PART 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 39. PUBLIC NOTICE
SUBCHAPTER J. PUBLIC NOTICE OF WATER QUALITY APPLICATIONS AND WATER QUALITY MANAGEMENT PLANS
30 TAC §39.551
The Texas Commission on Environmental Quality (commission,
agency, or TCEQ) proposes an amendment to §39.551.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULE
This rulemaking amends §39.551(c)(2) and adds §39.551(c)(2)(A)
and (B) to state that if the notice of receipt of application and
intent to obtain a permit (NORI) is mailed more than two years before
the date that the notice of application and preliminary decision (NAPD)
is scheduled to be mailed, then the applicant must prepare an updated
landowner list and map, and file them with the commission. The proposed
rule also allows the Executive Director to require an updated landowners
map and mailing addresses for the NAPD for any water quality matter
in which the Executive Director determines that circumstances have
changed to warrant this new information. The commission is proposing
this change to ensure that when the NAPD is mailed, it is mailed to
the most current list of potentially affected persons.
Corresponding rulemaking is published in this issue of the
Texas Register and includes changes to 30 TAC Chapter 281, Applications Processing, and Chapter 295, Water Rights,
Procedural.
This proposed rule will not apply to any applicant for a water
quality permit if the NAPD has been mailed at the time that the rules
become effective.
SECTION DISCUSSION
The commission proposes administrative changes throughout the proposed
rulemaking to reflect the agency's current practices and to conform
to Texas Register and agency guidelines. These changes include updating
agency references, updating cross-references, and correcting typographical,
spelling, and grammatical errors.
The proposed amendment to §39.551 requires applicants to supply
an updated landowner map and mailing addresses to the chief clerk
if it has been more than two years since the NORI was mailed to the
landowner list. This requirement has been added to increase the accuracy
of the mailing list for the NAPD if significant time has elapsed between
the NORI and the NAPD. The updated list will allow new potentially
affected landowners to participate in the permitting process who otherwise
might not have been aware of the pending permit application. The original §39.551(c)(2)
is divided into two subparagraphs. Subparagraph (A) contains the language
in the original §39.551(c)(2). Subparagraph (B) contains the
language of the proposed new requirement.
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 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 rule. The agency
will need to develop a method to track the time elapsed between mailing
a NORI and a NAPD when dealing with wastewater permit applications.
The agency will also need to monitor receipt of updated landowner
information and new mailing labels for new or changed addresses. These
tasks will be accomplished using currently available agency resources.
Other state agencies and local governments applying for new or amended
wastewater permits will have to submit updated landowner maps and
address labels to the agency if permit processing takes more than
two years. Cost increases to provide such information are not expected
to be significant.
The proposed rulemaking is part of corresponding rule proposals
regarding when public notice is mailed or published that also includes
amendments to Chapters 281 and 295. The fiscal impacts of the proposed
amendments to those chapters are detailed in separate fiscal notes.
The proposed amendment to Chapter 39 would state that if a NORI
is mailed more than two years before the date that a NAPD is scheduled
to be mailed, the wastewater permit applicant must provide and file
with the commission an updated landowner list and landowner map. The
proposed rules also allow the Executive Director to require this information
under certain circumstances. Other minor administrative changes (updating
agency references and cross-references, and correcting typographical,
spelling, and grammatical errors) are also included in the proposed
amendment to Chapter 39.
Using a salary rate provided from Chamber of Commerce data of $15
per hour for administrative and office support staff, the agency estimates
that state agencies and local governments required to obtain and provide
updated maps and address lists under the proposed amendment could
see costs increase by $90 to $150 per wastewater permit application.
Of the estimated 1,400 governmental entities that may apply for
wastewater permits, only a few will see a permit delay of two years
or more. Of the 171 applications for new or amended permits for all
regulated parties that were pending on April 1, 2009, staff estimates
that approximately 12 would be required to submit updated maps and
addresses.
PUBLIC BENEFITS AND COSTS
Nina Chamness also determined that for each year of the first five
years the proposed rule is in effect, the public benefit anticipated
from the changes seen in the proposed rule will be more accurate communication
regarding wastewater permits by notifying the most current population
potentially affected by a wastewater permit application. Some potentially
affected parties may be newcomers to the population if more than two
years elapse between the mailing of the NORI and the NAPD.
Businesses or individuals affected by the proposed amendment for
notice requirements could see costs increase by $90 to $150 per wastewater
permit application if they are required to obtain and provide updated
maps and address lists. This cost increase is not expected to have
a significant fiscal impact. Also, of the 171 applications for new
or amended permits for all regulated parties pending on April 1, 2009,
staff estimates that approximately 12 would be required to submit
updated maps and addresses.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
No significant adverse fiscal implications are anticipated for
small or micro-businesses as a result of the proposed rule. If more
than two years elapse between the mailing of the NORI and the NAPD,
a small business that applies for a new or amended wastewater permit
will be required to obtain and provide updated maps and address lists
under the proposed rule. This could increase costs by approximately
$90 to $150 per wastewater permit application. Staff does not anticipate
that many small or micro-businesses will be affected by the proposed rule.
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 impact a small or micro-business
in a material way for the first five years that the proposed rule
is in effect. Cost increases are expected to be small (approximately
$90 to $150 per wastewater permit application), and only a small number
of entities statewide are expected to experience any cost increase.
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 evaluated the proposed amendment and performed an
analysis of whether the proposed amendment requires a regulatory impact
analysis under Texas Government Code, §2001.0225. The proposed
amendment is not a "major environmental rule" under Texas Government
Code, §2001.0225 because the specific intent of the rulemaking
is not to protect the environment or reduce risks to human health
from environmental exposure, and it does not 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 purpose of this rulemaking is to require
updated landowner lists and maps for NAPDs that are mailed more than
two years after the NORI for water quality and to allow the Executive
Director to require updated lists and maps for the NAPD for any water
quality matter in which the Executive Director determines that circumstances
have changed to warrant this new information. The small costs associated
with these updated lists and maps would not 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. Therefore,
no regulatory impact analysis is required under Texas Government Code, §2001.0225
for this rulemaking.
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 amendment and performed an
analysis of whether the proposed amendment constitutes a taking under
Texas Government Code, Chapter 2007. The specific purpose of the proposed
amendment is to provide for adequate notice to potentially affected
persons for water quality permits. The proposed amendment would substantially
advance this stated purpose by requiring applicants to update their
landowner lists and maps if the NAPD is mailed more than two years
after the NORI and allowing the Executive Director to require updated
lists and maps for the NAPD for any water quality matter in which
the Executive Director determines that circumstances have changed
to warrant this new information. Promulgation and enforcement of the
proposed amendment would be neither a statutory nor a constitutional
taking of private real property. Specifically, the subject proposed
regulations do not affect a landowner's rights in private real property
because this rulemaking does not burden (constitutionally) nor restrict
or limit the owner's right to property and reduce its value by 25%
or more beyond that which would otherwise exist in the absence of
the regulations. In other words, this rulemaking is procedural and
does not impact real property. There are no other reasonable or practicable
alternatives to this rulemaking.
Written comments on the draft takings impact analysis determination
may be submitted to the contact person at the address listed under
the SUBMITTAL OF COMMENTS section of this preamble.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rulemaking and found that
the proposal is subject to the Texas Coastal Management Program (CMP)
in accordance with the Coastal Coordination Act, Texas Natural Resources
Code, §§33.201 et seq.,
and therefore must be consistent with all applicable CMP goals and
policies. 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 with the
Coastal Coordination Act may be submitted to the contact person at
the address listed under the SUBMITTAL OF COMMENTS section of this
preamble.
ANNOUNCEMENT OF HEARING
The commission will hold a public hearing on this proposal in Austin
on August 18, 2009 at 10:00 a.m. in Building E, Room 201S, at the
commission's central office located at 12100 Park 35 Circle. The hearing
is structured for the receipt of oral or written comments by interested
persons. Individuals may present oral statements when called upon
in order of registration. Open discussion will not be permitted during
the hearing; however, commission staff members will be available to
discuss the proposal 30 minutes prior to the hearing.
Persons who have special communication or other accommodation needs
who are planning to attend the hearing should contact Jessica Rawlings,
Office of Legal Services at (512) 239-0177. Requests should be made
as far in advance as possible.
SUBMITTAL OF COMMENTS
Written comments may be submitted to Jessica Rawlings, 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 2009-028-295-LS. The comment period closes August 24, 2009.
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 Robin Smith, Environmental
Law Division, (512) 239-0463; Sherry Smith, Water Quality Division,
(512) 239-0571; or Ronald Ellis, Water Supply Division, (512) 239-1282.
STATUTORY AUTHORITY
The amendment is proposed under Texas Water Code, §5.102,
concerning General Powers, §5.103, concerning Rules, and §5.105,
concerning General Policy, which authorize the commission to adopt
rules as necessary to carry out its power and duties under the Texas
Water Code. The amendment is also proposed under Texas Water Code, §5.553,
which provides notice requirements for water quality permits; Texas
Water Code, §26.028, which provides for commission action on
a water quality permit application after notice; and Texas Water Code, §26.121,
which provides that certain discharges of waste are prohibited unless
authorized by the commission.
The proposed amendment implements Texas Water Code, §§5.102,
5.103, 5.105, 5.553, 26.028, and 26.121.
§39.551.Application for Wastewater Discharge Permit, Including Application for the Disposal of Sewage Sludge or Water Treatment Sludge.
(a) Applicability. This section applies to applications
for wastewater discharge permits, including disposal of sewage sludge
or water treatment sludge applications that are declared administratively
complete on or after September 1, 1999. This subchapter does not apply
to registrations and notifications for sludge disposal under §312.13
of this title (relating to Actions and Notice).
(b) Notice of receipt of application and intent to obtain permit.
(1) Notice under §39.418 of this title (relating
to Notice of Receipt of Application and Intent to Obtain Permit) is
required to be published no later than 30 days after the executive
director deems an application administratively complete. This notice
must contain the text as required by §39.411(b)(1) - (9) and
(12) of this title (relating to Text of Public Notice). In addition
to the requirements of §39.418 of this title, the chief clerk
shall mail notice to the School Land Board if the application will
affect lands dedicated to the permanent school fund. The notice shall
be in the form required by Texas Water Code, §5.115(c).
(2) Mailed notice to adjacent or downstream landowners
is not required for:
(A) an application to renew a permit;
(B) an application for a new Texas Pollutant Discharge
Elimination System (TPDES) permit for a discharge authorized by an
existing state permit issued before September 14, 1998 for which the
application does not propose any term or condition that would constitute
a major amendment to the state permit under §305.62 of this title
(relating to Amendments [
(C) an application for a new permit or major amendment
to a TPDES permit that authorizes the discharges from a municipal
separate storm sewer system.
(3) For permits listed in paragraph [
(c) Notice of application and preliminary decision.
Notice under §39.419 of this title (relating to Notice of Application
and Preliminary Decision) is required to be published after the chief
clerk has mailed the preliminary decision and the Notice of Application
and Preliminary Decision to the applicant. This notice must contain
the text required by §39.411(b)(1) - (3), (5) - (7), (9), and
(12), and (c)(2) - (6) of this title. In addition to §39.419
of this title, for all applications except applications to renew permits,
the following provisions apply.
(1) The applicant shall publish notice of application
and preliminary decision at least once in a newspaper regularly published
or circulated within each county where the proposed facility or discharge
is located and in each county affected by the discharge. The executive
director shall provide to the chief clerk a list of the appropriate
counties, and the chief clerk shall provide the list to the applicant.
(2) The chief clerk shall mail notice to the persons
listed in §39.413 of this title (relating to Mailed Notice).
(A) For any application involving an average
daily discharge of five million gallons or more, in addition to the
persons listed in §39.413 of this title, the chief clerk shall
mail notice to each county judge in the county or counties located
within 100 statute miles of the point of discharge who has requested
in writing that the commission give notice, and through which water
into or adjacent to which waste or pollutants are to be discharged
under the permit, flows after the discharge.
(B) If the notice of the
receipt of application and intent to obtain a permit was mailed more
than two years prior to the time that notice of application and preliminary
decision is scheduled by the executive director to be mailed, the
applicant must submit an updated landowner map, landowner list, and
any associated information for mailing the notice of application and
preliminary decision. Notwithstanding this requirement, the Executive
Director may require an updated landowner map, landowner list, and
any associated information for mailing the notice of the application
and preliminary decision if circumstances in the area have significantly
changed that warrant updated lists.
(3) The notice must set a deadline to file public comment
with the chief clerk that is not less than 30 days after newspaper
publication. However, the notice may be mailed to the county judges
under paragraph (2) of this subsection no later than 20 days before
the deadline to file public comment.
(4) For TPDES permits, the text of the notice shall include:
(A) everything that is required by §39.411(b)(1)
- (3), (5) - (7), (9), and (12), and (c)(2) - (6) of this title;
(B) a general description of the location of each existing
or proposed discharge point and the name of the receiving water; and
(C) for applications concerning the disposal of sludge:
(i) the use and disposal practices;
(ii) the location of the sludge treatment works treating
domestic sewage sludge; and
(iii) the use and disposal sites known at the time
of permit application.
(5) Mailed notice to adjacent or downstream landowners
is not required for:
(A) an application to renew a permit;
(B) an application for a new TPDES permit for a discharge
authorized by an existing state permit issued before September 14,
1998 for which the application does not propose any term or condition
that would constitute a major amendment to the state permit under §305.62
of this title [
(C) an application for a new permit or major amendment
to a TPDES permit that authorizes the discharges from a municipal
separate storm sewer system.
(6) For permits listed in paragraph [
(d) Notice of application and preliminary decision
for certain TPDES permits. For a new TPDES permit for which the discharge
is authorized by an existing state permit issued before September
14, 1998, the following shall apply:
(1) If the application does not propose any term or
condition that would constitute a major amendment to the state permit
under §305.62 of this title [
(A) The applicant shall publish notice of the application
and preliminary decision at least once in a newspaper regularly published
or circulated within each county where the proposed facility or discharge
is located and in each county affected by the discharge. The executive
director shall provide to the chief clerk a list of the appropriate
counties, and the chief clerk shall provide the list to the applicant.
(B) The chief clerk shall mail notice of the application
and preliminary decision, providing an opportunity to submit public
comments, to request a public meeting, or to request a public hearing
to those listed in §39.413 of this title.
(C) The notice must set a deadline to file public comment,
or to request a public meeting, with the chief clerk that is at least
30 days after newspaper publication.
(D) The text of the notice shall include:
(i) everything that is required by §39.411(b)(1)
- (3), (5) - (7), (9), and (12), and (c)(2) - (6) of this title;
(ii) a general description of the location of each
existing or proposed discharge point and the name of the receiving water; and
(iii) for applications concerning the disposal of sludge:
(I) the use and disposal practices;
(II) the location of the sludge treatment works treating
domestic sewage sludge; and
(III) the use and disposal sites known at the time of permit application.
(2) If the application proposes any term or condition
that would constitute a major amendment to the state permit under §305.62
of this title, the applicant must follow the notice requirements of
subsection (b) of this section.
(e) Notice for other types of applications. Except
as required by subsections (a), (b), and (c) of this section, the
following notice is required for certain applications.
(1) For an application for a minor amendment to a permit
other than a TPDES permit, or for an application for a minor modification
of a TPDES permit, under Chapter 305, Subchapter D of this title (relating
to Amendments, [
(2) For an application for a renewal of a confined
animal feeding operation permit which was issued between July 1, 1974,
and December 31, 1977, for which the applicant does not propose to
discharge into or adjacent to water in the state and does not seek
to change materially the pattern or place of disposal, no notice is
required.
(3) For an application for a minor amendment to a TPDES
permit under Chapter 305, Subchapter D of this title, the following
requirements apply.
(A) The chief clerk shall mail notice of the application
and preliminary decision, providing an opportunity to submit public
comments and to request a public meeting to:
(i) the mayor and health authorities of the city or
town in which the facility is or will be located or in which pollutants
are or will be discharged;
(ii) the county judge and health authorities of the
county in which the facility is or will be located or in which pollutants
are or will be discharged;
(iii) if applicable, state and federal agencies for
which notice is required in 40 Code of Federal Regulations (CFR) §124.10(c);
(iv) if applicable, persons on a mailing list developed
and maintained according to 40 CFR §124.10(c)(1)(ix);
(v) the applicant;
(vi) persons on a relevant mailing list kept under §39.407
of this title (relating to Mailing Lists); and
(vii) any other person the executive director or chief
clerk may elect to include.
(B) For TPDES major facility permits as designated
by the United States Environmental Protection Agency [
(C) The text shall meet the requirements in §39.411(b)(1)
- (4)(A), (6), (7), (9), and (12), and (c)(4) - (6)
of this title.
(D) The notice shall provide at least a 30-day public comment period.
(E) The executive director shall prepare a response
to all relevant and material or significant public comments received
by the commission under §55.152 of this title (relating to Public
Comment Period [
(f) Notice of contested case hearing.
(1) This subsection applies if an application is referred
to the State Office of Administrative Hearings [
(2) Not less than 30 days before the hearing, the applicant
shall publish notice at least once in a newspaper regularly published
or circulated in each county where, by virtue of the county's geographical
relation to the subject matter of the hearing, a person may reasonably
believe persons reside who may be affected by the action that may
be taken as a result of the hearing. The executive director shall
provide to the chief clerk a list of the appropriate counties.
(3) Not less than 30 days before the hearing, the chief
clerk shall mail notice to the persons listed in §39.413 of this
title [
(4) For TPDES permits, the text of notice shall include:
(A) everything that is required by §39.411(d)(1)
and (2) of this title;
(B) a general description of the location of each existing
or proposed discharge point and the name of the receiving water; and
(C) for applications concerning the disposal of sludge:
(i) the use and disposal practices;
(ii) the location of the sludge treatment works treating
domestic sewage sludge; and
(iii) the use and disposal sites known at the time
of permit application.
(g) Notice for discharges with a thermal component.
For requests for a discharge with a thermal component filed pursuant
to Clean Water Act, §316(a), 40 CFR Part 124, Subsection D, §124.57(a),
public notice, which is in effect as of the date of TPDES program
authorization, as amended, is adopted by reference. A copy of 40 CFR
Part 124 is available for inspection at the agency's library
located at the commission's central office located at 12100 Park 35
Circle, Building A, Austin [
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 July 10, 2009.
TRD-200902833
Robert Martinez
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: August 23, 2009
For further information, please call: (512) 239-0177
SUBCHAPTER A. APPLICATIONS PROCESSING
30 TAC §281.17
The Texas Commission on Environmental Quality (commission,
agency, or TCEQ) proposes an amendment to §281.17.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULE
This rulemaking amends §281.17(a) to provide that the executive
director will file a water rights application with the chief clerk
once the application has been declared administratively complete,
but notice of the application will not be sent at that time. This
change is necessary because of a corresponding rulemaking in which
the commission is changing the time that notice of a water rights
application is mailed from the time that the application is declared
administratively complete to the time that the technical review is
complete and the memoranda and recommendations are filed with the
chief clerk. This change to §281.17 is necessary because the
issuance of the notice is being moved to later in the process, and
also because the application must still be declared administratively
complete and filed with the chief clerk. This is particularly important
because that date is usually the priority date for a water rights
permit, if issued.
Corresponding rulemaking is published in this issue of the
Texas Register and includes changes to 30
TAC Chapter 39, Public Notice, and Chapter 295, Water Rights, Procedural.
SECTION DISCUSSION
The commission proposes administrative changes throughout the proposed
rulemaking to reflect the agency's current practices and to conform
to Texas Register and agency guidelines. These changes include updating
agency references, updating cross-references, and correcting typographical,
spelling, and grammatical errors.
The proposed amendment to §281.17(a) removes the requirements
that the executive director prepare a technical summary of a water
use permit application and that the chief clerk issue notice of the
application at the time of filing the application. Removing these
requirements will make §281.17(a) consistent with proposed changes
to §295.151 and §295.158. The proposed amendments to Chapter
295 change the time in the application process at which notice will
be issued, and make the results of the executive director's technical
review available to the public at the time of notice. The proposed
amendments to Chapter 295 also allow notice to be mailed to the most
current mailing list of potentially affected persons and aid public
participation by providing notice to persons potentially affected
closer to the time that the application could be acted upon.
The proposed amendment to §281.17(b) removes the requirements
that the executive director prepare a technical summary of a temporary
water use permit application and that the chief clerk issue notice
of the application at the time of filing the application. Removing
these requirements will make §281.17(b) consistent with proposed
changes to §295.151 and §295.158. The proposed amendments
to Chapter 295 change the time in the application process at which
notice will be issued, and make the results of the executive director's
technical review available to the public at the time of notice. The
proposed amendments to Chapter 295 also allow notice to be mailed
to the most current mailing list of potentially affected persons and
aid public participation by providing notice to persons potentially
affected closer to the time that the application could be acted upon.
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 proposed amendment to Chapter 281 is part of corresponding
rule proposals regarding when public notice is mailed or published
that also includes amendments to Chapters 39 and 295. The fiscal impacts
of the proposed amendments to those chapters are detailed in separate
fiscal notes.
The amendment to Chapter 281 is proposed to ensure consistency
with the rule changes proposed for Chapter 295 concerning the time
that notice of a water rights application is mailed or published.
Administrative changes to Chapter 281, including updating agency references,
updating cross-references, and correcting typographical, spelling,
and grammatical errors, are also proposed.
The proposed rule will amend §281.17(a) and (b) concerning
technical summaries for water use permit applications and temporary
water use permit applications to make this section compatible with
proposed changes to Chapter 295 concerning the timing of public notice.
This rulemaking does not change the content and substance requirements
of public notice, and there are no fiscal impacts to local governments
associated with this rulemaking.
PUBLIC BENEFITS AND COSTS
Nina Chamness also determined that for each year of the first five
years the proposed rule is in effect, the public benefit anticipated
from the changes seen in the proposed rule will be consistency with
the proposed changes for Chapter 295.
The proposed rule will amend §281.17(a) and (b) concerning
technical summaries for water use permit applications and temporary
water use permit applications to make this section compatible with
proposed changes to Chapter 295 concerning the timing of public notice.
This rulemaking does not change the content and substance requirements
of public notice, and there are no fiscal impacts to businesses associated
with this rulemaking.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
No adverse fiscal implications are anticipated for small or micro-businesses.
The proposed rule will amend §281.17(a) and (b) concerning technical
summaries for water use permit applications and temporary water use
permit applications to make this section compatible with proposed
changes to Chapter 295 concerning the timing of public notice. This
rulemaking does not change the content and substance requirements
of public notice, and there are no fiscal impacts to small or micro-businesses
associated with this rulemaking.
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 evaluated the proposed rule and performed an analysis
of whether the proposed rule requires a regulatory impact analysis
under Texas Government Code, §2001.0225. The proposed amendment
is not a "major environmental rule" under Texas Government Code, §2001.0225
because the specific intent of the rulemaking is not to protect the
environment or reduce risks to human health from environmental exposure
and it does not 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 purpose of this rulemaking together with a corresponding rulemaking
in Chapter 295 is to change the date of notice for a water rights
application from the date the application is administratively complete
to the date of the completion of technical review. Therefore, no regulatory
impact analysis is required under Texas Government Code, §2001.0225
for this rulemaking.
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 rule and performed an analysis
of whether the proposed rule constitutes a taking under Texas Government
Code, Chapter 2007. The specific purpose of the proposed amendment
together with a corresponding rulemaking in Chapter 295 is to change
the date for providing notice for water rights applications to a later
time in the application review process so that notice will be provided
to those potentially affected persons existing at a time closer to
commission action on an application. The proposed amendment together
with a corresponding rulemaking in Chapter 295 would substantially
advance this stated purpose by keeping the date of filing an application
with the chief clerk at administrative completeness, but changing
the date of notice of the application from after administrative completeness
to after technical review of the application is complete. Promulgation
and enforcement of the proposed rule would be neither a statutory
nor a constitutional taking of private real property. Specifically,
the subject proposed regulations do not affect a landowner's rights
in private real property because this rulemaking does not burden (constitutionally);
nor restrict or limit the owner's right to property and reduce its
value by 25% or more beyond that which would otherwise exist in the
absence of the regulations. In other words, the rule is procedural
and does not impact real property. There are no other reasonable or
practicable alternatives to this rulemaking.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rulemaking and found that
the proposal is subject to the Texas Coastal Management Program (CMP)
in accordance with the Coastal Coordination Act, Texas Natural Resources
Code, §§33.201 et seq.,
and therefore must be consistent with all applicable CMP goals and
policies. 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 with the
Coastal Coordination Act may be submitted to the contact person at
the address listed under the SUBMITTAL OF COMMENTS section of this
preamble.
ANNOUNCEMENT OF HEARING
The commission will hold a public hearing on this proposal in Austin
on August 18, 2009 at 10:00 a.m. in Building E, Room 201S, at the
commission's central office located at 12100 Park 35 Circle. The hearing
is structured for the receipt of oral or written comments by interested
persons. Individuals may present oral statements when called upon
in order of registration. Open discussion will not be permitted during
the hearing; however, commission staff members will be available to
discuss the proposal 30 minutes prior to the hearing.
Persons who have special communication or other accommodation needs
who are planning to attend the hearing should contact Jessica Rawlings,
Office of Legal Services at (512) 239-0177. Requests should be made
as far in advance as possible.
SUBMITTAL OF COMMENTS
Written comments may be submitted to Jessica Rawlings, 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 2009-028-295-LS. The comment period closes August 24, 2009.
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 Robin Smith, Environmental
Law Division, (512) 239-0463; Sherry Smith, Water Quality Division,
(512) 239-0571; or Ronald Ellis, Water Supply Division, (512) 239-1282.
STATUTORY AUTHORITY
The amendment is proposed under Texas Water Code, §5.102,
concerning General Powers; §5.103, concerning Rules; and §5.105,
concerning General Policy, which authorize the commission to adopt
rules as necessary to carry out its power and duties under the Texas
Water Code. The amendment is also proposed under Texas Water Code, §11.121,
which provides that a person cannot store or divert state water without
obtaining a permit from the commission; Texas Water Code, §11.129,
which provides for commission review of a water rights application;
and Texas Water Code, §11.132, which provides requirements for
notice for water rights permits.
The proposed amendment implements Texas Water Code, §§5.102,
5.103, 5.105, 11.121, 11.129, and 11.132.
§281.17.Notice of Receipt of Application and Declaration of Administrative Completeness.
(a) Applications for use of state water. If an application
for the use of state water, other than for a permit under §297.13
of this title (relating to Temporary Permit Under the Texas Water
Code, §§11.138 and 11.153 - 11.155) or §297.17
of this title (relating to Emergency Authorization (Texas Water
Code, §11.139) [
(b) Applications for temporary permits to use state
water. If an application for a temporary permit, other than a provisional
temporary permit under §295.181 of this title (relating to
Provisional Disposition of Application for Temporary Permit [
(c) Applications for provisional temporary permits
to use state water. When an application for a provisional temporary
permit for the use of state water under §295.181 of this title
[
(d) Other applications. Upon receipt of an application
described in §281.2(2) or (5) - (11) of this title (relating
to Applicability), which contains the information and attachments
required by §§281.5, 281.6, [
(e) Notice requirements. The notice of receipt of the
application and declaration of administrative completeness, or for
applications for a new, amended, or renewed injection well permit,
or for a new or amended compliance plan as described in §281.2(3)
and (4) of this title [
(1) the identifying number given the application by
the executive director;
(2) the type of permit or license sought under the application;
(3) the name and address of the applicant and, if different,
the location of the proposed facility;
(4) the date on which the application was submitted; and
(5) a brief summary of the information included in the application.
(f) Notice of application and draft permit. Nothing
in this section shall be construed so as to waive the requirement
of notice of the application and draft permit in accordance with Chapter
39 of this title (relating to Public Notice) for applications for
radioactive material licenses, and for wastewater discharge, underground
injection, hazardous waste, municipal solid waste, and industrial
solid waste management permits.
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 July 10, 2009.
TRD-200902834
Robert Martinez
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: August 23, 2009
For further information, please call: (512) 239-0177
SUBCHAPTER C. NOTICE REQUIREMENTS FOR WATER RIGHT APPLICATIONS
Amendment]); or
subsection
(b)](2)(C) of this subsection [section
], the executive director will require the applicant to post a copy of
the notice of receipt of application and intent to obtain a permit.
The notice must be posted within 30 days of the application being
declared administratively complete and remain posted until the commission
has taken final action on the application. The notice must be posted
at a place convenient and readily accessible to the public in the
administrative offices of the political subdivision in the county
in which the MS4 or discharge is located.
(relating to Amendment)]; or
subsection
(c)](5)(C) of this subsection [section],
the executive director will require the applicant to post a copy of
the notice of application and preliminary decision. The notice must
be posted on or before the first day of published newspaper notice
and must remain posted until the commission has taken final action
on the application. The notice must be posted at a place convenient
and readily accessible to the public in the administrative offices
of the political subdivision in the county in which the MS4 or discharge
is located.
(relating to Amendment)],
the following mailed and published notice is required.
Modifications,] Renewals, Transfers, Corrections,
Revocation, and Suspension of Permits), the chief clerk shall mail
notice, that the executive director has determined the application
is technically complete and has prepared a draft permit, to the mayor
and health authorities for the city or town, and to the county judge
and health authorities for the county in which the waste will be discharged.
The notice shall state the deadline to file public comment, which
shall be no earlier than ten days after mailing notice.
EPA] on an annual basis, notice shall be published in the
Texas Register.
Processing]).
SOAH]
for a contested case hearing under Chapter 80 of this title (relating
to Contested Case Hearings).
(relating to Mailed Notice)], except that mailed
notice to adjacent or downstream landowners is not required for an
application to renew a permit.
of the agency, Park 35, 12015
North Interstate 35, Austin].
CHAPTER 281. APPLICATIONS PROCESSINGEmergency Permit]), is received
containing the information and attachments required by §281.4
of this title (relating to Applications for Use of State Water), the
executive director or his designee shall prepare a statement of the
receipt of the application and declaration of administrative completeness
[suitable for mailing or publishing, and a brief technical summary
of the application to assist the chief clerk]. The executive
director shall forward a copy of the statement [and brief technical
summary] to the chief clerk, along with a copy of the application.
[The chief clerk shall notify every person entitled to notification
of the filing of an application under §295.153 of this title
(relating to Notice by Mail) by mail in the manner provided therein.]
Applications for Temporary Permits; Provisional Issuance in Certain Cases]),
for the use of state water is received containing the required information
and attachments required by §281.4 of this title [(relating
to Applications for Use of State Water)] as set forth therein,
the executive director or his designee shall prepare a statement of
the receipt of the application and declaration of administrative completeness
[suitable for mailing or publishing], and shall forward
a copy of the statement to the chief clerk. [The chief clerk
shall mail a copy of the statement of the receipt of the application
and declaration of administrative completeness to every water rights
holder of record with the commission who would be entitled to notice
of hearing under §295.154 of this title (relating to Notice for
Temporary Water Use Permit).]
(relating to Application for Temporary Permits; Provisional
Issuance in Certain Cases)], is received containing the information
and attachments required by §281.4 of this title [
(relating to Applications for Use of State Water)], the chief clerk shall
cause notice of the receipt of the application and declaration of
administrative completeness to be published in the Texas Register.
The chief clerk may include
in the notice other information concerning the disposition of the
application.
- 281.7]
and 281.16 of this title (relating to Application for Wastewater Discharge,
Underground Injection, Municipal Solid Waste, Radioactive Material, Hazardous
Waste, and Industrial Solid Waste Management Permits; Applications
for Plan Approval of Reclamation Projects; [Applications for
Weather Modification Permits;] and Applications for Certificates
of Convenience and Necessity), the executive director or his designee
shall assign the application a number for identification purposes,
and prepare a statement of the receipt of the application and declaration
of administrative completeness which is suitable for publishing or
mailing and shall forward that statement to the chief clerk. Upon
receipt of an application for a new, amended, or renewed injection
well permit, for a new, amended, or renewed industrial solid waste
permit, or for a new or amended compliance plan as described in §281.2(3)
and (4) of this title, the executive director or his designee shall
assign the application a number for identification purposes and prepare
a statement of the receipt of the application which is suitable for
publishing or mailing and shall forward that statement to the chief
clerk. Upon receipt of an application for a new, amended, or renewed
radioactive material license as described in Chapter 336 of this title
(relating to Radioactive Substance Rules), the executive director
or his designee shall assign the application a number for identification
purposes and prepare a statement of the receipt of the application
which is suitable for mailing and shall forward that statement to
the chief clerk prior to the expiration of the administrative review
periods established in §281.3(d) of this title (relating to Initial
Review). The chief clerk shall notify every person entitled to notification
of a particular application under the rules of the commission.
(relating to Applicability)], the
notice of receipt of the application, shall contain the following
information:
CHAPTER 295. WATER RIGHTS, PROCEDURAL