ADOPTED RULES
An agency may take final action on a section 30 days after a proposal has been 
published in the Texas Register. The section becomes effective 20 days after the 
agency files the correct document with the Texas Register, unless a later date 
is specified or unless a federal statute or regulation requires implementation 
of the action on shorter notice. If an agency adopts the section without any 
changes to the proposed text, only the preamble of the notice and statement of 
legal authority will be published. If an agency adopts the section with changes 
to the proposed text, the proposal will be republished with the changes.

TITLE 4. AGRICULTURE
PART I. Texas Department of Agriculture
CHAPTER 7. Pesticides
4 TAC sec.7.36
The Texas Department of Agriculture (the department) adopts the repeal of 
sec.7.36, concerning expiration provision, without changes to the proposed text 
as published in the October 18, 1996 issue of the Texas Register (21 TexReg 
10265). 
The repeal is adopted to eliminate an unnecessary section that has been 
superceded by a new section in Chapter 7. The repeal eliminates sec.7.36 from 
Chapter 7. 
No comments were received regarding the repeal. 

The repeal is adopted under the Texas Agriculture Code, sec.12.016,
which provides the Texas Department of Agriculture with the authority to
adopt rules as necessary for the administration of its powers and duties
under the Code. 

This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on November 19, 1996.
TRD-9616871
Dolores Alvarado Hibbs

Deputy General Counsel

Texas Department of Agriculture

Effective date: December 10, 1996

Proposal publication date: October 18, 1996

For further information, please call: (512) 463-7583

TITLE 22. EXAMINING BOARDS
PART XI. Board of Nurse Examiners
CHAPTER 213. Practice and Procedure
22 TAC sec.213.1, sec.213.28
The Board of Nurse Examiners adopts an amendment to sec.213.1
concerning Definitions and sec.213.28 concerning Licensure of Persons with
Criminal Convictions without changes to the proposed text as published in
the October 18, 1996, issue of the Texas Register 
(21 TexReg 10268). 

The staff of the Board of Nurse Examiners spends considerable time screening
applicants seeking approval to write the National Council Licensure Examination
for Registered Nurses (NCLEX-RN) pending successful completion of an accredited
nursing program. The volume of eligibility cases is steadily growing. In
an attempt to alleviate this backlog, the board has authorized the executive
director, through policy, to address these cases and to approve individuals
with past objectionable behavior which is deemed to be youthful indiscretion.
The adopted amendments will assist both staff and applicants in processing
eligibility cases. The current backlog of applicants contains many which
fit the proposed definition of youthful indiscretion. Adoption of these 
amendments
will streamline the process. 

No comments were received regarding adoption of the amendments.

The amendments are adopted under the Nursing Practice Act, (Texas
Civil Statutes), Article 4514, sec.1, which provides the Board of Nurse
Examiners with the authority and power to make and enforce all rules and
regulations necessary for the performance of its duties and conducting of
proceedings before it. 

Texas Civil Statutes, Articles 4519a and 4525(a) are affected by these
amendments. 

This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on November 20, 1996.
TRD-9616885
Katherine A. Thomas, MN, RN

Executive Director

Board of Nurse Examiners

Effective date: December 10, 1996

Proposal publication date: October 18, 1996

For further information, please call: (512) 305-6811

PART XXXV. Texas State Board of Examiners of Marriage and
Family Therapists
CHAPTER 801.Licensure and Regulation of Marriage and Family
Therapists
The Texas State Board of Examiners of Marriage and Family Therapists
adopts amendments to sec.sec.801.2, 801.11, 801.17, 801.19, 801.42, 801.45,
801.48, 801.54, 801.73, 801.113, 801.114, 801.142, 801.144, 801.204, 801.264
- 801.266, 801.268, 801.292, 801.293, 801.296 - 801.298, 801.332, 801.351,
801.361, 801.362, 801.366, 801.368 and 801.369; the repeal of sec.sec.801.143,
801.291, 801.364, and 801.365; and new sec.sec.801.94, 801.95, 801.143,
801.291, 801.299, 801.300, 801.364 - 801.365. Sections 801.2, 801.113, 801.143,
801.144, 801.266, and 801.300 are adopted with changes to the proposed text
as published in the May 3, 1996, issue of the Texas
Register (21 TexReg 3765). Sections 801.11, 901.17, 801.19, 801.42,
801.45, 801.48, 801.54, 801.73, 801.114, 801.142, 801.204, 801.264, 801.265,
801.268, 801.292, 801.293, 801.296, 801.297, 801.298, 801.299, 801.364, and
801.365 are adopted without changes, and therefore the sections will not
be republished. 

These sections are adopted to define what an individual must do to become
licensed as a marriage and family therapist. The sections cover definitions
and terms commonly used in the profession; set the standards for licensure
as a marriage and family therapists, establish procedures for application,
examination, licensure, continuing education, and complaint submittal; and
provide procedures for denial, revocation or suspension of a license 
certificate.
The adopted sections also cover the board; licensees and the board; consumer
information; application procedures; processing procedures; issuance of 
licenses;
reciprocity; surrender of a license, continuing education requirements; 
examinations;
complaints and violations; and formal hearings. 

The sections ensure the regulation of licensed marriage and family therapists
and continues to identify competent practitioners while streamlining all
aspects of the licensing activities making the overall process less cumbersome
for applicants and licensees. 

The following comments were received concerning the proposed sections.
COMMENT: Concerning sec.801.2, a commenter stated that in the definition
of "License" the word "family" had been left out of "or a provisional marriage
and family therapist". 

RESPONSE: The board agrees and has inserted the word "family" in the phrase
"or a provisional marriage and family therapist". 

COMMENT: Concerning sec.801.19, a commenter asked for the implementation
of a "temporary inactive status" for those individuals with a temporary license
who are unable to complete their supervised experience within the allowable
time. 

RESPONSE: The board did not agree to the implementation but stated that
they would review this subject for possible implementation in future rules.
No change was made. 

COMMENT: Concerning sec.801.73, a commenter requested that the board
require a "Criminal History Check" be submitted by each applicant. 

RESPONSE: The board agreed and stated that they would review this comment
for possible use in future rules. No change was made. 

COMMENT: Concerning sec.801.113, a commenter asked if the board was eliminating
the 45-hour degree requirement. 

RESPONSE: The board did not intend to eliminate the 45-hour requirement.
The board has revised the language of the 45-hour requirement and included
it at sec.801.113(b). 

COMMENT: Concerning sec.801.143 (a)(3)(B), a commenter asked for clarification
on what is acceptable as an equivalent course of study in supervision. 
RESPONSE: The board stated that the equivalent course of study in supervision
consists of a 30 hour didactic component and a 15-hour interactive component
in marriage and family therapy and must be approved by the board. The board
has changed this wording and included it at sec.801.143(a)(3)(B). 

COMMENT: Concerning sec.801.143(a)(4), a commenter asked for clarification
on the wording of, "have at least 3,000 hours of client contact" and asked
whether this should read "3,000 hours of direct client contact". 

RESPONSE: The board agreed and has changed sec.801.143(a)(4) to read,
"3,000 hours of direct client contact". 

COMMENT: Concerning sec.801.144, a commenter stated that they commended
the board for allowing 100 hours of telephone counseling to count towards
the 1,000 hours of supervised experience required in order to meet the 
requirements
of licensure; but, requested that the board consider more hours to count.
RESPONSE: The board disagreed and stated that 100 hours of telephone counseling
was sufficient at this time. In addition, the board stated that this was
a relatively new area and that they would continue to monitor the effectiveness
of this type of counseling. No change was made. 

COMMENT: Concerning sec.801.144, a commenter asked if there was a specified
ratio of individual versus group supervision. 

RESPONSE: The board stated that the requirement of individual supervision
is noted in sec.801.142 of the current rules and was not addressed in these
proposed rules. No change was made. 

COMMENT: Concerning sec.801.144, a commenter asked if a supervisor and
supervisee conducting a 50-minute hour are violating a requirement. 

RESPONSE: The board agreed that this would be a violation and explained
that the definition of a supervision hour is defined as 60 minutes in 
sec.801.144(k).
No change was made.  

COMMENT: Concerning sec.801.144(a), a commenter asked if it was a dual
relationship to be both employed and supervised by the same person. 

RESPONSE: The board disagreed and stated that it was not an improper dual
relationship. No change was made. 

COMMENT Concerning sec.801.144(b), a commenter stated that it was a hardship
for a graduate to have a time period between graduation and the obtaining
of a temporary license. 

RESPONSE: The board disagreed and stated that this was a problem at the
university level. The board must receive the required application materials
in order to process a request for temporary licensure. The board stated that
upon receipt of all required materials issuance of a temporary license was
done within two weeks. No change was made. 

COMMENT: Concerning sec.801.144(f), a commenter expressed concern over
the wording stating that "full professional responsibility" for the therapeutic
activates of an associate shall rest with the associate's supervisor". The
commenter felt that the responsibility would be more appropriately shared
by the supervisor, associate, and employer. 

RESPONSE: The board disagreed. The board believes that the supervisor is
accountable while he or she is supervising the associate. No change was made.
COMMENT: Concerning sec.801.144(h)(2), a commenter stated that the rules
regarding payment of services is unnecessarily rigid. 

RESPONSE: The board disagrees because associates may not bill insurance.
No change was made. 

COMMENT: Concerning sec.801.144(h)(4), a commenter asked for clarification
on the subject of liability of a supervisor. 

RESPONSE: The board has deleted sec.801.144(h)(4) for clarification on
the subject of liability of a supervisor. 

COMMENT: Concerning sec.801.144(l), a commenter asked if an associate
can have more than two supervisors. 

RESPONSE: The board stated that an associate must have prior approval from
the board for more than two supervisors. This language was added to 
sec.801.144(l).
COMMENT: Concerning sec.801.171, a commenter asked why applicants cannot
take the examination after completion of their degree and the required courses.
RESPONSE: The board stated that sec.801.171 was not open for comment
in the proposed rules but that all applicants must apply and have completed
all required courses and degrees before they would be allowed to take the
examination under the Act. No change was made. 

COMMENT: Concerning sec.801.204, a commenter asked to include the language
used under sec.801.236 for "inactive status", and add the term "temporary
license" in order to maintain consistency between the regular "inactive status"
and the implementation of "temporary inactive status". 

RESPONSE: The board did not agree to the implementation but stated that
they would review this subject for possible use in future rules. No change
was made. 

COMMENT: Concerning sec.801.266(4), a commenter asked if the term "associates"
should be replaced with "interns". 

RESPONSE: The board agreed since these individuals are enrolled in a graduate
program and are called "intern" throughout the rules. The term was changed
to "interns". 

COMMENT: Concerning sec.801.268, a commenter asked if a two or three
year continuing education cycle would be less burdensome on the licensee
and allow for more extensive and creative study. 

RESPONSE: The board disagreed and stated that the current continuing education
requirement of 20-hours each year was sufficient. No change was made. 

COMMENT: Concerning sec.801.268, a commenter asked if continuing education
credits could be accepted from a non-approved sponsor(s) if relevance to
marriage and family therapy can be evidenced. 

RESPONSE: The board stated that the rules sufficiently covered the area
regarding continuing education requirements. The board does accept these
continuing education credits. No change was made. 

COMMENT: Concerning sec.801.296(b), a commenter stated that 10 days was
not enough time for an alleged violator to obtain legal advice and to formulate
a written response. 

RESPONSE: The board disagreed and stated that this timeframe would remain
in place for the time being. They instructed staff to research the issue
and to determine whether ten days is sufficient. Upon evaluating these findings,
possible amendments to future rules may be initiated. No change was made.
COMMENT: Concerning sec.801.300(f), a commenter asked if "licensed marriage
and family therapist associate" should be included in the section. 

RESPONSE: The board agreed and has added licensed marriage and family therapist
associate to this section. 

Comments were received from the following: Texas Association of Marriage
and Family Therapists, Texas State Board of Marriage and Family Therapists
staff members, licensed marriage and family therapists, and other interested
individuals. The commenters were neither for nor against the rules in their
entirety; however, they raised questions, offered comments for clarification,
and made recommendations concerning specific provisions in the rules. 

SUBCHAPTER A.Introduction
22 TAC sec.801.2
(Editor's Note: Due to a technical error, the following adopted
rules submitted by the Texas State Board of Examiners of Marriage and Family
Therapists were inadvertently omitted from the November 12, 1996 issue of
the Texas Register. These rules became effective on November 22, 1996.)

The amendment is adopted under Texas Civil Statutes,
Article 4512c-1, sec.11(d) concerning rules on complaint information, sec.11A(a)
concerning rules on complaint investigations and handling, sec.11(B) concerning
rules on informal disposition, sec.12(a) concerning rules on fees, sec.13(d)
concerning adoption of a code of ethics, sec.20(c) concerning rules on
temporary licenses, sec.21(h) concerning rules on continuing education,
and sec.25(e) concerning rules on a schedule of sanctions and generally
under Article 4512c-1, which requires the Texas State Board of Examiners
of Marriage and Family Therapists to adopt rules that are reasonably necessary
for the proper performance of its duties under the Act. 

sec.801.2. Definitions.
The following words and terms when used in this chapter shall have
the following meanings unless the context indicates otherwise.

Associate - A marriage and family therapy associate.  
Family systems - An open, on-going, goal-seeking, self-regulating,
social system which shares features of all such systems. Certain features
such as its unique structuring of gender, race, nationality and generation
set it apart from other social systems. Each individual family system is
shaped by its own particular structural features (size, complexity, composition,
life stage), the psychobiological characteristics of its individual members
(age, race, nationality, gender, fertility, health and temperament) and its
socio-cultural and historic position in its larger environment.  

License - A marriage and family therapist license, a temporary
marriage and family therapist associate license, or a provisional marriage
and family therapist license.

Marriage and family therapist associate - A person who holds
a temporary license issued by the Texas State Board of Examiners of Marriage
and Family Therapists to practice marriage and family therapy under the 
supervision
of a board-approved supervisor. 

Supervision - The guidance or management of an associate
in the provision of direct clinical services.  

Supervisor - A person meeting the requirements set out in
sec.801.143 of this title (relating to Supervisor Requirements), to supervise
an associate and/or marriage and family therapist. 

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

Issued in Austin, Texas, on November 1, 1996.
TRD-9616061
Bobby D. Schmidt

Executive Director

Texas State Board of Examiners of Marriage and Family Therapists

Effective date: November 22, 1996

Proposal publication date: May 3, 1996

For further information, please call: (512) 458-7236

SUBCHAPTER B.The Board
22 TAC sec.sec.801.11, 801.17, 801.19
The amendments are adopted under Texas Civil Statutes, Article
4512c-1, sec.11(d) concerning rules on complaint information, sec.11A(a)
concerning rules on complaint investigations and handling, sec.11(B) concerning
rules on informal disposition, sec.12(a) concerning rules on fees, sec.13(d)
concerning adoption of a code of ethics, sec.20(c) concerning rules on
temporary licenses, sec.21(h) concerning rules on continuing education,
and sec.25(e) concerning rules on a schedule of sanctions and generally
under Article 4512c-1, which requires the Texas State Board of Examiners
of Marriage and Family Therapists to adopt rules that are reasonably necessary
for the proper performance of its duties under the Act. 

This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on November 1, 1996.
TRD-9616062
Bobby D. Schmidt

Executive Director

Texas State Board of Examiners of Marriage and Family Therapists

Effective date: November 22, 1996

Proposal publication date: May 3, 1996

For further information, please call: (512) 458-7236

SUBCHAPTER C.Rendering Professional Therapeutic Services and
Code of Ethics
22 TAC sec.sec.801.42, 801.45, 801.48, 801.54
The amendments are adopted under Texas Civil Statutes, Article
4512c-1, sec.11(d) concerning rules on complaint information, sec.11A(a)
concerning rules on complaint investigations and handling, sec.11(B) concerning
rules on informal disposition, sec.12(a) concerning rules on fees, sec.13(d)
concerning adoption of a code of ethics, sec.20(c) concerning rules on
temporary licenses, sec.21(h) concerning rules on continuing education,
and sec.25(e) concerning rules on a schedule of sanctions and generally
under Article 4512c-1, which requires the Texas State Board of Examiners
of Marriage and Family Therapists to adopt rules that are reasonably necessary
for the proper performance of its duties under the Act. 

This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on November 1, 1996.
TRD-9616059
Bobby D. Schmidt

Executive Director

Texas State Board of Examiners of Marriage and Family Therapists

Effective date: November 22, 1996

Proposal publication date: May 3, 1996

For further information, please call: (512) 458-7236

SUBCHAPTER D.Application Procedures
22 TAC sec.801.73
The amendment is adopted under Texas Civil Statutes, Article
4512c-1, sec.11(d) concerning rules on complaint information, sec.11A(a)
concerning rules on complaint investigations and handling, sec.11(B) concerning
rules on informal disposition, sec.12(a) concerning rules on fees, sec.13(d)
concerning adoption of a code of ethics, sec.20(c) concerning rules on
temporary licenses, sec.21(h) concerning rules on continuing education,
and sec.25(e) concerning rules on a schedule of sanctions and generally
under Article 4512c-1, which requires the Texas State Board of Examiners
of Marriage and Family Therapists to adopt rules that are reasonably necessary
for the proper performance of its duties under the Act.

This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on November 1, 1996.
TRD-9616060
Bobby D. Schmidt

Executive Director

Texas State Board of Examiners of Marriage and Family Therapists

Effective date: November 22, 1996

Proposal publication date: May 3, 1996

For further information, please call: (512) 458-7236

SUBCHAPTER E.Criteria for Determining Fitness of Applicants
for Examination and Licensure
22 TAC sec.801.94, sec.801.95
The new sections are adopted under Texas Civil Statutes, Article
4512c-1, sec.11(d) concerning rules on complaint information, sec.11A(a)
concerning rules on complaint investigations and handling, sec.11(B) concerning
rules on informal disposition, sec.12(a) concerning rules on fees, sec.13(d)
concerning adoption of a code of ethics, sec.20(c) concerning rules on
temporary licenses, sec.21(h) concerning rules on continuing education,
and sec.25(e) concerning rules on a schedule of sanctions and generally
under Article 4512c-1, which requires the Texas State Board of Examiners
of Marriage and Family Therapists to adopt rules that are reasonably necessary
for the proper performance of its duties under the Act.

This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on November 1, 1996.
TRD-9615942
Bobby D. Schmidt

Executive Director

Texas State Board of Examiners of Marriage and Family Therapists

Effective date: November 22, 1996

Proposal publication date: May 3, 1996

For further information, please call: (512) 458-7236

SUBCHAPTER F.Academic Requirements for Examination and Licensure 
22 TAC sec.801.113, sec.801.114
The amendments are adopted under Texas Civil Statutes, Article
4512c-1, sec.11(d) concerning rules on complaint information, sec.11A(a)
concerning rules on complaint investigations and handling, sec.11(B) concerning
rules on informal disposition, sec.12(a) concerning rules on fees, sec.13(d)
concerning adoption of a code of ethics, sec.20(c) concerning rules on
temporary licenses, sec.21(h) concerning rules on continuing education,
and sec.25(e) concerning rules on a schedule of sanctions and generally
under Article 4512c-1, which requires the Texas State Board of Examiners
of Marriage and Family Therapists to adopt rules that are reasonably necessary
for the proper performance of its duties under the Act.

sec.801.113. Academic Requirements.
(a) Persons applying for examinations and licensure must have
a master's or doctorate degree in marriage and family therapy or a master's
or doctorate degree in a related mental health field with course work and
training determined by the board to be substantially equivalent to a graduate
degree in marriage and family therapy from a regionally accredited institution
of higher education or an institution of higher education approved by the
board. 

(b) A degree or course work in a related mental health field
is substantially equivalent if it is at least 45 semester hours which the
applicant completed at a regionally accredited school. The 45 semester hours
may be course work taken in the required graduate degree program. 

(c) A degree or course work in a related mental health field
must have been designed to train a person to provide direct services to assist
individuals, families or couples in a therapeutic relationship in the resolution
of cognitive, affective, behavioral or relational dysfunctions within the
context of marriage or family systems. 

This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on November 1, 1996.
TRD-9615943
Bobby D. Schmidt

Executive Director

Texas State Board of Examiners of Marriage and Family Therapists

Effective date: November 22, 1996

Proposal publication date: May 3, 1996

For further information, please call: (512) 458-7236

SUBCHAPTER G.Experience Requirements for Examination and Licensure 
22 TAC sec.sec.801.142-801.144
The amendments and new section are adopted under Texas Civil
Statutes, Article 4512c-1, sec.11(d) concerning rules on complaint information,
sec.11A(a) concerning rules on complaint investigations and handling, sec.11(B)
concerning rules on informal disposition, sec.12(a) concerning rules on
fees, sec.13(d) concerning adoption of a code of ethics, sec.20(c) concerning
rules on temporary licenses, sec.21(h) concerning rules on continuing education,
and sec.25(e) concerning rules on a schedule of sanctions and generally
under Article 4512c-1, which requires the Texas State Board of Examiners
of Marriage and Family Therapists to adopt rules that are reasonably necessary
for the proper performance of its duties under the Act.

sec.801.143. Supervisor Requirements.
(a) A supervisor must meet the following requirements before
providing any supervision: 

(1) hold a license (which is not a provisional or temporary
license) issued by the Texas State Board of Examiners of Marriage and Family
Therapists (board), hold a license as a marriage and family therapist in
another state or territory, or be eligible for licensure by the board; 
(2) hold a graduate degree in marriage and family therapy
or a graduate degree in a related mental health field, such as counseling
and guidance, psychology, psychiatry, and clinical social work, from a 
regionally
accredited institution as defined in sec.801.2 of this title (relating
to Definitions); 

(3) have one of the following: 

(A) a one-semester graduate course in marriage and family
therapy supervision from a regionally accredited institution (45 contact
hours); or 

(B) an equivalent course of study consisting of a 30-hour
didactic component and a 15-hour interactive component in the study of marriage
and family therapy supervision approved by the Board. The interactive component
must include a minimum of four persons training to become supervisors of
associates; and 

(4) have at least 3,000 hours of direct client contact
in the practice of marriage and family therapy over a minimum of three years.
(b) In lieu of meeting the qualifications set forth in subsection
(a) of this section, a person is an acceptable supervisor if the person has
been designated as an approved supervisor or supervisor-in-training by the
American Association of Marriage and Family Therapy (AAMFT) before the person
provides any supervision. 

(c) A supervisor may be approved by the board by submitting
all required board forms as well as other documentation of credentials. 
(d) If licensed by the board, the supervisor must complete
three annual clock-hours of continuing education directly related to the
supervision of associates. 

sec.801.144. Other Conditions for Supervised Experience. 
(a) An associate may not practice within his or her own private
independent practice of therapy as part of the associate's direct clinical
experience; however, the person may be employed in his or her supervisor's
private practice of therapy as part of the internship. 

(b) After January 1, 1995, an associate in Texas must hold
a temporary license. No hours will be counted toward the supervised experience
except those accumulated during the time the associate is licensed. 

(c) (No change.) 

(d) A supervisor may not be related within the second degree
by affinity (marriage) or within the third degree by consanguinity (blood
or adoption) to an associate. 

(e) During the period of supervised experience, an associate
may be employed on a salary basis or be used within an established supervisory
setting. The established settings must be structured with clearly defined
job descriptions and areas of responsibility. The board may require that
applicant provide documentation of all work experience. 

(f) During internship, the full professional responsibility
for the therapeutic activities of an associate shall rest with the associate's
official supervisor. 

(g) All supervised experience submitted in fulfillment of the
board's requirements must have been on a formal basis by contract or other
specific arrangement prior to the period of supervision. Supervisory 
arrangements
must include all specific conditions agreed to by the supervisor and associate.
(h) If an associate enters into contracts with both a supervisor
and an organization with which the supervisor is employed or affiliated:
(1) (No change.) 

(2) no payment for services shall be made directly by
a client to the associate; 

(3) (No change.) 

(4) there shall be no financial arrangements between the
organization and associate that have been made that extend beyond the period
of supervision of the associate by the supervisor. 

(i) Group supervised experience of an associate may count toward
an associate's supervision requirement only if the supervision group consisted
of a minimum of three and no more than six associates during the supervision
hour. 

(j) Individual supervised experience of an associate may count
toward the associate's supervision requirement only if the supervision consisted
of no more than two associates. 

(k) The 200 hours of supervision must be face-to-face. The
associate must receive a minimum of one hour of face-to-face supervision
every two weeks. A supervision hour is 60 minutes. 

(l) An associate may only have one board-approved supervisor
at a time, unless given prior approval by the Board. An associate may have
no more than two board-approved supervisors during the period of supervised
experience unless additional supervisors are approved by the board. 

(m) If an associate's primary clinical employer has a contract
to provide mental health services via telephonic or other electronic media,
the associate may petition the board that up to 100 clock-hours of this service
be applied toward the required 1,000 hours of direct clinical services. The
petition must include a listing of potential therapeutic issues and a 
description
of the proposed supervision.

This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on November 1, 1996.
TRD-9615933
Bobby D. Schmidt

Executive Director

Texas State Board of Examiners of Marriage and Family Therapists

Effective date: November 22, 1996

Proposal publication date: May 3, 1996

For further information, please call: (512) 458-7236

22 TAC sec.801.143
The repeal is adopted under Texas Civil Statutes, Article
4512c-1, sec.11(d) concerning rules on complaint information, sec.11A(a)
concerning rules on complaint investigations and handling, sec.11(B) concerning
rules on informal disposition, sec.12(a) concerning rules on fees, sec.13(d)
concerning adoption of a code of ethics, sec.20(c) concerning rules on
temporary licenses, sec.21(h) concerning rules on continuing education,
and sec.25(e) concerning rules on a schedule of sanctions and generally
under Article 4512c-1, which requires the Texas State Board of Examiners
of Marriage and Family Therapists to adopt rules that are reasonably necessary
for the proper performance of its duties under the Act. 

This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on November 1, 1996.
TRD-9615932
Bobby D. Schmidt

Executive Director

Texas State Board of Examiners of Marriage and Family Therapists

Effective date: November 22, 1996

Proposal publication date: May 3, 1996

For further information, please call: (512) 458-7236

SUBCHAPTER I.Issuance of License
22 TAC sec.801.204
The amendment is adopted under Texas Civil Statutes, Article
4512c-1, sec.11(d) concerning rules on complaint information, sec.11A(a)
concerning rules on complaint investigations and handling, sec.11(B) concerning
rules on informal disposition, sec.12(a) concerning rules on fees, sec.13(d)
concerning adoption of a code of ethics, sec.20(c) concerning rules on
temporary licenses, sec.21(h) concerning rules on continuing education,
and sec.25(e) concerning rules on a schedule of sanctions and generally
under Article 4512c-1, which requires the Texas State Board of Examiners
of Marriage and Family Therapists to adopt rules that are reasonably necessary
for the proper performance of its duties under the Act. 

This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on November 1, 1996.
TRD-9615941
Bobby D. Schmidt

Executive Director

Texas State Board of Examiners of Marriage and Family Therapists

Effective date: November 22, 1996

Proposal publication date: May 3, 1996

For further information, please call: (512) 458-7236

SUBCHAPTER K.Continuing Education Requirements
22 TAC sec.sec.801.264-801.266, 801.268
The amendments are adopted under Texas Civil Statutes, Article
4512c-1, sec.11(d) concerning rules on complaint information, sec.11A(a)
concerning rules on complaint investigations and handling, sec.11(B) concerning
rules on informal disposition, sec.12(a) concerning rules on fees, sec.13(d)
concerning adoption of a code of ethics, sec.20(c) concerning rules on
temporary licenses, sec.21(h) concerning rules on continuing education,
and sec.25(e) concerning rules on a schedule of sanctions and generally
under Article 4512c-1, which requires the Texas State Board of Examiners
of Marriage and Family Therapists to adopt rules that are reasonably necessary
for the proper performance of its duties under the Act. 

sec.801.266. Criteria for Approval of Continuing
Education Activities.
Each continuing education experience submitted by a licensee or sponsor
will be evaluated on the basis of the following criteria. 

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

(4) Credit may be earned for clinical supervision of marriage
and family therapy interns. Supervision may count for no more than one-half
or ten hours of annual continuing education. 

(5) A presenter of a continuing education activity or
an author of a published work which enhances a marriage and family therapist's
knowledge or skill may be granted five credit hours for each presentation
or publication not to exceed one-half of the annual continuing education
required.  

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

Issued in Austin, Texas, on November 1, 1996.
TRD-9615940
Bobby D. Schmidt

Executive Director

Texas State Board of Examiners of Marriage and Family Therapists

Effective date: November 22, 1996

Proposal publication date: May 3, 1996

For further information, please call: (512) 458-7236

SUBCHAPTER L.Complaints and Violations
22 TAC sec.801.291
The repeal is adopted under Texas Civil Statutes, Article
4512c-1, sec.11(d) concerning rules on complaint information, sec.11A(a)
concerning rules on complaint investigations and handling, sec.11(B) concerning
rules on informal disposition, sec.12(a) concerning rules on fees, sec.13(d)
concerning adoption of a code of ethics, sec.20(c) concerning rules on
temporary licenses, sec.21(h) concerning rules on continuing education,
and sec.25(e) concerning rules on a schedule of sanctions and generally
under Article 4512c-1, which requires the Texas State Board of Examiners
of Marriage and Family Therapists to adopt rules that are reasonably necessary
for the proper performance of its duties under the Act.

This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on November 1, 1996.
TRD-9615939
Bobby D. Schmidt

Executive Director

Texas State Board of Examiners of Marriage and Family Therapists

Effective date: November 22, 1996

Proposal publication date: May 3, 1996

For further information, please call: (512) 458-7236

22 TAC sec.sec.801.291-801.293, 801.296-801.300
The amendments and new sections are adopted under Texas Civil
Statutes, Article 4512c-1, sec.11(d) concerning rules on complaint information,
sec.11A(a) concerning rules on complaint investigations and handling, sec.11(B)
concerning rules on informal disposition, sec.12(a) concerning rules on
fees, sec.13(d) concerning adoption of a code of ethics, sec.20(c) concerning
rules on temporary licenses, sec.21(h) concerning rules on continuing education,
and sec.25(e) concerning rules on a schedule of sanctions and generally
under Article 4512c-1, which requires the Texas State Board of Examiners
of Marriage and Family Therapists to adopt rules that are reasonably necessary
for the proper performance of its duties under the Act.

sec.801.300. Suspension of License for Failure to
Pay Child Support.
(a) On receipt of a final court or attorney's general's order
suspending a license due to failure to pay child support, the executive director
shall immediately determine if the board has issued a license to the obligator
named on the order, and, if a license has been issued: 

(1) record the suspension of the license in the board's records;
(2) report the suspension as appropriate; and 

(3) demand surrender of the suspended license. 

(b) The board shall implement the terms of a final court or
attorney general's order suspending a license without additional review or
hearing. The board will provide notice as appropriate to the licensee or
to others concerned with the license. 

(c) The board may not modify, remand, reverse, vacate, or stay
a court or attorney general's order suspending a license issued under the
Family Code, Chapter 232 as added by Acts 1995, 74th Legislature Chapter
751, sec.85 (HB 433) and may not review, vacate, or reconsider the terms
of an order. 

(d) A licensee who is the subject of a final court or attorney
general's order suspending his or her license is not entitled to a refund
for any fee paid to the board. 

(e) If a suspension overlaps a license renewal period, an individual
with a license suspended under this section shall comply with the normal
renewal procedures in the Act and this chapter; however, the license will
not be renewed until subsections (g) and (h) of this section are met. 

(f) An individual who continues to use the titles "licensed
marriage and family therapist", "provisional licensed marriage and family
therapist", or "licensed marriage and family therapist associate" after the
issuance of a court or attorney general's order suspending the license is
liable for the same civil and criminal penalties provided for engaging in
the prohibited activity without a license or while a license is suspended
as any license holder of the board. 

(g) On receipt of a court or attorney general's order vacating
or staying an order suspending a license, the executive director or executive
director's designee shall promptly issue the affected license to the individual
if the individual is otherwise qualified for the license. 

(h) The individual must pay a reinstatement fee set out in
sec.801.19 (relating to Fees) prior to issuance of the license under subsection
(g) of this section.

This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on November 1, 1996.
TRD-9615938
Bobby D. Schmidt

Executive Director

Texas State Board of Examiners of Marriage and Family Therapists

Effective date: November 22, 1996

Proposal publication date: May 3, 1996

For further information, please call: (512) 458-7236

SUBCHAPTER M.Licensing of Persons with Criminal Backgrounds 
22 TAC sec.801.332
The amendment is adopted under Texas Civil Statutes, Article
4512c-1, sec.11(d) concerning rules on complaint information, sec.11A(a)
concerning rules on complaint investigations and handling, sec.11(B) concerning
rules on informal disposition, sec.12(a) concerning rules on fees, sec.13(d)
concerning adoption of a code of ethics, sec.20(c) concerning rules on
temporary licenses, sec.21(h) concerning rules on continuing education,
and sec.25(e) concerning rules on a schedule of sanctions and generally
under Article 4512c-1, which requires the Texas State Board of Examiners
of Marriage and Family Therapists to adopt rules that are reasonably necessary
for the proper performance of its duties under the Act. 

This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on November 1, 1996.
TRD-9615937
Bobby D. Schmidt

Executive Director

Texas State Board of Examiners of Marriage and Family Therapists

Effective date: November 22, 1996

Proposal publication date: May 3, 1996

For further information, please call: (512) 458-7236

SUBCHAPTER N.Informal Disposition
22 TAC sec.801.351
The amendment is adopted under Texas Civil Statutes, Article
4512c-1, sec.11(d) concerning rules on complaint information, sec.11A(a)
concerning rules on complaint investigations and handling, sec.11(B) concerning
rules on informal disposition, sec.12(a) concerning rules on fees, sec.13(d)
concerning adoption of a code of ethics, sec.20(c) concerning rules on
temporary licenses, sec.21(h) concerning rules on continuing education,
and sec.25(e) concerning rules on a schedule of sanctions and generally
under Article 4512c-1, which requires the Texas State Board of Examiners
of Marriage and Family Therapists to adopt rules that are reasonably necessary
for the proper performance of its duties under the Act. 

This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on November 1, 1996.
TRD-9615936
Bobby D. Schmidt

Executive Director

Texas State Board of Examiners of Marriage and Family Therapists

Effective date: November 22, 1996

Proposal publication date: May 3, 1996

For further information, please call: (512) 458-7236

SUBCHAPTER O.Formal Hearings
22 TAC sec.sec.801.361, 801.362, 801.364-801.366, 801.368, 801.369 
The amendments and new section are adopted under Texas Civil
Statutes, Article 4512c-1, sec.11(d) concerning rules on complaint information,
sec.11A(a) concerning rules on complaint investigations and handling, sec.11(B)
concerning rules on informal disposition, sec.12(a) concerning rules on
fees, sec.13(d) concerning adoption of a code of ethics, sec.20(c) concerning
rules on temporary licenses, sec.21(h) concerning rules on continuing education,
and sec.25(e) concerning rules on a schedule of sanctions and generally
under Article 4512c-1, which requires the Texas State Board of Examiners
of Marriage and Family Therapists to adopt rules that are reasonably necessary
for the proper performance of its duties under the Act. 

This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on November 1, 1996.
TRD-9615935
Bobby D. Schmidt

Executive Director

Texas State Board of Examiners of Marriage and Family Therapists

Effective date: November 22, 1996

Proposal publication date: May 3, 1996

For further information, please call: (512) 458-7236

22 TAC sec.801.364, sec.801.365
The repeals are adopted under Texas Civil Statutes, Article
4512c-1, sec.11(d) concerning rules on complaint information, sec.11A(a)
concerning rules on complaint investigations and handling, sec.11(B) concerning
rules on informal disposition, sec.12(a) concerning rules on fees, sec.13(d)
concerning adoption of a code of ethics, sec.20(c) concerning rules on
temporary licenses, sec.21(h) concerning rules on continuing education,
and sec.25(e) concerning rules on a schedule of sanctions and generally
under Article 4512c-1, which requires the Texas State Board of Examiners
of Marriage and Family Therapists to adopt rules that are reasonably necessary
for the proper performance of its duties under the Act.

This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on November 1, 1996.
TRD-9615934
Bobby D. Schmidt

Executive Director

Texas State Board of Examiners of Marriage and Family Therapists

Effective date: November 22, 1996

Proposal publication date: May 3, 1996

For further information, please call: (512) 458-7236

TITLE 25. HEALTH SERVICES
PART I. Texas Department of Health
CHAPTER 29.Purchased Health Services
SUBCHAPTER G.Hospital Services
25 TAC sec.29.607
(Editor's Note: Due to a technical error, the following adopted
rules submitted by the Texas Department of Health were inadvertently omitted
from the November 12, 1996 issue of the Texas Register. These rules became
effective on November 22, 1996.)

On behalf of the State Medicaid Director, the Texas
Department of Health (department) submits an adopted amendment to sec.29.607,
concerning provider participation requirements for hospitals without changes
to the proposed text as published in the August 16, 1996, issue of the 
Texas Register (21 TexReg 7711).

This amendment eliminates the waiver that allows military hospitals not
to be enrolled for participation in the Texas Medicaid Program. This provides
consistency with the majority of providers. 

This section, as amended, requires that military hospitals be enrolled
in Medicare. 

No comments were received regarding adoption of the amendment. 

The amendment is adopted under the Human Resources Code, sec.32.021
and the Government Code, sec.531.021, which provide the Health and Human
Services Commission with the authority to adopt rules to administer the state's
medical assistance program and is submitted by the Texas Department of Health
under its agreement with the Health and Human Services Commission to operate
the purchased health services program and authorized under Chapter 15, sec.1.07,
Acts of the 72nd Legislature, First Called Session (1991).

This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on October 31, 1996.
TRD-9615862
Susan K. Steeg

General Counsel

Texas Department of Health

Effective date: November 22, 1996

Proposal publication date: August 16, 1996

For further information, please call: (512) 458-7236

SUBCHAPTER DD.Tuberculosis
25 TAC sec.29.2901, sec.29.2902
On behalf of the State Medicaid Director, the Texas Department
of Health (department) submits adopted new sec.29.2901 and sec.29.2902,
concerning Tuberculosis (TB) clinic services, without changes to the proposed
text as published in the August 16, 1996, issue of the 
Texas Register (21 TexReg 7712). 

The new sections add coverage of TB clinic services provided to current
Medicaid recipients when the services are authorized as TB clinic services
by the department. By allowing these services to be a benefit of the program,
these services will be made available and accessible to the Medicaid population.
The new sections establish benefits and limitations for covered TB-related
clinic services for Medicaid recipients, and establish the reimbursement
methodology for calculating payment for services. 

No comments were received regarding adoption of the new sections. 

These sections are adopted under the Human Resources Code, sec.32.021
and Government Code, sec.531.021, which provide the Health and Human Services
Commission with the authority to adopt rules to administer the state's medical
assistance program and are submitted by the Texas Department of Health under
its agreement with the Health and Human Services Commission to operate the
purchased health services program and as authorized under Chapter 15, sec.1.07,
Acts of the 72nd Legislature, First Called Session (1991). 

This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on October 31, 1996.
TRD-9615863
Susan K. Steeg

General Counsel

Texas Department of Health

Effective date: November 22, 1996

Proposal publication date: August 16, 1996

For further information, please call: (512) 458-7236

CHAPTER 289.Radiation Control
The Texas Department of Health (department) adopts the repeal of sec.289.131;
and adopts new sec.289.101, concerning a memorandum of understanding between
the department and the Texas Natural Resource Conservation Commission explaining
radiation control jurisdictional responsibilities, without changes to the
proposed text as published in the June 14, 1996, issue of the 
Texas Register (21 TexReg 5426). 

The repeal and new section are part of the renumbering phase in the process
of rewriting the department's radiation rules in the Texas Register format.
The new section reflects the renumbering and includes new subsections explaining
the jurisdictional responsibilities for the management of radioactive 
wastewaters
that have been deleted from 25 TAC sec.289.202 (relating to Standards for
Protection Against Radiation). The new section also clarifies the reference
for the definition of oil and gas naturally occurring radioactive material
(NORM) waste as a result of the codification of House Bill 2623 of the 73rd
Texas Legislature and adds specifications for the maintenance of files on
known disposal sites and contaminated facilities. Other grammatical corrections
are incorporated to clarify the rule. 

No comments were received regarding adoption of the repeal and new section.
Texas Regulations for Control of Radiation
25 TAC sec.289.101
The new section is adopted under the Health and Safety Code,
Chapter 401, which provides the Texas Board of Health with authority to adopt
rules and guidelines relating to the control of radiation; and sec.12.001,
which authorizes the board to adopt rules for the performance of every duty
imposed by law on the board, the department, and the commissioner of health.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on November 1, 1996.
TRD-9615900
Susan K. Steeg

General Counsel

Texas Department of Health

Effective date: November 22, 1996

Proposal publication date: June 14, 1996

For further information, please call: (512) 458-7236

25 TAC sec.289.131
The repeal is adopted under the Health and Safety Code, Chapter
401, which provides the Texas Board of Health with authority to adopt rules
and guidelines relating to the control of radiation; and sec.12.001, which
authorizes the board to adopt rules for the performance of every duty imposed
by law on the board, the department, and the commissioner of health. 

This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on November 1, 1996.
TRD-9615899
Susan K. Steeg

General Counsel

Texas Department of Health

Effective date: November 22, 1996

Proposal publication date: June 14, 1996

For further information, please call: (512) 458-7236

TITLE 30. ENVIRONMENTAL QUALITY
PART I. Texas Natural Resource Conservation Commission 
CHAPTER 216.Water Quality Performance Standards for Urban
Development
SUBCHAPTER A.Water Quality Protection Zone
30 TAC sec.sec.216.1-216.11
(Editor's Note: Due to a technical error, the following adopted
rules submitted by the Texas Natural Resource Conservation Commission were
inadvertently omitted from the November 12, 1996 issue of the Texas Register.
These rules became effective on November 25, 1996.)

The Texas Natural Resource Conservation Commission
(commission) adopts new sec.sec.216.1-216.11, Subchapter A, concerning
water quality protection zones. Sections 216.1-216.9 and 216.11 are adopted
with changes to the proposed text as published in the May 3, 1996, issue
of the Texas Register (21 TexReg 3779). New
sec.216.10 is adopted without changes and will not be republished. 

EXPLANATION OF ADOPTED RULE 

The purpose of the new subchapter is to implement Senate Bill (SB) 1017,
enacted by the 74th Legislature, which added sec.26.179 to the Texas Water
Code, as well as other applicable provisions of the Texas Water Code providing
for the water quality protection. These rules set out the procedures and
criteria to be used by the commission in the following matters: (1) review
and approval of water quality plans and amendments submitted for tracts of
land 500 acres or larger designated as water quality protection zones; (2)
designation of water quality protection zones for tracts of land that are
less than 1,000 acres but not less than 500 acres in size; (3) expiration
of plans; (4) identification of one person or entity who will be an agent
for the zone; (5) public notification requirement; (6) determination of the
adequacy of annual reports to be submitted for water quality protection zones;
(7) requirements for corrective action; (8) enforcement; and (9) assessment
of fees. 

The rules delineate the obligations of agents, including implementing the
water quality plan, filing the annual report, taking corrective actions,
and paying the fees for the zone. Annual fees are required to be submitted
by the agents of all water quality protection zones, including those designated
prior to adoption of the rules. 

TAKINGS IMPACT ASSESSMENT 

The commission has prepared a Takings Impact Assessment for these rules
pursuant to sec.2007.043 of the Texas Government Code. The following is
a summary of that Assessment. The specific purpose of the rule is to implement
Senate Bill 1017, enacted by the 74th Legislature, which added sec.26.179
to the Texas Water Code. The rules will substantially advance this purpose
by setting out the procedures and criteria to be used by the commission in
the review and approval of water quality plans and amendments submitted for
tracts of land designated as water quality protection zones; authorizing
the approval of requests to designate water quality protection zones for
tracts of land that are less than 1,000 acres but not less than 500 acres
in size; and describing the determination of the adequacy of annual reports
to be submitted for water quality protection zones and the assessment of
fees. Promulgation and enforcement of these rules could affect private real
property which is the subject of these rules. 

The proposed rules will not involve a physical invasion, dedication, or
exaction of real property which is the subject of the rules, do not restrict
or limit a property right that would otherwise exist, and do not eliminate
all economic uses of private real property which is the subject of the rules.
The commission has determined that there are no reasonable alternative
actions that could accomplish the specified purpose of these rules. 

The proposed rules do not require a capital expenditure, do enhance the
value of the real property which is the subject of the rules, and do not
impair the value of the real property which is the subject of the rules.
The designation of water quality protection zones is voluntary for the owners
of the property. Capital expenditure will be required only by those choosing
to invoke the rule. 

HEARING AND COMMENTERS 

A public hearing was conducted on June 4, 1996. Oral testimony was provided
at the hearing. The deadline for submittal of written comments was extended
from June 3, 1996, to June 21, 1996, and the extension was published in the
May 28, 1996, issue of the Texas Register
(21 TexReg 4847). Written comments were provided by individuals as well as
representatives of the following groups: Barton Springs/Edwards Aquifer 
Conservation
District (the District); City of Austin (the City); FM Properties Operating
Company (FM Properties); Lakeway Management Company (Lakeway Mtg. Co.); T.H.L.
Ranch, Ltd. (THL Ranch); and Save Our Springs Legal Defense Fund (SOS). 
GENERAL COMMENTS 

An individual and the SOS objected to the legislation on numerous grounds.
The commission responds it must promulgate rules to implement legislation
enacted by the Texas Legislature. 

Lakeway Mgt. Co. commented that generally the proposed rules exceed or
depart from the regulatory scheme set out in SB 1017 in several major respects,
and that the proposed rules go beyond those statutory requirements including
provisions for the protection of groundwater as well as for surface streams.
The commission responds that sec.26.179 of the Water Code addresses the
protection of quality of water within the zone (sec.26.179(d)) and the
protection of water quality in waterways (sec.26.179(a)(2)). Further, 
sec.26.179(k)
requires that zones must satisfy all other state and local requirements for
the protection of water quality. Section 26.001(5) of the Texas Water Code
defines water to include, among other things, groundwater. Section 26.179
does not specify a different definition of water. In that sec.26.179 does
not specifically refer to groundwater, the commission has removed express
requirements relating to groundwater protection. However, proposed plans
must demonstrate compliance with all laws and regulations relating to the
protection of the quality of water, which includes groundwater. Regulations
protecting groundwater quality apply to permitting, licensing, and spill
response programs that are designed to prevent pollution from storage, 
transportation,
and disposal of waste, hazardous substances, and wastewater. Specifically,
the following chapters of Title 30 of the Texas Administrative Code may apply
to water quality protection plans: Chapter 313 (relating to Edwards Aquifer),
Chapter 285 (relating to On-Site Wastewater Treatment), Chapter 338 (relating
to the Water Well Drillers Rules), Chapter 317 (relating to Design Criteria
for Sewerage Systems), Chapter 334 (relating to Underground and Aboveground
Storage Tanks), Chapter 309 (relating to Effluent Limitations), and Chapter
311 (relating to Watershed Protection). New sec.216.1(h) has been added
to reflect the requirement for development within a zone to comply with all
applicable water quality laws and regulations. 

An individual commented that the preamble of sec.216.1 does not fully
state the statutory time period requirement of the three municipal ordinances
or amendments stated in subsection (c) of sec.26.179, Texas Water Code.
The commission clarifies that sec.26.179 of the Texas Water Code applies
only to areas within the extraterritorial jurisdiction of cities with a 
population
greater than 5,000 and in which the municipality has enacted or proposed
at least three ordinances to regulate water quality within their 
extraterritorial
jurisdiction in the five years prior to June 17, 1995, or enacts or attempts
to enforce three or more ordinances or amendments attempting to regulate
water quality or control or abate water pollution in the area in any five
year period. The law does not apply to areas within the extraterritorial
jurisdiction of a city with a population greater than 900,000 that has extended
an ordinance to prevent the pollution of an aquifer which is the sole or
principal drinking water source for the municipality. However, this does
not change sec.216.1(a) which states that the subchapter applies only to
areas designated as zones under sec.26.179 of the Texas Water Code. 

An individual commented that the proposed rule makes no provision for revision
procedures during the 120-day approval period. The commission agrees with
the comment and provisions for a revision process has been included in 
sec.216.3(e)(4).
FM Properties suggested that the language in the rule preamble pertaining
to the commission's role in enforcing the provisions of this rule be modified
to provide for determining whether the plan has been implemented as designed
and approved. The commission responds that its role in enforcing the provisions
of this rule is to determine if water quality protection is achieved as defined
by the statute and, in instances where water quality protection is not achieved,
to ensure that appropriate corrective actions are implemented. 

The District commented that 90% pollutant removal efficiency is the probable
upper end of the range for the best management practices (BMPs) identified
in the preamble to the proposed rules, but the upper end of the reported
range for these practices is less than 90%. The District stated that management
measures proposed by an applicant may be unrealistic in achieving a 90% 
reduction
in loadings. The commission responds that discussion of pollutant removal
efficiencies for individual BMPs was presented in the rule preamble simply
as explanatory information, not to prescribe the specific BMP which must
be used to achieve the water quality performance standard. For the purposes
of actual compliance with the provisions of these regulations, parties 
responsible
for water quality protection zones are required to implement the management
practices necessary to achieve water quality protection as defined by Texas
Water Code sec.26.179. 

The District commented that the proposed rules should include mechanisms,
such as those specified in 30 TAC Chapter 313 (regarding the Edwards Aquifer),
to account for environmentally sensitive features such as caves, sinks, and
faults because many water quality protection plans could be implemented in
the Barton Springs segment of the Edwards Aquifer. The District also commented
that the proposed rules should provide for management measures to reduce
the vulnerability of environmentally sensitive features to stormwater 
contamination.
The commission responds that sec.26.179 of the Texas Water Code requires
development in a zone to comply with all other applicable state laws and
commission rules regulating water quality which are in effect on the date
the zone is designated. This includes, but is not limited to, the groundwater
protection and aquifer contamination provisions for sensitive features and
stormwater contamination contained in 30 TAC Chapter 313. Therefore, it would
be redundant to provide for identical provisions within Chapter 216. 

The District commented that the commission should "err on the safe side"
when evaluating water quality protection plans and the impacts these 
developments
will have on drinking water supplies in terms of both water quality and water
quantity. The commission believes that the concerns of the commenter are
satisfied within the provisions of the rule. Water Quality Plans will be
reviewed and evaluated based on the requirements which are set forth in this
rule and in accordance with sec.26.179 of the Texas Water Code. 

FM Properties, Lakeway Mgt. Co., THL Ranch, and an individual commented
that the proposed sec.216.1 overstates the applicability of commission
rules to the water quality protection zone. The commission agrees the provisions
of the rule could more closely track applicable language contained in sec.26.179
of the Texas Water Code. Accordingly, language in the rule has been modified
to state that only those rules of the commission in effect at the time the
water quality zone is designated shall apply to the zone as provided by 
sec.26.179(k)
of the Texas Water Code. The rule has been further clarified by stating the
applicability of the rules effective at the time an application to amend
the water quality protection plan is filed with the commission to incorporate
new acreage into the zone. The scope of review and the applicability of any
new or amended rules is limited to the proposed new acreage. 

THL Ranch commented that sec.216.1 should acknowledge that land use activities
ongoing at the time of water quality zone designation can continue without
providing water quality infrastructure with specific references to ongoing
agricultural and ranching activities. The commission agrees, in part, with
this comment and language has been added to sec.216.1 of the rule stating
the water quality protection provisions of the rule apply only to new 
development
that occurs in a water quality protection zone. Agricultural activities are
already specifically excluded from the definition of development; therefore,
the language in the rule has not been modified in response to this comment.
Rather, ranching has been added to the list of activities that are excluded
from the definition of development. 

An individual commented that sec.216.1 needs to address the applicability
of the rules to Water Quality Plan Zones approved before these rules were
adopted. The commission responds that plans submitted before the rules went
into effect were approved by the commission pursuant to its interpretation
of Texas Water Code, sec.26.179. However, plans submitted subsequent to
the issuance of commission regulations will be considered on the basis of
the regulations in effect at the time the zone is designated. The amendment
applications will be reviewed in accordance with the regulations in effect
at the time the zone is designated. If, however, the plan is proposed to
be amended to incorporate new acreage into the zone, the newly amended area
will be subject to the rules in effect at the time the zone is expanded.
FM Properties argued that the term "annual average constituent loadings,"
as defined in sec.216.2, is meaningless and the term should be revised
or eliminated in sec.216.2 and wherever it occurs in the regulations. The
commission agrees the term could be defined more precisely to make its use
in the rules more meaningful. Therefore, the term has been modified to "annual
constituent loading" and has been defined as the sum of constituent mass
loads transported in runoff from a water quality protection zone over a period
of one year.  

FM Properties commented that the term "average annual constituent loadings"
as defined in sec.216.2 is not properly defined since it is based upon
the term "annual average constituent loadings" which, in an opinion stated
previously by FM Properties, is a meaningless term. The commission agrees
this term could also be defined more precisely to make its meaning and 
applicability
more clear. Accordingly, the definition has been modified to reference "annual
constituent loadings" rather than "annual average constituent loadings."
FM Properties commented that the term "background levels of water quality"
is not defined in a meaningful way in sec.216.2 because the definition
is based upon the term "average annual mass loadings" which, in an opinion
stated previously by FM Properties, is of questionable meaning and 
applicability.
The commission has previously agreed the subject terms could be defined more
precisely. Modifications of the terms "annual average constituent loadings"
and "average annual constituent loadings" previously described will 
substantially
address the comment with regard to this term. The commission has also modified
the definition to include average annual constituent concentration. 

FM Properties and an individual commented that the phrase "runoff from
a water quality protection zone to waterways in the state" in the definition
for background levels of water quality contained in sec.216.2 is vague
and confusing and suggested it be changed to "runoff from a water quality
protection zone to adjacent waterways in the state". This individual further
suggested that the definition for "waterways" or "water in the state" be
clarified so that retention ponds, water quality ponds, conveyances, and
other water quality facilities are excluded. The commission agrees that such
ponds and facilities do not contain "water in the state." However, the 
commission
believes that the proposed rule, which parallels the definition contained
in sec.26.001(5) of the Texas Water Code, clearly indicates this and, therefore,
the change proposed by the commenter is unnecessary. The definition was changed
to waterways throughout the rule and the reference to groundwater was removed
from the definition. 

FM Properties, Lakeway Mgt. Co., and THL Ranch commented that the term
"best management practices" should be defined in sec.216.2. The commission
agrees with the comment and has included a definition of best management
practices in the rule. The definition identifies activities undertaken to
prevent or reduce pollution of water as BMPs and is consistent with the term
as it is proposed to be defined in Chapter 213 relating to the water quality
protection of the Edwards Aquifer. 

An individual stated that if the commission recognizes different legal
categories of BMPs under sec.26.179 of the Texas Water Code, then the rule
should recognize these categories and address their statutory purpose. The
commission does recognize a wide range of BMPs and categories of BMPs as
being potentially applicable under Texas Water Code, sec.26.179. However,
the commission does not propose to prescribe specific BMPs in this rule.
Rather, the commission will consider BMPs proposed by applicants to meet
the performance goal for a water quality protection zone and approve those
that can be technically justified based upon studies and reports that are
generally relied upon by professionals in the environmental protection field
including, but not limited to, "Guidance Specifying Management Measures for
Sources of Nonpoint Pollution in Coastal Waters" (EPA/NOAA), BMPs contained
in technical guidance available from the executive director, or those which
can be shown to satisfy similar requirements in other equivalent federal,
state or local water quality regulations.  

An individual commented that the definition of "commencement of development"
contained in sec.216.2 does not recognize the exclusion of agricultural
and silviculture activities from the definition of development and the term
is not used elsewhere in the regulations. The commission recognizes that
the State Soil and Water Conservation Board is the lead state agency for
the protection of water quality related to agriculture and silviculture 
activities
and agrees with the comment and omits this definition from the rule. 

FM Properties commented that the definition of development should exclude
construction of water quality protection facilities. The commission disagrees
with the comment because the definition of development needs to encompass
all activities that could impact water quality in the zone. The construction
of such facilities is addressed in sec.216.6(b)(4), regarding BMPs to be
utilized to protect water quality during such construction. 

THL Ranch, FM Properties, Lakeway Mgt. Co., and an individual stated that
the definition of "development" in sec.216.2 is overly broad and includes
activities such as clearing, application of chemical constituents and alteration
of vegetative cover, and other "landscape improvements" that are outside
the scope of water quality concerns addressed by Texas Water Code sec.26.179.
The commission responds that it has attempted to include within the definition
of development all development-related activities that could reasonably be
expected to potentially affect the quality of the water within the zone,
pursuant to Texas Water Code sec.26.179. The commission believes that activities
involving, among other things, clearing, application of chemical constituents,
and other human-made changes of the land surface are forms of development
which may pose such impacts. The commission recognizes that certain types
of activities, such as minimal clearing and the installation of underground
utilities which require no ongoing maintenance, create only a temporary 
potential
to adversely impact water quality and should, therefore, be exempted from
the permanent water quality protection requirements of the statute. However,
temporary erosion and sedimentation controls may be required for such 
development-related
activities. The definition of "development" has been modified to acknowledge
these circumstances. 

The District commented that it may be more appropriate to define a "phase
of development" as being complete when 90% of the planned development is
in place because of the monitoring requirements and assessments used to 
determine
the effectiveness of water quality plans. The commission agrees with the
comment and the definition of "phase of development" has been modified to
state that the phase is complete when 90% of the planned development is in
place. This corresponds to a parallel requirement in the definition of 
"development."
This modification ensures that landowners who develop their land in phases
will be treated similarly to landowners who develop their land all at once.
Further, the rule has been modified to require the plan to specify the 
developmental
sequence and to provide that, if construction in a phase has ceased for one
year or more, the development will be deemed completed. A definition for
construction has been added to the rule. 

The District asked what happens to a water quality plan if development
in a water quality protection zone does not achieve 90% of its proposed build
out. The commission responds that if construction has ceased for one year
or more, that monitoring will be required if the plan provides for maintenance
of background levels of quality. Capture and retention structures and/or
approved BMPs must be in place. Additionally, BMPs are required to ensure
that water quality will be protected. 

An individual requested clarification of the definition of "contiguous
tract" in sec.216.2. The commission agrees that clarification is needed
and has modified the definition of the term in the rule. The modified definition
now addresses the two types of contiguous tracts that are authorized to be
designated as a zone. The definition is consistent with guidance as to the
legislative intent provided to the commission from the sponsor of the 
legislation.
The commission has also added a definition for integrated development to
supplement the definition of contiguous tract. 

An individual inquired whether a transfer of ownership of part of the land
in the zone will require an amendment or invalidate the zone designation.
The commission responds that the owners of the zone, who are required to
have common ownership at the time of designation, may transfer land to others
without regard to whether the purchasers have common ownership. The water
quality plan for the zone is a covenant running with the land and, therefore,
binds all subsequent owners of the land. 

FM Properties commented that the proposed definition for the term "phases
of development" in sec.216.2 attaches more significant meaning to the term
than is authorized by Texas Water Code sec.26.179. FM Properties and THL
Ranch expressed concern that the statute requires that if future phases of
development are not specified in the water quality plan, then, they must
be specified through plan amendments. In response, the commission notes that
Texas Water Code sec.26.179 refers to phases of development with regard
to monitoring and, in order for the commission to ascertain when monitoring
is required to commence, it is important for the plan or plan amendment to
describe the proposed development in terms of phases of development as that
term is defined by the proposed rule. The applicant may elect not to describe
its development in terms of phases, which will have an effect on the time
monitoring is required to begin. The definition of the term, however, does
not impose any additional requirements to amend the plan. 

The City recommended that the phrase "disposition of the water on-site,"
as used to define "retention" in sec.216.2, be further defined to preclude
any controls in a substantial tributary channel because placement of retention
devices in a stream channel allows the flushing of the first 1.5 inches of
rainfall after capture and, therefore, does not fulfill the intent of the
requirement. The commission agrees that the placement of retention structures
should be precluded in perennial streams. The rules require the submission
of design criteria and specifications for BMPs to be implemented in the zone.
The issue of flushing captured rainfall from retention facilities located
in dry gulleys shall be addressed in the commission's review of the design
of these facilities. The definition of the term has been modified to provide
that retained stormwater is to be disposed of properly. 

The District commented that sec.216.3 is ambiguous and asked if owners
of contiguous tracts of land with more than 1,000 acres are required to submit
a Designation Request. The commission responds that owners of contiguous
tracts of land with more than 1,000 acres do not need commission approval
to designate their zones, and therefore do not need to file a Request. Under
Texas Water Code sec.26.179, their designation becomes effective immediately
upon recordation in the deed records of the county in which the land is located.
An individual asked why a metes and bounds description and a map are not
required for both types of designations of water quality protection zones
described in sec.216.3 and sec.216.4. The commission agrees that the
submission requirements should be the same for both types of designations,
tracts greater than 1,000 acres in size and those greater than 500 acres
but less than 1,000 acres in size. The rule language has been modified to
provide for the submission of metes and bounds descriptions in the designation
of both types of water quality protection zones and the requirement to submit
a map has been deleted.  

An individual commented on sec.216.3(1) by asking whether the total acreage
proposed in the zone, information on adjoining property owners, and copies
of state and federal permits should be required as part of the contents of
the designation. The commission responds that such information is unnecessary
for the review and approval of a water quality protection plan as provided
by Texas Water Code sec.26.179. 

FM Properties, Lakeway Mgt. Co., and THL Ranch suggested that the sworn
signature of either the applicant or the authorized agent for the applicant
be required on the application, but not both. The commission agrees with
the comment and the provisions in the rules have been modified so as to require
either the sworn signature of the applicant or the authorized agent for the
applicant, but not both. 

FM Properties, Lakeway Mgt. Co., and THL Ranch commented that the requirements
of sec.216.3(1)(B) and sec.216.4(a) relating to the submission of site
plans, plats, development plans, maps, and other detailed information in
the designation a water quality protection zone are inappropriate and 
inconsistent
with the provisions of statute. THL Ranch commented that sec.26.179, Texas
Water Code, allows designation of a water quality protection zone before
site plans and required documents have been prepared. An individual commented
the term "site plan" needs to be clarified to include a survey plat of the
property in a zone. The commission agrees with the comments relating to the
amount of information required for the designation of a water quality protection
zone. Provisions for the submission of site plans, plats, development plans,
maps, and other detailed information have been deleted from the rules relating
to the contents of designations of water quality protection zones. Rather,
such information must be provided in the application for approval of the
related water quality plan. 

The District commented that sec.216.3(1)(B) should be rewritten to include
the location of all water wells, abandoned wells, and cisterns. The commission
agrees that such information should be included in the water quality plan
for a water quality protection zone to ensure that the water quality plan
protects these types of features, consistent with 30 TAC Chapters 313 and
338. However, this information is not required for the purposes of designating
a water quality protection zone. 

An individual suggested that the descriptions of proposed land uses provided
in sec.216.3(1)(C) and sec.216.4(a)(2) should be specific enough to indicate
the number of acres for each use, the total number of living units, and the
square footage of commercial uses because such information is used in the
calculation of runoff. The commission responds that such information is 
unnecessary
for the designation of a water quality protection zone and, rather, is addressed
in the review of a water quality plan for a zone. 

FM Properties, Lakeway Mgt. Co., and THL Ranch commented that the proposed
requirements for applicants to identify the water quality protection plans
on properties adjacent to a proposed water quality protection zone and to
demonstrate compatibility with these plans exceed the commission's authority
and they duplicate work that should be the responsibility of the commission.
SOS commented it is impossible for owners of land requesting approval to
designate water quality protection zones to identify and demonstrate 
compatibility
with adjacent water quality protection plans without further specifications,
and these requirements would be difficult to meet and subject to different
interpretations even with additional specifications. SOS asked if these 
provisions
apply to properties which share a common boundary, how future development
plans to be anticipated, and what would be the scope of the analyses of 
cumulative
water quality impacts. The District commented that compatibility with other
plans and cumulative impacts of development should be considered by the 
commission
and asked what criteria the commission will use to determine if water quality
plans are compatible. FM Properties, Lakeway Mgt. Co., THL Ranch, and an
individual stated that the provision in the rule to deny approval of a water
quality plan if the commission determines the plan is not compatible with
adjacent water quality plans should be eliminated because this is a more
stringent standard than is required by Texas Water Code sec.26.179. SOS
requested that the commission define "compatible" and "incompatible" with
regard to adjacent water quality protection plans when considering the approval
of requests to designate water quality protection zones. The commission responds
that the regionalization of stormwater quality management is an appropriate
basis for the commission to implement the provisions of Texas Water Code
sec.26.179(d) to give prior approval to a request to designate a water
quality protection zone for tracts of land larger than 500 acres but less
than 1,000 acres in size. However, comments received by the commission with
regard to this provision have correctly identified difficulties associated
with the requirements specified in the proposed draft rules. Therefore, these
requirements have been deleted from the final rule and, instead, the commission
staff will perform this compatibility analysis and cumulative assessment.
FM Properties, Lakeway Mgt. Co., THL Ranch, and an individual commented
that under sec.216.3(2)(C), existing state and federal laws, rules, regulations,
and policies do not give the commission the authority to protect beneficial
uses of surface and groundwater. THL Ranch commented that the commission
is without authority to adopt or implement such a requirement for groundwater
and Lakeway Mgt. Co. commented that this requirement is inconsistent with
the provisions of sec.26.179, Texas Water Code. The commission responds
that sec.26.179 of the Water Code addresses the protection of the quality
of water within the zone (sec.26.179(d)) and the protection of water quality
in waterways (sec.26.179(a)(2)). Further, sec.26.179(k) requires that
zones satisfy all other state and local requirements for the protection of
water quality. Section 26.001(5) of the Texas Water Code defines "water"
to include both surface water and groundwater. Section 26.179 does not specify
a different definition of water. Texas Surface Water Quality Standards, as
presented in 30 TAC Chapter 307, specify the beneficial uses for surface
waters that the commission protects under Chapter 26 of the Texas Water Code.
In that sec.26.179 does not specifically refer to groundwater, the commission
has removed express requirements relating to groundwater protection. However,
proposed plans must demonstrate compliance with all laws and regulations
relating to the protection of the quality of water, which includes groundwater.
Regulations protecting water quality apply to permitting, licensing, and
spill response programs that are designed to prevent pollution from storage,
transportation, and disposal of waste, hazardous substances, and wastewater.
Specifically, the following chapters of Title 30 of the Texas Administrative
Code may apply to water quality protection plans: Chapter 313 (relating to
Edwards Aquifer), Chapter 285 (relating to On-Site Wastewater Treatment),
Chapter 338 (relating to the Water Well Drillers Rules), Chapter 317 (relating
to Design Criteria for Sewerage Systems), Chapter 334 (relating to Underground
and Aboveground Storage Tanks), Chapter 309 (relating to Effluent Limitations),
and Chapter 311 (relating to Watershed Protection). New sec.216.1(h) has
been added to reflect the requirement to comply with all applicable water
quality laws and regulations. 

FM Properties, Lakeway Mgt. Co., and THL Ranch commented that 
sec.sec.216.3(2)(D),
216.7(a)(2), and 216.7(b), regarding notification to a municipality and the
county judge, is not required by Texas Water Code sec.26.179. Conversely,
the District and the City commented that impacted municipalities, counties,
and groundwater conservation districts should be included in the review of
requests for approval to designate water quality protection zones. The 
commission
responds that this process provides notice to affected incorporated cities,
counties, and groundwater conservation districts having jurisdiction over
the area potentially affected by the proposed water quality protection zone
and provides for public input on these matters. 

The District asked what will happen to the review of water quality plans
in counties without commission regional staff, as specified in Texas Water
Code sec.26.179. The commission's Field Operations Division is responsible
for the review of plans required by Chapter 216. The division has staff in
15 regions which cover all counties in the state. Therefore, there is no
area of the state for which there are not regional staff. Currently, the
affected counties under this rule are Hays, Travis, and Williamson which
are covered by the Region 11 office in Austin. 

The District asked if water quality plans are only intended for areas of
the state in and adjacent to the Edwards Aquifer. The commission responds
that sec.216.1, Applicability, indicates that the rules apply wherever
the applicability requirement under Texas Water Code sec.26.179(c) and
(n) are met and may not be exclusive to areas of the state in and adjacent
to the Edwards Aquifer. 

FM Properties, Lakeway Mgt. Co., and THL Ranch asked for a definition of
the phrase "properly filed," as used in sec.216.3(e)(4). The commission
responds by clarifying sec.216.3(e)(3). "Administratively complete" means
an application which, on its face, appears to meet all application content
requirements. This is preliminary to the technical review of the application
to determine whether the plan as proposed will meet the applicable performance
standards. Accordingly, the phrase "properly filed" has been deleted and
replaced with the phrase "filed with the commission". The review and action
on applications for plan approval for a water quality protection zone shall
be completed within 120 days of its filing with the commission and those
plans which are found not to be administratively complete as described in
sec.216.3(d) will be denied. 

FM Properties, Lakeway Mgt. Co., THL Ranch, and an individual suggested
that procedures in sec.216.3 used to designate a water quality protection
zone for tracts of land less than 1,000 acres in size should be more clearly
differentiated from procedures in sec.216.4 used to designate tracts greater
than 1,000 acres in size. The commission agrees with the comment and has
clarified language in the rule differentiating procedures for tracts greater
than 1,000 acres in size from those for tracts greater than 500 acres but
less than 1,000 acres in size. Both sections have been combined under sec.216.3,
Designation of Water Quality Protection Zones, with clearer subsection titles.
The District commented that other management measures applicants will use
to mitigate contaminated stormwater pollution should be added to the contents
of designations of water quality protection zones as specified in 
sec.216.4(a)(4).
The commission responds that the referenced information is unnecessary for
the designation of a water quality protection zone but, rather, will be 
addressed
in the water quality plan for the zone. FM Properties, Lakeway Mgt. Co.,
THL Ranch, and an individual commented that the language used in sec.216.4(b)
to describe recordation requirements for water quality protection zones,
including the use of the phrase "complete and accurate," should be modified
to conform to the exact language used in the statute. The commission responds
that the requirement that the designation be complete and accurate is essential
to ensure that landowners avoid filing a metes and bound description of the
zone that fails to correctly describe the zone. If the description is incomplete
or inaccurate, it does not meet the statutory requirements and the zone 
designation
would not be effective. 

FM Properties, Lakeway Mgt. Co., THL Ranch and an individual commented
that the requirements for the submittal of a certified copy of a water quality
protection zone should be deleted in sec.216.4(c). The commission agrees
that a certified copy is unnecessary and the requirement has been deleted.
However, the commission will require that a copy of the recordation be submitted
to the appropriate agency regional office within two working days of its
recording in the county deed records. 

FM Properties, THL Ranch, and an individual commented that the commission
should not impose a five-year expiration date in sec.216.4 on the designation
of a water quality protection zone due to failure to commence construction
in sec.216.4(d) because there is no such provision in Texas Water Code
sec.26.179. The commission disagrees with this comment since it would allow
for the designation of a zone to forever prevent the applicability of new
technology, the consideration of new information, or the consideration of
or changed circumstances with regard to the compatibility of other plans
and their cumulative impacts. Such re-examination is reasonable and is 
unburdensome
to the regulated community, since little or no expenditure or effort has
been made toward construction. The requirement for a term to describe the
absence of construction within a certain period is also consistent with 
provisions
of Chapter 313, Edward Aquifer, of this title, relating to water pollution
abatement and plans. It also prevents the unnecessary administrative burden
and regulatory confusion of maintaining and applying different sets of rules
for an indefinite period of time in a piece-meal and inconsistent manner.
An individual, FM Properties, Lakeway Mgt. Co., and THL Ranch requested
clarification as to whether all purchasers who acquire land from the owner
or owners who originally designate the zone will become responsible parties
under the provisions of sec.216.5. The commission has clarified the rule
by deleting the definition of "responsible party" and providing, pursuant
to the statute, that all owners of property within the zone are subject to
the plan, since it is a covenant running with the land, and are responsible
for compliance with the terms of the plan. The rule now includes a definition
of "agent" and requires that the plan identify one person or entity who will
be an agent of the zone and accept performance obligations set forth under
the plan. The designation of an agent not only will ensure that the plan
will be implemented but also will allow the commission to coordinate with
one person or entity and otherwise facilitate enforcement of the plan by
the commission. The plan may designate different agents who will manage the
zone at different stages. When the zone is initially designated, for example,
the plan would specify the developer or development company as agent. The
plan should further identify the individual or entity that will be implementing
the plan after the development is completed. The commission has also modified
the rule to require that the owner or owners of the property in the zone
inform the commission in writing of any changes in the agent. 

An individual commented that the commission needs to ensure that responsible
parties specified in sec.216.5 are properly maintaining the BMPs in the
zone. The commission responds that the annual report must contain information
on the operation and maintenance of these structures along with periodic
inspections conducted by commission staff. 

An individual commented that criteria are needed for determining how the
amount of a bond specified in sec.216.5(b) would be calculated. Additionally,
SOS commented the proposed rules should require a financing mechanism to
be established for ongoing maintenance and rehabilitation of structural 
controls.
The commission comments that the agent, on behalf of the owners, is required
to implement the plan, under sec.216.5. The commission has determined that
the agent will exercise his or her discretion in the manner of financing
expenses related to the zone. Therefore, the proposed requirements for posting
a bond have been deleted. 

SOS commented that sec.216.6 does not specify requirements for monitoring
flow volume and that this factor needs to be carefully measured to generate
accurate estimates of constituent loadings. The commission agrees that flow
volume must be measured in order to obtain flow composite samples and to
calculate constituent loadings. However, it is unnecessary to prescribe how
flow monitoring is to be implemented in order to meet the requirements of
these rules. The commission will consider flow monitoring methodologies proposed
by applicants for water quality protection zones and will accept those 
methodologies
that are technically justified or which are shown to satisfy similar 
requirements
of other equivalent federal, state, or local water quality regulations. 
FM Properties, Lakeway Mgt. Co., and THL Ranch commented that the language
in sec.216.6(a) should be clarified to say that maintaining surface and
groundwater quality standards is not a requirement of water quality protection
zones because Texas Water Code sec.26.179 provides that meeting the water
quality protection provisions of the statute is assumed to satisfy requirements
for maintaining water quality standards. The commission responds that sec.26.179
addresses the protection of surface streams from contaminated surface runoff
and that the rule clarifies the commission's existing jurisdictions under
the Texas Water Code in matters relating to urban stormwater quality management.
The commission also disagrees with this comment because Texas Water Code
sec.26.179(k)(1) specifically requires development in water quality protection
zones to comply with all existing state laws and commission rules in effect
at the time the zone is designated. This includes state surface water quality
standards specified in 30 TAC Chapter 307. In that the statute does not refer
to groundwater quality protection, the commission has removed express reference
to requirements designed to protect groundwater quality. However, proposed
plans must show compliance with all water quality laws and regulations and
not merely with sec.26.179 and Chapter 216. As stated earlier, rules that
contain water quality protection provisions include, but are not limited
to, existing rules under Title 30 of the Texas Administrative Code which
govern various permitting, licensing, and spill response programs that address
surface and groundwater pollution prevention from storage, transportation,
and disposal of waste, hazardous substances, and wastewater. 

An individual commented that the purpose of the phrase "in the manner described
in this subchapter", as used in sec.216.6(a)(2), relating to water quality
protection by capturing and retaining rainfall from developed areas, is unclear.
The commenter also noted that the proposed rules do not specify particular
technologies and the phrase should be deleted. The commission responds that
the phrase is necessary to ensure that the strategy of capture and retention
must be implemented in accordance with the various requirements set forth
in Chapter 216. 

The City commented that sec.216.6(a)(2) does not specify an assumption
for a design storm duration and, therefore, no determination of the adequacy
of the water quality control measures can be made. The City recommended that
a calculation method consistent with the standard Soil Conservation Service
(now the Natural Resource Conservation Service) method and a design storm
of 1.5 inches in three hours be specified in the rule. The District commented
that sec.216.6(b)(3), pertaining to the capture and retention of rainfall
runoff, should specify a drawdown period since a specific treatment technology
is specified. The commission agrees that the proposed methodologies could
be acceptable. However, there may be more than one acceptable methodology
for these purposes. Therefore, the commission will consider methodologies
proposed by applicants for water quality protection zones and will accept
those methodologies that can be technically justified or which can be shown
to satisfy similar requirements of other equivalent federal, state, or local
water quality regulations. 

The District commented that the recordation and submittal requirements
for water quality plans in sec.216.6(b), sec.216.3(2)(F) and sec.216.3(2)(G)
should be clarified. The commission agrees and has classified the recordation
requirements by specifying the requirements in sec.216.3 for designating
water quality protection zones and inserting specific provisions for zones
containing 500-999 acres of land and for zones containing more than 1,000
acres of land. 

An individual commented that the first sentence in sec.216.6(b)(1) should
be deleted because Texas Water Code sec.26.179 specifies information on
the determination of background levels of water quality to be included in
water quality plans. Further, the commenter stated that background water
quality information is important in judging if a proposed water quality plan
meets the requirements of the statute. The commenter also noted the first
sentence in sec.216.6(b)(3) should be modified to specify water quality
"performance monitoring" and to delete the plural for "paragraphs." The 
commission
disagrees with the comment and notes that sec.26.179(b), specifically states
that water quality monitoring is not a requirement of water quality plans
seeking to achieve water quality protection by capturing and retaining the
first 1.5 inches of rainfall. 

The City commented that sec.216.6(b)(1)(A) does not provide for monitoring
to determine impacts on groundwater resources. The City recommended that
additional monitoring, unrelated to load calculations, be required to determine
if an impact is occurring to groundwater, and that the water quality plans
for water quality protection zones be modified if such monitoring indicates
statistically valid increases in pollutant concentrations. In addition, under
sec.216.6(b)(2), SOS commented that the proposed rules do not require the
monitoring of deep percolation of pollution from developments to groundwater.
The City commented that the proposed rules do not provide a methodology for
monitoring to determine impacts on groundwater resources. The commission
agrees that groundwater monitoring is necessary to determine whether development
activities are adversely impacting groundwater quality. The commission will
utilize existing groundwater monitoring data and work with other agencies
with groundwater monitoring programs such as the Edwards/Barton Springs 
Conservation
District, the Edwards Aquifer Authority, the Texas Water Development Board,
and the U.S. Geological Survey, in developing this data. However, the commission
responds that sec.26.179 of the Water Code addresses the protection of
the quality of water within the zone (sec.26.179(d)) and the protection
of water quality in waterways (sec.26.179(a)(2)). Further, sec.26.179(k)
requires that zones must satisfy all other state and local requirements for
the protection of water quality. Section 26.001(5) of the Texas Water Code
defines "water" to include, among other things, groundwater. Section 26.179
does not specify a different definition of "water." In that sec.26.179
does not specifically refer to groundwater, the commission has removed express
requirements relating to groundwater protection. However, proposed plans
must demonstrate compliance with all laws and regulations relating to the
protection of the quality of water, which includes groundwater. Regulations
protecting groundwater quality apply to permitting, licensing, and spill
response programs that are designed to prevent pollution from storage, 
transportation,
and disposal of waste, hazardous substances, and wastewater and are found
in various chapters of Title 30 of the Texas Administrative Code. 

FM Properties commented the phrase "developed runoff," as used in connection
with monitoring to determine background levels of water quality in 
sec.216.6(b)(1)(A)(i),
should be reworded because it is awkward and can have unintended implications.
The commission agrees with the comment and the phrase "developed runoff"
has been modified to "runoff from developed areas" in sec.216.6(b)(1)(A)(i).
FM Properties commented that provisions in sec.216.6(b)(1)(A)(i) and
sec.216.6(b)(1)(B)(i), relating to background levels of water quality,
are inconsistent with the requirements of Texas Water Code sec.26.179 and
imply that retrofit provisions might be required. The commission responds
that the rule has been modified to provide for background levels of water
quality to be determined in areas where BMPs are implemented to the most
feasible and practical extent possible. 

FM Properties recommended that the provisions of sec.216.6(b)(1)(A)(i),
pertaining to the submittal of statistical analyses to establish the 
representativeness
of data used to determine background levels of water quality, not be required
because the data necessary to perform these analyses may not be available.
The commission responds that appropriate statistical analyses are an acceptable
means to establish the representativeness of the proposed background water
quality monitoring plan but such analyses are not required. The commission
will consider methodologies to establish background levels of water quality
proposed by applicants and will require that they either be justified by
technical analyses or they be shown to satisfy similar requirements in 
equivalent
federal, state, or local regulatory programs. The phrase "statistical analyses"
has been changed to "technical analyses" in sec.216.6(b)(1)(A)(i). 

SOS commented that provisions in sec.216.6(b)(1)(A)(i) and sec.216.6(b)(2)(C),
relating to locating water quality monitoring sites in representative areas,
are impossible to satisfy because a few locations within a water quality
protection zone cannot represent the entire zone due to the variability in
the contributing area, soils, topography and vegetation. SOS further commented
it is virtually impossible to prove a site is representative of other areas
in the zone because of limited quantitative data relating site factors and
water quality in storm water runoff. SOS recommended that sec.216.6(b)(1)(A)(i)
and sec.216.6(b)(2)(C) of the rule require background monitoring at critical
sites, such as those with large contributing areas, steep topography, sparse
vegetation, and erosive soils. The commission notes that sec.26.179(b)
of the Texas Water Code specifies that background levels shall be established
from data collected from one or more sites located within the area designated
as a water quality protection zone and that monitoring of runoff should be
from four or more locations. The agency will evaluate the number and location
of sites necessary to obtain sufficient data to determine if water quality
protection is being achieved using, but not limited to, such factors as the
variability of the contributing area, soils, topography, and vegetation.
The rule has been clarified to include the consideration of such factors
but does not propose to prescribe the means by which monitoring sites will
be determined to be representative of areas within a water quality protection
zone. The commission will consider methodologies proposed by applicants and
will accept methodologies that are justified by technical analyses or which
are shown to satisfy similar requirements in equivalent federal, state, or
local water quality regulations. The commission notes that the stormwater
permitting requirements of the United States Environmental Protection Agency
(EPA) require larger municipalities to collect stormwater data from locations
that are representative of residential, commercial, and industrial activities.
The District commented that sec.216.6(b)(1)(A)(i) and sec.216.6(b)(1)(B)(i),
relating to the location of water quality monitoring sites in representative
areas, do not consider the status of management measures in developed areas
and the potential for poorly functioning management measures to skew background
water quality. The commission disagrees with the comment and notes the rules
require background levels of water quality to be determined in areas where
BMPs are implemented to a reasonably feasible and practical extent. 

FM Properties commented that the phrase "at a minimum", as used to delineate
the list of parameters to be monitored to establish background levels of
water quality in sec.216.6(b)(1)(A)(ii) and to determine the performance
of water quality plans in sec.216.6(b)(2)(A), should be deleted because
Texas Water Code sec.26.179 specifically lists the parameters to be used
for these purposes. The commission agrees with the comment and has deleted
the phrase "at a minimum" in sec.216.6(b)(1)(A)(ii) and sec.216.6(b)(2)(A).
However, this does not prevent necessary additional monitoring and remedial
action if other contaminants are found to be leaving the property and adversely
impacting water quality.  

FM Properties commented that background levels of water quality in waterways
are usually expressed in terms of constituent concentrations rather than
constituent mass loadings as specified in sec.216.6(b)(1)(A)(ii). FM Properties
further commented that the preamble's reference to the use of constituent
mass loadings as the standard by which the quality of receiving waters are
evaluated by federal water quality programs is inaccurate. SOS commented
that the commission has appropriately selected average annual mass load rather
than concentrations as a basis for determining compliance with the water
quality protection requirements of Texas Water Code sec.26.179. The commission
restates that constitute mass loadings are the standard by which the quality
of receiving water are evaluated. The parameter of concern with regard to
conventional constituents in stormwater, such as those specified in 
sec.26.179(b)
of the Texas Water Code, is the mass loadings of the constituents. Evaluation
of the potential water quality impacts from stormwater requires the 
determination
of the amount of the constituents entering the receiving waterbody (i.e.,
mass loadings). Federal, state, and local water quality programs use constituent
mass loadings as the basis for stormwater quality regulations. The Code of
Federal Regulations (40 CFR Part 130) specifies Total Maximum Daily Load
(TMDL) procedures for state programs to manage nonpoint sources of pollution,
such as that which would occur in stormwater runoff from water quality 
protection
zones. These procedures specify that stormwater runoff be evaluated in terms
of constituent loadings. The Federal Clean Water Act requires states to 
implement
TMDLs in water quality limited waters. 

Section 26.179 of the Texas Water Code directs that registered professional
engineers use "...the concepts and data from the National Urban Runoff Program
(NURP) Study or other studies approved by the Texas Natural Resource 
Conservation
Commission" in calculating "the constituents resulting from average annual
runoff...." NURP focuses on event mean concentrations (EMC) as a prime indicator
of "the effectiveness of control measures to reduce pollutant loads." EMC
accounts for variations of rainfall intensity and occurrence. However, NURP
states, "It is the totality of receiving water characteristics (e.g., flow
rate, size or volume, and physical and chemical characteristics) that determines
its use, although some characteristics are more important than others (e.g.,
there must be present an appropriate rate of flow and/or volume in the receiving
water to support the desired use)." In addressing the effects of urban runoff
on receiving water quality, NURP states, "The combination of stream and runoff
flow rates (together with runoff concentration) determine the pollutant 
concentration
in the stream pulse." 

In addition, the stormwater permitting program administered by the EPA
requires larger municipalities to collect sufficient information to characterize
average annual loadings of numerous water quality constituents as part of
the permitting process. The commission has utilized a wasteload evaluation
procedure since approximately 1974 in the issuance of wastewater discharge
permits under Section 402 of the Federal Clean Water Act. These procedures
are based upon a determination of mass loadings of water quality constituents
to maintain state water quality standards and include provisions for nonpoint
sources of pollution. 

The commission has received one water quality plan for a water quality
protection zone under Texas Water Code, sec.26.179 which utilized the 
maintenance
of background levels of water quality as the water quality protection option.
The water quality plan for the Barton Creek Development utilized average
annual loadings in demonstrating compliance with the water quality requirements
of the statute. The use of this methodology is also consistent with other
state agency water quality programs. For example, the Lower Colorado River
Authority's (LCRA) Highland Lakes Nonpoint Source Pollution Ordinance is
based upon managing constituent loadings. The ordinance requires that the
annual loads of three indicator pollutants be reduced by a prescribed percentage
depending upon the nature and location of development within the area of
jurisdiction of the ordinance. 

Annual constituent loadings may be calculated using a formula that normalizes
loadings to expected values based on measured concentrations and average
annual rainfall such as the following: L = (A)(AR)(Rv )(C)(CF) Where: L =
Annual constituent load in pounds (calculated); A = Area in acres (known
from development plan); AR = Average annual rainfall in inches (known from
US Weather Service); Rtype-name="sub">v = Ratio of runoff volume
to rainfall volume (calculated from measured values); C = Constituent 
concentrations
in milligrams per liter (measured); and CF = Units conversion factor. 

However, the commission has modified the rules to give the option of utilizing
either average annual constituent concentrations or average annual constituent
loadings to achieve compliance with the requirements of the subchapter. A
definition for average constituent concentration has been added to sec.216.2.
Annual constituent mass loadings or average annual concentrations for the
water quality protection zone after development must be comparable to background
levels of water quality established for the zone as described in 
sec.216.6(b)(1),
which has been modified to require determination of both average annual mass
loadings and average annual constitute concentrations to determine background
levels of water quality for a zone. Water quality protection zones shall
be out of compliance and require corrective action if constituent mass loadings
from the water quality protection zone after development are greater than
10% above the background levels established for the zone or if average annual
constituent concentrations are greater than background levels. References
to constituent concentrations have been added in sec.216.6(b)(1)(B)(i)
and 216.6(b)(2)(C), (D),and (F). An amendment to a water quality plan will
be required under sec.216.6(c)(2)(B)(iv) if the method of determining 
performance
compliance changes. Section 216.8(a)(1) has been modified to allow for the
reporting of the calculation of average annual concentrations or calculation
of annual constituent loading from the water quality protection zone to 
waterway.
The commission cautions that the use of a compliance standard for the zone
based upon average annual constituent concentrations could require that the
plan be modified at a later date as the result of implementation of a TMDL
in water quality limited waters where water quality protection zones contribute
to water quality impairments. These additional water quality protection measures
would be necessary to comply with mandatory federal water quality requirements,
standards, permit provisions, or regulations under the Clean Water Act. 
FM Properties commented that background levels of water quality expressed
in terms of constituent mass loadings in sec.216.6(b)(1)(A)(ii) will require
developments that increase the volume of runoff to have to have lower average
constituent concentrations. The commission disagrees with the comment. Section
216.9(a) specifies water quality plans will be deemed to be in compliance
with the water quality protection requirements of the statute if the post-
development
annual constituent loadings are no more than 10% greater than the background
annual constituent loadings. This provision allows for a water quality 
protection
zone to increase either the volume of rainfall runoff from the zone, the
average concentration of constituents in the rainfall runoff from the zone,
or both. For example, runoff flow volume from a hypothetical water quality
protection zone could be increased by 5.0% and the average constituent 
concentrations
could be increased by 5.0% giving a resultant increased loading of 10%. This
zone would be considered to be in compliance with the requirements of this
rule. 

FM Properties, Lakeway Mgt. Co., and THL Ranch stated that requirements
to submit supporting information specified in sec.216.6(b)(1)(A)(ii) on
the determination of background levels of water quality should be eliminated
because they are not specifically required by Texas Water Code sec.26.179
and because the water quality plan is signed and sealed by a registered 
Professional
Engineer. FM Properties recommended alternative record keeping provisions.
FM Properties commented that requirements in sec.216.6(b)(2)(D) of the
proposed rule, for the submittal of information justifying the proposed water
quality performance monitoring plan, are unnecessary. Lakeway Mgt. Co. and
THL Ranch commented that submission of the supporting information specified
in sec.216.6(b)(3)(A) relating to the capture and retention of stormwater
is not required by Texas Water Code sec.26.179. FM Properties, Lakeway
Mgt. Co., and THL Ranch commented that the provisions in sec.216.6(b)(4)
of the proposed rule, relating to keeping records of the operation and 
maintenance
of BMPs, are vague, overly broad, and should be stated more specifically.
The commission disagrees with these comments. Texas Water Code sec.26.179
requires the commission to review water quality plans for water quality 
protection
zones and to render a finding of the plan's adequacy to protect water quality.
The statute also places the burden of proof for the denial of a water quality
plan on the commission. The commission, therefore, requires the submission
of all necessary and relevant information, such as that specified in these
sections, in order to properly fulfill its obligations as defined by the
statute. The commission will specify in the rules that certain supporting
information may be omitted with prior commission authorization and that such
authorizations will be based upon a review of site-specific circumstances.
The City commented that sec.216.6(b)(1)(A) of the rule should specify
standard laboratory methods to be used in water quality monitoring activities
and should reference a standard compendium of laboratory methods. The commission
responds that it will consider the methodologies proposed for the zone with
methodologies generally accepted by those in the environmental protection
field and justified by technical analyses or appropriate program precedent
(e.g., EPA Methodology or equivalent). 

The District questioned the commission's rationale for specifying the water
quality parameters in sec.216.6(b)(1)(A)(ii) and sec.216.6(b)(2)(A) to
establish background water quality and to evaluate the performance of a water
quality plan for a water quality protection zone. The District recommended
that additional water quality constituents be monitored. The commission responds
that sec.26.179(b) of the Texas Water Code specifies that these constituents
be measured to determine background levels and to maintain the water quality
of waterways. 

FM Properties commented that the requirement in sec.216.6(b)(1)(A)(iii)
and sec.216.(b)(2)(D) for a 72-hour period without rainfall preceding water
quality monitoring to determine background levels of water quality and to
establish the performance of a water quality plan for a water quality protection
zone goes beyond the requirements in the statute. Also, the commenter argued
that the proposed rules should not exceed the scope of the statutory 
requirements,
particularly where the statute specifies technical requirements such as it
does with respect to monitoring requirements. The commission agrees the 
provision
for a 72-hour period without rainfall preceding stormwater quality monitoring
for both background and performance monitoring may not be a necessary element
of a water quality plan for a water quality protection zone. The commission
will consider water quality monitoring provisions proposed by the applicants
and will accept methodologies that can be technically justified or which
can be shown to satisfy similar requirements of equivalent federal, state,
or local water quality regulations. Therefore, the requirement for a 72-hour
period without rainfall preceding stormwater quality monitoring has been
deleted from sec.216.6(b)(1)(A)(iii) and sec.216.(b)(2)(D). 

FM Properties commented that the phrase "sufficient frequency", used to
describe the sampling requirements to establish an accurate measure of 
background
levels of water quality in sec.216.6(b)(1)(A)(iii) and to describe the
sampling requirements for performance monitoring in sec.216.6(b)(2)(D),
is not defined in terms of how many samples should be collected and over
what period of time. SOS commented that, in sec.216.6(b)(1)(A)(iii) and
sec.216.6(b)(2)(D), four storm events are too few to adequately characterize
runoff water quality and will lead to erratic and erroneous conclusions.
SOS recommended that at least 16 storm events be monitored to reliably estimate
average annual constituent mass loadings in storm water. The District commented
that it is unlikely that four samples will be indicative of background water
quality under most circumstances and that pollutant load monitoring requires
a complex protocol to measure water discharge and pollutant concentrations.
The District asked if it is appropriate to prescribe a minimum of four 
monitoring
sites in sec.216.6(b)(2) (Water Quality Performance Monitoring) and a minimum
of one monitoring site in sec.216.6(b)(1)(A) (Site Background Water Quality
Data), and if this difference will allow for a valid comparison between 
background
and developed conditions. FM Properties commented that in the provisions
of sec.216.6(b)(2)(C), measures to be used to establish the accuracy and
representativeness of the proposed water quality monitoring plan from 
statistical
analyses should be specified. FM Properties requested a definition of the
term "accurate measure" of constituent mass loadings used to describe the
sampling requirements to verify the performance of a water quality plan in
sec.216.6(b)(2)(D). The commission does not propose to prescribe the procedures
to be used to determine background levels of water quality or the performance
of water quality plans in these rules beyond those specified in Texas Water
Code, sec.26.179. The statute establishes a performance-based approach
and is not prescriptive as to how the performance objectives are to be achieved.
Further, there is a lack of standardization for stormwater monitoring among
federal, state, and local water quality regulations. Some of these requirements
are as follows:  

The EPA stormwater monitoring requirements specify flow-weighed composite
samples be collected over the first three hours of the storm event, sample
aliquots be separated by a minimum of 15 minutes and that a minimum of three
sample aliquots be taken within each hour of the discharge. Large municipalities
are required to collect flow weighted composite samples from five to ten
outfalls for three representative storm events under the EPA stormwater 
monitoring
program. 

The LCRA does not require water quality monitoring for stormwater except
in cases where innovative designs are proposed for BMPs. Monitoring requirements
for innovative designs are considered by the LCRA on a case-by-case basis.
In the only such case addressed by the LCRA to date, a monitoring program
consisting of the collection of a composite sample for between 12 to 15 storm
events has been established. 

The City of Austin stormwater monitoring requirements specify a minimum
of four sample events per year and that three samples a minimum of two hours
apart shall be collected for each sampling event. 

The commission will consider water quality monitoring methodologies proposed
by applicants and will accept methodologies that are justified by technical
analyses or which can be shown to satisfy similar requirements in equivalent
federal, state, or local water quality regulations. 

FM Properties commented that it is unclear how supporting information,
such as literature citations and program references specified in 
sec.216.6(b)(1)(A)(iii),
can be used to establish the completeness and reliability of water quality
data proposed to be used to establish background levels of water quality,
or how requirements in sec.216.6(b)(2)(D) for the submittal of information
justifying the proposed water quality performance monitoring plan, such as
literature citations and program references, can be used to establish the
sufficiency of the proposed water quality monitoring plan. The commission
does not propose to prescribe procedures for determining background levels
of water quality or for the performance monitoring plan in these rules. The
commission will consider procedures proposed by applicants for water quality
protection zones and will require that these procedures be justified through
technical analyses or that they be demonstrated to satisfy similar requirements
of equivalent federal, state, or local water quality regulations. Literature
citations can be used to support such a technical analysis and program citations
can be used to establish an appropriate program precedent. 

The District commented that it is unclear if the commission intends to
allow construction during the period when data is being collected to establish
background levels of water quality as specified in sec.216.6(b)(1)(A) and
expressed the belief that construction will skew the results obtained from
the background water quality sample collection. The commission responds that
construction is allowed by provisions of the statue and Chapter 216 upon
proper designation of the zone and the submittal of the water quality plan
for the zone to the executive director for review. Calculation of the background
levels will be allowed until sufficient data are collected. Construction
activities are allowed to occur during the period background water quality
data is being collected. However, these construction activities should not
occur in locations that would influence water quality monitoring to establish
background levels of water quality. 

SOS commented that the reliability of estimates of background levels of
water quality based upon off-site studies, such as those specified in 
sec.216.6(b)(1)(B),
will be limited due to the natural variability of water quality and the state
of knowledge about background levels of water quality. The commission notes
Texas Water Code sec.26.179(b) specifically authorizes the use of off-site
studies, such as the Nation Urban Runoff Program (NURP) Study, to establish
background levels of water quality until data from the water quality protection
zone is available. 

The District asked how the commission will reconcile differences between
calculated background water quality specified in sec.216.6(b)(1)(B) and
information generated from the sample collection period specified in 
sec.216.6(b)(1)(A).
FM Properties commented that the proposed rule language implies that water
quality plans should be amended when background levels of water quality are
revised and stated that there is no basis for this interpretation of Texas
Water Code sec.26.179. The commission responds that differences between
calculated and monitored background levels of water quality will be addressed
through procedures specified in sec.216.8, Annual Reporting, and sec.216.9,
Corrective Actions. 

FM Properties commented that the requirement under sec.216.6(b)(1)(B)(ii)
to submit studies upon which a water quality plan is based for prior approval
by the executive director effectively extends the 120-day limitation that
the executive director has to approve or deny a plan. FM Properties further
commented that Texas Water Code sec.26.179 does not appear to give the
commission the authority to deny a water quality plan because studies used
to support the establishment of background levels of water quality were not
submitted for approval prior to the submission of the water quality plan.
The commission disagrees and responds that the agency can not effectively
review the ability of a water quality plan to maintain background levels
of water quality in waterways without the establishment of background levels.
The agency must be able to determine the appropriateness of a proposed method
to support the establishment of background levels of water quality in lieu
of site specific water quality data to adequately review a plan. The requirement
to obtain approval of an alternate untested method to establish background
levels of water quality prior to the development and submittal of a plan
is only a prudent measure for the entity submitting a plan. If the applicant
chooses not to use calculations performed and certified by a registered 
professional
engineer utilizing the concepts and data from the NURP study or other studies
which have received prior approval by the executive director, then the agency
will be required to review the proposed methodology to determine if it 
adequately
predicts background levels of water quality. If the commission cannot determine
that the plan will meet the requirement of maintaining background levels
of water quality in waterways then the plan will not be approved. The 
determination
of background levels of water quality is an integral part of the plan and
the review under sec.216.6(c)(3), and cannot begin until a complete plan
or amendment meeting all requirements under the rule are met. 

FM Properties commented that, under sec.216.6(b)(2), the point where
runoff from water quality protection zones enters waterways or waters in
the state needs to be clearly identified for the purposes of locating water
quality performance monitoring stations. FM Properties also commented that,
under sec.216.8(a)(1)(B), the location where constituent loadings from
water quality protection zones enter waters in the state should be clearly
defined. They also stated that sec.26.179 of Texas Water Code only requires
that the monitoring be performed where runoff occurs and not, as the rule
requires, where runoff from the water quality protection zone enters waterways
or waters in the state. FM Properties also commented that the point where
runoff from water quality protection zones enters waters of the state under
sec.216.6(b)(2)(C) should be clearly defined for the purposes of locating
water quality performance monitoring stations. The commission responds that
the definition of waterways has been provided under sec.216.2. The commission
disagrees that the rule needs to clearly identify the locations of monitoring
stations. This is a site specific decision, determined by site conditions,
and cannot be dictated by rule. As the rule states, these locations should
be proposed as part of the water quality plan. Monitoring stations should
be located at points that are representative of water quality before runoff
from the water quality protection zone leaves the zone and enters waterways,
as stated in sec.216.6(b)(2)(C).  

FM Properties commented that the requirements specified in sec.216.6(b)(2)(B),
relating to the submittal of the specifications of the water quality monitoring
plan, are excessive and require information that may be unnecessary or 
unavailable,
or may change during the course of the project. FM Properties discounted
the commission's commitment to review the site-specific circumstances in
determining the actual requirements for a water quality protection zone.
The commission responds that sec.26.179 of the Texas Water Code requires
the commission to review water quality plans for water quality protection
zones and render a finding of the plan's adequacy to protect water quality.
The statute also places the burden of proof for the denial of a water quality
plan on the commission. The commission, therefore, requires all necessary
and relevant information, such as that specified in this section, in order
to properly fulfill its obligations as defined by the statute. The commission
will specify in the rule that certain supporting information may be omitted
with prior commission authorization and that such authorizations will be
based upon a review of site-specific circumstances. 

FM Properties commented that the term "phases of development" needs to
be clarified or defined. FM Properties also commented that new phases of
development not specified in the water quality plan for a water quality 
protection
zone should not be required to amend the water quality plan for the zone
to provide for these new phases of development. The commission responds that
the definition of "phase of development" is designed to allow the landowners
to define their development in terms of phases, as necessary. If no phases
are specified, the need for monitoring will arise upon build-out of 90 %
of the development or when construction activities cease for a period of
one year. The definition of "phase of development" will be modified to reflect
these circumstances. The intention to develop one's land in phases is not
related to the issue of whether an amendment is necessary. 

FM Properties commented that language in sec.216.6(b)(2)(E) relating
to the performance monitoring requirements for phases of development in a
water quality protection zone should be revised to ensure that additional
performance monitoring is not required for phases of development that have
previously satisfied performance monitoring requirements when the water quality
plan is amended for any reason. The commission agrees that clarification
of the provisions of sec.216.6(b)(2)(E) could be useful and has added language
stating that water quality performance monitoring is not required for phases
of development that have previously satisfied performance monitoring provisions
of the rule. 

SOS commented that the timing requirement in sec.sec.216.6(b)(1)(A)(ii)
and 216.6(b)(2)(E) to monitor for three years after 90% of the planned 
development
is in place may leave developed areas unmonitored for years. SOS recommended
the proposed rules be supplemented with a requirement for an initial monitoring
program to begin within 1 year of the occupancy of any tract greater than
20 acres with impervious cover levels greater than 8.0%. The commission responds
that Texas Water Code sec.26.179(b) specifies monitoring is to occur for
three consecutive years after each phase of development occurs. 

The City commented that the proposed rules do not establish criteria for
the definition of "phased development" and therefore plans may not provide
enough time to modify BMPs in response to the results of water quality 
monitoring.
The City recommended the commission specify the size and period of continuous
construction constituting a "phase" within a water quality protection zone.
The commission responds that, as discussed above, the definition of "phase
of development" has been modified to define when a phase is complete, either
when 90% of the planned development is in place or when construction activities
cease for a period of one year. 

The District pointed out that a possible ambiguity may exist between the
preface to the rules describing the commission's expectations for water quality
performance monitoring and sec.216.6(b)(2)(E). The commission disagrees
and responds that the goals of the monitoring are contained within sec.216.8
and sec.216.9. 

The District commented that one summary of BMPs indicates retention/irrigation
systems remove 80% of total suspended solids (TSS) and 75% of total phosphorus
and asked if this treatment level is consistent with the commission's 
expectations
of achieving a 90% reduction in pollutant loadings. The commission responds
that the statute defines water quality protection under Texas Water Code
sec.26.179(a)(2) to be achieved by the capture and retention of the first
1.5 inches of rainfall from developed areas. This objective could be achieved
with retention/irrigation systems. The statute does not specify a pollutant
loading performance requirement under this option. The City argued that
the cost estimates for water quality control stated in the preamble to the
proposed rules grossly underestimates the actual cost of such controls and
suggested that the actual cost of such controls are three to five times higher.
The District commented that retention/irrigation systems have potentially
high maintenance costs and that the proposed rules may not adequately address
the operation and maintenance of the systems. The commission responds that
sec.216.5 has been modified to make the agents responsible for water quality
protection zones and for the maintenance of the structures. The commission
notes that capital expenditure will be required only by those choosing to
invoke the rule and that designation is voluntary for the owners of the 
property.
An individual commented on sec.216.6(b)(3)(A) about the necessity of
capturing and retaining rainfall runoff from impervious areas expected to
contribute high amounts of pollution and suggested less rainfall runoff needs
to be captured and retained from areas where runoff can flow overland. The
commenter emphasized the importance of maintaining unpolluted baseflow in
creeks, especially those that may contribute to the recharge of a drinking
water aquifer. The commission responds the statute defines water quality
protection under Texas Water Code sec.26.179(a)(2) to be achieved by the
capture and retention of the first 1.5 inches of rainfall from developed
areas. The commission does not propose to modify this requirement in these
rules. The comment is addressed in the rule because a 1.5 inch rainfall will
generate greater volume of stormwater runoff in areas with higher impervious
cover. Therefore, this rule will require a larger volume of stormwater runoff
to be captured and retained in areas with higher percentages of impervious
cover relative to similar areas with lower percentages of impervious cover.
An individual commented that the capture and retention methodology does
not treat water, therefore, the reference to "pollution removal efficiency"
in sec.216.6(b)(3)(A) is not clear. The commission agrees with the comment
and has deleted the phrase "pollutant removal efficiency" from 
sec.216.6(b)(3)(A).
Lakeway Mgt. Co. and THL Ranch commented on sec.216.6(b)(3)(B) that the
provisions for maintaining rainfall records are excessive and presume that
the commission must monitor not only the runoff from the first 1.5 inches
of rainfall, but also what happens to that volume, where it is used, how
much is used in each location, etc. The commission responds that sec.26.179
of the Texas Water Code requires the commission to review annual reports
for water quality protection zones and render a finding of the compliance
with the water quality protection requirements of the statute. The commission,
therefore, requires all necessary and relevant information, such as that
specified in this section, in order to properly fulfill its obligations as
defined by the statute. The commission has specified in the rules that certain
supporting information may be omitted with prior commission authorization
and such authorizations will be based upon a review of site-specific 
circumstances.
An individual commented on sec.216.6(b)(3)(C) that the rule should not
allow irrigation with retained stormwater in the same areas used for irrigation
of wastewater effluent. The commission responds that the agent for the zone
must obtain a permit from the commission to irrigate with treated effluent
pursuant to sec.26.121 of the Water Code. Once the permit is obtained,
stormwater and treated effluent may be used for irrigation pending approval
based on information such as soil types and irrigation rates and as provided
by applicable commission rules contained in Chapter 317 of this title relating
to Design Criteria for Sewerage Systems. THL Ranch expressed three objections
to the following statement in the preamble discussion of sec.216.6(b)(3)(C):
"possible secondary water quality impacts resulting from the capture, retention,
and disposal of storm water runoff." First, the reference to secondary water
quality impacts was not contained in the text of sec.216.6(b)(3)(C). Second,
there was no definition of "secondary water quality impacts" in sec.216.2
or elsewhere in the proposed rules. Finally, for water quality plans designed
to demonstrate compliance with sec.26.179(a)(2), Texas Water Code, the
statute only requires that the water quality plan demonstrate to the commission
that implementation of the water quality plan will result in the capture
and retention of the first 1.5 inches of rainfall from the developed areas.
The commission agrees that activities conducted under Texas Water Code, 
sec.26.179(a)(2),
pertaining to storm water capture and retention, are also subject to the
provisions of Texas Water Code, sec.26.179(k)(1), pertaining to existing
commission rules and policies. 

An individual expressed concern about provisions in sec.216.6(b)(4) to
allow the submittal of design criteria in lieu of design specifications for
BMPs. The commenter stated that BMPs require careful inspection by the 
commission
and that reliance on design criteria, rather than design specifications,
will make these inspections difficult. The commenter also stated that the
water quality plans could include design criteria up to the point at which
construction begins and that the plan could be amended to include design
specifications when they become available. SOS commented that the commission
should require complete design specifications for all BMPs to assure that
the proposed design criteria are both possible and practicable. The District
commented that provisions in this rule to submit design criteria in lieu
of design specifications may need to be deleted because design criteria may
not allow for an appropriate level of review and oversight. The commission
responds that general design criteria for BMPs are required by statute and
rule for the designation of a Water Quality Protection Zone and that the
commission may require that design specifications for the BMPs be submitted
with the water quality plan and/or amendments for specific development 
activities.
An individual commented that adequate notification of the beginning of
construction must be made to the executive director in order that inspections
be made in a timely manner. The commission agrees and provisions for written
notification prior to the initiation of development have been included in
sec.216.6(b)(4)(A). 

An individual suggested the proposed rule include a requirement that a
bond be posted with the executive director prior to construction to assure
water quality protection during construction and to ensure the installation
of permanent controls. The commission disagrees with the comment and notes
that commission's existing enforcement authority is sufficient for this purpose.
FM Properties, Lakeway Mgt. Co., and THL Ranch requested clarification
as to whether sec.216.6(b)(4) requires a plan amendment if BMPs, other
than those contained in a plan, will be used. The commission agrees that
clarification on when a water quality plan must be amended is needed and
has added corresponding language to sec.216.6(c)(2)(B). Changes to the
BMPs used in a zone does not necessarily require that the water quality plan
for the zone be amended. However, these changes must be reported to the 
commission
in the annual report required for the zone under sec.216.8. 

FM Properties, Lakeway Mgt. Co., and THL Ranch commented that the type
of information the commission may require to be submitted for BMPs in lieu
of the specific design specifications for those practices should be specified.
The commission responds the specific type of information required for BMPs
will be site-specific determinations and can not be specified in this rule.
The criteria used as the basis for the design of BMPs may be required by
the commission. 

An individual commented that the application of BMPs to the capture and
retention methodology is not supported by the statute and requested 
clarification
of the meaning of "monitoring" as used in sec.216.6(b)(4). The commission
disagrees with the comment. Requirements for BMPs, as specified in 
sec.216.6(b)(4),
are applicable to all water quality protection zones. The meaning of 
"monitoring"
in this section, as well as in all other sections of Chapter 216, is a function
of the type of BMP employed. Water quality monitoring (i.e., the collection
and laboratory analysis of water quality samples) is not required in zones
or portions of zones seeking to achieve water quality protection through
the capture and retention of rainfall from developed areas. However, the
facilities, practices, and measures used to implement this strategy must
be monitored by the measurement of water levels, capture volume, and other
pertinent information specified in sec.216.6(b)(3). 

SOS suggested that sec.216.6(b)(4)(A) of the rule specify design standards
for construction phase water quality controls and that it require inspection
and maintenance programs because there are numerous instances in which large
sediment loads have been generated from construction-phase erosion. The 
commission
disagrees with the comment and does not propose to specify design standards
for construction-phase water quality controls in these rules. The commission
will implement procedures for the approval of construction-phase erosion
and sedimentation water quality control measures for development implemented
under Chapter 216 pertaining to water quality protection zones in the same
manner as it implements similar functions under Chapter 313 pertaining to
the Edwards Aquifer Protection program. 

SOS commented on sec.216.6(b)(4)(A), stating that the commission should
set up a program for inspection of construction-phase water quality controls
to substitute for inspection authority of local entities. The commission
responds that the program will include not only the review and approval of
the water quality protection plans, but, also, the oversight of compliance
with the approved plans. This will include inspections during and after 
construction
in the water quality protection zone. The commission will implement procedures
for the inspection of construction-phase erosion and sedimentation water
quality control measures for development implemented under Chapter 216 
pertaining
to water quality protection zones in the same manner as it implements similar
functions under Chapter 313 pertaining to the Edwards Aquifer Protection
program.  

FM Properties, Lakeway Mgt. Co., THL Ranch, and an individual commented
that requirements under sec.216.6(b)(5) in the proposed rule to avoid or
minimize increased in-stream erosion are not authorized by Texas Water Code
sec.26.179 and failure to comply with these requirements would not be grounds
for disapproving a water quality plan. FM Properties, Lakeway Mgt. Co., and
THL Ranch commented that defined terms, such as "waterway" or "water in the
state," should be used, rather than a generic term, such as "stream." The
commission disagrees that this provision is not authorized by the enabling
legislation which directs, in part under sec.26.179(b) of the Texas Water
Code, that maintaining background levels of water quality in waterways means
maintaining background levels of water quality in waterways comparable to
those levels which existed prior to new development as measured by TSS. Clearly
if construction takes place on a site and the level of impervious cover 
increases,
then the volume and velocity of flow from a water quality protection zone
entering an adjacent waterway could increase, causing in-stream erosion which
could increase background levels of suspended solids in the waterway, unless
measures are taken to avoid or minimize changes in the ways in which water
enters the waterway. The agency agrees that term "stream" should be replaced
and has replaced it and has corrected other typographical errors in 
sec.216.6(b)(5).
The City commented that sec.216.6(b)(5) of the rule does not require pre-
and post-development flow information to be included in a water quality plan
submitted for a water quality protection zone and, therefore, determination
of the impact of the zone on in stream erosion can not be determined. The
City recommended that information on the pre- and post-development flows
from a water quality protection zone be required. The commission disagrees
with the comment that pre- and post- development flow information is not
required. This information is required to determine annual constituent loadings
under sec.216.6(a)(1) and to determine the volume of rainfall that must
be captured and retained under sec.216.6(a)(2). The commission agrees,
however, that the need for pre- and post- development flow information for
the purposes of complying with the requirements of sec.216.6(b)(5) could
be clarified in the rule. The provisions of sec.216.6(b)(5) have been modified
to include specification of pre- and post-development flow information as
the basis for complying with the other requirements of the section. 

The City contended that sec.216.6(b)(5) implicitly requires retention
devices to be placed in off-channel locations because the placement of controls
in channel locations exacerbates in-stream erosion and structures will not
be in compliance with this section. The commission disagrees with the comment.
Certain retention devices can be located in appropriate tributaries to avoid
or minimize in-stream erosion, as required by sec.216.6(b)(5). 

SOS recommended that the "duration of stormwater runoff" be added to the
list in sec.216.6(b)(5) of factors which increase in-stream erosion. The
commission agrees and as made this change. 

The District asked if the provisions of sec.216.6(b)(5) are sufficient
to address increased stream bank erosion that may occur due to the slow drawdown
of retaining structures. The commission responds that this section describes
all measures to be taken to avoid or minimize changes in the way in which
water may enter a stream. If the structure is designed to capture and retain
the runoff from the first 1.5 inches of rainfall as described in 
sec.216.6(a)(2),
discharge to a waterway is not allowed. 

An individual requested clarification as to what circumstances trigger
the need for a plan amendment, whether all owners of land within a water
quality protection zone are required to sign an amendment, and how amendments
to water quality plans will legally bind the land comprising the zone. SOS
commented that the proposed rules should require the water quality plan for
a water quality protection zone to be amended when changes in the proposed
development affect the volume, timing, duration, or quality of runoff from
the water quality protection zone, or when impervious cover is changed by
more than 3.0%. The commission agrees that additional clarification of this
issue is appropriate. Section 216.6(c) has been modified to clarify 
circumstances
that must be addressed by amending the water quality plan for a water quality
protection zone. These circumstances include changing the size, impervious
cover, or the method of water quality protection specified in a water quality
plan. All amendments are required to be deed-recorded prior to submission
of the application for amendment. The agent of the zone is required to sign
on behalf of the landowners of the zone. All amendments to the plan are 
covenants
running with the land, pursuant to the statute, and, as such, are enforceable
by the other owners of land within the zone. 

The District commented that the provisions of sec.216.6(c)(1) to approve
water quality plans unless implementation of the plan will not protect existing
and designated uses of affected surface and groundwater, contradict one of
the goals of sec.26.179 of the Texas Water Code, to maintain background
water quality when existing conditions exceed those required for existing
uses. The commission disagrees with the comment. Texas Water Code sec.26.179(b)
defines maintaining background levels of water quality in waterways to mean
maintaining levels comparable to those levels which existed prior to new
development. This will be achieved by protecting existing and designated
uses of affected surface water and the agency will approve a plan unless
the plan will not reasonably maintain this water quality level. State surface
water quality standards contain an anti-degradation policy which prohibits
water quality degradation in waterbodies exceeding their water quality criteria
except where justified by social or economic reasons. 

FM Properties and THL Ranch argued that sec.216.6(c)(2) requires amendments
to be reviewed and approved "on the same basis as the original plan." This
causes plan amendments to be reviewed pursuant to rules that were issued
subsequent to the approval of the original plan, which, the commenters asserted,
is contrary to Texas Water Code sec.26.179(g). The commission responds
that all amendment applications will be reviewed under the rules that are
in effect at the time of the zone designation unless the plan is proposed
to be amended to incorporate new acreage into the zone, the newly amended
area will be subject to the rules in effect at the time of the zone is expanded.
FM Properties, Lakeway Mgt. Co., THL Ranch, and an individual objected
to the requirement in sec.216.6(c)(2) that a plan be amended to comply
with mandatory state water quality requirements. They asserted that Texas
Water Code sec.26.179(k) creates a presumption that all state requirements
are met by an approved plan and that the proposed rules conflict with this
presumption. In response, the commission notes that the statutory presumption
that the plan meets all state requirements for the protection of water quality
does not preclude the imposition of other requirements if federal requirements
become effective. The commission believes that zones will be subject to new
state requirements that are devised to comply with federal requirements.
Therefore, the rules are clarified to provide that such amendments shall
be required only in response to new federal requirements. 

FM Properties, Lakeway Mgt. Co., and THL Ranch contended that provisions
in sec.216.6(c)(2) of the proposed rule, pertaining to the requirement
that water quality plans be modified for future phases of development and
for operational and maintenance practices in existing phases of development
if water quality performance monitoring and BMPs indicate that water quality
protection was not achieved, overstate the requirements in Texas Water Code
sec.26.179 (b)(1). The language in the rule has been modified to say that
modifications to a water quality plan may be required in instances where
a water quality plan has failed to achieve the water quality protection 
requirements
of this rule. 

THL Ranch recommended that the proposed rules be amended to specifically
recognize that a zone and a plan can be amended to include additional land.
The commission agrees that zones and plans may be amended for this purpose.
If the plan is proposed to be amended to incorporate new acreage into the
zone, the newly amended area will be subject to the rules in effect at the
time the zone is expanded. 

SOS commented on sec.216.6(c), asking the commission to explain how future
phases of development can be modified when monitoring is not required until
90% of the development has been completed. The commission responds that Texas
Water Code sec.26.179 does not require development to occur in phases.
Therefore, there may not be an opportunity to modify future phases of 
development
if multiple phases are not specified in the development plan. 

THL Ranch stated that the requirement of sec.216.6(c)(3), for the 120-day
period for the commission's review and action on the water quality plan to
commence on the date that a plan or amendment "meeting all requirements under
this subchapter" is filed with executive director, is unclear as to what
information must be submitted. Also, if the commission must determine that
the plan meets "all requirements of this subchapter" before the commission's
review even begins, there is no reason for a 120-day review period. The 
commission
responds that a review will consist of both an administrative review, to
verify that requirements listed under sec.sec.216.3(d) and 216.6(b) are
satisfied, and a technical review. The review process will take place over
the 120-day period. The executive director will review the submittal for
administrative completeness upon receipt and deny those which are found to
be deficient.  

An individual commented that, in sec.216.6(c)(3), denying the plan and
requiring a refiling is unreasonable, inefficient, and wasteful of money.
The agency responds that in order to assure that the revised plan, which
both parties agreed upon, is deed-recorded, the original plan which was deed-
recorded
must be denied. To address the cost concerns stated in the comments, the
agency will implement a procedure in which the original plan is denied by
the 120th day and a deed-recorded revised plan is resubmitted to the agency
within 30 days of the denial. An additional application fee will not be required
as specified in sec.216.3(e)(4). 

The District and the City commented that in sec.216.6(c) and sec.216.7,
copies of the water quality plans submitted for the water quality protection
zones should be submitted to affected municipalities, counties, and groundwater
conservation districts for review, and these affected parties should be allowed
sufficient time to review and comment on the plans. The agency will notify
affected incorporated cities, counties, and groundwater conservation districts
having jurisdiction over the area potentially affected by the proposed water
quality protection zone, for the purpose of receiving timely input from local
government entities. 

FM Properties, Lakeway Mgt. Co., and THL Ranch commented that the proposed
rules do not appear to recognize that water quality plans approved prior
to the adoption of these rules are presumed to comply with all state laws.
The commenters also stated that the language "adopted hereafter" is inconsistent
with Texas Water Code sec.26.179(k) which, they assert, operates to foreclose
the application of laws and rules promulgated subsequent to the plan approval.
In response, the commission agrees and a reference to approval by the executive
director has been included in sec.216.6(e). The commission disagrees, however,
with the commenters' narrow interpretation of sec.26.179(k) of the Texas
Water Code. 

An individual commented on sec.216.7 that the proposed rule should require
the TNRCC to provide written notice to adjacent property owners regarding
pending actions on water quality protection zones. The commenter further
recommended that notices regarding the designation of water quality protection
zones be published in the Texas Register in a timely manner to allow the
submission of public comments. The commenter also stated that the proposed
rule does not provide for public comment on the studies to be submitted to
establish background levels of water quality pending the submission of site-
specific
data. The commission responds that the recommended notices are not required
by the statute. The public notices that are required will enable concerned
citizens to comment on a zone designation or plan amendment. The public can
comment on the proposed background levels of water quality during the 120-day
review period for the water quality plan. 

An individual noted that the last sentence in sec.216.7(b), pertaining
to the executive director's review and use of written comments received on
the designation of water quality protection zones, needs to be clarified.
The commission responds that the executive director will review any written
comment received in a timely fashion and that input from local entities may
provide information needed to evaluate the adequacy of the water quality
plan.  

SOS commented, under sec.216.7(b), that the rules are, by necessity,
general because the encompass areas in which established engineering and
design procedures are not available. The interests of the public should be
represented through public hearings on proposed water quality protection
zones. The commission disagrees and states that the review for the designation
of a water quality protection zone will receive the same level of public
participation as the review of a water quality plan. The commission will
provide notification of receipt of an application for approval of a water
quality plan for a water quality protection zone to affected city and county
governments and to affected groundwater conservation districts. Given the
120-day time frame for commission's review of a plan or amendment to a plan
under sec.26.179(g) of the Texas Water Code, a hearing would not be practicable.
An individual commented that the requirements for the submittal of annual
reports (sec.216.8) could be reasonably extended beyond the three-year
period required for water quality monitoring purposes because the long term
operation and maintenance of structural BMPs is important in the achievement
of water quality protection and an annual report is one means to assure BMPs
are operated and maintained. The commission responds that annual reports
are required for the construction period and the three-year performance 
evaluation
period after each phase of development is completed with in the water quality
protection zone. However, after the three-year reporting period, structural
BMPs must continue to be operated and maintained to achieve water quality
protection as specified in the approved water quality protection plan. The
agency will continue to monitor the structural BMPs through field inspections.
FM Properties, Lakeway Mgt. Co., and THL Ranch commented that the provisions
in sec.216.8, pertaining to the submittal of annual reports, are excessive
and they create unnecessary complexity because they would result in multiple
annual reports, and because they include requirements to report on all BMPs
utilized in the water quality protection zone. The commenters continued by
stating that the provisions in sec.216.8, are unclear as to whether the
annual reports are to include information for BMPs implemented throughout
the zone or only those within a particular phase, or whether this information
is to cover only the previous three years or the entire period since the
designation of the water quality protection zone. The commission agrees and
has clarified the language in sec.216.8 of the rule pertaining to annual
reports to include provision that annual reports are not required for zones
or phases of development within a zone that have satisfied the water quality
protection and the performance monitoring requirements of the rule. For water
quality protection zones with one or more phases of development, reports
for the individual areas within the zone shall be combined into a single
annual report. 

With regard to the comment that the requirements are excessive, the commission
notes Texas Water Code sec.26.179(b) gives the commission the responsibility
to review annual reports for water quality protection zones in accordance
with sec.216.8 and to determine if the water quality protection requirements
of the water quality plan for the zone have been satisfied. If it is found
that the zone did not satisfy the water quality protection requirements of
the statute, the commission is to oversee the implementation of appropriate
corrective actions in the zone. The commission will require substantial 
information,
such as that identified in rule, in order to fulfill its obligations under
the statute. The commission will specify in the rule that certain information
may be omitted from the annual report with prior commission authorization
and that such authorizations will be based upon the commission's assessment
of circumstances pertaining to the zone. 

SOS commented that the requirement in sec.216.8(a) for the submission
of annual reports to document on-going maintenance of water quality controls
is desirable because studies show 50% to 90% of water quality controls are
ineffective after five years due to lack of maintenance. The commission notes
that maintenance provisions are required by sec.216.6(b)(3)(A) to ensure
the continued performance of the facilities. 

FM Properties contended that the term "annual average system constituent
loadings," as used in sec.216.8(a)(1)(A) to describe the reporting requirements
for water quality monitoring, is not defined. The commission agrees and the
term has been modified to provide for the reporting of "annual constituent
loadings from the water quality protection zone." 

FM Properties commented that if constituent loadings are used to define
background levels of water quality, then it is unnecessary to compute event
mean concentrations. The commission has specified in the rule that certain
information, such as calculation of event mean concentrations, may be omitted
from the annual report with prior commission authorization and that such
authorizations will be based upon the commission's assessment of circumstances
pertaining to the zone. 

FM Properties recommended that the location at which constituent loadings
from water quality protection zones enter waters in the state be clearly
defined. The commission disagrees and has already responded to this issue
under sec.216.2 (the definition of waterways), sec.216.6(b)(2), and 
sec.216.6(b)(2)(C).
FM Properties commented that the provisions in the proposed rule, pertaining
to the reporting requirements for the maintenance of BMPs, may be voluminous
and of little benefit to the commission. The commenter recommended the 
requirement
be changed to specify that maintenance records must be available for inspection
for three years. The commission notes Texas Water Code sec.26.179(b) gives
the commission the responsibility to review annual reports for water quality
protection zones, including BMPs, to determine if the water quality protection
requirements of the water quality plan for the zone have been satisfied.
The commission will require substantial information, such as that identified
in rule, in order to fulfill its obligations under the statute. The commission
will specify in the rule that certain information may be omitted with prior
commission authorization and that such authorizations will be based upon
the commission's assessment of circumstances pertaining to the zone. 

FM Properties, Lakeway Mgt. Co., THL Ranch, and an individual commented
that the reporting requirements specified in the proposed rule for demonstrating
compliance with Texas Water Code sec.26.179(a)(2) (capturing and retaining
the first 1.5 inches of rainfall) are excessive and unnecessary, and recommended
only the signature and seal of a registered Profession Engineer be required
on annual and operating reports. The commission disagrees with the comment
and notes Texas Water Code sec.26.179(b) gives the commission the responsibility
to review annual reports for water quality protection zones to determine
if the water quality protection requirements of the water quality plan for
the zone have been satisfied. If the commission finds that the zone did not
satisfy the water quality protection requirements of the statute, the commission
will oversee the implementation of appropriate corrective actions in the
zone. The commission will require substantial information, such as that 
identified
in rule, in order to fulfill its obligations under the statute. The commission
will specify in the rule that certain information may be omitted from the
annual report with prior commission authorization and that such authorizations
will be based upon the commission's assessment of circumstances pertaining
to the zone. 

FM Properties, Lakeway Mgt. Co., and THL Ranch suggested that the requirements
of sec.216.8(a)(1)(B), pertaining to reporting requirements for capturing
and retaining rainfall, be expressed as inches of rainfall rather than rainfall
volume. References in sec.216.8(a)(1)(B) have been changed from rainfall
volume to inches of rainfall. 

An individual commented that the requirement in sec.216.8(a)(2) for the
installation of weather stations at every pond is burdensome. The commission
agrees there are alternative means of collecting rainfall data that is 
representative
of the site-specific conditions. The commission has amended the rule to provide
that the commission consider methods of collecting the data proposed by the
applicant and accept those that can be technically justified or which can
be shown to satisfy similar requirements in equivalent federal, state, or
local water quality regulations. 

The City commented that the annual reporting requirements for plans seeking
to achieve water quality protection by capturing and retaining the first
1.5 inches of rainfall from developed areas do not include the information
specified in sec.216.8(a)(1)(B), such as a description of the BMPs, an
assessment of the performance of the BMPs, and documentation of the maintenance
of BMPs. The City recommended that this information be required of annual
reports submitted under sec.216.8(a)(2). The commission agrees with the
comment that the requirements for reporting under sec.216.8(a)(2) should
also provide for reporting on BMPs as provided in sec.216.8(a)(1)(B). This
provision has been included in the restructured sec.216.8. 

An individual argued that the provisions of sec.216.8 are inadequate
and recommended that notices of non-compliance be published in the 
 Texas Register. The commission disagrees and responds
that its general powers of enforcement, referred to in sec.216.10, are
broad and that they allow the commission to address any risks to the attainment
of water quality protection. 

SOS commented that the rules should be rewritten to require small demonstration
phases of development and associated BMPs prior to authorization for full
build-out because corrective action depends largely on the ability to alter
practices in future phases of development but no monitoring is required until
90% of the development is complete, precluding options for any effective
improvements. The commission disagrees with the comment. The commission does
not have the authority under Texas Water Code sec.26.179 to require small
demonstration phases of development prior to the authorization for full build-
out
of water quality protection zones. 

SOS commented that using structural control pollutant removal efficiencies
as the basis for allowing post-development loadings to be 10% greater than
background loadings is a weakening of the original legislative requirement
of no increase above background water quality levels. The commission disagrees
with the comment and notes that the provision of a 10% constituent loading
threshold for compliance with the water quality protection requirements in
the rule is consistent with the provisions of sec.26.179(b) of the Texas
Water Code which requires that water quality levels after development occurs
be comparable to background water quality levels. Also, sec.216.9(a) has
been modified to include that a water quality protection zone shall be out
of compliance and require corrective action if average annual constituent
concentrations are greater than background levels. 

SOS commented that legitimate comparisons of background and post-development
average annual loadings must be statistically-based since both are random
variables. Further, SOS commented that the proposed rules should present
the basis for methods of comparison, other than those that are statistically
based. The commission does not propose to prescribe a statistical basis for
evaluating compliance with the water quality protection requirements of the
statute. The commission will consider procedures proposed by applicants for
water quality protection zones and will accept those procedures that can
be technically justified or which can be shown to satisfy similar requirements
of equivalent federal, state, or local water quality regulations. The commission
notes that not all decisions made by regulatory agencies are based upon 
statistical
analyses. Examples would include the EPA and the City of Austin storm water
monitoring requirements. 

FM Properties, Lakeway Mgt. Co., and THL Ranch commented that provisions
in the proposed rule pertaining to water quality plans for future phases
of development compensating for insufficient water quality protection in
existing phases of development, are vague and unclear. The commission responds
that these provisions are necessarily general because requirements will depend
upon actual circumstances of the water quality protection zone. In general,
however, exceedances of water quality protection requirements in a particular
phase of development in a water quality protection zone shall be accounted
for in a manner that allows for the net performance for the zone to be in
compliance with the water quality protection requirements of the zone. 
FM Properties, Lakeway Mgt. Co., and THL Ranch commented that there is
no statutory basis for a water quality plan to be "higher than necessary."
The commission agrees with the comment and contends that these rules provide
for the reasonable and necessary protection of water quality. 

THL Ranch commented that the requirements for approval of water quality
plans for future phases implies that a landowner must submit separate water
quality plans to the commission for approval whenever a separate phase in
the development of a tract of land is undertaken. In response, the commission
agrees that some clarification is necessary. Section 216.6(c) requires that
a water quality plan be amended to provide for future phases of development
when a change in acreage, an increase in impervious cover, or a change in
methods of water quality protection from the approved water quality plan
for the zone is proposed. 

SOS commented that the enforcement provisions of the proposed rules are
inadequate and will not provide a meaningful disincentive for noncompliance.
The commission disagrees with the comment and believes its enforcement 
authorities
under this and other provisions of the Texas Water Code provide sufficient
disincentives for noncompliance. 

FM Properties, Lakeway Mgt. Co., THL Ranch, and an individual commented
that, with regard to sec.216.11(a), the provisions in the proposed rule
pertaining to the calculation of fees need to be clarified and that existing
development should be excluded from the calculation because it should be
considered part of the background level of water quality. The commission
agrees with the comment and has modified the section to clarify that the
application fee will be assessed on new development and will not apply to
existing development at the time of the zone designation. The commission
also notes that annual fees shall be assess on any new development since
the designation of the zone, regardless of whether the zone was designated
prior to the adoption of this section. 

FM Properties, Lakeway Mgt. Co., and THL Ranch commented that with regard
to sec.216.11(a), the application fee should be reduced because the activities
identified in the rule preamble to be supported by the application fees are
more appropriately supported by an annual fee. The commission responds that
application fees are for the review of the proposed plan and annual fees
are for the review of the annual report and field compliance inspections.
FM Properties, Lakeway Mgt. Co., and THL Ranch commented that the provision
in sec.216.11(a) requiring the payment of a full application fee for each
amendment to a water quality plan seems unreasonable because the commission
should already be familiar with the original water quality plan. The commission
disagrees with the comment. Amendments to water quality plans could require
significant resources for the commission's review. The commission does not
propose a different fee rate for amendments. 

FM Properties recommended that, in sec.216.11(a), the assessment rate
for the review of amendments to water quality plans be less than the rate
for the initial review of the water quality plan for the zone and should
be based upon the additional acreage included in the amendment. The commission
disagrees that a different assessment rate should be used for amendments
to water quality plans. The commission agrees that the fee for amendments
should be based upon the area included in the amendment and has modified
the section.  

An individual recommended that, in sec.216.11(a), the assessment rate
be tiered to reflect the amount of staff time for the review of a plan which
defers detailed engineering review to a later point in time. The commission
is not able to specify fees at such a precise a level at this time. The fee
structure for the program will be reviewed in the future to determine the
need for refinements. 

Lakeway Mgt. Co. and THL Ranch commented that in sec.216.11(a), the fee
schedule makes no distinction between the application and annual maintenance
fees. Since the cost of analysis and determination of compliance for the
former will be far greater than the cost for latter, the fee schedule for
projects using the capture of the first 1.5 inches of rainfall should be
lower than for those in which background water quality is being maintained.
The commission responds by acknowledging that these comments have merit,
but that the agency does not have enough information to a make determination.
The fee structure will be reviewed in the future and adjusted accordingly.
FM Properties recommended that the assessment rate of annual fees be reduced
for existing development because fewer resources are necessary for oversight
relative to new development. The commission has modified sec.216.11 to
exclude development existing at the time of the zone designation from 
application
and annual fees. Annual fees shall be assess on any new development since
the designation of the zone.  

STATUTORY AUTHORITY 

These new rules are adopted under authority granted by sec.sec.26.003,
26.011, 26.121 and 26.179 of the Texas Water Code, which concerns the 
designation
of protection zones as approved by the Texas Natural Resource Conservation
Commission. The sections are also adopted under Texas Water Code, sec.5.103,
which authorizes the commission to adopt any rules necessary to carry out
its power and duties under the Texas Water Code and other laws of this state. 
sec.216.1. Applicability.
(a) This subchapter applies only to those areas in which one
or more water quality protection zones may be designated in accordance with
sec.26.179 of the Texas Water Code. 

(b) Except as provided by subsection (g) of this section, nothing
in this subchapter shall supersede or interfere with the applicability of
water quality measures or regulations adopted by a conservation and reclamation
district comprising more than two counties and which apply to the watershed
area of a surface lake or surface reservoir that impounds at least 4,000
acre-feet of water. 

(c) Except as provided by subsection (g) of this section, a
water quality protection zone implementing a water quality plan which meets
the requirements of this subchapter shall be presumed to satisfy all other
state and local requirements for the protection of water quality, provided
that the development in the zone shall comply with all state laws and commission
rules regulating water quality which are in effect on the date the zoning
is designated, including, but not limited to, this subchapter. For purposes
of this subsection, "development" means the nature and extent of the development
as originally proposed and "zone" means zone as originally designated. 
Commission
rules in effect on the date the zone is designated shall apply within a water
quality protection zone. Applications for amendments to increase the acreage
of the zone shall be subject to the rules effective at the time the related
application to amend the plan is filed with the commission. The applicability
of such rules is limited to only the new area to be added to the zone. 
(d) If there is an irreconcilable conflict between the rules
in effect at the time the zone is designated and a rule that applies to an
area as a result of an amendment application to increase the acreage of the
zone, the latter shall control. 

(e) The water quality protection provisions of this subchapter
apply only to new development in a water quality protection zone. 

(f) Ranching and agricultural activities are excluded from
the water quality protection provisions of this subchapter. 

(g) The commission may require and enforce additional water
quality protection measures to comply with mandatory federal water quality
requirements, standards, permit provisions, or regulations. 

(h) Development in the zone shall comply with all state laws
and commission rules regarding water quality that are in effect on the date
the zone is originally designated and, as to the added acreage, those laws
and rules in effect at the time any acreage is added to expand the original
zone. 

sec.216.2. Definitions.
The definitions in sec.5.001 and sec.26.001 of the Texas Water
Code apply to this subchapter; further the following terms have the following
meaning, unless the context clearly indicates otherwise.

Agent - A person or entity authorized by the owners of property
located in water quality protection zone to act for them and ensure that
a water quality protection plan is implemented pursuant to all applicable
commission regulations and state and federal law. 

Annual constituent loadings - The sum of constituent mass
loadings transported in runoff from a water quality protection zone over
a one-year period. 

Average annual constituent concentrations - The average
flow-weighted constituent concentrations contained in runoff from a water
quality protection zone over a period of one year. 

Average annual constituent loadings - Average constituent
mass loadings computed from annual constituent mass loadings from multiple
years.

Background levels of water quality - The average annual
loading of water quality constituents in runoff from a water quality protection
zone to waterways in the state that existed prior to the commencement of
new development within the water quality protection zone calculated using
a formula that normalizes loadings to average annual rainfall conditions
or the average annual concentrations of water quality constituents in runoff
from a water quality protection zone to waterways in the state that existed
prior to the commencement of new development within the water quality protection
zone. 

Best Management Practices - Schedule of activities, prohibitions
of practices, maintenance procedures, and other management practices to prevent
or reduce the pollution of water. BMPs also include treatment requirements,
operating procedures, and practices to control site runoff, spillage or leaks,
sludge or waste disposal, or drainage from raw material storage. BMPs are
those measures that are reasonable and necessary to achieve a performance
standard that protects water quality as determined by studies and other 
information
that are generally relied upon by professionals in the environmental protection
field and verified through performance monitoring including, but not limited
to, "Guidance Specifying Management Measures for Sources of Nonpoint Pollution
in Coastal Waters" (EPA/NOAA). 

Construction - Fabrication of physical facilities such as
buildings, roads, and utility infrastructure. 

Contiguous tract - A tract shall be deemed contiguous if
all of the parts of the tract are physically adjacent, without regard to
easements, rights-of-way, roads, streambeds, and public or quasi-public land,
or it is part of an integrated development under common ownership or control.
Designation of water quality protection zone - A designation
is comprised of a metes and bounds description of a water quality protection
zone, a general description of the proposed land uses within the zone, a
water quality plan for the zone, and a general description of the water quality
facilities and infrastructure to be constructed for water quality protection
in the zone.

Developed area - Area within a designated water quality
protection zone in which development has been completed. 

Development - All land modification activity, including
the construction of buildings, roads, paved storage areas, parking lots;
the application of chemical constituents; the alteration of vegetative cover;
land-disturbing construction or human-made change of the land surface, including
clearing of vegetative cover; excavating; dredging and filling; grading;
contouring; mining; and depositing refuse, waste or fill; or any other 
activities
which alter or disturb the topographic, hydrologic or geologic characteristics
of land. Development shall be considered to be completed when 90% of the
planned development is in place. Agricultural and ranching activities are
excluded from this definition of development. Activities such as minimal
clearing and the installation of underground utilities which create only
a temporary potential to adversely impact water quality are not considered
to be development for the purposes of the permanent water quality protection
requirements specified in sec.216.6(a) of this rule.

Integrated development - A systematic approach to building
or otherwise improving property in accordance with a published master plan.
If the proposed zone is comprised of parts that are not physically adjacent,
the executive director shall, in determining whether a proposed zone qualifies
as an integrated development, consider factors such as: 

(A) distance between the parts of the proposed water
quality protection zone; 

(B) relationship between the property parts including
common use facilities, common recreational facilities, and common utilities;
(C) the extent to which runoff from different parts of
the zone drains to the same sub-watershed; 

(D) whether the development will be encumbered by a single
set of restrictive covenants that provide for the development of the property
as a single community; 

(E) whether the parts will be served by a master property
owners' association; 

(F) whether all land will be developed under consistent
development standards, including architectural control standards, water quality
standards, road and street standards, and utility standards; 

(G) whether the parts will be developed under a common
name; and 

(H) other factors the executive director may deem necessary
for the protection of water quality within the zone.

New development - Development that occurs after the designation
of a water quality protection zone. 

Phase of development - A stage of development identified
in a water quality plan filed with the commission. A phase will be considered
completed when 90% of the planned development is in place or when construction
has ceased for a period of one year. 

Plan - Water quality plan for a water quality protection
zone. 

Retention - The prevention of the discharge of a given volume
of stormwater runoff into waterways. 

Undeveloped site - A land area within a water quality protection
zone that has not been modified by development.

Water quality plan - A plan meeting all applicable statutory
requirements as determined by the executive director of the commission as
provided by this chapter. 

Water quality protection zone - An area properly designated
in accordance with sec.26.179 of the Texas Water Code and, if applicable,
sec.216.3 of this title (relating to Designation of Water Quality Protection
Zones), as follows: 

(A) A contiguous tract of land of at least 1,000
acres that is located within an area subject to and properly designated in
accordance with sec.26.179 of the Texas Water Code, or 

(B) A contiguous tract of land containing less than 1,000
acres but not less than 500 acres that is located within an area subject
to and, after prior approval of the commission in the manner described in
sec.216.3 of this title (relating to Designation of Water Quality Protection
Zones), properly designated in accordance with sec.26.179 of the Texas
Water Code. 

Waterways - Includes lakes, bays, ponds, impounding reservoirs,
springs, rivers, streams, creeks, estuaries, marshes, inlets, canals, the
Gulf of Mexico inside the territorial limits of the state, and all other
bodies of surface water, natural or artificial, inland or coastal, fresh
or salt, navigable or non-navigable, and including the bed and banks of all
watercourses and bodies of surface water that are wholly or partially inside
or bordering the state or inside the jurisdiction of the state.

sec.216.3. Designation of Water Quality Protection
Zones.
(a) Zones Containing 500-999 acres of Land. The owner or owners
of a contiguous tract comprised of less than 1,000 acres but at least 500
acres of land may submit an application for plan approval to the executive
director. After the plan is approved, the owner shall record the designation
of the zone in the deed records of the county in which the land is located.
The creation of the zone is effective upon deed recordation. 

(b) Zones Containing 1,000 acres or more of Land. The owner
or owners of a contiguous tract of 1,000 acres or more of land may create
a water quality protection zone that will become effective upon recordation
of the designation in the deed records of the county in which the land is
located. 

(c) Notice. Whenever a designation is recorded in the deed
records of the county in which the land is located, notice of such filing
shall be given to the city clerk of the municipality within whose 
extraterritorial
jurisdiction the zone is located and the clerk of the county in which the
property is located. A recorded copy of the water quality protection zone
designation shall be filed with the executive director immediately after
its recordation with the county clerk, but not later than five working days
from the date of such county recordation. 

(d) Content of Application. The following shall be included
in the application for approval of a water quality plan for a water quality
protection zone. 

(1) Each application shall specify an agent who is the authorized
representative of the owner or owners of the zone. The agent shall accept
performance obligations set forth under the water quality plan for the zone;
act as the contact person on behalf of the zone; and submit all reports and
fees. The owner or owners of the zone shall notify the commission within
30 days of changes with regard to the agent for the zone. 

(2) Each application shall contain sworn affidavits from
each owner asserting his or her common ownership interest in the entire zone
and intention to comply with all plan requirements, and a statement designating
the name, address and telephone number of the agent or agents who will be
managing the zone. 

(3) Each application shall contain a metes and bounds
description of the zone. 

(4) Each application shall contain a general description
of the proposed land uses within the zone. 

(5) Each application shall contain a water quality plan
for the zone as described in sec.216.6 of this title (relating to Water
Quality Plan). 

(6) Each application shall contain a general description
of the water quality facilities and infrastructure to be constructed for
water quality protection in the zone. 

(7) Payment of the application fee as described in sec.216.11
of this title (relating to Fee Schedule) shall be accompanied by supporting
documentation for the calculation of the fee. 

(e) Application Procedures. 

(1) An application for plan approval shall be submitted to
the executive director for review and approval. The owner or agent shall
submit four copies of the application to the Austin Regional Office of the
commission to the Attention of: Water Program Manager, TNRCC-Region 11, 1921
Cedar Bend, Suite 150, Austin, Texas 78758. 

(2) The water quality plan for a water quality protection
zone, including the determination of background levels of water quality,
shall be signed and sealed by a registered professional engineer acknowledging
that the plan is designed to achieve the water quality protection standard
defined in this subchapter. 

(3) The review and action on the application for plan
approval for a water quality protection zone shall be completed within 120
days of the date it is filed with the commission. Those applications which
are found not to be administratively complete as described in sec.216.3(d)
will result in the denial of the water quality plan for the zone. Written
notice of the executive director's action on an application for plan approval
shall be mailed to the applicant, the affected city, groundwater conservation
district and the appropriate county judge(s), as set out in sec.216.7(a)
of this title (relating to Actions and Notice). 

(4) If, prior to the executive director's decision upon
an application, the applicant proposes a change to such plan or amendment,
the original plan or plan amendment shall be denied. A revised plan or plan
amendment shall be submitted to the executive director within thirty days
of the denial and no further fee shall be required. The executive director's
review and approval of the revised plan or plan amendment shall be completed
within 120 days of the date the revised plan or plan amendment is filed with
the executive director. 

(5) For zones of 1,000 acres or more and all plan amendments,
the decision to approve or deny a plan application or application for amendment
will be made on the proposed plan or amendment that has been deed recorded.
(6) For zones of 1,000 acres or more, if the water quality
plan for the zone is denied by the executive director, the plan ceases to
be effective until an appeal is filed in a court of competent jurisdiction,
at which time the zone resumes its effectiveness. 

sec.216.4. Expiration.
A water quality plan shall expire: 

(1) upon denial unless the denial is under appeal to a court
of competent jurisdiction; 

(2) upon annexation of the zone by a municipality; or
(3) upon failure to commence construction within five
years of approval of the plan as provided in sec.216.6(d) of this title
(relating to Water Quality Plan).

sec.216.5. Agents.
(a) Before a water quality plan for a water quality protection
zone may be approved by the commission, the application for plan approval
is required to identify one person or entity who will be an agent for the
zone and accept performance obligations set forth under the plan for the
zone. The agent will implement the plan by the terms of its provisions, prepare
and submit annual reports, implement all necessary and appropriate corrective
actions and plan amendments, and pay all fees, among other things. 

(b) All owners of property within the zone are required to
sign a sworn affidavit prior to designation of the zone that they will comply
with the plan, take all reasonable efforts to ensure that the agent is 
implementing
the plan and will inform the commission within 30 days of changes with regard
to the agent for the zone. 

(c) The plan may designate different agents who will manage
the zone at different times. 

sec.216.6. Water Quality Plan.
(a) Water Quality Protection. The water quality plan for a
designated water quality protection zone shall be designed and implemented
to achieve water quality protection by: 

(1) maintaining background levels of water quality in waterways
in a manner described in this subchapter; or 

(2) capturing and retaining the first 1.5 inches of rainfall
from developed areas in a manner described in this subchapter. 

(b) Contents. A water quality plan shall be site-specific,
and shall include the components listed in this subchapter. With regard to
information necessary to support the water quality plan identified in this
subchapter, certain information may be omitted with prior commission 
authorization
which will be made based upon a review of site-specific circumstances. 
(1) Determination of Background Levels of Water Quality. A
water quality plan seeking to achieve water quality protection by maintaining
background levels of water quality through water quality monitoring shall
include the following procedures and information: 

(A) Site Background Water Quality Data. Data sufficient to
establish background levels of water quality shall be collected from one
or more water quality monitoring sites located within the designated zone.
(i) Water quality monitoring sites shall be located so as to
be representative of runoff from all areas within the water quality protection
zone, including developed and undeveloped areas. Water quality monitoring
of runoff from developed areas shall be representative of areas where management
measures are implemented to a reasonably feasible and practical extent and
therefore representative of water quality conditions that can be reasonably
attained in developed areas. Water quality monitoring of undeveloped areas
shall be representative of conditions prior to any development activity.
Factors including, but not limited to, the variability in the contributory
area, soils, topography, and vegetation, may be used to determine the 
representativeness
of the water quality monitoring sites. Sufficient supporting information
including drainage area, storm water flow, land uses, best management practices
and technical analyses shall be submitted to establish the representativeness
of the data. 

(ii) Information relevant to the determination of both average
annual mass loadings and average annual constituent concentrations at sites
located within the water quality protection zone shall be submitted for the
following constituents: total suspended solids, total nitrogen, total 
phosphorus,
chemical oxygen demand and biochemical oxygen demand. Sufficient supporting
information including sampling locations, the types of samples collected,
sampling schedule, sampling procedures, sampling equipment, laboratory 
analytical
methods, analytical results, computational methods, and data quality assurance
records shall be submitted to establish the adequacy of the data. 

(iii) Water quality monitoring at each site shall consist of
a minimum of one stage (flow) composite sample for at least four storm events
of one-half inch or more of rainfall that occur at least one month from the
previous rainfall event of one half inch or more. Water quality monitoring
at each site shall be of sufficient frequency to be an accurate measure of
annual average constituent loadings or average annual constituent concentrations
at that site. Sufficient supporting information such as statistical analyses,
literature citations or program references shall be submitted to establish
the completeness and reliability of the data. 

(iv) If sufficient data collected from water quality monitoring
sites located within the area designated as a water quality protection zone
are not available, a water quality monitoring plan to collect such data shall
be submitted. The water quality monitoring plan shall specify procedures,
methods and information that are consistent with the requirements stated
in this section. Calculation procedures as described in subparagraph (B)
of this paragraph will be followed during the interim period until sufficient
data are collected from sites located within the water quality protection
zone.  

(B) Calculation of Background Levels of Water Quality. If
sufficient data collected from water quality monitoring sites located within
the area designated as a water quality protection zone are not available,
calculations performed and certified by a registered professional engineer
utilizing the concepts and data from the National Urban Runoff Program (NURP)
Study or other studies approved by the executive director for the constituents
resulting from average annual runoff may be used to establish background
levels of water quality until sufficient data are collected from sites located
within the water quality protection zone. 

(i) Concepts and data for developed areas shall be representative
of areas where management measures are implemented to a reasonably feasible
and practical extent and therefore representative of water quality conditions
that can be reasonably attained in developed areas. Concepts and data for
undeveloped areas shall accurately represent conditions prior to any development
activity. Sufficient supporting information including land uses, data quality,
flow volumes to estimate constituent loadings, constituent concentrations,
and watershed characteristics shall be submitted as necessary to establish
the accuracy of the calculations and representativeness of the results. 
(ii) Studies proposed to support the establishment of background
levels of water quality shall be specified and copies provided for review
by the executive director prior to the submission of a water quality plan
or plan amendment. A water quality plan or plan amendment may rely only upon
studies approved by the executive director prior to submission of the plan
or amendment. Review of studies proposed to establish background levels of
water quality shall be separate from the executive director's review of a
water quality plan or plan amendment. 

(2) Water Quality Performance Monitoring. Agents
for plans that seek to achieve water quality protection of developed areas
by maintaining background levels of water quality through water quality 
monitoring
shall monitor water quality at four or more locations representative of where
runoff from the water quality protection zone enters waterways. 

(A) Water quality performance monitoring shall be conducted
for the following constituents: total suspended solids, total nitrogen, total
phosphorus, chemical oxygen demand and biochemical oxygen demand. If water
quality monitoring indicates that additional constituents are leaving the
property, then additional monitoring and remedial actions shall be required.
(B) A water quality monitoring plan for collecting performance
data shall be included in the water quality plan. The water quality monitoring
plan shall include project design, data quality objectives, proposed sampling
locations, the types of samples to be collected, sampling schedule, sampling
procedures, sampling equipment, laboratory analytical methods and data quality
assurance provisions, computational methods, and reporting requirements.
(C) Water quality performance monitoring sites shall be located
so as to be representative of annual constituent loadings or average annual
constituent concentrations from all areas within the water quality protection
zone. Water quality performance monitoring sites shall be located at points
representative of where runoff from the zone enters waterways. Sufficient
supporting information including drainage area, storm flows, land uses, loading
calculations and statistical analyses shall be submitted to establish the
accuracy and representativeness of the proposed data collection program.
(D) Water quality performance monitoring shall consist of
a minimum of one stage (flow) composite sample for at least four storm events
per year of one-half inch or more of rainfall that occur at least one month
from the previous rainfall event of one-half inch or more. Water quality
monitoring at each site shall be of a frequency that will give an accurate
measure of annual average constituent loadings or average annual constituent
concentrations at that site. Complete copies of sufficient supporting 
information
such as statistical analyses, literature citations, or program references
shall be submitted to establish the sufficiency of the proposed data collection
program.  

(E) Water quality performance monitoring shall occur for three
consecutive years after each phase of development is completed within the
water quality protection zone. Each new phase of development, including 
associated
best management practices and amendments, if applicable, to a water quality
plan for an existing phase of development, will require water quality 
performance
monitoring for a three-year period. Zones and phases of development within
a zone that have previously satisfied the performance monitoring requirements
of this rule are not required to perform additional performance monitoring
unless the water quality plan for the zone is amended in a manner that affects
these areas. If agents can show good cause, the executive director may determine
that water quality performance monitoring is required for less than a three-year
period. 

(F) The results of the water quality performance monitoring
shall be the basis for calculating annual constituent loadings or average
annual constituent concentrations from the water quality protection zone.
These values shall be compared with the average annual constituent loading
values or average annual constituent concentration values determined to 
represent
background levels of water quality to evaluate compliance of the water quality
plan with the water quality protection requirements of this subchapter. These
results shall be reported to the executive director as described in sec.216.9
of this title (relating to Corrective Actions). 

(3) Storm Water Capture and Retention. Water quality
plans seeking to achieve water quality protection by capturing and retaining
runoff from the first 1.5 inches of rainfall from developed areas within
the water quality protection zone shall not be required to conduct water
quality monitoring, as described in paragraphs (1) and (2) of this subsection.
(A) Supporting information including drainage area, storm
water flows, land uses, determination of runoff coefficients, capture volume
calculations, water management plan, facility design criteria, and facility
maintenance plans shall be submitted and shall establish the adequacy of
the proposed water quality protection measures to capture and retain the
required volume of rainfall runoff. Design criteria shall demonstrate the
capture and retention of the required volume of rainfall. Maintenance provisions
shall ensure the continued performance of management facilities. 

(B) Water quality plans shall include provisions for maintaining
rainfall records including rainfall volumes, facility water levels and discharge
volumes; water reuse records including reuse volumes and reuse locations;
facility maintenance records; and other supporting information and record
keeping provisions approved by the executive director. 

(C) Storm water reuse plans shall specify design and operational
criteria for drawing down storm water in retention facilities. Storm water
reuse plans shall include provisions for using best management practices
including the siting of irrigation areas and irrigation methods. 

(4) Best Management Practices. Water quality plans
shall include a description of all the best management practices to be utilized
to protect water quality in the water quality protection zone during and
after construction, an estimate of the pollutant removal efficiencies of
these best management practices, and the procedures to be used to monitor
and maintain these best management practices. Only those management practices
described in the approved water quality plan shall be used. If other practices
are intended to be used, the agent of the zone shall report such changes
to the executive director in the annual reporting for the zone. Upon request
and with sufficient supporting data, design criteria or other similar 
information
may be accepted in lieu of design specifications for best management practices.
(A) Best management practices specified in the approved water
quality plan shall be required for all areas under development within a water
quality protection zone to prevent and/or control the erosion of sediments
from the area during and after construction. Written notification shall be
provided to the executive director no later than 48 hours prior to the 
initiation
of construction in a water quality protection zone to allow the executive
director an opportunity to perform inspections of the construction activities.
(B) Records shall be kept by the agents and furnished to the
executive director upon request. Records shall be sufficient to verify 
consistent
use of best management practices, including operational and maintenance 
activities.
(5) Stream erosion. Water quality plans shall include
a description of all measures to be taken to avoid or minimize changes in
which water may enter a waterway as a result of construction and development
that would increase flashing, create stronger flow and stream velocity, increase
the duration of flow or otherwise increase instream erosion and further water
quality degradation. This description shall include pre- and post-development
flow information or estimates. 

(c) Review, Approval and Amendment Procedures. 

(1) The executive director shall approve the water quality
plan for a water quality protection zone unless the executive director finds
that the implementation of the proposed plan will not reasonably maintain
background levels of water quality, the plan would not maintain water quality
sufficient to protect existing and designated uses of affected surface water,
or the plan is in conflict with state or federal law. 

(2) A water quality plan may be amended from time to time
by the filing of a request for amendment signed by the agent with the executive
director and filed in the deed records of the county where the original plan
is filed. All such proposed amendments shall be submitted to the executive
director for review and approval on the same basis as the original application
for plan approval. 

(A) The executive director shall either initiate or require
an amendment by the agent to enforce additional water quality protection
measures instituted by the commission to comply with mandatory federal water
quality requirements, standards, antidegradation policies, permit provisions
and regulations or other mandatory requirements under other federal law.
(B) Commission rules in effect on the date the zoning is designated
shall continue to apply within a water quality protection zone or those portions
of a zone for which an amendment application has been filed, except that
applications for amendments to increase the acreage of the zone shall be
subject to the rules effective at the time the related application to amend
the plan is filed and the applicability of such rules is limited to only
the new area to be added to the zone. The water quality plan for a water
quality protection zone shall be amended if: 

(i) the acreage specified in the plan is increased; 

(ii) the total impervious cover specified in the plan is increased
beyond the original designed specifications for achieving water quality 
protection;
(iii) the method of water quality protection is changed; or
(iv) the method of determining performance compliance is changed.
(C) If the performance monitoring and best management practices
indicate that background levels were not maintained during the previous year,
as described in sec.216.9 of this title, amendments to the plan may be
required for future phases of development in the zone and to improve operational
and maintenance practices in existing phases to the extent reasonably feasible
and practical. 

(3) Review and action on an application for approval
of a water quality plan or plan amendment shall be performed by the agency
staff who are responsible for reviewing pollution abatement plans in the
county where the water quality protection zone is located. If the executive
director approves the plan, notice of the approval shall be mailed as provided
in sec.216.7(a) of this title (relating to Actions and Notice). 

(4) A plan or plan amendment is approved if 120 days from
the date of submittal has passed without comment from the executive director.
In such event, no notice beyond what is required by sec.216.7(a) of this
title is necessary. 

(5) The executive director shall deny the application
for approval of a water quality plan or plan amendment that does not meet
the requirements set forth in sec.26.179 of the Texas Water Code and this
subchapter. 

(A) For zones less than 1,000 acres, notice of the denial
of a water quality plan, including the reason for the determination, shall
be mailed to the applicant. 

(B) For zones of 1,000 acres or more, notice of the denial
of a water quality plan, including the reason for the determination, shall
be mailed to the applicant, county judge, director of each groundwater 
conservation
district, and the affected municipality as provided in sec.216.7(a) of
this title. The applicant shall record the notice of denial in the deed records
of the county in which the land is located, unless the applicant appeals
the denial in a court of competent jurisdiction. 

(C) For plan amendments, notice of the denial of the amendment,
including the reason for the determination, shall be mailed to the applicant,
county judge, director of each groundwater conservation district, and the
affected municipality as provided in sec.216.7(a) of this title. 

(d) Effective Date and Term. The water quality plan, or amendment
thereto, shall be effective upon recordation of the plan or the amendment
in the deed records of the county in which the land is located. For proposed
plans regarding zones of 1,000 acres or more, if the executive director denies
the application and the applicant appeals the decision, the plan shall remain
in effect for as long as the appeal continues. For proposed plans regarding
zones of less than 1,000 acres which require prior approval by the executive
director, if the executive director denies the application, the proposed
plan does not become effective until the appeal is won by the applicant.
The plan shall be a covenant running with the land. As such, if a plan is
proposed for a zone having more than one owner, the owners must have a common
ownership interest in the zone. The effectiveness of a plan or amendment
shall also terminate if commencement of construction does not occur within
five years of the effective date of the plan. 

(e) Effect of the Plan. A water quality protection zone in
which a water quality plan has been approved by the executive director shall
be presumed to satisfy all other state and local requirements for the protection
of water quality, provided that development in the zone complies with all
applicable state laws and commission rules regulating water quality which
are in effect on the date the zone is originally designated and those in
effect at the time any acreage is added to expand the original zone, as to
the added acreage.

sec.216.7. Actions and Notice.
(a) The public notice requirements of this section govern applications
for approval of plans and plan amendments. 

(1) The executive director shall mail notice of the receipt
of the application to the county judge of each county in which property included
in the application is located, the director of each groundwater conservation
district in which property included in the application is located and the
municipality in whose extraterritorial jurisdiction the zone is located.
(2) Each notice of an application shall specify both the
name, affiliation, address, and telephone number of the applicant and of
the agency employee who may be reached to obtain more information about the
application. The notice shall include a copy of the map or other description
or location of the subject property which is filed with the application.
(3) The executive director shall mail a copy of the letter
of approval or disapproval of any application to the applicant, to the county
judge of each county in which property included in the request is located,
the director of each groundwater conservation district in which property
included in the application is located and to the municipality in whose 
extraterritorial
jurisdiction the zone is located. 

(b) Public Comment. Any person may provide to the executive
director written comments on any application for approval of a water quality
plan or plan amendment. The executive director shall review any written comments
received within 30 days after the notice is mailed and may use the information
contained therein in considering action on the application.

sec.216.8. Annual Reporting Requirements.
(a) An annual report shall be submitted to the executive director
no later than April 1 of each calendar year during the development of the
property and for three consecutive years after each phase of development
is completed within the water quality protection zone. Annual reports are
not required for zones or phases of development within a zone that have 
satisfied
the water quality protection and performance monitoring requirements of the
rule unless the water quality plan for these areas is amended subsequent
to these requirements being satisfied. Reports for individual areas within
a zone shall be consolidated into a single annual report. The executive director
shall review the annual report. The annual report shall be either a technical
or operational report or combination of both dependent upon the method used
to achieve water quality protection as described in sec.216.6 of this title
(relating to Water Quality Plans). Information pertaining to best management
practices being used shall be included in both types of reports. Certain
information pertaining to the annual report may be omitted with prior commission
authorization which will be made based upon a consideration of site-specific
circumstances.  

(1) Technical reports for water quality protection plans that
achieve water quality by maintaining background levels of water quality as
described in this subchapter shall include information sufficient to establish
that background levels of water quality were maintained in the water quality
protection zone during the previous year. This information shall include
water quality monitoring, best management practices, record keeping, water
quality protection assessment, and any corrective actions taken. Reporting
on water quality monitoring shall include the results of monitoring runoff
from the water quality protection zone to determine background water quality
levels and monitoring the performance of the water quality plan. Information
on water quality monitoring reported to the executive director shall include
sampling locations, sampling procedures, analytical results, results of quality
assurance provisions, and calculation of average annual concentrations or
calculation of annual constituent loadings from the water quality protection
zone to waterways.  

(2) Operational reports for water quality protection plans
that achieve water quality by capturing and retaining the first 1.5 inches
of rainfall from developed areas as described in this subchapter shall include
for each retention facility records of rainfall dates and volumes; retention
facility daily water levels and discharge volume, while holding water; 
stormwater
reuse records including locations and volumes reused; and facility maintenance
data. 

(3) Information pertaining to best management practices
reported to the executive director shall include a description of the type
and location of all best management practices utilized to protect water quality
in the water quality protection zone, an assessment of the performance of
each best management practice and documentation of maintenance activities
performed on each structural control measure. For rainfall retention facilities
the report shall include records of rainfall dates and depths; retention
facility daily water levels and discharge volume, while holding water; storm
water reuse records, including locations and volumes; and facility maintenance
data.  

(b) The annual report shall include an assessment of the water
quality plan for the water quality protection zone in meeting the water quality
protection requirements of this subchapter. If the water quality protection
assessment indicates that the water quality plan for the water quality 
protection
zone failed to meet the requirements as described in sec.216.9 of this
title (relating to Corrective Actions) proposed corrective actions shall
be included in the annual report. 

sec.216.9. Corrective Actions.
(a) Water quality protection zones shall be considered to be
in compliance with the requirements of this subchapter if constituent mass
loadings or average annual concentrations from the water quality protection
zone after development are comparable to background levels of water quality
established for the zone as described in sec.216.6(b)(1) of this title
(relating to Water Quality Plan). Water quality protection plans may be presumed
to have maintained comparable, pre-development background levels of water
quality if constituent mass loadings are not greater than 10% above background
levels or if average annual concentrations are not greater than background
levels. Such presumption is rebuttable. Water quality protection zones shall
be out of compliance and require corrective action if constituent mass loadings
from the water quality protection zone after development are greater than
10% above the background levels established for the zone or if average annual
constituent concentrations are greater than background. 

(b) If the performance monitoring and best management practices
indicate that background levels were not maintained or that the required
volume of rainfall was not retained during the previous year, the agent for
the water quality protection zone shall: 

(1) modify the water quality plan for future phases of development
in the water quality protection zone to the extent reasonably feasible and
practical; and 

(2) modify operational and maintenance practices in existing
phases of the water quality protection zone to the extent reasonably feasible
and practical. 

(c) The extent to which water quality protection cannot be
achieved within existing phases of development shall be considered in future
phases of development within the water quality protection zone. Applications
for amendments to plans for future phases of development within the water
quality protection zone will be denied if they do not consider failures of
water quality plans in existing phases of development to achieve water quality
protection as prescribed in this subchapter.

sec.216.11. Fee Schedule.
(a) Application Fee. For applications for approval of water
quality plans and water quality plan amendments, a non-refundable application
fee shall be assessed based upon the total acreage of new development proposed
in the zone or portion of the zone under consideration by the proposed water
quality plan or amendment. Application fees shall be assessed at a rate of
$25 per acre of proposed new development. Payment of the application fee
must be submitted at the time that an application is made to the commission.
The payment of the application fee shall be accompanied by documentation
of how the application fee was calculated. An application shall be denied
if not accompanied by the appropriate fee. 

(b) Annual Fee. For each water quality protection zone, an
annual compliance and inspection fee shall be assessed based upon the total
acreage of development that has occurred since the designation of the zone
and which exists within the water quality protection zone at the end of each
calendar year. Annual fees shall not be required for zones or portions of
zones which are not required to submit an annual report as described in 
sec.216.8
of this title (relating to Annual Reporting Requirements). Annual fees shall
be assessed at a rate of $10 per acre of development. Payment of the annual
fee shall be made at the time of the submittal of the annual report. The
payment of the annual fee shall be accompanied by documentation of how the
annual fee was calculated. 

This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on November 1, 1996.
TRD-9615896
Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Effective date: November 25, 1996

Proposal publication date: May 3, 1996

For further information, please call: (512) 239-4640

TITLE 34. PUBLIC FINANCE
PART I. Comptroller of Public Accounts
CHAPTER 3. Tax Administration
SUBCHAPTER F. Motor Vehicle Sales Tax
34 TAC sec.3.70, sec.3.79
The Comptroller of Public Accounts adopts the repeal of sec.3.70
and sec.3.79, concerning vehicles purchased and leased outside of Texas,
and motor vehicle leases and sales, without changes to the proposed text
as published in the September 20, 1996, issue of the 
Texas Register  (21 TexReg 9052).  

The comptroller has determined that the consolidation of sections dealing
with similar subject matter will benefit taxpayers by providing a more
effective means of obtaining information. The sections are being repealed
in order to simplify the consolidation of related sections into a single
section. The new sec.3.70, concerning motor vehicle leases and sales,
includes the  substance of the current sec.3.70 and sec.3.79.  

No comments were received regarding adoption of the repeals.

The repeals are adopted under the Tax Code, sec.111.002, which
provides the comptroller with the authority to prescribe, adopt, and enforce
rules relating to the administration and enforcement of the provisions of
the Tax Code, Title 2. 

The repeals implement Tax Code, sec.111.002.

This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on November 19, 1996.
TRD-9616864
Martin Cherry

Chief, General Law

Comptroller of Public Accounts

Effective date: December 10, 1996

Proposal publication date: September 20, 1996

For further information, please call: (512) 463-4062

34 TAC sec.3.70
The Comptroller of Public Accounts adopts new sec.3.70,
concerning motor vehicle leases and sales, without changes to the proposed
text as published in the September 20, 1996, issue of the 
Texas Register (21 TexReg 9052).  

The comptroller has determined that the consolidation of sections dealing
with similar subject matter will benefit taxpayers by providing a more
effective means of obtaining information. Therefore, current sec.3.70
is being proposed for repeal. The new section consolidates the substance
of the current sec.3.70, concerning vehicles purchased and leased outside
of Texas and sec.3.79, concerning motor vehicle leases and sales.  
Two comments were received. The Texas Automobile Dealers Association suggested
that a definition of fair market value be included in the rule. The National
Vehicle Leasing Association suggested that sec.3.70(b) be reworded for
clarity. The Comptroller did not include the suggestions because the proposed
rule was a consolidation effort only without substantial changes to text.
This new section is adopted under the Tax Code, sec.111.002,
which provides the comptroller with the authority to prescribe, adopt, and
enforce rules relating to the administration and enforcement of the provisions
of the Tax Code, Title 2.  

The new section implements the Tax Code, sec.sec.152.001, 152.002,
152.021, and 152.022.

This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on November 19, 1996.
TRD-9616865
Martin Cherry

Chief, General Law

Comptroller of Public Accounts

Effective date: December 10, 1996

Proposal publication date: September 20, 1996

For further information, please call: (512) 463-4062

34 TAC sec.3.87
The Comptroller of Public Accounts adopts the repeal of sec.3.87,
concerning accessories added to motor vehicles, without changes to the
proposed text as published in the October 1, 1996, issue of the 
Texas Register (21 TexReg 9427).  

The comptroller has determined that the consolidation of sections dealing
with similar subject matter will benefit taxpayers by providing a more
effective means of obtaining information. The section is being repealed
in order to simplify the consolidation of related sections into a single
section. The substance of the current sec.3.87 will be included in new
34 TAC sec.3.290,  concerning motor vehicle repair and maintenance; accessories
and equipment added to motor vehicles; moveable specialized equipment,
and will clarify policy regarding the sale for resale exemption under the
Tax Code, Chapter 151, for accessories and equipment attached to motor 
vehicles that are held for sale, lease, and rental.  

No comments were received regarding adoption of the repeal.

This repeal is adopted under the Tax Code, sec.111.002, which
provides the comptroller with the authority to prescribe, adopt, and enforce
rules relating to the administration and enforcement of the provisions
of the Tax Code, Title 2.  

The repeal implements the Tax Code, sec.111.002.

This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on November 19, 1996.
TRD-9616866
Martin Cherry

Chief, General Law

Comptroller of Public Accounts

Effective date: December 10, 1996

Proposal publication date: October 1, 1996

For further information, please call: (512) 463-4062

SUBCHAPTER V. Franchise Tax
34 TAC sec.sec.3.541, 3.542, 3.573
The Comptroller of Public Accounts adopts the repeal of sec.3.541,
sec.3.542, and sec.3.573 concerning exemptions, exemption: trade show,
and provisional exemptions, without changes to the proposed text as published
in the October 15, 1996, issue of the Texas Register 
(21 TexReg 10167).  

The comptroller has determined that the consolidation of sections dealing
with similar subject matter will benefit taxpayers by providing a more
effective means of obtaining information. The sections are being repealed
in order to simplify the consolidation of related sections into a single
section. The new sec.3.541, concerning exemptions includes the substance
of the current  sec.3.541, sec.3.542, and sec.3.573.  

No comments were received regarding adoption of the repeals.

The repeals are adopted under the Tax Code, sec.111.002, which
provides the comptroller with the authority to prescribe, adopt, and enforce
rules relating to the administration and enforcement of the provisions of
the Tax Code, Title 2.  

The repeals implement Tax Code, sec.111.002.

This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on November 19, 1996.
TRD-9616867
Martin Cherry

Chief, General Law

Comptroller of Public Accounts

Effective date: December 10, 1996

Proposal publication date: October 15, 1996

For further information, please call: (512) 463-4062

34 TAC sec.3.541
The Comptroller of Public Accounts adopts a new sec.3.541,
concerning exemptions, without changes to the proposed text as published
in the October 15, 1996, issue of the Texas Register 
(21 TexReg 10167).  

The comptroller has determined that the consolidation of sections dealing
with similar subject matter will benefit taxpayers by providing a more
effective means of obtaining information. Therefore, current sec.3.541
is being proposed for repeal. The new section consolidates the substance
of the current sec.3.541 with sec.3.542, concerning trade show exemptions,
and sec.3.573, concerning provisional exemptions. The section also reflects
amendments made by Senate Bill 644, 74th Legislature, 1995, adding to the
corporations that may qualify for provisional franchise tax exemption,
corporations that have applied for federal tax exemption under the provisions
of Internal Revenue Code, sec.501(c)(8), (10), or (19), and the revision
of the definition of beginning date for provisional exemptions.  

No comments were received regarding adoption of the new section.

This new section is adopted under the Tax Code, sec.111.002,
which provides the comptroller with the authority to prescribe, adopt, and
enforce rules relating to the administration and enforcement of the provisions
of the Tax Code, Title 2.  

The new section implements the Tax Code, sec.sec.171.051-171.087.

This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on November 19, 1996.
TRD-9616868
Martin Cherry

Chief, General Law

Comptroller of Public Accounts

Effective date: December 10, 1996

Proposal publication date: October 15, 1996

For further information, please call: (512) 463-4062

CHAPTER 9. Property Tax Administration
SUBCHAPTER G. Truth in Taxation Requirements
34 TAC sec.9.2001
The Comptroller of Public Accounts adopts the repeal of sec.9.2001,
concerning the publishing of a notice of public hearing on a proposed tax
increase, without changes to the proposed text as published in the September
24, 1996, issue of the Texas Register (21
TexReg 9152). 

The repeal of this section is necessary because this rule is a duplicate
of 34 TAC sec.9.17, which superseded the rule for which repeal is adopted.
No comments were received regarding adoption of the repeal.

This repeal is adopted under the Tax Code, sec.26.06, which
requires the comptroller to prescribe by rule the form for publishing notice
of public hearing on tax increase. 

The repeal implements the Tax Code, sec.26.06.

This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on November 18, 1996.
TRD-9616844
Martin Cherry

Chief, General Law

Comptroller of Public Accounts

Effective date: December 9, 1996

Proposal publication date: September 24, 1996

For further information, please call: (512) 463-3699

34 TAC sec.9.2002
The Comptroller of Public Accounts adopts the repeal of sec.9.2002,
concerning the form and content of notices of effective and rollback tax
rates, without changes to the proposed text as published in the September
24, 1996, issue of the Texas Register (21
TexReg 9152).  

The repeal of this section is necessary because this rule is a duplicate
of 34 TAC sec.9.19 which was repealed in 1995. 

No comments were received regarding adoption of the repeal. 

This repeal is adopted under the Tax Code, sec.26.04, which
requires the comptroller to prescribe the form for publishing notice of 
effective
and rollback tax rates. 

The repeal implements the Tax Code, sec.26.04.

This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on November 18, 1996.
TRD-9616845
Martin Cherry

Chief, General Law

Comptroller of Public Accounts

Effective date: December 9, 1996

Proposal publication date: September 24, 1996

For further information, please call: (512) 463-3699

SUBCHAPTER H. Tax Record Requirements
34 TAC sec.9.3017, sec.9.3035
The Comptroller of Public Accounts adopts the repeal of sec.9.3017
and sec.9.3035, concerning exemption applications for charitable organizations
and special use application forms, without changes to the proposed text as
published in the September 24, 1996, issue of the 
Texas Register (21 TexReg 9152). 

The repeal of these sections is necessary because they are duplicates of
34 TAC sec.9.401 and sec.9.402, which superseded the sections for which
repeal is adopted. 

No comments were received regarding adoption of the repeals. 

These repeals are adopted under the Tax Code, sec.sec.11.43,
23.43(d), 23.54(c), 23.75(c), 23.84(f) and 23.94(f), which provides the 
comptroller
with the authority to prescribe the contents of application forms for each
type of exemption and for special appraisal of certain property. 

The repeals implement Acts 1991, 72nd Legislature, Second Called Session,
page 41, chapter 6, sec.67(c), effective November 26, 1991, which provides
that the rules of the former State Property Tax Board remain in effect until
superseded by rules adopted by the Comptroller of Public Accounts.

This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on November 18, 1996.
TRD-9616846
Martin Cherry

Chief, General Law

Comptroller of Public Accounts

Effective date: December 9, 1996

Proposal publication date: September 24, 1996

For further information, please call: (512) 463-3699

SUBCHAPTER I. Validation Procedures
34 TAC sec.9.4027
The Comptroller of Public Accounts adopts the repeal of sec.9.4027,
concerning the appraisal of special inventory, without changes to the proposed
text as published in the September 24, 1996, issue of the 
Texas Register (21 TexReg 9153). 

This rule defines the term "most recent" contained in the definition of
"unit property tax value factor" in the Tax Code, sec.23.12B(10). This
statute was amended by Acts 1995, 74th Legislature, chapter 945, sec.3,
which deleted the term "most recent" from the statute. Consequently, this
rule is no longer necessary. 

No comments were received regarding adoption of the repeal. 

This repeal is adopted under Acts 1995, 74th Legislature, chapter
945, sec.3, which deleted the term "most recent" from the statute. 

The repeal implements Acts 1995, 74th Legislature, chapter 945, sec.3. 
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on November 18, 1996.
TRD-9616847
Martin Cherry

Chief, General Law

Comptroller of Public Accounts

Effective date: December 9, 1996

Proposal publication date: September 24, 1996

For further information, please call: (512) 463-3699

SUBCHAPTER J. Procedures
34 TAC sec.sec.9.5001-9.5003, 9.5021, 9.5061, 9.5072-9.5077
The Comptroller of Public Accounts adopts the repeal of sec.sec.9.5001-9.5003,
9.5021, 9.5061, 9.5072-9.5077, concerning the purpose, construction, scope,
definitions, and general provisions of the rules of practice and procedure
governing hearings before the State Property Tax Board, without changes to
the proposed text as published in the September 24, 1996, issue of the 
Texas Register (21 TexReg 9153). 

The repeals also concern protests and audits arising from school property
values and appraisal district ratio findings. Also, the repeals concern the
method of filing a protest, scheduling a protest hearing, the conduct of
a protest hearing, and the issuance of proposed and final decisions. The
repeal of these sections is necessary because these rules are duplicates
of 34 TAC sec.sec.9.1, 9.3- 9.14, which superseded the sections for which
repeal is adopted. 

No comments were received regarding adoption of the repeals. 

These repeals are adopted under the Government Code, sec.403.303(c),
(formerly Education Code, sec.11.86(e)), which provides the comptroller
with the authority to adopt procedural rules governing the conduct of the
protest hearings. 

The repeals implement Acts 1991, 72nd Legislature, Second Called Session,
page 41, chapter 6, sec.67(c), which provides that rules of the former
State Property Tax Board remain in effect.

This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on November 18, 1996.
TRD-9616848
Martin Cherry

Chief, General Law

Comptroller of Public Accounts

Effective date: December 9, 1996

Proposal publication date: September 24, 1996

For further information, please call: (512) 463-3699

34 TAC sec.sec.9.5004, 9.5005, 9.5051-9.5055, 9.5091
The Comptroller of Public Accounts adopts the repeal of sec.sec.9.5004,
9.5005, 9.5051- 9.5055, 9.5091, concerning the distinction between a rule
and a guideline, the certification of current franchise tax status, the 
applicability
of the Administrative Procedure Act to rulemakings, the proposal of rules
relating to open space land and qualified timber land, notice of the adoption,
repeal of or amendment of rules or guidelines, the opportunity to appear
before the board regarding rulemakings, board hearings regarding rules or
guidelines, and hearings convened under the Administrative Procedure and
Texas Register Act, without changes to the proposed text as published in
the September 24, 1996, issue of the Texas Register
(21 TexReg 9154). 

These sections concern rulemakings and hearings of the State Property Tax
Board which was abolished in 1991. Consequently, the sections are no longer
necessary. 

No comments were received regarding adoption of the repeals. 

These repeals are adopted under the Acts 1991, 72nd Legislature,
Second Called Session, page 41, chapter 6, sec.67(c), effective November
26, 1991, which provides that rules of the former State Property Tax Board
remain in effect until superseded, repealed, or withdrawn by the Comptroller
of Public Accounts. 

The repeals implement Acts 1991, 72nd Legislature, Second Called Session,
page 41, chapter 6, sec.67(c), effective November 26, 1991, which provides
that rules of the former State Property Tax Board remain in effect until
superseded, repealed, or withdrawn by the Comptroller of Public Accounts.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on November 18, 1996.
TRD-9616849
Martin Cherry

Chief, General Law

Comptroller of Public Accounts

Effective date: December 9, 1996

Proposal publication date: September 24, 1996

For further information, please call: (512) 463-3699

34 TAC sec.sec.9.5081-9.5084
The Comptroller of Public Accounts adopts the repeal of sec.sec.9.5081-9.5084,
concerning protests arising from the valuation of intangibles or rolling
stock, the conduct of protest hearings, and the issuance of proposed and
final decisions, without changes to the proposed text as published in the
September 24, 1996, issue of the Texas Register
(21 TexReg 9154).  

These sections are being repealed because their provisions are obsolete
and unnecessary since the comptroller no longer has appraisal responsibility
for business intangibles. Also, sections regarding protests of appraisals
of rolling stock are subject to 34 TAC sec.9.801, concerning notice of
protest.  

No comments were received regarding adoption of the repeals. 

The repeals are adopted under the Acts 1993, 73rd Legislature,
chapter 464, sec.1, which repealed Tax Code, Chapter 24, Subchapter A,
regarding the valuation of transportation business intangibles. 

The repeals implement the repeal of Tax Code, Chapter 24, Subchapter A. 
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on November 18, 1996.
TRD-9616853
Martin Cherry

Chief, General Law

Comptroller of Public Accounts

Effective date: December 10, 1996

Proposal publication date: September 24, 1996

For further information, please call: (512) 463-3699

34 TAC sec.9.5142, sec.9.5143
The Comptroller of Public Accounts adopts the repeal of sec.9.5142
and sec.9.5143, concerning notice of protest and affidavits for protest
hearings before the appraisal review board, without changes to the proposed
text as published in the September 24, 1996, issue of the 
Texas Register (21 TexReg 9155). 

The repeal of these sections is necessary because these rules are duplicates
of 34 TAC sec.9.801 and sec.9.802, which superseded the sections for
which repeal is adopted. 

No comments were received regarding adoption of the repeals. 

These repeals are adopted under the Tax Code, sec.5.03, which
provides the comptroller with the authority to adopt rules setting minimum
standards for operation of appraisal districts. 

The repeals implement the Tax Code, sec.5.03, which provides the comptroller
with the authority to adopt rules setting minimum standards for operation
of appraisal districts and also Acts 1991, 72nd Legislature, Second Called
Session, page 41, chapter 6, sec.67(c), which provides that rules of the
former State Property Tax Board shall remain in effect until superseded,
repealed, or withdrawn by the Comptroller of Public Accounts.

This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on November 18, 1996.
TRD-9616852
Martin Cherry

Chief, General Law

Comptroller of Public Accounts

Effective date: December 10, 1996

Proposal publication date: September 24, 1996

For further information, please call: (512) 463-3699

PART IX. Commission on Jail Standards
CHAPTER 259.New Construction Rules
The Commission on Jail Standards adopts amendments to sec.sec.259.144,
259.146, 259.339, 259.341, and 259.438 concerning New Construction Rules
without changes to the proposed text published in the October 15, 1996, issue
of the Texas Register (21 Tex Reg 10172). 
Adoption of these rules will provide consistent security standards for
wall and ceiling construction. 

The rule functions to detail minimum guidelines for wall and ceiling 
construction
while allowing for innovative design concepts and the use of comparable 
materials.
No comments were received regarding adoption of the amendments. 

New Maximum Security Design, Construction and Furnishing Requirements
37 TAC sec.259.144, sec.259.146
The amendments are adopted under Government Code, Chapter
511, which provides the Texas Commission on Jail Standards with the authority
to adopt reasonable rules and procedures establishing minimum standards for
the construction, equipment, maintenance and operation of county jails. 
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on November 19, 1996.
TRD-9616887
Jack E. Crump

Executive Director

Commission on Jail Standards

Effective date: December 10, 1996

Proposal publication date: October 15, 1996

For further information, please call: (512) 463-5505

New Medium Security Design, Construction and Furnishing Requirements
37 TAC sec.259.339, sec.259.341
The amendments are adopted under Government Code, Chapter
511, which provides the Texas Commission on Jail Standards with the authority
to adopt reasonable rules and procedures establishing minimum standards for
the construction, equipment, maintenance and operation of county jails. 
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on November 19, 1996.
TRD-9616888
Jack E. Crump

Executive Director

Commission on Jail Standards

Effective date: December 10, 1996

Proposal publication date: October 15, 1996

For further information, please call: (512) 463-5505

New Minimum Security Design, Construction and Furnishing Requirements
37 TAC sec.259.438
The amendment is adopted under Government Code, Chapter 511,
which provides the Texas Commission on Jail Standards with the authority
to adopt reasonable rules and procedures establishing minimum standards for
the construction, equipment, maintenance and operation of county jails. 
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on November 19, 1996.
TRD-9616889
Jack E. Crump

Executive Director

Commission on Jail Standards

Effective date: December 10, 1996

Proposal publication date: October 15, 1996

For further information, please call: (512) 463-5505

CHAPTER 297.Compliance and Enforcement
37 TAC sec.297.14
The Commission on Jail Standards adopts an amendment to sec.297.14,
concerning Compliance and Enforcement with changes to the proposed text 
published
in the October 15, 1996 issue of the Texas Register 
(21 TexReg 10174). Adoption of this rule will establish requirements
for facilities housing non-Texas inmates. 

The rule functions to provide eligibility requirements for out-of-state
inmates and written procedures outlining the coordinated efforts of local
law enforcement agencies during a disturbance. 

Comments were received. Several Texas Sheriff's encouraged changing language
which would have made it necessary to consult with the Chief of Police and
receive written concurrence from the Assistant Director of the Texas Department
of Public Safety prior to receiving approval of disturbance plans by the
Commission. The language was deleted. 

The amendment is adopted under Government Code, Chapter 511 which
provides the Texas Commission on Jail Standards with the authority to adopt
reasonable rules and procedures establishing minimum standards for the 
construction,
equipment, maintenance and operation of county jails. 

sec.297.14.Contract With Other States For Housing
Non-Texas Inmates.
(a) At a minimum all contracts shall: 

(1)-(4) (No change.)

(5) require that inmates with a record of institutional
violence, escape, or attempted escape from secure custody are not eligible
for transfer. 

(6) require that all appropriate medical information be
provided prior to transfer, to include certification of tuberculosis screening
or treatment; 

(7) require provisions for termination of contract within
90 days by receiving entity. 

(b) The receiving entity shall develop and implement a written
procedure outlining the coordination of law enforcement activities in the
case of riot, rebellion, escape, or other situations requiring assistance
from city, county, or state law enforcement agencies. The procedure shall
be submitted to the Commission for approval. 

(c) The receiving entity shall provide the Commission with
a statement of custody level capacity and availability. 

(d) All operational requirements shall meet or exceed Texas
Minimum Jail Standards and require Commission approval prior to transfer
of inmates and implementation.

(e) All receiving entities shall maintain a certificate of
compliance from the Commission. 

(f) Copies of signed contracts, along with addenda, shall be
submitted to the Commission. 

(g) The receiving entity shall promptly notify the Commission
of any major incidents, including escapes. 

The amendment is adopted under Government Code, Chapter 511,
which provides the Texas Commission on Jail Standards with the authority
to adopt reasonable rules and procedures establishing minimum standards for
the construction, equipment, maintenance and operation of county jails. 
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on November 19, 1996.
TRD-9616890
Jack E. Crump

Executive Director

Commission on Jail Standards

Effective date: December 10, 1996

Proposal publication date: October 15, 1996

For further information, please call: (512) 463-5505

TITLE 43. TRANSPORTATION
PART I. Texas Department of Transportation
CHAPTER 9.Contact Management
SUBCHAPTER B.Highway Improvement Contracts
43 TAC sec.9.14
(Editor's Note: Due to a technical error, the following adopted
rule submitted by the Texas Department of Transportation was inadvertently
omitted from the November 12, 1996 issue of the Texas Register. These rules
became effective on November 25, 1996.)

The Texas Department of Transportation adopts an
amendment to sec.9.14, concerning submittal of proposal for highway improvement
contracts, with changes to the proposed text as published in the August 13,
1996, issue of the Texas Register (21 TexReg
7653). 

House Bill 1728, 74th Legislature, 1995, amended sec.3.411 of the Business
and Commerce Code to provide the same stop payment provisions on cashier's
checks as teller's checks. This change in the law establishes an equal level
of financial confidence in both instruments because now a bank that stops
payment on either type of check may be liable to the department for 
consequential
damages. 

Section 9.14 is amended to provide for the acceptance of teller's check
as a proposal guaranty and to provide that a check must be drawn on a bank
or payable at or through a bank. 

On September 3, 1996, a public hearing was held to receive comments, views,
or testimony regarding the proposed amendments. Oral and written comments
were submitted on behalf of First Data Corporation in support of the proposed
amendments. First Data Corporation suggested making the language of sec.9.14
consistent with the definition of teller's check, and clarifying the 
department's
intent to accept teller's checks drawn by savings and loan associations and
credit unions as well as commercial banks. The department concurs with the
suggestions and has revised sec.9.14 accordingly. 

The amendments are adopted under Transportation Code, sec.201.101,
which provides the Texas Transportation Commission with the authority to
promulgate rules for the conduct of the work of the Texas Department of 
Transportation,
and Transportation Code, sec.sec.203.004-203.005, which require the commission
to prescribe rules on all bidders on bids received for contracts awarded
for the improvement of the state highway system.

sec.9.14.Submittal of Proposal.
(a)-(d) (No change.) 

(e) Proposal guaranty. 

(1) A bidder must submit a proposal guaranty with the proposal
form in the amount specified by the proposal form. The proposal guaranty
shall be payable to the commission and shall be a cashier's check
, [or] money order, or teller's check drawn
by or on a state or national bank or savings and loan association,
or a state or federally chartered credit union (collectively
referred to as "bank"). 

(2) A check [or money order] must be payable at or through
the institution issuing the instrument, or must be
drawn by a bank: 

(A) on a bank; or 

(B) payable at or through a
bank [must state that the issuing institution is both the drawer and drawee
of the official obligation to pay the amount stated]. 

(3) The department will not accept as a proposal
guaranty: 

[(A) a check labeled official check, officer's check, or teller's
check;] 

(A) [(B)] personal checks or
certified checks; 

(B) [(C)] other types of money
orders [or bank drafts]; or 

(C) [(D)] bid bonds. 

(f) (No change.) 

This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority. 
Issued in Austin, Texas, on 4, 1996.
TRD-9615959
Bob Jackson

Deputy General Counsel

Texas Department of Transportation

Effective date: November 25, 1996

Proposal publication date: August 13, 1996

For further information, please call: (512) 463-8630