Part 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

Chapter 19. ELECTRONIC REPORTING

Subchapter C. USE OF ELECTRONIC REPORTING

30 TAC §19.21

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) proposes new §19.21.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULE

The purpose of the proposed rule is to implement House Bill (HB) 1254 of the 80th Legislature, 2007. The bill, which became effective September 1, 2007, authorizes the commission to adjust fees as necessary to encourage electronic reporting and the use of the commission's electronic document receiving system. The proposed new rule implements HB 1254.

SECTION DISCUSSION

The commission proposes new §19.21, Fees, in Chapter 19, Electronic Reporting. The proposed new section will implement HB 1254 by stating that the commission may adjust fees as necessary to encourage electronic reporting and the use of the commission's electronic document receiving system. Although the proposed section does not change specific fees, the inclusion of this section will serve as an advance notice that the commission may consider fee changes in the future for this purpose.

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 is in effect, no fiscal implications are anticipated for the agency or other units of state or local governments as a result of administration or enforcement of the proposed rule.

The purpose of the proposed rule is to implement HB 1254, 80th Legislature, Regular Session. The bill authorizes the commission to adjust fees as necessary to encourage electronic reporting and use of the commission's electronic document receiving system, and the proposed rule would add new §19.21, Fees, to Chapter 19 to do so. The proposed new section does not change specific fees at this time, but it will allow other sections of the TAC to be opened in the future to amend fees for those that utilize the agency's electronic document receiving system. When the commission considers specific fee changes, pertinent sections of the TAC may be opened under separate rulemakings. When future rules are proposed, the commission will conduct a fiscal analysis of proposed fee changes.

PUBLIC BENEFITS AND COSTS

Ms. Chamness also determined that for each year of the first five years the proposed new rule is in effect, the public benefit anticipated from the changes seen in the proposed rule will be in compliance with state law.

The proposed rule would add new section §19.21, Fees, to Chapter 19 to adjust fees as necessary to encourage electronic reporting and use of the commission's electronic document receiving system. The proposed new section does not change specific fees at this time and will not have a fiscal impact on businesses or individuals.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

No adverse fiscal implications are anticipated for small or micro-businesses. The proposed rule states that the commission may adjust fees as necessary to encourage electronic reporting and use of the commission's electronic document receiving system. The proposed new section does not change specific fees at this time and will not have a fiscal impact on small or micro-businesses.

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 rule does not adversely affect a small or micro-business in a material way for the first five years that the proposed rule 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 rule does not adversely affect a local economy in a material way for the first five years that the proposed rule is in effect.

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the proposed rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the proposed rulemaking is not subject to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in the Texas Government Code. A "major environmental rule" is a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state.

The specific intent of this proposed rulemaking action is to implement HB 1254 of the 80th Legislature, 2007. The bill, which became effective September 1, 2007, authorizes the commission to adjust fees as necessary to encourage electronic reporting and the use of the commission's electronic document receiving system. The proposed rulemaking is procedural in nature and does not address environmental risks or exposures. Therefore, the proposed rulemaking does not constitute a major environmental rule, and is not subject to a formal regulatory analysis.

Additionally, the rulemaking does not meet any of the four applicability criteria for requiring a regulatory impact analysis for a major environmental rule, which are listed in Texas Government Code, §2001.0225(a). Texas Government Code, §2001.0225 applies only to a major environmental rule, the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers of the agency instead of under a specific state law.

This rulemaking does not meet any of the four applicability requirements in Texas Government Code, §2001.0225(a). Since there is no federal law establishing a standard for the commission's adjustment of fees to encourage electronic reporting, this rulemaking does not exceed a standard set by federal law. HB 1254 grants the commission authority to adjust fees as necessary to encourage electronic reporting and use of the commission's document receiving system, but states nothing further to establish a particular standard as to the manner in which the commission may do so. Since this rulemaking proposes to implement the bill consistent with the legislation, it does not exceed the requirements of state law. This 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 assess fees, but is instead proposed to be consistent with state statute. This rulemaking is not proposed solely under the general powers of the agency because it is proposed to implement Texas Water Code, §5.128(a), which authorizes the commission to adjust fees. The commission invites public comment regarding this draft regulatory impact analysis determination.

TAKINGS IMPACT ASSESSMENT

The commission completed a takings impact analysis for the proposed rulemaking action under Texas Government Code, §2007.043. The specific purpose of this proposed rulemaking is to implement HB 1254, which authorizes the commission to adjust fees to encourage electronic reporting and the use of the commission's electronic document receiving system. The proposed rule would substantially advance these purposes by giving notice to those who use the commission's electronic document receiving system that fees may be adjusted.

Promulgation and enforcement of the proposed rule would constitute neither a constitutional nor a statutory taking of private real property. There are no burdens imposed on private real property under this rule because the proposed rule neither relates to, nor has any impact on the use or enjoyment of private real property. Also, the rule does not result in a reduction in property value. The rule is only procedural in nature. Therefore, the proposed rule would not constitute a taking under Texas Government Code, Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the proposed rulemaking and found that the proposal is neither identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11, nor will it affect any action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11. Therefore, the proposed rule is not subject to the CMP.

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

A public hearing on this proposal will be held in Austin on March 27, 2008, at 10:00 a.m. at the Texas Commission on Environmental Quality complex located at 12100 Park 35 Circle in Building F, Room 2210. 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. 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

Written comments may be submitted to John Gaete, MC 205, Office of Legal Services, 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 2007-050-19-PR. The comment period closes March 31, 2008. Copies of the proposed rule 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 Ellette Vinyard, Permitting and Remediation Support Division, (512) 239-6085.

STATUTORY AUTHORITY

The new rule is proposed under Texas Water Code (TWC), §5.013, which establishes the commission's general jurisdiction; §5.102, which establishes the commission's general authority necessary to carry out its jurisdiction; §5.103, which allows the commission to adopt any rules necessary to carry out the powers and duties under the provisions of the TWC and other laws of this state; §5.105, which requires the commission to, by rule, establish and approve all general policy of the commission; §5.128, which authorizes the commission to encourage the use of electronic reporting; and to adjust fees as necessary to encourage electronic reporting and use of the commission's document receiving system.

The proposed new rule implements TWC, §§5.013, 5.102, 5.103, 5.105, and 5.128.

§19.21.Fees.

The commission may adjust fees as necessary to encourage electronic reporting and the use of the commission's electronic document receiving 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 February 15, 2008.

TRD-200800959

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 30, 2008

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

Subchapter L. ON-ROAD ENGINES

Division 1. HEAVY-DUTY DIESEL ENGINES

30 TAC §§114.700 - 114.702, 114.706, 114.707, 114.709

(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.)

The Texas Commission on Environmental Quality (commission or TCEQ) proposes the repeal of §§114.700 - 114.702, 114.706, 114.707, and 114.709.

The proposed repeal of §§114.700 - 114.702, 114.706, 114.707, and 114.709 will be submitted to the United States Environmental Protection Agency (EPA) as a revision to the state implementation plan (SIP).

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES

In 1998, the federal government and seven heavy-duty diesel engine (HDDE) manufacturers entered into consent decrees after enforcement actions were brought against HDDE manufacturers that a majority of the diesel engine manufacturers had programmed their engines to defeat federal test procedures (FTP) which were established to measure compliance with the EPA promulgated diesel emission standards in effect at the time. A so-called "defeat device" was employed because its use would provide some increase in fuel economy. However, its use would also cause the engine to produce higher nitrogen oxides (NO_X ) emissions while the engine was running in the open-road or cruise mode.

In the consent decrees, the manufacturers were required, among other things, to produce HDDE that met a 2.5 gram per brake horsepower-hour standard for non-methane hydrocarbons plus NO_X emissions by no later than October 1, 2002. The consent decrees also required the manufacturers to comply with supplemental test procedures for a period of two years (2003 and 2004). The two components of the supplemental tests are known as the "Not to Exceed" (NTE) test and the Euro III European Stationary Cycle test. However, the EPA's NTE rules for HDDE that would include the NTE test requirements were delayed until model year 2007. This delay resulted in a regulatory gap for two model years (2005 and 2006) between the expiration for the NTE test requirements under the consent decree following model year 2004 and the commencement of NTE test requirements for model year 2007. To prevent any "backsliding" by HDDE manufacturers during the 2005 and 2006 model years, the California Air Resources Board (CARB) adopted rules under Title 13, California Code of Regulations (13 CCR) §1956.8 on December 8, 2000. The rules were effective on July 25, 2001, requiring HDDE manufacturers to comply with supplemental procedures including the NTE test.

The TCEQ originally adopted the rules under Subchapter L in August 2001 to join with California and twelve other states to prevent potential significant increases in diesel exhaust emissions due to possible "backsliding" by engine manufacturers due to the absence of federal standards during the 2005 and 2006 model years. The EPA's implementation of federal emission control standards (66 Federal Register 5001, January 18, 2001) including NTE standards, for 2007 and newer model year HDDE and heavy-duty on-highway (HDOH) vehicles mitigates the original justification for Texas to require CARB-certified HDDE since the federal standards now require HDDE manufacturers to meet emission limits for 2007 and newer HDDE and HDOH vehicles that are equivalent to the California standards required under Subchapter L.

On June 27, 2007, the Commission directed staff to initiate rulemaking to propose the repeal of Subchapter L based on their consideration of a petition from the Engine Manufacturers Association (EMA) and the executive director's support for repealing these rules to address issues raised by the petitioner.

The current regulations under Subchapter L require all HDDE produced for sale or other use in Texas for the 2005 and newer model years to be certified to meet the California emission control standards specified under 13 CCR §1956.8 that were revised by CARB on December 8, 2000, and effective on July 25, 2001. The EMA petition requested the TCEQ to initiate rulemaking to repeal Subchapter L to allow for the sale or other use in Texas of any 2008 or newer model year HDDE that are certified by the EPA as compliant with all applicable EPA emission control regulations.

The EMA claims that revisions by CARB to 13 CCR §1956.8 effective on November 15, 2006, enacting additional emission control requirements for automatic engine idle shutdown devices on 2008 and newer model year HDDE impact the validity of TCEQ's current regulations under Subchapter L since these rules are no longer consistent with California's new rules. The EMA contends that subsequent implementation of TCEQ's regulations under Subchapter L may be construed as a violation of the identicality (i.e. "no third car") requirement in Section 177 of the Clean Air Act (42 United States Code (USC), §7507).

The Clean Air Act allows states to adopt and implement vehicle and engine emission standards that are more stringent then federal requirements if the standards are identical to the California standards for which a waiver has been granted by the EPA for the model years affected by the standards. However, Section 177 of the Clean Air Act (42 USC, §7507) prohibits states from taking "any action of any kind to create, or have the effect of creating, a motor vehicle or motor vehicle engine different than a motor vehicle or engine certified in California under California standards (a "third vehicle") or otherwise create such a "third vehicle."

SECTION BY SECTION DISCUSSION

The proposed repeal of §§114.700 - 114.702, 114.706, 114.707, and 114.709 would remove regulations that have been rendered unnecessary by the EPA's implementation of federal emission control standards (66 Federal Register 5001, January 18, 2001), including NTE standards, for 2007 and newer model year HDDE and HDOH vehicles that require HDDE manufacturers to meet emission limits that are equivalent to the California standards required under §§114.700 - 114.702, 114.706, 114.707, and 114.709. Repealing these sections would provide regulatory flexibility by allowing persons selling or offering to sell new HDDE and HDOH vehicles in Texas with the option of selling new 2008 and newer HDDE and HDOH vehicles that are either certified by the EPA or by CARB, while having no impact on the regulated emissions currently affected by these rules. In addition, the proposed repeal of §§114.700 - 114.702, 114.706, 114.707, and 114.709 would eliminate the potential violation of the identicality (i.e. "no third car") requirement in Section 177 of the Clean Air Act (42 USC, §7507) that would occur if the TCEQ enforced the rules specified under §§114.700 - 114.702, 114.706, 114.707, and 114.709 to require 2008 and newer model year HDDE and HDOH vehicles to be certified to meet the California emission control standards referenced by these rules.

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 repeals are in effect, no fiscal implications are anticipated for the agency or other units of state or local governments as a result of administration or enforcement of the proposed rules. The proposed rulemaking would repeal Chapter 114, Subchapter L, which regulates the types of HDDE and HDOH vehicles that can be sold in Texas, in its entirety. Persons selling or offering for sale HDDE or HDOH vehicles would, by default, be able to sell vehicles certified by either the EPA or by the CARB. The proposed rules will have no fiscal implications on the agency because emission modeling used by the agency in the SIP already uses current 2007 federal emission standards for HDDE and HDOH vehicles. Other state agencies or local governments will not be affected by the proposed rules since they do not sell these types of vehicles.

The proposed rulemaking would repeal §§114.700 - 114.702, 114.706, 114.707, and 114.709 (Subchapter L). Repealing Subchapter L would remove an out-dated regulation; provide regulatory flexibility by allowing persons selling or offering to sell new HDDE engines and HDOH vehicles in Texas with the option of selling HDDE and HDOH vehicles that are either certified by EPA or by CARB, thus having no impact on the regulated emissions currently affected by these rules; and eliminate the potential violation of the identicality (i.e. "no third car") requirement in Section 177 of the Clean Air Act that would occur if the TCEQ enforced the rules specified under §§114.700 - 114.702, 114.706, 114.707, and 114.709 to require 2008 and newer model year HDDE and HDOH vehicles to be certified to meet the California emission control standards referenced by these rules Repeal of the current rules would guarantee that Texas rules would comply with the Clean Air Act because only EPA rules or CARB rules, as allowed by the Act, would govern.

PUBLIC BENEFITS AND COSTS

Ms. Chamness also determined that for each year of the first five years the proposed repeals are in effect, the public benefit anticipated from the changes seen in the proposed rulemaking will be consistency between state and federal regulations and flexibility for sellers and buyers of HDDE and HDOH vehicles to sell or buy either EPA approved vehicles or those complying with CARB standards.

The proposed repeal is not expected to have any fiscal implications for persons or entities selling or offering for sale HDDE and HDOH vehicles since these persons or entities would have the option of supplying vehicles that are certified by either EPA or CARB. Buyers of these vehicles are not expected to experience fiscal implications as a result of the proposed repeal of rules since they would have the option of buying either EPA or CARB certified HDDE or HDOH vehicles.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

No adverse fiscal implications are anticipated for small or micro-businesses that sell or buy HDDE or HDOH vehicles as a result of the proposed repeal of rules. Small or micro-businesses would have the option of selling or buying vehicles certified by either the EPA or CARB.

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 repeal of §§114.700 - 114.702, 114.706, 114.707, and 114.709 considering the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the rulemaking does not meet the definition of a "major environmental rule." 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 purpose of this proposal is to repeal the heavy duty diesel engine requirements in state rule because these have been rendered unnecessary by the EPA's implementation of federal emission control standards. The repeal itself does not specifically protect human health or the environment, or adversely affect materially the economy, productivity, competition, jobs, etc. Therefore, the repeal does not constitute a major environmental rule, and thus is not subject to a formal regulatory analysis.

In addition, the proposed repeal of §§114.700 - 114.702, 114.706, 114.707, and 114.709 is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b), because the proposal does not meet any of the four applicability requirements. 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; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers of the agency instead of under a specific state law.

Specifically, this rulemaking action, which is designed to repeal provisions in state rule that have potentially become prohibited by federal law due to changes to CARB rules initially incorporated by reference in state rule, does not exceed an express requirement under state or federal law. Furthermore, there is no contract or delegation agreement that covers the topic that is the subject of this action. Finally, this rulemaking action was not developed solely under the general powers of the agency, but is authorized by specific sections of Texas Health and Safety Code, Chapter 382 (also known as the Texas Clean Air Act), and the Texas Water Code, which are cited in the STATUTORY AUTHORITY section of this preamble, including Texas Health and Safety Code, §§382.012, 382.017, 382.019, and 382.208. Therefore, the repeal does not exceed a standard set by federal law, exceed an express requirement of state law, exceed a requirement of a delegation agreement, nor is adopted solely under the general powers of the agency.

Based on the foregoing, this proposed rulemaking action is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b). The commission invites public comment on the draft regulatory impact analysis determination.

TAKINGS IMPACT ASSESSMENT

Under Texas Government Code, §2007.002(5), "taking" means a governmental action that affects private real property, in whole or in part or temporarily or permanently, in a manner that requires the governmental entity to compensate the private real property owner as provided by the Fifth and Fourteenth Amendments to the United States Constitution or by Article 1, Texas Constitution, §17 or §19; or a governmental action that affects an owner's private real property that is the subject of the governmental action, in whole or in part or temporarily or permanently, in a manner that restricts or limits the owner's right to the property that would otherwise exist in the absence of the governmental action; and is the producing cause of a reduction of at least 25% in the market value of the affected private real property, determined by comparing the market value of the property as if the governmental action is not in effect and the market value of the property determined as if the governmental action is in effect.

The commission completed a takings impact assessment for the proposed rulemaking action under Texas Government Code, §2007.043. The specific purpose of this proposed rulemaking is to repeal §§114.700-114.702, 114.706, 114.707, and 114.709, which would provide regulatory flexibility by allowing persons selling or offering to sell new HDDE and HDOH vehicles in Texas with the option of selling new 2008 or newer HDDE and HDOH vehicles that are either certified by the EPA or by CARB, while having no impact on the regulated emissions currently affected by these rules. The proposed repeal of §§114.700-114.702, 114.706, 114.707, and 114.709 will not place a burden on private, real property in a manner that would require compensation to private real property owners under the United States Constitution or the Texas Constitution. The proposal also will not affect private real property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of the governmental action. Therefore, the proposed repeal will not cause a taking under Texas Government Code, Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission determined the proposed rulemaking relates to an action or actions subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, §§33.201 et seq.), and the commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal Management Program. As required by 30 TAC §281.45(a)(3) and 31 TAC §505.11(b)(2), relating to actions and rules subject to the CMP, commission rules governing air pollutant emissions must be consistent with the applicable goals and policies of the CMP. The commission reviewed this action for consistency with the CMP goals and policies in accordance with the regulations of the Coastal Coordination Council and determined that the proposed amendments are consistent with the applicable CMP goal expressed in 31 TAC §501.12(1) of protecting and preserving the quality and values of coastal natural resource areas, and the policy in 31 TAC §501.14(q), which requires that the commission protect air quality in coastal areas. The proposed rulemaking will ensure that the amendments comply with 40 Code of Federal Regulations (CFR) Part 50, National Primary and Secondary Air Quality Standards, and 40 CFR Part 51, Requirements for Preparation, Adoption, and Submittal of Implementation Plans. This rulemaking action is consistent with CMP goals and policies, in compliance with 31 TAC §505.22(e).

ANNOUNCEMENT OF HEARING

The commission will hold a public hearing on this proposal at the following time and location: March 20, 2008, 10:00 a.m., Texas Commission on Environmental Quality, Building E, Room 201S, 12100 Park 35 Circle, Austin. The hearing will be structured for the receipt of oral or written comments by interested persons. Registration will begin 30 minutes prior to the hearing. 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, commission staff members will be available to informally discuss the proposal 30 minutes before the hearing.

Persons planning to attend the hearing, who have special communication or other accommodation needs, should contact Kristin Smith, General Law Division, 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 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 2007-056-114-EN. The comment period closes March 26, 2008. Copies of the proposed rule can be obtained from the commission's Website at http://www.tceq.state.tx.us/nav/rules/propose_adopt.html . For further information, please contact Morris Brown of the Air Quality Division at (512) 239-1438.

STATUTORY AUTHORITY

The repeals are proposed under Texas Water Code (TWC), §5.103, concerning Rules, and §5.105, concerning General Policy, which authorize the commission to adopt rules necessary to carry out its powers and duties under the Texas Water Code. The repeals are also proposed under Texas Health and Safety Code (THSC), §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; THSC, §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state's air; THSC, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act; THSC, §382.019, concerning Methods Used to Control and Reduce Emissions from Land Vehicles, which authorizes the commission to adopt rules to control and reduce emissions from engines used to propel land vehicles; and THSC, §382.208, concerning Attainment Program, which authorizes the commission to coordinate with federal, state and local transportation planning agencies to develop and implement programs and other measures necessary to protect the public from exposure to hazardous air contaminants from motor vehicles.

The proposed repeals implement TWC, §5.103 and §5.105, and THSC, §§382.002, 382.011, 382.012, 382.017, 382.019, and 382.208.

§114.700.Definitions.

§114.701.Applicability.

§114.702.Adoption and Incorporation by Reference of California Rules Regarding Exhaust Emission Standards.

§114.706.Recordkeeping Requirements.

§114.707.Exemptions and Technology Review.

§114.709.Affected Counties and Compliance Schedules.

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 February 15, 2008.

TRD-200800943

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 30, 2008

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

30 TAC §§230.1 - 230.3, 230.9

The Texas Commission on Environmental Quality (TCEQ or commission) proposes amendments to §§230.1 - 230.3 and §230.9.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES

The purpose of the proposed amendments is to implement Senate Bill (SB) 662, 80th Texas Legislature, 2007, by requiring certain plat applicants to transmit to the Texas Water Development Board (TWDB) and any applicable groundwater conservation district (GCD) information that would be useful in performing GCD activities, conducting regional water planning, maintaining the TWDB's groundwater database, or conducting state studies on groundwater. Under Local Government Code, §212.0101 and §232.0032, a municipal authority responsible for approving plats by ordinance or the commissioner's court of a county by order (respectively) may require a person who submits a plat application for the subdivision of a tract of land for which the source of the water supply intended for the subdivision is groundwater under that land, to have attached to it a statement that is prepared by an engineer licensed to practice in this state or a geoscientist licensed to practice in this state and certifies that adequate groundwater is available for the subdivision.

Local Government Code, §212.0101(b) and §232.0032(b) both require the commission, by rule, to establish the appropriate form and content of a certification to be attached to a plat application. Local Government Code, §212.0101(c) and §232.0032(c), both added by SB 662, require the commission, in consultation with the TWDB, by rule, to require a person who submits a plat to transmit the information to the TWDB and any applicable GCD. SB 662 became effective on September 1, 2007, and requires the commission's rules be adopted before January 1, 2009.

If the use of Chapter 230, Groundwater Availability Certification for Platting, is required by a municipal or county platting authority, plat applicants must provide the Certification of Groundwater Availability for Platting form under §230.3(c) to the municipal or county platting authority. Plat applicants must provide the information, estimates, data, calculations, and determinations required to support the certification to the municipal or county platting authority upon request. Plat applicants are not presently required to provide this information to the commission, the TWDB, or to any applicable GCD. The proposed amendments will require these plat applicants to transmit the data to the TWDB and applicable GCDs. The data will be used for groundwater management evaluation and planning purposes required by Texas Water Code (TWC), Chapter 16 for the TWDB, and TWC, Chapter 36, for the GCDs.

SECTION BY SECTION DISCUSSION

Proposed amendments to §230.1, Applicability, make a conforming citation change and add requirements for plat applicants to transmit information to the executive administrator of the TWDB and any applicable GCD, as added by SB 662, 80th Legislature, 2007. The proposed amendment in subsection (a) changes and conforms the reference from Local Government Code, §232.0031 to §232.0032. The proposed amendments add new subsection (c), Transmittal of Data, to provide the requirements for plat applicants to transmit information to the executive administrator of the TWDB and the applicable GCD or GCDs. If use of Chapter 230 is required by the municipal or county platting authority, proposed subsection (c) requires the plat applicant to: provide copies of the information, estimates, data, calculations, determinations, statements, and the certification described in Chapter 230 to determine groundwater quality, availability, and usability to the executive administrator of the TWDB and the applicable GCDs; and, attest that copies of this information have been provided. The proposed amendments add new Figure: 30 TAC §230.1(c)(2), Transmittal of Data. This form will be used and signed by the plat applicant to attest that copies of information have been transmitted as required by the Local Government Code and Chapter 230. The executive director is allowed to make minor changes to this form which do not conflict with the requirements of the chapter. The commission proposes these amendments to implement Local Government Code, §212.0101(c) and §232.0032(c), as added by SB 662, 80th Legislature, 2007.

Proposed amendment to §230.2, Definitions, adds two new definitions and moves the term "plat applicant" into alphabetical order in the list of definitions. The definition for "Applicable groundwater conservation district or districts" is added as new paragraph (1). An applicable groundwater conservation district would be defined as any district or authority created under Texas Constitution, Article III, Section 52, or Article XVI, Section 59, that has the authority to regulate the spacing of water wells, the production from water wells, or both, and which includes within its boundary any part of the plat applicant's proposed subdivision. The definition for "executive administrator" is added as new paragraph (6) to mean the executive administrator of the TWDB. The commission proposes to add these definitions to implement Local Government Code, §212.0101(c) and §232.0032(c), as added by SB 662, 80th Legislature, 2007. The commission also proposes to move the term "plat applicant" from definition (7) to definition (10) so that the list of terms in §230.2 is in alphabetical order.

Proposed amendment to §230.3, Certification of Groundwater Availability for Platting, adds the requirement for plat applicants to provide a copy of the Certification of Groundwater Availability for Platting form to the executive administrator of the TWDB and to any applicable GCD and update Figure: 30 TAC §230.3(c). This proposed amendment to subsection (b) requires these plat applicants to transmit the certification form to the TWDB and applicable GCDs to use for the groundwater management evaluation and planning purposes required by TWC, Chapters 16 and 36. The first proposed amendment to Figure: 30 TAC §230.3(c) is limited to a conforming statutory citation change on the second line of the "Use of this form" notation. This proposed amendment changes and conforms the reference from Local Government Code, §232.0031 to §232.0032. The second proposed amendment to Figure: 30 TAC §230.3(c) updates the "note" on line 18 by referring users to the most recent State Water Plan for general information on the state's aquifers. The commission proposes this change because the TWDB has added an aquifer and changed aquifer boundaries since the previously referenced report was published in 1995. The commission proposes these amendments to implement Local Government Code, §212.0101(c) and §232.0032(c), as added by SB 662, 80th Legislature, 2007.

Proposed amendment to §230.9, Determination of Groundwater Quality, updates paragraph (3) to reflect the change in state authority for laboratory accreditation and certification from the Texas Department of Health to the TCEQ as part of House Bill 2912, 77th Legislature, 2001. The conforming change in the proposed amendment to paragraph (3) removes the reference to the Texas Department of Health and provides cross references to commission laboratory accreditation and certification rules in 30 TAC Chapter 25, Environmental Testing Laboratory Accreditation and Certification.

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. The TWDB, applicable GCDs, and platting authorities are expected to receive additional groundwater information that will aid them in state and regional water planning activities.

The proposed amendments have two purposes: to implement the provisions of SB 662, 80th Legislature, Regular Session regarding transmission of useful groundwater conservation data to the TWDB and applicable GCDs by plat applicants and to make non-substantive revisions for legal citations to the pertinent parts of the Local Government Code. Under current statute, platting authorities have the option to require a plat applicant to certify that adequate groundwater is available to supply water for a proposed subdivision. Prior rulemakings have established what plat applicants must do and what data must be gathered and submitted to the platting authority if certification is required. Under the proposed rules, the requirement to submit this certification would still be at the discretion of the platting authority. However, if an applicant is required to submit groundwater certification, then the proposed rules would require that the information also be sent to the TWDB and to each GCD in which the proposed subdivision is located. If applicants are allowed to submit groundwater conservation data electronically, there should be no fiscal implications to the applicant, TWDB, or the appropriate GCDs as a result of the proposed rules. If paper submission is required, local governments could see an increase in filing and storage costs. Any increase in these costs is not expected to have a significant fiscal impact on local governments. Increases in filing and storage costs would vary among local governments and depend on each local government's policies and practices. The proposed rules could save GCDs money since they could receive information regarding groundwater availability from plat applicants instead of incurring costs to have separate studies performed to confirm groundwater availability.

PUBLIC BENEFITS AND COSTS

Ms. Chamness also determined that for each year of the first five years the proposed rules are in effect, the public benefit anticipated from the changes seen in the proposed rules will be greater protection of the state's groundwater supply and more efficient management of groundwater resources due to the availability of additional, more detailed groundwater data to state and GCD planners.

Plat applicants can range in size from nationwide, corporate land development companies to individual landowners. Plat applicants submitting groundwater data to the TWDB and the appropriate GCD under the proposed rules could see cost increases, although these are expected to be minimal. The proposed rules will require that plat applicants provide copies of all data required to support certification of groundwater availability to the TWDB and the appropriate GCD. If this data can be submitted electronically to the TWDB and the appropriate GCDs, plat applicants should not see a fiscal impact as a result of the proposed rules. If the plat applicant decides to submit, or is required to submit, paper copies of this data, increased copying expenses could be as much as $20 per copy and increased postage costs could be as much as $5 per copy. The total amount of copying and postage costs would depend on the number of GCDs to which the plat applicant must provide groundwater information.

At this time, staff knows of at least 15 counties that require groundwater certification. Fourteen of these counties contain one or more GCDs within their boundaries. These GCDs include: Bandera County River Authority and Ground Water District; Barton Springs-Edwards Aquifer Conservation District; Blanco-Pedernales GCD; Brazos Valley GCD; Cow Creek GCD; Edwards Aquifer Authority; Clearwater GCD; Guadalupe County GCD; Hays-Trinity GCD; Hill Country Underground Water Conservation District (UWCD); Lost Pines GCD; Medina County GCD; Plum Creek Conservation District; Saratoga UWCD; and, Upper Trinity GCD. Staff does not have the data available to know how many more of the state's platting authorities will require groundwater certification in the future, but it is known that established GCDs cover all or part of 145 counties in the state. An additional four counties are covered by GCDs that have been created by legislative acts but remain subject to confirmation by the voters in the subject counties. If a platting authority not currently requiring groundwater certification decides to require certification, a plat applicant could also incur costs to have groundwater availability certified by a licensed professional engineer or geoscientist and well testing costs to comply with certification criteria set forth in previous rulemakings. Since the criteria for groundwater certification is part of current rule, professional and test well costs are not contained in this fiscal note.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

No adverse fiscal implications are anticipated for small or micro-business plat applicants as a result of the proposed rules if they submit groundwater data to the TWDB and appropriate GCDs electronically. If groundwater data is submitted by sending paper copies to TWDB and GCDs, a small or micro-business could expect to see the same cost increases for copying ($20 per copy) and postage ($5 per copy) as that incurred by a large business. This increase is not considered to be a material increase.

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. It is expected that small or micro-businesses will choose to submit required data to the TWDB and the appropriate GCDs electronically.

LOCAL EMPLOYMENT IMPACT STATEMENT

The commission has reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed rules do not adversely affect a local economy in a material way for the first five years that the proposed rules are in effect.

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the proposed rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the rulemaking is not subject to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in the Texas Administrative Procedure Act. A "major environmental rule" is a rule that is specifically intended to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state.

This rulemaking does not meet the statutory definition of a "major environmental rule" because it is not the specific intent of this rule to protect the environment or reduce risks to human health from environmental exposure. The specific intent of the proposed rulemaking is to implement legislative changes enacted by SB 662, which require certain plat applicants to transmit to the TWDB and any applicable GCD information that would be useful in performing GCD activities, conducting regional water planning, maintaining the TWDB's groundwater database, or conducting studies for the state related to groundwater.

Further, the rulemaking does not meet the statutory definition of a "major environmental rule" because the proposed amendments will not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or public health and safety of the state or a sector of the state. The cost of complying with the proposed amendments is not expected to be significant with respect to the economy as a whole or a sector of the economy, particularly if the plat applicant submits the information electronically. In addition, the proposed amendments could provide a financial benefit to local GCDs, in that the GCDs would receive the plat applicants' data, which would save the time and money required for conducting groundwater availability studies.

Furthermore, the proposed rulemaking does not meet the statutory 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). This section 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. The proposed rulemaking does not meet the four applicability requirements, because the proposed rules: (1) do not exceed a standard set by federal law as there is no federal equivalent for the provisions in the Texas Local Government Code; (2) are specifically required by state law, specifically Local Government Code, §212.0101 and §232.0032 and do not exceed the express requirements of these statutes; (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 as no such federal delegation agreement exists with regard to the proposed rules; and (4) are not an adoption of a rule solely under the general powers of the commission as the proposed rules are required by SB 662.

The commission invites public comment on 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 the proposed amendments and performed an assessment of whether the proposed amendment constitutes a taking under Texas Government Code, Chapter 2007. The primary purpose of the proposed rulemaking is to implement legislative changes enacted by SB 662, which require certain plat applicants to transmit to the TWDB and any applicable GCD information that would be useful in performing GCD activities, conducting regional water planning, maintaining the TWDB's groundwater database, or conducting studies for the state related to groundwater. The proposed amendments would substantially advance this purpose by amending the Chapter 230 rules to incorporate the new statutory requirements.

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 this rulemaking does not relate to or have any impact on an owner's rights to property, nor does the proposed rulemaking reduce the value of property by 25% or more beyond that which would otherwise exist in the absence of the regulations. The proposed amendments will only affect plat applicants who are already required by the county platting authority or municipality to certify that sufficient groundwater is available as the intended water supply. The plat applicants would be required to submit information useful in performing groundwater conservation district activities, conducting regional water planning, maintaining the state's groundwater database, or conducting studies for the state related to groundwater to the applicable GCD and the executive administrator of the TWDB. Therefore, the proposed rulemaking would 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

A public hearing on this proposal will be held in Austin on March 27, 2008, at 2:00 p.m. at the Texas Commission on Environmental Quality Complex located at 12100 Park 35 Circle in Building E, Room 201S. The hearing will be structured to receive oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. 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

Written 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 being submitted via the eComments system. All comments should reference Rule Project Number 2007-045-230-PR. The comment period closes March 31, 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 Kelly Mills, Water Rights Permitting and Availability Section, Water Supply Division at (512) 239-4512.

STATUTORY AUTHORITY

The amendments are proposed under Texas Water Code (TWC), §5.012, which provides that the commission is the agency responsible for implementing the constitution and laws of the state relating to the conservation of natural resources and protection of the environment; TWC, §5.103 and §5.105, which provide the commission with authority to adopt rules; and specific statutory authorization is derived from Local Government Code, §212.0101(b) and §232.0032(b), which require the commission to promulgate rules that establish the appropriate form and content of a certification to be attached to a plat application; and as added by Senate Bill 662, Local Government Code, §212.0101(c) and §232.0032(c), which require the commission, in concert with the Texas Water Development Board (TWDB), to promulgate rules requiring a plat applicant to transmit the information to the TWDB and any applicable GCD.

The proposed amendments implement Local Government Code, §212.0101(c) and §232.0032(c).

§230.1.Applicability.

(a) Subdivisions utilizing groundwater as the source of water supply. In the plat application and approval process, municipal and county authorities may require certification that adequate groundwater is available for a proposed subdivision if groundwater under that land is to be the source of water supply. The municipal or county authority is not required to exercise their authority under Texas Local Government Code, §212.0101 or §232.0032 [ §232.0031 ]. However, if they do exercise their authority, the form and content of this chapter must be used.

(b) Use of this chapter. If required by the municipal or county authority, the plat applicant and the Texas licensed professional engineer or the Texas licensed professional geoscientist shall use this chapter and the attached form to certify that adequate groundwater is available under the land of a subdivision subject to platting under Texas Local Government Code, §212.004 and §232.001 [ 232.001 ]. These rules do not replace other state and federal requirements applicable to public drinking water supply systems. These rules do not replace the authority of counties within designated priority groundwater management areas under Texas Water Code, §35.019, or the authority of groundwater conservation districts under Texas Water Code, Chapter 36.

(c) Transmittal of data. If use of this chapter is required by the municipal or county authority, the plat applicant shall:

(1) provide copies of the information, estimates, data, calculations, determinations, statements, and certification required by §230.8 of this title (relating to Obtaining Site-Specific Groundwater Data), §230.9 of this title (relating to Determination of Groundwater Quality), §230.10 of this title (relating to Determination of Groundwater Availability), and §230.11 of this title (relating to Groundwater Availability and Usability Statements and Certification) to the executive administrator of the Texas Water Development Board and to the applicable groundwater conservation district or districts; and

(2) using the attached form, attest that copies of the information, estimates, data, calculations, determinations, statements, and the certification have been provided to the executive administrator of the Texas Water Development Board and the applicable groundwater conservation district or districts. The executive director may make minor changes to this form that do not conflict with the requirements of these rules.

Figure: 30 TAC §230.1(c)(2)

§230.2.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. If a word or term used in this chapter is not contained in this section, it shall have the same definition and meaning as used in the practices applicable to hydrology and aquifer testing.

(1) Applicable groundwater conservation district or districts--Any district or authority created under Texas Constitution, Article III, Section 52, or Article XVI, Section 59, that:

(A) has the authority to regulate the spacing of water wells, the production from water wells, or both, and

(B) which includes within its boundary any part of the plat applicant's proposed subdivision.

(2) [ (1) ] Aquifer--A geologic formation, group of formations, or part of a formation that contains water in its voids or pores and may be used as a source of water supply.

(3) [ (2) ] Aquifer test--A test involving the withdrawal of measured quantities of water from or addition of water to a well and the measurement of resulting changes in water level in the aquifer both during and after the period of discharge or addition for the purpose of determining the characteristics of the aquifer. For the purposes of this chapter, bail and slug tests are not considered to be aquifer tests.

(4) [ (3) ] Certification--A written statement of best professional judgement or opinion as attested to on the Certification of Groundwater Availability for Platting Form contained under §230.3(c) of this title (relating to Certification of Groundwater Availability for Platting).

(5) [ (4) ] Drinking water standards--As defined in commission rules covering drinking water standards contained in Chapter 290, Subchapter F of this title (relating to Drinking Water Standards Governing Drinking Water Quality and Reporting Requirements for Public Water [ Supply ] Systems).

(6) Executive administrator--The executive administrator of the Texas Water Development Board.

(7) [ (5) ] Full build out--The final expected number of residences, businesses, or other dwellings in the proposed subdivision.

(8) [ (6) ] Licensed professional engineer--An engineer who maintains a current license through the Texas Board of Professional Engineers in accordance with its requirements for professional practice.

[(7) Plat applicant--The owner or the authorized representative or agent seeking approval of a proposed subdivision plat application pursuant to municipal or county authority.]

(9) [ (8) ] Licensed professional geoscientist--A geoscientist who maintains a current license through the Texas Board of Professional Geoscientists in accordance with its requirements for professional practice.

(10) Plat applicant--The owner or the authorized representative or agent seeking approval of a proposed subdivision plat application pursuant to municipal or county authority.

(11) [ (9) ] Requirements applicable to public drinking water supply systems--The requirements contained in commission rules covering public drinking water supply systems in Chapter 290, Subchapter D of this title (relating to Rules and Regulations for Public Water Systems).

§230.3.Certification of Groundwater Availability for Platting.

(a) Certification. The certification required by this chapter must be prepared by a Texas licensed professional engineer or a Texas licensed professional geoscientist.

(b) Submission of information. The plat applicant shall provide to the municipal or county authority , the executive administrator of the Texas Water Development Board, and the applicable groundwater conservation district or districts the certification of adequacy of groundwater under the subdivision required by this chapter.

(c) Form required. This chapter and the following form shall be used and completed if plat applicants are required by the municipal or county authority to certify that adequate groundwater is available under the land to be subdivided. The executive director may make minor changes to this form that do not conflict with the requirements of these rules.

Figure: 30 TAC §230.3(c)

[ Figure: 30 TAC §230.3(c) ]

§230.9.Determination of Groundwater Quality.

(a) Water quality analysis. Water samples shall be collected near the end of the aquifer test for chemical analysis. Samples shall be collected from each aquifer being considered for water supply for the proposed subdivision and reported as specified in §230.3(c) of this title (relating to Certification of Groundwater Availability for Platting).

(1) For proposed subdivisions where the anticipated method of water delivery is from an expansion of an existing public water supply system or a new public water supply system, the samples shall be submitted for bacterial and chemical analysis as required by Chapter 290, Subchapter F of this title (relating to Drinking Water Standards Governing Drinking Water Quality and Reporting Requirements For Public Water [ Supply ] Systems).

(2) (No change.)

(3) Conductivity and pH values may be measured in the field, and the other constituents shall be analyzed in a laboratory accredited by the agency according to Chapter 25, Subchapters A and B of this title (relating to General Provisions and Environmental Testing Laboratory Accreditation, respectively) or certified by the agency according to Chapter 25, Subchapters A and C of this title (relating to General Provisions and Environmental Testing Laboratory Certification, respectively) [ Texas Department of Health approved laboratory using methods approved by the commission ].

(b) Submission of information. The information, data, and calculations required by this section shall be made available to the municipal or county authority, if requested, to document the requirements of this section as part of the plat application.

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 February 15, 2008.

TRD-200800956

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 30, 2008

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

The Texas Commission on Environmental Quality (TCEQ or commission) proposes amendments to §§293.11, 293.32, 293.41, 293.63, 293.201, and 293.202.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES

The commission has the statutory responsibility to create, supervise and dissolve certain water and water-related districts and to review the sale and issuance of bonds for district improvements in accordance with Texas Water Code (TWC), Chapters 12 and 49 through 67. Additionally, commission oversight of district bonds may include review of compliance with bidding procedures allowed by Local Government Code, Chapter 271. The commission oversees approximately 1,300 active and approximately 500 inactive water districts in Texas. Chapter 293 of the commission's rules governs the creation, supervision, and dissolution of all general and special law districts and the conversion of certain districts. Chapter 293 also governs the commission's review of bond applications by districts relating to engineering standards and economic feasibility of district construction project design and completion.

During the 80th Legislative Session, 2007, House Bill (HB) 576, HB 1127, HB 1886, HB 2984, HB 3378, HB 3770, and Senate Bill (SB) 657 were passed which amended TWC, Chapters 49, 53, and 54, and Local Government Code, Chapter 271. The proposed rulemaking would establish new requirements or revise existing requirements relating to the administration of water districts and the commission's supervision over districts' actions.

HB 576, 80th Legislative Session, 2007, amends TWC, §49.271(c) to require that a district must accept a bid bond as a bid deposit if a contract is over $250,000.

HB 1127, 80th Legislative Session, 2007, amends TWC, §49.4645(a) to allow districts that are outside of planned community of at least 15,000 acres and within Montgomery County to issue bonds supported by taxes to fund recreational facilities.

HB 1886, 80th Legislative Session, 2007, amends Local Government Code, Chapter 271 to add Subchapter J to allow a local governmental entity, as defined in the bill, limited use of a design-build process to construct defined civil works projects.

HB 2984, 80th Legislative Session, 2007, amends TWC, §53.063 to revise the qualifications to be a supervisor on a board of a Fresh Water Supply District (FWSD), except for a FWSD located wholly or partly in Denton County.

HB 3378, 80th Legislative Session, 2007, amends TWC, §54.016 to add subsections (i) and (j) to allow a city with a certain population, when consenting to the creation of a district or annexation of land by a district, to require that a district's water system meets the fire flow requirements adopted by the city.

HB 3770, 80th Legislative Session, 2007, amends TWC, §54.234 to: allow a petitioner seeking creation of a municipal utility district (MUD) to also request road powers at the time of creation; delete the requirement to have taxing authority before acquiring road powers; delete the requirement for preliminary plan approval by the Texas Transportation Commission; and, define the types of roads that can be acquired, constructed, and financed by a MUD, and conveyed to a municipality, county, or state for operation and maintenance.

Senate Bill (SB) 657, 80th Legislative Session, 2007, amends: TWC, §49.271(c) to increase from $25,000 to $50,000 the threshold for which a bidder is required to submit a security deposit; TWC, §49.273(d), (e), and (f) to increase thresholds from $25,000 to $50,000 for the requirement to advertise and from $15,000 to $25,000 for the requirement to solicit at least three competitive bids; and, TWC, §49.273 to add subsection (m) to allow the board of a special law district to elect to contract in accordance with TWC §49.273, even if it conflicts with provisions in the district's special law.

SECTION BY SECTION DISCUSSION

§293.11. Information Required to Accompany Applications for Creation of Districts.

The commission proposes to amend §293.11(a)(3)(B) to reflect that a city, in consenting to the creation of a district, may impose a restriction requiring that a district's system meet fire flow requirements. The commission proposes this change to implement TWC, §54.016(i), as added by HB 3378, 80th Legislative Session, 2007. The change made by HB 3378, 80th Legislative Session, 2007, to add TWC, §54.016(i) applies to a city with a population of 500,000 or more located within a county with a population of at least 1.4 million and with the county also having two or more cities with a population of at least 300,000.

The commission proposes to amend §293.11(d) to: add §293.11(d)(11) to reflect that a petitioner seeking creation of a MUD may also request that road powers be granted, and renumber existing §293.11(d)(11) as §293.11(d)(12). The commission proposes this change to implement TWC, §54.234, as amended by HB 3770, 80th Legislative Session, 2007.

§293.32. Qualifications of Directors.

The commission proposes to amend §293.32(a)(1) to reflect revised qualifications for a supervisor on a board of a FWSD, except for a FWSD located wholly or partly in Denton County. The commission proposes this change to implement TWC, §53.063, as amended by HB 2984, 80th Legislative Session, 2007.

§293.41. Approval of Projects and Issuance of Bonds.

The commission proposes to amend §293.41(e) to reflect that a district located outside of a planned community of at least 15,000 acres and wholly or partly within Montgomery County may issue bonds supported by taxes to fund recreational facilities. The commission proposes this change to implement TWC, §49.4645, as amended by HB 1127, 80th Legislative Session, 2007.

§293.63. Contract Documents for Water District Projects.

The commission proposes to amend §293.63(4) to reflect that a district must accept a bid bond, meeting all applicable requirements, as a bid deposit if a contract is over $250,000. The commission proposes this change to implement TWC, §49.271(c), as amended by HB 576, 80th Legislative Session, 2007.

The commission proposes to amend §293.63(4) to reflect an increase in the threshold from $25,000 to $50,000 for which a bidder is required to submit a security deposit. The commission proposes this change to implement TWC, §49.271(c), as amended by SB 657, 80th Legislative Session, 2007.

The commission proposes to add §293.63(8) to reflect: an increase in the threshold from $25,000 to $50,000 for the requirement to advertise a district project; an increase in the threshold from $15,000 to $25,000 for the requirement to solicit at least three competitive bids; and a change in the notice publication requirement from three to two consecutive weeks. The commission proposes this change to implement TWC, §49.273(d), (e), and (f), as amended by SB 657, 80th Legislative Session, 2007.

The commission proposes to add §293.63(9) to reflect that the board of a special law district may elect to contract in accordance with TWC, §49.273, even if it conflicts with provisions in the district's special law. The commission proposes this change to implement TWC, §49.273(m), as added by SB 657, 80th Legislative Session, 2007.

The commission proposes to add §293.63(10) to reflect that a district with a population of more than 100,000 may use on a limited basis the design-build process to construct defined civil works projects. The commission proposes this change to implement Local Government Code, Chapter 271, Subchapter J, as added by HB 1886, 80th Legislative Session, 2007. The changes made by HB 1886, 80th Legislative Session, 2007, to add Local Government Code, Chapter 271, Subchapter J, regarding districts would apply to less than one percent of the total number of water districts subject to Chapter 293.

§293.201. District Acquisition of Road Utility District Powers.

The commission proposes to amend §293.201 to reflect that road powers may be obtained at the time of creation of a MUD in addition to the existing provision for obtaining road powers after creation, and state the eligibility of roads that can be acquired, constructed, and financed by a MUD, and conveyed to a municipality, county, or state for operation and maintenance. The commission proposes this change to implement TWC, §54.234, as amended by HB 3770, 80th Legislative Session, 2007.

§293.202. Application Requirements for Commission Approval.

The commission proposes to amend §293.202 to: place existing requirements under new subsection (a) and modifying those requirements to reflect that road powers in lieu of road utility district powers can be obtained; delete the requirement that a MUD have taxing authority to obtain road powers; and delete the requirement that preliminary plans be approved by the Texas Transportation Commission. The commission proposes this change to implement TWC, §54.234, as amended by HB 3770, 80th Legislative Session, 2007.

The commission proposes to amend §293.202 to add subsection (b) to reflect that road powers may be obtained at the time of creation of a MUD with applicable application requirements. The commission proposes this change to implement TWC, §54.234, as amended by HB 3770, 80th Legislative Session, 2007.

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. The agency will implement the proposed rules utilizing existing agency resources.

During the 80th Legislature, Regular Session, HB 576, HB 1127, HB 1886, HB 2984, HB 3378, HB 3770, and SB 657 were passed to amend TWC, Chapters 49, 53, and 54, and Local Government Code, Chapter 271. The proposed rulemaking would revise existing requirements or establish new requirements required by this legislation relating to the administration of water districts and the commission's supervision over the actions of these local governments. Specifically, the proposed rulemaking would: require the acceptance of bid bonds for contracts over $250,000; allow certain districts in Montgomery County to issue tax supported bonds to fund recreational facilities; allow the construction of defined civil works projects under certain conditions; revise the qualifications for supervisors on the board of certain FWSDs except for those in Denton County; require water districts to adopt municipal fire flow requirements under certain conditions; allow the request of authorization to build roads under certain conditions at the time there is a request to create MUD; and increase the required threshold amounts for the solicitation of competitive bids and security deposits.

There are approximately 1,300 active water districts, which include 718 MUDs in the state. Additionally, staff estimates that it processes 50 MUD creations per year. The proposed rules are not expected to have a significant fiscal impact on these water districts because they are largely voluntary in nature. Water districts in Montgomery County can choose whether they wish to construct new recreational facilities. Municipalities can choose to consent to the creation of a water district or to a district's annexation of land. Provisions of the proposed rules that govern the conduct of purchasing decisions should provide districts with more efficient, protective administrative processes and save an estimated $2,000 in advertising costs by not having to solicit bids on projects costing less than $50,000. If a petitioner seeking creation of a MUD also requests road powers at the same time, then this could save a MUD that might later solicit the same road powers about $30,100 to prepare and submit an application.

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 and increased local control of water district actions.

The proposed rules mainly affect local governments. However, a petition for the creation of a MUD may incur costs of approximately $5,000 to solicit road powers at the same time. This is not expected to have a significant fiscal impact since it is expected that these costs would be recouped through the sale of homes or land in the development.

Businesses that might build recreational facilities in Montgomery County are expected to benefit from the proposed rules since districts in this county could decide to provide more recreational facilities to their constituents.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

No adverse fiscal implications are anticipated for small or micro-businesses that might develop land and apply for MUD creation. Any costs incurred by small or micro-businesses that might develop land and submit an application for road powers at the time of applying for the MUD is expected to recoup application fees for road development when homes or land are sold. Small or micro-businesses building recreational facilities in Montgomery County are expected to benefit from increased business revenues since the proposed rules provide districts with more powers to build these facilities.

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 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 Texas Administrative Procedures Act. The act defines a "major environmental rule" as "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." Texas Government Code §2001.0225(g)(3).

The specific intent of the proposed rules contained herein is to amend the rules to be consistent with recent legislative enactments. Specifically, the proposed rules address the administration of water districts relating to the bidding requirements (HB 576), the use of tax bonds to fund recreational facilities (HB 1127), the ability of a government entity to use a design-build process to construct civil works projects (HB 1886), the qualifications of a FWSD's supervisors (HB 2984), a city conditioning consent on fire flow requirements (HB 3378), acquisition of road powers by a MUD (HB 3770), as well as other bidding requirements (SB 657). The commission has determined that none of the amendments made to implement the foregoing legislation are made with the specific intent to protect the environment or reduce risks to human health from environmental exposure. Accordingly, the rulemaking is not subject to Texas Government Code, §2001.0225 because it does not meet the definition of "major environmental rule" as defined in the act.

The commission invites public comment of the draft regulatory impact analysis determination during the public comment period.

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 these proposed rules is to implement certain recently enacted legislation relating to the administration of districts. The proposed rules address the administration of water districts relating to the bidding requirements (HB 576), the use of tax bonds to fund recreational facilities (HB 1127), the ability of a government entity to use a design-build process to construct civil works projects (HB 1886), the qualifications of a FWSD's supervisors (HB 2984), a city conditioning consent on fire flow requirements (HB 3378), acquisition of road powers by a MUD (HB 3770), as well as other bidding requirements (SB 657). This rulemaking substantially advances this stated purpose by making the commission's rules consistent with the new statutory language. The commission's analysis indicates that Texas Government Code, Chapter 2007 does not apply to these proposed rules because this action does not affect private real property.

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 rulemaking does not burden nor restrict the owner's right to property. More specifically, these rules implement legislation addressing to the administration of districts relating to the bidding requirements (HB 576), the use of tax bonds to fund recreational facilities (HB 1127), the ability of a government entity to use a design-build process to construct civil works projects (HB 1886), the qualifications of a FWSD's supervisors (HB 2984), a city conditioning consent on fire flow requirements (HB 3378), acquisition of road powers by a MUD (HB 3770), as well as other bidding requirements (SB 657). These provisions do not impose 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 rulemaking and found the proposal is a rulemaking identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(4) relating to rules subject to the Coastal Management Program, and will, therefore, require that goals and policies of the Texas Coastal Management Program (CMP) be considered during the rulemaking process.

The commission reviewed this rulemaking for consistency with the CMP goals and policies in accordance with the regulations of the Coastal Coordination Council and determined that the rulemaking is 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.

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

A public hearing on this proposal will be held in Austin on March 27, 2008, at 10:00 a.m. at the Texas Commission on Environmental Quality Complex located at 12100 Park 35 Circle in Building E, Room 201S. The hearing will be structured to receive oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. 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

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 submitted via the eComments system. All comments should reference Rule Project Number 2007-047-293-PR. The comment period closes March 31, 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 Randy Nelson, Water Supply Division, at (512) 239-6160.

Subchapter B. CREATION OF WATER DISTRICTS

30 TAC §293.11

STATUTORY AUTHORITY

This amendment is proposed under the authority of Texas Water Code (TWC), §54.016, as amended by House Bill (HB) 3378, which provides that when city consent is required for the creation of a district, the city may require the district's system to meet fire flow requirements; and TWC §54.234, as amended by HB 3770, which provides that a MUD can acquire road powers during the creation process; and TWC, §5.103 and §5.105, which provide the Texas Commission on Environmental Quality with the authority to adopt any rules necessary to carry out its powers and duties under the Texas Water Code and other laws of the state of Texas, to establish and approve all general policy of the commission.

The proposed amendment implements TWC, §§5.103, 54.016(i), and 54.234.

§293.11.Information Required to Accompany Applications for Creation of Districts.

(a) Creation applications for all types of districts, excluding groundwater conservation districts, shall contain the following:

(1) - (2) (No change.)

(3) if city consent was obtained under paragraph (2) of this subsection, provide the following:

(A) (No change.)

(B) evidence that the city consent does not place any conditions or restrictions on a district other than those permitted by Texas Water Code (TWC), §54.016(e) and (i) ;

(4) - (11) (No change.)

(b) - (c) (No change.)

(d) Creation applications for TWC, Chapter 54, Municipal Utility Districts, shall contain items listed in subsection (a) of this section and the following:

(1) - (9) (No change.)

(10) if the application includes a request for approval of a fire plan, information meeting the requirements of §293.123 of this title, except for a certified copy of a district board resolution, references to a district board having adopted a plan, and the additional $100 filing fee; [ and ]

(11) if the petition within the application includes a request for road powers, information meeting the requirements of §293.202(b) of this title (relating to Application Requirements for Commission Approval); and

(12) [ (11) ] other data and information as the executive director may require.

(e) - (j) (No change.)

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

Filed with the Office of the Secretary of State on February 15, 2008.

TRD-200800945

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 30, 2008

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

30 TAC §293.32

STATUTORY AUTHORITY

The amendment is proposed under the authority of Texas Water Code (TWC), §53.063, as amended by House Bill (HB) 2984, which provides revised qualifications for a supervisor on a board of a FWSD, except one located wholly or partly in Denton County; and, TWC, §5.103, and §5.105, which provide the Texas Commission on Environmental Quality (commission) with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state and to establish and approve all general policy of the commission.

The proposed amendment implements TWC, §53.063 and §5.103.

§293.32.Qualifications of Directors.

(a) Unless otherwise provided, an applicant for appointment as a director must be at least 18 years old, a resident citizen of Texas, and either own land subject to taxation in the district or be a qualified voter within the district.

(1) A director of a fresh water supply district created under Texas Water Code, Chapter 53 : [ must be a registered voter of the district but need not own land subject to taxation in the district. ]

(A) must be:

(i) a resident of this state;

(ii) an owner of taxable property in the district; and

(iii) at least 18 years of age; or

(B) if the district is located wholly or partly within Denton County must be a registered voter of the district but need not own land subject to taxation in the district.

(2) - (8) (No change.)

(b) (No change.)

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

Filed with the Office of the Secretary of State on February 15, 2008.

TRD-200800946

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 30, 2008

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

30 TAC §293.41

STATUTORY AUTHORITY

The amendment is proposed under the authority of Texas Water Code (TWC), §49.4645, as amended by House Bill (HB) 1127, which provides that a district located outside of planned community of at least 15,000 acres and wholly or partly within Montgomery County may issue bonds supported by taxes to fund recreational facilities; and, TWC, §5.103, and §5.105 which provide the Texas Commission on Environmental Quality with the authority to adopt any sections necessary to carry out its powers and duties under the Texas Water Code and other laws of the state of Texas and to establish and approve all general policy of the commission.

The proposed amendment implements TWC, §49.4645 and §5.103.

§293.41.Approval of Projects and Issuance of Bonds.

(a) - (d) (No change.)

(e) A district located within Bastrop, Bexar, Brazoria, Fort Bend, Galveston, Harris, Montgomery (except for land within a planned community of at least 15,000 acres), Travis, Waller, or Williamson Counties may submit bond applications, which include recreational facilities that are supported by taxes, in accordance with TWC, §49.4645.

(1) - (6) (No change.)

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

Filed with the Office of the Secretary of State on February 15, 2008.

TRD-200800947

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 30, 2008

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

30 TAC §293.63

STATUTORY AUTHORITY

The amendment is proposed under the authority of the Texas Water Code (TWC), §49.271(c), as amended by House Bill (HB) 576, which provides that a district must accept a bid bond, meeting all applicable requirements, as a bid deposit if a contract is over $250,000; and as amended by SB 657, which increases the threshold from $25,000 to $50,000 for which a bidder is required to submit a security deposit; and TWC, §49.273(d), (e), and (f), as amended by SB 657, which increases the threshold from $25,000 to $50,000 the requirement to advertise a district project, increases the threshold from $15,000 to $25,000 the requirement to solicit at least three competitive bids, and a change in the notice publication requirement from three to two consecutive weeks; and TWC, §49.273(m), as added by SB 657, which provides that the board of a special law district may elect to contract in accordance with TWC, §49.273 even if it conflicts with provisions in the district's special law; and, Local Government Code, Chapter 271, Subchapter J, as added by HB 1886, which provides that a district with a population of more than 100,000 may use on a limited basis the design-build process to construct defined civil works projects; and, TWC, §5.103 and §5.105, which provide the Texas Commission on Environmental Quality with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state and to establish and approve all general policy of the commission.

The proposed amendment implements TWC, §49.271(c), and §5.103.

§293.63.Contract Documents for Water District Projects.

Contract documents for water district construction projects shall be prepared in general conformance with those adopted and recommended by the Texas Section of the American Society of Civil Engineers (latest revision). The following specific requirements must apply.

(1) - (3) (No change.)

(4) For contracts over $50,000 [ $25,000 ] the district shall require bidders to submit certified or cashier's checks or a bid bond issued by a surety legally authorized to do business in this state in an amount of at least 2.0% of the total amount of the bid. For a contract greater than $250,000 the district must accept a bid bond if it meets all requirements. If cashier's checks are required, the checks for all bidders except the three most qualified bidders shall be returned within three days of the bid opening.

(5) - (7) (No change.)

(8) For contracts over $50,000, a district's board shall advertise the project once a week for two consecutive weeks. For contracts over $25,000 but not more than $50,000, a district's board shall solicit written competitive bids on the project from at least three bidders. For contracts not more than $25,000, a district's board is not required to advertise or seek competitive bids.

(9) A board of a special law district may elect to contract in accordance with the requirements in Texas Water Code, §49.273, even if those requirements conflict with provisions in the district's special law.

(10) A district with a population of more than 100,000 may utilize the design-build procedure for limited projects as provided in Local Government Code, Chapter 271, Subchapter J.

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 February 15, 2008.

TRD-200800948

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 30, 2008

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

30 TAC §293.201, §293.202

STATUTORY AUTHORITY

The amendments are proposed under the Texas Water Code (TWC), §54.234, as amended by House Bill (HB) 3770, which provides that road powers may be obtained at the time of creation of a MUD in addition to the existing provision for obtaining road powers after creation, and to state the eligibility of roads that can be acquired, constructed, and financed by a MUD, and conveyed to a municipality, county, or state for operation and maintenance; and, TWC, §5.103 and §5.105, which provide the Texas Commission on Environmental Quality with the authority to adopt any sections necessary to carry out its powers and duties under the Texas Water Code and other laws of the state of Texas and to establish and approve all general policy of the commission.

The proposed amendments implement TWC, §54.234, as amended by HB 3770, and TWC, §5.103.

§293.201.District Acquisition of Road [ Utility District ] Powers.

(a) Texas Water Code (TWC), §54.234, authorizes a municipal utility district , or any petitioner seeking the creation of a municipal utility district, [ with the power to levy taxes ] to petition the commission to acquire road [ the ] powers for eligible roads under TWC, §54.234(b), which are conveyed to this state, a county, or municipality for operation and maintenance [ granted under Texas Transportation Code, Chapter 441, to road utility districts ].

(b) [ A municipal utility district may petition the commission to acquire the road utility district powers authorized in TWC, §54.235. ] This section and §293.202 of this title (relating to Application Requirements for Commission Approval) provide the requirements for petitioning the commission for road [ utility district ] powers.

§293.202.Application Requirements for Commission Approval.

(a) A conservation and reclamation district, operating under Texas Water Code (TWC), Chapter 54, [ and which has the power to levy taxes, ] may submit to the executive director of the commission an application for road [ utility district ] powers, which shall include the following documents:

(1) a petition or written request that will include a detailed narrative statement of the reasons for requesting road [ utility district ] powers and the reasons why such powers will be of benefit to the district and to the land that is included in the district, signed by the president of the board of directors of the district;

(2) a certified copy of the resolution of the governing board of the district authorizing the district to petition the commission for road [ utility district ] powers;

(3) a certification that the district is operating under TWC, Chapter 54, [ and has the power to levy taxes, ] with proper statutory references;

(4) evidence that the petition or written request to the commission requesting road [ utility district ] powers was filed with the city secretary or clerk of each city, in whose corporate limits or extraterritorial jurisdiction that any part of the district is located, concurrently with filing its application for such powers with the commission;

(5) a certified copy of the latest audit of the district performed under TWC, §§49.191 - 49.194;

(6) for districts that have not submitted an annual audit, a financial statement of the district, including a detailed itemization of all assets and liabilities showing all balances in effect not later than 30 days before the date that the district submits its request for approval with the executive director;

(7) [ a certified copy of ] preliminary plans for all the facilities to be constructed, acquired, or improved by the district[ , which the district is required to submit to the governmental entity to which it proposes to convey district facilities by Texas Transportation Code, §441.013 ];

(8) a cost analysis and detailed cost estimate of the proposed road facilities to be constructed, acquired, or improved by the district [ under road utility district powers ] with a statement of the amount of bonds estimated to be necessary to finance the proposed construction, acquisition, and improvement;

(9) a narrative statement that will analyze the effect of the proposed facilities upon the district's financial condition and will demonstrate that the proposed construction, acquisition, and improvement is financially and economically feasible for the district;

(10) any other information that may be required by the executive director; and

(11) a filing fee in the amount of $100 plus the cost of the required notice.

(b) A petition for creation of a district submitted under §293.11(a) and (d) of this title (relating to Information Required to Accompany Applications for Creation of Districts) may also include a request for road powers, with information required under subsection (a)(4), and (7) - (9) of this section, to also be provided.

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 February 15, 2008.

TRD-200800949

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 30, 2008

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