, repair, or service of irrigation systems. The proposed rule would require the installation of an isolation valve when maintenance, alteration, repair, or service of an irrigation system involves work at the water meter or backflow prevention device. It is necessary to set out specific requirements for irrigators during irrigation activities to help ensure the safe and efficient maintenance, alteration, repair, and service of irrigation systems.

Proposed new §344.65, Reclaimed Water, would address the use of reclaimed water in landscape irrigation under certain conditions. Having information regarding the use of reclaimed water in landscape irrigation would promote water conservation and help protect the water supply and public health.

Subchapter G, Advertising, Contract, and Warranty

Proposed new §344.70, Advertisement, replaces existing §344.93 and would establish certain requirements for irrigators who choose to advertise in written or electronic media and require that the commission's contact information be prominently displayed at the irrigator's place of irrigation business. The proposed rule would establish a new requirement that the irrigator's license number would be displayed on both sides of trailers used in irrigation activities. It is necessary for all advertisements to include the license number of the irrigator to help ensure that irrigation practices are performed by a person who is qualified to perform them. HB 4 and SB 3 direct the commission to adopt rules governing the duties and responsibilities of irrigators.

Proposed new §344.71, Contracts, replaces existing §344.94 and would establish the information that must be included in estimates, proposals, bids, invoices, and contracts to install landscape irrigation systems. The section would require that documents be written. Certain information must be included in contracts to help ensure compliance with regulations. The proposed new rule would require the dates that the warranty is valid be provided in the contract. Additionally, §344.71(c) would recognize that pass-through contracts, as defined in §344.1(36), do not require the contractor to hold a license but must identify the irrigator and license number responsible for performing the work and providing a warranty. Definition of this type of contract is required for effective enforcement of this chapter.

Proposed new §344.72, Warranties, would replace the existing §344.96 and would establish the requirement that irrigators provide a written warranty on all new installations. The proposed rule would require that the irrigation system's owner or owner's representative be provided a written document for repair work that includes a breakdown of parts and labor that are expended on the job and provide a warranty for the materials and labor. The new section would also require specific information be contained in the written warranty. These requirements are necessary in order to help preserve the water conserving efficiency of irrigation systems and to protect against system failure that could result in wasted water.

Subchapter H, Irrigator Advisory Council

Proposed new §344.80, Irrigator Advisory Council, requirements are essentially the same requirements that are in existing §344.10, with changes to grammar to improve readability. The number of meetings that a council member could miss would be three consecutive regularly scheduled meetings or more than half of the regularly scheduled meetings in one year. The existing requirement is that a council member could miss half of the regularly scheduled meetings and be removed from the council by the commission.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

Nina Chamness, Analyst, Strategic Planning and Assessment, has determined that, for the first five-year period the proposed rules are in effect, no significant 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. Local governments are permitted to cover regulation costs through an increase in permitting fees, and in high growth areas of the state, population growth may ensure that water revenues remain the same at the same time water conservation practices are utilized.

The proposed rules have the goal of promoting water conservation and would amend Chapter 344 to comply with the water conservation requirements concerning landscape irrigation systems found in HB 1656, HB 4, and SB 3, 80th Legislature. The proposed rules also repeat some provisions included in the current rules of Chapter 290 so that Chapter 344 serves as a convenient, all inclusive, up to date regulation package for the rules governing landscape irrigation.

HB 4 and SB 3, 80th Legislature, required the agency to adopt rules that govern: water conservation; the connection of an irrigation system to any water supply; the design, installation, and operation of irrigation systems; and the duties and responsibilities of licensed irrigators.

The provisions of HB 1656, 80th Legislature, require the agency to implement rules to specify that: municipalities with a population of 20,000 or more must adopt and enforce a landscape irrigation ordinance; water districts may voluntarily adopt and enforce landscape irrigation rules; landscape irrigation ordinances and rules must establish certain requirements; municipalities and water districts must employ or contract with a licensed irrigation inspector or a licensed plumbing inspector to enforce ordinances or rules; water districts are also allowed to use the district's operator or another governmental entity to enforce the landscape irrigation rules; and municipalities or water districts are allowed to collect a permitting fee to cover the cost of administering the landscape irrigation program.

The requirements of landscape irrigation ordinances and rules must: require installer or irrigator to hold a license; at a minimum, include TCEQ rules; address obtaining a permit prior to installation of an irrigation system; include minimum standards and specifications for designing, installing, and operating irrigation systems; and exempt: on-site sewage systems, agricultural irrigation systems, and irrigation systems connected to a groundwater well and used by the property owner for domestic use.

Although, at a minimum, landscape irrigation ordinances adopted by municipalities or water districts must comply with agency rules, local governments can adopt more stringent criteria for landscape irrigation systems if they desire to do so.

To comply with legislative mandates, reflect best practices of the landscape irrigation industry, and to promote efficient water conservation practices, the proposed rules contain provisions to specify the minimum professional and legal requirements when installing landscape irrigation systems, the controls needed to protect public drinking water and aid in water conservation; the water conservation and system information to be provided to consumers; the warranty standards to be given to consumers, and the record keeping requirements for installed systems.

Cost Implications for Installation of New Landscape Irrigation Systems at State Agencies and Local Governments

The fiscal implications of the proposed rules on state agencies and local governments that might install new landscape irrigation systems are expected to be minimal since these systems would comply with the commercial development standard required by most municipalities and general contractors. The requirements for commercial landscape irrigation systems already comply with many of the requirements under the proposed rules.

Costs Implications for Retrofitting Landscape Irrigation Systems at State Agencies and Local Governments

The proposed rules are not expected to have a significant fiscal impact on state agencies and local governments since they do not require retrofit to an existing system unless there is a need to replace broken automatic controllers. In cases where an automatic controller is replaced, a rain sensor will be required. The cost for this feature ranges from $50 to $100 per controller and cost savings for every day a rain sensor interrupts or delays an automatic watering schedule is estimated to range from $30 to $50.

Costs to Local Governments to Implement Landscape Irrigation Ordinances

There are approximately 117 municipalities that will be required to modify existing ordinances or to adopt and enforce new landscape irrigation ordinances as a result of the proposed rules. An estimated 1,100 water districts may also choose to adopt these ordinances. These local governments will be required to establish a permitting program and have landscape irrigation systems inspected by either a licensed plumbing inspector or a licensed irrigation inspector. Local governments are allowed to recover the costs of this permitting program by increasing fees for landscape irrigation permits if they so choose. Local governments could choose to hire third party contractors to perform inspections, and staff knows that some local governments with landscape irrigation ordinances already include inspection requirements. However, the agency does not track this data in a formal manner. Local governments could spend from $29,000 to $50,000 per year to hire a licensed irrigation inspector. Local governments might incur license exam fees and training costs for any employee serving as a licensed irrigation inspector. These costs are estimated to be $1,300 per applicant in the first year. A license fee of $111 would also be required in the first year. The license must be renewed every three years, and the employee would be required to earn continuing education credits to qualify for renewal. Training costs for continuing education and the license renewal fee is estimated to range from $450 to $560 every three years. If a local government decides to use a third party to inspect landscape irrigation systems, contract costs are estimated to be equivalent to or lower than the cost of hiring, training, and licensing an employee. The total costs of a permitting system would depend on the number of irrigation systems requiring inspection and how a local government chooses to implement the program.

PUBLIC BENEFITS AND COSTS

Nina 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 compliance with state law and more efficient landscape irrigation systems that provide enhanced protection and conservation of water supplies.

Staff believes that many landscape irrigators and installers already comply with many of the requirements in the proposed rules. In general, staff expects that any cost increases experienced by landscape irrigation professionals as a result of the proposed rules will be passed on to property owners. These cost increases are not expected to be significant because property owners should experience cost savings to offset the price of an irrigation system before the system reaches the end of its useful life. Landscape irrigation system costs will depend on many design and market factors found in the different areas of the state. The amount of water savings experienced by property owners will also vary greatly depending on the average rainfall of the area, the price of water in the area, and the landscape design. The proposed rules may increase the cost of a landscape irrigation system for an average size yard by $350 to $580. In total, an average residential landscape irrigation system is estimated to cost approximately $2,300 to $3,800 to design and install under the proposed rules.

The proposed rules will require either an irrigator or irrigation technician to be on-site at all times during the installation, maintenance, alteration, repair, or service of an irrigation system beginning January 1, 2010. In addition, the proposed rules require a design plan and other information be given to a property owner as well as specifying that irrigators must retain this information in the irrigator's business records for three years. There are an estimated 6,000 licensed irrigators and 200 licensed installers in the state that install an estimated 70,000 to 80,000 landscape irrigation systems per year. Staff estimates that about 95% of these irrigators operate small or micro-businesses, and the fiscal impact of the proposed rules on these businesses can be found in the SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT of this fiscal note.

Staff has conservatively estimated that if 25% of water used for irrigation is wasted, a homeowner, on average, could save an estimated $194 per year when an irrigation system that complies with the proposed rules is installed. Over a five year period estimated savings could be as much as $970. An irrigation system is expected to last twenty years or longer.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

No adverse fiscal implications are anticipated for small or micro-businesses as a result of the proposed rules. There are an estimated 6,000 licensed irrigators and 200 licensed installers in the state, the vast majority of which are small or micro-businesses. Although many of these irrigators already comply with some of these requirements, operations costs, specifically on-site supervision, design, and control costs, could increase by an estimated $350 to $580 per system for irrigators who do not currently operate in a manner compliant with the proposed rules. Again, these costs are not expected to have a significant fiscal impact on irrigators or irrigation technicians since cost increases could be passed on to property owners who are expected to recover any out of pocket expenses through savings on water bills.

SMALL BUSINESS REGULATORY FLEXIBILITY ANALYSIS

The commission has reviewed this proposed rulemaking and determined that a small business regulatory flexibility analysis is not required because the proposed rules are needed to comply with state law and do not adversely affect a small or micro-business in a material way for the first five years that the proposed rules are in effect.

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 the Administrative Procedure Act, Texas Government Code, §2001.001 et. seq., and determined that the rulemaking is not subject to Texas Government Code, §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in Texas Government Code, §2001.0225(g)(3). A "major environmental rule" means 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, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The intent of the proposed rules is to address evolving practices and technology in the irrigation industry that relate specifically to water conservation, non-point source water pollution, protection of potable water supplies, responsibilities of licensed landscape irrigators, and enforceability of irrigation rules. These proposed rules also implement HB 4, SB 3 and HB 1656, 80th Legislature, 2007. Although technology and conservation methods have evolved over the years, no substantive changes have been made to these existing rules since 1996. These proposed rules would ensure that the agency's rules are consistent with statutory standards and that they are more reflective of current technical practices and conservation methods. Protection of human health and the environment may be a by-product of the proposed rules, but is not the specific intent of the rules. Therefore, the commission concludes that the proposed rules do not constitute a major environmental rule.

Furthermore, the proposed rules do not meet any of the four applicability requirements listed in Texas Government Code, §2001.0225(a). Texas Government Code, §2001.0225 applies only to a major environmental rule which: 1) exceeds a standard set by federal law, unless the rule is specifically required by state law; 2) exceeds an express requirement of state law, unless the rule is specifically required by federal law; 3) exceeds 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) adopts a rule solely under the general powers of the agency instead of under a specific state law.

The proposed rules do not exceed a federal standard because there are no federal standards regulating the practice of landscape irrigation. The proposed rules do not exceed state law requirements because these rules are required by HB 4, SB 3, and HB 1656. Also, the proposed rules do not exceed a requirement of an agreement because there are no delegation agreements or contracts between the State of Texas and an agency or representative of the federal government to implement a state and federal program regarding landscape irrigation. And finally, these rules are being proposed under specific state laws, in addition to the general powers of the agency.

Therefore, Texas Government Code, §2001.0225 is not applicable to these proposed rules. The commission invites comment on the draft regulatory impact determination.

TAKINGS IMPACT ASSESSMENT

The commission evaluated these proposed rules and performed an analysis of whether these proposed rules constitute a taking under Texas Government Code, Chapter 2007. The specific purpose of the proposed rules is to update the rules to address evolving practices and technology in the irrigation industry, relating specifically to water conservation, non-point source water pollution, protection of potable water supplies, responsibilities of licensed landscape irrigators, and enforceability of irrigation rules. The proposed rules would substantially advance this stated purpose by setting standards for the installation of irrigation systems and by clearly defining the irrigator's, installer's, irrigation technician's, and inspector's responsibilities. The proposed rules would implement HB 4, SB 3, HB 1656, 80th Legislature, 2007.

Promulgation and enforcement of these proposed rules would be neither a statutory nor a constitutional taking of private real property. Specifically, the proposed regulations do not affect a landowner's rights in private real property because the proposed rules would neither burden nor restrict or limit the owner's right to property and reduce its value by 25% or more beyond that which would otherwise exist in the absence of these regulations. In other words, these rules would not constitute a statutory or constitutional taking because they only update existing rules to comply with current technical standards and conservation methods and implement new legislation that does not affect a landowner's rights in private real property.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the proposed rules and found that they are neither identified in 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). Therefore, the proposed rules are not subject to the Texas Coastal Management Program.

ANNOUNCEMENT OF HEARING

A public hearing on this proposal will be held in Austin on February 26, 2008, at 10:00 a.m. at the Texas Commission on Environmental Quality complex located at 12100 Park 35 Circle in Building B, Room 201A. The hearing will be structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. A time limit may be established at the hearing to assure that enough time is allowed for every interested person to speak. There will be no open discussion during the hearing; however, an agency staff member will be available to discuss the proposal 30 minutes prior to the hearing.

Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact John Gaete, Office of Legal Services, at (512) 239-6091. Requests should be made as far in advance as possible.

SUBMITTAL OF COMMENTS

Comments may be submitted to Mr. John Gaete, TCEQ, Office of Legal Services, MC205, P.O. Box 13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808. Electronic comments may be submitted at http:/www5.tceq.state.tx.us/rules/ecomments/. File size restrictions may apply to comments submitted via the eComments system. All comments should reference Rule Project No. 2007-027-344-CE. Comments must be received by 5:00 p.m., March 3, 2008. For further information or questions concerning this proposal, please contact Candice Garrett, TCEQ, Compliance Support Division, (512) 239-1451.

Subchapter A. GENERAL PROVISIONS

30 TAC §344.1, §344.4

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections 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

These repeals are proposed under Texas Water Code (TWC), §5.013, concerning the General Jurisdiction of Commission; TWC, §5.102, concerning General Powers; TWC, §5.103, concerning Rules; TWC, §5.105, concerning General Policy; and TWC, §5.107, concerning Advisory Committees, Work Groups, and Task Forces. These repeals are also proposed under TWC, §§37.001 - 37.015, concerning: Definitions; Rules; License or Registration Required; Qualifications; Issuance and Denial of Licenses and Registrations; Renewal of License or Registration; Licensing Examinations; Training; Continuing Education; Fees; Advertising; Complaints; Compliance Information; Practice of Occupation; Roster of License Holders and Registrants; and Power to Contract, respectively. These repeals are also proposed under Texas Occupations Code (TOC), §1903.001, concerning Definitions; TOC, §1903.002, concerning Exemptions; TOC, §1903.053, concerning Standards; TOC, §1903.151, concerning Council Membership; TOC, §1903.152, concerning Eligibility of Public Members; TOC, §1903.155, concerning Presiding Officer; TOC, §1903.157, concerning Meetings; TOC, §1903.158, concerning Per Diem Reimbursement; TOC, §1903.159, concerning Council Duties; and TOC, §1903.251, concerning License Required. Finally, these repeals are also proposed under Texas Health and Safety Code (THSC), §341.033, concerning Protection of Public Water Supplies; and THSC, §341.034, concerning Licensing and Registration of Persons Who Perform Duties Relating to Public Water Supplies.

These proposed repeals implement TWC, §§5.013, 5.102, 5.103, 5.105, 5.107, and 37.001 - 37.015; TOC, §§1903.001, 1903.002, 1903.053, 1903.151, 1903.152, 1903.155, 1903.157, 1903.158, 1903.159, and 1903.251; THSC, §341.033 and §341.034.

§344.1.Definitions.

§344.4.License Required.

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 17, 2008.

TRD-200800218

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 2, 2008

For further information, please call: (512) 239-6091

30 TAC §344.10

(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

This repeal is proposed under Texas Water Code (TWC), §5.013, concerning the General Jurisdiction of the Commission; TWC, §5.102, concerning General Powers; TWC, §5.103, concerning Rules; TWC, §5.105, concerning General Policy; and TWC, §5.107, concerning Advisory Committees, Work Groups, and Task Forces. This repeal is also proposed under TWC, §§37.001 - 37.015, concerning: Definitions; Rules; License or Registration Required; Qualifications; Issuance and Denial of Licenses and Registrations; Renewal of License or Registration; Licensing Examinations; Training; Continuing Education; Fees; Advertising; Complaints; Compliance Information; Practice of Occupation; Roster of License Holders and Registrants; and Power to Contract, respectively. This repeal is also proposed under TOC, §1903.001, concerning Definitions; TOC, §1903.002, concerning Exemptions; TOC, §1903.053, concerning Standards; TOC, §1903.151, concerning Council Membership; TOC, §1903.152, concerning Eligibility of Public Members; TOC, §1903.155, concerning Presiding Officer; TOC, §1903.157, concerning Meetings; TOC, §1903.158, concerning Per Diem Reimbursement; TOC, §1903.159, concerning Council Duties; and TOC, §1903.251, concerning License Required. Finally, this repeal is also proposed under THSC, §341.033, concerning Protection of Public Water Supplies and THSC, §341.034, concerning Licensing and Registration of Persons Who Perform Duties Relating to Public Water Supplies.

The proposed repeal implements TWC, §§5.013, 5.102, 5.103, 5.105, 5.107, and 37.001 - 37.015; TOC, §§1903.001, 1903.002, 1903.053, 1903.151, 1903.152, 1903.155, 1903.157, 1903.158, 1903.159, and 1903.251; THSC, §341.033 and §341.034.

§344.10.Irrigator Advisory Council.

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 17, 2008.

TRD-200800219

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 2, 2008

For further information, please call: (512) 239-6091

30 TAC §§344.49, 344.58 - 344.63

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections 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

These repeals are proposed under Texas Water Code (TWC), §5.013, concerning the General Jurisdiction of the Commission; TWC, §5.102, concerning General Powers; TWC, §5.103, concerning Rules; and TWC, §5.105, concerning General Policy. These repeals are also proposed under TWC, §§37.001 - 37.015, concerning: Definitions; Rules; License or Registration Required; Qualifications; Issuance and Denial of Licenses and Registrations; Renewal of License or Registration; Licensing Examinations; Training; Continuing Education; Fees; Advertising; Complaints; Compliance Information; Practice of Occupation; Roster of License Holders and Registrants; and Power to Contract, respectively. These repeals are also proposed under TOC, §1903.001, concerning Definitions; TOC, §1903.002, concerning Exemptions; TOC, §1903.053, concerning Standards; and TOC, §1903.251, concerning License Required. Finally, these repeals are also proposed under THSC, §341.033, concerning Protection of Public Water Supplies; and THSC, §341.034, concerning Licensing and Registration of Persons Who Perform Duties Relating to Public Water Supplies.

These proposed repeals implement TWC, §§5.013, 5.102, 5.103, 5.105, and 37.001 - 37.015; TOC, §§1903.001, 1903.002, 1903.053, and 1903.251; and THSC, §341.033 and §341.034.

§344.49.Display of License.

§344.58.Unauthorized Use of License.

§344.59.Seal Required.

§344.60.Seal and Rubber Stamp Facsimile Design.

§344.61.Authorized Use of Seal and Rubber Stamp facsimile.

§344.62.Unauthorized Use of Seal or Rubber Stamp.

§344.63.Required Use of Seal.

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 17, 2008.

TRD-200800220

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 2, 2008

For further information, please call: (512) 239-6091

30 TAC §§344.70 - 344.73, 344.75, 344.77

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections 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

These repeals are proposed under Texas Water Code (TWC), §5.013, concerning the General Jurisdiction of the Commission; TWC, §5.102, concerning General Powers; TWC, §5.103, concerning Rules; and TWC, §5.105, concerning General Policy. These repeals are also proposed under TWC, §§37.001 - 37.015, concerning: Definitions; Rules; License or Registration Required; Qualifications; Issuance and Denial of Licenses and Registrations; Renewal of License or Registration; Licensing Examinations; Training; Continuing Education; Fees; Advertising; Complaints; Compliance Information; Practice of Occupation; Roster of License Holders and Registrants; and Power to Contract, respectively. These repeals are also proposed under TOC, §1903.001, concerning Definitions; TOC, §1903.002, concerning Exemptions; TOC, §1903.053, concerning Standards; and TOC, §1903.251, concerning License Required. Finally, these repeals are also proposed under THSC, §341.033, concerning Protection of Public Water Supplies and THSC, §341.034, concerning Licensing and Registration of Persons Who Perform Duties Relating to Public Water Supplies.

These proposed repeals implement TWC, §§5.013, 5.102, 5.103, 5.105, and 37.001 - 37.015; TOC, §§1903.001, 1903.002, 1903.053, and 1903.251; and THSC, §341.033 and §341.034.

§344.70.Local Regulation.

§344.71.Local Inspection.

§344.72.Water Conservation.

§344.73.Backflow Prevention Methods.

§344.75.Specific Conditions and Backflow Prevention Devices.

§344.77.Minimum Standards for Design and Installation of Irrigation Systems.

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 17, 2008.

TRD-200800221

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 2, 2008

For further information, please call: (512) 239-6091

30 TAC §§344.90 - 344.96

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections 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

These repeals are proposed under Texas Water Code (TWC), §5.013, concerning the General Jurisdiction of the Commission; TWC, §5.102, concerning General Powers; TWC, §5.103, concerning Rules; and TWC, §5.105, concerning General Policy. These repeals are also proposed under TWC, §§37.001 - 37.015, concerning: Definitions; Rules; License or Registration Required; Qualifications; Issuance and Denial of Licenses and Registrations; Renewal of License or Registration; Licensing Examinations; Training; Continuing Education; Fees; Advertising; Complaints; Compliance Information; Practice of Occupation; Roster of License Holders and Registrants; and Power to Contract, respectively. These repeals are also proposed under TOC, §1903.001, concerning Definitions; TOC, §1903.002, concerning Exemptions; TOC, §1903.053, concerning Standards; and TOC, §1903.251, concerning License Required. Finally, these repeals are also proposed under THSC, §341.033, concerning Protection of Public Water Supplies and THSC, §341.034, concerning Licensing and Registration of Persons Who Perform Duties Relating to Public Water Supplies.

These proposed repeals implement TWC, §§5.013, 5.102, 5.103, 5.105, and 37.001 - 37.015; TOC, §§1903.001, 1903.002, 1903.053, and 1903.251; and THSC, §341.033 and §341.034.

§344.90.Purpose of Standards.

§344.91.Intent.

§344.92.Proficiency in Field of Irrigation; Representation of Qualifications.

§344.93.Advertisement.

§344.94.Contracts.

§344.95.Design.

§344.96.Warranties.

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 17, 2008.

TRD-200800222

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 2, 2008

For further information, please call: (512) 239-6091

30 TAC §344.1

STATUTORY AUTHORITY

This new section is proposed under Texas Water Code (TWC), §5.013, concerning the General Jurisdiction of the Commission; TWC, §5.102, concerning General Powers; TWC, §5.103, concerning Rules; TWC, §5.105, concerning General Policy; and TWC, §5.107, concerning Advisory Committees, Work Groups, and Task Forces. This new section is also proposed under TWC, §§37.001 - 37.015, concerning: Definitions; Rules; License or Registration Required; Qualifications; Issuance and Denial of Licenses and Registrations; Renewal of License or Registration; Licensing Examinations; Training; Continuing Education; Fees; Advertising; Complaints; Compliance Information; Practice of Occupation; Roster of License Holders and Registrants; and Power to Contract, respectively. This new section is also proposed under TWC, §49.238, concerning Irrigation Systems. This new section is also proposed under Texas Local Government Code (TLGC), §401.006, concerning Irrigation Systems. This new section is also proposed under TOC, §1903.001, concerning Definitions; TOC, §1903.002, concerning Exemptions; TOC, §1903.053, concerning Standards; TOC, §1903.151 concerning Council Membership; TOC, §1903.152, concerning Eligibility of Public Members; TOC, §1903.155, concerning Presiding Officer; TOC, §1903.157, concerning Meetings; TOC, §1903.158 concerning Per Diem Reimbursement; TOC, §1903.159, concerning Council Duties; and TOC, §1903.251, concerning License Required. This new section is also proposed under THSC, §341.033, concerning Protection of Public Water Supplies; and THSC, §341.034, concerning Licensing and Registration of Persons Who Perform Duties Relating to Public Water Supplies.

This proposed new section implements TWC, §§5.013, 5.102, 5.103, 5.105, 5.107, 37.001 - 37.015, and 49.238; TLGC, §401.006; TOC, §§1903.001, 1903.002, 1903.053, 1903.151, 1903.152, 1903.155, 1903.157, 1903.158, 1903.159, and 1903.251; THSC, §341.033 and §341.034.

§344.1.Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.

(1) Air gap--A complete physical separation between the free flowing discharge end of a potable water supply pipeline and an open or non-pressure receiving vessel.

(2) Atmospheric Vacuum Breaker--An assembly containing an air inlet valve, a check seat, and an air inlet port. The flow of water into the body causes the air inlet valve to close the air inlet port. When the flow of water stops the air inlet valve falls and forms a check against back-siphonage. At the same time it opens the air inlet port allowing air to enter and satisfy the vacuum. Also known as an Atmospheric Vacuum Breaker Back-siphonage Prevention Assembly.

(3) Backflow prevention--The mechanical prevention of reverse flow, or back siphonage, of nonpotable water from an irrigation system into the potable water source.

(4) Backflow prevention assembly--Any assembly used to prevent backflow into a potable water system. The type of assembly used is based on the existing or potential degree of health hazard and backflow condition.

(5) Completion of irrigation system installation--When the landscape irrigation system has been installed, all minimum standards met, all tests performed, and the irrigator is satisfied that the system is operating correctly.

(6) Consulting--The act of providing advice, guidance, review or recommendations related to landscape irrigation systems.

(7) Cross-connection--An actual or potential connection between a potable water source and an irrigation system that may contain contaminates or pollutants or any source of water that has been treated to a lesser degree in the treatment process.

(8) Design--The act of determining the various elements of a landscape irrigation system that will include, but not limited to, elements such as collecting site specific information, defining the scope of the project, defining plant watering needs, selecting and laying out sprinkler heads, locating system components, conducting hydraulics calculations, identifying any local regulatory requirements, or scheduling irrigation work at a site. Completion of the various components will result in an irrigation plan.

(9) Design pressure--The pressure that is required for an emission device to operate properly. Design pressure is calculated by adding the operating pressure necessary at an emission device to the total of all pressure losses accumulated from an emission device to the water source. Design pressure is also the manufacturer's published minimum operating pressure.

(10) Double Check Valve--An assembly that is composed of two independently acting, approved check valves, including tightly closed resilient seated shutoff valves attached at each end of the assembly and fitted with properly located resilient seated test cocks. Also known as a Double Check Valve Backflow Prevention Assembly.

(11) Emission device--Any device that is contained within an irrigation system and that is used to apply water. Common emission devices in an irrigation system include, but are not limited to, spray and rotary sprinkler heads, and drip irrigation emitters.

(12) Employed--Engaged or hired to provide consulting services or perform any activity relating to the sale, design, installation, maintenance, alteration, repair, or service to irrigation systems. A person is employed if that person is in an employer-employee relationship as defined by Internal Revenue Code, 26 United States Code Service, §3212(d) based on the behavioral control, financial control, and the type of relationship involved in performing employment related tasks.

(13) Head-to-head spacing--The spacing of spray or rotary heads equal to the manufacturer's published radius of the head.

(14) Health hazard--A cross-connection or potential cross-connection with an irrigation system that involves any substance that may, if introduced into the potable water supply, cause death or illness, spread disease, or have a high probability of causing such effects.

(15) Hydraulics--The science of dynamic and static water; the mathematical computation of determining pressure losses and pressure requirements of an irrigation system.

(16) Inspector--A licensed plumbing inspector, water district operator, other governmental entity, or irrigation inspector who inspects irrigation systems and performs other enforcement duties for a municipality or water district as an employee or as a contractor.

(17) Installer--A person who actually connects an irrigation system to a private or public raw or potable water supply system or any water supply, who is licensed according to Chapter 30 of this title.

(18) Irrigation inspector--A person who inspects irrigation systems and performs other enforcement duties for a municipality or water district as an employee or as a contractor and is required to be licensed under Chapter 30 of this title.

(19) Irrigation plan--A scaled drawing of a landscape irrigation system which lists required information, the scope of the project, and represents the changes made in the installation of the irrigation system.

(20) Irrigation services--Designing, installing, maintaining, altering, repairing, servicing, permitting, providing consulting services regarding, or connecting an irrigation system to a water supply.

(21) Irrigation system--An assembly of component parts that is permanently installed for the controlled distribution and conservation of water to irrigate any type of landscape vegetation in any location, and/or to reduce dust or control erosion. This term does not include a system that is used on or by an agricultural operation as defined by Texas Agricultural Code, §251.002.

(22) Irrigation technician--A person who works under the supervision of a licensed irrigator to install, maintain, alter, repair, service or supervise installation of an irrigation system, including the connection of such system in or to a private or public, raw or potable water supply system or any water supply, and who is required to be licensed under Chapter 30 of this title.

(23) Irrigation zone--A subdivision of an irrigation system with a matched precipitation rate based on plant material type (such as turf, shrubs, or trees), microclimate factors (such as sun/shade ratio), topographic features (such as slope) and soil conditions (such as sand, loam, clay, or combination) or for hydrological control.

(24) Irrigator--A person who sells, designs, offers consultations regarding, installs, maintains, alters, repairs, services or supervises the installation of an irrigation system, including the connection of such system to a private or public, raw or potable water supply system or any water supply, and who is required to be licensed under Chapter 30 of this title.

(25) Irrigator-in-Charge--The irrigator responsible for all irrigation work performed by an entity, including, but not limited to obtaining permits, developing design plans, supervising the work of other irrigators or irrigation technicians, and installing, selling, maintaining, altering, repairing, or servicing a landscape irrigation system.

(26) Landscape irrigation--The science of applying water to promote or sustain growth of plant material or turf.

(27) License--An occupational license that is issued by the commission under Chapter 30 of this title to an individual that authorizes the individual to engage in an activity that is covered by this chapter.

(28) Mainline--A pipe within an irrigation system that delivers water from the water source to the individual zone valves.

(29) Maintenance checklist--A document made available to the irrigation system's owner or owner's representative that contains information regarding the operation and maintenance of the irrigation system, including, but not limited to: checking and repairing the irrigation system, setting the automatic controller, checking the rain or moisture sensor, cleaning filters, pruning grass and plants away from irrigation emitters, using and operating the irrigation system, the precipitation rates of each irrigation zone within the system, any water conservation measures currently in effect from the water purveyor, the name of the water purveyor, a suggested seasonal or monthly watering schedule based on current evapotranspiration data for the geographic region, and the minimum water requirements for the plant material in each zone based on the soil type and plant material where the system is installed.

(30) Major maintenance, alteration, repair, or service--Any activity that involves opening to the atmosphere the irrigation main line at any point prior to the discharge side of any irrigation zone control valve. This includes, but is not limited to, repairing or connecting into a main supply pipe, replacing a zone control valve, or repairing a zone control valve in a manner that opens the system to the atmosphere.

(31) Master valve--A remote control valve located after the backflow prevention device that controls the flow of water to the irrigation system mainline.

(32) Matched precipitation rate--The condition in which all sprinkler heads within an irrigation zone apply water at the same rate.

(33) New installation--An irrigation system installed at a location where one did not previously exist or a system where one or more new zone valves are added to an existing system.

(34) Non-health hazard--A cross-connection or potential cross connection from a landscape irrigation system that involves any substance that generally would not be a health hazard but would constitute a nuisance or be aesthetically objectionable if introduced into the potable water supply.

(35) Non-potable water--Water that is not suitable for human consumption. Non-potable water sources include, but are not limited to, irrigation systems, lakes, ponds, streams, gray water that is discharged from washing machines, dishwashers or other appliances, water vapor condensate from cooling towers, reclaimed water, and harvested rainwater.

(36) Pass-through contract--A written contract between a licensed irrigator and a third party wherein a licensed irrigator or exempt business owner agrees to perform part or all of the irrigation services relating to an irrigation system.

(37) Potable water--Water that is suitable for human consumption.

(38) Pressure Vacuum Breaker--An assembly containing an independently operating internally loaded check valve and an independently operating loaded air inlet valve located on the discharge side of the check valve. Also known as a Pressure Vacuum Breaker Back-siphonage Prevention Assembly.

(39) Reclaimed water--Domestic or municipal wastewater which has been treated to a quality suitable for beneficial use, such as landscape irrigation.

(40) Records of landscape irrigation activities--The design notes, irrigation plans, contracts, warranty information, invoices, advertisements, copies of permits, and other documents that relate to the installation, maintenance, alteration, repair, or service of a landscape irrigation system.

(41) Reduced Pressure Principle Backflow Prevention Assembly--An assembly containing two independently acting approved check valves together with a hydraulically operating mechanically independent pressure differential relief valve located between the two check valves and below the first check valve.

(42) Static water pressure--The pressure of water when it is not moving.

(43) Supervision--The on-the-job oversight and direction by a licensed irrigator who is fulfilling his or her professional responsibility to the client and/or employer in compliance with local or state requirements. Also a licensed installer working under the direction of a licensed irrigator or beginning January 1, 2009, an irrigation technician who is working under the direction of a licensed irrigator to install, maintain, alter, repair or service an irrigation system.

(44) Water conservation--The design, installation, service, and operation of an irrigation system in a manner that prevents the waste of water, promotes the most efficient use of water, and applies the least amount of water that is required to maintain healthy individual plant material or turf, reduce dust, and control erosion.

(45) Zone flow--A measurement, in gallons per minute, of the actual flow of water through a zone valve, calculated by individually opening each zone valve for three minutes and measuring the average gallons per minute of water used for the second and third minute of flow. For design purposes, the zone flow is the total flow of all nozzles in the zone at a specific pressure.

(46) Zone valve--An automatic valve that controls a single zone of a landscape irrigation system.

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 17, 2008.

TRD-200800223

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 2, 2008

For further information, please call: (512) 239-6091

30 TAC §§344.20 - 344.24

STATUTORY AUTHORITY

These new sections are proposed under Texas Water Code (TWC), §5.013, concerning the General Jurisdiction of the Commission; TWC, §5.102, concerning General Powers; TWC, §5.103, concerning Rules; and TWC, §5.105, concerning General Policy. These new sections are also proposed under TWC, §§37.001 - 37.015, concerning: Definitions; Rules; License or Registration Required; Qualifications; Issuance and Denial of Licenses and Registrations; Renewal of License or Registration; Licensing Examinations; Training; Continuing Education; Fees; Advertising; Complaints; Compliance Information; Practice of Occupation; Roster of License Holders and Registrants; and Power to Contract, respectively. These new sections are also proposed under TWC, §49.238, concerning Irrigation Systems. These new sections are also proposed under TLGC, §401.006, concerning Irrigation Systems. These new sections are also proposed under TOC, §1903.001, concerning Definitions; TOC, §1903.002, concerning Exemptions; TOC, §1903.053, concerning Standards; and TOC, §1903.251, concerning License Required. Finally, these new sections are also proposed under THSC, §341.033, concerning Protection of Public Water Supplies; and THSC, §341.034, concerning Licensing and Registration of Persons Who Perform Duties Relating to Public Water Supplies.

These proposed new sections implement TWC, §§5.013, 5.102, 5.103, 5.105, 37.001 - 37.015, and 49.238; TLGC, §401.006; TOC, §§1903.001, 1903.002, 1903.053, and 1903.251; THSC, §341.033 and §341.034.

§344.20.Purpose of Standards.

(a) The correct practice of irrigation as a science and profession is essential for the protection and conservation of the water resources of the state and should be conducted by individuals who are held to the highest ethical standards. The legislature has vested the commission with the authority and duty to establish and enforce standards of professional conduct and ethics for practitioners in the irrigation industry.

(b) Every applicant for an irrigator, installer, irrigation technician, or irrigation inspector license must become fully informed of the obligations and responsibilities inherent in the practice of irrigation as outlined by these standards of conduct. Each licensed irrigator, installer, irrigation technician, or irrigation inspector is deemed to have notice of these standards of conduct and is required to abide by the standards.

§344.21.Intent.

(a) These standards of conduct are established to prescribe responsibility on the part of an irrigator, an installer, an irrigation technician, an irrigation inspector, and a qualifying exempt business owner to aid in governing the irrigation industry.

(b) The commission will determine what actions constitute violations of the standards in accordance with Chapter 70 of this title (relating to Enforcement) and Texas Water Code, Chapter 7 and institute appropriate disciplinary action, which may lead to monetary penalties or the suspension or revocation of a license in accordance with the applicable state statutes.

§344.22.Proficiency in the Field of Irrigation; Representation of Qualifications.

(a) All irrigators, installers, irrigation technicians, and inspectors shall be knowledgeable of the current industry standards regarding selling, designing, providing consulting services, installing, maintaining, altering, repairing, or servicing irrigation systems, including the connection of such a system to any source of water and water conservation. All irrigators, installers, irrigation technicians, and inspectors shall conform to the current adopted version of these rules and any local rules that do not conflict with these rules, or that are more stringent than these rules, when performing these activities.

(b) All irrigators, installers, irrigation technicians, irrigation inspectors, and exempt business owners shall accurately and truthfully represent to prospective clients their qualifications to perform the services requested and shall not perform services for which they are not qualified by experience, knowledge, or license in the technical field involved.

(c) All irrigators, installers, irrigation technicians, and inspectors shall be knowledgeable of local requirements related to landscape irrigation systems.

§344.23.Irrigation Practice.

False, misleading, or deceptive practices by an irrigator, installer, irrigation technician, or irrigation inspector relating to bidding, advertising, selling, installation, maintenance, alteration, repair, servicing, or inspection of irrigation systems are prohibited.

§344.24.Local Regulation and Inspection.

(a) Where any city, town, county, special purpose district, other political subdivision of the state, or public water supplier requires licensed irrigators, installers, irrigation technicians, or irrigation inspectors to comply with reasonable inspection requirements, ordinances, or regulations designed to protect the public water supply, any of which relates to work performed or to be performed within such political subdivision's territory the licensed irrigator, installer, irrigation technician, or irrigation inspector must comply with such requirements, ordinances, and regulations.

(b) Any city, town, county, other political subdivision of the state, or public water supplier that is not required to adopt rules or ordinances regulating landscape irrigation may adopt a landscape irrigation program by ordinance or rule and may be responsible for inspection of connections to its public water supply system up to and including the backflow prevention device.

(c) Municipalities with a population of 20,000 or more and a water district that chooses to implement a landscape irrigation program must verify that the irrigator that designs and installs an irrigation system holds a valid irrigator's license and has obtained a permit before installing a system within its territorial limits or if a municipality, its extraterritorial jurisdiction. Inspectors must verify that the design and installation meet the requirements of this chapter and local ordinances or rules that do not conflict with this chapter, or that are more stringent than this chapter.

(d) Each inspector shall maintain a log of all irrigation systems inspected that includes, but is not limited to, the system location, property owner, irrigator responsible for installation, permit status, problems noted during the inspection, and date of the inspection. The log must be kept three years. The log shall be available for review within two business days of the request by authorized representatives of the commission or any regulatory authority with jurisdiction over landscape irrigation issues in the area the inspector is employed to inspect.

(e) An inspector may not inspect a landscape irrigation system that is an on-site sewage disposal system, as defined by Texas Health and Safety Code, §366.002.

(f) An inspector may not inspect an irrigation system that is used on or by an agricultural operation as defined by Texas Agricultural Code, §251.002; or is connected to a groundwater well that is used by the property owner for domestic use.

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 17, 2008.

TRD-200800224

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 2, 2008

For further information, please call: (512) 239-6091

30 TAC §§344.30 - 344.38

STATUTORY AUTHORITY

These new sections are proposed under Texas Water Code (TWC), §5.013, concerning the General Jurisdiction of the Commission; TWC, §5.102, concerning General Powers; TWC, §5.103, concerning Rules; and TWC, §5.105, concerning General Policy. These new sections are also proposed under TWC, §§37.001 - 37.015, concerning: Definitions; Rules; License or Registration Required; Qualifications; Issuance and Denial of Licenses and Registrations; Renewal of License or Registration; Licensing Examinations; Training; Continuing Education; Fees; Advertising; Complaints; Compliance Information; Practice of Occupation; Roster of License Holders and Registrants; and Power to Contract, respectively. These new sections are also proposed under TWC, 49.238, concerning Irrigation Systems. These new sections are also proposed under TLGC, §401.006, concerning Irrigation Systems. These new sections are also proposed under TOC, §1903.001, concerning Definitions; TOC, §1903.002, concerning Exemptions; TOC, §1903.053, concerning Standards; and TOC, §1903.251, concerning License Required. Finally, these new sections are also proposed under THSC, §341.033, concerning Protection of Public Water Supplies; and THSC, §341.034, concerning Licensing and Registration of Persons Who Perform Duties Relating to Public Water Supplies.

These proposed new sections implement TWC, §§5.013, 5.102, 5.103, 5.105, 37.001 - 37.015, and 49.238; TLGC, §401.006; TOC, §§1903.001, 1903.002, 1903.053, and 1903.251; and THSC, §341.033 and §341.034.

§344.30.License Required.

(a) An irrigator is an individual who:

(1) sells, designs, provides consultation services, installs, maintains, alters, repairs, or services an irrigation system, including the connection of such system to any water supply;

(2) advertises or represents to anyone that the individual can perform any or all of these functions; and

(3) is required to hold a valid irrigator license issued under Chapter 30 of this title (relating to Occupational Licenses and Registrations).

(b) Through December 31, 2009, an installer is an individual who connects an irrigation system to any water supply.

(c) Beginning January 1, 2009, an irrigation technician is an individual who:

(1) under the supervision of a licensed irrigator connects an irrigation system to a water supply;

(2) under the supervision of a licensed irrigator installs, maintains, alters, repairs, or services a landscape irrigation system;

(3) represents to anyone that the individual can perform any or all of these functions; and

(4) is required to hold a valid irrigation technician license issued under Chapter 30 of this title.

(d) All irrigators, installers, and irrigation technicians shall comply with the rules contained in this chapter when performing any or all of the functions listed in this section.

(e) An individual who inspects irrigation systems and enforces a municipality's landscape irrigation ordinance must:

(1) hold a valid irrigation inspector license issued according to Chapter 30 of this title; or

(2) hold a valid plumbing inspector license.

(f) An individual who inspects irrigation systems and enforces a water district's rules related to landscape irrigation systems must:

(1) hold a valid irrigation inspector license issued according to Chapter 30 of this title;

(2) hold a valid plumbing inspector license;

(3) be the district's operator; or

(4) be another regulatory authority with jurisdiction over landscape irrigation.

(g) An inspector shall comply with the rules contained in this chapter when performing any or all of the functions listed in this section.

§344.31.Exemption for Business Owner Who Provides Irrigation Services.

Under Chapter 30 of this title (relating to Occupational Licenses and Registrations), a business owner who employs a licensed irrigator as an irrigator-in-charge to provide consulting services or to supervise or conduct the exempt business's operations relating to the design, installation, maintenance, alteration, repairing, and servicing of irrigation systems is exempt from the licensing requirements of Texas Occupations Code, Chapter 1903.

§344.32.Responsibilities of a Business Owner Who Provides Irrigation Services.

An exempt owner who provides landscape irrigation services shall ensure that all irrigation services are supervised by a licensed irrigator, according to the requirements of this subchapter. An exempt business owner who engages in landscape irrigation is responsible for verifying the validity of the license belonging to all irrigators, installers, and irrigation technicians performing irrigation services for the business. An exempt business owner who engages in landscape irrigation is responsible for designating an irrigator-in-charge.

§344.33.Display of License.

(a) Irrigators, installers, and irrigation technicians shall prominently display their license certificate at the place of irrigation business or employment and shall present their license upon request by any regulatory authority, irrigation system's owner, or prospective owner.

(b) Irrigation inspectors shall present their license, when requested by any entity that is regulated under this chapter, and when that request is made while an irrigation inspector is conducting business.

§344.34.Use of License.

(a) No one other than the irrigator, installer, irrigation technician, or irrigation inspector to whom a license is issued may use or attempt to use the license, which includes the license number.

(b) An individual who uses or attempts to use the license or license number of someone else who is a licensed irrigator, licensed installer, licensed irrigation technician, or licensed irrigation inspector is in violation of Texas Occupations Code, Chapter 1903, and this chapter.

(c) An irrigator's license or license number may be used at only one entity as the irrigator-in-charge. An irrigator may work for other entities, but not as the irrigator-in-charge.

(d) It is a violation of this chapter for an irrigator, installer, irrigation technician or irrigation inspector to authorize or allow another person or entity to use the irrigator's, installer's, irrigation technician's, or irrigation inspector's license or license number in a manner inconsistent with this chapter.

§344.35.Duties and Responsibilities of Irrigators.

(a) An irrigator shall comply with the rules contained in this chapter when performing any or all of the functions described in this section.

(b) An irrigator who performs work for an entity or for an exempt business owner who performs or offers to perform irrigation services shall be knowledgeable of and responsible for all permits, contracts, agreements, advertising, and other irrigation services secured and performed using the irrigator's license.

(c) A licensed irrigator who is employed by an exempt business owner as defined by §344.31 of this title (relating to Exemption for Business Owner Who Provides Irrigation Services) shall supervise all irrigation services of the business, in accordance with this chapter.

(d) A licensed irrigator is responsible for:

(1) using the stamp or rubber seal in accordance with this chapter;

(2) obtaining all permits and inspections required to install an irrigation system;

(3) complying with local regulations;

(4) determining the appropriate backflow prevention method for each irrigation system installation and installing the backflow prevention device correctly;

(5) maintaining landscape irrigation systems records;

(6) conserving water;

(7) developing and following irrigation plan for each new irrigation system;

(8) designing and installing an irrigation system that complies with the requirements of this chapter;

(9) providing on-site supervision of the installation of an irrigation system beginning January 1, 2010;

(10) providing supervision to an irrigation technician while connecting an irrigation system to a water supply; installing, maintaining, altering, repairing, or servicing an irrigation system;

(11) providing supervision to an installer connecting an irrigation system through December 31, 2009;

(12) completing the irrigation system including the final "walk through," completing the Maintenance Checklist, placing a permanent sticker on the controller, and providing a copy of the design plan;

(13) selling, consulting, performing maintenance, alteration, repair, and service of irrigation systems that complies with the requirements of this chapter; and

(14) providing advertisements, contracts, and warranties that comply with the requirements of this chapter.

§344.36.Duties and Responsibilities of Installers and Irrigation Technicians.

(a) A licensed installer may connect an irrigation system to a water supply through December 31, 2009. This includes installing an approved backflow prevention method pursuant to §344.50 of this title (relating to Backflow Prevention Methods) when connecting an irrigation system to a potable water supply. Beginning January 1, 2009, a licensed irrigation technician may connect an irrigation system to a water supply, including installing an approved backflow prevention method pursuant to §344.50 of this title and may maintain, alter, repair, service, or direct the installation of irrigation systems under the supervision of an irrigator.

(b) If an installer or irrigation technician connects an irrigation system to a potable water supply, the connection and installation of the backflow prevention method must be as indicated on the site irrigation plan or as directed by the licensed irrigator and documented on the site irrigation plan.

(c) Through December 31, 2009, an installer is responsible for the connection of an irrigation system to a water supply under the supervision of a licensed irrigator.

(d) Beginning January 1, 2009, an irrigation technician, under the supervision of a licensed irrigator, is responsible for:

(1) connecting an irrigation system to a water supply; and

(2) providing on-site supervision of the installation, maintenance, alteration, repair, service of an irrigation system.

§344.37.Duties and Responsibilities of Irrigation Inspectors.

(a) A licensed irrigation inspector shall enforce the applicable irrigation rules or ordinance of the employing governmental entity.

(b) A licensed irrigation inspector, licensed plumbing inspector, a water district's operator or other governmental entity shall be responsible for:

(1) verifying that the appropriate permits have been obtained for an irrigation system and that the irrigator and installer or irrigation technician, if applicable, are licensed;

(2) inspecting the irrigation system;

(3) determining that the irrigation system complies with the requirements of this chapter;

(4) determining that the appropriate backflow prevention device was installed, tested, and test results provided to the water purveyor;

(5) investigating complaints related to irrigation system installation, maintenance, alteration, repairs, or service of an irrigation system and advertisement of irrigation services; and

(6) maintaining records according to this chapter.

§344.38.Irrigator, Installer, and Irrigation Technician Records.

Upon the licensed irrigator obtaining the seal or rubber stamp, in accordance with this chapter, an impression of the seal or rubber stamp will be made on letterhead, or other business stationary, and maintained on file for review by the commission. Archival copies of all records given to the irrigation system's owner or owner's representative shall be maintained by the irrigator. Records will be maintained by the irrigator for a period of three years from the date installation, maintenance, alteration, repair or service was completed or advertisement published. Irrigators, installers, and irrigation technicians shall make all records of landscape irrigation services available within two business days of any request made by authorized representatives of the commission or the local regulatory authority with jurisdiction over landscape irrigation issues.

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 17, 2008.

TRD-200800225

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 2, 2008

For further information, please call: (512) 239-6091

30 TAC §§344.40 - 344.43

STATUTORY AUTHORITY

These new sections are proposed under Texas Water Code (TWC), §5.013, concerning the General Jurisdiction of the Commission; TWC, §5.102, concerning General Powers; TWC, §5.103, concerning Rules; and TWC, §5.105, concerning General Policy. These new sections are also proposed under TWC, §§37.001 - 37.015, concerning: Definitions; Rules; License or Registration Required; Qualifications; Issuance and Denial of Licenses and Registrations; Renewal of License or Registration; Licensing Examinations; Training; Continuing Education; Fees; Advertising; Complaints; Compliance Information; Practice of Occupation; Roster of License Holders and Registrants; and Power to Contract, respectively. These new sections are also proposed under TOC, §1903.001, concerning Definitions; TOC, §1903.002, concerning Exemptions; TOC, §1903.053, concerning Standards; and TOC, §1903.251, concerning License Required. Finally, these new sections are also proposed under THSC, §341.033, concerning Protection of Public Water Supplies; and THSC, §341.034, concerning Licensing and Registration of Persons Who Perform Duties Relating to Public Water Supplies.

These proposed new sections implement TWC, §§5.013, 5.102, 5.103, 5.105, and 37.001 - 37.015; TOC, §§1903.001, 1903.002, 1903.053, and 1903.251; and THSC, §341.033 and §341.034.

§344.40.Seal Required.

Each irrigator, upon being licensed with the commission, shall obtain a seal, as described in §344.41 of this title (relating to Seal Design). Licensed irrigators shall not engage in any landscape irrigation services without physical possession of the seal and the license. The irrigator is responsible for the security of the seal.

§344.41.Seal Design.

(a) The required seal must be:

(1) circular; and

(2) not less than 1-1/2 inches in diameter.

(b) The required seal must display:

(1) the words "State of Texas" at the top between the knurled circles;

(2) the words "Licensed Irrigator" at the bottom; and

(3) the irrigator's name and license number, excluding leading zeros, horizontally in the circular field.

§344.42.Seal Display.

(a) On every document requiring an irrigator's seal, the seal shall be clearly visible and legible on the original document and all copies or reproductions of the original document.

(b) An irrigator may use an electronic or other format seal and signature if the seal, signature, and date are clearly visible and legible on the original document and all copies or reproductions of the original document.

§344.43.Seal Use.

(a) Irrigators shall:

(1) sign their legal name;

(2) affix the seal above the irrigator's signature; and

(3) include the date of signing (month, day, and year) of each document to which the seal is affixed.

(b) The presence of the irrigator's seal displayed above the irrigator's signature and date on any document constitutes the acceptance of all professional responsibility for the document and the irrigation services performed in accordance with that document and certifies that the system was properly installed in accordance with state and local statutes, rules, and ordinances.

(c) The irrigator will maintain for three years a copy of each document bearing the irrigator's seal.

(d) Once a document containing a seal is issued, the seal may not be altered.

(e) Irrigators shall not use or authorize the use of a seal on any design or specification created by another irrigator unless the irrigator:

(1) Reviews and makes changes to adapt the design or specification to the specific site conditions and to address state and local requirements; and

(2) Accepts full responsibility for any alterations to the design or specification and any downstream consequences.

(f) If an irrigator prepares a portion of a design or specification, that portion of the design or specification prepared by the irrigator, or under the irrigator's supervision and seal, should be clearly identified.

(g) Irrigators shall sign, seal and date the irrigation plan and specifications, contract, addenda or change orders, warranty, and the maintenance checklist.

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 17, 2008.

TRD-200800226

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 2, 2008

For further information, please call: (512) 239-6091

30 TAC §§344.50 - 344.52

STATUTORY AUTHORITY

These new sections are proposed under Texas Water Code (TWC), §5.013, concerning the General Jurisdiction of the Commission; TWC, §5.102, concerning General Powers; TWC, §5.103, concerning Rules; and TWC, §5.105, concerning General Policy. These new sections are also proposed under TWC, §§37.001 - 37.015, concerning: Definitions; Rules; License or Registration Required; Qualifications; Issuance and Denial of Licenses and Registrations; Renewal of License or Registration; Licensing Examinations; Training; Continuing Education; Fees; Advertising; Complaints; Compliance Information; Practice of Occupation; Roster of License Holders and Registrants; and Power to Contract, respectively. These new sections are also proposed under TWC, §49.238, concerning Irrigation Systems. These new sections are also proposed under TLGC, §401.006, concerning Irrigation Systems. These new sections are also proposed under TOC, §1903.001, concerning Definitions; TOC, §1903.002, concerning Exemptions; TOC, §1903.053, concerning Standards; and TOC, §1903.251, concerning License Required. Finally, these new sections are also proposed under THSC, §341.033, concerning Protection of Public Water Supplies; and THSC, §341.034, concerning Licensing and Registration of Persons Who Perform Duties Relating to Public Water Supplies.

These proposed new sections implement TWC, §§5.013, 5.102, 5.103, 5.105, 37.001 - 37.015, and 49.238; TLGC, §401.006; TOC, §§1903.001, 1903.002, 1903.053, and 1903.251; and THSC, §341.033 and §341.034.

§344.50.Backflow Prevention Methods.

(a) Any irrigation system that is connected to a public or private potable water supply must be connected through a commission-approved backflow prevention method. The backflow prevention device must be approved by the American Society of Sanitary Engineers; or the Foundation for Cross-Connection Control and Hydraulic Research, University of Southern California; or the Uniform Plumbing Code; or any other laboratory that has equivalent capabilities for both the laboratory and field evaluation of backflow prevention assemblies. The backflow prevention device must be installed in accordance with the laboratory approval standards or if the approval does not include specific installation information, the manufacturer's current published recommendations.

(b) If conditions that present a health hazard exist, one of the following methods must be used to prevent backflow;

(1) An air gap may be used if:

(A) there is an unobstructed physical separation; and

(B) the distance from the lowest point of the water supply outlet to the flood rim of the fixture or assembly into which the outlet discharges is at least one inch or twice the diameter of the water supply outlet, whichever is greater.

(2) Reduced pressure principle backflow prevention assemblies may be used if:

(A) the device is installed at a minimum of 12 inches above ground in a location that will ensure that the assembly will not be submerged; and

(B) drainage is provided for any water that may be discharged through the assembly relief valve.

(3) Pressure vacuum breakers may be used if:

(A) no back-pressure condition will occur; and

(B) the device is installed at a minimum of 12 inches above any downstream piping and the highest downstream opening. Pop-up sprinklers are measured from the retracted position from the top of the sprinkler.

(4) Atmospheric vacuum breakers may be used if:

(A) no back-pressure will be present;

(B) there are no shutoff valves downstream from the atmospheric vacuum breaker;

(C) the device is installed at a minimum of six inches above any downstream piping and the highest downstream opening. Pop-up sprinklers are measured from the retracted position from the top of the sprinkler;

(D) there is no continuous pressure on the supply side of the atmospheric vacuum breaker for more than 12 hours in any 24-hour period; and

(E) a separate atmospheric vacuum breaker is installed on the discharge side of each irrigation control valve, between the valve and all the emission devices that the valve controls.

(c) Backflow prevention devices used in applications designated as health hazards must be tested upon installation and annually thereafter.

(d) If there are no conditions that present a health hazard double check valve backflow prevention assemblies may be used to prevent backflow if:

(1) a local regulatory authority does not prohibit the use of a double check valve;

(2) backpressure caused by an elevation of pressure in the discharge piping by pump or elevation of piping above the supply pressure which could cause a reversal of the normal flow of water or back-siphonage conditions caused by a reduced or negative pressure in the irrigation system exist; and

(3) test cocks are used for testing only.

(e) If a double check valve is installed below ground:

(1) test cocks must be plugged, except when the double check valve is being tested;

(2) test cock plugs must be threaded, water-tight, and made of non-ferrous material;

(3) a y-type strainer is installed on the discharge side of the double check valve;

(4) there must be a clearance between any fill material and the bottom of the double check valve to allow space for testing and repair; and

(5) there must be space on the side of the double check valve to test and repair the double check valve.

§344.51.Specific Conditions and Cross-Connection Control.

(a) Before any chemical is added to an irrigation system connected to any potable water supply, the irrigation system must be connected through a reduced pressure principle backflow prevention assembly.

(b) An irrigation system connected to a potable water source may not be interconnected with a non-potable water source.

(c) Irrigation system components with chemical additives connected to any potable water supply must be connected through a reduced pressure principle backflow device.

(d) If an irrigation system is designed or installed on a property that is served by an on-site sewage facility, as defined in Chapter 285 of this title (relating to On-Site Sewage Facilities), then:

(1) all irrigation piping and valves must meet the separation distances from the On-Site Sewage Facilities system as required for a private water line in §285.91(10) of this title (relating to Minimum Required Separation Distances for On-Site Sewage Facilities);

(2) any connections using a private or public potable water source must be connected to the water source through a reduced pressure principle backflow prevention assembly as defined in §344.50 of this title (relating to Backflow Prevention Methods); and

(3) any water from the irrigation system that is applied to the surface of the area utilized by the On-Site Sewage Facility system must be controlled on a separate irrigation zone or zones so as to allow complete control of any irrigation to that area so that there will not be excess water that would prevent the On-Site Sewage Facilities system from operating effectively.

§344.52.Installation of Backflow Prevention Device.

(a) If an irrigation system is connected to a potable water supply and requires major maintenance, alteration, repair, or service, the system must be connected to the potable water supply through an approved, properly installed backflow prevention method as defined in this title before any major maintenance, alteration, repair, or service is performed.

(b) If an irrigation system is connected to a potable water supply through a double check valve, pressure vacuum breaker, or reduced pressure principle backflow assembly and includes an automatic master valve on the system, the automatic master valve must be installed on the discharge side of the backflow prevention assembly.

(c) The irrigator shall ensure the backflow prevention device is tested prior to being placed in service and the test results provided to the local water purveyor and the irrigation system's owner or owner's representative within 10 business days of testing of the backflow prevention device.

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 17, 2008.

TRD-200800227

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 2, 2008

For further information, please call: (512) 239-6091

30 TAC §§344.60 - 344.65

STATUTORY AUTHORITY

These new sections are proposed under Texas Water Code (TWC), §5.013, concerning the General Jurisdiction of the Commission; TWC, §5.102, concerning General Powers; TWC, §5.103, concerning Rules; and TWC, §5.105, concerning General Policy. These new sections are also proposed under TWC, §§37.001 - 37.015, concerning: Definitions; Rules; License or Registration Required; Qualifications; Issuance and Denial of Licenses and Registrations; Renewal of License or Registration; Licensing Examinations; Training; Continuing Education; Fees; Advertising; Complaints; Compliance Information; Practice of Occupation; Roster of License Holders and Registrants; and Power to Contract, respectively. These new sections are also proposed under TWC, §49.238, concerning Irrigation Systems. These new sections are also proposed under TLGC, §401.006, concerning Irrigation Systems. These new sections are also proposed under TOC, §1903.001, concerning Definitions; TOC, §1903.002, concerning Exemptions; TOC, §1903.053, concerning Standards; and TOC, §1903.251, concerning License Required. Finally, these new sections are also proposed under THSC, §341.033, concerning Protection of Public Water Supplies; and THSC, §341.034, concerning Licensing and Registration of Persons Who Perform Duties Relating to Public Water Supplies.

These proposed new sections implement TWC, §§5.013, 5.102, 5.103, 5.105, 37.001 - 37.015, and 49.238; TLGC, §401.006; TOC, §§1903.001, 1903.002, 1903.053, and 1903.251; and THSC, §341.033 and §341.034.

§344.60.Water Conservation.

All irrigation systems shall be designed, installed, maintained, altered, repaired, serviced, and operated in a manner that will promote water conservation as defined in §344.1(43) of this title (relating to Definitions).

§344.61.Minimum Standards for the Design of the Irrigation Plan.

(a) An irrigator shall prepare an irrigation plan for each site where a new irrigation system will be installed. A paper copy of this plan must be on the job site at all times during the installation of the irrigation system. During the installation of the irrigation system, variances from the original plan may be authorized by the licensed irrigator if the variance from the plan does not:

(1) diminish the operational integrity of the irrigation system;

(2) violate any requirements of this chapter; and

(3) go unnoted in red on the irrigation plan.

(b) The irrigation plan must include complete coverage of the area to be irrigated. If a system does not provide complete coverage of the area to be irrigated, it must be noted on the irrigation plan.

(c) All irrigation plans used for construction must be drawn to scale no smaller than one inch equal to thirty feet and include, at a minimum, the following information:

(1) the irrigator's seal, signature, and date of signing;

(2) all major physical features and the boundaries of the areas to be watered;

(3) a North arrow;

(4) a legend;

(5) the zone flow measurement for each zone;

(6) location and type of each:

(A) automatic controller;

(B) sensor (for example, but not limited to, rain, moisture, wind, flow, or freeze);

(7) location, type, and size of each:

(A) water source, such as, but not limited to a water meter and point(s) of connection;

(B) backflow prevention device;

(C) water emission device, including, but not limited to, spray heads, rotary sprinkler heads, quick-couplers, bubblers, drip, or micro-sprays;

(D) valve, including, but not limited to, zone valves, master valves, and isolation valves;

(E) pressure regulation component; and

(F) main line and lateral piping.

§344.62.Minimum Design and Installation Requirements.

(a) No irrigation design or installation shall require the use of any component, including the water meter, in a way which exceeds the manufacturer's published performance limitations for the component.

(b) Spacing.

(1) The maximum spacing between emission devices must not exceed the manufacturer's published radius or spacing of the device(s). The radius or spacing is determined by referring to the manufacturer's published specifications for a specific emission device at a specific operating pressure.

(2) New irrigation systems shall not utilize above-ground spray emission devices in landscapes that are less than five feet in either length or width and which contain impervious pedestrian or vehicular traffic surfaces along two or more perimeters. If pop-up sprays or rotary sprinkler heads are used in a new irrigation system, the sprinkler heads must direct flow away from any adjacent surface and shall not be installed closer than four inches from a hardscape, such as, but not limited to, a building foundation, fence, concrete, asphalt, pavers, or stones set with mortar.

(c) Water pressure. Emission devices must be installed to operate at the minimum and not above the maximum sprinkler head pressure as published by the manufacturer for the nozzle and head spacing that is used. Methods to achieve the water pressure requirements include, but are not limited to, flow control valves, a pressure regulator, or pressure compensating spray heads.

(d) Piping. Piping in irrigation systems must be designed and installed so that the flow of water in the pipe will not exceed a velocity of five feet per second for polyvinyl chloride (PVC) pipe.

(e) Irrigation Zones. Irrigation systems shall have separate zones based on plant material type, microclimate factors, topographic features, soil conditions, and hydrological requirements.

(f) Matched precipitation rate. Zones must be designed and installed so that all of the emission devices in that zone irrigate at the same precipitation rate.

(g) Irrigation systems shall not spray water over surfaces made of concrete, asphalt, brick, wood, stones set with mortar, or any other impervious material, such as, but not limited to, walls, fences, sidewalks, streets, etc.

(h) Master valve. If required, a master valve shall be installed on the discharge side of the backflow prevention device on all new installations.

(i) PVC pipe primer solvent. All new irrigation systems that are installed using PVC pipe and fittings shall be primed with a colored primer prior to applying the PVC cement.

(j) Rain or moisture shut-off devices or other technology. All new automatically controlled irrigation systems must include sensors or other technology designed to inhibit or interrupt operation of the irrigation system during periods of moisture or rainfall. Rain or moisture shut-off technology must be installed according to the manufacturer's published recommendations. Repairs to existing automatic irrigation systems that require replacement of an existing controller must include a sensor or other technology designed to inhibit or interrupt operation of the irrigation system during periods of moisture or rainfall.

(k) Isolation valve. All new irrigation systems must include an isolation valve between the water meter and the backflow prevention device.

(l) Depth coverage of piping. Piping in all irrigation systems must be installed according to the manufacturer's published specifications for depth coverage of piping.

(1) If the manufacturer has not published specifications for depth coverage of piping, the piping must be installed to provide minimum depth coverage of six inches of select backfill, between the top of the pipe and the natural grade of the topsoil. All portions of the irrigation system that fail to meet this standard must be noted on the irrigation plan.

(2) If a utility, man-made structure, or roots create an unavoidable obstacle, which makes the six-inch depth coverage requirement impractical, the piping shall be installed to provide a minimum of two inches of select backfill between the top of the pipe and the natural grade of the topsoil.

(3) All trenches and holes created during installation of an irrigation system must be backfilled and compacted to the original grade.

(m) Wiring irrigation systems.

(1) Underground electrical wiring used to connect an automatic controller to any electrical component of the irrigation system must be listed by Underwriters Laboratories as acceptable for burial underground.

(2) Electrical wiring that connects any electrical components of an irrigation system must be sized according to the manufacturer's recommendation.

(3) Electrical wire splices which are exposed to moisture must be waterproof as certified by the wire splice manufacturer.

(4) Underground electrical wiring that connects an automatic controller to any electrical component of the irrigation system must be buried with a minimum of six inches of select backfill.

(n) Water contained within the piping of an irrigation system is deemed to be non-potable. No drinking or domestic water usage, such as, but not limited to, filling swimming pools or decorative fountains, shall be connected to an irrigation system. If a hose bib (an outdoor water faucet that has hose threads on the spout) is connected to an irrigation system for the purpose of providing supplemental water to an area, the hose bib must be installed using a quick coupler key on a quick coupler installed in a covered purple valve box and the hose bib and any hoses connected to the bib must be labeled "non-potable, not safe for drinking." An isolation valve must be installed upstream of a quick coupler connecting a hose bib to an irrigation system.

(o) Beginning January 1, 2010, either a licensed irrigator or a licensed irrigation technician shall be on-site at all times while the landscape irrigation system is being installed. When an irrigator is not on-site, the irrigator shall be responsible for ensuring that a licensed irrigation technician is on-site to supervise the installation of the irrigation system.

§344.63.Completion of Irrigation System Installation.

Upon completion of the irrigation system, the irrigator who provided supervision for the on site installation shall be required to complete four items:

(1) a final "walk through" with the irrigation system's owner or the owner's representative to explain the operation of the system;

(2) The Maintenance Checklist on which the irrigator shall obtain the signature of the irrigation system's owner or owner's representative and shall sign, date, and seal the checklist. If the irrigation system's owner or owner's representative is unwilling or unable to sign the maintenance checklist, the irrigator shall note the time and date of the refusal on the irrigation system's owner or owner's representative's signature line. A duplicate copy of the maintenance checklist shall be maintained by the irrigator. The items on the Maintenance Checklist shall include but are not limited to:

(A) the manufacturer's manual for the automatic controller;

(B) a seasonal (spring, summer, fall, winter) watering schedule based on monthly historical reference evapotranspiration (historical ET) data, monthly effective rainfall estimates, plant landscape coefficient factors, and site factors;

(C) a list of components, such as the nozzle, or pump filters, and other such components; that require maintenance and the recommended frequency for the service; and

(D) the statement, "This irrigation system has been designed and installed in accordance with all applicable state and local laws, ordinances, rules, regulations or orders. I have tested the system and determined that it has been installed according to the Irrigation Plan and is properly adjusted for the most efficient application of water at this time."

(3) A permanent sticker which contains the irrigator's name, license number, company name, telephone number and the dates of the warranty period shall be affixed to each automatic controller installed by the irrigator. The information contained on the sticker must be printed with waterproof ink; and

(4) The design plan indicating the actual installation of the system.

§344.64.Maintenance, Alteration, Repair, or Service of Irrigation Systems.

(a) The irrigator is responsible for all work that the irrigator performed during the maintenance, alteration, repair, or service of an irrigation system during the warranty period. The irrigator or business owner is not responsible for the professional negligence of any other irrigator who subsequently conducts any irrigation service on the same irrigation system.

(b) All trenches and holes created during the maintenance, alteration, repair, or service of an irrigation system must be returned to the original grade with compacted select backfill.

(c) Colored PVC pipe primer solvent must be used on all pipes and fittings used in the maintenance, alteration, repair, or service of an irrigation system.

(d) When maintenance, alteration, repair or service of an irrigation system involves work at the water meter or backflow prevention device, an isolation valve shall be installed, if an isolation valve is not present.

§344.65.Reclaimed Water.

Reclaimed water may be utilized in landscape irrigation systems if:

(1) there is no direct contact with edible crops, unless the crop is pasteurized before consumption;

(2) the irrigation system does not spray water across property lines that do not belong to the irrigation system's owner;

(3) the irrigation system is not connected to the potable water supply;

(4) the irrigation system is installed using purple components;

(5) the domestic potable water line is connected using an air gap or a reduced pressure principle backflow prevention device, in accordance with §290.47(i) of this title (relating to Appendices);

(6) a minimum of an eight inch by eight inch sign, in English and Spanish, is prominently posted on/in the area that is being irrigated, that reads, "RECLAIMED WATER - DO NOT DRINK"; and

(7) backflow prevention on the reclaimed water supply line shall be in accordance with the regulations of the water purveyor.

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 17, 2008.

TRD-200800228

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 2, 2008

For further information, please call: (512) 239-6091

30 TAC §§344.70 - 344.72

STATUTORY AUTHORITY

These new sections are proposed under Texas Water Code (TWC), §5.013, concerning the General Jurisdiction of the Commission; TWC, §5.102, concerning General Powers; TWC, §5.103, concerning Rules; and TWC, §5.105, concerning General Policy. These new sections are also proposed under TWC, §§37.001 - 37.015, concerning: Definitions; Rules; License or Registration Required; Qualifications; Issuance and Denial of Licenses and Registrations; Renewal of License or Registration; Licensing Examinations; Training; Continuing Education; Fees; Advertising; Complaints; Compliance Information; Practice of Occupation; Roster of License Holders and Registrants; and Power to Contract, respectively. These new sections are also proposed under TWC, §49.238, concerning Irrigation Systems. These new sections are also proposed under TLGC, §401.006, concerning Irrigation Systems. These new sections are also proposed under TOC, §1903.001, concerning Definitions; TOC, §1903.002, concerning Exemptions; TOC, §1903.053, concerning Standards; and TOC, §1903.251, concerning License Required. Finally, these new sections are also proposed under THSC, §341.033, concerning Protection of Public Water Supplies; and THSC, §341.034, concerning Licensing and Registration of Persons Who Perform Duties Relating to Public Water Supplies.

These proposed new sections implement TWC, §§5.013, 5.102, 5.103, 5.105, 37.001 - 37.015, and 49.238; TLGC, §401.006; TOC, §§1903.001, 1903.002, 1903.053, and 1903.251; and THSC, §341.033 and §341.034.

§344.70.Advertisement.

(a) All vehicles and trailers used in the performance of irrigation services must display the irrigator's license number in the form of "LI________" in a contrasting color of block letters at least two inches high, on both sides of the vehicle and trailer.

(b) All forms of written and electronic advertisements for irrigation services must display the irrigator's license number in the form of "LI___________." Any form of advertisement, including business cards and estimates which displays an entity's or individual's name other than that of the licensed irrigator must also display the name of the licensed irrigator and the licensed irrigator's license number.

(c) The name, mailing address, and telephone number of the commission must be prominently displayed on a legible sign and displayed in plain view at the permanent structure where irrigation business is primarily conducted and irrigation records are kept.

§344.71.Contracts.

(a) All contracts to install an irrigation system must be in writing and signed by each party and must specify the irrigator's name, license number, business address, current business telephone numbers, the date that each party signed the agreement, the total agreed price, and must contain the statement, "Irrigation in Texas is regulated by the Texas Commission on Environmental Quality (TCEQ), MC-178, P.O. Box 13087, Austin, Texas 78711-3087. TCEQ's website is: www. tceq.state.tx.us." All contracts must include the irrigator's seal, signature, and date.

(b) All written estimates, proposals, bids, and invoices relating to the installation or repair of an irrigation system(s) must include the irrigator's name, license number, business address, current business telephone number(s), and the statement: "Irrigation in Texas is regulated by the Texas Commission on Environmental Quality (TCEQ) (MC-178), P.O. Box 13087, Austin, Texas 78711-3087. TCEQ's web site is: www.tceq.state.tx.us."

(c) An individual who agrees by contract to provide irrigation services as defined in §344.30 of this title (relating to License Required) shall hold an irrigator license issued under Chapter 30 of this title (relating to Occupational Licenses and Registrations) unless the contract is a pass-through contract as defined in §344.1(36) of this title (relating to Definitions). If a pass-through contract includes irrigation services, then the irrigation portion of the contract can only be performed by a licensed irrigator. It shall be a violation of this chapter for anyone other than the licensed irrigator or those individuals exempted by Texas Occupations Code, §1903.002(b)(1), (2) and (10) to receive monetary compensation for irrigation services provided through a pass-through contract. If an irrigator installs a system pursuant to a pass-through contract, the irrigator shall still be responsible for providing the irrigation system's owner or owner's representative a copy of the warranty and all other documents required under this chapter. A pass-through contract must identify by name and license number the irrigator that will perform the work and must provide a mechanism for contacting the irrigator for irrigation system warranty work.

(d) The contract must include the dates that the warranty is valid.

§344.72.Warranties.

(a) On all installations of new irrigation systems, an irrigator shall present the irrigation system's owner or owner's representative with a written warranty covering materials and labor furnished in the new installation of the irrigation system. The irrigator shall be responsible for adhering to terms of the warranty. If the irrigator's warranty is less than the manufacturer's warranty for the system components, then the irrigator shall provide the irrigation system's owner or the owner's representative with applicable information regarding the manufacturer's warranty period. The warranty must include the irrigator's seal, signature, and date. If the warranty is part of an irrigator's contract, a separate warranty document is not required.

(b) An irrigator's written warranty on new irrigation systems must specify the irrigator's name, license number, business address, and business telephone number(s), must contain the signature of the irrigation system's owner or owner's representative confirming receipt of the warranty and must include the statement: "Irrigation in Texas is regulated by the Texas Commission on Environmental Quality (TCEQ), MC-178, P.O. Box 130897, Austin, Texas 78711-3087. TCEQ's website is: www.tceq.state.tx.us."

(c) On all maintenance, alterations, repairs, or service to existing irrigation systems, an irrigator shall present the irrigation system's owner or owner's representative a written document that identifies the materials and labor furnished in the maintenance, alteration, repair, or service and shall warrant in writing the materials and labor. The irrigator shall abide by the terms of the warranty. The warranty document must include the irrigator's name, license number, and business contact information.

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 17, 2008.

TRD-200800229

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 2, 2008

For further information, please call: (512) 239-6091

30 TAC §344.80

STATUTORY AUTHORITY

This new section is proposed under Texas Water Code (TWC), §5.013, concerning the General Jurisdiction of the Commission; TWC, §5.102, concerning General Powers; TWC, §5.103, concerning Rules; TWC, §5.105, concerning General Policy; and TWC, §5.107, concerning Advisory Committees, Work Groups, and Task Forces. This new section is also proposed under TWC, §§37.001 - 37.015, concerning: Definitions; Rules; License or Registration Required; Qualifications; Issuance and Denial of Licenses and Registrations; Renewal of License or Registration; Licensing Examinations; Training; Continuing Education; Fees; Advertising; Complaints; Compliance Information; Practice of Occupation; Roster of License Holders and Registrants; and Power to Contract, respectively. This new section is also proposed under TWC, §49.238, concerning Irrigation Systems. This new section is also proposed under TLGC, §401.006, concerning Irrigation Systems. This new section is also proposed under TOC, §1903.001, concerning Definitions; TOC, §1903.002, concerning Exemptions; TOC, §1903.053, concerning Standards; TOC, §1903.151 concerning Council Membership; TOC, §1903.152, concerning Eligibility of Public Members; TOC, §1903.155, concerning Presiding Officer; TOC, §1903.157, concerning Meetings; TOC, §1903.158 concerning Per Diem Reimbursement; TOC, §1903.159, concerning Council Duties; and TOC, §1903.251, concerning License Required. Finally, this new section is also proposed under THSC, §341.033, concerning Protection of Public Water Supplies; and THSC, §341.034, concerning Licensing and Registration of Persons Who Perform Duties Relating to Public Water Supplies.

This proposed new section implements TWC, §§5.013, 5.102, 5.103, 5.105, 5.107, 37.001 - 37.015, and 49.238; TLGC, §401.006; TOC, §§1903.001, 1903.002, 1903.053, 1903.151, 1903.152, 1903.155, 1903.157, 1903.158, 1903.159, and 1903.251; and THSC, §341.033 and §341.034.

§344.80.Irrigator Advisory Council.

(a) The Irrigator Advisory Council is composed of nine members that are appointed by the commission. Appointments to the council will be made without regard to race, creed, sex, religion, or national origin of the appointees. The purpose of the council is to give the commission the benefit of the members' collective business, environmental, and technical expertise and experience with respect to matters relating to landscape irrigation. The council has no executive or administrative powers or duties with respect to the operation of the commission, and all such powers and duties rest solely with the commission.

(b) Six members of the council must be licensed irrigators who are residents of the State of Texas, experienced in the irrigation business, and familiar with irrigation methods and techniques.

(c) Three members must be representatives of the public. A person is not eligible for appointment as a public member if the person or the person's spouse:

(1) is licensed by an occupational regulatory agency in the field of irrigation; or

(2) is employed by, participates in the management of, or has, other than as a consumer, a financial interest in a business entity or other organization related to the field of irrigation.

(d) A council member or an employee of the commission that is associated with the administration of this section may not be an officer, employee, or paid consultant of a trade association in the irrigation industry and may not be related within the second degree by affinity or consanguinity to a person who is an officer, employee, or paid consultant of a trade association in the irrigation industry.

(e) A person who, because of that person's activities on behalf of a trade or professional association in the irrigation industry, is required to register as a lobbyist under Texas Government Code, Chapter 305, may not serve as a member of the council.

(f) It is grounds for removal from the council by the commission if a member:

(1) does not meet, at the time of the appointment, the qualifications that are required by subsection (b) or (c) of this section for appointment to the council;

(2) does not maintain, during service on the council, the qualifications that are required by subsection (b) or (c) of this section for appointment to the council;

(3) violates a prohibition prescribed by subsection (d) or (e) of this section; or

(4) misses three consecutive regularly scheduled meetings or more than half of all the regularly scheduled meetings in a one-year period.

(g) The members of the council serve six-year terms, with the terms expiring February 1 of each odd-numbered year.

(h) A member of the council is entitled to per diem as appropriated by the Texas Legislature for each day that the member engages in the business of the council. A member is entitled to reimbursement for travel expenses, including expenses for meals and lodging, as provided for in the General Appropriations Act.

(i) The council shall hold meetings at the call of the commission or chairman.

(j) A majority of the council constitutes a quorum for conducting business.

(k) The council will elect a chairman by a majority vote.

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 17, 2008.

TRD-200800230

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 2, 2008

For further information, please call: (512) 239-6091