Adopted Rules Title 31

TITLE 31. NATURAL RESOURCES AND CONSERVATION

Part 10. TEXAS WATER DEVELOPMENT BOARD

Chapter 355. RESEARCH AND PLANNING FUND

The Texas Water Development Board (board) adopts the following Chapter 355 rules, regarding the Research and Planning Fund, as published in the November 16, 2007, issue of the Texas Register (32 TexReg 8286). Sections 355.3, 355.10, 355.71, 355.77, 355.92, 355.93, 355.97, 355.100, and 355.110 - 355.115 are adopted without changes and will not be republished. Sections 355.5, 355.11 and 355.72 are adopted with changes and will be republished.

The amendments to §§355.3, 355.5, 355.10, and 355.11, Subchapter A, General Research and Planning, are adopted under the authority of Texas Water Code §15.403 which requires the board to adopt rules to carry out Texas Water Code, Chapter 15.

The amendments to §§355.71, 355.72, and 355.77, Subchapter B, Economically Distressed Areas Facility Engineering, are adopted under the authority of Texas Water Code §15.407(d) relating to rules governing the procurement of facility engineering services by a political subdivision and other rules as necessary to carry out Texas Water Code, Chapter 15, Subchapter F.

The amendments to §§355.92, 355.93, 355.97, and 355.100, Subchapter C, Regional Water Planning Grants, are adopted under the authority of Texas Water Code §15.403, which directs the board to adopt rules to carry out Texas Water Code, Chapter 15, under which the board provides the funding for regional water plans; and Texas Water Code §15.4061, which requires the board to adopt rules establishing criteria for eligibility for regional water planning money.

New §§355.110 - 355.115, Subchapter D, Environmental Flows Grants, are adopted pursuant to Texas Water Code §15.403 which authorizes the board to adopt rules for Texas Water Code, Chapter 15, relating to the Texas Water Assistance Program for research and planning, and §15.4063 which authorizes the board to provide funds relating to activities for studying environmental flows.

The board received no comments on the proposed rules.

Subchapter A. GENERAL RESEARCH AND PLANNING

31 TAC §§355.3, 355.5, 355.10, 355.11

The amendments to §§355.3, 355.5, 355.10 and 355.11 concerning Subchapter A, General Research and Planning, are adopted under the authority of Texas Water Code §15.403 which requires the board to adopt rules to carry out Water Code Chapter 15.

The code affected by this rulemaking is Water Code, Chapter 15, Subchapter F relating to Research and Planning; and Chapter 16, Subchapter C relating to Planning.

§355.5.Criteria.

Applications will be evaluated by the executive administrator, considering, at a minimum, the following criteria:

(1) Research project evaluation criteria for unsolicited applications:

(A) relationship of project to current needs for water resource research;

(B) description of the proposed research project;

(D) estimated time required to complete the research project;

(E) ability to perform the research and complete the project;

(F) potential economic impact; and

(G) environmental enhancement and conservation impact.

(2) Research project evaluation criteria for solicited applications:

(A) description of the proposed research project;

(B) responsiveness of the application to the request for proposals for requests for qualifications;

(D) estimated time required to complete the research project; and

(E) ability to perform the research and complete the project.

(3) Flood control planning project criteria:

(A) degree to which proposed planning duplicates previous or ongoing flood plans;

(B) project service area is regional versus local;

(D) participation in National Flood Insurance Program;

(E) project organization and budget; and

(F) scope and potential benefits of project.

(4) Regional facility planning project criteria:

(A) degree to which proposed planning duplicates previous or ongoing plans;

(B) regional nature of project;

(D) adequacy of water conservation plan and commitment to water conservation;

(E) project organization and budget;

(F) scope and potential benefits of project;

(G) the degree to which the regional facility planning is consistent with an approved regional water plan for the area in which the political subdivision is located.

§355.11.Availability of Reports and Planning Documents.

All reports, planning documents and any other work products resulting from projects receiving board funding assistance must be made available to state agencies and political subdivisions as required by the executive administrator or as agreed to by the contracting parties.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 29, 2008.

TRD-200800469

Jim Bateman

Staff Attorney

Texas Water Development Board

Effective date: February 18, 2008

Proposal publication date: November 16, 2007

For further information, please call: (512) 463-4946

Subchapter B. ECONOMICALLY DISTRESSED AREAS FACILITY ENGINEERING

31 TAC §§355.71, 355.72, 355.77

The amendments to §§355.71, 355.72, and 355.77 concerning Subchapter B, Economically Distressed Areas Facility Engineering are adopted under the authority of the Texas Water Code §15.407(d) relating to rules governing the procurement of facility engineering services by a political subdivision and other rules as necessary to carry out subchapter F of Chapter 15 of the Water Code.

The code affected by this rulemaking is Water Code, Chapter 15, Subchapter F relating to Research and Planning; and Chapter 16, Subchapter C relating to Planning.

§355.72.Criteria for Eligibility.

(a) Political subdivisions must meet the appropriate requirements of this section before the board may consider an application for financial assistance for facility planning.

(1) A county within which the political subdivision applying for assistance is wholly or partially located must have adopted the model subdivision rules required by the Texas Water Code, §16.343. Copies of the model subdivision rules are available upon request from the Texas Water Development Board, Office of General Counsel, P.O. Box 13231, Austin, Texas 78711 or the board's web site http://www.twdb.state.tx.us/publications/rules/rules.asp.

(2) A municipality which applies for financial assistance or within which a political subdivision applying for assistance is wholly or partially located must have adopted the model subdivision rules required by the Texas Water Code, §16.343, if the economically distressed area to be served is partially or wholly located within the incorporated limits of the municipality.

(3) A political subdivision applying for facility planning assistance must provide a citation to the specific legal authority in the Texas Constitution and statutes pursuant to which the applicant is authorized to provide the service for which the applicant is receiving financial assistance as well as citation to the laws under which the political subdivision was created and is operating.

(4) A political subdivision shall have submitted for review:

(A) an annual audit for the most recent fiscal year of the political subdivision and financial statements for the three previous complete months;

(B) the most recent order or resolution establishing the rates and charges for the utility service for which the planning will be performed;

(D) an executed contract with the consulting engineer to prepare the facility plan and sufficient documentation to establish that the political subdivision complied with §355.77 of this title in procuring the services of the consulting engineer.

(b) If the applicant is a local governmental entity as defined in the Health and Safety Code, Chapter 366, then before the board provides financial assistance for facility planning, the applicant must provide satisfactory evidence that it has taken and will take all actions necessary to receive and maintain a designation as an authorized agent of the commission as set forth in that chapter.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 29, 2008.

TRD-200800470

Jim Bateman

Staff Attorney

Texas Water Development Board

Effective date: February 18, 2008

Proposal publication date: November 16, 2007

For further information, please call: (512) 463-4946

Subchapter C. REGIONAL WATER PLANNING GRANTS

31 TAC §§355.92, 355.93, 355.97, 355.100

The amendments to §§355.92, 355.93, 355.97, and 355.100 concerning Subchapter C, Regional Water Planning Grants, are adopted under the authority of Texas Water Code §15.403, which directs the board to adopt rules to carry out Texas Water Code, Chapter 15, under which the board provides the funding for regional water plans; and Texas Water Code §15.4061, which requires the board to adopt rules establishing criteria for eligibility for regional water planning money.

The code affected by this rulemaking is Water Code, Chapter 15, Subchapter F relating to Research and Planning; and Chapter 16, Subchapter C relating to Planning.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 29, 2008.

TRD-200800471

Jim Bateman

Staff Attorney

Texas Water Development Board

Effective date: February 18, 2008

Proposal publication date: November 16, 2007

For further information, please call: (512) 463-4946

Subchapter D. ENVIRONMENTAL FLOWS GRANTS

31 TAC §§355.110 - 355.115

New Subchapter D relating to funds for environmental flows committees, teams and contracts is adopted pursuant to Water Code §15.403 which authorizes the board to adopt rules for Water Code Chapter 15 relating to the Texas Water Assistance Program for research and planning and §15.4063 which authorizes the board to provide funds relating to activities for studying environmental flows.

The code affected by this rulemaking is Water Code, Chapter 15, Subchapter F relating to Research and Planning; and Chapter 16, Subchapter C relating to Planning.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 29, 2008.

TRD-200800472

Jim Bateman

Staff Attorney

Texas Water Development Board

Effective date: February 18, 2008

Proposal publication date: November 16, 2007

For further information, please call: (512) 463-4946

Chapter 357. REGIONAL WATER PLANNING GUIDELINES

31 TAC §§357.5, 357.7, 357.10, 357.12, 357.16

The Texas Water Development Board (board) adopts §§357.5, 357.10, 357.12 and 357.16 without changes from the proposed text and these sections will not be republished. The board adopts §357.7 with changes to the proposed text. The proposed rulemakings were published in the November 16, 2007, issue of the Texas Register (32 TexReg 8293).

§357.5

The board adopts §357.5 without changes to the proposed text. The board received no comments on this section.

§357.7

The board adopts §357.7 with changes as noted below.

§357.7(a)(3)(A)

The board adopts §357.7(a)(3)(A) relating to regional water plan development without changes to the proposed text based on the comments described herein. Two commenters recommended that the board add the words "prudent storage reserve" to the definition of firm yield in proposed §357.7(a)(3)(A). The board is not making the requested change. The board requires a consistent definition to analyze water supplies under drought conditions on a statewide basis. The board notes that the concept of prudent storage reserve may be utilized by regional water planning groups (RWPG) in addition to firm yield as defined in proposed §357.7(a)(3)(A) pursuant to §357.7(a)(3)(B) and in analyzing their management strategies pursuant to §357.7(a)(7).

One commenter recommended that RWPGs be permitted to continue using analyses that were used with written approval in past. The board is not making changes based on this comment because effective statewide water planning depends upon use of the same metrics throughout the state and any deviations in analyses must be based on current science and adequately documented. Allowing each entity to use a different methodology without reviewing the most current science or other changed conditions and documenting any variations in the methodology will not result in effective or efficient water planning.

One commenter requested that the board allow the use of the "most appropriate" methodology for calculating water supply noting that each drought reduces firm yield. The board is not making the requested change because of the need for consistent analyses, as discussed above, and because regional water planning groups (RWPG) can use other methodologies in addition to firm yield as defined in proposed §357.7(a)(3)(A) pursuant to §357.7(a)(3)(B) and in analyzing their management strategies pursuant to §357.7(a)(7).

One commenter requested that the calculation of water supply include the assumption that senior water rights will be used. The rule, as proposed, provides that analysis of existing water supply includes the assumption that all senior water rights will be used. Therefore, no change is made based on this comment.

Two commenters requested that the calculation of water supply be allowed "on any reasonable basis appropriate." The board disagrees and is not making a change based on this comment. Allowing each RWPG to use a methodology they deem appropriate could easily result in numerous methodologies that could not be adequately compared or provide the board with a consistent definition to analyze water supplies under drought conditions on a statewide basis. One of these commenters noted that use of the safe yield method would provide better protection in future droughts in West Texas. The board appreciates the distinctions among different geographic areas but, the calculation of supply must be consistent statewide. The safe yield method may be utilized in addition to firm yield upon written approval and in developing management strategies.

Two commenters requested deletion of the phrase "drought of record" which they deemed not helpful for gauging future extent or duration. The board declines to make a change based on these comments because the statute, Water Code §16.053(e)(4) requires regional water plans (RWP) that identify water management strategies to be used during a drought of record. The proposed language of §357.7(a)(3) requires evaluation of supplies available for use during a drought of record. The need to analyze supply during a drought of record is consistent with the statutory command to create a management strategy for drought of record.

Two commenters requested that the board allow use of other measure for calculating water supply without approval of the board's executive administrator. The board is not making a change based on these comments because effective statewide water planning depends upon use of the same metrics throughout the state and any deviations in analyses must be based on current science and adequately documented. Allowing each entity to use a different methodology without reviewing the most current science or other changed conditions and documenting any variations in the methodology will not result in effective or efficient water planning.

§357.7(a)(3)(B)

The board adopts §357.7(a)(3)(B) relating to regional water plan development with changes to the proposed text based on comments described herein. Two commenters suggested that the definition of firm yield be deleted from this subsection because it is defined in §357.7(a)(3)(A). The proposed rule deleted the last sentence of §357.7(a)(3)(B); however, in response to the comment, the board adopts §357.7(a)(3)(B) with changes to the proposed text by deleting all of the text except the first sentence. This change avoids confusion by eliminating language duplicative of that in §357.7(a)(3)(A) and does not limit additional analyses that can be approved in writing by the executive administrator.

Three commenters recommended that §357.7(a)(3)(B) allow system yield from operations as a measure of water supply. The proposed rule specifically requires firm yield and allows use of operational procedures only upon approval of the executive administrator. The board makes no change based upon this comment because the executive administrator may approve other analyses.

One commenter asked that the board allow the use of system yield from operations if the Texas Commission on Environmental Quality approves such usage. The board makes no change based on this comment because use of a different methodology without reviewing the most current science or other changed conditions and documenting any variations in the methodology will not result in effective or efficient water planning.

One commenter requested that the board allow the use of previously approved analyses. The board is not making any change based upon this comment; the point of the rule proposal was to effect consistency in the method used for evaluating water supply and because use of a different methodology without reviewing the most current science or other changed conditions and documenting any variations in the methodology will not result in effective or efficient water planning.

One commenter requested that the last sentence of the section be reworded to include the phrase "or system of reservoirs." However the last sentence of §357.7(a)(3)(B), a definition of firm yield was proposed for deletion because "firm yield" is defined in §357.7(a)(3)(A) as proposed. Therefore the board makes no changes based on this comment.

§357.7(a)(3)(C)

The board adopts §357.7(a)(3)(C) relating to regional water plan development with changes to the proposed text based on comments as discussed herein. One commenter noted that allowing "better site specific information" was a good idea and should be retained in the final rule. The board is revising the language to allow use of modifications to the WAM with the approval of the executive administrator. The use of "better site specific information" will likely constitute a modification to the WAM, requiring the approval of the executive administrator.

Two commenters requested that the board allow entities to use the same methodology and models they used in the past. The board disagrees with this request because the purpose of the proposed rule is to require the use of the same models statewide.

One commenter commented that the board should allow entities to assume full system use and no return flows with the WAM. The board agrees with this comment and is adopting §357.7(a)(3)(C) with additional language requiring use of these assumptions. This commenter agreed that executive administrator approval is appropriate for deviations from the WAM. The board is adding the requirement that deviations from the TCEQ WAM must be approved by the executive administrator.

One commenter asked that the board allow the use of modified WAM. The board agrees that there may be situations where modifications constitute improvements and therefore is adopting the rule with changes by adding language that allows modification of the WAM upon approval of the executive administrator.

One commenter stated that requiring the use of WAM was a good concept and should be retained in the rule. The board is retaining the required use of the WAMs in the rule.

One commenter stated that the board should allow the use of basin specific versions of the WAM. The board is making a change based on this comment by allowing the use of modified WAMs with the prior approval of the executive administrator.

One commenter suggested that analysis of both water supply and water management strategies should consider treated effluent. The board is not making any change based on this comment because the manner in which planning groups should consider treated effluent is still under review and is the subject of debate throughout the state. The board is awaiting further study and review of the topic of treated effluent prior to changing planning rules based on the use of treated effluent.

§357.7(a)(7)(H)

The board adopts §357.7(a)(7)(H) relating to regional water plan development with changes to the proposed text. One commenter asked whether the 125% limit on recognized need applies at the end of the fifty year planning period or to the firm supply of recommended strategy. The 125% limit applies to the water user group's need met by the original recommended strategy. Both the original and the substituted strategy are limited to no more than 125% of the water user group's need. No change is being made based on this comment.

Two commenters requested that the 125% limit be deleted. The board is not making a change based on this comment because the 125% rule serves the important purpose of providing for orderly and efficient planning. The board is retaining the 125% limit to ensure appropriate planning that does not excessively exceed identified needs.

One commenter recommended that the board allow each RWPG to make its own decision about the 125% limit. The board disagrees with this comment because allowing each regional group to make a different decision may result in inefficient planning.

Two commenters suggested that the 125% limit apply only to supplies that are greater than 10,000 ac-ft/yr. The board is not making a change based on this comment because there is no rational basis for applying the rule to some, but not all, water management strategies.

Two commenters requested that the board allow substitution of more than one evaluated strategy if required for flexibility in planning. The board agrees with these commenters and adopts §357.7(a)(7)(H) with changes to the proposed text.

One commenter asked that the board adopt the subsection with the words "not recommended" substituted for no longer feasible." This comment was made in response to proposed §357.7(a)(8)(H), which is being deleted in response to comments, as discussed herein. The board agrees with this commenter and adopts §357.7(a)(7)(H) with the words "not recommended" instead of "not feasible."

§357.7(a)(8)(H)

The board is adopting §357.7(a)(8)(H) relating to regional water plan development with changes to the proposed text. One commenter recommended deleting this section because it contains an erroneous reference to §357.7(a)(1)(M) by stating that section refers to pipelines; however §357.7(a)(1)(M) refers to water loss audits performed by retail public utilities. The board agrees with the commenter and is deleting the reference to §357.7(a)(1)(M), but the board is retaining the directive to consider water conveyance facilities when evaluating water management strategies.

§357.7(a)(8)(I)

The board adopts §357.7(a)(8)(I) with changes to the proposed text by deleting this subsection. Two commenters questioned whether this section, which appears to repeat §357.7(a)(7)(H) is necessary or correctly integrated into rule. The board appreciates the comment and acknowledges that the rule is repetitive. The board adopts the rule with changes to the proposed text by deleting this subsection.

One commenter noted the language of this subsection and §357.7(a)(8)(I) should be retained in the adopted rule. The board disagrees and the board is deleting §357.7(a)(8)(I) because it is repetitive and creates confusion.

Two commenters stated that the 125% is too restrictive and should be deleted. One commenter requested that the 125% limit be deleted. Two commenters asked that the requirement to obtain executive administrator approval be deleted. As discussed in previous paragraphs, the limit on planning in excess of 125% of the identified needs is being retained in §357.7(a)(7)(H), as is the requirement for executive administrator approval for any deviations from the 125% limit.

Two commenters stated that the board should allow an amount of supply greater than 125% of anticipated need in cases where the substituted strategy and the original strategy are both greater than the 125% limit. The board agrees with this comment with a caveat. The board adopts §357.7(a)(7)(H) with language that allows substitution of a strategy in excess of 125% of anticipated need only if the substituted strategy does not allow for planning in excess of either 125% of the identified need or upon written approval of the executive administrator.

§357.10

The board adopts §357.10 without changes to the proposed text. The board received no comments on this section.

§357.12

The board adopts §357.12 relating to Notice and Public Participation without changes to the proposed text.

One commenter requested that the language of §357.12(a)(6)(D) clarify that the reference to 30 days refers to 30 days after the public hearing. The board is not making the requested change because subparagraph (D) already references the hearings required in paragraphs (3) and (4) which clearly relate to public hearings.

One commenter noted that §357.12(a)(4) should be changed because it does not address the minor amendment comment period. The board is not making a change based on this comment because adopted §357.16(d) describes the public meeting related to a minor amendment.

One commenter requested changes to proposed §357.12(a)(6)(D) so that it would be consistent with proposed §357.16 relating to Minor Amendments to the Regional Water Plan. The board is not making a change based on this comment because the ordinary amendment process for which public participation is required pursuant to the Texas Administrative Procedure Act and for which public participation is described in proposed §357.12(a)(6) are not affected by proposed §357.16, which relates only to minor amendments.

§357.16

The board adopts §357.16 relating to Minor Amendments and Clean Coal Project Amendments to Regional Water Plans and State Water Plan without changes to the proposed text. Two commenters recommended that the rule should allow, as a minor amendment, any change that was previously evaluated and included in an approved RWP. The board disagrees with this comment and is not making the recommended changes. Matters that were relevant to past approved RWPs are not necessarily minor and the board does not want to allow significant changes under the guise of minor amendments.

The following entities opposed the proposed rules. Brazos River Authority; Coastal Bend Regional Water Planning Group; Freese and Nichols, Inc.; Lloyd Gosselink; Palo Pinto County Municipal Water District No. 1; Region C Water Planning Group; Region G Water Planning Group; Region L Water Planning Group and the San Antonio River Authority.

These rules are adopted pursuant to Water Code §16.053(f)(1) and (2) which requires the board to adopt rules to provide for the procedures for adoption of regional water plans and for board approval of such plans. These sections also require the board to adopt rules to govern procedures for carrying out the responsibilities for regional water plans.

Statutory authority: The amendments and new section are adopted under the authority of Texas Water Code §6.101, which provides the board with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State, including Water Code §§35.004(d), 36.1071 - 36.1073, and 36.108(m), (n), and (o) which direct the board to assist and review in the development of groundwater district management plans, to approve plans properly adopted and submitted to the board, and to consider appeals of desired future conditions of groundwater resources.

§357.7.Regional Water Plan Development.

(a) Regional water plan development shall include the following:

(1) description of the regional water planning area including:

(A) wholesale water providers,

(B) current water use,

(D) sources of groundwater and surface water including major springs that are important for water supply or natural resource protection purposes,

(E) major demand centers,

(F) agricultural and natural resources,

(G) social and economic aspects of the regional water planning area including information on current population and primary economic activities including businesses dependent on natural water resources,

(H) assessment of current preparations for drought within the regional water planning area,

(I) summary of existing regional water plans,

(J) summary of recommendations in state water plan,

(K) summary of local water plans,

(L) any identified threats to the agricultural and natural resources of the regional water planning area due to water quantity problems or water quality problems related to water supply, and

(M) information compiled by the board from water loss audits performed by retail public utilities pursuant to §358.6 of this title (relating to Water Loss Audits);

(2) presentation of current and projected population and water demands. Results shall be reported:

(A) by

(i) city for cities with populations greater than 500 people,

(ii) retail public utility for counties that have less than five retail public utilities which provide more than 280 acre-feet per year for municipal use,

(iii) individual retail public utility or collective data for all such retail public utilities that form a logical reporting unit, such as being served by a common wholesale water provider or having a common source or other association appropriate for the area, in the judgment of the regional water planning group, for counties with more than five retail public utilities which provide more than 280 acre-feet per year for municipal use, and

(iv) categories of water use (including municipal not otherwise reported, manufacturing, irrigation, steam electric power generation, mining, and livestock watering) for each county or portion of a county in the regional water planning area. If a county or portion of a county is in more than one river basin, data shall be reported for each river basin;

(B) for each wholesale water provider by category of water use (municipal, manufacturing, irrigation, steam electric power generation, mining, and livestock) for each county or portion of a county in the regional water planning area. If a county or portion of a county is in more than one river basin, data shall be reported for each river basin. The wholesale water provider's current contractual obligations to supply water must be reported in addition to any demands projected for the wholesale water provider;

(C) to include an adjustment to each municipal demand due to water savings from using plumbing fixtures identified in Chapter 372 of the Texas Health and Safety Code. The regional water planning group shall determine and report the extent to which such plumbing fixtures impact projected municipal water use using parameters approved by the executive administrator.

(3) evaluation of adequacy of existing water supplies legally and physically available to the regional water planning area for use during drought of record. The evaluation shall consider surface water and groundwater data from the state water plan, existing water rights, contracts and option agreements, other planning and water supply studies, and analysis of water supplies existing in and available to the regional water planning area.

(A) For purposes of this subsection: "existing" means water supply available at the beginning of this task; and "firm yield" means the supply the reservoir can provide each year including during a drought of record using reasonable sedimentation rates and the assumption that all senior water rights will be totally utilized.

(B) Analysis of surface water available during drought of record shall be based on firm yield and may be based on operational procedures other than firm yield from reservoirs upon the written approval from the executive administrator who shall consider a written request from the regional water planning group to use other than firm yield.

(C) The planning group shall use available Texas Commission on Environmental Quality water availability models for evaluating the adequacy of surface water supplies. The planning group shall assume full utilization of existing water rights and no return flows when using the water availability models and the group may use better site specific information upon written approval from the executive administrator. Until information is provided by the Texas Commission on Environmental Quality, regional water planning groups may use estimates of the projected amount of surface water that would be available from existing water rights during a drought of record. Once this information is available from the Texas Commission on Environmental Quality, the regional water planning group shall incorporate it in its next planning cycle unless better site-specific information is available.

(D) Until information is available from the board regarding groundwater availability from modeling, the regional water planning groups may use estimates of the projected amounts as long as they describe the method used to arrive at those estimates. Once the groundwater availability modeling information is available for an area within a region, that regional water planning group shall incorporate such information in its next planning cycle unless better site-specific information is available.

(E) The executive administrator, after coordination with staff of the Texas Commission on Environmental Quality and the Texas Parks and Wildlife Department, shall identify the methodology, in consultation with representatives of regional water planning groups, to be used by regional water planning groups to calculate water availability during drought of record. The executive administrator shall provide available technical assistance to the regional water planning groups upon request to assist them in selecting appropriate methods and data to be used to determine water supply availability. Water supplies based on contracted agreements shall be based on the terms of the contract, which may be assumed to renew at the contract termination date if the contract contemplates renewal or extensions.

(F) Results of evaluations shall be reported by:

(i) city for cities with populations greater than 500 people,

(ii) retail public utility for counties that have less than five retail public utilities which provide more than 280 acre-feet per year for municipal use,

(iii) individual utility or collective data for all such retail public utilities that form a logical reporting unit, such as being served by a common wholesale water provider or having a common source or other association appropriate for the area, in the judgment of the regional water planning group, for counties with more than five retail public utilities which provide more than 280 acre-feet per year for municipal use, and

(G) for each wholesale water provider by category of water use (municipal, manufacturing, irrigation, steam electric power generation, mining, and livestock) for each county or portion of a county in the regional water planning area. If a county or portion of a county is in more than one river basin, data shall be reported for each river basin. The wholesale water provider's current contractual obligations to supply water must be reported in addition to any demands projected for the wholesale water provider;

(4) water supply and demand analysis comparing:

(A) water demands as developed in paragraph (2)(A) of this subsection with current water supplies available to the regional water planning area as developed in paragraph (3)(A) of this subsection to determine if the water users identified in paragraph (2)(A) of this subsection in the regional water planning area will experience a surplus of supply or a need for additional supplies. The social and economic impact of not meeting these needs shall be evaluated by the regional water planning groups and reported by regional water planning area and river basin. The executive administrator shall provide available technical assistance to the regional water planning groups, upon request, on water supply and demand analysis, including methods to evaluate the social and economic impacts of not meeting needs. Other results shall be reported by

(i) city for cities with populations greater than 500 people,

(ii) retail public utility for counties that have less than five retail public utilities which provide more than 280 acre-feet per year for municipal use,

(B) water demands as developed in paragraph (2)(B) of this subsection with current water supplies available to the wholesale water provider as developed in paragraph (3) of this subsection to determine if the wholesale water providers in the regional water planning area will experience a surplus of supply or a need for additional supplies. Results shall be reported for each wholesale water provider by categories of water use (including municipal, manufacturing, irrigation, steam electric power generation, mining, and livestock watering) for each county or portion of a county in the regional water planning area. If a county or portion of a county is in more than one river basin, data shall be reported for each river basin. The executive administrator shall provide available technical assistance to the regional water planning groups, upon request, on water supply and demand analysis;

(5) using the water supply needs identified in paragraph (4) of this subsection, water management strategies to be used during the drought of record to provide sufficient water supply to meet the needs identified in paragraph (4) of this subsection as follows:

(A) Water management strategies shall be developed for:

(i) city for cities with populations greater than 500 people,

(ii) retail public utility for counties that have less than five retail public utilities which provide more than 280 acre-feet per year for municipal use,

(B) water management strategies shall be developed for wholesale water providers. The water management strategies shall also meet the new water supply obligations necessary to implement recommended water management strategies of other wholesale water providers and water users for which plans are developed under of this paragraph. Results shall be reported for each wholesale water provider by category of water use (municipal, manufacturing, irrigation, steam electric power generation, mining, and livestock) for each county or portion of a county in the regional water planning area. If a county or portion of a county is in more than one river basin, data shall be reported for each river basin;

(C) The plan to be used for water supply during drought of record shall meet all needs for the water use categories of municipal, manufacturing, irrigation, steam electric power generation, mining, and livestock watering except:

(i) plans may identify those needs for which no water management strategy is feasible. Full evaluation of water management strategies must be presented and reasons given for why no water management strategies are feasible; or

(ii) where a political subdivision that provides water supply (other than water supply corporations, counties, or river authorities) does not participate in the regional water planning effort for needs located within its boundaries or extraterritorial jurisdiction. The regional water planning group shall establish terms of participation that shall be equitable and shall not unduly hinder participation;

(6) presentations of the data required in paragraphs (2) - (5) of this subsection in subdivisions of the reporting units required such as reporting irrigation for a county by splitting it into two or more reporting units, if the regional planning group desires;

(7) evaluation of all water management strategies the regional water planning group determines to be potentially feasible, including:

(A) water conservation practices. The executive administrator shall provide technical assistance to the regional water planning groups on water conservation practices. The regional water planning group must consider water conservation practices for each need identified in paragraph (4) of this subsection.

(i) The regional water planning group shall include water conservation practices for each user group to which Texas Water Code §11.1271 applies. The impact of these water conservation practices on water needs must be consistent with the requirements in appropriate Texas Commission on Environmental Quality administrative rules related to §11.1271.

(ii) The regional water planning group shall consider water conservation practices for each user group beyond the minimum requirements of clause (i) of this subparagraph, whether or not the water user group is subject to Texas Water Code §11.1271. If it does not adopt a water conservation strategy that exceeds minimum levels, it shall document the reason.

(iii) For each water user group or wholesale water provider that is to obtain water from a proposed interbasin transfer to which Texas Water Code §11.085(l) applies, the regional water planning group shall include a conservation water management strategy, pursuant to §11.085(1), that will result in the highest practicable level of water conservation and efficiency achievable. The regional water planning group shall determine and report the projected water use in gallons per capita per day for municipal uses based on its determination of the highest practicable level of water conservation and efficiency achievable. The regional water planning group shall develop conservation water management strategies based on this determination. In preparing the evaluation, the regional water planning group shall seek the input of the water user groups and wholesale water providers as to what is the highest practicable level of water conservation and efficiency achievable, in their opinion, and take that input into consideration. The regional water planning groups shall develop the conservation water management strategy consistent with the guidance provided by the Texas Commission on Environmental Quality in its administrative rules that implement Texas Water Code §11.085. The strategy evaluation shall include a quantitative description of the quantity, cost, and reliability of the water estimated to be conserved under the highest practicable level of water conservation and efficiency achievable;

(iv) The regional water planning group shall consider strategies to address any issues identified in the information compiled by the board from the water loss audits performed by retail public utilities pursuant to §358.6 of this title (relating to Water Loss Audits);

(B) drought management measures including water demand management. The executive administrator shall provide technical assistance to the regional water planning groups on drought management measures. The regional water planning group must consider drought management measures for each need identified in paragraph (4) of this subsection and must include such measures for each user group to which Texas Water Code §11.1272 applies. The impact of these drought management measures on water needs must be consistent with the guidance provided by the Texas Commission on Environmental Quality in its administrative rules that implement Texas Water Code §11.1272. If the regional water planning group does not adopt a drought management strategy for a need that goes beyond the requirements of §11.1272, it must document the reason. Nothing in this paragraph shall be construed as limiting the use of voluntary arrangements by water users to forgo water usage during drought periods;

(D) expanded use of existing supplies including systems optimization and conjunctive use of resources, reallocation of reservoir storage to new uses, voluntary redistribution of water resources including contracts, water marketing, regional water banks, sales, leases, options, subordination agreements, and financing agreements, subordination of existing water rights through voluntary agreements, enhancements of yields of existing sources, and improvement of water quality including control of naturally occurring chlorides;

(E) new supply development including construction and improvement of surface water and groundwater resources, brush control, precipitation enhancement, desalination, water supply that could be made available by cancellation of water rights based on data provided by the Texas Commission on Environmental Quality, aquifer storage and recovery;

(F) interbasin transfers;

(G) other measures; and

(H) the regional water planning group may substitute one or more evaluated alternative water management strategies for others if the strategy originally recommended under subsection (a)(9) of this section is no longer recommended. The proposed substitution may not result in a water management strategy that is in excess of 125% of recognized needs of the water user group for which the substituted strategy is recommended. Any proposed substitution must be submitted for approval to the executive administrator. If the regional water planning group can demonstrate to the executive administrator that there is good cause for the requested strategy substitution and for exceeding the 125% limit, then the executive administrator may issue a written approval of the substitution.

(8) evaluations of all water management strategies the regional water planning group determines to be potentially feasible by including:

(A) a quantitative reporting of:

(i) the quantity, reliability, and cost of water delivered and treated for the end user's requirements, incorporating factors to be used in the calculation of infrastructure debt payments, present costs, and discounted present value costs provided by the executive administrator;

(ii) environmental factors including effects on environmental water needs, wildlife habitat, cultural resources, and effect of upstream development on bays, estuaries, and arms of the Gulf of Mexico;

(iii) impacts on agricultural resources;

(B) impacts on other water resources of the state including other water management strategies and groundwater surface water interrelationships;

(C) for each threat to agricultural and natural resources identified pursuant to paragraph (1) of this subsection, a discussion of how that threat will be addressed or affected by the water management strategies evaluated;

(D) any other factors as deemed relevant by the regional water planning group including recreational impacts;

(E) equitable comparison and consistent application of all water management strategies the regional water planning groups determines to be potentially feasible for each water supply need;

(F) consideration of the provisions in Texas Water Code, §11.085(k)(1) for interbasin transfers of surface water. At a minimum, this consideration shall include a summation of water needs in the basin of origin and in the receiving basin, based on needs presented in the applicable approved regional water plan;

(G) consideration of third party social and economic impacts resulting from voluntary redistributions of water, including analysis of third-party impacts of moving water from rural and agricultural areas; and

(H) consideration of water pipelines and other facilities that can be used for water conveyance as described in subsection (a)(1)(M) of this section; and

(9) specific recommendations of water management strategies to meet the needs in sufficient detail to allow state agencies to make financial or regulatory decisions to determine the consistency of the proposed action before the state agency with an approved regional water plan. Strategies shall be selected so that cost effective water management strategies which are consistent with long-term protection of the state's water resources, agricultural resources, and natural resources are adopted;

(10) regulatory, administrative, or legislative recommendations that the regional water planning group believes are needed and desirable to: facilitate the orderly development, management, and conservation of water resources and preparation for and response to drought conditions in order that sufficient water will be available at a reasonable cost to ensure public health, safety, and welfare; further economic development; and protect the agricultural and natural resources of the state and regional water planning area. The regional water planning group may develop information as to the potential impact once proposed changes in law are enacted;

(11) a chapter consolidating the water conservation and drought management recommendations of the regional water plan;

(12) a description of the major impacts of recommended water management strategies on key parameters of water quality identified by the regional water planning group as important to the use of the water resource and comparing conditions with the recommended water management strategies to current conditions using best available data;

(13) a chapter describing how the regional water plan is consistent with long-term protection of the state's water resources, agricultural resources, and natural resources as required in §357.14(2)(C) of this title (relating to Approval of Regional Water Plans by the Board); and

(14) a chapter describing the financing needed to implement the water management strategies recommended. The description shall include how local governments, regional authorities, and other political subdivisions in the regional water planning area propose to pay for water management strategies identified in the regional water plan.

(b) Specific recommendations of water management strategies to meet an identified need will not be shown as meeting the need for a political subdivision if the political subdivision to supply or to be provided water supplies objects to inclusion of the strategy for such political subdivision and specifies its reasons for such objection. This does not prevent the inclusion of the strategy to meet other needs.

(c) The regional water planning group shall include in its regional water plan a model water conservation plan pursuant to Texas Water Code §11.1271.

(d) The regional water planning group shall include in its regional water plan a model drought contingency plan pursuant to Texas Water Code §11.1272.

(e) The executive administrator shall provide technical assistance within available resources to the regional water planning groups requesting such assistance in performing regional water planning activities and if requested, may facilitate resolution of conflicts within regional water planning areas.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 29, 2008.

TRD-200800517

Jim Bateman

Staff Attorney

Texas Water Development Board

Effective date: February 18, 2008

Proposal publication date: November 16, 2007

For further information, please call: (512) 463-4946