Part 2.
TEXAS PARKS AND WILDLIFE DEPARTMENT
Chapter 65.
WILDLIFE
Subchapter C. PERMITS FOR TRAPPING, TRANSPORTING, AND TRANSPLANTING GAME ANIMALS AND GAME BIRDS
31 TAC §§65.101, 65.103, 65.105, 65.111, 65.115 - 65.117
The Texas Parks and Wildlife Commission adopts amendments
to §§65.101, 65.103, 65.105, 65.111, 65.115, and 65.117, and new
65.116, concerning Permits to Trap, Transport, and Transplant Game Animals
and Game Birds. Sections 65.101, 65.103, and 65.115 are adopted with changes
to the proposed text as published in the July 28, 2000, issue of the
The amendment to §65.101, concerning Definitions, is necessary to
assign meanings to words and terms used in the subchapter. The amendment to §65.103,
concerning Trap, Transport, and Transplant Permit, is necessary: for the department
to acquire biological information needed to assess proposed relocations of
game animals and game birds for the purposes of determining whether such proposals
are consistent with the department's statutory obligation prevent depletion
and waste; to provide a system for orderly and timely disposition of applications;
and to prevent practices constituting the sale of protected wildlife. The
amendment to §65.115, concerning Notification, Recordkeeping, and Reporting
Requirements, is necessary to: provide a mechanism by which the department
is able to monitor permitted activities to assess compliance with the law;
to establish a documentation regime to assist the department in determining
that a permittee's activities are consistent with the terms and conditions
of a permit; to provide for financial disclosure in order to prevent the sale
of protected wildlife; and to set forth requirements for the disposition of
animals and birds that die in the process of permitted activities. New §65.116,
concerning Nuisance Squirrels, is necessary to provide a convenient and user-friendly
method for the humane trapping and relocation of squirrels that are destructive
to property. The amendment to §65.117, concerning Prohibited Acts, is
necessary to: make language structurally and grammatically consistent and
to provide a convention for identifying vehicles and trailers used to conduct
permitted activities.
The amendment to §65.103, concerning Trap, Transport, and Transplant
Permit, will function by specifying the content of a stocking plan, establishing
a minimum deer-to-acreage-ratio for the purpose of waiving release-site inspections,
implementing a time limit for department review of permit applications, and
stipulating the conditions under which buck deer must have their antlers removed
for transport. The amendment to §65.115, concerning Notification, Recordkeeping,
and Reporting Requirements, will function by establishing a timeframe for
notification of the department prior to the trapping, transporting or release
of deer, implementing a requirement for permittees to maintain a daily log
of permitted activities, requiring permittees to disclose the financial particulars
of permitted activities, and specifying procedures for the disposition of
mortalities. New §65.116, concerning Nuisance Squirrels, will function
by relocating the provisions of former §65.103(g) in a new section for
clarity's sake. The amendment to §65.117, concerning Prohibited Acts,
will function by implementing an identification requirement for trailers and
vehicles used to transport.
The department received 16 comments concerning adoption of the proposed
rules. Six commenters opposed adoption of the rules by stating that the rules
constituted the privatization of wildlife resources. The department disagrees
and responds that wildlife resources are the property of the people of the
state, which status is fixed by the legislature and not subject to change
by the commission. No changes were made as a result of the comments. Two commenters
opposed adoption of the rules because they claimed there were no provisions
for the humane treatment of animals. The department disagrees with the comments
and responds that in addition to the animal cruelty provisions contained in
the Penal Code, §65.116 and §65.117 contain explicit language requiring
the humane treatment of animals, violation of which is a criminal offense.
No changes were made as a result of the comments. Two commenters opposed adoption
of the rules by stating that TPW personnel should be the only persons permitted
to trap, transport, and release wildlife. The department disagrees with the
comments and responds that Parks and Wildlife Code, Chapter 43, Subchapter
E specifically prohibits the state from incurring any expense for trapping,
transporting, or transplanting game animals or game birds pursuant to a permit
issued for that purpose. No changes were made as a result of the comments.
One commenter opposed adoption of the rules because of the possibility of
wildlife diseases being transmitted from one population to another. The department,
while acknowledging the potential for disease transmission, disagrees with
the comment and responds that TPW has no scientific evidence to suggest the
likelihood that diseases will be spread as a consequence of the rules. No
changes were made as a result of the comment. One commenter opposed adoption
of the rules and stated that contraception should be used, rather than relocation.
The department disagrees with the comment and responds that there is no credible
scientific research to suggest that contraception would have any effect on
populations of free-ranging deer. No changes were made as a result of the
comment. One commenter opposed adoption of the rules and stated that the potential
for abuse was too high. The department disagrees and responds that it believes
that the oversight and enforcement provisions of the rules are sufficient
to detect and prosecute violations. No changes were made as a result of the
comment. One commenter opposed the 'minimal impact release' ratio of one deer
to 200 acres, preferring instead a 1:100 ratio. The department disagrees with
the comment and responds that the 1:200 ratio represents a consensus agreement
arrived at by staff and members of the regulated community. No changes were
made as a result of the comment. One commenter opposed adoption because rule
language did not stipulate that walk-in traps be used to trap squirrels and
because there were no provisions to prevent the death of animals during transport.
The department disagrees with the commenter and responds that language in §65.116(3)
explicitly requires all trapping devices to be designed not to inflict physical
injury to trapped squirrels. With respect to animals expiring during transport,
the department responds that §65.117 contains explicit language requiring
the humane treatment of animals; however, due to the very nature of such activities
the possibility of animal fatalities cannot be completely eliminated.
Texas Deer Association and Texas Wildlife Association commented in support
of the adoption of the proposed rules.
The sections are adopted under Parks and Wildlife Code, §43.061,
which requires the commission to adopt rules for the content of wildlife stocking
plans, certification of wildlife trappers, and the trapping, transporting,
and transplanting of game animals and game birds under the subchapter, and §43.0611,
which requires the commission to adopt rules for fees, applications, and activities,
including limitations on the times of the activities, relating to permits
for trapping, transporting, or transplanting white-tailed deer
§65.101.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates otherwise.
All other words and terms shall have the meanings assigned by Parks and Wildlife
Code.
(1)
Amendment--A specific alteration or revision of currently
permitted activities, the effect of which does not constitute, as determined
by the department, a new trapping, transporting and transplanting operation.
(2)
Certified Wildlife Trapper--An individual who receives
a department-issued permit pursuant to this section.
(3)
Natural Habitat--The type of site where a game animal or
game bird normally occurs and existing game populations are not dependent
on manufactured feed or feeding devices for sustenance.
(4)
Nuisance Squirrel--A squirrel that is causing damage to
personal property.
(5)
Overpopulation--A condition where the habitat is being
detrimentally affected by high animal densities, or where such condition is
imminent.
(6)
Permittee - any person authorized by a permit to perform
activities governed by this subchapter.
(7)
Release Site--The specific destination of game animals
or game birds to be relocated pursuant to a permit issued under this subchapter.
(8)
Stocking Policy--The policy governing stocking activities
made or authorized by the department as specified in §§52.101-52.105,
52.201, 52.202, 52.301 and 52.401 of this title (relating to Stocking Policy).
(9)
Supervisory permittee - A person who supervises the activities
of permittees authorized to conduct activities.
(10)
Trap Site--The specific source of game animals or game
birds to be relocated pursuant to a permit issued under this subchapter.
§65.103.Trap, Transport, and Transplant Permit.
(a)
For the purposes of this subchapter, the content of a wildlife
stocking plan shall for a release site shall be the same as that required
for a wildlife management plan under the provisions of §65.25 of this
title (relating to Wildlife Management Plan). No inspection by the department
of a release site is required if the release will not exceed a ratio of one
white-tailed deer per 200 acres at the release site; however, when the accumulated
releases on a tract result in a ratio of one deer to 200 acres, no further
releases shall take place unless a site inspection has been performed by the
department.
(b)
Applications received by the department between September
1 and November 15 in a calendar year shall be approved or denied within 45
days of receipt.
(c)
The department may deny a permit application if the department
determines that:
(1)
the removal of game animals or game birds from the trap
site may be detrimental to existing populations or systems;
(2)
the removal of game animals or game birds may detrimentally
affect the population status on neighboring properties;
(3)
the release of game animals or game birds at the release
site may be detrimental to existing populations or systems;
(4)
the release site is outside of the suitable range of the
game animal or game bird;
(5)
the applicant has misrepresented information on the application
or associated wildlife stocking plan; or
(6)
the activity identified in the permit application does
not comply with the provisions of the department's stocking policy.
(d)
A buck deer transported under the provisions of this subchapter
shall have its antlers removed prior to transport, unless:
(1)
the transport takes place between February 10 and March
31 of a calendar year; or
(2)
the trap site and the release site are owned by the same
person. The sites shall be contiguous, but may be separated by a water body
or public roadway.
(e)
The department may establish trapping periods, based on
biological criteria, when the trapping, transporting, and transplanting of
game animals and game birds under this section by individuals will be permitted.
(f)
The department may, at its discretion, require the applicant
to supply additional information concerning the proposed trapping, transporting,
and transplanting activity when deemed necessary to carry out the purposes
of this subchapter.
(g)
Game animals and game birds killed in the process of conducting
permitted activities shall count as part of the total number of game animals
or game birds authorized by the permit to be trapped.
§65.115.Notification, Recordkeeping, and Reporting Requirements.
(a)
No person shall trap, transport, or release a game animal
or game bird under a permit authorized by this subchapter unless that person
has notified the department not less than 24 hours nor more than 48 hours
prior to each instance of trapping, transportation, or release. Notification
shall be by fax or telephone contact with the Law Enforcement Communications
Center in Austin, and shall consist of:
(1)
in the case of trapping or transport, the supervisory permittee's
name, permit number, and the date(s) that the trapping or transport will occur;
and
(2)
in the case of release, the date, time, and specific location
of the release.
(b)
A supervisory permittee shall maintain, keep current, and
furnish upon request by a department employee acting within the scope of official
duties a daily log containing:
(1)
the number of game animals or game birds trapped;
(2)
the sex of game animals or game birds trapped;
(3)
the locations where game animals or game birds were trapped
and released;
(4)
the dates when trapping occurred;
(5)
the trapping methods used;
(6)
any mortality incurred during the permitted activity and
the disposition of carcasses; and
(7)
the completed financial disclosure forms required by subsection
(d) of this section.
(c)
The supervisory permittee shall file a report on a form
provided by the department not later than 30 days following the expiration
date of the permit. The report shall include, at a minimum:
(1)
the number of game animals or game birds trapped;
(2)
the sex of game animals or game birds trapped;
(3)
the locations where game animals or game birds were trapped
and released;
(4)
the dates when trapping occurred;
(5)
the trapping methods used;
(6)
any mortality incurred during the permitted activity and
the disposition of carcasses; and
(7)
the completed financial disclosure forms required by subsection
(d) of this section.
(d)
Upon the completion of trapping activities authorized by
a permit under this subchapter, the supervisory permittee shall complete and
sign a Triple T verification form. The form shall also be signed by the landowner
of the trap site (or a full-time employee of the landowner who is authorized
to act on the landowner's behalf) prior to the transport of any game animal
or game bird. Upon the release of the game animals or game birds, the form
shall be signed by landowner of the release site (or a full-time employee
of the landowner who is authorized to act on the landowner's behalf). In the
instance that a permit authorizes multiple release sites, a separate Triple
T Verification form shall be required for each trap site/release site combination.
The form shall be supplied by the department to the supervisory permittee
and shall be retained as provided by subsection (b) of this section.
(e)
All game animals or game birds that die as a result or
in the course of activities conducted under a permit issued under authority
of this subchapter shall be kept in an edible condition until disposed of
by one of the following methods:
(1)
documented donation to charitable organizations, public
hospitals, orphanages, or indigent persons;
(2)
documented transfer or donation to other persons authorized
to receive such specimens under a license or permit issued by the department;
or
(3)
special disposition as prescribed in writing by the department.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of the
Secretary of State on October 18, 2000.
TRD-200007371
Gene McCarty
Chief of Staff
Texas Parks and Wildlife Department
Effective date: November 7, 2000
Proposal publication date: July 28, 2000
For further information, please call: (512) 389-4775
Chapter 355.
RESEARCH AND PLANNING FUND
Subchapter B. ECONOMICALLY DISTRESSED AREAS FACILITY ENGINEERING
31 TAC §355.72, §355.77
Texas Water Development Board (board) adopts amendments to
31 TAC §355.72 and new §355.77, Research and Planning Fund, concerning
criteria for eligibility of facility planning projects for financial assistance
and procurement of facility engineering services for projects funded through
the Economically Distressed Areas Program (EDAP). Section 355.72 is adopted
without change to the proposed text as published in the September 1, 2000
issue of the Texas Register (25 TexReg 8599) and will not be republished.
New §355.77 is adopted with change to correct a typographical error in §355.77(C)(4)(a).
The word "a" should be "at" in reference to "at least three persons."
The amendments to §355.72 are adopted in anticipation of a limited
amount of funding for facility engineering becoming available as a result
of cost savings on some projects, the termination of non-performing contracts,
and the lapse of commitments. They are intended to clarify criteria that must
be met and documentation which must be submitted before the board may consider
an application for financial assistance for facility planning projects under
the EDAP. The new §355.77 will provide guidance for applicants procuring
facility engineering services for EDAP projects.
In 1999, the legislature added requirements to §15.407 of the Water
Code for the board to adopt rules governing the procurement process for facility
engineering services and for the executive administrator to review and approve
the selection process used by an EDAP applicant to procure such services.
The amendments are intended to address problem areas that have been identified
in processing applications for EDAP assistance.
The amendments to §355.72 make it clear that certain fiscal information,
including recent audits, rates and charges, and capital improvement plans,
must be submitted, reviewed and evaluated by staff before the board will consider
an application for facility engineering financial assistance under EDAP. The
requirement for an executed contract for facility engineering services is
reflective of the statutory amendments and recognizes the importance of these
services to the quality of facility planning projects. Current rules require
that an applicant must hold a Certificate of Convenience and Necessity (CCN)
or have an application on file with TNRCC to obtain one for service to the
proposed project area. The amendment to §355.72 would require that applicant
to obtain any necessary CCN before consideration of an application by the
board; however, an alternative is included that would allow the applicant
to submit an executed interlocal agreement with the holder of the applicable
CCN as evidence of the applicant's authority to provide services to the project
area.
New §355.77 is intended to fulfill the legislative directive in SB
1421 for the board to adopt rules concerning the procurement of facility engineering
services by recipients of EDAP funding. The new provisions are supplemental
to the basic provisions of the Professional Services Procurement Act (Chapter
2254, TEX. GOV. CODE) and make it clear that the service provider must be
selected pursuant to written procedures that assure that the selection process
is open to all qualified providers and that each step of the selection process
is documented. Also provided are basic requirements of: (i) an acceptable
statement of qualifications (SOQ); (ii) recommended procedures for solicitation
of SOQs, including publication and response schedules and minimum contents
of a Request for Qualifications; (iii) criteria for evaluation of SOQs based
on factors indicative of qualifications and experience; (iv) procedures for
review of SOQs, including suggested makeup of an evaluation committee, a ranking
process, and an interview procedure; and (v) contract negotiation process.
The suggested procurement guidelines are formulated to ensure that the selection
of a provider of facility engineering services has documentation which the
Executive Administrator can review to verify that a qualified provider has
been selected who can deliver needed engineering services at a reasonable
cost within the constraints of the particular project.
The requirement for an applicant to submit an executed contract for facility
engineering services that have been procured in compliance with state law
and the procedural requirements set out in the new §355.77 with the application
may be of particular significance. This and the other information to be required
by the proposed amendment will allow staff to make a preliminary evaluation
of the state of the applicant's fiscal affairs and of its potential capacity
to manage and complete the proposed project. These amendments may also alleviate
the need for conditional commitments, which can tie up funds that may never
be accessed because the applicant cannot provide basic information necessary
to evaluate an application, such as the recent audits.
No comments were received on the proposed amendments and new section.
The amendments and new section are adopted under the authority
of the Texas Water Code, §6.101.
§355.77.Procurement of Facility Planning Services.
(a)
Professional engineering services necessary for preparing
a facility plan for economically distressed areas shall be procured according
to the Texas Government Code, Chapter 2254 (Professional Services Procurement
Act), other applicable state and local laws, and the requirements of this
section. The objective of this section is to establish basic parameters from
which it can be determined that applicants receiving facility planning funds
obtain the necessary professional engineering services through a process that
is open to all interested qualified providers. Written procedures and documentation
are recommended in order to insure receipt of services of qualified professionals
at a responsible cost within the reasonable constraints of location and time
for performance.
(b)
Applicants shall procure the services of a consultant to
perform the facility planning services pursuant to written procedures adopted
by the applicant. The applicant shall maintain documentation of compliance
with each step. The procedures and documentation submitted in the selection
of the consultant will generally comply with the following requirements:
(1)
contents of an acceptable statement of qualifications (
SOQ);
(2)
criteria for evaluating SOQs;
(3)
solicitation of SOQs;
(4)
review of SOQs according to criteria; and
(5)
negotiation of a consulting services contract.
(c)
The procedures and documentation establishing the applicant's
compliance with the procedures shall be reviewed and approved by the executive
administrator prior to consideration by the board of an application for financial
assistance for such services; provided however, the executive administrator
may approve variations from the requirements of this subsection based on a
written finding that the applicant has substantially met the objectives of
this section. The executive administrator shall review the procedures and
documentation to ascertain compliance with these requirements.
(1)
The applicant shall establish the contents of the statement
of qualifications, or SOQ, for persons seeking to provide the facility planning
services which will be reviewed by the applicant. The SOQ shall include at
a minimum:
(A)
the key personnel (including subconsultants or subcontracted
personnel) who will be performing tasks within the scope of services identifying
such personnel by name, professional license or registration number, areas
of expertise, years of experience in that area, and the elements of the scope
of services for which each such personnel will be responsible and describe
specific project experience that would demonstrate expertise for that element;
(B)
references establishing experience with government projects,
facility planning phase engineering, demographic research, and residential
surveys identified by specific project identification, location, project reference
contact person and telephone number, and dates of engagement and completion
of assignment;
(C)
insurance coverage held by the respondent relative to the
project identifying the carrier by name, address, telephone number, and type
and extent of coverage;
(D)
a signed and notarized statement that the respondent has
no interest in the project that would conflict with the performance of the
responsibilities of an engineer; and
(E)
a list of any litigation, arbitration, administrative action
related to past or current project performance, or the subject of any professional
censure or licensure suspension involving any identified key personnel, and
if so, a brief description of each and including a brief explanation if the
respondent has ever been terminated from an assignment for nonperformance
or unsatisfactory work.
(2)
Criteria for evaluating the SOQ will include:
(A)
educational and experiential background of key consultant
personnel who will perform work on the project;
(B)
record of success by the consultant and its key personnel,
demonstrated by similar work previously performed;
(C)
adequacy of staff and equipment to perform the work within
the time needed;
(D)
demonstrated ability of consultant to work effectively
with other parties and public agencies related to the project;
(E)
demonstrated continuing interest by the consultant in the
success, efficiency, and effective performance of facilities and plans on
which the consultant has previously worked;
(F)
record of timely completion of previous projects; and
(G)
demonstrated capacity to carry out the kind and extent
of work required.
(3)
The applicant shall insure a sufficient number of qualified
respondents by publicizing a request for qualifications, or RFQ, once at least
21 days and once at least seven days before selection of a consultant, in
a local newspaper within the geographical area in which the work will be performed
and in a newspaper of the nearest major municipality. The RFQ shall contain
at a minimum:
(A)
a general description of the project planning area and
the facility planning services sought specifically including a reference to
the work required pursuant to §355.73 of this title;
(B)
a statement that documentation of the minimum requirements
for consideration which are to be submitted in the SOQ shall be available
upon request;
(C)
a statement that criteria for evaluating the qualifications
is available from the applicant;
(D)
a deadline by which respondents must submit SOQs to the
requesting applicant; and
(E)
the requesting applicant's contact person.
(4)
The applicant shall select the most qualified respondent
by order of highest qualification based on the published criteria.
(A)
Evaluation of the SOQs shall be performed by at least three
persons: at least one resident within the applicant's customer base who will
be affected by the proposed project, at least one with a technical expertise
in the field for which the services are sought, and at least one from the
management of the applicant. Each member of the ranking team will independently
rank each SOQ based on the published criteria. The scores assigned to each
SOQ will be accumulated to achieve a single ranking for each SOQ.
(B)
Based on the rankings, the applicant shall identify the
three consultants with the highest rankings, or short list.
(C)
Upon completion of ranking and preparation of the short
list, if the applicant deems it necessary to interview firms in order to determine
the most qualified respondent, the applicant shall issue an invitation to
appear for an interview to each respondent on the approved short list.
(D)
Upon the issuance of invitations to appear, the applicant
shall form an interview panel to interview each respondent on the short list
for the purpose of ascertaining qualifications of each interviewee and ultimately
selecting the most qualified respondent. At the conclusion of the interviews
or upon completion of the short list if interviews are deemed unnecessary
by the applicant, the applicant shall identify the most qualified respondent,
the second most qualified, and the third most qualified.
(5)
In order to complete the procurement process, the applicant
shall negotiate the terms of a consulting services contract, including a task
budget, with the consultant receiving the highest ranking. The contract shall
be acceptable in form and substance to the executive administrator. In the
event that the applicant cannot conclude an acceptable contract with the highest
ranked consultant, the applicant shall negotiate the terms of a consulting
services contract, including a task budget, with the consultant receiving
the second highest ranking. In the event that the applicant cannot conclude
an acceptable contract with the second highest ranked consultant, the applicant
shall negotiate the terms of a consulting services contract, including a task
budget, with the consultant receiving the third highest ranking. If the applicant
cannot conclude an acceptable contract with the third highest ranked consultant,
the applicant shall be required to commence the process over from the start.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on October 18, 2000.
TRD-200007325
Suzanne Schwartz
General Counsel
Texas Water Development Board
Effective date: November 7, 2000
Proposal publication date: September 1, 2000
For further information, please call: (512) 463-7981
The Texas Water Development Board (the board) adopts amendments to
31 TAC §§375.2, 375.15, 375.17, and 375.221 concerning the funding
program for the Clean Water State Revolving Fund (CWSRF) without changes to
the proposed text as published in the September 1, 2000, issue of the
Section 375.2, relating to Definitions of Terms, is amended to add nonpoint
source or estuary management to the types of projects eligible for funding.
Previously, the board has focused on those activities that met the Clean Water
Act (Act), section 212 definition of "treatment works". The board now intends
to broaden that focus to address the funding of all nonpoint source and estuary
management activities, as authorized in sections 601, 319 and 320 of the Act.
Therefore, the broader meaning of "project" is adopted to include sections
319 and 320 projects, and the broader term "project" is substituted for the
term "treatment works" throughout the definition section.
The section is further amended to expand the definition of "building" to
include the implementation of a project. The current definition fits the erection,
acquisition, alteration, remodeling, improvement or extension of a treatment
works facility, but the additional word "implementation" is a better description
of activities funded as nonpoint source or estuary management projects. Additionally,
the definition of "construction" is adopted for amendment to eliminate the
redundant listing of activities already included in the definition of "building".
Finally, the definition of "estuary management project" is amended to allow
funding of the development of an estuary management plan, as authorized in
section 601 of the Act.
Section 375.15, relating to Criteria and Methods for Distribution of Funds,
is amended for consistency, to include the two new types of projects (nonpoint
source or estuary management) into the eight categories of funding. The section
is also amended to extend a commitment deadline in limited circumstances where
an applicant has timely submitted an application, as defined in the chapter
rules, but additional information is deemed to be necessary for consideration
of a proposed project. The change will allow the Executive Administrator to
request additional information from an applicant without causing the applicant
to lose its place on the funding list.
Section 375.17, relating to Intended Use Plan, is amended to describe acceptable
changes that may be made to a project after it has been listed on an adopted
Intended Use Plan. These changes include the applicant, itself; the number
of participants in a consolidated project; and the solution to an identified
water supply problem. The amendments allow the board to focus on providing
funding for solutions to the water supply needs of a particular area, rather
than focusing on a particular applicant or project.
Section 375.221, relating to Pre-Design Funding Option, is amended to delete
the requirement that loans made under this option must be closed within six
months of the board commitment. The purpose of the six-month time limitation
was to encourage timely closing so as to move the federal dollars into immediate
projects. Experience has shown that six months is too short a time and that
many of the commitments must return to the board for time extensions. The
remainder of the subsections are renumbered accordingly.
There were no comments received on the proposed amendments.
Subchapter A. GENERAL PROVISIONS
1.
INTRODUCTORY PROVISIONS
31 TAC §375.2
The amendments are adopted under the authority of the Texas
Water Code §6.101 and §15.605 which provide the Texas Water Development
Board with the authority to adopt rules necessary to carry out the powers
and duties in the Water Code and other laws of the State including specifically
the SRF program.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on October 18, 2000.
TRD-200007322
Suzanne Schwartz
General Counsel
Texas Water Development Board
Effective date: November 7, 2000
Proposal publication date: September 1, 2000
For further information, please call: (512) 463-7981
31 TAC §375.15, §375.17
The amendments are adopted under the authority of the Texas
Water Code §6.101 and §15.605 which provide the Texas Water Development
Board with the authority to adopt rules necessary to carry out the powers
and duties in the Water Code and other laws of the State including specifically
the SRF program.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on October 18, 2000.
TRD-200007323
Suzanne Schwartz
General Counsel
Texas Water Development Board
Effective date: November 7, 2000
Proposal publication date: September 1, 2000
For further information, please call: (512) 463-7981
3.
PREREQUISITES TO RELEASE OF FUNDS
31 TAC §375.221
The amendments are adopted under the authority of the Texas
Water Code §6.101 and §15.605 which provide the Texas Water Development
Board with the authority to adopt rules necessary to carry out the powers
and duties in the Water Code and other laws of the State including specifically
the SRF program.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on October 18, 2000.
TRD-200007324
Suzanne Schwartz
General Counsel
Texas Water Development Board
Effective date: November 7, 2000
Proposal publication date: September 1, 2000
For further information, please call: (512) 463-7981
Chapter 701.
GENERAL PROVISIONS
31 TAC §§701.1, 701.3, 701.5
I. INTRODUCTION.
The Edwards Aquifer Authority ("Authority") adopts new 31 TAC §§701.1,
701.3, and 701.5, consisting of general provisions relating to the Authority's
rules, without changes to the proposed text as published in the August 11,
2000 issue of the
Texas Register
(25 TexReg
7493). The sections will not be republished.
These rules have been written to provide general information regarding
the purpose and construction of all rules adopted by the Authority, as well
as to provide the business office and mailing address of the Authority.
II. SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES; AND CONCISE RESTATEMENT
OF THE STATUTORY PROVISIONS UNDER WHICH THE RULES ARE ADOPTED.
The Authority is required by the Edwards Aquifer Authority Act (Act of
May 30, 1993, 73rd Legislature, Regular Session, Chapter 626, 1993 Texas General
Laws 2350, 2358-59, as amended by Act of May 29, 1995, 74th Legislature, Regular
Session, Chapter 261, 1995 Texas General Laws 2505, Act of May 16, 1995, 74th
Legislature, Regular Session, Chapter 524, 1995 Texas General Laws 3280, and
Act of May 6, 1999, 76th Legislature, Regular Session, Chapter 163, 1999 Texas
General Laws 634) ("Act"), to implement Edwards Aquifer management programs
relating to, among other things, fees, exempt wells, interim authorization,
permitted wells, permit conditions, groundwater available for permitting,
proportional adjustment, equal percentage reduction, abandonment and cancellation
of permits, aquifer recharge, storage and recovery, additional groundwater
supplies available for permitting, transfers, meters and alternative measuring
methods, groundwater trust, water quality, and comprehensive water management
plan implementation.
A primary manner in which these various groundwater management programs
will be implemented by the Authority will be through the adoption of rules
for each program. Rulemaking has become essential for the operation of agencies
charged by the legislative branch with programmatic implementation responsibilities.
Thus while the Authority's activities are derived from express and implied
powers set forth in the Act, the implementation of these powers is accomplished
largely through rulemaking. In order to ensure uniform and consistent application
of rules adopted by the Authority, it is essential that basic parameters be
established. This is accomplished by the adoption of §§701.1, 701.3,
and 701.5.
Section 701.1 states the general purpose of the Authority's rules. This
section provides that the purpose of the Authority's rules is to implement
the Act and other laws applicable to the Authority and to set forth the administrative
procedures to be followed in Authority proceedings.
Section 701.3 relates to the construction of the Authority's rules. This
section provides that unless otherwise expressly provided, the past, present,
and future tense shall each include the other; the masculine, feminine and
neutral gender shall each include the other; and the singular and plural number
shall each include the other.
Section 701.5 states the business office and mailing address of the Authority.
III. REGULATORY IMPACT ANALYSIS OF MAJOR ENVIRONMENTAL RULES.
Section 2001.0225 of the Texas Government Code requires an agency to perform,
under certain circumstances, a regulatory analysis of "major environmental
rules." The Authority has determined that none of the rules are "major environmental
rules" as that term is defined by §2001.0225(g)(3) of the Texas Government
Code. The basis for this determination is that the rules do not have the specific
intent to "protect the environment" or "reduce risks to human health from
environmental exposure." The rules set forth general provisions that will
apply to all the rules issued by the Authority. They are informational in
nature and have been written to provide basic parameters for all the rules
of the Authority. The specific intent of these rules is to provide a basic
understanding of the purpose and construction of the rules of the Authority.
For this reason, the Authority finds that none of the rules are "major environmental
rules" and that, therefore, no further analysis is required by §2001.0225
of the Texas Government Code.
IV. TEXAS PRIVATE REAL PROPERTY RIGHTS PRESERVATION ACT.
Chapter 2007 of the Texas Government Code, also known as the "Texas Private
Real Property Rights Preservation Act," ("TPRPRA") requires governmental entities,
under certain circumstances, to prepare a takings impact assessment ("TIA")
in connection with certain covered categories of proposed governmental actions.
Based on the following reasons, the Authority has determined that it need
not prepare a TIA in connection with the adoption of these rules. First, the
Authority has made a "categorical determination" that rules that provide general
information only do not affect private real property. These rules provide
general information only. They simply state the purpose of the rules of the
Authority, some general rules regarding construction of Authority rules, and
provide the business office and mailing address of the Authority. They have
no direct affect on private real property and may not result in a taking.
Second, the Authority's action in adopting these rules is an action that is
reasonably taken to fulfill an obligation mandated by state law and is thus
excluded from TPRPRA under §2007.003(b)(4) of the Texas Government Code.
See Act §§1.08(a), 1.11(a), 1.11(h); TEXAS GOVERNMENT CODE ANNOTATED, §2001.004(1)
(Vernon 2000). It was held, in
Edwards Aquifer Authority
v. Bragg,
21 S.W.3d. 375 (Tex. App.--San Antonio 2000, pet. filed),
that the Act expressly mandates the adoption of substantive and procedural
rules and that such actions are therefore excepted from the TPRPRA. The holding
in that case controls here. Third, it is the position of the Authority that
all valid actions of the Authority are excluded from the TPRPRA under §2007.003(b)(11)(C)
of the Texas Government Code as actions of a political subdivision taken under
its statutory authority to prevent waste or protect the rights of owners of
interest in groundwater. Accordingly, a TIA need not be prepared in connection
with the adoption of these rules.
V. SUMMARY OF PUBLIC COMMENTS.
Five public hearings were held on this and other rules proposed by the
Authority on: Wednesday, August 9, 2000 at 6:00 p.m. at the Conference Center
of the Edwards Aquifer Authority, 1615 N. St. Mary's Street, San Antonio,
Texas; Tuesday, August 15, 2000 at 6:00 p.m. at the New Braunfels Civic Center,
380 S. Seguin Avenue, New Braunfels, Texas; August 17, 2000 at 6:00 p.m. at
St. Paul's Lutheran Church, 1303 Avenue M, Hondo, Texas; Tuesday, August 22,
2000 at 6:00 p.m. at the Sgt. Willie De Leon Civic Center, 300 E. Main Street
in Uvalde, Texas; and Thursday August 24, 2000 at the San Marcos Activities
Center, 501 E. Hopkins, San Marcos, Texas. At those hearings, no public comments
were received on proposed §§701.1, 701.3, or 701.5. Further, no
written comments were submitted to the Authority on proposed §§701.1,
701.3, or 701.5.
VI. CONCISE RESTATEMENT OF THE STATUTORY PROVISIONS UNDER WHICH
THE RULES ARE ADOPTED.
The new sections are adopted pursuant to §§1.08(a), 1.11(a) and
(h) of Act; and TEXAS GOVERNMENT CODE, §§2001.004(1) (Vernon 2000)
of the Administrative Procedure Act ("APA"). The Authority interprets these
sections as requiring the Authority to adopt rules providing a basic understanding
of the purpose and construction of all the rules adopted by the Authority,
as well as to provide the public with the Authority's business office and
mailing address to promote effective communication between the regulated community
and the Authority.
Section 1.08(a) of the Act provides that the Authority "has all of the
powers, rights, and privileges necessary to manage, conserve, preserve, and
protect the aquifer and to increase the recharge of, and prevent the waste
or pollution of water in, the aquifer." This section provides the Authority
with broad and general powers to take actions as necessary to manage, conserve,
preserve, and protect the aquifer and to increase the recharge of, and prevent
the waste or pollution of water in, the aquifer. The Authority interprets
this provision as authorizing the establishment of general provisions applicable
to all rules adopted by the Authority.
Section 1.11(a) of the Act provides that the Board of Directors ("Board")
of the Authority "shall adopt rules necessary to carry out the authority's
powers and duties under (Article 1 of the Act), including rules governing
procedures of the board and the authority." This section directs the Board
to adopt rules as necessary to implement the various substantive programs
set forth in the Act related to the Edwards Aquifer, including, in particular,
administrative procedures to be used before the Board and the Authority. The
Authority interprets this section as requiring the adoption of general provisions
applicable to all rules adopted by the Authority.
Section 1.11(h) of the Act provides, among other things, that the Authority
is "subject to" the APA. Pursuant to this section, the Authority is required
to comply with the APA in connection with its rulemaking, even though the
Authority is not a state agency and would therefore otherwise not generally
be subject to APA requirements. Section 2001.004(1) of the APA requires agencies
subject to the APA to "adopt rules of practice stating the nature and requirements
of all available formal and informal procedures." The Authority interprets
establishing general provisions applicable to all rules adopted by the Authority
as falling within this requirement.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on October 18, 2000.
TRD-200007340
Gregory M. Ellis
General Manager
Edwards Aquifer Authority
Effective date: November 7, 2000
Proposal publication date: August 11, 2000
For further information, please call: (210) 222-2204
31 TAC §702.1
I. INTRODUCTION.
The Edwards Aquifer Authority ("Authority") adopts new 31 TAC, §702.1,
relating to definitions generally applicable to the rules of the Authority,
with changes to the proposed text as published in the August 11, 2000, issue
of the
Texas Register
(25 TexReg 7495-7500).
The Authority adopts the rule for the purpose of satisfying its statutory
obligation to adopt rules necessary to carry out the Authority's power and
duties under the Edwards Aquifer Authority Act. See Act of May 30, 1993, 73rd
Legislature, Regular Session, Chapter 626, 1993 Texas General Laws 2350, 2358-59,
as amended by Act of May 29, 1995, 74th Legislature, Regular Session, Chapter
261, 1995 Texas General Laws 2505, Act of May 16, 1995, 74th Legislature,
Regular Session, Chapter 524, 1995 Texas General Laws 3280, and Act of May
6, 1999, 76th Legislature, Regular Session, Chapter 163, 1999 Texas General
Laws 634 ("Act").
II. SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES.
The Authority is required by the Act to implement Edwards Aquifer management
programs relating to, among other things, fees, exempt wells, interim authorization,
permitted wells, permit conditions, groundwater available for permitting,
proportional adjustment, equal percentage reduction, abandonment and cancellation
of permits, aquifer recharge, storage and recovery, additional groundwater
supplies available for permitting, transfers, meters and alternative measuring
methods, groundwater trust, water quality, and comprehensive water management
plan implementation. Section 1.11(a) of the Act provides that the Board of
Directors ("Board") of the Authority "shall adopt rules necessary to carry
out the authority's powers and duties under (Article 1 of the Act), including
rules governing procedures of the board and the authority." This section directs
the Board to adopt rules as necessary to implement the various substantive
programs set forth in the Act related to the Edwards Aquifer. This duty to
adopt rules necessarily includes rules related to the definitions that apply
for any of the Authority programs. This duty under §1.11(a) to adopt
procedural and substantive rules for its programs is incorporated into the
discussion below of each definition.
A primary manner in which these various groundwater management programs
will be implemented by the Authority is through the adoption of rules for
each program. Rulemaking has become essential for the operation of agencies
charged by the legislative branch with programmatic implementation responsibilities.
Thus while the Authority's activities are derived from express and implied
powers set forth in the Act, the implementation of these powers is accomplished
largely through rulemaking.
In addition to the practicality of program implementation through rulemaking,
there are legal requirements set forth in the Act that governs the program
development of the Authority. These legal requirements are pre-existing legal
"facts" that bind the Authority because it is a creature of the Act. In addition,
there may be other facts that operate to provide contours as to the development
of the general definitions that the Authority may choose to adopt. Both types
of facts, legal and otherwise, may exist to provide a factual basis for the
rule as adopted. The factual basis for the general definitions in §702.1
and the rational connection between the factual basis for the rule and the
rule as adopted is discussed below.
The factual basis for the definitions of aquifer, augmentation, authority,
beneficial use, board, commission, conservation, diversion, domestic or livestock
use, industrial use, irrigation use, livestock, municipal use, order, person,
pollution, recharge, reuse, water supply facility, well, well J-17, well J-27,
and withdrawal are grounded in legal facts. All of these terms are already
defined in §1.03 or §1.11(f) of the Act. These definitions in this
final rule are taken directly from, and conform with these sections of the
Act. There is a rational connection between the legal factual basis of the
pre-existence of these definitions in §1.03 and §1.11(f) of the
Act and the final rule as adopted because the rule merely incorporates the
statutory definitions into the regulatory definitions in §702.1.
The factual basis for the definitions of "groundwater" and "underground
water" are grounded in legal facts. In §1.03(20), the term "underground
water" is assigned the meaning that this term has in §52.001,TEXAS WATER
CODE. Since the passage of the Act, chapter 52, TEXAS WATER CODE, has been
repealed and recodified as chapter 36, TEXAS WATER CODE. See Act of May 29,
1995, 74th Legislature, Regular Session, Chapter 933, sec. 2, 6, 1995 Texas
General Laws 4673. In so doing, the legislature abandoned the use of the term
"underground water" in favor of the more modern term "groundwater" found at §36.001(5),
TEXAS WATER CODE, and is defined as "water percolating below the surface of
the earth." Under §1.08(a) of the Act, chapter 36, TEXAS WATER CODE (which
replaced chapter 52) is now applicable to the Authority to the extent that
it does not conflict with the Act. The Act provides no other guidance relative
to the definition of groundwater or underground water. Accordingly, the Authority
can identify no conflict within the Act that would prevent adopting the statutory
definition of groundwater found in chapter 36, TEXAS WATER CODE. Thus, in
correlating and updating the definition of underground water in the Act, which
is cross-referenced to a part of the TEXAS WATER CODE that was subsequently
repealed and recodified, a rational connection is established between the
legal factual basis and the final rule as adopted.
The factual basis for the definition for "general manager" is that §1.11(d)(5)
of the Act provides that the Board may hire an "executive director" to manage
the Authority. Groundwater conservation districts normally call their chief
executive officer a "general manager." Likewise, the Authority would prefer
to call its chief executive officer a general manager. The functions and duties
of the general manager would be no different than those envisioned, by the
Act, to be performed by the executive director. The actual title that the
Authority may adopt for its chief executive officer does not confer particular
substantive duties or obligations separate and distinct from any other title
that may be adopted. Thus, there is a rational connection between the legal
factual basis for the hiring of an executive director in §1.11(d)(5)
of the Act and the conventions of groundwater conservation districts and the
adoption of a definition for "general manager."
The factual basis for the definition of "Act" is that the Act does not
include a section setting out the official name for the Act. The Texas Supreme
Court has referred to the Act as the "Edwards Aquifer Act."
See Barshop v. Medina County Under. Wat. Cons. Dist.
, 925 S.W. 2d 618,
623 (Texas 1996);
see also Edwards Aquifer Authority
v. Bragg,
21 S.W. 3d 375, 377 (Texas App. - San Antonio 2000 pet. filed).
In the rules of the Authority, and in other documents in which it is appropriate
to cite to sections of the Act leading to authority for a proposition, it
will be necessary to specifically cite to the Act. In light of the Act's creation
of an official name for the Act, it is useful to adopt the short-form definition,
namely "Act", to mean the "Edwards Aquifer Authority Act." In so doing, the
need to continually refer to a form of the name that is long and cumbersome
will be eliminated and clarify that the Edwards Aquifer Act also creates the
Edwards Aquifer Authority. This substitution provides a rational connection
between the facts and the definition of "Act" because the definition accurately
provides a short form for "Edwards Aquifer Authority Act" and the definition
specifically references the longer-form of the name of the Act that has been
cited by appellate courts in the state, numerous legal pleadings, and other
documents citing to the Act.
The factual basis for the definition of "APA" is grounded in legal facts.
Section 1.ll(h) of the Act provides that the Authority is, among other things,
"subject to . . . the Administrative Procedure and Texas Register Act, (Article
6252-13a, Vernon's Texas Civil Statutes)." This article was generally referred
to as "TAPTRA." Since the passage the Act, TAPTRA, has been repealed and recodified
as chapter 2001, TEXAS GOVERNMENT CODE . See Act of May 22, 1993, 73rd Legislature,
Regular Session, Chapter 268, § 1, 1993 Texas General Laws 583. The official
title of chapter 2001 is the "Administrative Procedures Act." TEXAS GOVERNMENT
CODE ANNOTATED, §2001.002 (Vernon 2000). The Administrative Procedures
Act is uniformly referred to as the "APA." It is not likely that the legislature
intended for the Authority to continue to be "subject to" a law that has been
repealed. Instead, the more reasonable interpretation is that the Authority
is subject to TAPTRA as it may be amended, repealed, or, in this case, recodified.
Thus, in correlating and updating the outdated reference to TAPTRA with the
APA, in the definitions in §702.1, a rational connection is established
between the legal factual basis and the final rule as adopted.
The factual basis for the definitions of "applicant" and "application"
are derived initially from the legal facts derived from the Act. Section 1.15(a)
authorizes the Authority to "manage all withdrawal points from the aquifer."
Section 1.15(b) generally prohibits the withdrawal of groundwater from the
aquifer without first obtaining a permit issued by the Authority (subject
to exceptions not relevant to this discussion). Section 1.15(c) envisions
the Authority's issuance of regular, term, and emergency permits for the withdrawal
of groundwater from the aquifer. Section 1.16(a) envisions that an existing
user may "apply" for an initial regular permit. The permitting process, possibly
culminating in the issuance of a permit (or other approval) by an administrative
agency, is normally commenced by the filing of an "application." An application
essentially requests that the Authority issue a permit authorizing an activity
sought to be conducted. The application must demonstrate facts justifying
the issuance of the permit. The person or entity filing an application is
generally referred to as an "applicant." The term "applicant" appears in §1.16(b)
the Act. The term "application" is mentioned in §§1.16(b), 1.17(d)(1),
1.18(b) and 1.29(f) of the Act. The concepts of "applicant" and "application"
are often considered part of the terminology used by an agency in its procedural
rules related to its permit program. The Act does not provide definitions
for the terms "applicant" and "applications." Because these terms are likely
to be regularly used by the Authority in referring to its rules, the general
facilitation of its procedures, in relation to its permit program, and by
the regulated community interacting with the Authority as applicants, as well,
the Authority has determined that definitions of these terms is useful. There
is a rational connection between this factual basis and the definitions of
"applicant" and "application" in §702.1 because these definitions refer
to an "applicant" as one who filed an application, and an "application" as
the document that is required to be filed with the Authority in order to commence
the processes of obtaining a permit or other approval.
The Authority requires physical facilities for the purpose of conducting
its activities. Persons or entities interested in the affairs of the Authority
will need to know the location of the Authority in order properly transact
business with the Authority. Thus, it is necessary for the Authority to identify
to the public where the official Authority offices are and, when the Authority
refers to "its offices", where it is referring to. The Act does not provide
a definition for the term "Authority offices." Because this term is likely
to be regularly used by the Authority in its rules and in the general conducting
of its procedures as they relate to the Authority's programs, as well as by
the regulated community that will interact with the Authority, the Authority
has determined that it is useful to define this term. There is a rational
connection between this factual basis and the definition of "Authority offices"
in §702.1 because this definition cross-references the rule in §701.5
of this title (relating to Business Office and Mailing Address of the Authority)
which provides the physical as well as the mailing address of the Authority.
The factual basis for the definitions of "declarant," "declaration of historical
use" (or "declaration") is derived initially from the legal facts contained
in the Act. Section 1.15(a) authorizes the Authority to "manage all withdrawal
points from the aquifer." Section 1.15(b) generally prohibits the withdrawal
of groundwater from the aquifer without first having obtained a permit issued
by the Authority (subject to exceptions not relevant to this discussion).
Section 1.15(c) envisions that the Authority may issue regular, term and emergency
permits for the withdrawal of groundwater from the aquifer. Section 1.16(a)
envisions that an existing user may "apply" for an initial regular permit
by filing a "declaration of historical use." Under §1.16(a), a declaration
is essentially an application for an initial regular permit requesting that
the Authority issue an initial regular permit for the withdrawal of groundwater
from the aquifer, and the facts during the historical period justifying the
issuance of the permit. A person or entity filing a declaration is generally
referred to as a "declarant." The term "declarant" does not appear in the
Act. The term "declaration of historical use" (and therefore "declaration")
is mentioned in §§1.16(a), (b), (c), (d)(1), §1.17(a)(2), (b),
and (d)(2) of the Act. The concepts of "declarants" and "declarations of historical
use" (or "declarations") are often considered to be part of the terminology
used by water resource management agencies in water rights proceedings similar
to a water rights adjudication and in the procedural rules related to such
a proceeding. The Act does not provide definitions for the terms "declarant",
"declaration of historical use" (or "declaration"). Because these terms are
likely regularly used by the Authority in its rules, and in the general conducting
of its procedures as they relate to its permit program, as well as by the
regulated community that interacts with the Authority as a declarant(s), the
Authority has determined that it is useful to define these terms. There is
a rational connection between this factual basis and the definitions of "declarant"
and "declaration of historical use" (or "declaration") in §702.1 because
these definitions refer to a "declarant" as an existing user who filed a declaration,
and a "declaration of historical use" (or "declaration") as the document that
is required to be filed with the Authority in order to apply for an initial
regular permit under §1.16(a) of the Act.
The factual basis for the definitions of "permit" and "permittee" are derived
initially from the legal facts derived from the Act. Section 1.15(a) authorizes
the Authority to "manage all withdrawal points from the aquifer." Section
1.15(b) generally prohibits the withdrawal of groundwater from the aquifer
without first having obtained a permit issued by the Authority (subject to
exceptions not relevant to this discussion). Section 1.15(c) envisions that
the Authority may issue regular, term, and emergency permits for the withdrawal
of groundwater from the aquifer. Section 1.16(a) envisions that an existing
user may apply for an initial regular permit. The permitting process culminates
in the granting (or denial) of an application. If an application is granted,
then a "permit" is issued by the appropriate administrative agency. The permit
essentially authorizes a regulated activity to proceed pursuant to conditions.
The person or entity owning or holding a permit is generally referred to as
a "permittee." The term "permittee" does not appear in the Act. The term "permit"
is mentioned in §§1.11, 1.14, 1.15, 1.16, 1.17, 1.18, 1.19, 1.20,
1.21, 1.22, 1.23, 1.24, 1.26, 1.29, 1.30, 1.32, 1.34, 1.35, 1.36, 1.40, and
1.44. The term "permit" is primarily used in the context of a groundwater
water permit, i.e. a permit that authorizes withdrawal of groundwater from
the aquifer. The concepts of "permit" and "permittee" are often considered
part of the terminology used by water resource management agencies in water
rights proceedings, similar to water rights adjudication, and in procedural
rules related to such proceedings. The Act does not provide definitions for
the terms "permittee" or "permit." Because these terms are likely to be regularly
used by the Authority, in its rules and in the general conducting of its procedures
as they relate to its permit program, and by the regulated community that
interacts with the Authority as a permittee, the Authority has determined
that it is useful to define these terms. There is a rational connection between
this factual basis and the definitions of "permittee" and "permit" in §702.1
because these definitions refer to a "permittee" as one to whom a permit has
been issued, and a "permit" as the document issued by the Authority as a result
of the granting of an application.
The factual basis for the definitions of "registrant" and "registration"
is derived initially from the legal facts contained in the Act. Section 1.15(a)
authorizes the Authority to "manage all withdrawal points from the aquifer."
Section 1.15(b) generally prohibits the withdrawal of groundwater from the
aquifer without first having obtained a permit issued by the Authority, for
exempt wells and interim authorization withdrawals. Section 1.33(b) envisions
that the owner of an exempt well will "register" the well with the Authority.
A "registration" is essentially an application for the owner of a well to
obtain exempt well status. The registration provides the request to the Authority
to recognize the well's exempt status, and the facts supporting the recognition.
No permit is issued to the owner of an exempt well. A person or entity filing
a registration is generally referred to as a "registrant." The term "registrant"
does not appear in the Act, The term "registration" appears in §1.29(g)
of the Act. Also, the term "register" is mentioned in §1.33(b) of the
Act. The concepts of "registrants" and "registrations" are often considered
to be part of the terminology used by water resource management agencies in
managing exempt wells and in the procedural rules related to such a proceeding.
The Act does not provide definitions for the terms "registrant" or "registration."
Because these terms are likely to be regularly used by the Authority in its
rules and in the general conducting of its procedures as they relate to its
permit program, as well as by the regulated community that will interact with
the Authority as a registrant, the Authority has determined that it is useful
to define these terms. There is a rational connection between this factual
basis and the definitions of "registrant" and "registration" in §702.1
because these definitions refer to a "registrant" as one who files a registration,
and a "registration" as the document required to be filed with the Authority
in order to qualify for exempt well status, or other registrations that may
be required by other permit program rules of the Authority.
The Authority requires staff to manage its permitting and rulemaking files.
Persons or entities interested in the affairs of the Authority will need to
know the administrative point of contact for the filing of documents with
the Authority in order to properly transact business with the Authority. Thus,
it is necessary for the Authority to identify to the public the official to
whom documents should be directed and filed relative to pending permitting
or rulemaking matters. The Authority would like to designate that point of
contact as its "docket clerk." The term "docket clerk" does not appear in
the Act. Because this term is likely to be regularly used by the Authority
in its rules and in the general conducting of its procedures, as they relate
to the Authority's permitting and rulemaking, as well as by the regulated
community that will interact with the Authority, the Authority has determined
that it is useful to define this term. There is a rational connection between
this factual basis and the definition of "docket clerk" in §702.1 because
this definition identifies that the docket clerk is the person designated
by the general manager as such.
The Board of Directors of the Authority and the Authority staff require
legal counsel relative to the matters of the Authority. Persons or entities
interested in the affairs of the Authority may require identification of the
Authority's legal counsel in order to properly transact business with the
Authority. Thus, it is necessary for the Authority to identify to the public
the legal counsel relative to matters pending before the Authority. The Authority
would like to designate the legal counsel to the Board, and the staff, as
its "general counsel." The term "general counsel" does not appear in the Act.
Because this term is likely to be used, on a regular basis, by the Authority
in its rules, the general conducting of its procedures as they relate to the
Authority's permitting and rulemaking, and by the regulated community that
will interact with the Authority, the Authority has determined that it is
useful to define this term. There is a rational connection between this factual
basis and the definition of "general counsel" in §702.1 because this
definition identifies the general counsel as the attorney engaged as such
by the Board.
The factual basis for the definitions of "judge", "party", "petitioner",
"pleadings", "protestant", and "SOAH " are derived initially from the fact
that the Authority is "subject to" the APA due to the operation of §1.11(h)
of the Act. Section 2001.004(1), TEXAS GOVERNMENT CODE, also provides that
the Authority is required to adopt rules of practice stating the nature and
requirement of all available formal and informal procedures. This would necessarily
include definitions relevant to the rules of practice or procedural rules.
The permitting procedures relative to certain permit applications may result
in contested case hearings. Contested cases are governed by subchapter C of
the APA. Contested case hearings are trial-type proceedings that resemble
trials. Judges, parties, petitioners, pleadings, protestants, and SOAH are
all persons, documents, or entities that are often part of the terminology
used by administrative agencies that have matters before them that may result
in a contested case hearing. The Act does not provide definitions for these
terms. Because these terms are likely to be regularly used by the Authority
in its rules and in the general conducting of its contested case proceedings
as they relate to its permit program, as well as by the regulated community
that will interact with the Authority as applicants, the Authority has determined
that it is useful to define these terms. The term "judge" is derived from §2003.001(1),
TEXAS GOVERNMENT CODE. The basis for the definition of "party" is §2001.003(4),
TEXAS GOVERNMENT CODE. The basis for the definition of "pleadings" is 31 TAC §
155.5 (6). The basis for the definition of "SOAH" is §2003.001(1), TEXAS
GOVERNMENT CODE. The definitions of "petitioners" and "protestants" are based
on generally accepted notions and understandings of the terms. There is a
rational connection between this factual basis and these definitions in §702.1
because they are derived from and closely track the statutory or regulatory
definitions found in other provisions that are similar to and relevant to
the conduct of the contested case hearings that may result from the Authority's
permit application processing or are derived from generally accepted understandings
of the terms.
Section 1.15(a) authorizes the Authority to "manage all withdrawal points
from the aquifer." Section 1.15(b) generally prohibits the withdrawal of groundwater
from the aquifer without first having obtained a permit issued by the Authority
(subject to exceptions not relevant to this discussion). Section 1.14(d) of
the Act provides the grounds for and the procedure by which the Authority
may increase the quantity of groundwater available for permitting and modify
the effect of §1.14(b) and (c) of the Act which creates maximum quantities
of groundwater that may be permitted for certain periods of time. Among the
groundwater strategies available to "raise the cap" is supplemental recharge.
Also, §1.11(f) of the Act empowers the Authority to contract with a person
who uses water from the aquifer to construct, operate, own, finance, and maintain
water supply facilities. That section defines the term "water supply facility"
as including, among other things, a recharge project. Section 1.44 of the
Act provides the terms and conditions under which a political subdivision
of the state may enter into an interlocal contract with the Authority for
an aquifer recharge project. Section 1.45 of the Act authorizes the Authority
to build or operate recharge dams and provides certain terms and conditions
for the operation of such facilities as well as eligible source water for
the recharge project. These sections of the Act, among others, create the
legal facts that recognize the authority of the Authority over recharge projects
associated with the aquifer. Recharge projects have three basic components:
(1) recharge; (2) storage; and (3) recovery. Recharge to the aquifer results
in increasing the supply of groundwater within the aquifer. The purpose of
the recharge is to store the water in the aquifer for a period of time such
that the recharged water may be recovered from a point of withdrawal at a
later time when needed. In order to recharge to and store water in the aquifer,
the Authority would be required to issue a permit for this purpose. The Authority
proposes to call this permit an "aquifer recharge and storage permit." In
order to withdraw the water that has already been recharged and stored in
the aquifer the Authority would be required to issue a permit for this purpose.
The Authority proposes to call this permit a "recharge recovery permit." The
Act does not provide definitions for these terms. Because these terms are
likely to be regularly used by the Authority in its rules and in the general
conducting of permit program related to recharge project, as well as by the
regulated community that will interact with the Authority as applicants for
these projects, the Authority has determined that it is useful to define these
terms. There is a rational connection between this factual basis and the definitions
of "aquifer recharge and storage permit" and "recharge recovery permit" in §702.1
because these definitions identify the name of the permit that would authorize
the recharge of the aquifer, and the withdrawal of the recharged water from
the aquifer.
Section 1.16(a) of the Act authorizes only an "existing user" to file declarations
of historical use (also known as applications for initial regular permit)
for withdrawals of groundwater placed to beneficial use during the historical
period (June 1, 1972 through May 31, 1993). In order to qualify as an existing
user, the existing user would had to have owned a well from which withdrawals
from the aquifer were made and placed to beneficial use during the historical
period. See e.g. §§ 1.16(a); and 1.17(a) and (d)(2). This necessarily
means that the well owned by the existing user would had to have been installed
and made withdrawals no later than May 31, 1993. The Authority proposes to
refer to these wells as "existing wells." Section 1.14(e) of the Act also
provides for a prohibition on withdrawals of groundwater from the Edwards
Aquifer ("Aquifer") from wells drilled after June 1, 1993. The purpose of
preventing withdrawals from post-June 1, 1993 wells is to prevent an uncontrolled
ever increasing demand on the aquifer at the expense of the historical users
of the aquifer.
See Barshop,
925 S. W. 2d
at 632. The Authority proposes to refer to the post-June 1, 1993 wells as
"new wells." The term "existing well" then functions in harmony with the term
"existing user" that is defined in §1.03(10) of the Act. The term "new
well" would function with the term "new user." Existing users are made eligible
by the Act to receive an initial regular permit, while new users are not so
eligible. Thus, existing wells are eligible for an initial regular permit,
while new wells are not. The Act does not provide definitions for "existing
well" or "new well." Because the Act creates the concept of "existing user,"
"historical use," and a date for the establishment of a prohibition against
the withdrawal of groundwater from certain wells, it is necessary to give
meaning and definition to "existing well" and "new well." These terms are
also likely to be regularly used by the Authority in its rules and in the
general conducting of its permit program, as well as by the regulated community
that will interact with the Authority. There is a rational connection between
this factual basis and the definitions of "existing well" and "new well" in §702.1
because the definition of "existing well" is linked to the concept of "existing
user" and "historical period" and "new well" is linked to the concept of post-June
1, 1993 wells which are ineligible to receive an initial regular permit.
Section 1.14(f) of the Act authorizes the Authority to allow "uninterruptible"
withdrawals from the Aquifer when certain index wells for the "San Antonio
pool" and the "Uvalde pool" are at certain levels. Section 1.19(b) of the
Act provides for the minimum index well level for the San Antonio Pool below
which term permit withdrawals are automatically "interrupted." Section 1.19(c)
of the Act provides for the minimum index well level for the Uvalde pool below
which term permit withdrawals are automatically "interrupted." The Act does
not provide definitions for the terms "San Antonio pool," "Uvalde pool," or
"interruptible." Because these terms are likely to be regularly used by the
Authority in its rules and in the implementation of the Authority's aquifer
management programs, as well as by the regulated community that will interact
with the Authority, the Authority has determined that it is useful to define
these terms. The Act has identified that the Authority should manage the aquifer
on a two-pool basis for certain purposes (although, the Act does allow for
the Authority to create additional pools if warranted. See § 1.14(g)).
The Authority interprets the current hydrogeologic data as indicating that
within the aquifer, unique hydrological conditions exist in some areas relative
to other areas. Examples of these hydrological conditions include varying
aquifer transmissivities, storativity, flow paths and water quality conditions.
Two areas within the aquifer that may be considered different pools include
the "Uvalde pool" and the "San Antonio pool." Hydrographs from monitoring
wells in these two areas indicate that aquifer conditions, such as groundwater
flow paths and storativity, are such that different pools for these areas
exist. Generally, there are not yet enough data points to accurately map the
boundary location between the two pools. Moreover, the likelihood that such
data will be developed within the time frames required for the Authority to
begin implementation of its aquifer management programs, for example, permitting
and critical period, as required by the Act, do not permit it to wait for
the development of such data. The Authority notes that as the data improves
it will be able to refine its definition of these pools accordingly. However,
the Authority interprets the current relevant data to suggest that the boundary
between the pools is generally near the Uvalde-Medina County line, with the
"Uvalde pool" being confined to the part of the aquifer underlying Uvalde
County, with the balance of the aquifer underlying the jurisdictional boundaries
of the Authority as constituting the "San Antonio pool." As for the term "interruptible",
sections 1.14(f) and 1.19 clearly indicate that this term is used to describe
the cessation, curtailment, or reduction of a permittee's right to make withdrawals
from the aquifer due to aquifer level conditions as measured as certain index
wells. There is a rational connection between the factual basis discussed
above and the definitions of "Uvalde pool" and "San Antonio pool" in §702.1
because these definitions refer to the "Uvalde pool" as the part of the aquifer
under Uvalde County, and the "San Antonio pool" as the portion of the aquifer
underlying the Authority's jurisdictional boundaries. There is a rational
connection between the factual basis discussed above and the definition of
"interruptible" because the definition refers to the conditioning of the right
to make withdrawals under a permit based on index well levels.
Section 1.15(a) of the Act provides broad authority to the Authority to
manage (1) withdrawals from the Aquifer, and (2) points of withdrawals pursuant
to the Act. Section 1.15(b) generally prohibits the withdrawal of groundwater
from the aquifer, or the construction of a well, without first having obtained
a permit issued by the Authority. These sections of the Act provide the legal
facts that recognize the regulation of certain activity through the issuance
of permits that the Authority proposes to call "groundwater withdrawal permits,"
"well construction permits," and "monitoring well permits." The Act does not
provide definitions for these terms. Because these terms are likely to be
regularly used by the Authority in its rules and in the general conducting
of permit program, as well as by the regulated community that will interact
with the Authority as applicants, the Authority has determined that it is
useful to define these terms. There is a rational connection between this
factual basis and these definitions in §702.1 because these definitions,
respectively, provide that "groundwater withdrawal permits" authorize withdrawals
of groundwater from the aquifer, "well construction permits" authorize the
construction of a well designed for the purpose of making withdrawals from
the aquifer, and "monitoring well permits" authorize the measuring of water
level or water quality of the aquifer.
The factual basis for the definitions of "initial regular permit" and "historical
use" is derived initially from the legal facts contained in the Act. Section
1.15(a) authorizes the Authority to "manage all withdrawal points from the
aquifer." Section 1.15(b) generally prohibits the withdrawal of groundwater
from the aquifer without first having obtained a permit issued by the Authority
(subject to exceptions not relevant to this discussion). Section 1.15(c) envisions
that the Authority may issue, among other things, regular permits for the
withdrawal of groundwater from the aquifer. Section 1.16(a) envisions that
an existing user may apply for an "initial regular permit" by filing a declaration
of historical use. Under §1.16(a), a declaration is essentially an application
for an initial regular permit for withdrawals made during the statutorily
established historical period. This section provides that the "historical
period" is from June 1, 1972 through May 31, 1993. Section 1.16(d) of the
Act provides some of the elements that, if proven by convincing evidence,
would require the Board to grant an application for an "initial regular permit."
Section 1.17(a) of the Act authorizes persons owning wells meeting certain
criteria to continue to make withdrawals from the well even though they have
yet not been issued an "initial regular permit." These concepts of "initial
regular permit" and "historical period" will be part of the terminology used
by the Authority in the implementation of its permit program and in the procedural
rules associated therewith. The Act does not provide definitions for these
terms. Because these terms are likely to be regularly used by the Authority
in its rules and in the general conducting of its procedures as they relate
to its permit program, as well as by the regulated community that will interact
with the Authority as an applicant, the Authority has determined that it is
useful to define these terms. There is a rational connection between this
factual basis and the definition of "historical use" because the definition
tracks the same dates used in §1.16(a) the Act. There is a rational connection
between this factual basis and the definition of "initial regular permit"
because the definition refers to this type of permit as a groundwater withdrawal
permit authorized pursuant to §1.16 of the Act.
The factual basis for the definition of "additional regular permit" is
derived initially from the legal facts contained in the Act. Section 1.15(a)
authorizes the Authority to "manage all withdrawal points from the aquifer."
Section 1.15(b) generally prohibits the withdrawal of groundwater from the
aquifer without first having obtained a permit issued by the Authority (subject
to exceptions not relevant to this discussion). Section 1.15(c) envisions
that the Authority may issue, among other things, regular permits for the
withdrawal of groundwater from the aquifer. Section 1.18(a) of the Act authorizes
the Authority to issue "additional regular permits" if there remains water
available for permitting after the issuance of all initial regular permits.
The section also provides that groundwater withdrawals pursuant to "additional
regular permits" are subject to maximum permitted groundwater withdrawal amounts
set out in sections 1.14(b) and (c) of the Act. Section 1.18(b) of the Act
prohibits the Authority from considering or taking action on an application
for an "additional regular permit" until the Authority has taken final action
on all pending applications for initial regular permits. This concept of an
"additional regular permit" will be part of the terminology used by the Authority
in the implementation of its permit program and in the procedural rules associated
therewith. The Act does not provide a definition for this term. Because this
term is likely to be regularly used by the Authority in its rules and in the
general conducting of its procedures as they relate to its permit program,
as well as by the regulated community that will interact with the Authority
as an applicant, the Authority has determined that it is useful to define
this term. There is a rational connection between this factual basis and the
definition of "additional regular permit" because the definition refers to
this type of permit as a groundwater withdrawal permit authorized pursuant
to §1.18 of the Act.
The factual basis for the definition of "term permit" is derived initially
from the legal facts contained in the Act. Section 1.15(a) authorizes the
Authority to "manage all withdrawal points from the aquifer." Section 1.15(b)
generally prohibits the withdrawal of groundwater from the aquifer without
first having obtained a permit issued by the Authority (subject to exceptions
not relevant to this discussion). Section 1.15(c) envisions that the Authority
may issue, among other things, term permits for the withdrawal of groundwater
from the aquifer. Section 1.19(a) of the Act authorizes the Authority to issue
term permits for groundwater withdrawals from the Aquifer for up to 10 years.
Section 1.19(b) of the Act provides for the minimum index well level for the
San Antonio pool below which term permit withdrawals would be automatically
interrupted. Section 1.19(c) of the Act provides for the minimum index well
level for the Uvalde pool below which term permit withdrawals would be automatically
interrupted. This concept of a "term permit" will be part of the terminology
used by the Authority in the implementation of its permit program and in the
procedural rules associated therewith. The Act does not provide a definition
for this term. Because this term is likely to be regularly used by the Authority
in its rules and in the general conducting of its procedures as they relate
to its permit program, as well as by the regulated community that will interact
with the Authority as an applicant, the Authority has determined that it is
useful to define this term. There is a rational connection between this factual
basis and the definition of "term permit" because the definition refers to
this type of permit as a groundwater withdrawal permit authorized pursuant
to §1.19 of the Act.
The factual basis for the definition of "emergency permit" is derived initially
from the legal facts contained in the Act. Section 1.15(a) authorizes the
Authority to "manage all withdrawal points from the aquifer." Section 1.15(b)
generally prohibits the withdrawal of groundwater from the aquifer without
first having obtained a permit issued by the Authority (subject to exceptions
not relevant to this discussion). Section 1.15(c) envisions that the Authority
may issue, among other things, emergency permits for the withdrawal of groundwater
from the aquifer. Section 1.20(a) of the Act authorizes the Authority to issue
emergency permits for groundwater withdrawals from the Aquifer not to exceed
30 days to prevent severe, imminent threats to the public health or safety.
This concept of a "emergency permit" will be part of the terminology used
by the Authority in the implementation of its permit program and in the procedural
rules associated therewith. The Act does not provide a definition for this
term. Because this term is likely to be regularly used by the Authority in
its rules and in the general conducting of its procedures as they relate to
its permit program, as well as by the regulated community that will interact
with the Authority as an applicant, the Authority has determined that it is
useful to define this term. There is a rational connection between this factual
basis and the definition of "emergency permit" because the definition refers
to this type of permit as a groundwater withdrawal permit authorized pursuant
to §1.20 of the Act.
The factual basis for the definition of "aquifer management fee" is derived
initially from the legal facts contained in the Act. Section 1.29(b) of the
Act directs the Authority to assess an "aquifer management fee" on aquifer
use to finance its administrative and programmatic expenses authorized under
the Act. Section 1.29(e) of the Act provides that in developing its fees,
the Authority may charge different fee rates on a per acre-foot basis for
different types of uses as long as they are equitable between types of uses.
This section also creates a fee differential between agricultural users and
non-agricultural users for "aquifer management fees" whereby the agricultural
fee may not exceed 20 percent of the aquifer management fees assessed against
non-agricultural users. In addition, this section creates a distinction between
agricultural and non-agricultural users when calculating aquifer use under §1.29(b)
of the Act by providing that aquifer use for agricultural users is the actual
volume of groundwater withdrawn, while for non-agricultural users it is the
face value authorized to be withdrawn in an initial regular permit. This concept
of an "aquifer management fee" will be part of the terminology used by the
Authority in the implementation of its fee program and in the procedural rules
associated therewith. The Act does not provide a definition for this term.
Because this term is likely to be regularly used by the Authority in its rules
and in the general conducting of its procedures as they relate to its fee
program, as well as by the regulated community that will interact with the
Authority, the Authority has determined that it is useful to define this term.
There is a rational connection between this factual basis and the definition
of "aquifer management fee" because the definition refers to this type of
fee as a fee based on aquifer use or taxes in lieu of user fees under certain
circumstances as authorized pursuant to §1.29 of the Act.
The factual basis for the definition of "non-exempt well" is derived initially
from the legal facts contained in the Act. Section 1.31(a) of the Act provides
that owners of "non-exempt wells" are required to install meters on wells,
or, if the meter requirement is waived, apply alternative measuring methods
to calculate the volume of groundwater withdrawals from the Aquifer. This
reference to a "non-exempt well" must necessarily mean that there is something
in the Act contemplated to be an "exempt well." In addition, this raises the
issue of from what are the wells "exempt." Section 1.33(a) and (c) essentially
provides the definition for "exempt well." To qualify for exempt well status
a well must (1) produce no more than 25,000 gallons water a day , (2) for
domestic or livestock use, (3) not be located within a subdivision requiring
platting, and (4) not serve a subdivision requiring platting. Section 1.33(a)
provides that the "exemption" extends to the duty to install a meter. Section
1.33(b) of the Act provides that "exempt wells" must be registered with the
Authority. Section 1.16(c) of the Act provides that owners of exempt wells
are also not required to file declarations of historical use in order to continue
to make lawful withdrawals from their exempt wells (i.e. they are exempt from
the duty to file a declaration of historical use). Only wells that file a
declaration of historical use are eligible for interim authorization status
under §1.17(a)(2) of the Act. A review of §1.31 and §1.33 of
the Act lead to the conclusion that the Act contemplates two types of wells
within the jurisdiction of the Authority. First, some wells will require a
groundwater withdrawal permit (e.g. initial regular permit, additional regular
permit, term permit or emergency permit). These wells are referred to in §1.31
as "non-exempt wells." The second type of wells are "exempt wells." Pursuant
to sections 1.15(b) and 1.16(c) these wells do not require a permit. The Authority
interprets these sections as precluding the issuance of a groundwater withdrawal
permit to owners of exempt wells. Instead, §1.33(b) merely requires the
owners of exempt wells to register the wells. The Act does not provide for
the waiver of exempt well status. These concepts of a "exempt well" and "non-exempt"
will be part of the terminology used by the Authority in the implementation
of its permit program and in the procedural rules associated therewith. The
Act does not provide a definition for these terms. Because these terms are
likely to be regularly used by the Authority in its rules and in the general
conducting of its procedures as they relate to its permit program, as well
as by the regulated community that will interact with the Authority, the Authority
has determined that it is useful to define these terms. There is a rational
connection between this factual basis and the definition of "exempt well"
and "non-exempt well" because the definition of "exempt well" tracks the statutory
criteria found in §1.33(a) and (c) of the Act. As for the definition
of "non-exempt well" there is a rational connection between this factual basis
and this definition because the definition requires that the legal basis for
the withdrawals from non-exempt wells be interim authorization status or groundwater
withdrawal permit.
The factual basis for the definition of "surface water" is derived initially
from the legal facts contained in the Act. Section 1.08(b) of the Act provides
that the Authority does not have the authority to regulate "surface water."
The Act does not provide a definition for this term. The definition of the
term is fundamental to identifying over what water resources the Authority
has jurisdiction. Because this term is likely to be regularly used by the
Authority in its rules and in the general conducting of its permit program,
as well as by the regulated community that will interact with the Authority,
the Authority has determined that it is useful to define this term. The Authority
interprets the jurisdictional limitation in §1.08(b) to apply to surface
water over which the prior appropriation doctrine applies and jurisdiction
is vested in the Texas Natural Resource Conservation Commission. Surface water
is generally considered to be "state water." The definition of "state water"
is found in §11.021(a), TEXAS WATER CODE. There is a rational connection
between this factual basis and the definition of "surface water" because the
definition refers to the definition of state water as identifying the surface
water over which the Authority would have no jurisdiction.
III. REGULATORY IMPACT ANALYSIS OF MAJOR ENVIRONMENTAL RULES.
Section 2001.0225 of the Texas Government Code requires an agency to perform,
under certain circumstances, a regulatory analysis of "major environmental
rules." The Authority has determined that this proposed rule in not a "major
environmental rule" as that term defined by §2001.0225(g)(3) of the Texas
Government Code. The basis for this determination is that the proposed rules
do not have the specific intent to "protect the environment" or "reduce risks
to human health from environmental exposure." The proposed rule would set
forth general definitions that will apply to all the rules issued by the Authority.
These rules have been written to provide uniform definitions for words and
phrases that are expected to be used consistently throughout the Authority's
other rules. Some of these definitions are identical to the definitions that
appear in the Act while other definitions provide useful "short-hand" to reduce
the amount of cumbersome regulatory language necessary in other Authority
rules. The specific intent of these definitions is thus to allow for a more
efficient understanding and operation of other rules of the Authority. For
this reason, we find that the proposed rule is not a "major environmental
rule" and that, therefore, no further analysis is required by §2001.0225
of the Texas Government Code.
IV. TEXAS PRIVATE REAL PROPERTY RIGHTS PRESERVATION ACT.
Chapter 2007 of the Texas Government Code, also known as the "Texas Private
Real Property Rights Preservation Act," ("TPRPRA") requires governmental entities,
under certain circumstances, to prepare a takings impact assessment ("TIA")
in connection with certain covered categories of proposed governmental actions.
Based on the following reasons, the Authority has determined that it need
not prepare a TIA in connection with the proposal of this rule. First, the
Authority's action in adopting this rule is an action that is reasonably taken
to fulfill an obligation mandated by state law and is thus excluded from the
TPRPRA under §2007.003(b)(4) of the Texas Government Code. See Act §§
1.03, 1.08(a), 1.11(a), and 1.11(f); TEXAS WATER CODE ANN. § 36.001(5).
It was held, in
Edwards Aquifer Authority v. Bragg,
21 S.W.3d. 375,(Texas App. San Antonio 2000 pet. filed), that the
Edwards Aquifer Act expressly mandates the adoption of substantive and procedural
permitting rules and that such actions are therefore excepted from TPRPRA.
Third, it is the position of the Authority that all valid actions of the Authority
are excluded from the TPRPRA under §2007.003(b)(11)(C) of the Texas Government
Code as actions of a political subdivision taken under its statutory authority
to prevent waste or protect the rights of owners of interest in groundwater.
Accordingly, a TIA need not be prepared in connection with the proposal of
this rule.
V. SUMMARY OF PUBLIC COMMENTS AND AUTHORITY RESPONSES.
Five public hearings were held on these and other rules proposed by the
Authority on: Wednesday, August 9, 2000, at 6:00 p.m. at the Conference Center
of the Edwards Aquifer Authority, 1615 N. St. Mary's Street, San Antonio,
Texas; Tuesday, August 15, 2000 at 6:00 p.m. at the New Braunfels Civic Center,
380 S. Seguin Avenue, New Braunfels, Texas; August 17, 2000 at 6:00 p.m. at
St. Paul's Lutheran Church, 1303 Avenue M, Hondo, Texas; Tuesday, August 22,
2000 at 6:00 p.m. at the Sgt. Willie De Leon Civic Center, 300 E. Main Street
in Uvalde, Texas; and Thursday August 24, 2000 at the San Marcos Activities
Center, 501 E. Hopkins, San Marcos, Texas. At those hearings, public comments
were received on the proposed §702.1. In addition, written comments were
received from members of the public regarding §702.1. The public comment
period closed on September 11, 2000. Oral and/or written comments were provided
by Earl & Brown, P.C. ("Earl & Brown"); Bickerstaff, Heath, Smiley,
Pollan, Kever & McDaniel, L.L.P. on behalf of the Texas Farm Bureau ("TFB");
the Texas Nursery & Landscape Association ("TNLA"); William R. Haney ("Haney");
Color Spot Nurseries ("CSN"); Glenn, JoLynn and David Bragg (the "Braggs");
the Texas Cattle Feeders Association, Inc. ("TCFA"); and Vivian Windrow ("Windrow").
Public Comments No. 1, No. 2, and No. 3:
The TCFA seeks a revision of the definition of "agricultural use" in order
to include the watering of livestock within the definition. Similarly, the
TNLA and CSN seek a revision of the definition of "agricultural use" in order
to include the watering of nursery products by a nursery grower. Section 702.1,
however, does not include a definition for "agricultural use." Instead, that
term is defined in the Authority's proposed Chapter 709 rules.
Authority's Response:
The Authority believes that the comments of the TCFA, the TNLA, and CSN
on this point will be more appropriately addressed when Chapter 709 is adopted
by the Authority. For this reason, the Authority disagrees with the comments
to the extent they relate to §702.1, and the Authority has declined to
modify §702.1 in response to the comments.
Public Comment No. 4:
The TFB's comments correctly point out that while the text of the preamble
to the notice of proposed rulemaking for §702.1 (25 Texas Reg. 7495-96)
erroneously suggests the Authority is proposing a definition of the "Medina
Pool," §702.1 actually includes no such definition.
Authority's Response:
The Authority agrees with the comment. It is unclear whether the TFB would
support or oppose the inclusion of such a definition. The Authority has determined
not to include a definition of the "Medina Pool" in §702.1. Section 1.14(g)
of the Act states: "The authority by rule may define other pools within the
aquifer, in accordance with hydrogeologic research, and may establish index
wells for any pool to monitor the level of the aquifer to aid the regulation
of withdrawals from the pools." The Authority has decided not to include such
a definition at this time. No amendment to §702.1 is necessary in response
to this comment.
Public Comment No. 5:
Both Haney and Earl & Brown submitted comments on the definition of
"exempt well" found at §702.1(b)(22). As proposed, that definition reads
as follows:
Exempt well- A well that produces 25,000 gallons of water a day or less
for domestic or livestock use that is not within or serving a subdivision
requiring platting.
Haney asks that the definition state:
Exempt well- A well that produces 25,000 gallons of water a day or less
for domestic or livestock use, or livestock watering, that is not within and
serving a subdivision requiring platting. The withdrawal and beneficial use
of less than 1250 gallons of water a day from an otherwise exempt well for
purposes other than domestic or livestock use, or livestock watering, does
not void a well's exempt status.
Haney reasons that these changes are merited because: (1) an otherwise
exempt well owner, under proposed §702.1(b)(22), may inadvertently come
to reside in a platted subdivision without incurring a change in water usage;
and (2) a "de minimus" exception, defined by Haney to mean 1,250 gallons per
day or less, ought to be created for otherwise exempt well owners who wish
to pump relatively small amounts of water for non-exempt purposes from their
exempt wells.
Authority's Response:
The Authority disagrees with the Haney comments. First, the current definition
of "exempt well" as proposed by the Authority closely tracks the criteria
found in §1.33 of the Act. Second, the addition of the phrase "or livestock
watering" is redundant and unnecessary. Further, §702.1(b)(20)(c) already
specifies that "domestic or livestock use" includes the "watering of animals."
Third, §1.33(c) specifically states that a well is not exempt if it
is "within or serving a subdivision requiring platting." The Authority believes
that changing this phrase to "within and serving a subdivision requiring platting"
would be contrary to the Act. Such a change would allow, for example, a domestic
or livestock well located outside a subdivision requiring platting to provide
service to unlimited connections within the subdivision. The Authority believes
that such an arrangement would violate the Act. Further, the Authority has,
in its proposed exempt well rules, found at Subchapter C of the Authority's
proposed Chapter 711 rules, attempted to address the concern raised by Haney
involving a situation in which a well owner resides on land which was unsubdivided
during the historical period but which subsequently came to be subdivided
in a way that required platting. Amendment of §702.1 is not necessary
or warranted on this point.
Finally, the Authority believes the Act mandates that if an exempt well
is used for non-exempt purposes then it loses its exempt status and should
require a permit. Thus, exempt well owners should not be allowed to pump up
to 1,250 gallons per day for non-exempt purposes from their exempt wells.
Further, there are practical and logistical impediments to this proposal by
Haney. The only way to confirm whether a given exempt well owner were, in
fact, pumping no more than 1,250 gallons per day for non-exempt uses would
be by installing a meter on the well. However, §1.33 of the Act clearly
states that exempt wells are exempt from the metering requirement. The Authority
has declined to modify §702.1(b)(22) in response to the Haney comments.
Public Comment No. 6:
Earl & Brown asks that the definition of "exempt well" be revised as
follows:
Exempt well- A well that produces 25,000 gallons of water a day or less
or which is physically capable of only producing up to a maximum of 25,000
gallons per day average on an annual basis for domestic of livestock use that
is not within or serving a subdivision requiring platting, which is exempt
from metering requirements.
Authority's Response:
The Authority disagrees with the Earl & Brown comment. First, the current
definition of "exempt well" as proposed by the Authority closely tracks the
criteria found in §1.33 of the Act. The Earl & Brown comment would
add new a criterion outside the scope of §1.33 of the Act. Allowing for
the averaging of pumpage throughout the year would clearly allow pumping on
any given day to exceed 25,000 gallons. The Authority believes this would
contravene the clear language of §1.33 of the Act. Second, the language
proposed by Earl & Brown appears to be nonsensical. It is unclear how
a well could be "physically capable" of producing more than 25,000 gallons
on certain days, but less on other days, so that the average on an annual
basis was below 25,000 gallons. Third, the only way to measure average use
is with a meter. However, §1.33 of the Act specifies that exempt wells
are excluded from the meter requirement. The Authority has declined to modify §702.1(b)(22)
in response to the Earl & Brown comments.
Public Comment No. 7:
Haney also submitted comments on the definition of "industrial use" found
at §702.1(b)(29). As proposed, that definition reads as follows:
Industrial use- The use of water for, or in connection with, commercial
or industrial activities, including manufacturing, bottling; brewing; food
processing; scientific research and technology; recycling; production of concrete,
asphalt, and cement; commercial uses of water for tourism, entertainment,
and hotel or motel lodging; generation of power other than hydroelectric;
and other business activities.
Haney suggests the following definition:
Industrial use- The use of water in excess of 1250 gallons per day for,
or in connection with, commercial or industrial activities, including manufacturing,
bottling; brewing; food processing; scientific research and technology; recycling;
production of concrete, asphalt, and cement; commercial uses of water for
tourism, entertainment, and hotel or motel lodging; generation of power other
that hydroelectric; and other business activities.
As with his proposed change to the definition of "exempt well," Haney proposes
this change because he believes a "de minimus" exception, defined by Haney
to mean 1,250 gallons per day or less, ought to be created for otherwise exempt
well owners who wish to pump relatively small amounts of water for non-exempt
purposes from their exempt wells.
Authority's Response:
The Authority disagrees with this comment. First, the Authority's definition
of "industrial use" in §702.1(b)(29) identically tracks the definition
found in §1.03(11) of the Act. The definition found in the Act does not
include any de minimus exclusion. Second, the Authority believes the Act mandates
that if an exempt well is used for non-exempt purposes then it loses its exempt
status. Thus, exempt well owners should not be allowed to pump up to 1,250
gallons per day for non-exempt purposes, such as industrial purposes, from
their exempt wells. Further, there are practical and logistical impediments
to this proposal by Haney. The only way to confirm whether a given exempt
well owner were, in fact, pumping no more than 1,250 gallons per day for non-exempt
uses, such as industrial uses, would be by installing a meter on the well.
However, §1.33 of the Act clearly states that exempt wells are exempt
from the metering requirement. The Authority has declined to modify §702.1(b)(22)
in response to the Haney comment.
Public Comments No. 8 and No. 9:
Both the TNLA and CSN assert that the definition of "irrigation use" is
inadequate and circular, thereby leading to confusion and misinterpretation.
Neither entity proposes substitute language.
Authority's Response:
The Authority disagrees with this comment. The definition of "irrigation
use," found at §702.1(b)(31), is identical to the definition found at §1.03(12)
of the Act. Further, the Authority believes that the definition is clear.
The Authority has declined to modify §702.1(b)(31) in response to this
comment.
Public Comments No. 10 and No.11:
The Braggs and Windrow both commented upon proposed rule § 702.1(32)
which states:
(32) Interruptible-When referring to a groundwater withdrawal permit, the
conditioning of the right to withdraw groundwater from the aquifer that makes
the right subject to complete cessation, temporary curtailment, or reduction
of the amount of groundwater that may be withdrawn from the aquifer based
upon the measurement of a water level at an index well, or as otherwise determined
by the board.
The Braggs and Windrow recommend that the ending phrase, "or as otherwise
determined by the board," be deleted. The Braggs assert that this language
is too general and will render groundwater management and planning impossible.
They also contend that interruptiblility should be keyed solely upon "spring
flow protection" or "groundwater and spring flow modeling." Windrow feels
that the phrase is too vague and, instead, any criteria for interruption of
groundwater withdrawals should be specified.
Authority's Response:
The Authority agrees that the phrase "or as otherwise determined by the
board" is somewhat vague and could be made more definite. The intent of this
definition is to make withdrawal amounts subject to interruption based upon
the measurement of a water level at an index well or upon the criteria set
forth in the Authority's comprehensive water management plan implementation
rules which, though not yet adopted by the Authority, will, when adopted,
be codified at 31 TAC Chapter 715. Accordingly, the Authority has modified §702.1(b)(32)
in response to these comments by deleting the phrase "or as otherwise determined
by the board" and replacing it with the phrase "or as otherwise required by
the comprehensive water management plan implementation rules found at 31 TAC
Chapter 715 (relating to Comprehensive Water Management Plan Implementation)."
Public Comment No. 12:
The TFB asserts that the Authority was required by the Texas Private Real
Property Rights Preservation Act to prepare a "takings impact assessment"
or "TIA" before providing notice of the proposed adoption of rule 702.1.
Authority's Response:
The Authority disagrees. Chapter 2007 of the Texas Government Code, also
known as the "Texas Private Real Property Rights Preservation Act" ("TPRPRA"),
requires governmental entities, under certain circumstances, to prepare a
TIA in connection with certain covered categories of proposed governmental
actions. Based on the following reasons, the Authority has determined that
it need not prepare a TIA in connection with the adoption of this rule. First,
the rules themselves impose no burden upon vested private real property. As
such, they have no direct affect on vested private real property and may not
result in a taking. Second, the Authority's action in adopting these rules
is an action that is reasonably taken to fulfill an obligation mandated by
state law and is thus excluded from the Texas Private Real Property Rights
Preservation Act under §2007.003(b)(4) of the Texas Government Code.
See Act §§1.03, 1.08(a), 1.11(a), (f) and (h); Texas Government
Code Annotated, §§ 2001.004(1), 2001.021(b), 2001.026, 2001.029,
and 2001.031, and §36.001(5) of the Texas Water Code. It was held, in
VI. CONCISE RESTATEMENT OF PARTICULAR STATUTORY PROVISIONS UNDER WHICH
THE RULE IS ADOPTED AND THE AUTHORITY INTERPRETATION OF THE PROVISIONS AS
AUTHORIZING OR REQUIRING THE RULE.
Section 1.03 of the Act sets forth definitions of various words and phrases
used throughout the Act that the Legislature provided in passing the Act.
Many of the definitions in this final rule are taken directly from, and conform
with this provision. In addition, §1.14(d) of the Act provides the grounds
for and the procedure by which the Authority may increase the quantity of
groundwater available for permitting and modify the effect of §1.14(b)
and (c) of the Act which creates maximum quantities of groundwater that may
be permitted for certain periods of time. Among the groundwater available
is conservation, augmentation, and supplemental recharge. Also, §1.11(f)
of the Act empowers the Authority to contract with a person who uses water
from the aquifer to construct, operate, own, finance, and maintain water supply
facilities. That section defines the term "water supply facility" as including
"a dam, reservoir, treatment facility, transmission facility, or recharge
project." Section 1.44 of the Act provides the terms and conditions under
which a political subdivision of the state may enter in to an interlocal contract
with the Authority for an aquifer recharge, storage and recovery project.
Section 1.45 of the Act authorizes the Authority to build or operate recharge
dams and provides certain terms and conditions for the operation of such facilities
as well as eligible source water for the recharge project. In conjunction
with §1.08(a) and §1.11(a) of the Act discussed below, the Authority
interprets these sections as authorizing the adoption of the following general
definitions in conformance with the Act: (6) aquifer; (9) augmentation; (10)
authority; (12) beneficial use; (13) board; (14) commission; (15) conservation;
(18) diversion; (20) domestic or livestock use; (29) industrial use; (31)
irrigation use; (34) livestock; (36) municipal use; (39) order; (43) person;
(46) pollution; (48) recharge; (52) reuse; (59) water supply facility; (60)
well; (62) well J-17; (63) well J-27; and (64) withdrawal. The Authority also
interprets these sections, as well as §36.001(5), Texas Water Code, as
authorizing the adoption of a definition for (26) groundwater and (58) "underground
water." In §1.03(20), the term "underground water" is assigned the meaning
that this term has in §52.001, Texas Water Code. Since the passage the
Act, chapter 52, Texas Water Code, has been repealed and recodified as chapter
36, Texas Water Code. See Act of May 29, 1995, 74th Legislature, Regular Session,
Chapter 933, sec. 2, 6, 1995 Texas General Laws 4673. In so doing, the legislature
abandoned the use of the term "underground water" in favor of the more modern
term "groundwater" found at §36.001(5), Texas Water Code, and is defined
as "water percolating below the surface of the earth." Under §1.08(a)
of the Act, chapter 36, Texas Water Code, which replaced chapter 52, is now
applicable to the Authority to the extent that it does not conflict with the
Act. The Authority can identify no conflict with the Act in adopting the statutory
definition of groundwater found in chapter 36, Texas Water Code.
Section 1.08(a) of the Act provides that the Authority "has all of the
powers, rights, and privileges necessary to manage, conserve, preserve, and
protect the aquifer and to increase the recharge of, and prevent the waste
or pollution of water in, the aquifer." This section provides the Authority
with broad and general powers to take actions as necessary to manage, conserve,
preserve, and protect the aquifer and to increase the recharge of, and prevent
the waste or pollution of water in, the aquifer.
Section 1.11(a) of the Act provides that the Board of Directors ("Board")
of the Authority "shall adopt rules necessary to carry out the authority's
powers and duties under (Article 1 of the Act), including rules governing
procedures of the board and the authority." This section directs the Board
to adopt rules as necessary to implement the various substantive programs
set forth in the Act related to the Edwards Aquifer, and the procedural rules
associated therewith in the administration of the programs.
Section 1.11(d)(5) of the Act provides that the Board may hire an executive
director to manage the Authority. Consistent with groundwater conservation
district practices, the preference of the Authority is to refer to its "executive
director" as the "general manager." In conjunction with §1.08(a) and §1.11(a)
of the Act discussed above, because the Act employs this term and it is necessary
to give meaning and definition to this term as used in the Act, the Authority
interprets these sections as authorizing the adoption of a definition for
(25) general manager.
Section 1.ll(h) of the Act provides that the Authority is, among other
things, "subject to the Administrative Procedures Act, TEXAS GOVERNMENT CODE
ANN. §§2001.001-2001.902 (Vernon 2000). Because the Authority is
"subject to" the APA due to the operation of §1.11(h) of the Act, §2001.004(1),
TEXAS GOVERNMENT CODE, provides that the Authority is required to adopt rules
of practice stating the nature and requirement of all available formal and
informal procedures. This would necessarily include definitions relevant to
the rules of practice or procedural rules. In addition, §1.16(a) of the
Act provides for existing users to file declarations of historical use (otherwise
known as applications for initial regular permits) for withdrawals made during
the statutorily established historical period. Section 1.33(b) of the Act
provides that exempt wells must be registered with the Authority. In conjunction
with §§1.08(a) and 1.11(a) of the Act discussed above, the Authority
interprets these sections as authorizing the adoption of the following procedural
definitions: (1) Act; (3) APA; (4) applicant; (5) application; (11) Authority
offices; (16) declarant; (19) docket clerk; (24) general counsel; (33) judge;
(40) party; (41) permit; (42) permittee; (43) petitioner; (45) pleadings;
(47) protestant; (50) registrant; (51) registration; and (54) SOAH (State
Office of Administrative Hearings).
Section 1.14(d) of the Act provides the grounds for and the procedure by
which the Authority may increase the quantity of groundwater available for
permitting and modify the effect of §1.14(b) and (c) of the Act which
creates maximum quantities of groundwater that may be permitted for certain
periods of time. Among the groundwater available is supplemental recharge.
Also, §1.11(f) of the Act empowers the Authority to contract with a person
who uses water from the aquifer to construct, operate, own, finance, and maintain
water supply facilities. That section defines the term "water supply facility"
as including, among other things, a recharge project. Section 1.44 of the
Act provides the terms and conditions under which a political subdivision
of the state may enter in to an interlocal contract with the Authority for
an aquifer recharge, storage and recovery project. Section 1.45 of the Act
authorizes the Authority to build or operate recharge dams and provides certain
terms and conditions for the operation of such facilities as well as eligible
source water for the recharge project. In conjunction with §1.08(a) and §1.11(a)
of the Act discussed above, the Authority interprets these sections as authorizing
the adoption of the following terms related to recharge projects: (8) aquifer
recharge and storage permit; and (49) recharge recovery permit.
Section 1.14(e) of the Act provides for a prohibition on withdrawals of
groundwater from the Edwards Aquifer (Aquifer) from post-June 1, 1993 new
wells, as well as, provisions for interruptible withdrawals from such wells
if the amount of groundwater available for permitting is increased pursuant
to §1.14(d) of the Act. In addition, §1.03(10) defines the term
"existing user." Also, §1.16(a) of the Act authorizes "existing user"
to files declarations of historical use (also known as applications for initial
regular permit) for withdrawals of groundwater placed to beneficial use during
the historical period. In conjunction with §1.08(a) and §1.11(a)
of the Act discussed above, because the Act creates the concept of "existing
user," "historical use," and a date for the establishment of a prohibition
against the withdrawal of groundwater from certain wells, and it is necessary
to give meaning and definition to this concept as created in the Act, the
Authority interprets these sections as authorizing the adoption of a definition
for (23) existing well; and (37) new well.
Section 1.14(f) of the Act authorizes the Authority to allow uninterruptible
withdrawals from the Aquifer when certain index wells for the San Antonio
and Uvalde Pools are at certain levels identified in the section. Section
1.19(b) of the Act provides for the minimum index well level for the San Antonio
Pool below which term permit withdrawals would be automatically interrupted.
Section 1.19(c) of the Act provides for the minimum index well level for the
Uvalde Pool below which term permit withdrawals would be automatically interrupted.
In conjunction with §§1.08(a) and 1.11(a) of the Act discussed above,
because the Act employs this term and it is necessary to give meaning and
definition to this term as used in the Act, the Authority interprets these
sections as authorizing the adoption of a definition for (32) interruptible;
(53) San Antonio pool; and (58) Uvalde pool.
Section 1.15(a) of the Act provides broad authority to the Authority to
manage (1) withdrawals from the Aquifer, and (2) points of withdrawals pursuant
to the Act. Section 1.15(b) of the Act prohibits withdrawals from the Aquifer
except pursuant to a prior issued groundwater withdrawal permit. An exception
to this permit requirement is recognized for withdrawals made based on interim
authorization status under §1.17 of the Act, and exempt wells under §1.33
of the Act. In conjunction with §1.08(a) and §1.11(a) of the Act
discussed above, because the Act creates the concept of groundwater withdrawals
by permit, it is necessary to give meaning and definition to this concept
as created in the Act, the Authority interprets these sections as authorizing
the adoption of a definition for (27) groundwater withdrawal permit; (35)
monitoring well permit; and (61) well construction permit.
Section 1.16(a) of the Act provides for existing users to file declarations
of historical use (otherwise known as applications for initial regular permits)
for withdrawals made during the statutorily established historical period.
Section 1.16(d) of the Act provides some of the elements that, if proven by
convincing evidence, would require the Board to grant an application for an
initial regular permit. Section 1.15(c) of the Act authorizes the Authority
to issue, among other things, regular permits. Section 1.17(a) of the Act
authorizing persons owning wells meeting certain criteria to continue to make
withdrawals from the well even though they have yet not been issued an initial
regular permit. In conjunction with §1.08(a) and §1.11(a) of the
Act discussed above, because the Act employs this term and it is necessary
to give meaning and definition to this term as used in the Act, the Authority
interprets these sections as authorizing the adoption of a definition for
(17) declaration of historical use (or declaration); (30) initial regular
permit; and (28) historical period.
Section 1.18(a) of the Act authorizes the Authority to issue additional
regular permits if there remains water available for permitting after the
issuance of all initial regular permits. The section also provides that groundwater
withdrawals pursuant to additional regular permits are subject to maximum
permitted groundwater withdrawal amounts set out in §1.14(b) and (c)
of the Act. Section 1.18(b) of the Act prohibits the Authority from considering
or taking action on an application for an additional regular permit until
the Authority has taken final action on all pending applications for initial
regular permits. Section 1.15(c) of the Act authorizes the Authority to issue,
among other things, regular permits. In conjunction with §1.08(a) and §1.11(a)
of the Act discussed above, because the Act employs this term and it is necessary
to give meaning and definition to this term as used in the Act, the Authority
interprets these sections as authorizing the adoption of a definition for
(2) additional regular permit.
Section 1.19(a) of the Act authorizes the Authority to issue term permits
for groundwater withdrawals from the Aquifer for up to 10 years. Section 1.19(b)
of the Act provides for the minimum index well level for the San Antonio Pool
below which term permit withdrawals would be automatically interrupted. Section
1.19(c) of the Act provides for the minimum index well level for the Uvalde
Pool below which term permit withdrawals would be automatically interrupted.
Section 1.15(c) of the Act authorizes the Authority to issue, among other
things, term permits. In conjunction with §1.08(a) and §1.11(a)
of the Act discussed above, because the Act employs this term and it is necessary
to give meaning and definition to this term as used in the Act, the Authority
interprets these sections as authorizing the adoption of a definition for
(57) term permit.
Section 1.20(a) of the Act authorizes the Authority to issue emergency
permits for groundwater withdrawals from the Aquifer not to exceed 30 days
to prevent severe, imminent threats to the public health or safety. Section
1.15(c) of the Act authorizes the Authority to issue, among other things,
emergency permits. In conjunction with §1.08(a) and §1.11(a) of
the Act discussed above, because the Act employs this term and it is necessary
to give meaning and definition to this term as used in the Act, the Authority
interprets these sections as authorizing the adoption of a definition for
(21) emergency permit.
Section 1.29(b) of the Act directs the Authority to assess an aquifer management
fee on aquifer use to finance its administrative and programmatic expenses
authorized under the Act. Section 1.29(e) of the Act provides that in developing
its fees, the Authority may charge different fee rates on a per acre-foot
basis for different types of uses as long as they are equitable between types
of uses. This section also creates a fee differential between agricultural
users and non-agricultural users for aquifer management fees whereby the agricultural
fee may not exceed 20 percent of the aquifer management fees assessed against
non-agricultural users. In addition, this section creates a distinction between
agricultural and non-agricultural users when calculating aquifer use under §1.29(b)
of the Act by providing that aquifer use for agricultural users is the actual
volume of groundwater withdrawn, while for non-agricultural users it is the
face value authorized to be withdrawn in an initial regular permit. In conjunction
with § 1.08(a) and §1.11(a) of the Act discussed above, because
the Act employs this term and it is necessary to give meaning and definition
to this term as used in the Act, the Authority interprets these sections as
authorizing the adoption of a definition for (7) aquifer management fee.
Section 1.31(a) of the Act provides that owners of non-exempt wells are
required to install meters on wells, or, if the meter requirement is waived,
apply alternative measuring methods to calculate the volume of groundwater
withdrawals from the Aquifer. In conjunction with §1.08(a) and §1.11(a)
of the Act discussed above, because the Act employs this term and it is necessary
to give meaning and definition to this term as used in the Act, the Authority
interprets these sections as authorizing the adoption of a definition for
(38) non-exempt well.
Section 1.33(a) of the Act provides that wells qualifying for exempt status
are not required to install a meter on the well. This subsection also provides
some of the criteria for a well to quality for exempt well status. Section
1.33(b) of the Act provides that exempt wells must be registered with the
Authority. Section 1.33(c) of the Act provides additional criteria for a well
to quality for exempt well status. Section 1.16(c) of the Act provides that
owners of exempt wells are not required to file declarations of historical
use in order to continue to make lawful withdrawals from their exempt wells.
In conjunction with §§1.08(a) and 1.11(a) of the Act discussed above,
because the Act employs this term and it is necessary to give meaning and
definition to this term as used in the Act, the Authority interprets these
sections as authorizing the adoption of a definition for (22) exempt well.
Section 1.08(b) of the Act provides that the Authority does not have the
authority to regulate surface water. The Authority interprets the jurisdictional
limitation in §1.08(b) to apply to surface water over which the prior
appropriation doctrine applies and jurisdiction is vested in the Texas Natural
Resource Conservation Commission. Surface water is generally considered to
be "state water." The definition of state water is found in §11.021(a),
Texas Water Code. In conjunction with §1.08(a) and §1.11(a) of the
Act discussed above, because the Act employs this term and it is necessary
to give meaning and definition to this term as used in the Act, the Authority
interprets these sections as authorizing the adoption of a definition for
(56) surface water.
The new section is adopted pursuant to §§1.03, 1.08(a),
1.11(a), (d)(5), (f) and (h), 1.14(d)-(f), 1.15(a)-(c), 1.16(a), (c), and
(d), 1.17(a), 1.18(a) and (b), 1.19(a)-(c), 1.20(a), 1.29(b) and (e), 1.31(a),
1.33(a)-(c), 1.44, and 1.45 of the Act; §§11.021(a) and 36.001(5),
Texas Water Code Annotated; and §2001.004(1), Texas Government Code Annotated.
§702.1.General Definitions.
(a)
In its rules, the Authority employs two types of definitions.
The first type are general definitions that apply to all rules of the Authority.
The second type are specific definitions that apply only to the chapters in
this title in which they are located. The specific definitions applying only
to terms within a particular chapter are set out in that chapter.
(b)
The following words and terms, when used in any rule of
the Authority, shall have the following meanings, unless the context clearly
indicates otherwise:
(1)
Act-The Edwards Aquifer Authority Act, Act of May 30, 1993,
73rd Legislature, Regular Session, Chapter 626, 1993 Texas General Laws 2353,
as amended.
(2)
Additional regular permit-A groundwater withdrawal permit
issued by the Authority pursuant to the Act, § 1.18(a).
(3)
APA-The Administrative Procedures Act, Chapter 2001, Government
Code.
(4)
Applicant-A person who files an application with the Authority.
(5)
Application--A form document required by the Authority
to initiate the process of obtaining the issuance of a permit, registration,
exemption, license or any other Authority approval. A declaration of historical
use is an application for an initial regular permit.
(6)
Aquifer-The Edwards Aquifer, which is that portion of an
arcuate belt of porous, water-bearing, predominately carbonate rocks known
as the Edwards and Associated Limestone in the Balcones Fault Zone extending
from west to east to northeast from the hydrologic division near Brackettville
in Kinney County that separates underground flow toward the Comal Springs
and San Marcos Springs from underground flow to the Rio Grande Basin, through
Uvalde, Medina, Atascosa, Bexar, Guadalupe and Comal counties, and in Hays
County south of the hydrologic division near Kyle that separates flow toward
the San Marcos River from flow to the Colorado River Basin.
(7)
Aquifer management fees-The fee authorized to be assessed
by the Authority based:
(A)
on aquifer use under the Act, § 1.29(b) and (e); or
(B)
taxes in lieu of user fees to be paid by groundwater users
in a groundwater conservation district governed by Chapter 36, Water Code,
pursuant to a contract between the Authority and the water district under
the Act, § 1.29(b).
(8)
Aquifer recharge and storage permit - A permit issued by
the Authority for the recharge of the aquifer.
(9)
Augmentation-An act or process to increase the amount of
water available for use or springflow.
(10)
Authority--The Edwards Aquifer Authority.
(11)
Authority offices-The Authority's principal offices identified
in § 701.5 of this title (relating to Business Office and Mailing Address
of the Authority).
(12)
Beneficial use--The use of the amount of water that is
economically necessary for a purpose authorized by law when reasonable intelligence
and reasonable diligence are used in applying the water to that purpose.
(13)
Board-The board of directors of the Authority.
(14)
Commission-The Texas Natural Resource Conservation Commission.
(15)
Conservation-Any measure that would sustain or enhance
water supply.
(16)
Declarant-An existing user who files a declaration of
historical use.
(17)
Declaration of historical use (or declaration)-The form
document required by the Authority to be filed pursuant to the Act, §
1.16(a). A declaration is an application for an initial regular permit.
(18)
Diversion-The removal of state water from a watercourse
or impoundment.
(19)
Docket clerk-The docket clerk of the Authority as designated
by the general manager.
(20)
Domestic or livestock use-Use of water for:
(A)
drinking, washing, or culinary purposes;
(B)
irrigation of a family garden or orchard the produce of
which is for household consumption only, or
(C)
watering of animals.
(21)
Emergency permit-A groundwater withdrawal permit issued
by the Authority pursuant to the Act, § 1.20(a).
(22)
Exempt well-A well that produces 25,000 gallons of water
a day or less for domestic or livestock use that is not within or serving
a subdivision requiring platting.
(23)
Existing well-A well drilled before June 1, 1993.
(24)
General counsel-The general counsel of the authority hired
by the board.
(25)
General manager-The executive director hired by the board
to be the chief administrator of the Authority.
(26)
Groundwater-Water percolating below the surface of the
earth.
(27)
Groundwater withdrawal permit--A permit issued by the
authority pursuant to § 1.15(b) of the Act authorizing the withdrawal
of groundwater from the aquifer.
(28)
Historical period-The period from June 1, 1972, through
May 31, 1993, inclusive.
(29)
Industrial use-The use of water for, or in connection
with, commercial or industrial activities, including manufacturing, bottling;
brewing; food processing; scientific research and technology; recycling; production
of concrete, asphalt, and cement; commercial uses of water for tourism, entertainment,
and hotel or motel lodging; generation of power other than hydroelectric;
and other business activities.
(30)
Initial regular permit-A groundwater withdrawal permit
issued by the Authority pursuant to the Act, § 1.16(d).
(31)
Irrigation use-The use of water for the irrigation of
pastures and commercial crops, including orchards.
(32)
Interruptible-When referring to a groundwater withdrawal
permit, the conditioning of the right to withdraw groundwater from the aquifer
that makes the right subject to complete cessation, temporary curtailment,
or reduction of the amount of groundwater that may be withdrawn from the aquifer
based upon the measurement of a water level at an index well, or as otherwise
required by Chapter 715 of this title (relating to Comprehensive Water Management
Plan Implementation).
(33)
Judge-A SOAH administrative law judge.
(34)
Livestock-Animals, beasts or poultry collected or raised
for pleasure, recreational use, or commercial use.
(35)
Monitoring well permit-A permit issued by the Authority
pursuant to § 1.15(b) of the Act for the measuring of the water quality
of the aquifer or water level of the aquifer.
(36)
Municipal use-The use of water within or outside of a
municipality and its environs whether supplied by a person, privately owned
utility, political subdivision, or other entity, including the use of treated
effluent for certain purposes specified as follows. The term includes:
(A)
the use of water for domestic use, the watering of lawns
and family gardens, fighting fires, sprinkling streets, flushing sewers and
drains, water parks and parkways, and recreation, including public and private
swimming pools;
(B)
the use of water in industrial and commercial enterprises
supplied by a municipal distribution system without special construction to
meet its demands; and
(C)
the application of treated effluent on land under a permit
issued under Chapter 26, Water Code, if:
(i)
the primary purpose of the application is the treatment
or necessary disposal of the effluent;
(ii)
the application site is a park, parkway, golf course,
or other landscaped area within the authority's boundaries; or
(iii)
the effluent applied to the site is generated within
an area for which the commission has adopted a rule that prohibits the discharge
of the effluent.
(37)
New well-A well drilled on or after June 1, 1993.
(38)
Non-exempt well-Any well, the groundwater withdrawals
from which, are required to be authorized by interim authorization status
or a groundwater withdrawal permit.
(39)
Order-Any written directive of the board carrying out
the powers and duties of the Authority under Article 1 of the Act.
(40)
Party-Each person admitted as a party in a contested case
hearing.
(41)
Permit-The written document issued by the Authority approving
an application for a permit.
(42)
Permittee-A person to whom the Authority has issued a
permit.
(43)
Person-An individual, corporation, organization, government
or governmental subdivision or agency, business trust, estate, trust, partnership,
association and any other legal entity.
(44)
Petitioner--A person who files a petition with the authority.
(45)
Pleadings-Any document filed by parties in a contested
case hearing.
(46)
Pollution-The alteration or contamination of the physical,
thermal, chemical, or biological quality of any water in the state, or the
contamination of any water in the state, that renders the water harmful, detrimental,
or injurious to humans, animal life, vegetation, property, or public health,
safety, or welfare or that impairs the usefulness of the public enjoyment
of the water for any lawful or reasonable purpose.
(47)
Protestant-Any person opposing, in whole or in part, an
application.
(48)
Recharge-Increasing the supply of water to the aquifer
by naturally occurring channels or artificial means.
(49)
Recharge recovery permit-A permit issued by the Authority
pursuant to § 1.15(b) for withdrawal of groundwater stored in the aquifer
pursuant to an aquifer recharge and storage permit.
(50)
Registrant-A person who files a registration with the
Authority.
(51)
Registration-The document required to be filed pursuant
to the Act, § 1.33(b) or as may otherwise be required by the rules of
the Authority.
(52)
Reuse-Authorized use for one or more beneficial purposes
of use of water that remains unconsumed after the water is used for the original
purpose of use and before the water is discharged or otherwise allowed to
flow into a watercourse, lake, or other body of state-owned water.
(53)
San Antonio Pool-That part of the aquifer underlying the
boundaries of the Authority, other than Uvalde County.
(54)
SOAH-The State Office of Administrative Hearings.
(55)
Surface Water-Has the meaning of "state water" as defined
by § 11.021, Water Code.
(56)
Term permit-A groundwater withdrawal permit issued by
the Authority pursuant to the Act, § 1.19(a).
(57)
Underground water-Has the meaning of "groundwater" as
defined by § 36.001(5), Water Code, as incorporated in paragraph (26)
of this subsection.
(58)
Uvalde Pool-That part of the Aquifer underlying the boundaries
of the Authority and Uvalde County.
(59)
Water supply facility-Any infrastructure designed for
the supply of raw or potable water for any beneficial use, including a dam,
reservoir, treatment facility, transmission facility, or recharge project.
(60)
Well-A bored, drilled, or driven shaft or an artificial
opening, in the ground made by digging, jetting, or some other method where
the depth of the shaft or opening is greater than its largest surface dimension,
but does not include a surface pit, surface excavation, or natural depression.
(61)
Well construction permit-A permit issued by the Authority
pursuant to § 1.15(b) of the Act for the construction or modification
of wells or other works designed for the withdrawal of water from the aquifer.
(62)
Well J-17-State well number AY-68-37-203 located in Bexar
County.
(63)
Well J-27-State well number YP-69-50-302 located in Uvalde
County.
(64)
Withdrawal-An act or a failure to act that results in
taking water from the aquifer by or through man-made facilities, including
pumping, withdrawing or diverting groundwater.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on October 18, 2000.
TRD-200007341
Gregory M. Ellis
General Manager
Edwards Aquifer Authority
Effective date: November 7, 2000
Proposal publication date: August 11, 2000
For further information, please call: (210) 222-2204
31 TAC §705.1, §705.3
I. INTRODUCTION.
The Edwards Aquifer Authority ("Authority") adopts new 31 TAC, §705.1
and §705.3, consisting of rules relating to the jurisdiction of the Authority,
without changes to the proposed text as published in the August 11, 2000 issue
of the
Texas Register
(25 TexReg 7500-7502).
The sections will not be republished.
These rules have been written to clearly define the Authority's jurisdiction.
II. SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES.
The Authority is required by the Edwards Aquifer Authority Act (Act of
May 30, 1993, 73rd Legislature, Regular Session, Chapter 626, 1993 Texas General
Laws 2350, 2358-59, as amended by Act of May 29, 1995, 74th Legislature, Regular
Session, Chapter 261, 1995 Texas General Laws 2505, Act of May 16, 1995, 74th
Legislature, Regular Session, Chapter 524, 1995 Texas General Laws 3280, and
Act of May 6, 1999, 76th Legislature, Regular Session, Chapter 163, 1999 Texas
General Laws 634 ("Act")), to implement Edwards Aquifer management programs
relating to, among other things, fees, exempt wells, interim authorization,
permitted wells, permit conditions, groundwater available for permitting,
proportional adjustment, equal percentage reduction, abandonment and cancellation
of permits, aquifer recharge, storage and recovery, additional groundwater
supplies available for permitting, transfers, meters and alternative measuring
methods, groundwater trust, water quality, and comprehensive water management
plan implementation.
The Authority interprets these provisions as requiring the establishment
of rules relating to the Authority's jurisdiction. Specifically, § 1.08(b)
expressly provides that the jurisdiction of the Authority extends to underground
water within or withdrawn from the Aquifer, but not to surface water. Together,
these sections clearly demonstrate a rational connection between the factual
basis for the rule and the rule as adopted.
III. REGULATORY IMPACT ANALYSIS OF MAJOR ENVIRONMENTAL RULES.
Section 2001.0225 of the Texas Government Code requires an agency to perform,
under certain circumstances, a regulatory analysis of "major environmental
rules." The Authority has determined that none of the rules are "major environmental
rules" as that term is defined by §2001.0225(g)(3) of the Texas Government
Code. The basis for this determination is that the rules do not have the specific
intent to "protect the environment" or "reduce risks to human health from
environmental exposure." The rules merely state the Authority's understanding
concerning its jurisdiction. Their specific intent is to state and clarify
the extent of the Authority's power. These rules do not contain any environmental
or human health standards that impose requirements on the regulated community.
For these reasons, we find that none of the rules are "major environmental
rules" and that, therefore, no further analysis is required by § 2001.0225
of the Texas Government Code.
IV. TEXAS PRIVATE REAL PROPERTY RIGHTS PRESERVATION ACT.
Chapter 2007 of the Texas Government Code, also known as the "Texas Private
Real Property Rights Preservation Act," ("TPRPRA") requires governmental entities,
under certain circumstances, to prepare a takings impact assessment ("TIA")
in connection with certain covered categories of proposed governmental actions.
Based on the following reasons, the Authority has determined that it need
not prepare a TIA in connection with the adoption of these rules. First, the
Authority has made a "categorical determination" that rules that provide general
information only do not affect private real property. These rules provide
general information only; that is, they provide general statements concerning
the nature of Authority's jurisdiction. Second, the Authority's action in
adopting these rules is an action that is reasonably taken to fulfill an obligation
mandated by state law and is thus excluded from TPRPRA under §2007.003(b)(4)
of the Texas Government Code. See Act § 1.08(a), 1.08(b), 1.11(a). It
was held, in
Edwards Aquifer Authority v. Bragg,
21 S.W.3d. 375 (Texas App. - San Antonio 2000, pet. filed), that the
Act expressly mandates the adoption of substantive and procedural permitting
rules and that such actions are therefore excepted from TPRPRA. Third, it
is the position of the Authority that all valid actions of the Authority are
excluded from TPRPRA under §2007.003(b)(11)(C) of the Texas Government
Code as actions of a political subdivision taken under its statutory authority
to prevent waste or protect the rights of owners of interest in groundwater.
Accordingly, a TIA need not be prepared in connection with the adoption of
these rules.
V. SUMMARY OF PUBLIC COMMENTS.
Five public hearings were held on these and other rules proposed by the
Authority on: Wednesday, August 9, 2000 at 6:00 p.m. at the Conference Center
of the Edwards Aquifer Authority, 1615 N. St. Mary's Street, San Antonio,
Texas; Tuesday, August 15, 2000 at 6:00 p.m. at the New Braunfels Civic Center,
380 S. Seguin Avenue, New Braunfels, Texas; August 17, 2000 at 6:00 p.m. at
St. Paul's Lutheran Church, 1303 Avenue M, Hondo, Texas; Tuesday, August 22,
2000 at 6:00 p.m. at the Sgt. Willie De Leon Civic Center, 300 E. Main Street
in Uvalde, Texas; and Thursday August 24, 2000 at the San Marcos Activities
Center, 501 E. Hopkins, San Marcos, Texas. At those hearings, no public comments
were received on proposed §705.1 or §705.3. Further, no written
comments were submitted to the Authority on proposed §705.1 or §705.3.
VI. CONCISE RESTATEMENT OF THE STATUTORY PROVISIONS UNDER WHICH THE RULES
ARE ADOPTED.
Section 1.08(a) of the Act provides that the Authority "has all of the
powers, rights, and privileges necessary to manage, conserve, preserve, and
protect the aquifer and to increase the recharge of, and prevent the waste
or pollution of water in, the aquifer." This section provides the Authority
with broad and general powers to take actions as necessary to manage, conserve,
preserve, and protect the aquifer and to increase the recharge of, and prevent
the waste or pollution of water in, the aquifer.
Section 1.08(b) of the Act provides that the Authority's "powers regarding
underground water apply only to underground water within or withdrawn from
the aquifer." The term "aquifer" is defined by § 1.03(1) of the Act as
"the Edwards Aquifer, which is that portion of an arcuate belt of porous,
water-bearing, predominately carbonate rocks known as the Edwards and Associated
Limestones in the Balcones Fault Zone extending from west to east to northeast
from the hydrologic division near Brackettville in Kinney County that separates
underground flow toward the Comal Springs and San Marcos Springs from underground
flow to the Rio Grande Basin, through Uvalde, Medina, Atascosa, Bexar, Guadalupe,
and Comal counties, and in Hays County south of the hydrologic division near
Kyle that separates flow toward the San Marcos River from flow to the Colorado
River Basin."
The term "underground water" is located in § 1.03(20) of the Act and
is assigned the meaning that this term has in § 52.001, Texas Water Code.
Since the passage of the Act, chapter 52, Texas Water Code, has been repealed
and recodified as chapter 36, Texas Water Code. See Act of May 29, 1995, 74th
Legislature, Regular Session, Chapter 933, sec. 2, 6, 1995 Texas General Laws
4673. In so doing, the legislature abandoned the use of the term "underground
water" in favor of the more modern term "groundwater" found at § 36.001(5),
Texas Water Code, and is defined as "water percolating below the surface of
the earth." Under § 1.08(a) of the Act, chapter 36, Texas Water Code
(which replaced chapter 52) is now applicable to the Authority to the extent
that it does not conflict with the Act. The Act provides no other guidance
relative to the definition of groundwater or underground water. Accordingly,
the Authority can identify no conflict within the Act that would prevent adopting
the statutory definition of groundwater found in chapter 36, Texas Water Code.
Section 1.08(b) also states that "this subsection is not intended to allow
the authority to regulate surface water." The Authority interprets the jurisdictional
limitation in § 1.08(b) to apply to surface water over which the prior
appropriation doctrine applies and jurisdiction is vested in the Texas Natural
Resource Conservation Commission. Surface water is generally considered to
be "state water." The definition of "state water" is found in § 11.021(a),
Texas Water Code.
Section 1.11(a) of the Act provides that the Board of Directors ("Board")
of the Authority "shall adopt rules necessary to carry out the authority's
powers and duties under (Article 1 of the Act), including rules governing
procedures of the board and the authority." This section directs the Board
to adopt rules as necessary to implement the various substantive programs
set forth in the Act.
The new sections are adopted pursuant to §§1.08(a),
1.08(b) and 1.11(a) of the Act. The Authority interprets these sections as
requiring the Authority to adopt rules establishing the jurisdiction of the
Authority.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on October 18, 2000
TRD-200007342
Gregory M. Ellis
General Manager
Edwards Aquifer Authority
Effective date: November 7, 2000
Proposal publication date: August 11, 2000
For further information, please call: (210) 222-2204
I. INTRODUCTION.
The Edwards Aquifer Authority ("Authority") adopts new 31 TAC, §§707.1,
707.101-707.106, 707.201-707.208, 707.301-707.315, 707.401-707.417, 707.422,
707.424, 707.426, 707.428, 707.501-707.519, 707.601-707.626, consisting of
rules governing procedure before the Authority. Sections 707.201, 707.203,
707.303, 707.304, 707.309, 707.311, 707.312, 707.405, 707.411-707.416, 707.428,
707.504, 707.510, 707.515, 707.601, 707.604, and 707.605 are adopted with
changes to the proposed text as published in the August 11, 2000, issue of
the
Texas Register
(25 TexReg 7500-7533).
Sections 707.1, 707.101, 707.102, 707.103, 707.104, 707.105, 707.106, 707.202,
707.205, 707.206, 707.207, 707.208, 707.301, 707.302, 707.305, 707.306, 707.307,
707.308, 707.310, 707.313, 707.314, 707.315, 707.401, 707.402, 707.403, 707.404,
707.406, 707.407, 707.408, 707.409, 707.410, 707.417, 707.422, 707.424, 707.426,
707.501, 707.502, 707.503, 707.505, 707.506, 707.507, 707.508, 707.509, 707.511,
707.512, 707.513, 707.514, 707.516, 707.517, 707.518, 707.519, 707.602, 707.603,
707.606, 707.607, 707.608, 707.609, 707.610, 707.611, 707.612, 707.613, 707.614,
707.615, 707.616, 707.617, 707.618, 707.619, 707.620, 707.621, 707.622, 707.623,
707.624, 707.625, and 707.626 are adopted without changes to the proposed
text and will not be republished. Section 707.204 is being withdrawn from
consideration and therefore will not be republished.
These rules have been written to provide the public and Authority staff
with procedures necessary for the effective implementation of many of the
Authority's substantive programs including permitting, well registration,
exempt wells, meters, transfers of groundwater withdrawal rights, agricultural
conservation loans, monitoring wells, and cancellation and abandonment of
permitted rights. These rules also establish basic requirements governing
the filing of documents with the Authority and the service of such documents
on other persons, and for the conduct of meetings of the Authority's Board
of Directors. Finally, these rules establish procedures governing contested
case hearings on certain applications.
II. SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES.
The Authority is required by the Edwards Aquifer Authority Act (Act of
May 30, 1993, 73rd Legislature, Regular Session, Chapter 626, 1993 Texas General
Laws 2350, 2358-59, as amended by Act of May 29, 1995, 74th Legislature, Regular
Session, Chapter 261, 1995 Texas General Laws 2505, Act of May 16, 1995, 74th
Legislature, Regular Session, Chapter 524, 1995 Texas General Laws 3280, and
Act of May 6, 1999, 76th Legislature, Regular Session, Chapter 163, 1999 Texas
General Laws 634) ("Act") to implement Edwards Aquifer management programs
relating to, among other things, permitting, well registration, exempt wells,
meters, transfers of groundwater withdrawal rights, agricultural conservation
loans, monitoring wells, and cancellation and abandonment of permitted rights.
In order to implement these programs, the Authority must establish rules of
procedure that will allow for the fair, consistent, and efficient administration
of these and other programs. Moreover, the Authority is required to establish
rules governing the filing of documents with the Authority, the service of
documents, and the conduct of meetings of the Authority's Board of Directors.
Finally, the Authority is required to establish rules governing contested
case hearings on certain applications filed with the Authority.
Subchapter A consists solely of §707.1. Section 707.1 provides uniform
definitions to be used throughout the rest of Chapter 707. It clarifies the
meaning of certain terms used in Chapter 707, provides useful short-hand to
reduce the amount of cumbersome regulatory language, and generally allows
for a more efficient understanding and operation of the chapter.
Subchapter B consists of six sections (§§707.101-.106) and contains
general provisions related to Authority procedures. Section 707.101 states
the purpose of Chapter 707, explaining that Chapter 707 provides the procedures
to be followed in Authority proceedings. Section 707.102 provides general
standards regarding the computation of time when a period of time is prescribed
or allowed under the Authority's rules or by applicable statute. This section
adds clarity and consistency to Authority practice.
Section 707.103 provides general rules to be followed by persons when filing
documents with the Authority. It requires that all such documents be submitted
to the docket clerk of the Authority, that any docket or application number
appear on the first page, and that such documents be filed by mail or by hand
delivery. It also states the circumstances under which documents may be filed
by facsimile. It provides that if a person files a document by facsimile,
he or she must file an additional copy or copies with the docket clerk by
mail or hand delivery within three days. This section also includes a requirement
that "the Authority may waive one or more of the requirements of this section
or impose additional filing requirements" §707.103(h). The purpose of
this provision is to allow the Authority flexibility in the filing of documents.
It may be appropriate, in some instances, for the Authority to waive certain
requirements. In other instances, it may be appropriate to impose additional
filing requirements. Where the Authority imposes additional filing requirements
on a class of applicants or registrants, it has every intention of providing
sufficient notice to persons who would be required to comply with that additional
requirement. The Authority has no intention of imposing additional filing
requirements with insufficient notice.
Section 707.104 provides general requirements to be followed by persons
when serving documents under Chapter 707. It requires service either in person,
by courier, United States mail, or facsimile. Section 707.104 also includes
general rules concerning when service by mail and by facsimile is considered
complete. It provides that service to a person by facsimile must be followed
by service of an extra copy in person, by mail, or carrier-receipted delivery
within one day. It also contains a certificate of service requirement and
provides an extra three days when a person has a right or is required to do
some act within a prescribed period after a document is served on that person
by mail or facsimile.
The difference between the number of days following
filing
by facsimile in which a "hard copy" copy must be filed (§707.103(c))
(three) versus the number of days following
service
by facsimile in which a "hard copy" must be served (§707.104(b))
(one) is based on the fact that the rule regarding service of documents contains
a "mailbox rule" while the rule regarding the
filing
of documents contain no "mailbox rule." Specifically, §707.104(b)
states that "service by mail shall be complete upon deposit of the document,
enclosed in a postage-paid properly addressed wrapper, in a post office of
official depository under the case and custody of the United States Postal
Service." Accordingly, when §707.103(c) requires a party filing by facsimile
to file a copy of the document by mail within three days, the docket clerk
of the Authority must actually receive the document within three days. On
the other hand, since service by mail is complete upon deposit with the U.S.
Postal Service, a party serving a document by facsimile may simply deposit
a copy of the document in the mail on the day following the day that service
by facsimile is made.
Section 707.105 states requirements for applicants, registrants and permittees
regarding changes to addresses or telephone numbers. The Authority believes
that these requirements are needed for the Authority to adequately maintain
information necessary for its various permitting, registration and other programs.
Section 707.106 sets forth general requirements regarding the use of forms
provided by the general manager. The Authority believes that the use of forms
created and furnished by the Authority is necessary for the efficient processing
of various applications and registrations and for the efficient administration
of the Authority's permitting, registration and other programs. The fact that
supplements may be attached as needed allows parties to avoid being constrained
by space limitations on the forms.
Subchapter C consists of eight sections (§§707.201-.208) and
establishes general rules regarding the conduct of meetings of the Board of
Directors of the Authority. The Act provides that the Authority is governed
by its Board of Directors, Act, §1.09. The purpose of subchapter C is
facilitate the efficient conduct of the meetings of that body. It is intended
to help create an environment at Board meetings that is conducive to decision-making
and to orderly public input. This chapter is also intended to impart predictability
and transparency to the decision-making process.
Section 707.201 states requirements regarding the frequency, scheduling,
notice and conduct of board meetings. Section 707.202 relates to the conduct
and decorum at Board meetings, and provides some general rules regarding the
conduct of persons at such meetings. It also pertains to instances in which
persons attending Board meetings have special requests. Section 707.203 pertains
to deadlines to file comments on matters set for discussion at a Board meeting
and it states some general rules regarding such deadlines. Section 707.205
pertains to the signing of orders or resolutions showing actions taken at
Board meetings. It specifies that any such orders or resolutions may be signed
by the chair or by any Board member if he or she did not vote against the
action taken. Section 707.206 relates to audio recording of Board meetings.
It specifies that the assistant to the secretary of the Board shall make audio
recordings of meetings of the Board that are open to the public under the
Texas Open Meetings Act. It also states that audio recordings will be made
of closed sessions, except that no recordings will be made of private consultations
with an attorney. Section 707.207 concerns minutes taken in meetings of the
Board and states some requirements concerning such minutes. Section 707.208
pertains to instances in which an evidentiary hearing is held before the Board.
It specifies that in such cases, the procedures of subchapter G of Chapter
707, 31 TAC, shall apply.
Subchapter D consists of fifteen sections (§§707.301-.315) and
states requirements to file various applications and registrations in order
to conduct certain activities related to the withdrawal of water from the
Edwards Aquifer. These sections seek to establish clear requirements regarding
which activities require the filing of an application or a registration with
the Authority.
Section 707.301 states that subchapter D applies to any application or
registration filed with the Authority. Section 707.302 states the basic requirement
that any person who wishes to obtain a permit, authorization, or other approval
from the Authority must submit a written application to the Authority on a
form provided by the general manager. The Authority believes that the use
of forms created and furnished by the Authority is necessary for the efficient
processing of various applications and registrations and for the efficient
administration of the Authority's permitting, registration and other programs.
Section 707.303 relates to who the Authority considers to be the proper
applicant, registrant, or declarant in situations where a well has one owner.
Many wells in the Edwards Aquifer region are owned by more than one person.
This rule clarifies the responsibility of joint well owners and specifies
that where a well has more than one owner, the owners shall select one among
them to act for and represent the others in the filing the application, registration
or declaration.
Section 707.304 states the general rule that any person seeking to withdraw
groundwater from the Edwards Aquifer must file an application for a groundwater
withdrawal permit. This section essentially reflects a requirement stated
in §1.15(b) of the Act. It also makes clear that no such application
must be filed if the well is exempt from the permit requirement by §1.16(c)
and §1.33 of the Act and §711.20 of the Authority's rules.
Section 707.305 pertains to the requirement to file an application for
a well construction permit and provides that a person seeking to perform one
of the activities mentioned in §711.12(2)-(5) of the Authority's rules
must file such an application. As with §707.304, this section essentially
reflects a requirement stated in §1.15(b) of the Act.
Section 707.306 pertains to the requirement to register a well and provides
that an owner of an existing well or an exempt well must register the well.
It also states that well registrations must be filed no later than 180 days
from the effective date of the Chapter 707 rules. It is through this requirement
that the Authority can keep track of and manage all points of withdrawal of
groundwater from the Edwards Aquifer. Section 1.15(a) of the Act requires
the Authority to manage all withdrawal points from the Edwards Aquifer. Moreover, §1.33(b)
of the Act requires the registration of all exempt wells. This section helps
to implement these statutory requirements.
Section 707.307 concerns the effect of registrations filed before the effective
date of the Chapter 707 rules. It provides that owners of wells that were
registered with the Authority prior to the effective date of these rules need
not file another well registration. This section avoids unnecessary duplication
of work on the part of those regulated by the Authority.
Section 707.308 pertains to the requirement to file an application for
exempt well status. It states that an owner of an existing or proposed well
that the owner believes to be exempt from the requirements to obtain a permit,
and who wishes to withdraw groundwater from that well, must file such an application.
It also provides that an owner of a permitted well who wishes to convert that
well to one with exempt well status must file such an application. This section
helps to implement §1.16(c) and §1.33 of the Act which exempt certain
well owners from permitting and metering requirements. It is through the requirement
stated in this section that the Authority can assess and, where appropriate,
validate, a person's claim that a well is exempt from permitting and metering
requirements under these sections of the Act.
Section 707.309 pertains to the requirement to file an application for
a permit to install or modify a meter. It states that a person seeking to
install a new meter or modify an existing meter must file such an application
with the Authority. It also provides that a person seeking to employ an alternative
measuring method or modify an existing alternative measuring method must file
such an application. Section 707.310 pertains to the requirement to register
a meter. It states that an owner of an existing well equipped with a meter
or alternative measuring method must register the meter or alternative measuring
method. It also requires that meter registrations be filed with the Authority
no later than 180 days from the effective date of the Chapter 707 rules. The
Authority is directed by the Legislature, in §1.11(b) of the Act, to
ensure compliance with metering requirements. Meters are an essential way
that the Authority monitors groundwater withdrawals from the Edwards Aquifer.
Such information is necessary for the implementation of many of the Authority's
statutorily-mandated programs. Information derived from meters is also necessary
to determine compliance with limitations on withdrawal, including permitted
amounts. Information from meters may also be necessary for the assessment
of fees under §1.29 of the Act.
Section 707.311 concerns the requirement to file a declaration of historical
use. It states that for each well from which groundwater from the aquifer
has been withdrawn and placed to beneficial use during the historical period,
a declaration of historical use must have been filed by December 30, 1996.
This section helps to implement §1.16 of the Act. The deadline stated
in this section is required under §1.16(b) of the Act as modified by
the opinion of the Texas Supreme Court in
Barshop
v. Medina County Underground Water District,
925 S.W.2d 618, 628-630
(Tex. 1996). This section also states that an owner of a well that is exempt
from the requirement to obtain a groundwater withdrawal permit is not under
a requirement to file a declaration of historical use. This provision helps
to implement §1.15(b) and §1.33 of the Act.
Section 707.312 pertains to declarations of historical use received before
the effective date of Chapter 707 and provides that such declarations need
not be resubmitted. This provision avoids unnecessary duplication of work
on the part of those seeking initial regular permits from the Authority.
Section 707.313 pertains to the requirement to file an application for
a monitoring well permit and provides that a person seeking to perform one
of the activities mentioned in §711.12(3) of the Authority's rules must
file such an application. Monitoring wells are a potential conduit for contamination
of the aquifer. This requirement allows the Authority to regulate and control
such devices.
Section 707.314 pertains to the requirement to file an application for
an aquifer recharge and storage permit and provides that a person seeking
to perform one of the activities mentioned in §711.12(7) of the Authority's
rules must file such an application.
Section 707.315 pertains to the requirement to file an application for
a recharge recovery permit and provides that any person seeking to perform
one of the activities mentioned in §711.12(8) of the Authority's rules
must file such an application. Under §1.08 of the Act, the Authority
may take actions to increase the recharge of the aquifer. Under §1.11(f)
and §1.44, the Authority may enter into contracts with persons and political
subdivisions to construct or operate a recharge facility. By this section,
the Authority initiates a mechanism to allow it to regulate such activities.
Subchapter E consists of twenty-six sections (§§707.401-.428)
and sets forth, with particularity, the required contents of various applications
and registrations to be filed with the Authority. These sections will put
persons subject to regulation by the Authority on notice as to the Authority's
information requirements.
Essentially, the sections in subchapter E list the information that the
Authority has determined is necessary for its review and processing of various
types of registrations and applications. Section 707.401 lists the contents
of and requirements for all applications and registrations. The remaining
sections in subchapter E each list the required additional contents for particular
types of applications or registrations. In addition to requiring information
necessary for the review and processing of applications and registration,
some of these requirements are intended to help the Authority to obtain information
that the Authority needs in order to effectively manage, conserve and protect
the Aquifer and to implement its statutorily-mandated programs.
The sections of subchapter E set forth informational requirements. They
do not establish the substantive criteria that will be applied to each type
of registration and application. Substantive criteria that apply to each type
of permit or registration are to be found elsewhere in the Authority's rules.
To a large extent, the required contents reflect the substantive criteria
that will be applied to each type of application and registration. However,
oftentimes, they are not an exact match. As noted above, some of the information
may be necessary, not for the review of that application or registration,
but to satisfy other informational needs of the Authority.
Section 707.401 provides general requirements concerning the contents of
and requirements for all applications and registrations filed with the Authority.
It requires that all applications and registrations be typewritten or printed
legibly in ink. It also states that each application and registration shall
include: the full name, post office address, and telephone number of applicant
or registrant; the signature of the applicant or registrant; and an attestation.
The section also states additional requirements pertaining to the name and
signature of the applicant or registrant, depending upon the type of entity.
This section helps to assure that the Authority will be able to process all
applications and registrations and can contact the applicant or registrant.
It also helps to establish clarity with regard to the person responsible for
each application and registration and the statements contained therein.
Section 707.402 states that applicants and registrants are encouraged to
confer with the Authority staff on any questions concerning the preparation
of an application or registration. This section makes it clear that the Authority
does not believe that applicants and registrants are expected to work in isolation
from the Authority. Rather Authority staff is available to persons throughout
the application or registration process.
Section 707.403 pertains to application fees to be charged by the Authority
and requires that a non-refundable application fee of $25 accompany all applications
other than an application for an agricultural conservation loan. The basis
for this fee is found in §1.29(f) of the Act and the $25 amount is necessary
to offset some of the Authority's administrative costs incurred in the processing
of applications. Section 707.403 also requires a non-refundable application
fee of $250 to accompany an application for an agricultural conservation loan.
The basis for this fee is found in §17.896(c) of the Texas Water Code
and Title 31, Texas Administrative Code, §367.44(e). The $250 amount
is to cover administration of the conservation loan program and to establish
and maintain a default reserve account. The amount was established in a loan
agreement between the Authority and the Texas Water Development Board.
Section 707.404 concerns registration fees to be charged by the Authority
and requires that a $10 registration fee accompany all registrations filed
with the Authority. The basis for this fee is found in §1.29(g) of the
Act and the $10 amount is necessary to offset some of the Authority's administrative
costs incurred in the processing of registrations.
Section 707.405 list the required contents for applications for initial
regular permit (that are in addition to the information specified in §707.401).
The Authority is directed by §1.16 of the Act to issue initial regular
permits to certain "existing users" of the Edwards Aquifer groundwater. The
required contents of such applications are: the name and address of the well
owner; the source of groundwater supply; the rate of withdrawal; the method
of withdrawal; and a declaration of historical use. This section also specifies
the required contents of a declaration of historical use. The declaration
must contain: the total amount of water beneficially used during each calendar
year of the historical period; the maximum number of acres irrigated during
any one calendar year of the historical period; the purpose for which the
groundwater was used during each year of the historical period; the amount
of groundwater claimed as the maximum beneficial use during any one calendar
year of the historical period; the number and location of each well owned
by the applicant for which the applicant claims withdrawals during the historical
period; and the place of use of groundwater withdrawn from each well. If the
groundwater was withdrawn or used by a contract user or a prior or former
existing user, the name, address, and telephone number of each contract user
or prior or former existing user must be provided. If the applicant requests
equitable adjustment on the grounds that the applicant's use was affected
by a requirement of or participation in a federal program, then any fact upon
which such a request is made must be stated. If the groundwater is to be sold
on a wholesale or bulk basis, the declaration of historical use must also
contain a description of how it will be sold, transported or transferred and
the name, address, and telephone number of every person to whom it will be
delivered, the location to which it will be delivered, and the purpose for
which it will be used. This information is necessary to allow the Authority
or a party protesting a proposed permit to investigate and verify an applicant's
claims regarding the historical use of a contract user, prior user or former
existing user.
The list of the required contents of an application for an initial regular
permit provided in §707.405 will assist the Authority in obtaining the
information necessary for it to assess a claim to an initial regular permit.
This provision will also help the Authority to obtain other valuable information
needed to manage all points of withdrawal from the Edwards Aquifer and to
accomplish its other various duties to manage, conserve, preserve, and protect
the Aquifer and to prevent waste or pollution of water in the Edwards Aquifer.
Section 707.406 concerns applications for additional regular permits and
lists the required contents for such applications (that are in addition to
the information specified in §707.401). Section 1.18 of the Act allows
the Authority to issue additional regular permits following the issuance of
initial regular permits, to the extent water is available for permitting.
The required contents of an application for such a permit are: the name and
address of the well owner; the source of groundwater supply; the proposed
amount of withdrawal; the proposed purpose of use; the proposed maximum rate
of withdrawal; the proposed method of withdrawal; the proposed place of use;
a legal description of the location of each well; a map showing the location
of each well; a water conservation plan; a water reuse plan; a description
of the meter to be used; a list of all other permits applied for or issued
by the Authority to the applicant; and any other information as may be required
by the general manager. The list of the required contents of an application
for an additional regular permit provided in §707.406 will assist the
Authority in obtaining the information necessary for it to assess a claim
to such a permit.
Section 707.407 concerns applications for term permits and lists the required
contents for such applications (that are in addition to the information specified
in §707.401). Section 1.19 of the Act allows the Authority to issue interruptible
term permits for withdrawal of groundwater. The required contents of applications
for such a permit are: the name and address of the well owner; the source
of groundwater supply; the proposed amount of withdrawal; the proposed purpose
of use; the proposed maximum rate of withdrawal; the proposed method of withdrawal;
the proposed place of use; a legal description of the location of each well;
a map showing the location of each well; a water conservation plan; a water
reuse plan; a description of the meter; a list of all other permits applied
for or issued by the Authority to the applicant; and any other information
as may be required by the general manager. The list of the required contents
of an application for a term permit provided in §707.407 will assist
the Authority in obtaining the information necessary for it to assess a claim
to such a permit.
Section 707.408 concerns applications for emergency permits and lists the
required contents for such applications (that are in addition to the information
specified in §707.401). Section 1.20 of the Act allows the Authority
to issue emergency permits only to prevent the loss of life or to prevent
a severe, imminent threat to public health and safety. The required contents
of an application for such a permit are: the name and address of the well
owner; the source of groundwater supply; the proposed amount of withdrawal;
the proposed purpose of use; the proposed maximum rate of withdrawal; the
proposed method of withdrawal; the proposed place of use; a reasonably clear
description of the location of each well; a list of all other permits applied
for or issued by the Authority to the applicant; the basis for the issuance
of an emergency permit; and any other information as may be required by the
general manager. The list of the required contents of an application for an
emergency permit provided in §707.408 will assist the Authority in obtaining
the information necessary for it to assess a claim to such a permit.
Section 707.409 concerns applications to renew emergency permits. Section
1.20(c) of the Act allows the Authority to renew emergency permits when appropriate.
Under §707.409, such an application must contain the information specified
in §707.408. It also states that such an application must be filed before
the existing emergency permit has expired. The list of the required contents
of an application to renew an emergency permit provided in §707.409 will
assist the Authority in obtaining the information necessary for it to assess
a claim to such a permit.
Section 707.410 concerns well registrations and lists the required contents
for such registrations (that are in addition to the information specified
in §707.401). Section 1.15(a) of the Act requires the Authority to manage
all withdrawal points from the Edwards Aquifer. Moreover, §1.33(b) of
the Act requires the registration of all exempt wells. Taken together, these
provisions allow the Authority to impose a registration requirement on all
wells. The required contents of such a registration are: the name and address
of the well owner; a legal description of the location of the well; a map
showing the location of the well, the three nearest wells within a quarter
mile of the well, and any possible sources of contamination; the purpose of
use; the amount of withdrawal; the maximum rate of withdrawal; the depth of
the well; the size of the pump and pumping method; the date of construction;
a list of all other permits applied for or issued by the Authority to the
applicant; and any other information as may be required by the general manager.
The Authority has developed the list of items required in a well registration
in order to provide the Authority with necessary baseline information. These
required contents will allow the Authority to obtain valuable information
needed to manage all points of withdrawal from the Edwards Aquifer and to
accomplish its other various duties to manage, conserve, preserve, and protect
the Aquifer and to prevent waste or pollution of water in the Edwards Aquifer.
For example, the requirement for registrants to include a map showing, among
other things, any possible sources of contamination is one of the primary
ways in which the Authority is able to gather information on potential sources
of contamination of the aquifer. It is through such well registrations that
the Authority collects information that is vital to the development and implementation
of a variety of its statutorily-mandated programs.
Section 707.411 concerns applications for a well construction permits and
lists the required contents for such applications (that are in addition to
the information specified in §707.401). Section 1.15(b) of the Act directs
the Authority to regulate new well construction through a well construction
permit program. The required contents of an application for such a permit
are: the name and address of the owner of the proposed well; a legal description
of the location of the proposed well; a map showing the location of the proposed
well, the three nearest wells within a quarter mile of the proposed well,
and any possible sources of contamination within 500 feet of the well; the
proposed purpose of use; the amount proposed to be withdrawn; the proposed
maximum rate of withdrawal; the proposed depth of the well; the size of the
pump and pumping method; the approximate date that construction will begin;
the identity of the well drilling contractor; a list of all other permits
applied for or issued by the Authority to the applicant; the claimed legal
basis under which groundwater will be withdrawn; and any other information
as may be required by the general manager. The list of the required contents
of an application for a well construction permit provided in §707.411
will assist the Authority in obtaining the information necessary for it to
assess a person's right to construct a well. This provision will also help
the Authority to obtain other valuable information needed to manage all points
of withdrawal from the Edwards Aquifer and to accomplish its other various
duties to manage, conserve, preserve, and protect the Aquifer and to prevent
waste or pollution of water in the Edwards Aquifer.
Section 707.412 concerns meter registrations and lists the required contents
for such registrations (that are in addition to the information specified
in §707.401). The Authority is directed by the Legislature, in §1.11(b)
of the Act, to ensure compliance with metering requirements. The required
contents for meter registrations are: the name and address of the well owner;
a legal description of the location of the well on which the meter is located;
a map showing the location of the well; whether or not the well is an exempt
well or a permitted well; the purpose of use of the water withdrawn from the
well; a description of the meter; the date that the meter was installed; and
any other information as may be required by the general manager. In addition,
the rule lists the specific elements to be included in the description of
the meter. It is through the required contents of meter registrations and
through meters that the Authority collects information that allows it to monitor
the withdrawal of groundwater from the aquifer as well as compliance with
substantive meter requirements, withdrawal limitations derived from the Act,
the Authority's rules, or stated in a groundwater withdrawal permit, and to
assess certain fees based on usage.
Section 707.413 concerns applications for a permit to install or modify
a meter and lists the required contents for such applications (that are in
addition to the information specified in §707.401). The Authority is
directed by the Legislature, in §1.11(b) of the Act, to ensure compliance
with metering requirements. The required contents of such applications are:
the name and address of the owner of the well on which the meter is proposed
to be installed; a legal description of the location of the well; a map showing
the location of the well; whether or not the well is an exempt well or a permitted
well; the purpose of use of the water withdrawn from the well; a description
of the meter; and any other information as may be required by the general
manager. In addition, the rule lists the specific elements to be included
in the description of the meter. It is through the required contents of this
application and the meters themselves that the Authority collects information
that allows it to monitor the withdrawal of groundwater from the aquifer as
well as compliance with substantive meter requirements, withdrawal limitations
derived from the Act, the Authority's rules, or stated in a groundwater withdrawal
permit, and to assess certain fees based on usage.
Section 707.414 concerns applications to transfer interim authorization
status and to amend an application for an initial regular permit and lists
the required contents for such applications (that are in addition to the information
specified in §707.401). The required contents of such applications are:
the names and addresses of the person who seeks to transfer his or her interim
status and of the person to whom that status is proposed to be transferred;
legal descriptions of the locations of the two wells; the purpose of use for
the well that has current interim authorization status and the proposed purpose
of use for the well to which the transfer is proposed; the amount of groundwater
proposed to be withdrawn at the well to which the transfer is proposed; the
place of use of the water withdrawn from the well under interim status and
the proposed place of use for the water withdrawn from the well to which the
transfer is proposed; the period of time for which the transfer is proposed;
a copy of the transfer agreement; the price per acre-foot or other consideration;
and any other information as may be required by the general manager.
Section 707.415 concerns applications to transfer and amend a permit and
lists the required contents for such applications (that are in addition to
the information specified in §707.401). Those required contents of such
applications are: the names and addresses of the person who seeks to transfer
his or her permitted rights and person to whom those rights are proposed to
be transferred; legal descriptions of the locations of the two wells; the
purpose of use for the currently permitted well and the proposed purpose of
use for the well to which the transfer is proposed; the amount of groundwater
proposed to be withdrawn at the well to which the transfer is proposed; the
place of use of the water withdrawn from the permitted well and the proposed
place of use for the water withdrawn from the well to which the transfer is
proposed; the period of time for which the transfer is proposed; a copy of
the transfer agreement; the price per acre-foot or other consideration; and
any other information as may be required by the general manager.
Section 1.34 of the Act governs the ability of permit applicants or permit
holders to transfer their rights. However, only certain types of transfers
are allowed by §1.34. It is through the required contents of an application
to transfer interim authorization status and to amend an application for an
initial regular permit (§707.414) or an application to transfer and amend
a permit (§707.415) that the Authority can assess whether a particular
proposed transfer is allowed and approve or disapprove the proposed transfer.
With particular reference to the requirement that such applications include
the price per acre-foot for the water right purchased, such information is
of great value to the Authority. Specifically, the Authority may be required
to pay market prices for the purchase, proportional adjustment, or "buy down"
of water rights. The Authority must have the means to determine the market
prices of groundwater withdrawal rights within the Edwards Aquifer region.
Requiring the inclusion of prices in applications allows the Authority to
develop such information. However, the Authority realizes that some transfers
may not involve a true price (e.g., a gift) and will therefore allow an application
for a transfer of water rights to indicate other consideration given, in appropriate
circumstances.
Section 707.416 concerns applications for exempt well status and lists
the required contents for such applications (that are in addition to the information
specified in §707.401). Sections 1.16(c) and 1.33 of the Act exempt certain
well owners from permitting and metering requirements. The required contents
of such applications are: the name and address of the owner of the well (or
proposed well); a legal description of the location of the well; a map showing
the location of each well; the purpose of use; the maximum amount of withdrawal
per day; the maximum rate of withdrawal; the depth of the well; the size of
the pump and pumping method; the approximate date of well construction; a
list of all other permits applied for or issued by the Authority to the applicant;
a statement as to whether the well is within a subdivision requiring platting;
a statement as to whether the well serves a subdivision requiring platting;
and any other information as may be required by the general manager. The list
of the required contents of an application for exempt well status provided
in §707.416 will assist the Authority in obtaining the information necessary
for it to assess a person's claim of exemption from permitting and metering
requirements.
Section 707.417 pertains to applications for well monitoring permits and
lists the required contents for such applications (that are in addition to
the information specified in §707.401). Those required contents are:
the name and address of the well owner; a legal description of the location
of the well; a map showing the location of the well; a statement of the purpose
of the monitoring well; a description of the method to be used to measure
water depth or quality; the amount of water to be withdrawn per annum; the
depth of the well; and any other information as may be required by the general
manager. This provision will help the Authority regulate and keep track monitoring
wells which are potential conduits of contamination of the aquifer and will
thus help the Authority to prevent pollution of water in the aquifer.
Section 707.422 pertains to applications for agricultural conservation
loans and lists the required contents for such applications (that are in addition
to the information specified in §707.401). Section 1.11(d)(1) of the
Act empowers the Authority to issue and administer grants, loans, or other
financial assistance to water users for water conservation and water reuse.
Section 1.24(c) of the Act allows the Authority to issue grants or make loans
to finance the purchase or installation of equipment or facilities for water
conservation. The required contents of such applications are: the name and
address of the well owner; the tax identification or social security number
of the applicant; a description of the intended use of the loan proceeds;
a description of any item to be purchased; a legal description of the real
property to be affected; any Authority permit application number; credit references;
any invoice of items to be purchased with loan proceeds; if, for refinancing,
a statement of the date that the equipment was purchased; a statement the
applicant's consent and compliance meeting certain requirements; certain specified
financial records; documents verifying the organization, existence and authority
of the applicant; and any other information that may be required by the general
manager. The list of the required contents of an application for an agricultural
conservation loan provided in §707.422 will assist the Authority in obtaining
the information necessary to assess whether a person is eligible for a agricultural
conservation loan, whether the Authority can adequately protect its interests
if it extends such a loan, and whether to extend such a loan.
Section 707.424 pertains to applications for a declaration of abandonment
of a groundwater withdrawal permit and lists the required contents for such
applications (that are in addition to the information specified in §707.401).
Section 1.16(g) provides that an initial regular permit remains in effect
until the permit is abandoned. The required contents of an application for
declaration of abandonment of a groundwater withdrawal permit are: the name
and address of the well owner; a description of the facts demonstrating non-use;
a description of facts showing an intent to abandon; and any other information
that may be required by the general manager. The list of the required contents
provided in §707.424 will assist the Authority in obtaining the information
necessary for it to determine whether a groundwater withdrawal permit should
be abandoned.
Section 707.426 pertains to applications to cancel a groundwater withdrawal
permit and lists the required contents for such applications (that are in
addition to the information specified in §707.401). Section 1.16(g) provides
that an initial regular permit remains in effect until the permit is cancelled.
The required contents of an application to cancel a groundwater withdrawal
permit are: the name and address of the well owner; a description of the facts
demonstrating non-use; and any other information that may be required by the
general manager. The list of the required contents provided in §707.426
will assist the Authority in obtaining the information necessary for it to
determine whether a groundwater withdrawal permit should be cancelled.
Section 707.428 pertains to applications to convert base irrigation groundwater
and lists the required contents for such applications (that are in addition
to the information specified in §707.401). Section 1.34(c) of the Act
places limits on the transfer of a portion of a permit holder's groundwater
withdrawal rights where such rights are based on irrigation use. However,
under circumstances described in Chapter 711, subchapter L, of the Authority's
rules, the Authority has determined that such limitations can be removed through
the "conversion of base irrigation groundwater." The required contents of
an application to convert base irrigation groundwater are: the name and address
of the well owner; and, if the application is based in physical impossibility,
a description of all facts demonstrating physical impossibility. If the application
is based on conservation, additional contents are required. The list of the
required contents provided in §707.428 will assist the Authority in obtaining
the information necessary for it to assess whether a permit holder should
be allowed to convert base irrigation groundwater and thus remove the limitations
on transfer.
Generally speaking, many of the sections listing the required contents
of types of applications and registrations include a provision requiring:
"any other information that the general manager may require." (See §§707.405(5)(K),
707.406(14), 707.407.15, 707.408(10), 707.410(10), 707.411(13), 707.412(8),
707.413(7), 707.414(9), 707.415(14), 707.416(14), 707.417(8), 707.422(13),
707.424(4), 707.426(3), 707.428(3)(O). The basis for this language lies in
the need for flexibility in the review and processing of applications and
the registrations by the Authority. The Authority, acting through its general
manager, will need to exercise such flexibility. The processing and review
of many applications and registrations will be straight-forward, presenting
a generic and well-defined set of issues to be examined. Other applications
and registrations, however, will be unique and will present special issues
and raise questions that are particular to that application or registration.
These provisions, allowing the general manager to require "other information,"
included in the sections listing the required contents of each type of application
and registration, provides the Authority with some flexibility in dealing
with unique applications and registrations.
Subchapter F consists of nineteen sections (§§707.501-.519) and
sets forth the procedures to be used by the Authority when processing and
taking action on various applications and registrations filed with the Authority.
The intent of this subchapter is to provide well-defined procedures and time-frames
regarding the processing of applications and registrations. Also, many of
the provision in subchapter F aim to ensure that permit decisions are reached
through an unbiased method, are sound, and well-explained to the public. Some
provisions in this subchapter also help to promote administrative efficiency.
Section 707.501 concerns the Authority's initial action on applications
and registrations and provides that all applications and registrations shall
be stamped or marked "Received" by the docket clerk with the date of receipt
clearly indicated. This section establishes consistency in connection with
the receipt of applications and registrations by the Authority and ensure
that accurate records are kept regarding the date on which an application
or registration is received.
Section 707.502 concerns the Authority's initial review of applications
and registrations for administrative completeness. It provides that such review
shall generally be completed within 45 business days of the receipt of the
application or registration and payment of applicable fees. The Authority
believes that this time frame provides sufficient time for staff to conduct
such a review and ensures that the permit process moves along at a reasonable
pace. Further, in connection with applications for emergency permits, the
rule provides that such review shall be conducted within ten business days.
This shortened time frame reflects the urgent need that a successful applicant
for an emergency permit might have. The rule also states the basic criteria
that shall be used in conducting such a review and provides that upon completion
of this review, the general manager shall notify the applicant and forward
the registration or application to the docket clerk with a request that it
be filed.
Section 707.503 concerns the general manager's return of applications and
registrations that are deemed to be not administratively complete. It provides
procedures to be followed by the general manager in such circumstances and
provides procedures to be followed to allow an applicant to correct deficiencies.
This rule assures that an applicant or registrant will receive appropriate
notice where an application or registration is not complete and allows for
the efficient correction of deficiencies.
Section 707.504 concerns the technical review of applications by the Authority.
It provides procedures to be followed by Authority staff in conducting such
review. In particular, it generally directs Authority staff to complete such
review within 90 business days of the determination that an application is
administratively complete. The Authority believes that this time frame provides
sufficient time for staff to conduct such a review and ensures that the permit
process moves along at a reasonable pace. It also provides procedural requirements
regarding the providing of additional material that may be necessary for technical
review. These requirements create a mechanism whereby applications may be
efficiently supplemented when appropriate. It also provides that the general
manager or his designee may enter public or private property for the purpose
of inspecting, investigating or verifying conditions or information submitted
in connection with an application or a registration. This provision provides
Authority staff with the means necessary to investigate and verify information
provided in an application.
Section 707.505 governs changes to applications and registrations. It provides
procedures governing when and how non-substantive and substantive changes
may be made to applications and registrations. This section allows for appropriate
non-substantive changes to efficiently be made to applications. It also provides
safeguards to ensure that substantive changes will be made only when directed
by the applicant.
Section 707.506 pertains to extensions of time to process applications
and provides procedures to be followed where Authority staff determines that
technical review of an application cannot be completed within the normal time
period. This section provides flexibility to allow Authority staff extra time,
where appropriate, to complete their technical review.
Section 707.507 applies to all applications for groundwater withdrawal
permits and provides procedures regarding the proposed permit and technical
summary to be prepared by the general manager, including the providing of
notice to the applicant. This section also directs the general manager to
prepare a proposed permit. It thus assures that the applicant is notified
of the terms of the permit proposed by the general manager and the basis for
those terms. This section also provides procedures regarding the filing of
a proposed permit with the docket clerk and its presentation to the Board
and provides procedures applicable where the general manager recommends to
deny an application. It also provides procedures regarding the technical summary
and lists the appropriate contents of the technical summary. If the application
is for an initial regular permit, the proposed rule specifies that the general
manager shall issue the proposed permit or denial and technical summary within
90 days of the effective date of these rules. The Authority believes that
this time frame provides sufficient time for the general manager to propose
actions on permit applications and ensures that the permit process moves along
at a reasonable pace.
Section 707.508 applies to all applications other than applications for
groundwater withdrawal permits and provides procedures regarding the proposed
approval and technical summary to be prepared by the general manager, including
the providing of notice to the applicant. It directs the general manager to
prepare a proposed permit unless the general manager recommends to deny the
application. It provides procedures regarding the filing of a proposed approval
with the docket clerk and its presentation to the Board. This section also
provides procedures applicable where the general manager recommends to deny
an approval. It also provides procedures regarding the technical summary and
lists the contents of the technical summary.
Section 707.509 concerns the referral to docket clerk of a proposed permit,
approval, authorization or denial, and technical summary. It provides that
when administrative and technical review is complete, the completed appropriate
documents shall be forwarded to the docket clerk for presentation to the Authority
for action and publication, if appropriate. This section assures that actions
on permits and other approvals are all channeled through a central office
- that of the docket clerk - so that they can be presented to the board for
final action in a organized and methodical manner.
Section 707.510 concerns the publication of a notice of the proposed permit
and technical summary in the
Texas Register
and in local newspapers. It applies only to only to those types of applications
that the Authority has determined are subject to contested case hearings.
Those types are: (1) applications for initial regular permits; (2) applications
for additional regular permits; (3) applications for term permits; (4) applications
for aquifer recharge and storage permits; (5) applications for recharge recovery
permits; (6) applications to transfer interim authorization status and amend
application for initial regular permit where the location of the point of
withdrawal is transferred from west of Cibolo Creek to east of Cibolo Creek;
and (7) applications to transfer and amend permit where the location of the
point of withdrawal is transferred from west of Cibolo Creek to east of Cibolo
Creek. This section provides procedures for the publication of a proposed
permit, approval, authorization or denial, and technical summary in the
Section 707.511 concerns the supplementation of an application required
by a change in any of the Authority's rules. It provides that if any pending
application is affected by a change in rules before final action on the application
is taken, the applicant shall have a right to submit information as necessary
to comply with such change. This section assures that applicants are not prejudiced
by any change in Authority rules regarding the contents or requirements of
an application or the criteria for the granting of a permit.
Section 707.512 governs the withdrawal of an application by an applicant
and provides procedures pertaining to the withdrawal of an application both
with and without prejudice. This section provides definite procedures regarding
the withdrawal of applications. The purpose of this rule is to allow an applicant
to efficiently withdraw and application "with prejudice" while discouraging
applicants from consecutively filing and withdrawing applications "without
prejudice" thus increasing administrative burdens on the agency. It should
be noted that because applications for initial regular permits must have all
been on file by December 30, 1996, an application for initial regular permit
cannot be effectively withdrawn "without prejudice."
Section 707.513 governs action by the Board on applications where there
the Authority has determined there is no right to a contested case hearing.
The Board takes final action on the following applications where there is
no right to a contested case hearing: (1) an application for an agricultural
conservation loan; (2) an application for a variance from the comprehensive
management plan; (3) a decision of the Board regarding loss of exempt well
status; (4) the denial of an applications for a well construction permit;
(5) the denial of an application for exempt well status; (6) the denial of
any application to install or modify meter or alternative measuring method;
(7) the denial of an application to transfer interim authorization status
and amend application for initial regular permit except where the location
of the point of withdrawal is to be transferred from west of Cibolo Creek
to east of Cibolo Creek; (8) the denial of any application to transfer and
amend permit except where the location of the point of withdrawal is to be
transferred from west of Cibolo Creek to east of Cibolo Creek. The section
provides procedures for: the scheduling of a Board meeting following technical
review and the referral of the proposed permit, approval, authorization or
denial to the docket clerk; notice of such a Board meeting; the consolidation
or severance of matters by the Board; oral presentations before the Board;
public comment; and Board action. This section provides relatively streamlined
procedures for decisions which, although they are important, do not have the
potential to affect all users of the aquifer.
Section 707.514 governs action by the Board on applications where there
is a right to a contested case hearing but none were requested or requests
were withdrawn. It applies to actions for which a contested case hearing may
be requested but, where, after the time for the filing of a hearing request
has passed, no timely hearing request has been received, all timely hearing
requests have been withdrawn, or the judge has remanded the application because
of settlement. It provides procedures for: the scheduling of a Board meeting
following technical review and the referral of the proposed permit, approval,
authorization or denial to the docket clerk; notice of such a Board meeting;
the consolidation or severance of matters by the Board; oral presentations
before the Board; public comment; and Board action. This section provides
relatively streamlined procedures for decisions which although they could
have been the subject of a contested case hearings, they are not opposed.
Section 707.515 concerns actions on applications by the general manager.
Its purpose is to delegate authority to the general manager to take action
on behalf of the Board to for certain listed actions. Under this section,
the general manager may, under certain circumstances, grant: (1) applications
for well construction permits; (2) applications for exempt well status; (3)
applications for permit to install or modify meter or alternative measuring
method; (4) applications to transfer interim authorization status and amend
application for initial regular permit in all instances except when the location
of the point of withdrawal is to be transferred from west of Cibolo Creek
to east of Cibolo Creek; (5) applications to transfer and amend permit in
all instances except when the location of the point of withdrawal is to be
transferred from west of Cibolo Creek to east of Cibolo Creek; (6) applications
for conservation plan approval; and (7) applications for reuse plan approval.
It also provides procedures applicable in such instances. Through this section,
the Authority has delegated to the general manager the authority to "handle
administratively" the granting of these types of applications. This rule is
meant to provide for the streamlined and efficient processing of applications
that are not likely to be controversial or affect other users. By contrast,
the Authority is not willing to delegate authority to the general manager
to deny any of these types of permits or to act on any initial, term, recharge
and emergency permits, and other permits which may affect the withdrawal rights
of all other users.
Section 707.516 concerns corrections to permits by the general manager.
It provides procedures regarding when and how the general manager may make
non-substantive corrections to permits. This section allows for appropriate
non-substantive changes to efficiently be made to permits. It also provides
safeguards to ensure that only appropriate corrections are made.
Section 707.517 provides special procedures regarding the loss of exempt
well status. It covers situations were the Authority receives information
from a person other than the well owner indicating that the well no longer
qualifies as an exempt well. It provides for notice and an opportunity for
the well owner to provide information indicating to the general manager why
exempt well status should not be cancelled. The purpose of §707.517 is
to provide the general manager with a administrative fact-finding device.
The general manager has no authority to withdraw exempt well status, only
to place such a recommendation before the Board.
Section 707.518 provides special procedures regarding applications for
emergency permits. It provides that where the general manager finds that the
issuance of an emergency permit is warranted, the general manager shall issue
that permit for a term not exceeding 30 days. This section provides for notice
to the applicant and public comment and directs the general manager to submit
the permit to the Board following public comment for ratification, recission,
granting, renewal or modification. These expedited procedures are designed
to ensure that emergency permits, when necessary, are granted as quickly as
possible.
Section 707.519 establishes a moratorium on the processing of applications
for additional regular permits until a final determination has been made on
all applications for initial regular permits. This section recognizes the
fact that cumulative maximum historical use during any one calendar year during
the historical period for all applicants exceeds the amount that is legally
available for permitting and, therefore, there will not be additional groundwater
legally available for permitting in the near future.
Subchapter G consists of twenty-six sections (§§707.601-.626)
and establishes procedures to be used by the Authority in connection with
contested case hearings. These rules are meant to establish an efficient mechanism
by which certain persons may challenge the claims to permitted withdrawal
rights of other persons and for those rights to be determined in a quasi-judicial
proceeding.
Section 707.601 defines the applicability of subchapter G, which concerns
contested case hearings on Authority applications. Under this section, contested
case hearings may be requested and granted in connection with applications
for initial regular permits, additional regular permits, term permits, aquifer
recharge and storage permits, and recharge recovery permits. Contested case
hearings may also be requested and granted in connection with applications
to transfer groundwater withdrawal rights where the transfer of the point
of withdrawal is from west to east of Cibolo Creek.
The Authority has decided to allow the opportunity for contested case hearings
in the situations noted above for the following reasons. All of these situations
involve either: (1) a request by a well owner to be allocated a portion of
the finite total amount of water that the Legislature has declared is available
for permitting; (2) a request for a type of permit that could, when cumulated
with other permits of that type, result in the over-appropriation of groundwater
in the Edwards Aquifer; or (3) a request by a well owner, that could, when
accumulated with other requests of that type, result in the concentration
of permitted withdrawals in areas near Comal and San Marcos springs. Decisions
in these situations have the potential to affect all other applicants or permittees.
All other applicants may be affected by decisions in category (1) because
to the extent that historical use is attributed to any given applicant, the
cumulative amount of maximum historical use during any one calendar year for
all applicants will be higher, resulting in an increased need to adjust all
applicants' maximum historical use (or statutory minimums) downward in order
to meet the Legislature's limit on the total amount of permitted withdrawals.
Applicants and permittees may be affected by category (2) because over-appropriation
of groundwater may result in the triggering of aquifer management programs
which include interruptions in withdrawal rights or other required reductions
in withdrawals. Certain transfers of water rights - where the point of withdrawal
is proposed to be transferred from west to east of Cibolo Creek - fall under
category (3). Such transfers, accumulated over time, have the potential to
result in the concentration of withdrawals near San Marcos and Comal Spring.
Such concentration will likely result in decreased springflows triggering
aquifer management measures that have the potential to negatively affect permitted
withdrawal rights and cause required reductions in withdrawals throughout
the region thus affecting all applicants and permittees.
The Authority has therefore determined that decisions implicating such
considerations should be subjected to the opportunity for a contested case
proceedings. Accordingly, for such decisions, applicants may be required to
prove their entitlement to the permit or transfer at issue in a quasi-judicial
proceeding. Those potentially affected parties (defined in §707.602)
will have the right to request such a proceeding and, if that request is granted,
will have the right to present evidence which would tend to refute or defeat
the applicant's claim to the permit or transfer at issue. This system will
assure greater accuracy in the Authority's issuance of important permits and
permitted withdrawal amounts and a more fair apportionment of permitted rights.
This rule is also consistent with the recently proposed substantive rules
(Chapter 711, Subchapter L) governing transfers of groundwater rights. Specifically, §711.352
imposes stringent criteria for the approval of transfers where the point of
withdrawal of a right to withdraw groundwater is transferred from west to
east of Cibolo Creek.
Section 707.602 states the classes of persons that are entitled to request
a contested case hearing. The persons who are entitled to request a contested
case hearing are: the applicant for that permit or approval; an applicant
for another groundwater withdrawal permit issued by the Authority; and any
permittee holding a groundwater withdrawal permit issued by the Authority.
The purpose of the Authority's procedures with respect to initial regular
permits is to determine who has statutory-based rights to withdraw a portion
of the 450,000 acre-feet of Edwards Aquifer groundwater initially available
for permitting. Accordingly, the process of issuing initial regular permits
is a process by which a finite amount of water (as determined by the Legislature)
is allocated to various persons possessing statutory rights to some of that
water. The Authority has determined that the individual decisions that make
up this process should be subject to the possibility of a quasi-judicial proceeding
which is in the nature of water rights adjudication. Persons who have an interest
in that proceeding are the applicant for a particular permit at issue; any
other applicant seeking an allocation of the finite amount and any permittee
already provided with an allocation. By the nature of the proceeding, these
are the only parties that could possibly have an interest in the proceeding.
Anyone else is simply a bystander, with no real interest, because no part
of the allocation of the total finite amount could conceivably go to that
person. Thus, the Authority has determined that citizens, business entities,
and groups that are not applicants or permittees do not have standing to request
a contested case hearing.
Moreover, such proceedings involving applications for initial regular permits
may have only incidental effects on downstream users, springflows, habitat
and endangered species. The Authority has other programs which are primarily
designed to advance these goals. Accordingly, the Authority is justified in
determining that contested case hearings on initial regular permits and in
other matters should not be a forum for persons and groups who are not applicants
to argue their individual interest or their version of the public interest.
Section 707.603 concerns the required form and contents of a request for
a contested case hearing. It provides that a request for a contested case
hearing must be in writing and be filed by United States mail, facsimile,
or hand-delivery with the docket clerk within the time specified in §707.604
of these rules. This rule helps to ensure that requests for contested case
hearings submitted to the Authority are submitted in a regularized format
that will allow the Authority to efficiently assess and act on such requests.
Section 707.604 concerns the time for the filing of a request for a contested
case hearing. It provides that, unless a different time limit is specified
in the notice of the proposed permit and technical summary, a hearing request
must be filed with the docket clerk within 30 days of the date of publication
of that notice in the
Texas Register
. The
Authority believes that 30 days is sufficient time for a person to assess
whether they wish to file a request for a contested case hearing, collect
any information necessary to support their request, and complete and submit
their request. The Authority also believes that this time frame helps move
the permitting process along quickly.
Section 707.605 provides procedures applicable to the processing of a request
for a contested case hearing by the Authority. It states that hearing requests
not filed within the time period specified in §707.604 shall not be processed
and shall be returned by the docket clerk to the person filing the request.
This section also directs the docket clerk to provide notice to the applicant,
general manager and any persons making a timely hearing request at least 30
days prior to the first meeting at which the Board considers the request.
It also provides that persons may submit written responses to the hearing
request no later than 20 days before a Board meeting at which the board will
evaluate the hearing request. It also provides for the opportunity to file
replies to those responses. The Authority must move the permitting process
along and promote certainty in its decision-making process. Objective criteria
and firm deadlines regarding when an eligible person must file a request for
a contested case hearing and pleadings serve these goals. Moreover, the time
frames regarding notice of the Board meeting in which a request will be considered
allows parties sufficient time to prepare for such a meeting.
Section 707.606 governs action by the Board on a request for a contested
case hearing. It specifies that the determination of whether a hearing request
should be granted is not, in itself, a contested case subject to the APA.
It provides procedures applicable to the Board's consideration of the hearing
request and states that the Board may: (1) determine that the hearing request
does not meet the requirements of this subchapter and deny the hearing request;
(2) determine that the hearing request does not meet the requirements of this
subchapter, deny the hearing request, and refer the application to a public
meeting to develop public comment before acting on the application; or (3)
determine that a hearing request meets the requirements of this subchapter
and direct the docket clerk to refer the application to SOAH for a contested
case hearing. It also provides that a request for a contested case hearing
shall be granted if the request: (A) is supported by competent evidence; (B)
is submitted by a person entitled to request under §707.602 of these
rules; (C) complies with the requirements set forth in §707.603 of these
rules; and (D) is timely filed with the docket clerk. This section sets forth
the possible actions that the Board may take in response to a request for
a contested case hearing. This section also provides procedural standards
that the Board is to apply to requests for contested case hearings.
Section 707.607 concerns the service of documents filed in a contested
case. It specifies that a person filing the document must serve a copy on
all parties to the contested case including the general manager at or before
the time that the request is filed. It also requires the inclusion of a certificate
of service. This rule helps to assure that parties to a contested case receive
copies of all relevant documents filed with the Authority by any other party
to the contested case.
Section 707.608 delegates the authority to conduct contested case hearings
to SOAH. It also specifies that as supplemented by subchapter G of Chapter
707, the applicable rules of practice and procedure of SOAH govern any contested
case hearing of the Authority conducted by SOAH. SOAH is uniquely qualified
in terms of experience and manpower to conduct contested case hearings on
behalf of the Authority. Moreover, SOAH has developed an extensive set of
procedural rules governing SOAH proceedings. The Authority expects that SOAH
will conduct such hearings in a much more efficient and expeditious manner
than if the Authority had decided to attempt to conduct such proceedings on
its own.
Section 707.609 provides procedures to be followed when the Board refers
a contested case to SOAH. It specifies that the Authority shall provide to
the judge a list of issues to be addressed. It also states the Board may identify
additional issues to be addressed, or may limit issues or areas to be addressed,
at any time. This rule promotes the efficient use of SOAH's resources by helping
to focus the SOAH judge on issues that are important in any given proceeding.
Section 707.610 concerns the designation of parties at contested case hearings.
It confers party status on: (1) the general manager; (2) the applicant; (3)
the person who requested the contested case hearing that was granted; and
(4) an applicant for an initial regular permit who files a notice of party
status under §707.626. The general manager, being the person who has
proposed a particular decision on a permit application is necessarily party
to a contested case proceeding regarding that proposal. Likewise, the applicant
is a necessary party. In cases where the person requesting a contested case
hearing on an application is not the applicant associated with that application,
naturally, the person requesting the contested case should participate in
the hearing that he or she initiated.
Subsection (d) of §707.610 provides that "an applicant for an initial
regular permit who files a notice of party status pertaining to §707.626
. . . is a party in all contested case hearings for which notice has been
given." The purpose of this provision, in conjunction with §707.626,
is to reduce administrative burdens of he Authority and on applicants who
would like to obtain party status in several contested case hearings.
Persons entitled to make use of this rule are must also be qualified to
request a contested case hearing. Under §707.602, the categories of such
persons are: the applicant for that permit or approval; an applicant for another
groundwater withdrawal permit issued by the Authority; and any permittee holding
a groundwater withdrawal permit issued by the Authority. As discussed in more
detail with respect to §707.602, the Authority has determined that these
categories of persons, by nature of their status, have an interest in all
applications sufficient to justify party status in a contested case hearing.
As a result of §707.602, any applicant for an initial regular permit
has the right to request a contested case hearing on every application for
an initial regular permit and may gain party status in every resulting contested
case hearing.
Rather than require such a person to file a request for a contested case
hearing with respect to every application in which that person is interested,
thus incurring for himself and imposing upon the Authority potentially significant
costs and administrative burdens, this mechanism allows a person with standing
to participate as a party in several contested case hearings where that hearing
had been requested by another person and granted by the Authority. Thus, this
provision, in conjunction with proposed §707.626, reduces administrative
burdens on both applicants and the Authority by allowing an applicant, through
one filing, to request party status in several or all contested case hearings.
Moreover, this provision will likely result in a decreased total number of
requests for contested case filed with the Authority.
Section 707.611 concerns the burden of proof at contested case hearings
and provides that the burden of proof is on the applicant to establish by
convincing evidence that he is entitled to an application for a groundwater
withdrawal permit. The basis for this rule is that the applicant is in the
best position to possess or have available evidence to prove the elements
necessary to allow him to receive a groundwater withdrawal permit. The absence
of such a rule would likely lead to a multitude of unsubstantiated, unsupportable,
and fraudulent claims to groundwater withdrawal permits.
Section 707.612 concerns subpoenas at contested case hearings. It provides
procedures concerning such subpoenas and specifies that requests for such
subpoenas shall be in writing and directed to the Authority. This rule comports
with a SOAH procedural rule (see Title 1, Texas Administrative Code, §155.43(e)),
that states that requests for subpoenas shall be directed to the referring
agency
Section 707.613 concerns the remand of contested case hearings to the Board.
It provides that at the request of the applicant, a SOAH judge may remand
an application to the Board if all timely hearing requests have been withdrawn
or denied or, if parties have been named, all parties to a contested case
reach a settlement so that no facts or issues remain controverted. It also
states procedures regarding such a remand. This rule allows for the efficient
removal of matters from SOAH and their return to the Board of Directors in
cases in which there is no fact-finding or other useful role for SOAH to play.
Section 707.614 concerns certified questions in contested case hearings.
It provides that a SOAH judge may certify a question to the Authority at any
time during a contested case hearing. It lists types of issues that are appropriate
for certification. It also provides procedures to be followed where a question
is certified. This rule allows for legal or policy questions that arise during
a contested case hearing, which are appropriately addressed by the Board,
to be referred by SOAH back to the Board.
Section 707.615 concerns proposals for decision in contested case hearings.
It specifies that a proposal for decision submitted to the Authority by a
SOAH judge shall, where appropriate, include any recommended changes to the
permit originally proposed by the general manager. This rule promotes the
efficient communication of the results of the SOAH judge's recommendation
to the Board.
Section 707.616 allows a party to waive the right to review and comment
upon the SOAH judge's proposal for decision. It requires such waiver to be
either in writing or stated on the record at the hearing. This rule allows
the process by which a SOAH recommendation is acted on by the Board to be
expedited in appropriate situations.
Section 707.617 concerns pleadings following the submittal of a proposal
for decision. It provides that exceptions or briefs may be filed within 20
days after the date of the judge's submittal of the proposal for decision.
It also specifies that replies to such exceptions or briefs, if any, must
be filed within 30 days after the date of the judge's submittal of the proposal
for decision. These time frames are designed to allow parties to sufficient
time to prepare and file briefs in connection with a proposal for decision
while moving the permitting process along at a fairly quick pace.
Section 707.618 governs the scheduling of a meeting of the Board in connection
with a proposal for decision. It provides procedures applicable to such scheduling,
including notice to parties of the date of the meeting and deadlines for the
filings of exceptions and replies. It allows the Board to consolidate related
matters or sever issues in a proceeding under certain circumstances. This
rule allows for the efficient and regular scheduling of proposals for decision
for consideration by the Board.
Section 707.619 concerns oral presentations to the Board regarding contested
cases. It provides that any party to the contested case hearing may make an
oral presentation at the Board meeting in which the proposal for decision
in that case is presented to the Board. It limits such presentations to 15
minutes each, excluding time for answering questions, unless the chair or
the general counsel establishes other limitations. This rule establishes general
requirements concerning oral presentations to the Board on contested case
hearings designed to move the process along quickly. Presumably, parties would
have had more time to present their views to the SOAH judge. Exceptions to
these requirements can be made where appropriate.
Section 707.620 concerns the reopening of the record in connection with
a contested case hearing. It states that the Board may order the judge to
reopen the record for further proceedings on specific issues and provides
procedure applicable to such an order. This rule provides needed flexibility
to allow parties to present additional evidence in appropriate situations.
Section 707.621 concerns the decision rendered by the Board in connection
with a contested case hearing. It specifies that the Board shall render its
decision upon the expiration of 30 days or later following service of the
judge's proposal for decision, unless the parties have waived review. This
section also specifies the Board's decision will be rendered no more than
90 days after the date the proposal for decision is presented to the Board,
unless the Board determines that there is good cause for continuing the proceeding.
It also provides that the decision, if adverse to any party, shall include
findings of fact and conclusions of law separately stated. These time frames
will allow parties sufficient time to present additional argument to the Board
and are intended to ensure that decisions will be made on a fairly expeditious
basis.
Section 707.622 concerns motion for rehearing on decisions in contested
case hearings. It provides that only a party to the contested case may file
a motion for rehearing. It also specifies that a motion for rehearing is a
prerequisite to appeal. The rule also provides procedures applicable to the
filing of, response to, and the ruling on such a motion for rehearing. A motion
for rehearing is due within 20 days after the date the party seeking to file
the motion or his attorney is notified of the decision or order. The reply
to that motion for rehearing is due 30 days after the date a party or his
attorney is notified of the decision or order. The Authority believes that
this rule provides sufficient time for the reply while moving the permitting
process along at a fairly quick pace. These procedures allow parties undertake
an effort to convince the Authority to change its decision and provides the
Authority with an opportunity to correct any errors.
Section 707.623 declares that in the absence of a timely motion for rehearing,
a decision or order of the board is final on the expiration of the period
for filing a motion for rehearing. It also provides that if a party files
a motion for rehearing, a decision or order of the board is final and appealable
on the date of the order overruling the motion for rehearing or on the date
the motion is overruled by operation of law. This rule helps to define when
an order of the Authority on a permit following a contested case hearing become
"final" or "final and appealable."
Section 707.624 concerns the right to appeal a final decision in a decision
in a contested case hearing. It provides that a person who was a party to
a contested case before the Authority and is affected by a final decision
or order of the Authority in that case may file a petition for judicial review
within 30 days after the decision or order is final and appealable. It provides
that procedures for appealing an order of the Board in contested cases are
governed by provisions of the APA governing judicial review of contested case
decisions. For the purposes of such an appeal, this section also defines the
items to be included in the record in a contested case.
Section 707.625 concerns the payment of costs for preparing the record
on appeal. It provides that a party who appeals a final decision in a contested
case shall pay all costs of preparation of the record and that such a charge
is considered to be a court cost and may be assessed by the court in accordance
with the Texas Rules of Civil Procedure. This rule will allow the Authority
to offset some of the costs involved in preparing a record in contested case
proceedings that are subjected to judicial review.
Section 707.626 relates to notice of party status. This section states
that any applicant for an initial regular permit may obtain party status in
any or all contested cases by filing the requisite notice. The section provides
that the notice must be in writing and filed with the docket clerk within
the time provided by §707.604. In addition, the section lists the information
that must be contained in the notice.
As noted above, §707.626 acts in conjunction with subsection (d) of §707.610.
The purpose of these provisions, as described in more detail above, is to
reduce administrative burdens of he Authority and on applicants who would
like to obtain party status in several contested case hearings.
III. REGULATORY IMPACT ANALYSIS OF MAJOR ENVIRONMENTAL RULES.
Section 2001.0225 of the APA requires an agency to perform, under certain
circumstances, a regulatory analysis of "major environmental rules." The Authority
has determined that none of the Chapter 707 rules, as adopted, are "major
environmental rules" as that term defined by §2001.0225(g)(3) of the
APA. The basis for this determination is that the rules do not have the specific
intent to "protect the environment" or "reduce risks to human health from
environmental exposure." The rules establish procedures to be followed in
Authority proceedings. Specifically, these set forth procedures: (1) regarding
the computation of time and the filing of documents; (2) governing meetings
before the Board; (3) pertaining to the filing of applications and registrations
with the Authority; (4) to be followed by the Authority with respect to the
processing and review of such applications and registrations; and (5) regarding
contested case hearings on applications. The specific intent of these procedural
rules is to allow the Authority to efficiently implement its powers and duties.
For this reason, we find that these rules do not have a specific intent to
"protect the environment" or "reduce risks to human health from environmental
exposure." Accordingly, we find that none of the rules are "major environmental
rules" and that, therefore, no further analysis is required by §2001.0225
of the APA.
IV. SUMMARY OF PUBLIC COMMENTS.
Five public hearings were held on proposed chapter 707 and other rules
proposed by the Authority on: Wednesday, August 9, 2000 at 6:00 p.m. at the
Conference Center of the Edwards Aquifer Authority, 1615 N. St. Mary's Street,
San Antonio, Texas; Tuesday, August 15, 2000 at 6:00 p.m. at the New Braunfels
Civic Center, 380 S. Seguin Avenue, New Braunfels, Texas; August 17, 2000
at 6:00 p.m. at St. Paul's Lutheran Church, 1303 Avenue M, Hondo, Texas; Tuesday,
August 22, 2000 at 6:00 p.m. at the Sgt. Willie De Leon Civic Center, 300
E. Main Street in Uvalde, Texas; and Thursday August 24, 2000 at the San Marcos
Activities Center, 501 E. Hopkins, San Marcos, Texas. Oral comments on these
rules were provided by John Brigman; Louis Obdyke; Tom Wassenich; and Dianne
Wassenich. Written comments on these rules were provided by San Antonio Water
System ("SAWS"); Vinson & Elkins ("V&E"); Roger & Marvin Verstuyft
Farms ("Verstuyft Farms"); Earl & Brown ("Earl & Brown"); Bickerstaff,
Heath, Smiley, Pollan, Kever & McDaniel, L.L.P. on behalf of the Texas
Farm Board ("TFB"); Inland Ocean, Inc. ("Inland"); Fulbright & Jaworski
on behalf of Vulcan Materials Company ("Vulcan"); the City Public Service
Board of San Antonio ("CPS"); and the Texas Department of Agriculture ("TDA").
Comments regarding Chapter 707 generally
TFB asserts that the Authority was required by the Texas Private Real Property
Rights Preservation Act to prepare a "takings impact assessment" or "TIA"
before providing notice of the proposed adoption of the Chapter 707 rules.
The Authority disagrees with the commenter. Chapter 2007 of the Texas Government
Code, also known as the "Texas Private Real Property Rights Preservation Act,"
("TPRPRA") requires governmental entities, under certain circumstances, to
prepare a takings impact assessment ("TIA") in connection with certain covered
categories of proposed governmental actions. Based on the following reasons,
the Authority has determined that it need not prepare a TIA in connection
with the adoption of these rules. First, the Authority has made a "categorical
determination" that rules of practice and procedure do not affect private
real property. These proposed rules establish and describe the procedures
to be followed in Authority proceedings and before the Board of Directors
of the Authority. More specifically, these provisions would set forth procedures:
(1) regarding the computation of time and the filing of documents; (2) governing
meetings before the board; (3) pertaining to the filing of applications and
registrations with the Authority; (4) to be followed by the Authority in connection
with the processing and review of such applications and registrations; and
(5) regarding contested case hearings on applications. As such, they have
no direct affect on private real property and may not result in a taking.
Second, the Authority's action in adopting these rules is an action that is
reasonably taken to fulfill an obligation mandated by state law and is thus
excluded from TPRPRA under §2007.003(b)(4) of the Texas Government Code.
See Act §§1.08(a), 1.11(a), 1.11(b), 1.11(d)(1), 1.11(h), 1.15(a),
1.15(b), 1.15(c), 1.16(a), 1.16(b), 1.16(c), 1.16(d), 1.17(a), 1.17(b), 1.18,
1.19(a), 1.20, 1.24(c), 1.29(f), 1.29(g), 1.33(a), 1.33(b), and 1.34; Texas
Government Code Annotated, §2001.004(1) (Vernon 2000). It was held, in
TDA comments generally that the Authority should have prepared a "small
business effects statement" prior to proposing the adoption of the Chapter
707 rules, pursuant to §2006.002(d) of the Texas Government Code.
The Authority disagrees with the commenter for the following reason. Chapter
2006 of the Texas Government Code, subchapter A, requires state agencies to
prepare a small business effects statement (SBES) prior to proposing a rule
that would have an adverse economic effect on small businesses. By the statute's
express terms, this requirement applies only to a "state agency." The term
"state agency" is defined, for the purposes of Chapter 2006, subchapter A,
as "a department, board, bureau, commission, division, office, council or
other agency of the state." Texas Government Code Annotated, §2006.001(3).
Section 2006.002 does not apply to the Authority because the Authority
does not meet the definition of the term "state agency" as set out forth in
Chapter 2006. Section 1.02(a) of the Act creates the Authority as a "conservation
and reclamation district" under Article XVI, §59 of the Texas Constitution.
Conservation and reclamation districts created under this authority have long
been considered to be "political subdivisions" of the State of Texas. See,
e.g.,
Guaranty Petroleum
, 609 S.W.2d at 530.
In
Guaranty Petroleum
, the Texas Supreme Court
explained the difference between political subdivisions and state agencies
as follows:
A political subdivision differs from a department, board or agency of the
State.
A political subdivision has jurisdiction over
a portion of the State; a department, board or agency of the State exercises
its jurisdiction throughout the State.
Members of the governing body
of a political subdivision are elected in local elections or are appointed
by locally elected officials; those who govern departments, boards or agencies
of the State are elected in
statewide
elections
or are appointed by State officials.
Guaranty Petroleum
, 609 S.W.2d at 531 (emphasis
added).
Guaranty Petroleum
makes clear that state
agencies are characterized by having
statewide
jurisdiction and are governed by persons who are elected in
statewide
elections or are appointed by state officials. Political
subdivisions like the Authority, on the other hand, have jurisdiction over
only a portion of the state and are governed by persons who are elected in
local elections or are appointed by locally elected officials. These principles
have been reiterated by the Texas Supreme Court in
Lohec v. Galveston County Commissioners Court,
841 S.W.2d 361, 364
(Tex. 1992) (noting that "statewide jurisdiction" is "a trait required of
entities recognized as department, boards, or agencies of the state") and
Because the Authority has jurisdiction over only a portion of the State
and because the members of its governing body are elected in local elections
or are appointed by locally elected officials, the Authority is a political
subdivision and not a state agency, and is not subject to the SBES requirement
found in Chapter 2006 of the Government Code.
Section 707.103(h)
Section 707.103 sets forth general procedures applicable to the filing
of documents with the Authority. Subsection (h) states that "the Authority
may waive one or more of the requirements of this section or impose additional
filing requirements."
SAWS proposes changing §707.103(h) so that it reads:
(h) The Authority may waive one or more of the requirements of this section
or impose additional filing requirements
after notification
of affected applicants or other interested parties.
The Authority disagrees with the commenter. The purpose of §707.103(h)
is to allow the Authority some flexibility in the filing of documents. For
example, subsection (d) of §707.103 requires that an original and one
copy of all documents shall be filed. It may be appropriate, in some cases
to waive this requirement without prior notification to "affected applicants
or other interested parties." Likewise, for some particular types of filings,
it may be appropriate to impose additional filing requirements. In such a
case, the Authority has every intention of providing sufficient notice to
persons who would be required to comply with that additional requirement.
The Authority has no intention of imposing additional filing requirements
with insufficient notice. In light of the above discussion, the Authority
has not modified §707.103(h).
Section 707.103(c) and §707.104(b)
Section 707.103(b) concerns the
filing
of documents with the Authority. It provides that "if a person files a document
by facsimile, he or she must file with the docket clerk the appropriate number
of copies by mail or hand delivery within
three days.
" (Emphasis added.) Section 707.104(b) concerns the
service
of documents required to be filed under the Authority's rules.
It provides that "service by facsimile must be followed by serving an extra
copy in person, by mail or by carrier-receipted delivery within
one day
." (Emphasis added.) SAWS suggests that for the sake of consistency,
the time in which service by facsimile must be followed by serving an extra
copy in person, by mail or by carrier receipted delivery be changed from one
to three days.
The Authority disagrees with the commenter. This difference noted by SAWS
finds its basis in the fact that the Authority's rule regarding the service
of documents contains a "mailbox rule" (see §707.104(b) (stating that
service by mail shall be complete upon deposit of the document, enclosed in
a postage-paid properly addressed wrapper, in a post office of official depository
under the case and custody of the United States Postal Service")) while the
Authority's rule regarding the filing of documents contain no "mailbox rule."
Accordingly, when §707.103(c) requires a party filing by facsimile to
file a copy of the document by mail within three days, the docket clerk of
the Authority must actually receive the document within three days. On the
other hand, since service by mail is complete upon deposit with the U.S. Postal
service, a party serving a document by facsimile may simply deposit a copy
of the document already served by facsimile in the mail on the day following
the day that service by facsimile is made. In light of the above discussion,
the Authority has not modified §707.103(c) and §707.104(d).
Section 707.201(f)
Section 707.201 provides general information and procedures concerning
meetings of the Board of Directors of the Authority. Subsection (f) of that
section, as proposed, states as follows:
The Parliamentarian shall decide issues of parliamentary procedure, but
may be overruled by majority vote of the board. The Parliamentarian is appointed
to that position by the chair pursuant to the Bylaws of the Authority.
Inland comments that where the Parliamentarian is a director, such director
should not vote in a matter where an issue regarding parliamentary procedure
is at hand.
The Authority agrees, in part, and disagrees, in part, with the commenter.
Under §707.201(f), as proposed, the Parliamentarian is always a director.
The Authority disagrees with the commenter in that the Authority declines
to relieve a voting director of his or her right to vote on any matter before
the Authority. However, to avoid any conflict with Robert's Rules of Order
in these rules, the Authority has modified §707.201(f) to allow for the
appointment of a Parliamentarian who is not a director, as follows:
The Parliamentarian shall decide issues of parliamentary procedure, but
may be overruled by majority vote of the board. The Parliamentarian is appointed
to that position by the chair pursuant to the Bylaws of the Authority.
Section 707.203
Section 707.203 concerns the deadline for the filing of comments on matters
set for a meeting of the Board. This section, as proposed, provides as follows:
The board or the general counsel may set deadlines for the public to file
written comments on matters set for a meeting of the board. The general counsel,
whether by agreement of the interest persons and any judge assigned to the
matter, or the general counsel's own motion, may extend a filing deadline.
SAWS expresses concern over the general counsel alone making a determination
as to such deadlines. SAWS maintains that in certain parts of the rules, the
Board clearly delegates activities to the General Manager, but no such delegation
to general counsel has been recognized. SAWS recommends changing §707.203
to provide only that the Board my extend deadlines for the public to file
written comments on matters set for a meeting of the Board.
The Authority agrees, in part, and disagrees, in part, with the commenter.
The Authority agrees that the authority to extend the deadline to file written
comments on matters set for a meeting of the Board should not be delegated
to the general counsel. However, the Authority believes that it is appropriate
to delegate such authority to the general manager. The Authority has therefore
modified §707.203 as set forth below.
The board or the general
manager
may set
deadlines for the public to file written comments on matters set for a meeting
of the board. The general
manager
, whether
by agreement of the interest persons and any judge assigned to the matter,
or the general
manager's
own motion, may extend
a filing deadline.
Section 707.204(b)
Section 707.204 concerns the continuance of a matter set for a board meeting.
Subsection (b) of that section, as proposed, allows the general counsel, either
by agreement of the parties and any judge assigned to the matter, or by the
general counsel's own motion, to reschedule the presentation of a matter at
a board meeting.
SAWS expresses concern over the general counsel alone making a determination
as to such continuances. SAWS maintains that in certain parts of the rules,
the Board clearly delegates activities to the General Manager, but no such
delegation to general counsel has been recognized. SAWS proposes eliminating
the general counsel's authority to reschedule the presentation of a matter
at a board meeting and modifying the rule so that only the board could reschedule
the presentation of a matter at a board meeting.
In response to the public comments, the Authority has elected not to adopt §707.204
at this time and hereby withdraws the rule from consideration for permanent
adoption.
Section 707.303
Section 707.303 attempts to clarify who is the proper applicant, registrant,
or declarant for an application, registration or declaration. This rule states,
in part, that "if there is more than one owner, a joint application, registration,
or declaration shall be filed by those owners." Vulcan suggests a modification
to this rule that would clarify that lessees, assignees, and easement holders
are not joint owners. Joint ownership, according to Vulcan, only occurs if
the interest holder is entitled to divided or undivided shares in the withdrawals
from the well at any given time.
The Authority agrees with Vulcan's interpretation that lessees, assignees
and easement holders are not joint owners of wells and need not be parties
to a joint application. The Authority adds the following language to the end
of §707.303 to clarify that lessees, assignees and easement holders need
not be parties to a joint application: "For the purposes of this rule, a lessee
or assignee of the surface estate, or an easement holder, is not considered
an owner of a well."
Section 707.304
Section 707.304, as proposed, states the requirement that "any person seeking
to withdraw groundwater from the aquifer, unless exempted from the permit
requirement by §1.16(c) and §1.33 of the Act and §711.20 of
this title (relating to Groundwater Withdrawal Permits), must file with the
Authority an application for a groundwater withdrawal permit. SAWS recommends
removing what it contends is an inadequate rule reference to "§711.20
of this title . . ."
The Authority agrees, in part, and disagrees, in part, with the commenter.
The rule referenced in §§707.304-711.20 - relates to "Eligibility
for Exempt Well Status" (not to "Groundwater Withdrawal Permits"). The Authority
has revised §707.304 accordingly.
Section 707.306 and §707.308
Section 707.306 states the requirement that the owner of an existing or
exempt well must register the well with the Authority. Section 707.308 states
the requirement that an owner of a well that believes the well to be exempt
from permitting requirements file an application for exempt well status. TFB
questions whether an exempt well owner should be required to register a well
and file an application for a exempt well status and pay both fees. TFB asserts
that these requirements are redundant and unnecessary. TFB urges that all
that is required is well registration.
The Authority disagrees with the commenter. The requirements to register
a well and to file an application for exempt well status are completely independent.
All existing wells including those requiring a groundwater withdrawal permit
and exempt wells must be registered with the Authority. It is only through
this requirement that the Authority can keep track of all points of withdrawal
of groundwater from the Edwards Aquifer. On the other hand, only those well
owners who claim to be exempt from the requirements to obtain a groundwater
withdrawal permit are required to file an application for exempt well status.
It is through this requirement that a person presents the Authority with information
that would allow the Authority to validate the person's claim of exemption.
Accordingly, both requirements are necessary. Moreover, because these are
separate and independent requirements, separate filing fees are appropriate.
Section 707.308
As noted above, §707.308 states the requirement that an owner of a
well who believes the well to be exempt from permitting requirements file
an application for exempt well status. Earl & Brown urge the addition
of a subsection (c) to §707.308 which would read as follows:
If an owner of an existing or proposed well submits a properly completed
application for exempt well status, the Authority must provide the applicant
with a written notice of the Authority's decision to approve or disapprove
the exempt well status within 30 days from the date the application is received
by the Authority. In the event the Authority fails to take such action on
an application for exempt well status within 30 days, the application shall
be deemed approved as a matter of law.
Earl & Brown assert that this addition is necessary for the purpose
of avoiding unnecessary delays in processing applications for exempt well
status. In support of this suggested addition, they also argue that it is
imperative that applicants have the opportunity to obtain groundwater withdrawal
rights before their well construction permits expire.
The Authority disagrees with the commenter. Procedures applicable to actions
on applications for exempt well status are provided by §§707.501.-707.509,
and 707.515, and 707.516 of these rules. The Authority believes that these
procedures are necessary and appropriate for the consideration of applications
for exempt well status. It is through these procedures that the Authority
can assure the efficacy of the results of its determinations on exempt well
status. The Authority notes that it seriously intends to process and act on
applications in a timely manner. To shortcut the Authority's procedures by
providing that an application will "deemed approved as a matter of law" following
the expiration of a specified time would most likely lead in inaccurate results.
Section 707.309
Section 707.309 states the requirement that any person seeking to install
a new meter or modify an existing meter file an application for a permit to
install or modify a meter. Earl & Brown suggest adding a new provision
to §707.309 which would state as follows:
In the event an existing meter is damaged to the extent that it is no longer
properly functioning, the requirement to file an application with the Authority
for a permit to install a new meter shall be waived provided the well owner
can sufficiently demonstrate to the authority that an emergency condition
existed in which the existing meter was no longer functioning.
The Authority disagrees with the commenter. If an existing meter is damaged
to the extent that it is no longer properly functioning, then, under the Authority's
substantive meter rules, subchapter M of Chapter 711, the meter would have
to be repaired or replaced. If the meter was to be replaced, the well owner
would be required to file an application pursuant to §707.309. If the
meter needed repairs such that the repairs would constitute a "modification"
for the purposes of §707.309, then the well owner would likewise be required
to file an application pursuant to §707.309. The Authority does not understand
or foresee what emergency condition might require the waiver of these requirements.
SAWS urges that the term "modify" as used in §707.309 not include
standard maintenance. SAWS suggests that the following italicized language
be added to the last sentence of §707.309:
For the purpose of this chapter, the term "modify" in connection with a
meter means to make any physical change to the meter
other than standard maintenance.
The Authority agrees with the commenter. The language of §707.309
has been modified as suggested.
Section 707.310
Section 707.310 states the requirement that an owner of an existing well
equipped with a meter register the meter with the Authority by filing a meter
registration no later than 180 days from the effective date of these rules.
SAWS urges the addition language that would provide that meters registered
with the Authority prior to the effective date of these rules through the
filing of forms previously prescribed by the Authority need not be registered
again.
The Authority agrees with the commenter. The Authority has added the following
language to the end of §707.309.
Meters registered with the Authority prior to the effective date of these
rules through the filing of forms previously prescribed by the Authority need
not file another meter registration.
Section 707.311
Section 707.311 concerns the requirement to file a Declaration of Historical
Use. It provides, in part, that "a declaration of historical use (application
for an initial regular permit) must have been filed with the Authority pursuant
to § 1.16(a) of the Act by December 30, 1996 . . . ." SAWS recommends
removing what it contends is an inadequate rule reference to "§711.20
of this title . . ."
The Authority agrees, in part, and disagrees, in part, with the commenter.
The rule referenced in §§707.311-711.20 - relates to "Eligibility
for Exempt Well Status" (not to "Groundwater Withdrawal Permits"). The Authority
has revised §707.311 accordingly.
Earl & Brown maintains that §707.311 should state that the time
to file a declaration of historical use should be stated as "on or before
March 1, 1994" in accordance with the language of §1.16(a) of the Act.
Earl & Brown agrees that the deadline was changed to December 30, 1996,
but contends that the change was not made pursuant to the Act.
The Authority agrees, in part, and disagrees, in part, with the commenter.
Although the Act, on its face, does not establish December 30, 1996, as the
deadline for filing declarations of historical use, but instead mentions March
1, 1994, that deadline was changed to December 30, 1996, by decision of the
Supreme Court of Texas in
Barshop v. Medina County
Underground Water District,
925 S.W.2d 618, 628-630 (Tex. 1996). In
order to clarify the legal basis for the December 30, 1996 deadline, the Authority
has added the indicated language to §707.311
A declaration of historical use (application for an initial regular permit)
must have been filed with the Authority pursuant to §1.16(a) of the Act
and the decision of the Texas Supreme Court in
Barshop
v. Medina County Underground Water District,
925 S.W.2d 618, 628-630
(Tex. 1996) by December 30, 1996 . . . .
Section 707.312
Section 707.312, as proposed, provides that "declarations of historical
use received by the Authority before the effective date of this subchapter
need not be resubmitted." CPS notes that the terms "declaration of historical
use" and "application for an initial regular permit" are used sometimes used
interchangeably, as in §707.311. CPS also notes that the text of §707.405
makes it appear that a declaration of historical use is just one part of an
application for an initial regular permit. CPS requests clarification as to
whether §707.312 applies to an application for an initial regular permit
or whether the Authority will require re-submission of the initial permit
application after the effective date of the rules.
The Authority agrees that §707.312 should be clarified. Accordingly,
the Authority has modified §707.312 to clarify that applications for
an initial regular permit received by the Authority before the effective date
of this subchapter need not be resubmitted.
Section 707.403
Section 707.403 provides, in part, as follows:
For all applications other than for an agricultural conservation loan,
a non-refundable application fee of $25 must accompany that application in
order for it to be considered by the Authority.
TFB asserts that §709.11, as proposed, contradicts §707.403.
Section 709.11 states, in part, as follows:
The general manager shall impose a $25 fee to file with the Authority an
application for a regular, term, or an emergency groundwater withdrawal permit,
a well construction permit, monitoring well permit, aquifer recharge and storage
permit, and recharge recovery permit.
The Authority agrees with the commenter that §709.11, as proposed,
seems to contradict §707.403. To address this apparent contradiction,
and as additionally noted in the Final Order Adopting Rule for its Chapter
709 rules, the Authority has modified §709.11 as set forth below:
The general manager shall impose a $25 fee to file with the Authority
Section 707.405 generally
Section 707.405 lists the contents of an application for an initial regular
permit/declaration of historical use. V&E submitted comments to §707.405
generally, contending that the rule retroactively creates requirements for
permit applications that were required to be filed by December 30, 1996, and
that these new requirements were not reflected in the Authority's prior rule.
Furthermore, V&E asserts that even seemingly innocuous problems with this
rule are made significant given §711.98(j) which states as follows:
Subject to the duty of the board to determine the amount groundwater that
may be withdrawn under an initial regular permit, the board shall grant an
application for an initial regular permit if the following elements are established
. . . (14) the application is in compliance with the rules of the Authority.
V&E believes these rules could cause an application to fail due to
the retroactive application of these rules and recommends that the rules allow
the applicant some time to supplement an application in order to meet the
new requirements.
The Authority disagrees with the commenter. The rules Authority's rules
allow an applicant to supplement an application in order to meet any new requirements.
Specifically, §707.511 (relating to Supplementation of Application Required
by Change in Rules) states that "if any pending application is affected by
a change in these rules before final action on the application is taken by
the Authority, the applicant shall have a right to submit information as necessary
to comply with such change."
Section 707.405(3)
Paragraph (3) of §707.405, as proposed, requires that applications
for an initial regular permit contain the amount of groundwater proposed to
be withdrawn - stated in acre-feet per year - by the well that is the subject
of the application. SAWS urges that an application for an initial regular
permit should indicate historic use, not future or intended use. Accordingly,
SAWS suggests the deletion of Paragraph (3) from §707.405. V&E also
points to Paragraph (3) as irrelevant for the purposes of establishing historical
use on which initial permits are based.
The Authority agrees with the commenters that an application for initial
regular permit should focus on historic as opposed to intended or future uses.
Moreover, most of the subjects in paragraph (3) of §707.405, as they
relate to historical use, are covered in paragraph (6)(A) and (6)(C) of §707.405.
Accordingly, the Authority has modified §707.405 by deleting paragraph
(3) and renumbering the remaining paragraphs in the section.
Section 707.405(4)
Paragraph (4) of §707.405, as proposed, requires that applications
for an initial regular permit contain the proposed maximum rate of withdrawal
in gallons per minute or cubic feet per second.
SAWS contends because applications for initial permits are for existing,
not proposed, wells and that paragraph (4) should be amended to read as follows:
Rate of Withdrawal. The maximum rate of withdrawal in gallons per minute
or cubic feet per second each well is capable of producing shall be stated.
As noted above, the Authority agrees with the commenter that an application
for initial regular permit should focus on historic as opposed to intended
or future uses. Accordingly, the Authority has modified paragraph (4) of §707.405,
as suggested, to make it clear that the application for initial regular permit
requests historical information. In addition, the Authority has made a similar
change to paragraph (5) of §707.405.
Section 707.405(6)(A)
Paragraph (6) of §705.405, as proposed (now paragraph (5)), requires
that applications for an initial regular permit include a declaration of historical
use. Subparagraph (A) of that paragraph requires the declaration to state
"the total amount of water from the aquifer that the applicant or his contract
user, prior user or former existing user withdrew and beneficially used without
waste during each calender year of the historical period."
Earl & Brown urges that an applicant should be required to submit the
total amount of water withdrawn from the Aquifer by a "prior user or former
existing user" only if the applicant is able to obtain such information using
reasonable efforts. Furthermore, Earl & Brown assert that such information
should be verifiable and reliable or supported by affidavit.
The Authority disagrees with the commenter. It is the Authority's position
that all applicants must document the beneficial use of underground water
from the aquifer during the historical period, including use made by prior
users. For any year in which an applicant fails to document or otherwise submit
evidence of the amount of such prior use, the Authority will assume that usage
for that year was zero.
Section 707.405(6)(E)
Subparagraph (E) of paragraph (6) (now paragraph (5)), of §707.405,
as proposed, requires the declaration of historical use to state "the number
and location of each well owned by the applicant and for which the applicant
claims groundwater from the aquifer was withdrawn and placed to beneficial
use during the historic period and the amount of water withdrawn from each
well during each year of the historical period."
SAWS asserts that reporting production by individual wells is too cumbersome
for an integrated pumping system. SAWS suggests amending this provision so
that it reads as follows:
(E) the number and location of each well owned by the applicant and for
which the applicant claims groundwater from the aquifer was withdrawn and
placed to beneficial use during the historic period;
The Authority agrees with the commenter. This provision, as proposed, imposes
a burdensome requirement. The Authority agrees that the burden of collecting
and submitting the information at issue is not outweighed by the Authority's
need for that information. The Authority has therefore modified this provision
as suggested by the commenter.
Section 707.405(6)(G)
Subparagraph (G) of paragraph (6) (now paragraph (5)) of §707.405
requires the declaration of historical use to state (if the groundwater was
withdrawn from the well or placed to a beneficial use by a contract user,
prior user or former existing user), "the name, address and telephone number
of each contract user, prior user or former existing user, the year of withdrawals,
purpose of use, place of use and amount of withdrawals, including copies of
the legal documents establishing the legal right of the contract user to withdraw
and/or place groundwater from the aquifer to beneficial use."
Earl & Brown urge that this section should be changed to require such
information only when the applicant is able to obtain it with "reasonable
effort" and the information obtained is accurate and reliable. Additionally,
Earl & Brown urge that if the applicant cannot obtain the information,
a notation should be added to the application and no penalty should be suffered
by the applicant.
The Authority disagrees with the commenter. It is the Authority's position
that all applicants must document the beneficial use of underground water
from the aquifer during the historical period, including use made by contract
users, prior users, or former existing users. The information required in
this subparagraph is necessary in order for the Authority or a party protesting
a proposed permit to investigate and verify an applicant's claims of historical
use of a contract user, prior user or former existing user. For any year in
which an applicant fails to document or otherwise submit evidence of the amount
of such prior use and the identity of such contracts user, prior user or former
existing user, the Authority will assume that usage for that year was zero.
However, the Authority has modified this provision to add the missing comma.
Section 707.405(6)(I)
Subparagraph (I) of paragraph (6) (now paragraph (5)) of §707.405
requires a declaration of historical use to provide - in instances where the
groundwater is to be sold on a wholesale or bulk basis - "a description of
how the groundwater will be sold, transported or transferred, the name address,
and telephone number of every person to whom water will be delivered, the
location to which the groundwater will be delivered, and the purpose for which
the groundwater will be used . . . ."
SAWS comments that to require the identification of other than contracting
parties is not only cumbersome, but ridiculous. SAWS suggests that §707.405(6)(I)
read as follows:
. . . a description of how the groundwater will be sold, transported or
transferred, the location . . . .
The Authority disagrees with the commenter. The requirement in subparagraph
I to list "the name, address and telephone number of every person to whom
water will be delivered" applies on its face to only where "the groundwater
is to be sold on a wholesale or bulk basis." There is no requirement for an
applicant (including SAWS) to list all the name, address and telephone of
all retail water customers.
Section 707.405(6)(K)
Subparagraph (K) of paragraph (6) (now paragraph (5)) of §707.405
requires a declaration of historical use to contain "any other information
that the general manager may require." Earl & Brown urge the deletion
of this provision asserting that it may allow the General Manager to unfairly
require supplemental information from one applicant when other applicants
may not be called on to submit the same information. Earl & Brown contend
that any information required in the declaration of historical use should
be clearly delineated in the rules and required of all applicants.
The Authority disagrees with the commenter. The Authority, acting through
its general manager, will need to exercise flexibility in its processing and
review of applications for initial regular permits. The processing and review
of many applications will be straight-forward, presenting a generic and well-defined
set of issues to be examined. Other applications, however, are unique and
will present special issues and will raise questions that are particular to
that application. This rule, as written, provides the Authority with some
flexibility in dealing with unique applications.
Section 707.410 generally
Section 707.410 concerns the contents of a well registration. SAWS asserts
generally that the well registration requirements are too burdensome. The
Authority disagrees with the commenter. The Authority has developed the list
of items required in a well registration in order to provide the Authority
with necessary baseline information. It is through such well registrations
that the Authority collects information that is vital to the development and
implementation of a variety of its statutorily-mandated programs.
Section 707.410(3)(B) and (C)
Subparagraphs (3)(B) and (3)(C) of §707.410 require well registrations
to contain a map showing, respectively, the location of "the three nearest
wells within a quarter of a mile of the well and the names and addresses of
the owners of the nearby wells" and "any possible sources of contamination
such as existing and proposed livestock or poultry yards, septic system absorption
fields, underground or above ground petroleum storage tanks."
SAWS contends the Authority is in a position to maintain records of other
wells and be knowledgeable of pollution sources. Therefore, SAWS contends
that paragraphs (3)(B) and 3(C) of §707.410 should be eliminated as they
are not appropriate for well registration.
The Authority agrees, in part, and disagrees, in part, with the commenter.
While the Authority agrees that it should maintain records of wells and be
knowledgeable of pollution sources, it needs to be able to collect information
regarding those subjects. The well registration requirement is one of the
primary ways in which the Authority is able to gather such information. Accordingly,
the Authority declines to modify §707.410(3)(B) and (C).
Section 707.411
Section 707.411 concerns the contents of applications for well construction
permits. Earl & Brown propose that a new paragraph - paragraph (14) -
be added to §707.411 that would read as follows:
In the event the Authority approves an application for a well construction
permit, the permit shall be valid for a period of 180 days from the time the
Authority approves said permit. General Manager shall reserve the right to
authorize an extension of the 180 day period provided that the applicant for
a well construction permit submits a written request for an extension prior
to the termination of the 180 day period. In the event the General Manager
authorizes such extension, the extended time shall in no event exceed 60 days
from the date the original 180 day period would have terminated.
The Authority agrees in part, and disagrees, in part, with the commenter.
Earl & Brown's proposed addition to §707.411 refers to a requirement,
found in §711.108(a) of the Authority's rules which was proposed concurrently
with Chapter 707. That requirement states as follows:
A well constructed pursuant to a well construction permit must be completed
within 180 days of issuance of the permit. Upon expiration of the term, the
permit is automatically expires and is canceled.
The Authority realizes that due to the potential unavailability of water
well drillers, sometimes the 180 day period in which to construct a well is
not sufficient. In response to Earl & Brown's comment, and in response
to other comments received in response to §711.108, as proposed, the
Authority will modify §711.108(c) so that it reads as follows:
(c) A well constructed pursuant to a well construction permit must be completed
within 180 days of the issuance of the permit. The permit term may be extended
by one additional 180-day extension period by the general manager. In order
to obtain such an extension, the holder of a well construction permit must
submit a written request to the general manager explaining the need for the
extension. If the holder of the well construction permit demonstrates a need
for an extension and demonstrates that the permit holder's failure to complete
the well within the original 180-day term is not due to the permit holder's
own lack of diligence, then the general manager may authorize the extension.
Upon expiration of the term, including any extension granted, the permit automatically
expires and is canceled.
Section 707.411(3)(C)
Subparagraph (3)(C) of §707.411, as proposed, requires that applications
for a well construction permit include a map showing the location of "any
possible sources of contamination such as existing and proposed livestock
or poultry yards, septic system absorption fields, underground or above ground
petroleum storage tanks."
SAWS expresses concern over the difficulty of complying with identification
of potential sources of well contamination. SAWS recommends that a specific
radius of concern for the identification of potential sources of well contamination
be established and proposes that §707.411(3)(C) read as follows:
any possible sources of contamination within a quarter of a mile of the
proposed location, such as . . . .
The Authority agrees, in part, and disagrees, in part, with the commenter.
Although the Authority needs to be able to collect information regarding possible
sources of contamination to Edwards Aquifer groundwater (e.g., livestock or
poultry yards, septic system absorption fields, underground or above ground
petroleum storage tanks), it is the Authority's intent to assure that its
application requirements are reasonable. The Authority has therefore agreed
to modify §707.411(3)(C) as follows.
(C) any possible sources of contamination
within
500 feet of the well
...
Earl & Brown urge that the word "known" be inserted into subparagraph
(C) of §707.411(3) so that it requires the submittal of a map showing
the location of:
. . . (C) any possible sources of
known
contamination such as existing and proposed livestock or poultry yards, septic
system absorption fields, underground or above ground petroleum storage tanks;
The Authority agrees, in part, and disagrees, in part, with the commenter.
While the Authority agrees with the commenter that there should be some limit
on an applicant's duty to investigate the existence and location of sources
of possible contamination, the commenter's suggested revision to this rule
does not provide a clear standard. In an effort to provide a more workable
standard, the Authority has modified this provision to require the submittal
of a map showing the location of:
. . . (C) any possible sources of contamination
that are known or should be known to the applicant
such as existing
and proposed livestock or poultry yards, septic system absorption fields,
underground or above ground petroleum storage tanks;
Section 707.412(6)(N)
Section 707.412 concerns the contents of meter registrations. Subparagraph
(6)(N) of that section, as proposed, requires the description of the meter
contained in the registration to include "the maximum period of time and maximum
amount that the totalizer may record the cumulative amount of groundwater
withdrawn from the aquifer."
SAWS urges that the above language be amended because a meter totalizer
records the cumulative amount pumped, not the time. SAWS suggests that the
section should be amended so that it reads as follows:
the maximum amount that the totalizer may record of groundwater withdrawn
from the aquifer.
The Authority agrees, in part, and disagrees, in part, with the commenter.
The Authority agrees that regarding the capacity of the totalizer, the rule
should require only the maximum cumulative amount of groundwater withdrawn
from the aquifer that the meter is capable of measuring. However, the Authority
disagrees that the commenters suggested revisions are the best way to achieve
this goal. Accordingly, the Authority will amend the rule to read as follows:
the maximum cumulative amount of groundwater withdrawn from the aquifer
that the totalizer is capable of measuring.
Section 707.413
Section 707.413 concerns the required contents for an application for a
permit to install or modify a meter. Earl & Brown proposes the addition
of the italicized language to §707.413:
Subject to those limitations set forth in §707.310,
in addition to the information specified in §707.401 of this
title (relating to Contents of and Requirements for All Application and Registrations),
an application for a permit to install or modify meter shall contain the following
. . . .
The Authority disagrees with the commenter. Section 707.413 concerns the
required contents of an application for a permit to install or modify a meter.
Under §707.309, only persons seeking to install a new meter or modify
an existing meter must file an application for a permit to install or modify
a meter. Section 707.310 states the requirement that owners of existing wells
equipped with meter register the meter with the Authority. Section 707.310
also clarifies that the requirement to register a meter does not apply to
any meter owned by the Authority. The requirement to file a meter registration
and the requirement to file an application to install or modify a meter are
separate and independent from each other. Accordingly, it would make no sense
to make the terms of the rule listing the required contents of an application
for a permit to install or modify a meter subject to any of the limitations
set forth in the rule that requires certain well owners to register a meter.
Section 707.414
Section 707.414 concerns the contents of an application to transfer interim
authorization status and amend application for initial regular permit.
SAWS suggests an amendment to the title and text of §707.414 to clarify
that a transfer of groundwater withdrawal rights under interim authorization
does not modify or amend an application for an initial regular permit to read
as follows:
Applications to Transfer Interim Authorization Status
In addition . . . , an application to transfer interim authorization status
shall contain . . . .
The Authority disagrees with the commenter. Anytime a groundwater withdrawal
right under interim authorization is transferred, this transfer results in
a change to the application for initial regular permit that serves as the
basis for the interim authorization right transferred. The application should
therefore be amended in conjunction with the transfer.
Earl & Brown propose the addition of new paragraph (10) at the end
of §707.414 which would require the following item to be included in
an application to transfer interim authorization status and amend application
for initial regular permit :
The meter reading taken in the last day of the month that immediately proceeds
the month in which the application to transfer interim authorization status
and amend application for initial regular permit is being submitted to the
Authority.
The Authority agrees, in part, and disagrees, in part, with the commenter.
The Authority agrees that a provision similar to the one that Earl & Brown
suggest will be useful in minimizing and allowing the resolution of conflicts
regarding the amount of aquifer management fees that are to be assessed against
the transferee versus the transferor. The Authority has modified §707.414
by adding paragraph (9) as set forth below, and has renumbered the remaining
subsections accordingly.
(9) A meter reading taken on the last day of the month immediately preceding
the month in which the application to transfer interim authorization status
and amend application for initial regular permit is submitted to the Authority.
The Authority has added the same requirement to §707.415.
Section 707.414(8) and §707.415(8)
Paragraphs (8) of §707.414 and §707.415 require that applications
to transfer interim authorization status and amend application for initial
regular permit and applications to transfer and amend permit contain the price
per acre-foot paid for the water right transferred.
Earl & Brown contend that these provisions should be deleted because
the price per acre foot paid for the transfer of a groundwater withdrawal
right is privileged and confidential. Further, Earl & Brown assert that
the Authority has no statutory authority to require such information and the
price per acre foot is irrelevant to the legal merits of a proposed transfer
of groundwater withdrawal rights. Finally, Earl & Brown state such disclosure
is not required by §1.34 of the Act or any other provision of the Act.
SAWS expresses concern that the Authority can only demand disclosure of
transaction prices from public entities. SAWS predicts that many prices will
be listed as "$10 and other consideration." To reflect what SAWS believes
the Authority can require, SAWS suggests that the italicized language be added
to §707.414(8) and
707.415(8):
(8) The price per acre-foot
for transactions involving
a public entity.
The Authority disagrees with the commenters. While §1.34 of the Act
governs the ability of permit applicants or permit holders to transfer their
rights, only certain types of transfers are allowed by that section. Accordingly,
the Authority may require persons who seek to transfer water rights to file
an application with the Authority so that the Authority can approve or disapprove
the proposed transfer. Such an approval or disapproval is not a legally binding
determination regarding the ownership of property equivalent to a judicial
decision declaring the respective rights to property. Rather, it is an administrative
function that the Authority must perform in order to effectively manage its
permit program and keep track of permitted groundwater withdrawal rights.
The Authority is not aware of any law that makes the price paid for Edwards
Aquifer groundwater rights privileged and confidential. Moreover, in requiring
such an application, the Authority may require persons to submit information
that would enable and assist the Authority in performing its statutorily-mandated
duties. In fulfilling some of those duties, the Authority may be required
to pay market prices for the purchase, proportional adjustment, or "buy down"
of water rights. To do so, the Authority must have the means to determine
the market prices of groundwater withdrawal rights within the Edwards Aquifer
region. Requiring the inclusion of prices in such applications allows the
Authority to develop such information.
However, comments on §707.414(8) and §707.415(8) have caused
the Authority to re-examine these provisions. Specifically, the Authority
now realizes that some transfers of water rights may not involve a price (e.g.,
a gift). To allow for such situations, the Authority has modified §707.414(8)
and §707.415(8) to read as follows:
(8) The price per acre-foot or other consideration.
These changes are not meant to relieve persons filing an application to
transfer from the requirement to disclose a price where a price was actually
paid.
Section 707.416(6)
Section 707.416 concerns the contents of an application for exempt well
status. Paragraph (6) of §707.416, as proposed, requires such an application
to contain "the maximum rate of withdrawal of groundwater that the well (or
proposed well) is (or will be) is capable of in gallons per minute or cubic
feet per second."
SAWS suggests a clarification of "rate of withdrawal" through the addition
to Paragraph (6) of the italicized language indicated below:
Rate of Withdrawal. The maximum rate of withdrawal of groundwater that
the well (or proposed well) is (or will be) ...is capable of
producing
in gallons per minute . . . .
Although SAWS references Paragraph (5) of §707.416, an examination
of the substance of the comment itself indicates that SAWS probably meant
to comment on Paragraph (6).
The Authority agrees with the commenter. The omission of the word "producing"
was inadvertent. The Authority has modified §707.416(6) accordingly.
Section 707.416(11)
Paragraph (11) of §707.416 requires an application for exempt well
status to contain "a statement as to whether the well (or proposed well) is
within a subdivision requiring platting pursuant to Chapter 711, subchapter
C, of this title."
SAWS suggests that the Authority eliminate paragraph (11) because it considers
it to be a duplicate entry in the list of items in an application for exempt
well status.
The Authority disagrees with the commenter. The Authority suspects that
SAWS believed that paragraphs (11) and (12) of §707.416 to be duplicates.
While they are similar, they are not duplicates. Paragraph (11) requires an
application for exempt well status to contain "a statement as to whether the
well (or proposed well) is
within
a subdivision
requiring platting pursuant to Chapter 711, subchapter C, of this title."
(Emphasis added.) Paragraph (12), on the other hand, requires such an application
to contain "a statement as to whether the well (or proposed well)
serves
(or
will serve
) a subdivision
requiring platting pursuant to Chapter 711, subchapter C, of this title."
(Emphasis added.)
Section 707.416(14)
Paragraph (14) of §707.416 requires an application for exempt well
status to contain "any other information as may be required by the general
manager." Earl & Brown urge the deletion of paragraph (14) because of
their concern that it allows the General Manager discretion in requiring certain
information from some applicants but not others. All required information,
Earl & Brown argue, should be specified in the rules and required of all
applicants.
The Authority disagrees with the commenter. The Authority, acting through
its general manager, will need to exercise flexibility in its processing and
review of applications for exempt well status. The processing and review of
many applications will be straight-forward, presenting a generic and well-defined
set of issues to be examined. Other applications, however, will be unique
and will present special issues and will raise question that are particular
to that application. This rule, as written, provides the Authority with some
flexibility in dealing with unique applications.
Section 707.422(10)(E)
Section 707.422 concerns the contents of an application for an agricultural
conservation loan. Subparagraph (E) of paragraph (10) of §707.422, as
proposed, requires that the applicant to agree that the "that the applicant
is current on all Edwards Aquifer aquifer management fees payable to the Authority
and has a property installed and functioning meter on any Edwards Aquifer
well related to the equipment to be financed."
SAWS points out a typographical error in this subparagraph. The rule, according
to SAWS, should require the applicant to agree "that the applicant is current
on all Edwards Aquifer aquifer management fees payable to the Authority and
has a
properly
installed and functioning meter
on any Edwards Aquifer well related to the equipment to be financed."
The Authority agrees with the commenter. The Authority has modified §707.422(10)(E)
as set forth above to correct this error.
Section 707.424
Section 707.424 concerns the contents of an application for declaration
of abandonment of a groundwater withdrawal permit. Earl & Brown contend
that §707.424 should include a brief description explaining what constitutes
abandonment of a groundwater withdrawal permit. At a minimum, Earl & Brown
suggest the rules should delineate the amount of time that must elapse before
a well may be deemed abandoned.
The Authority disagrees with the commenter. The Authority recently proposed
Subchapter H of Chapter 711 of the Authority's rules. Subchapter H expressly
governs the abandonment and cancellation of Edwards Aquifer permitting groundwater
withdrawal rights. Proposed §711.196 of subchapter H clarifies what constitutes
abandonment of a groundwater withdrawal permit. These concerns are thus addressed
elsewhere in the Authority's rules.
Section 707.424(4)
Paragraph (4) of §707.424 requires an application for declaration
of abandonment of a groundwater withdrawal permit to contain "any other information
as may be required by the general manager."
Earl & Brown assert that this paragraph gives the general manager too
much discretion, allowing the general manager to require information from
some applicants but not others, and therefore should be deleted. Earl &
Brown assert that the Authority should require uniform information of all
applicants and should clearly state what information is required in the rules.
The Authority disagrees with the commenter. The Authority, acting through
its general manager, will need to exercise flexibility in its processing and
review of applications for declaration of abandonment of a groundwater withdrawal
permit. The processing and review of many applications will be straight-forward,
presenting a generic and well-defined set of issues to be examined. Other
applications, however, will be unique and will present special issues and
will raise questions that are particular to that application. This rule provides
the Authority with some necessary flexibility in dealing with unique applications.
Section 707.426
Section 707.426 concerns the contents of an application to cancel a groundwater
withdrawal permit.
In connection with §707.425, SAWS states that it believes it is unnecessary
for the Authority to try to give meaning to every action in §1.16(g)
of the Act. SAWS does not want to see unused permitted rights canceled by
the Authority because SAWS contends these unused rights serve a conservation
purpose and should not be canceled. Accordingly, SAWS recommends deleting §707.426
in its entirety.
The Authority disagrees with the commenter. Section 707.426 only lists
the contents required for the an application to cancel a groundwater withdrawal
permit. The substantive rules that deal with cancellation are found in the
Chapter 711, Subchapter H, rules, recently proposed by the Authority. Comments
as to the meaning assigned by the Authority to the term "cancelled" as used
in §1.16(a) of the Act are more properly directed at the Subchapter H
rules. Moreover, contrary to SAWS' suggestion, the cancellation of permitted
rights does not does not defeat the Authority's conservation purpose. The
cancellation of a permitted right does not mean that the right will necessarily
be reallocated.
Inland asserts that non-use is an insufficient reason for the cancellation
of a permit. Inland contends that this provision promotes waste of a natural
resource and believes that it will be found unconstitutional. Inland recommends
deleting this section in its entirety.
The Authority disagrees with the commenter. First, it is unclear what criteria
in addition to non-use Inland is suggesting should be considered necessary
to justify the cancellation of a permitted right. Second, the Authority does
not understand how a rule stating the required contents of an application
to cancel a groundwater withdrawal permit promotes waste. In any event, as
stated above, substantive comments regarding the meaning of "cancelled" as
used in the §1.16(g) Act are more properly directed at the Subchapter
H rules. Third, and as noted above, the cancellation of permitted rights does
not does not defeat the Authority's conservation purpose. Finally, although
the Authority does not believe its substantive rules regarding cancellation
of permitted rights are unconstitutional, if and when they are held unconstitutional,
those rules will be voided and repealed.
Section 707.426(2)
Paragraph (2) of §707.426 requires that an application to cancel a
groundwater withdrawal permit contain "a detailed description of all facts
demonstrating that all or part of the groundwater authorized to be withdrawn
pursuant to a groundwater withdrawal permit issued by the authority has not
been put to beneficial use at any time during the 10-year period immediately
preceding the filing of an application to cancel a groundwater withdrawal
permit."
Verstuyft Farms explains that weather conditions may cause an irrigator
to use more water one year and less the next. Verstuyft maintains that irrigators
should not be penalized for not using all permitted water within a 10 year
period. Rather, Verstyuft recommends that the unused portion of the permitted
water should either be considered conservation of a natural resource or the
permit holder should be allowed to lease that unused amount.
The Authority disagrees with the commenter. Section 707.426 only lists
the contents required for the an application to cancel a groundwater withdrawal
permit. The substantive rules that deal with cancellation are found in the
Chapter 711, Subchapter H, rules, recently proposed by the Authority. Specifically,
proposed §711.202 provides substantive standards regarding the cancellation
of groundwater withdrawal permits. Comments regarding whether and under what
conditions a permitted right should be cancelled are properly directed toward
the Subchapter H rules.
Section 707.426(3)
Paragraph (3) of §707.426 requires that an application to cancel a
groundwater withdrawal permit contain "any other information as may be required
by the general manager." Earl & Brown assert that this paragraph gives
the general manager too much discretion, allowing the general manager to require
information from some applicants but not others and therefore should be deleted.
Earl & Brown assert that the Authority should require uniform information
of all applicants and should clearly state what information is required in
the rules.
The Authority disagrees with the commenter. The Authority, acting through
its general manager, will need to exercise flexibility in its processing and
review of applications to cancel a groundwater withdrawal permit. The processing
and review of many applications will be straight-forward, presenting a generic
and well-defined set of issues to be examined. Other applications, however,
will be unique and will present special issues and will raise question that
are particular to that application. This rule provides the Authority with
some necessary flexibility in dealing with unique applications.
Section 707.428
Section 707.428 concerns the contents of applications to convert base irrigation
groundwater. SAWS asserts that the term "base irrigation" should be deleted
in favor of more generic language based on the possibility that the restriction
on transfer of "base irrigation" groundwater is challenged or overturned.
SAWS recommends that §707.428 be amended to read as follows:
Application to Transfer Irrigation Groundwater.
In addition . . . an application to transfer irrigation shall contain...
(2) . . . to place irrigation groundwater to beneficial use at...
The Authority disagrees with the commenter. The Authority declines to assume
that its rules or its interpretation of the Act will be challenged and overturned.
If and when the Authority's interpretations concerning the transferability
of groundwater under §1.34 of the Act are successfully challenged, the
Authority will, at that time, revise its rules as necessary.
Section 707.428(3)(F)
Paragraph (3) of §707.428 requires the inclusion of certain items
in an application to convert base irrigation groundwater if the proposed conversion
is based on conservation (as opposed to physical impossibility). Subparagraph
(F) of paragraph (3), as proposed, requires an application to include "a statement
describing the accuracy of the water conservation equipment."
SAWS recommends that the language in subparagraph (F) be modified so that
it reads as follows:
(F) Efficiency. A statement describing the efficiency of the water conservation
equipment and supporting documentation from a recognized source.
The Authority agrees, in part, and disagrees, in part with the commenter.
First, the Authority agrees that the term "efficiency" more appropriately
describes the information sought by the Authority. Accordingly, the Authority
has modified §707.428(3)(F) as shown below:
(F) Efficiency. A statement describing the efficiency of the water conservation
equipment.
Second, the Authority disagrees that it is appropriate to add an express
requirement for supporting documentation from a recognized source in this
subparagraph. There are many instances in these rules where items required
to be included in an application may need to be supported by various types
of documentation. The rules do not specify what types of documentation are
appropriate in each instance. Section 707.302 of these rules requires that
"any person who wishes to obtain a permit, authorization, or other approval
from the Authority shall submit a written application to the Authority on
a form provided by the general manager." The Authority expects that the form
provided by the general manager, and its associated instructions, will provide
information on the appropriate supporting documentation for each type of application.
Earl & Brown request that a brief explanation be added to §707.428
describing the conditions or circumstances under which an applicant may submit
an application to convert base irrigation groundwater (i.e., physical impossibility
and/or conservation).
The Authority disagrees with the commenter. Substantive rules dealing with
the transfer of permitted rights and the conversion of base irrigation groundwater
(Chapter 711, subchapter L) have recently been proposed. Specifically, §711.342
describes the conditions or circumstances under which the Authority will allow
the conversion of base irrigation groundwater. The substance of these rules
may satisfy the concern expressed by the commenter.
Earl & Brown propose adding a subsection to §707.428 that would
be titled Economic and Practicability and would read:
If the application is based on Economic and Practicability, a detailed
description of all facts demonstrating that it is no longer economically and
practicable the owner of a regular permit, or an applicant for a regular permit
for a well qualifying for interim authorization status, to place base irrigation
groundwater to beneficial use at the place of use identified in the regular
permit for the application for an initial regular permit.
The Authority disagrees with the commenter. The Authority has determined
in its proposed substantive rules governing transfers of groundwater withdrawal
rights (Chapter 711, Subchapter L) that the only grounds for conversion of
base irrigation groundwater are physical impossibility and conservation. This
determination is set forth in proposed §711.342 which is the substantive
rule governing conversion of base irrigation groundwater. Therefore, comments
urging an additional ground for the conversion or base irrigation groundwater
are properly directed toward that substantive rule.
Section 707.502(b)(1)
Section 707.502 provides procedures relating to the general manager's review
of applications and registrations for administrative completeness. Paragraph
(b)(1) of §707.502 provides that "in reviewing an application or registration
for administrative completeness, the general manager shall assess whether
the application or registration contains the necessary information in legible
form which will allow . . . the general manager to forward the application
or registration to the docket clerk to be filed and maintained in the permanent
records of the Authority."
Earl & Brown assert that this statement is grammatically incorrect
and should possibly read:
"The General Manager is to forward the Application of Registration to the
Docket Clerk to be filed and maintained in the permanent records of the Authority."
The Authority disagrees with the commenter. The Authority believes that §707.502(b)(1),
as written, is grammatically correct.
Section 707.504
Section 707.504 provides procedures related to the technical review, by
Authority staff, of applications. Earl & Brown propose to add a new subsection
to §707.504 - subsection (d) - to read as follows:
In the event the Authority staff fails to complete its technical review
of an application within 90 business days of the determination, by the General
Manager, of the applications administrative completeness, applications shall
be administratively deemed approved as a matter of law.
The Authority disagrees with the commenter. First, the result of the staff's
completion of the technical review is not an "approval" of an application
as the above language suggests. Rather, the result of completing the technical
review is that the general manager can then prepare a proposed permit and
technical summary based on that technical review. See §707.507. Second,
the technical review process cannot be side-stepped by operation of law. Without
completion of the technical review, there can be no basis for the issuance
of a proposed permit or proposed denial.
Section 707.504(b)
Subsection (b) of §707.504, as proposed, states, in part, that "the
applicant shall be promptly notified of any additional material necessary
for a complete technical review."
Earl & Brown suggest that the first sentence of §707.504(b), should
be clarified so that it specifies that "the applicant shall be promptly notified
Sections 707.507, .508, .509, .510 and .515
Sections 707.507, .508, .509, .510, and .515, provide procedures pertaining
to the proposed permit and technical summary, referral to docket clerk, publication
of notice of proposed permit and technical summary in the
Texas Register
and local newspapers, and actions by the general manager,
respectively.
Regarding these sections generally, Inland states that while it is appropriate
for the Board to vote on all initial regular permit applications, any future
withdrawal permit applications, including term, recharge and emergency permits,
should be handled administratively. Inland urges that the rules should be
changed to provide "consistency and certainty and to have all applications
handled administratively."
The Board disagrees with the commenter. The Authority is willing to delegate
to the general manager the authority to "handle administratively" only the
granting of those applications listed in §707.515(b). The Authority is
not willing to delegate authority to the general manger to act or term, recharge
and emergency permits, and other permits which may affect the withdrawal rights
of all other users.
Section 707.507(b)
Section 707.507 provides procedures regarding the preparation of a proposed
permit and technical summary by the general manager. Subsection (b) of §707.507
provides various details regarding what the general manager is to do with
the proposed permit and technical summary or proposed denial.
Earl & Brown assert that subsection (b) of §707.507 should contain
a statement explaining that after the completion of a technical review, the
general manager shall provide the applicant with a copy of the proposed permit.
Earl & Brown urge that the sentence in §707.507(b) which reads, in
part: "the proposed permit shall be filed with the Docket Clerk . . ." should
read "the proposed permit shall be
mailed to the
applicant and
filed with the docket clerk."
The Authority disagrees with the commenter. Such a modification to subsection
(b) is not necessary in light of the fact that subsection (d) of §707.507
states that "the general manager will notify the applicant by mail that technical
review of the application is complete and provide the applicant with a copy
of the proposed permit (or denial) and the technical summary."
Earl & Brown urge that the word "detailed" be added to the last sentence
of §707.507(b) so as to specify that if the general manager recommends
to deny an application, "the general manager shall prepare a proposed denial
stating the
detailed
reasons for that recommendation."
The Authority disagrees with the commenter. The Authority believes that
it is sufficient to require the general manager to state the "reasons" for
the denial.
Section 707.515(b)(4)(A)
Section 707.515 delegates authority to the general manager to take action
on behalf of the Board of Directors of the Authority for certain actions and
provides procedures regarding such actions. Subsection (b) of §707.515
lists the types of permits that the general manager may grant. Among those
types, subparagraph (4)(A) of subsection (b) states that the general manager
may grant "applications to . . . transfer interim authorization status and
amend application for initial regular permit" in certain circumstances.
SAWS contends that a transfer of water rights under interim authorization
does not modify or amend an application for an initial regular permit. Accordingly,
SAWS suggests deleting the language "and amend application for initial regular
permit" from § 707.515(4)(A):
application to: (A) transfer interim authorization status and. . . .
The Authority disagrees with the commenter. Anytime a groundwater withdrawal
right under interim authorization is transferred, this transfer results in
a change to the application for initial regular permit that serves as the
basis for the interim authorization right transferred. The application should
therefore be amended in conjunction with the transfer.
Section 707.517
Section 707.517 provides "special procedures regarding loss of exempt well
status." TFB contends that the procedure set forth in this section by which
the Authority may cancel exempt well status, after the Authority has received
notice that the well no longer qualifies as exempt, inappropriately places
the burden on the well owner to demonstrate that the well should not lose
exempt status. TFB asserts that there seems to be no requirement calling for
the Authority to confirm information it receives despite the possibility that
the information could be false or maliciously submitted. Additionally, according
to TFB, if the well owner fails to submit information showing that he is entitled
to exempt status, the general manager is required to submit a proposed denial
of that status to the Board. TFB suggests removing the section or refining
it so as not to place the regulatory burden on the exempt well owner without
further Authority verification of the received information.
The Authority disagrees with the commenter. First, it should be noted that
the general manager has no power to cancel or revoke exempt well status. The
general manager is only entitled to submit a proposal for presentation to
the Board of Directors that exempt well status be withdrawn. With regard to
the consideration of such a matter by the Board, there is no suggestion that
the well owner has the burden to show that exempt well status should not be
revoked. Rather, the general manager would have the burden of showing that
a revocation of exempt well status is appropriate. The overall purpose of §707.517
is to provide the general manager with a administrative fact-finding device.
The failure of well owner to submit information in response to an inquiry
by the general manager does not result in a final decision revoking exempt
well status, but only in a referral of the matter to the Board of Directors.
John Brigman stated that §707.517 should be written better to require
the Authority to have proof that a well no longer qualifies as an exempt well.
The Authority disagrees with the commenter. As explained above, the general
manager has no power to cancel or revoke exempt well status but may only submit
a proposal for presentation to the Board of Directors that exempt well status
be withdrawn. If and when such a matter comes before the Board, the general
manager would have to demonstrate to the Board that revocation of exempt well
status is appropriate.
Section 707.601
Section 707.601 sets forth the types of applications on which contested
case hearings may be requested and granted. Earl & Brown propose deleting
the portions of this section that allow the right to request a contested case
hearing on a transfer of groundwater withdrawal rights (either interim authorization
or permitted rights) where the location of the point of withdrawal to which
the transfer is proposed is east of Cibolo Creek. Earl & Brown contend
that the Act does not provide the Authority the power to treat the transfer
of rights to points east of Cibolo Creek, in a way that is different and inconsistent
from other transfers.
The Authority disagrees with the commenter. This procedural rule is consistent
with the recently proposed substantive rules (Chapter 711, Subchapter L) governing
transfers of groundwater rights. Specifically, §711.352 imposes stringent
criteria for the approval of transfers where the point of withdrawal of a
right to withdraw groundwater is transferred from west to east of Cibolo Creek.
To the extent that the Authority treats transfers that propose to move water
rights from west to east of Cibolo Creek differently from other transfers,
it would be appropriate to comment on the substantive rule that imposes the
more stringent criteria on such transfers (as opposed to the procedural rule).
Moreover, the Authority has the discretion to treat transfers of water rights
from west to east of Cibolo Creek differently in order to fulfill its duty
to protect springflows at San Marcos and Comal Springs as well as habitat
and endangered and threatened species in those areas.
However, Earl & Brown's comment on §707.601 has led the Authority
to discover some inconsistencies between its procedural and substantive rules.
To achieve greater consistency with §711.352, the Authority has modified §§707.510,
707.515, and 707.601 so that they read as follows:
Section 707.510. Publication of Notice of Proposed Permit and Technical
Summary in the
Texas Register
and in Local
Newspapers.
(a) Applicability. . . . This section also applies to:
(1) applications to transfer interim authorization status and amend application
for initial regular permit where the right to withdraw groundwater is to be
transferred from west of Cibolo Creek to east of Cibolo Creek; and
(2) applications to transfer and amend permit where the right to withdraw
groundwater is to be transferred from west of Cibolo Creek to east of Cibolo
Creek.
Section 707.515. Actions on Applications by the General Manager. . . .
(b) The general manager may grant the following: . . .
(4) applications to:
(A) transfer interim authorization status and amend application for initial
regular permit; or
(B) transfer and amend permit in all instances other than where the right
to withdraw groundwater is to be transferred from west of Cibolo Creek to
east of Cibolo Creek;
Section 707.601. Applicability
. . . Contested case hearings may also be requested and granted in connection
with:
(1) applications to transfer interim authorization status and amend application
for initial regular permit where the right to withdraw groundwater is to be
transferred from west of Cibolo Creek to east of Cibolo Creek; and
(2) applications to transfer and amend permit, where the right to withdraw
groundwater is to be transferred from west of Cibolo Creek to east of Cibolo
Creek.
Section 707.602
Section 707.602 lists those persons who are entitled to request a contested
case hearing. They are: the applicant for that permit or approval; an applicant
for another groundwater withdrawal permit issued by the Authority; and any
permittee holding a groundwater withdrawal permit issued by the Authority.
Tom Wassenich states that he is concerned that a citizen or citizens group
cannot request a contested case hearing unless they have a permit. He objects
to this and believes there are many interested parties with good intentions
who should be able to contest an application.
The Authority disagrees with the commenter. The Authority has determined
that citizens and groups that are not applicants or permittees do not have
standing to request a contested case hearing. The purpose of the Authority's
procedures regarding initial regular permits is to determine who has statutory-based
rights to withdraw groundwater from the Edwards Aquifer. These procedures
have only incidental protective effects on downstream users, springflows,
habitat and endangered species. The Authority has other programs which are
primarily designed to advance these goals.
The process of issuing initial regular permits is a process by which a
finite amount of water (as determined by the Legislature) is allocated to
various persons possessing statutory rights to some of that water. If a person
is not an applicant for an initial regular permit, that person has no interest
in the determination of the amount of water that may be allocated to a particular
applicant. Accordingly, the Authority is justified in determining that contested
case hearings on applications for initial regular permits should not be a
forum for persons and groups who are not applicants to argue their individual
interest or their version of the public interest.
Louis Obdyke states that he would like the right to comment on permits
and applications without being required to be an applicant or permittee. To
the extent that Mr. Obdyke means that he would like to be a party to contested
case hearings, the Authority disagrees with the commenter. As noted above,
the Authority has determined that non-applicants and non-permittees do not
have such standing. However, to the extent that Mr. Obdyke means that he would
like to offer public comment on any permit or application being considered
by the Authority at a meeting of the Board of Directors of the Authority,
Mr. Obdyke may, consistent with Subchapter C, Chapter 707 of the Authority's
rules, do so.
Section 707.604
Section 707.604, as proposed, states that "unless a different time limit
is specified in the notice of the proposed permit and technical summary, a
hearing request must be filed with the docket clerk on or before the 30th
day following the date of publication of that notice in the
Texas Register
."
SAWS expresses concern about a possible arbitrary decrease in the time
allowed to request a contest case hearing. SAWS believes a period shorter
than 30 days should not be considered and recommends that the rule be amended
so that it reads as follows:
Unless a longer time limit is specified in the notice of proposed permit
and technical summary . . . .
The Authority agrees with the commenter that a period shorter than 30 days
should not be considered. Accordingly, the Authority has modified §707.604
as indicated above.
With respect to §707.604, Dianne Wassenich states that ordinary citizens
do not read the
Texas Register
and that it
makes more sense to publish the proposed permit and technical summary in the
town in which the permit is being applied for. The Authority disagrees with
the commenter. Section 707.510(b) of the Authority's rules already requires
the Authority to publish a notice of a proposed permit and technical summary
in a newspaper of general circulation throughout the Authority's jurisdiction
and at least five other newspapers within the jurisdiction of the Authority,
in addition to the
Texas Register
. The reference
to publication in the
Texas Register
in §707.604
concerns only the date on which the period to file a hearing request begins.
Section 707.605
Section 707.605 provides the procedures applicable to the processing of
a request for a contested case hearing by the Authority. As proposed, this
section directs the docket clerk to provide notice to the applicant, general
manager and any persons making a timely hearing request at least 20 days prior
to the first meeting at which the Board considers the request. Although the
Authority did not receive comments on this rule, the Authority has noticed
a typographical error in the rule as proposed. The Authority meant to propose
that the docket clerk provide notice of hearing request at least 30 days prior
to the first meeting at which the board considers the request. Thirty days
notice provides a person with an opportunity to submit a written response
pursuant to §707.605(d). The Authority has modified §707.605 accordingly.
Section 707.606(c)(1)
Section 707.606 provides procedures regarding action by the Board of Directors
of the Authority on a request for a contested case hearing. Subsection (c)
states criteria which, if met, shall result in the granting of a request for
a contested case hearing. Paragraph (1) of subsection (c) requires that a
request for a contested case hearing be "supported by competent evidence."
TFB asserts that before September 1, 1999, §5.115(a) of the Texas
Water Code articulated a similar standard but that in 1999, the Legislature
deleted the "competent evidence" requirement from §5.115. TFB asserts
that this phrase was hard to define and the TNRCC encountered difficulty in
its implementation. TFB urges the Authority to define "competent evidence"
in a way that provides flexibility and curtails confusion.
The Authority disagrees with the commenter. The Authority does not believe
there is a need to provide a rule defining the term "competent evidence."
Numerous other statutes governing administrative agency proceedings employ
this term. See, e.g., Texas Natural Resources Code, Annotated, §51.189(c)
(Vernon Supp. 2000). If a problem predicted by TFB is indeed encountered,
the Authority may reconsider this decision.
Section 707.610(d)
Section 707.610 provides procedures regarding the designation of parties
in contested case hearings. Subsection (d) of §707.610 provides that
"an applicant for an initial regular permit who files a notice of party status
pertaining to §707.626 (relating to Designation of Party Status) is a
party in all contested case hearings for which notice has been given."
Earl & Brown argue that this section should be deleted because it may
violate other statutes and, seemingly, only serves the San Antonio Water System
("SAWS"). According to Earl & Brown, as a pre-requisite to obtaining party
status, a person must demonstrate an interest in the application being heard.
Earl & Brown therefore urge that all parties, including SAWS, must provide
convincing evidence showing a vested interest in each and every application
they wish to protest. Earl & Brown objects to blanket protests which would
allow parties to obtain party status in all pending groundwater applications.
The Authority disagrees with the commenter. First, although SAWS advocated
the inclusion of this provision, there is no reason why other parties could
not take advantage of it. Second, the Authority is not aware of any statute
that this rule would violate. Third, contrary to Earl & Brown's assertions
there is no requirement that a party "demonstrate an interest in the application
being heard" - in order to obtain party status. Rather, party status is conferred
on: (1) the general manager; (2) the applicant; (3) the person who requested
the contested case hearing that was granted; and (4) an applicant for an initial
regular permit who files a notice of party status under §707.626. Under §707.602,
the categories of persons who may request a contested case hearing are: the
applicant for that permit or approval; an applicant for another groundwater
withdrawal permit issued by the Authority; and any permittee holding a groundwater
withdrawal permit issued by the Authority. The Authority has determined that
those categories of persons, by nature of their status, have an interest in
all applications sufficient to justify party status in a contested case hearing.
As a result of §707.602, any applicant for an initial regular permit
has the right to request a contested case hearing on every application for
an initial regular permit and may gain party status in every resulting contested
case hearing. Subsection (d) of §707.610, in conjunction with §707.626,
reduces administrative burdens on both applicants and the Authority by allowing
an applicant, through one filing, to request party status in several or all
contested case hearings.
Section 707.611
Section 707.611 states that in a contested case hearing, "the burden of
proof is on the applicant to establish by convincing evidence that he is entitled
to have an application for a groundwater withdrawal permit granted." Earl &
Brown propose that the following sentence be added to the end of §707.611:
However, once an applicant has presented convincing evidence that they
are entitled to have an application for groundwater withdrawal permit granted,
the burden of proof shall then shift to the protestant to establish convincing
evidence that the applicant is not entitled to a groundwater withdrawal permit
either in the amount originally applied for or as a complete denial of a permit
The Authority disagrees with the commenter. If and when an applicant shows
by convincing evidence that they are entitled to a groundwater withdrawal
permit, the contested case is over. It makes no sense for the burden to then
shift to the protestant to prove otherwise.
Section 707.614(b)(1)
Section 707.614 provides procedures related to a State Office of Administrative
Hearings (SOAH) judge certifying a question to the Authority. Subsection (b)
of §707.614 enumerates the type of issues or questions that appropriate
for certification. Under paragraph (1) of subsection (b), policy questions
that are appropriate for certification include "the Authority's interpretation
of its rules and applicable statutes."
Earl & Brown assert that if this rule is adopted by the Authority,
motions should be filed with the Authority requesting that a court certify
a question to the Authority asking the Authority to interpret Article I, §1.34
Item C, of the Act.
The Authority disagrees with the commenter. Earl & Brown seem to misunderstand
the subject and purpose of §707.614. This section does not enable or
encourage the Authority to request that a court certify a question to the
Authority. Rather, this rule is meant to provide guidance to a SOAH Administrative
Law Judge who has been assigned to hear a contested case referred to SOAH
by the Authority pursuant to §§707.606, 707.608, and 707.609, as
to when it is proper to certify a question to the Authority. In such a case,
the decision to certify the question lies with the SOAH judge, although a
motion to certify may be filed by the general manager.
Section 707.621(b)
Section 707.621 provides procedures relating to decisions by the Board
of Directors of the Authority in a contested case hearing following the filing
of a proposal for decision (PFD) by a SOAH judge. Subsection (b) of §707.621
provides that "the board's decision will be rendered no more than 90 days
after the date of that the proposal for decision is presented to the board,
unless the board determines that there is good cause for continuing the proceeding."
Earl & Brown assert that a grammatical error exists in §707.621(b)
and suggest the sentence was meant to read as follows: "The Board's decision
will be rendered no more than ninety (90) days after the date that the proposal
for decision is presented to the Board . . . ."
The Authority disagrees with the commenter. The Authority does not believe
that §707.621(b) contains a grammatical error. The Authority does not
consider using a numeral instead of spelling a number and including the numeral
in parentheses to be a grammatical error.
Earl & Brown recommend adding the following sentence to the end of §707.621(b):
In the absence of a showing of good cause, if the Board fails to render
a decision 90 days after the date that the proposal for decision is presented
to the Board, the proposal for decision shall be deemed administratively approved
as a matter of law.
The Authority disagrees with the commenter. To allow a permit to be granted
as a matter of law through the expiration of a 90-day deadline would delegate
too much authority to the SOAH Administrative Law Judge presiding at the contested
case hearing. It is the Authority's responsibility to issue and deny permits
and to act on applications, not SOAH's. While the Authority is serious about
reviewing and acting on all proposals for decisions in a timely manner, circumstances
may arise that would necessitate a delay in the Board's schedule.
Section 707.622(b)
Section 707.622 provides procedures related to motions for rehearing in
matters which have been referred to a contested case hearing. Subsection (b)
of that section provides, in part, that "a reply to a motion for rehearing
must be filed with the docket clerk within 30 days after the date a party
or his attorney of record is notified of the decision or order. A party or
attorney of record is presumed to have been notified on the date that the
decision or order is mailed by first-class mail."
Earl & Brown recommend that the 30 day time line should not activate
until a party or his attorney of record is notified "of the motion for rehearing,"
rather than from the date of the decision or order.
The Authority disagrees with the commenter. Under §707.622, a motion
for rehearing is due within 20 days after the date the party seeking to file
the motion or his attorney is notified of the decision or order. The reply
to that motion for rehearing is due 30 days after the date a party or his
attorney is notified of the decision or order. This time line provides the
party seeking to respond to a motion for rehearing with approximately 10 days
to prepare and file a reply. The Authority believes that this rule provides
sufficient time for the reply. The party filing the reply will have been a
party to and would have participated in the contested case. Thus, that party
will most likely be very familiar with the issues raised in the contested
case and in the motion for rehearing. As a precedent, the Authority also notes
that the Texas Natural Resource Conservation Commission utilizes the same
time line for motions for rehearing and replies in 30 TAC, §80.272.
Section 707.626
Section 707.626 allows any applicant for an initial regular permit to obtain
party status in any or all contested cases by filing a notice thereof. It
also provides procedures applicable to such a notice and the required contents
of such a notice. Earl & Brown propose the omission of this entire section
based on reasons stated in their comments to §707.610(d).
The Authority disagrees with the commenter. The Authority declines to delete
this rule for the reasons stated in its response to Earl & Brown's comments
to §707.610(d).
V. CONCISE RESTATEMENT OF THE STATUTORY PROVISIONS UNDER WHICH THE RULES
ARE ADOPTED.
Section 1.08(a) of the Act provides that the Authority "has all of the
powers, rights, and privileges necessary to manage, conserve, preserve, and
protect the aquifer and to increase the recharge of, and prevent the waste
or pollution of water in, the aquifer." This section provides the Authority
with broad and general powers to take actions as necessary to manage, conserve,
preserve, and protect the aquifer and to increase the recharge of, and prevent
the waste or pollution of water in, the aquifer.
Section 1.11(a) of the Act provides that the Board of Directors ("Board")
of the Authority "shall adopt rules necessary to carry out the authority's
powers and duties under (Article 1 of the Act), including rules governing
procedures of the board and the authority." This section directs the Board
to adopt rules as necessary to implement the various substantive programs
set forth in the Act related to the Edwards Aquifer, including, in particular,
administrative procedures to be used before the Board and the Authority.
Section 1.11(b) of the Act requires the Authority to "ensure compliance
with permitting, metering, and reporting requirements and shall regulate permits."
This section, in conjunction with §1.11(a) and (h) of the Act, and §2001.004(1)
of the APA, requires the Authority to establish procedures related to the
filing and processing of various applications and registrations with and by
the Authority.
Section 1.11(d)(1) of the Act empowers the Authority to issue and administer
grants, loans, or other financial assistance to water users for water conservation
and water reuse. Section 1.24(c) of the Act allows the Authority to issue
grants or make loans to finance the purchase or installation of equipment
or facilities for water conservation. These sections, in conjunction with §1.11(a)
and (h) of the Act, and §2001.004(1) of the APA, empower the Authority
to establish procedures related to the filing and processing of applications
for agricultural conservation loans with and by the Authority.
Section 1.11(h) of the Act provides, among other things, that the Authority
is "subject to" the APA. Pursuant to this section, the Authority is required
to comply with the APA in connection with its rulemaking, even though the
Authority is not a state agency and would therefore otherwise not generally
be subject to APA requirements. Section 2001.004(1) of the APA requires agencies
subject to the APA to "adopt rules of practice stating the nature and requirements
of all available formal and informal procedures."
Section 1.15(a) of the Act directs the Authority to manage withdrawals
from the aquifer and manage all withdrawal points from the aquifer as provided
by this Act. This section, in conjunction with §1.11(a) and (h) of the
Act, and §2001.004(1) of the APA, requires the Authority to adopt procedural
rules that would allow the Authority to fulfill these mandates.
Section 1.15(b) of the Act states that "except as provided by §1.17
and §1.33 of this article, a person may not withdraw water from the aquifer
or begin construction of a well or other works designed for the withdrawal
of water from the aquifer without obtaining a permit from the authority."
This section, in conjunction with §1.11(a) and (h) of the Act, and §2001.004(1)
of the APA, requires the Authority to adopt procedural rules that will implement
this limitation.
Section 1.15(c) of the Act allows the Authority to issue regular permits,
term permits, and emergency permits. This section, in conjunction with §1.11(a)
and (h) of the Act, and §2001.004(1) of the APA, empowers the Authority
to establish procedures related to the filing and processing of applications
for initial and additional regular permits, term permits and emergency permits.
Section 1.16(a) of the Act allows an existing user to apply for an initial
regular permit by filing a declaration of historical use. This section, in
conjunction with §1.11(a) and (h) of the Act, and §2001.004(1) of
the APA, requires the Authority to adopt procedural rules governing the filing
and processing of such applications or declarations.
Section 1.16(b) of the Act sets forth certain requirements concerning an
existing user's declaration of historical use and an applicant's payment of
application fees required by the Board. This section, in conjunction with §1.11(a)
and (h) of the Act, and §2001.004(1) of the APA, requires the Authority
to adopt procedural rules that will implement these requirements.
Section 1.16(c) of the Act provides that an owner of a well from which
the water will be used exclusively for domestic use or watering livestock
and that is exempt under §1.33 of the Act is not required to file a declaration
of historical use. This section, in conjunction with §1.11(a) and (h)
of the Act, and §2001.004(1) of the APA, requires the Authority to adopt
procedural rules that will implement this exemption.
Section 1.16(d) of the Act requires the Board to grant an initial regular
permit to an existing user who: (1) files a declaration and pays fees as required
by this section; and (2) establishes by convincing evidence beneficial use
of underground water from the aquifer. This section, in conjunction with §1.11(a)
and (h) of the Act, and § 2001.004(1) of the APA, requires the Authority
to adopt procedural rules that will allow the Authority to fulfill this mandate.
Section 1.17(a) of the Act provides that a person who, on the effective
date of this article, owns a producing well that withdraws water from the
aquifer may continue to withdraw and beneficially use water without waste
until final action on permits by the Authority, if: (1) the well is in compliance
with all statutes and rules relating to well construction, approval, location,
spacing, and operation; and (2) by March 1, 1994, the person files a declaration
of historical use on a form as required by the Authority. This section, in
conjunction with §1.11(a) and (h) of the Act, and §2001.004(1) of
the APA, requires the Authority to adopt procedural rules that will allow
the Authority to determine who may continue to withdraw water under such authority.
Section 1.17(b) of the Act specifies that use under "interim authorization"
may not exceed on an annual basis the historical, maximum, beneficial use
of water without waste during any one calendar year as evidenced by the person's
declaration of historical use, unless otherwise determined by the Authority.
This section, in conjunction with §1.11(a) and (h) of the Act, and §2001.004(1)
of the APA, requires the Authority to adopt procedural rules that will allow
the Authority to implement this condition.
Section 1.18 of the Act allows the Authority, in certain circumstances,
to issue additional regular permits. This section, in conjunction with §1.11(a)
and (h) of the Act, and §2001.004(1) of the APA, empowers the Authority
to establish procedures related to the filing and processing of applications
for such permits.
Section 1.19(a) of the Act allows the Authority to issue term permits and
places certain limitations and conditions on the right to withdraw water under
such a permit. This section, in conjunction with §1.11(a) and (h) of
the Act, and §2001.004(1) of the APA, requires the Authority to adopt
procedural rules that will allow the Authority to issue term permits and to
implement the limitations and conditions stated in §1.19.
Section 1.20 of the Act allows the Authority to issue emergency permits
under certain circumstances and subject to certain conditions. This section,
in conjunction with §1.11(a) and (h) of the Act, and §2001.004(1)
of the APA, requires the Authority to adopt procedural rules that will allow
the Authority to issue emergency permits when appropriate and to implement
the conditions stated in §1.20.
Section 1.29(f) of the Act requires the Authority to impose a permit application
fee of not more than $25. This section, in conjunction with §1.11(a)
and (h) of the Act, and §2001.004(1) of the APA, requires the Authority
to adopt procedural rules that will allow the Authority to fulfill this mandate.
Section 1.29(g) of the Act empowers the Authority to impose a registration
application fee of not more than $10. This section, in conjunction with §1.11(a)
and (h) of the Act, and §2001.004(1) of the APA, allows the Authority
to adopt procedural rules that will allow the Authority to collect such a
fee.
Section 1.33(a) of the Act provides that a well that produces 25,000 gallons
of water a day or less for domestic or livestock use is exempt from metering
requirements. This section, in conjunction with §1.11(a) and (h) of the
Act, and §2001.004(1) of the APA, requires the Authority to adopt procedural
rules that will allow the Authority to determine who may qualify for such
an exemption.
Section 1.33(b) of the Act requires that exempt wells be registered with
the Authority or with an underground water conservation district in which
the well is located. This section, in conjunction with §1.11(a) and (h)
of the Act, and §2001.004(1) of the APA, requires the Authority to adopt
procedural rules that will allow the Authority to implement this requirement.
Section 1.34(a) of the Act provides that a place of use for Edwards Aquifer
groundwater may not be outside the boundaries of the Authority. This section,
in conjunction with §1.11(a) and (h) of the Act, and §2001.004(1)
of the APA, requires the Authority to adopt procedural rules that will allow
the Authority to implement these requirements.
Section 1.34(c) of the Act provides that a holder of a permit for irrigation
use may not lease more than 50 percent of the irrigation rights initially
permitted and that the user's remaining irrigation water rights must be used
in accordance with the original permit and must pass with transfer of the
irrigated land. This section, in conjunction with §1.11(a) and (h) of
the Act, and §2001.004(1) of the APA, requires the Authority to adopt
procedural rules that will allow the Authority to implement these requirements.
Subchapter A. DEFINITIONS
31 TAC §707.1
The new sections are adopted pursuant to §§1.08(a),
1.11(a), 1.11(b), 1.11(d)(1), 1.11(h), 1.15(a), 1.15(b), 1.15(c), 1.16(a),
1.16(b). 1.16(c), 1.16(d), 1.17(a), 1.17(b), 1.18, 1.19(a), 1.20, 1.24(c),
1.29(f), 1.29(g), 1.33(a), 1.33(b), 1.34(a), and 1.34(c) of the Act and §2001.004(1)
of the Texas Administrative Procedure Act (Texas Government CODE Annotated, §§2001.001-.902
(Vernon 2000)) ("APA").
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on October 18, 2000.
TRD-200007343
Gregory M. Ellis
General Manager
Edwards Aquifer Authority
Effective date: November 7, 2000
Proposal publication date: August 11, 2000
For further information, please call: (210) 222-2204
31 TAC §§707.101-707.106
The new sections are adopted pursuant to §§1.08(a),
1.11(a), 1.11(b), 1.11(d)(1), 1.11(h), 1.15(a), 1.15(b), 1.15(c), 1.16(a),
1.16(b). 1.16(c), 1.16(d), 1.17(a), 1.17(b), 1.18, 1.19(a), 1.20, 1.24(c),
1.29(f), 1.29(g), 1.33(a), 1.33(b), 1.34(a), and 1.34(c) of the Act and §2001.004(1)
of the Texas Administrative Procedure Act (Texas Government CODE Annotated, §§2001.001-.902
(Vernon 2000)) ("APA").
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on October 18, 2000.
TRD-200007344
Gregory M. Ellis
General Manager
Edwards Aquifer Authority
Effective date: November 7, 2000
Proposal publication date: August 11, 2000
For further information, please call: (210) 222-2204
31 TAC §§707.201, 707.203, 707.205-707.208
The new sections are adopted pursuant to §§1.08(a),
1.11(a), 1.11(b), 1.11(d)(1), 1.11(h), 1.15(a), 1.15(b), 1.15(c), 1.16(a),
1.16(b). 1.16(c), 1.16(d), 1.17(a), 1.17(b), 1.18, 1.19(a), 1.20, 1.24(c),
1.29(f), 1.29(g), 1.33(a), 1.33(b), 1.34(a), and 1.34(c) of the Act and §2001.004(1)
of the Texas Administrative Procedure Act (Texas Government CODE Annotated, §§2001.001-.902
(Vernon 2000)) ("APA").
§707.201.Meetings.
(a)
The board shall meet as necessary for the conduct of business
at times and places necessary for the performance of the Authority's duties.
Meetings shall be scheduled in accordance with the Bylaws of the Authority.
The Authority is subject to the Open Meetings Act, including any existing
or future exceptions that may be provided by law.
(b)
Meetings of the board shall be presided over by the chair,
or in the chair's absence, the vice chair, or in the absence of both the chair
and the vice chair, the secretary, or in the absence of all three, the treasurer.
In the absence of all four such officers, the voting directors present shall
elect a temporary chair for that meeting.
(c)
Business may be considered in accordance with Robert's
Rules of Order or other standard rules of procedure as may be adopted by the
directors from time to time. Directors may also, to the extent permitted by
applicable laws, suspend by a majority vote any such rules.
(d)
Non-voting directors may participate in and comment on
any matter before the board in the same manner as a voting director. A non-voting
director may not vote on any matter before the board.
(e)
Members of the South Central Texas Water Advisory Committee
(SCTWAC) may participate in board meetings to represent downstream water supply
concerns and assist in solutions to those concerns. SCTWAC members may request
the chair to permit them to address the board on such matters. SCTWAC members
may not vote on matters before the board.
(f)
The Parliamentarian shall decide issues of parliamentary
procedure, but may be overruled by majority vote of the board. The Parliamentarian
is appointed to that position by the chair pursuant to the Bylaws of the Authority.
§707.203.Deadline to File Comments on Matter Set for a Meeting.
The board or the general manager may set deadlines for the public to
file written comments on matters set for a meeting of the board. The general
manager, either by agreement of the interested persons and any judge assigned
to the matter, or on the general manager's own motion, may extend a filing
deadline.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on October 18, 2000.
TRD-200007345
Gregory M. Ellis
General Manager
Edwards Aquifer Authority
Effective date: November 7, 2000
Proposal publication date: August 11, 2000
For further information, please call: (210) 222-2204
31 TAC §§707.301-707.315
The new sections are adopted pursuant to §§1.08(a),
1.11(a), 1.11(b), 1.11(d)(1), 1.11(h), 1.15(a), 1.15(b), 1.15(c), 1.16(a),
1.16(b). 1.16(c), 1.16(d), 1.17(a), 1.17(b), 1.18, 1.19(a), 1.20, 1.24(c),
1.29(f), 1.29(g), 1.33(a), 1.33(b), 1.34(a), and 1.34(c) of the Act and §2001.004(1)
of the Texas Administrative Procedure Act (Texas Government CODE Annotated, §§2001.001-.902
(Vernon 2000)) ("APA").
§707.303.Proper Applicant, Registrant, or Declarant.
If a well or a proposed well has one owner, that owner shall file the
application, registration or declaration. If there is more than one owner,
a joint application, registration, or declaration shall be filed by those
owners. In such an instance, the owners shall select one among them to act
for and represent the others in the filing the application, registration or
declaration. Written documentation of such a selection satisfactory to the
Authority shall be filed with the application, registration or declaration.
For the purposes of this section, a lessee or assignee of the surface estate,
or an easement holder, is not considered an owner of a well.
§707.304.Requirement to File an Application for a Groundwater Withdrawal Permit.
Any person seeking to withdraw groundwater from the aquifer, unless
exempted from the permit requirement by §1.16(c) and §1.33 of the
Act and §711.20 of this title (relating to Eligibility for Exempt Well
Status), must file with the Authority an application for a groundwater withdrawal
permit.
§707.309.Requirement to File Application for Permit to Install or Modify Meter.
Any person seeking to install a new meter or modify an existing meter
must file with the Authority an application for a permit to install or modify
a meter. Any person seeking to employ an alternative measuring method or modify
an existing alternative measuring method must file with the Authority an application
for a permit to install or moAdify a meter as well. For the purpose of this
chapter, the term "modify" in connection with a meter means to make any physical
change to the meter other than standard maintenance. Meters registered with
the Authority prior to the effective date of these rules through the filing
of forms previously prescribed by the Authority need not file another meter
registration.
§707.311.Requirement to File Declaration of Historical Use.
A declaration of historical use (application for an initial regular
permit) must have been filed with the Authority pursuant to §1.16(a)
of the Act and the decision of the Texas Supreme Court in
Barshop v. Medina County Underground Water District,
925 S.W.2d 618,
628-630 (Tex. 1996) by December 30, 1996, for each well from which groundwater
from the aquifer has been withdrawn and placed to beneficial use during the
historical period. An owner of an well exempt from the requirement to obtain
a groundwater withdrawal permit under §1.16(c) and §1.33 of the
Act and §711.20 of this title (relating to Eligibility for Exempt Well
Status) is not under a requirement to file a declaration of historical use.
§707.312.Declarations Received Before Effective Date of These Rules.
Applications for initial regular permits/declarations of historical
use received by the Authority before the effective date of this subchapter
need not be resubmitted.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on October 18, 2000.
TRD-200007347
Gregory M. Ellis
General Manager
Edwards Aquifer Authority
Effective date: November 7, 2000
Proposal publication date: August 11, 2000
For further information, please call: (210) 222-2204
31 TAC §§707.401-707.417, 707.422, 707.424, 707.426, 707.428
The new sections are adopted pursuant to §§1.08(a),
1.11(a), 1.11(b), 1.11(d)(1), 1.11(h), 1.15(a), 1.15(b), 1.15(c), 1.16(a),
1.16(b). 1.16(c), 1.16(d), 1.17(a), 1.17(b), 1.18, 1.19(a), 1.20, 1.24(c),
1.29(f), 1.29(g), 1.33(a), 1.33(b), 1.34(a), and 1.34(c) of the Act and §2001.004(1)
of the Texas Administrative Procedure Act (Texas Government CODE Annotated, §§2001.001-.902
(Vernon 2000)) ("APA").
§707.405.Applications for Initial Regular Permits/Declarations of Historical Use.
In addition to the information specified in §707.401 of this title
(relating to Contents of and Requirements for All Applications and Registrations),
an application for an initial regular permit shall contain the following:
(1)
Name and Address of Owner. The full name, post office address
and telephone number of the well owner, if different from that of the applicant.
(2)
Source of Supply. The applicant shall clearly state whether
the Edwards Aquifer is the source of groundwater from the well.
(3)
Rate of Withdrawal. The proposed maximum rate of withdrawal
in gallons per minute or cubic feet per second each well is capable of producing
shall be stated.
(4)
Method of Withdrawal. The method to be used to withdraw
groundwater shall be described.
(5)
Declaration of Historical Use. A declaration of historical
use containing:
(A)
the total amount of water from the aquifer that the applicant
or his contract user, prior user or former existing user withdrew and beneficially
used without waste during each calendar year of the historical period;
(B)
the maximum number of acres irrigated during any one calendar
year of the historical period;
(C)
the purpose(s) for which the groundwater was used during
each year of the historical period;
(D)
the amount of groundwater the applicant claims as the maximum
beneficial use of water without waste during any one calendar year of the
historical period;
(E)
the number and location of each well owned by the applicant
and for which the applicant claims groundwater from the aquifer was withdrawn
and placed to beneficial use during the historical period;
(F)
the place of use of groundwater withdrawn from each well;
(G)
if the groundwater was withdrawn from the well or placed
to a beneficial use by a contract user, prior user or former existing user,
then the name, address and telephone number of each contract user, prior user
or former existing user, the year of withdrawals, purpose of use, place of
use and amount of withdrawals, including copies of the legal documents establishing
the legal right of the contract user to withdraw and/or place groundwater
from the aquifer to beneficial use;
(H)
any facts upon which the applicant requests equitable adjustment
on the grounds that the applicant's historic use was affected by a requirement
of or participation in a federal program;
(I)
if the groundwater is to be sold on a wholesale or bulk
basis, whether metered or un-metered, transported or transferred, a description
of how the groundwater will be sold, transported or transferred, the name,
address and telephone number of every person to whom the water will be delivered,
the location to which the groundwater will be delivered, and the purpose for
which the groundwater will be used, including copies of the legal documents
establishing the right for the groundwater to be sold, transported or transferred;
(J)
a separate Well Information Sheet prescribed by the general
manager or a registration form from a groundwater district or other entity
with the same data as the Well Information Sheet for each well accompanied
by a photograph of the well taken approximately 100 feet from the well head;
and
(K)
any other information that the general manager may require.
§707.411.Applications for Well Construction Permits.
In addition to the information specified in §707.401 of this title
(relating to Contents of and Requirements for All Applications and Registrations),
an application for a well construction permit shall contain the following:
(1)
Name and Address of Owner. The full name, post office address,
and telephone number of the owner of the proposed well, if different from
the applicant.
(2)
Location. A legal description of the location of the proposed
well, including: the county; section, block and survey; labor and league;
the number of feet to the two nearest non-parallel property lines (legal survey
lines); or other adequate legal description approved by the Authority.
(3)
Map. A map showing the location of:
(A)
the proposed well;
(B)
the three nearest wells within a quarter of a mile of the
proposed location, and the names and addresses of the owners of the nearby
wells; and
(C)
any possible sources of contamination within 500 feet of
the well that are known or should be known to the applicant such as existing
and proposed livestock or poultry yards, septic system absorption fields,
underground or above ground petroleum storage tanks.
(4)
Purpose of Use. The proposed purpose of use stated in definite
terms. If the groundwater is to be used for more than one purpose, the approximate
amount to be used for each purpose shall be stated.
(5)
Amount of Withdrawal. The total amount of groundwater proposed
to be withdrawn from the aquifer and beneficially used on an annual and monthly
basis, stated in number of acre-feet.
(6)
Rate of Withdrawal. The maximum rate of withdrawal that
the proposed well would be capable of, in gallons per minute or cubic feet
per second, shall be stated.
(7)
Depth. The proposed depth of the well and proposed depth
of cement casing.
(8)
Pump. The size of the proposed pump and pumping method.
(9)
Proposed Construction Date. The approximate date that well
construction operations are proposed to begin.
(10)
Identity of Well Drilling Contractor. The name, address,
telephone number and license number of the well drilling contractor.
(11)
Other Permits. A list of all other permits applied for
or issued by the Authority to the applicant.
(12)
Legal Basis of Right to Withdraw Groundwater. The applicant
shall identify the claimed legal basis under which groundwater will be withdrawn
from the aquifer.
(13)
Any other information as may be required by the general
manager.
§707.412.Meter Registrations.
In addition to the information specified in §707.401 of this title
(relating to Contents of and Requirements for All Applications and Registrations),
a meter registration shall contain the following:
(1)
Name and Address of Owner. The full name, post office address,
and telephone number of the owner of the well on which the meter is installed,
if different from that of the registrant.
(2)
Location. A legal description of the location of the well
on which the meter is installed including: the county, section, block and
survey, labor and league; the number of feet to the two nearest non-parallel
property lines (legal survey lines); or other adequate legal description approved
by the Authority;
(3)
Map. A map showing the location of the well on which the
meter is installed;
(4)
Status of Well. Whether the well on which the meter is
installed is an exempt well or a permitted well.
(5)
Purpose of Use. The purpose of use of groundwater withdrawn
from the well on which the meter is installed stated in definite terms. If
the groundwater is used for more than one purpose, the approximate amount
to be used for each purpose shall be stated.
(6)
Description of the Meter. A description of the meter or
alternative measuring method including:
(A)
a description of the method used to measure the flow rate;
(B)
a description of the method used to measure the cumulative
amount of groundwater withdrawn from the aquifer;
(C)
its size;
(D)
the units in which the measurements will be recorded;
(E)
a statement describing its accuracy;
(F)
a description of the manufacturer's quality control and
assurance program;
(G)
its normal operating range;
(H)
its pressure rating;
(I)
a description of its construction materials;
(J)
a description of its design;
(K)
a description of its mechanical operation;
(L)
a statement of whether the totalizer is resettable;
(M)
the date that the meter was last calibrated and who calibrated
it;
(N)
the maximum cumulative amount of groundwater withdrawn
from the aquifer that the totalizer is capable of measuring;
(O)
a description of its instantaneous readout capabilities
for flow rate and total quantity measured; and
(P)
a statement that the meter was installed according to the
manufacturer's specifications.
(7)
Date Installed. The date or approximate date that the meter
was installed or the alternative measuring method was first implemented.
(8)
Any other information as may be required by the general
manager.
§707.413.Applications for Permits to Install or Modify Meter.
In addition to the information specified in §707.401 of this title
(relating to Contents of and Requirements for All Applications and Registrations),
an application for a permit to install or modify meter shall contain the following:
(1)
Name and Address of Owner. The full name, post office address,
and telephone number of the owner of the well on which the meter is proposed
to be installed if different from the applicant.
(2)
Location. A legal description of the location of the well
on which the meter is to be installed including: the county; section, block
and survey; labor and league; the number of feet to the two nearest non-parallel
property lines (legal survey lines); or other adequate legal description approved
by the Authority.
(3)
Map. A map showing the location of the well on which the
meter is to be installed.
(4)
Status of Well. Whether the well on which the meter is
to be installed is an exempt well or a permitted well.
(5)
Purpose of Use. The purpose of use of groundwater withdrawn
from the well on which the meter is to be installed stated in definite terms.
If the groundwater is used for more than one purpose, the approximate amount
to be used for each purpose shall be clearly stated.
(6)
Description of the Meter. A description of the meter or
alternative measuring method including:
(A)
a description of the method used to measure the flow rate;
(B)
a description of the method used to measure the cumulative
amount of groundwater withdrawn from the aquifer;
(C)
its size;
(D)
the units in which the measurements will be recorded;
(E)
a statement describing its accuracy;
(F)
a description of the manufacturer's quality control and
assurance program;
(G)
its normal operating range;
(H)
its pressure rating;
(I)
a description of its construction materials;
(J)
a description of its design;
(K)
a description of its mechanical operation;
(L)
a statement of whether the totalizer is resettable;
(M)
the maximum cumulative amount of groundwater withdrawn
from the aquifer that the totalizer is capable of measuring; and
(N)
a description of its instantaneous readout capabilities
for flow rate and total quantity measured.
(7)
any other information as may be required by the general
manager.
§707.414.Applications to Transfer Interim Authorization Status and Amend Application for Initial Regular Permit.
In addition to the information specified in §707.401 of this title
(relating to Contents of and Requirements for All Applications and Registrations),
an application to transfer interim authorization status and amend application
for initial regular permit shall contain the following with respect to both
the well which currently has interim authorization status and the well (or
proposed well) to which the transfer is proposed:
(1)
Names and Addresses of Owners. The full name, post office
address and telephone number of the person who seeks to transfer his or her
interim authorization status and the name and address of the person to whom
that status is proposed to be transferred as well as the name, address, and
telephone numbers of any contact persons, if different from the transferor
or transferee.
(2)
Locations. A legal description of two locations of the
two wells including: the county; section, block and survey, labor and league;
the number of feet to the two nearest non-parallel property lines (legal survey
lines); or other adequate legal description approved by the Authority.
(3)
Purposes of Use. The purpose of use for the well which
has current interim authorization status and the proposed purpose of use for
the well to which the transfer is proposed stated in definite terms. If the
groundwater is used (or is proposed to be used) for more than one purpose,
the approximate amount used for each purpose shall be clearly stated.
(4)
Withdrawal amounts. The amount of groundwater which is
proposed to be withdrawn at the well to which the transfer is proposed.
(5)
Place of Use. The place of use of groundwater withdrawn
from the well under interim authorization status and the place of use of groundwater
withdrawn from the well to which the transfer is proposed.
(6)
Term of Transfer. The period of time for which the transfer
is proposed;
(7)
A copy of the transfer agreement and any supporting documents.
(8)
The price per acre-foot or other consideration.
(9)
A meter reading taken on the last day of the month immediately
preceding the month in which the application to transfer interim authorization
status and amend application for initial regular permit is submitted to the
Authority.
(10)
Any other information as may be required by the general
manager.
§707.415.Applications to Transfer and Amend Permit.
In addition to the information specified in §707.401 of this title
(relating to Contents of and Requirements for All Applications and Registrations),
an application to transfer and amend a permit shall contain the following
with respect to both the currently permitted well and the well (or proposed
well) to which the transfer is proposed:
(1)
Names and Addresses of Owners. The full name, post office
address and telephone numbers of the person who seeks to transfer his or her
permitted right and the name and address of the person to whom those rights
are proposed to be transferred as well as the name, address, and telephone
numbers of any contact persons, if different from the transferor or transferee.
(2)
Locations. A legal description of the locations of the
two wells including: the county, section, block and survey, labor and league;
the number of feet to the two nearest non-parallel property lines (legal survey
lines); or other adequate legal description approved by the Authority.
(3)
Purpose of Use. The purpose of use for the currently permitted
well and the proposed purpose of use for the well to which the transfer is
proposed stated in definite terms. If the groundwater is used (or is proposed
to be used) for more than one purpose, the approximate amount used for each
purpose shall be clearly stated.
(4)
Withdrawal amounts. The amount of groundwater proposed
to be withdrawn at the well to which the transfer is proposed.
(5)
Places of use. The place of use of groundwater withdrawn
from the permitted well and the place of use of groundwater withdrawn from
the well to which the transfer is proposed.
(6)
Term of Transfer. The period of time for which the transfer
is proposed.
(7)
A copy of transfer agreement and any supporting documents.
(8)
The price per acre-foot or other consideration.
(9)
A meter reading taken on the last day of the month immediately
preceding the month in which the application to transfer permit is submitted
to the Authority.
(10)
Any other information as may be required by the general
manager.
§707.416.Applications for Exempt Well Status.
In addition to the information specified in §707.401 of this title
(relating to Contents of and Requirements for All Applications and Registrations),
an application for exempt well status shall contain the following:
(1)
Name and Address of Owner. The full name, post office address
and telephone number of the owner of the well (or proposed well) if different
from that of the applicant.
(2)
Location. A legal description of the location of the well
(or proposed well), including: the county, section, block and survey, labor
and league; the number of feet to the two nearest non-parallel property lines
(legal survey lines); or other adequate legal description approved by the
Authority.
(3)
Map. A map showing the location of the well (or proposed
well).
(4)
Purpose of Use. The purpose (or proposed purpose) of use
stated in definite terms. If the groundwater is used (or is proposed to be
used) for more than one purpose, the approximate amount used (or proposed
to be used) for each purpose shall be clearly stated.
(5)
Maximum Amount of Withdrawal Per Day. The maximum amount
of groundwater that the well (or proposed well) is (or will be) capable of
withdrawing per day stated in gallons.
(6)
Rate of Withdrawal. The maximum rate of withdrawal of groundwater
that the well (or proposed well) is (or will be) is capable of producing in
gallons per minute or cubic feet per second.
(7)
Depth. The depth or proposed depth of the well, the depth
of the cement casing, and other well specifications.
(8)
Pump. The size of the pump and pumping method.
(9)
Date of Construction. The approximate date that the well
was constructed (or will be constructed).
(10)
Other Permits. A list of all other permits applied for
or issued by the Authority to the applicant.
(11)
A statement as to whether the well (or proposed well)
is within a subdivision requiring platting pursuant to Chapter 711, Subchapter
C, of this title (relating to Groundwater Withdrawal Permits).
(12)
A statement as to whether the well (or proposed well)
serves (or will serve) a subdivision requiring platting pursuant to Chapter
711, Subchapter C, of this title.
(13)
Plat. If the well (or proposed well) is within or serves
a subdivision requiring platting pursuant to Chapter 711, Subchapter C, of
this title, the applicant shall include a copy of any plat prepared for that
subdivision.
(14)
Any other information as may be required by the general
manager.
§707.428.Applications to Convert Base Irrigation Groundwater.
In addition to the information specified in §707.401 of this title
(relating to Contents of and Requirements for All Applications and Registrations),
an application to convert base irrigation groundwater shall contain the following:
(1)
Names and Addresses of Owners. The full name, post office
address and telephone numbers of the person who owns a regular permit.
(2)
Physical Impossibility. If the application is based on
physical impossibility, a detailed description of all facts demonstrating
that it is physically impossible for the owner of a regular permit, or an
applicant for a regular permit for a well qualifying for interim authorization
status, to place base irrigation groundwater to beneficial use at the place
of use identified in the regular permit or the application for an initial
regular permit.
(3)
Conservation. If the application is based on conservation:
(A)
A statement that groundwater from the aquifer has been
conserved after the installation of water conservation equipment;
(B)
Location. A legal description of the location of the water
conservation equipment including: the county, section, block and survey, labor
and league; the number of feet to the two nearest non-parallel property lines
(legal survey lines); or other adequate legal description approved by the
Authority;
(C)
Map. A map showing the location of the water conservation
equipment;
(D)
Description of the Water Conservation Equipment. A description
of the water conservation equipment:
(E)
Measurement Method. A description of the method used to
measure the amount of groundwater from the aquifer cumulatively conserved
on an annual basis;
(F)
Efficiency. A statement describing the efficiency of the
water conservation equipment;
(G)
Quality Control. A description of the manufacturer's quality
control and assurance program;
(H)
Operating Range. A description of the water conservation
equipment's normal operating range;
(I)
Materials. A description of the water conservation equipment's
construction materials;
(J)
Design. A description of the equipment's design;
(K)
Mechanical Operation. A description of the equipment's
mechanical operation;
(L)
Operational Life. An estimate of the maximum period of
time that the equipment will be reasonably functional in conserving groundwater
from the aquifer;
(M)
Factory Specifications. A statement that the equipment
was installed according to the manufacturer's specifications.
(N)
Date Installed. The date that the equipment was installed.
(O)
Any other information as may be required by the general
manager.
This agency hereby certifies that the adoption
has been reviewed by legal counsel and found to be a valid exercise of the
agency's legal authority.
Filed
with the Office of the Secretary of State on October 18, 2000.
TRD-200007348
Gregory M. Ellis
General Manager
Edwards Aquifer Authority
Effective date: November 7, 2000
Proposal publication date: August 11, 2000
For further information, please call: (210) 222-2204
31 TAC §§707.501-707.519
The new sections are adopted pursuant to §§1.08(a),
1.11(a), 1.11(b), 1.11(d)(1), 1.11(h), 1.15(a), 1.15(b), 1.15(c), 1.16(a),
1.16(b). 1.16(c), 1.16(d), 1.17(a), 1.17(b), 1.18, 1.19(a), 1.20, 1.24(c),
1.29(f), 1.29(g), 1.33(a), 1.33(b), 1.34(a), and 1.34(c) of the Act and §2001.004(1)
of the Texas Administrative Procedure Act (Texas Government CODE Annotated, §§2001.001-.902
(Vernon 2000)) ("APA").
§707.504.Technical Review.
(a)
After an application is determined by the general manager
to be administratively complete, Authority staff shall commence a technical
review of the application as necessary and appropriate. Authority staff shall
complete the technical review of an application within 90 business days of
the determination, by the general manager, of the application's administrative
completeness. For applications for emergency permits, such review shall be
conducted within 20 business days.
(b)
The applicant shall be promptly notified in writing of
any additional material necessary for a complete technical review. If the
applicant provides the information within the period of time noted in subsection
(a) of this section, Authority staff will complete the technical review of
the application within the original technical review period extended by the
number of days from the request to the submittal of the additional information.
If the necessary additional information is not received by the general manager
before expiration of the technical review period and the information is considered
essential by the general manager, the general manager may return the application
to the applicant. In no event, however, will the applicant have fewer than
30 days to provide the technical data before an application is returned. Decisions
to return an application to the applicant during the technical review will
be made on a case-by-case basis.
(c)
The general manager or his designee is entitled to enter
public or private property at any reasonable time and upon reasonable notice
for the purpose of inspecting, investigating or verifying conditions or information
submitted in connection with an application or a registration.
§707.510.Publication of Notice of Proposed Permit and Technical Summary in the Texas Register and in Local Newspapers.
(a)
Applicability. This section applies to applications for
initial regular permits, additional regular permits, term permits, aquifer
recharge and storage permits, and recharge recovery permits. This section
also applies to:
(1)
applications to transfer interim authorization status and
amend application for initial regular permit where the location of the point
of withdrawal is proposed to be transferred from west of Cibolo Creek to east
of Cibolo Creek; and
(2)
applications to transfer and amend permit where the location
of the point of withdrawal is proposed to be transferred from west of Cibolo
Creek to east of Cibolo Creek; and
(b)
Upon receipt of the proposed permit, approval, authorization
or denial, and the technical summary from the general manager, the docket
clerk shall arrange for publication of a notice of the proposed permit, approval,
authorization or denial, and technical summary in:
(1)
the
Texas Register
;
(2)
a newspaper of general circulation throughout the Authority's
jurisdiction; and
(3)
at least five other newspapers within the jurisdiction
of the Authority.
(c)
Time of Publication. The notice referred to in subsection
(b) of this section shall be published no later than 30 days following the
referral of the proposed permit, approval, authorization or denial to the
docket clerk.
(d)
Such notice shall contain:
(1)
a description of the proposed permit, authorization or
approval including any conditions;
(2)
a brief description of the technical summary; and
(3)
a statement that a copy of the proposed permit or approval,
technical summary, and application are available for inspection by the public
at the offices of the Authority;
(4)
if the proposal is that the application be denied, a summary
of the reasons for denial;
(5)
a statement that the proposed permit, approval, authorization
or denial will be presented to the Board for action within 60 days unless
a request for hearing is submitted within 30 days pursuant to §§707.601-707.604
of this title (relating to Procedures for Contested Case Hearings on Applications);
and
(6)
a statement that the applicant, another applicant for a
groundwater withdrawal permit, or a permittee holding a groundwater withdrawal
permit may request a hearing on this application by filing with the docket
clerk, on or before the 30th day after the publication of the notice of the
proposed permit, authorization, approval or denial, and technical summary,
in the
Texas Register
, in accordance with §§707.601-707.604
of this title.
§707.515.Actions on Applications by the General Manager.
(a)
The purpose of this section is to delegate authority to
the general manager to take action on behalf of the board for the actions
listed in subsection (b) of this section.
(b)
The general manager may grant the following:
(1)
applications for new well construction permits;
(2)
applications for exempt well status
(3)
applications for permit to install or modify meter or alternative
measuring method installation;
(4)
applications to:
(A)
transfer interim authorization status and amend application
for initial regular permit; or
(B)
transfer and amend permit in all instances other than when
the location of the point of withdrawal is proposed to be transferred from
west of Cibolo Creek to east of Cibolo Creek;
(5)
applications for operation of monitoring well;
(6)
applications for conservation plan approval; and
(7)
applications for reuse plan approval.
(c)
Following technical review, the general manager may grant
a permit, authorization or approval under this section if:
(1)
the application meets all relevant statutory and administrative
criteria; and
(2)
the application does not raise new issues that require
the interpretation of Authority policy.
(d)
The general manager shall inform the applicant of his or
her decision, where appropriate, by sending a copy of such permit, authorization
or approval along with the technical summary to the applicant by certified
mail/return-receipt requested.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on October 18, 2000.
TRD-200007349
Gregory M. Ellis
General Manager
Edwards Aquifer Authority
Effective date: November 7, 2000
Proposal publication date: August 11, 2000
For further information, please call: (210) 222-2204
31 TAC §§707.601-707.626
The new sections are adopted pursuant to §§1.08(a),
1.11(a), 1.11(b), 1.11(d)(1), 1.11(h), 1.15(a), 1.15(b), 1.15(c), 1.16(a),
1.16(b). 1.16(c), 1.16(d), 1.17(a), 1.17(b), 1.18, 1.19(a), 1.20, 1.24(c),
1.29(f), 1.29(g), 1.33(a), 1.33(b), 1.34(a), and 1.34(c) of the Act and §2001.004(1)
of the Texas Administrative Procedure Act (Texas Government CODE Annotated, §§2001.001-.902
(Vernon 2000)) ("APA").
§707.601.Applicability.
The provisions of this subchapter apply to contested case hearings
on applications before the board. Contested case hearings may be requested
and granted in connection with applications for initial regular permits, additional
regular permits, term permits, aquifer recharge and storage permits, and recharge
recovery permits. Contested case hearings may also be requested and granted
in connection with:
(1)
applications to transfer interim authorization status and
amend application for initial regular permit where the location of the point
of withdrawal is proposed to be transferred from west of Cibolo Creek to east
of Cibolo Creek; and
(2)
applications to transfer and amend permit, where the location
of the point of withdrawal is proposed to be transferred from west of Cibolo
Creek to east of Cibolo Creek.
§707.604.Time for Filing of Request for Contested Case Hearing.
Unless a longer time limit is specified in the notice of the proposed
permit and technical summary, a hearing request must be filed with the docket
clerk on or before the 30th day following the date of publication of that
notice in the
Texas Register
.
§707.605.Processing of Hearing Request.
(a)
Applicability. The requirements in this section apply only
to hearing requests that are filed within the time period specified in §707.604
of this title (relating to Time for Filing of Request for Contested Case Hearing).
Hearing requests not filed within the time period specified in §707.604
of this title shall not be processed and shall be returned by the docket clerk
to the person filing the request.
(b)
After a hearing request is filed, the docket clerk shall
schedule the hearing request for a board meeting.
(c)
The docket clerk shall provide notice to the applicant,
general manager and any persons making a timely hearing request at least 30
20 days prior to the first meeting at which the board considers the request.
The docket clerk shall explain how the person may submit public comment, explain
that the board may hold a public meeting, and explain the requirements of
this subchapter.
(d)
Persons may submit written responses to the hearing request
no later than 20 days before a board meeting at which the board will evaluate
the hearing request. Responses shall be filed with the docket clerk and served
on the same day to the general manager, the applicant and any persons filing
hearing requests.
(e)
The person who filed the hearing request may submit a written
reply to a response no later than six days before the scheduled board meeting
at which the board will evaluate the hearing request. A reply may also contain
additional information responding to the notice by the docket clerk required
by subsection (d) of this section. A reply shall be filed with the docket
clerk and served on the same day to the general manager, the applicant, and
any person filing hearing requests.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on October 18, 2000.
TRD-200007350
Gregory M. Ellis
General Manager
Edwards Aquifer Authority
Effective date: November 7, 2000
Proposal publication date: August 11, 2000
For further information, please call: (210) 222-2204
I. INTRODUCTION.
The Edwards Aquifer Authority ("Authority") adopts new 31 TAC, §§
709.1, 709.3, 709.5, 709.7, 709.9, 709.11, 709.13, 709.15, 709.17, 709.19,
709.21, 709.23, 709.25, 709.27, 709.29, 709.31, 709.33, and 709.35, consisting
of rules relating to the fee structure of the Authority. Sections 709.11,
709.19, and 709.21 are adopted with changes to the proposed text as published
in the August 11, 2000, issue of the
Texas Register
(25 TexReg 7533-7548). Sections 709.1, 709.3, 709.5, 709.7, 709.9,
709.13, 709.15, 709.17, 709.23, 709.25, 709.27, 709.29, 709.31, 709.33, and
709.35 are adopted without changes to the proposed text and will not be republished.
These rules have been written to establish the Authority's procedures for
implementing and collecting fees.
II. SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES; AND CONCISE RESTATEMENT
OF THE STATUTORY PROVISIONS UNDER WHICH THE RULES ARE ADOPTED.
The Authority is required by the Edwards Aquifer Authority Act (Act of
May 30, 1993, 73rd Legislature, Regular Session, Chapter 626, 1993 Texas General
Laws 2350, 2358-59, as amended by Act of May 29, 1995, 74th Legislature, Regular
Session, Chapter 261, 1995 Texas General Laws 2505, Act of May 16, 1995, 74th
Legislature, Regular Session, Chapter 524, 1995 Texas General Laws 3280, and
Act of May 6, 1999, 76th Legislature, Regular Session, Chapter 163, 1999 Texas
General Laws 634 ("Act")), to implement Edwards Aquifer management programs
relating to, among other things, fees, exempt wells, interim authorization,
permitted wells, permit conditions, groundwater available for permitting,
proportional adjustment, equal percentage reduction, abandonment and cancellation
of permits, aquifer recharge, storage and recovery, additional groundwater
supplies available for permitting, transfers, meters and alternative measuring
methods, groundwater trust, water quality, and comprehensive water management
plan implementation. In order to generate revenue to fund the implementation
of these programs and to regulate the use of the aquifer, the Authority must
establish a uniform fee system. In these rules, the Authority is establishing
rules setting forth the various types of fees imposed by the Authority and
providing procedures for the adoption and assessment, as well as the billing
and collection, of those fees.
The new sections are adopted pursuant to §§ 1.08(a), 1.11(a),
(b), (d)(2), (f), and (h), 1.15(a), 1.16(b) and (d)(1), 1.29(a), (b), (c),
(d), (e), (f), (g), and (h), 1.36(b), 1.44(c)(2) of the Act; § 2001.004(1)
of the Texas Administrative Procedure Act (Texas Government Code Annotated, §§
2001.001-.902 (Vernon 2000)) ("APA"); and § 36.205 of the Texas Water
Code (Texas Water Code Annotated, § 36.205 (Vernon 2000)). The Authority
interprets these sections as authorizing the Authority to adopt rules establishing
a fee structure for the Authority.
Section 1.08(a) of the Act provides that the Authority "has all of the
powers, rights, and privileges necessary to manage, conserve, preserve, and
protect the aquifer and to increase the recharge of, and prevent the waste
or pollution of water in, the aquifer." This section provides the Authority
with broad and general powers to take actions as necessary to manage, conserve,
preserve, and protect the aquifer and to increase the recharge of, and prevent
the waste or pollution of water in, the aquifer.
Section 1.11(a) of the Act provides that the Board of Directors ("Board")
of the Authority "shall adopt rules necessary to carry out the authority's
powers and duties under (Article 1 of the Act), including rules governing
procedures of the Board and the authority." This section directs the Board
to adopt rules as necessary to implement the various substantive programs
set forth in the Act related to the Edwards Aquifer, which includes application,
registration, aquifer management, and regular permit special retirement fees,
and in particular, administrative procedures to be used before the Board and
the Authority.
Section 1.11(b) of the Act requires the Authority "ensure compliance with
permitting, metering, and reporting requirements and shall regulate permits."
This section, in conjunction with § 1.11(a) and (h) of the Act, and §
2001.004(1) of the APA, empowers the Authority to establish procedures related
to the filing and processing of various applications and registrations with
and by the Authority.
Section 1.11(d)(2) of the Act provides, among other things, that the Authority
may enter into contracts.
Section 1.11(f) of the Act provides the Authority may contract with a person
who uses water from the aquifer for the Authority or that person to construct,
operate, own, finance, and maintain water supply facilities which include
a dam, reservoir, treatment facility, transmission facility, or recharge project.
This section further provides management fees or special fees may not be used
for purchasing or operating these facilities.
Section 1.11(h) of the Act provides, among other things, that the Authority
is "subject to" the APA. Pursuant to this section, the Authority is required
to comply with the APA in connection with its rulemaking, even though the
Authority is not a state agency and would therefore otherwise not generally
be subject to APA requirements. Section 2001.004(1) of the APA requires agencies
subject to the APA to "adopt rules of practice stating the nature and requirements
of all available formal and informal procedures."
Section 1.15(a) of the Act directs the Authority to manage withdrawals
from the aquifer and manage all withdrawal points from the aquifer as provided
by this Act.
Section 1.16(b) of the Act sets forth certain requirements concerning an
existing user's declaration of historical use and an applicant's payment of
application fees required by the Board.
Section 1.16(d)(1) of the Act requires the Board to grant an initial regular
permit to an existing user who, among other things, files a declaration and
pays fees as required by this section.
Section 1.29(a) of the Act relates to fees. This section provides that
the allocation of the cost of reducing withdrawals or permit retirements must
be borne: solely by users of the aquifer for reducing withdrawals from the
level on the effective date of this article to 450,000 acre-feet a year, or
the adjusted amount determined under § 1.14(b) for the period ending
December 31, 2007; and equally by downstream water rights holders for permit
retirements from 450,000 acre-feet a year, or the adjusted amount determined
under § 1.14(d) for the period ending December 31, 2007, to 400,000 acre-feet
a year, or the adjusted amount determined under §1.14(d) for the period
beginning January 1, 2008.
Section 1.29(b) of the Act provides for the assessment of aquifer management
fees based on aquifer use under the water management plan to finance the Authority's
authorized administrative expenses and programs. This section also allows
water districts governed by Chapter 52 of the Texas Water Code and within
the Authority's boundaries, to contract with the Authority to pay the Authority's
expenses through taxes in lieu of user fees, to be paid by water users in
the district. This section provides the Authority with the power to assess
fees in order to generate revenue to finance the operation of the Authority
in its regulation of the aquifer, however, the Authority may not collect a
total amount of fees and taxes that is more than is reasonably necessary for
the administration of the Authority.
Section 1.29(c) of the Act provides that the Authority shall assess an
equitable special fee based on permitted aquifer water rights to be used only
to finance the retirement of rights necessary to meet the goals of the Authority
for reducing the maximum annual volume of water withdrawals from the aquifer.
The section further provides the Authority shall set the fees on permitted
aquifer users at a level sufficient to match the funds raised from the assessment
of equitable special fees on downstream water rights holders.
Section 1.29(d) of the Act provides for the assessment of equitable special
fees by the Commission on all downstream water rights holders in the Guadalupe
River Basin to be used to finance the retirement of aquifer rights necessary
to meet the goals of the Authority for reducing the maximum annual volume
of water withdrawals from the aquifer. This section further provides that
downstream water rights holders shall pay the assessed fees to the Authority.
This section prohibits the assessment of fees by the Commission on contractual
deliveries of water stored in Canyon Lake that may be diverted downstream
of the San Marcos Springs or Canyon Dam.
Section 1.29(e) of the Act provides for the development of an equitable
fee structure under § 1.29 and authorizes the Authority to establish
different fee rates on a per acre-foot basis for different types of use. The
fees must be equitable between types of uses and shall be assessed on the
amount of water a permit holder is authorized to withdraw under the permit.
Aquifer management fee rates for agricultural use shall be based on the volume
of water withdrawn and may not be more than 20 percent of the fee rate for
municipal use. Aquifer management fees rates for non-agricultural users are
to be based on the face value of a permittee's initial regular permit or the
amount authorized to be withdrawn under interim authorization status.
Section 1.29(f) of the Act requires the Authority to impose a permit application
fee of not more than $25.
Section 1.29(g) of the Act empowers the Authority to impose a registration
application fee of not more than $10.
Section 1.29(h) of the Act states that special fees collected under subsection
(c) or (d) of §1.29 may not be used to finance a surface water supply
reservoir project.
Section 1.36(b) of the Act provides the Authority with enforcement power
and states that Authority shall provide for the suspension of a permit of
any class for failure to pay a required fee or for a violation of a permit
condition, order of the Authority, or rule adopted by the Authority.
Section 1.44(c)(2) of the Act relates to cooperative contracts for artificial
recharge and states the political subdivision causing artificial recharge
of the aquifer is entitled to withdraw during any 12-month period the measured
amount of water actually injected or artificially recharged during the preceding
12-month period, as demonstrated and established by expert testimony, less
an amount determined by the Authority to account for that part of the artificially
recharged water discharged through springs, and to compensate the Authority
in lieu of users' fees.
Section 2001.004(1) of the APA requires agencies subject to the APA to
"adopt rules of practice stating the nature and requirements of all available
formal and informal procedures." This proposed rulemaking is in furtherance
of this legislative mandate. These proposed rules are rules of practice that
state the procedures applicable to the fee setting process of the Authority.
Section 36.205 of the Texas Water Code authorizes groundwater conservation
districts to set fees for administrative acts of the districts. Such fees
may not unreasonably exceed the cost to the district of performing the administrative
function for which the fee is charged.
Subchapter A
Subchapter A consists solely of § 709.1 which contains the definitions
of eleven terms that are central to the establishment and management of a
uniformly understandable multi-tiered fee system. These terms are used in
substantive sections here and throughout other chapters in this rulemaking.
The definitions are necessary to provide a factually accurate short-form elaboration
of elements (terms) that are necessary for the rational implementation of
a fee system that is consistent with the intent of the Act.
Although the term "agricultural use" is used in § 1.29(e) of the Act,
it is not defined in the Act. The Authority has defined "agricultural use"
in § 709.1(1) as the "the use of water for irrigation use." Irrigation
use is defined in § 1.03(12) of the Act as "the use of water for the
irrigation of pastures and commercial crops, including orchards." There are
numerous facts that support the Authority's definition of "agricultural use."
A review of the legislative history of the Act reveals there is no reference
by the Legislature to a specific definition of agricultural use, even though
such definitions exist in other Texas statutes. The Authority interprets this
lack of reference as some evidence that the Legislature did not intend to
bind the Authority to an existing definition; rather it intended a definition
be created by the Authority consistent with the Act.
Additional facts supporting the definition of agricultural use are derived
from § 1.29(e) of the Act and § 709.19 in Chapter 709 which provide
that agricultural users pay aquifer management fees at an amount no more than
20 percent of the fee for non-agricultural users (the "20 percent rule").
It is the Authority's position that the 20 percent rule is designed for those
water users who cannot pass on the added cost of aquifer management fees to
consumers, such as irrigators. There are many users who may qualify as an
agricultural user under other law, yet may be able to pass on the additional
overhead due to the assessment of an aquifer management fee because they control
their pricing structure. These users are not intended to have the benefit
of the 20 percent rule and are therefore not included in the definition.
Additional support for the definition of agricultural use is found in the
categories of beneficial use specifically identified in the Act. Under the
Act, there are three types of beneficial use subject to permitting rules:
municipal use, industrial use and irrigation use. Of these three types of
use, only irrigation use is reasonably close in nature to agricultural use.
As such, defining agricultural use to be the use of water for irrigation use
is logical and supported by the Act.
Section 709.1(2) defines "annual operating revenue requirement" as the
total revenues reflected in an annual budget adopted by the board that are
reasonably required to adequately meet all the projected costs of aquifer
management by the Authority. Section 1.29(b) of the Act authorizes aquifer
management fees to finance the Authority's administrative expenses and programs.
The section further provides that the Authority may not collect an amount
of fees that is more than is reasonably necessary for its administration.
In order to establish rules implementing an aquifer management fee program
within the boundaries authorized by the Act, certain definitions had to be
written. The definition of "annual operating revenue requirement" is the benchmark
used for the aquifer management fee program. This definition establishes the
figure that will be reflected in the Authority's annual budget that will serve
as the basis for the calculation and assessment of aquifer management fees.
"Aquifer use" is defined in § 709.1(3) as the withdrawal of groundwater
from the aquifer under interim authorization status or under a permit issued
by the board. The definition is necessary because "aquifer use" would generally
be considered to be the "end use" of the groundwater for its ultimate beneficial
use. On the other hand, it could mean the volume of withdrawals of groundwater
from the aquifer. There is a difference between the amount of "withdrawals"
and the amount of "beneficial use." For purposes of aquifer management fees,
the Authority's point of compliance is at the meter on the wellhead, not at
the ultimate place of use. The volume of groundwater that is withdrawn is
what the aquifer management fee should be assessed against, not the amount
that is applied at the place of use for beneficial use. A definition of "aquifer
use" is required to clarify that the aquifer management fee is assessed against
the volume of groundwater withdrawn rather than the volume that may be applied
to beneficial use.
"Cash needs approach" is defined in § 709.1(4) of Chapter 709 and
provides the basis for how the annual operating revenue requirement (§709.1(2))
of the Authority is determined. The definition is required to more clearly
define what costs and cash needs are considered by the Authority when determining
the annual operating revenue requirement.
The definition of "costs of aquifer management" in § 709.1(5) is required
because that term is used in the definition of annual operating revenue requirement
in § 709.1(2) above. It is necessary to clarify what costs are contemplated
by the Authority when determining the annual operating revenue requirement.
The definition of "downstream water right holder" in § 709.1(6) is
based on § 1.29(d) of the Act which states that equitable special fees
shall be assessed on "all downstream water rights holders in the Guadalupe
River Basin." This term is not defined by the Act, however, it is necessary
to include this definition so the water right holders included in the category
and subject to permit retirement special fees, are clearly defined. The orifices
of the springs are the point of reference for determining which water users
are "downstream" for purposes of assessment of the permit retirement special
fees.
The definition of "fiscal year" in § 709.1(7) is necessary to clearly
define the period of time that is the basis of the Authority's fee programs
and budgetary and administrative process.
"Non-agricultural use" is defined in § 709.1(8). This definition is
necessary to define the beneficial use that is not considered "agricultural
use" and, therefore, not entitled to the 20 percent rule under § 709.19.
In addition, this definition is necessary to determine how the Authority will
calculate and assess the aquifer management fee. Section 1.29(e) of the Act
authorizes the Authority to establish different fee rates for different types
of use. In order to implement this provision in the rules, it is necessary
to define "non-agricultural use."
Section 709.1(10) contains the definition of "permit retirement special
fee" which is based on § 1.29(c) of the Act. This provision in the Act
allows the Authority to assess an equitable special fee based on permitted
aquifer water rights to be used to finance the retirement of rights. In order
to implement § 1.29(c) of the Act, a definition was necessary to clearly
establish what the fee contemplated in that provision would be called and
how it would be defined. This eliminates confusion with other fees authorized
by the Act and makes clear the statutory basis for the fee.
Section 709.1(11) defines a "unit cost basis" as "the amount of a fee expressed
in dollars per acre-foot per annum." Because the Act and the rules refer to
water in increments of "acre-feet" such a definition is required in order
to apply a fee amount to each increment on an annual basis.
Finally, all the definitions contained in § 709.1 provide the basis
for a common regulatory language which enables regulated persons and entities
and the general public to communicate effectively with the Authority.
Subchapter B
Subchapter B consists of three sections (§§ 709.3 -709.7) that
address the establishment of a $10.00 fee for registration applications. Establishment
of the registration fee is consistent with § 1.29(g) of the Act which
states that the "Authority may impose a registration application fee not to
exceed $10." Although the Act does not require a registration fee, the Authority
has determined that it is fiscally reasonable and prudent to assess the fee
for filing any registration application. While the registration process is
relatively simple, it nonetheless, has an administrative cost and has a cumulative
impact on the Authority's budget. The registration fee helps offset that cost.
Section 709.7 dealing with Enforcement for Nonpayment, states that the
general manager may refuse to accept for filing, or otherwise process, a registration
application if the fee is not paid. Other actions authorized by law also may
be used to enforce the fee requirement in this subchapter. This section is
consistent with § 1.36 of the Act relating to Enforcement which states
the Authority "may enter orders to enforce the terms and conditions of permits,
orders, or rules issued or adopted under this article." Collection of these
fees is central to the ability of the Authority to finance its operations
pursuant to the requirements of the Act. As such, a uniform system of enforcement
is necessary to ensure collection of the fees.
Subchapter C
Subchapter C consists of three sections (§§ 709.9 - 709.13) that
address the establishment of a $25 fee for filing with the Authority any application,
including but not limited to, an application for a regular, term, or an emergency
groundwater withdrawal permit, a well construction permit, monitoring well
permit, aquifer recharge and storage permit and recharge recovery permits.
Establishment of the permit application fee is in compliance with § 1.29
(f) of the Act which states the Authority "shall impose a permit application
fee not to exceed $25."
Although the Act states the fee shall not exceed $25, the Authority has
determined that it is fiscally reasonable and prudent to assess the full amount
allowed by the Act for filing any permit. The permit application process has
an administrative cost and has a cumulative impact on the Authority's budget.
The permit application fee helps offset the cost.
Section 709.13 dealing with Enforcement for Nonpayment, states that the
general manager may refuse to accept for filing, or otherwise process, a permit
application if the fee is not paid. This section is consistent with §
1.36 of the Act relating to Enforcement which states the Authority "may enter
orders to enforce the terms and conditions of permits, orders, or rules issued
or adopted under this article." Collection of these fees is central to the
ability of the Authority to finance its operations pursuant to the requirements
of the Act. As such, a uniform system of enforcement is necessary to ensure
collection of the fees.
Subchapter D
Subchapter D consists of eleven sections (§§ 709.15 -709.35)
relating to aquifer management fees. Section 709.15 sets forth the purpose
of rules in this subchapter which is to establish the basis for calculation,
assessment, billing and collection of aquifer management fees in a manner
that is consistent with §§ 1.11 (f) and 1.29 (b) and (e) of the
Act. Section 1.29(b) of the Act states that the "Authority shall assess equitable
aquifer management fees based on aquifer use under the water management plan
to finance its administrative expenses and programs . . .."
Section 709.17 is a direct reflection of the fact that the Authority has
determined that a fair, balanced and fiscally responsible fee system should
be applicable to all aquifer use except for withdrawals of groundwater from
wells which are exempt under §§ 1.16 (c) and 1.33 of the Act. Section
1.16(c) of the Act states that the "owner of a well from which the water will
be used exclusively for domestic use or watering livestock and that is exempt
under § 1.33 of this article is not required to file a declaration of
historical use." Section 1.33 of the Act provides that a "well that produces
25,000 gallons of water a day or less for domestic or livestock use is exempt
from metering requirements." These provisions in the Act have been properly
incorporated into the Authority's rules regarding aquifer management fees.
Section 1.29 of the Act requires that the Authority develop, assess, bill,
and collect an aquifer management fee. However, the Act does not set out the
procedures for these various processes. A typical approach in the development
of a regulatory fee such as the aquifer management fee, would be for the agency
to develop and adopt a budget in order to identify their revenue requirements
for the appropriate fiscal year. Generally, once a budget is developed, the
fee may be determined by dividing into the budget the number of acre-feet
that are anticipated to be withdrawn or authorized to be withdrawn, as appropriate,
in a fiscal year. Section 709.19 describes step-by-step procedures for the
adoption and assessment of an aquifer management fee for the succeeding year.
The fee is based on aquifer use consistent with § 1.29 (e) of the Act
which authorizes the Authority to establish different fee rates on a per acre-foot
basis for different types of use. In order to implement the intent of the
Act, the Authority has established two user blocks:
Block 1: non-agricultural users; and
Block 2: agricultural users.
In order to establish an equitable fee structure under § 1.29(e) of
the Act, the Authority developed a framework based on its annual operating
revenue requirements, the total volume of annual aquifer use for Block 1 users,
carryover funding from the previous fiscal year, calculated revenue from Block
2 users and other sources of potential revenue. After the net annual operating
revenue requirement is determined, it is divided by the total authorized or
contracted aquifer use for Block 1 (non-agricultural) users. Subsequently,
under §709.19(d) as modified, the Authority calculates the aquifer management
fee for Block 2 (agricultural) users at $3.00 per acre-foot for base irrigation
groundwater and at an amount not more than 20 percent of the Block 1 unit
cost per year for unrestricted irrigation groundwater. The unit cost is expressed
in dollars per acre-foot per year. The intended effect of this approach is
to provide for an equitable fee structure by establishing a uniform average
unit cost of groundwater by type of use, regardless of quantity withdrawn,
and bifurcating the aquifer management fee for agricultural use between base
and unrestricted irrigation groundwater as discussed above.
Section 1.29 of the Act requires that the Authority develop, assess, bill,
and collect an aquifer management fee. However, the Act does not set out the
procedures for these various processes. Section 709.21 provides procedures
for billing and collection of aquifer management fees for all persons authorized
for aquifer use under interim authorization status pursuant to § 1.17
of the Act and rules of the Authority, or under a final groundwater withdrawal
permit issued by the Board. The rule implements the requirements of §
1.29 (e) by establishing a billing system that charges agricultural users
for the actual volume of groundwater withdrawn from the aquifer in a calendar
year. Non-agricultural user fees are assessed on either the historical maximum
beneficial use (for interim status under § 1.17 of the Act) or total
groundwater authorized to be withdrawn in a final permit issued by the Board,
irrespective of whether groundwater was withdrawn in either case.
The balance of the discussion in § 709.21 describes invoicing, payment
schedules, collection mechanisms, late fees and other details essential to
developing and maintaining an orderly and predictable system for collecting
aquifer management fees from the two Blocks of users, unless subject to a
user contract under § 709.25 of the rules. The basis for the rule is
the establishment of an understandable and reasonable framework for billing
and effectively collecting aquifer management fees.
Section 709.23 states that the Authority may not collect a total amount
of aquifer management fees that is more than reasonably necessary for the
annual operating revenue requirements for the administration of the Authority
as reflected in its adopted annual fiscal year budget. The basis for this
rule is the limitation on fees and taxes found in § 1.29 (b) of the Act
which states that the amount collected may not be "more than is reasonably
necessary for the administration of the Authority."
Section 709.25 encourages water conservation by allowing the general manager
to contract with any non-agricultural user for the user to commit to aquifer
use that is less than the amount to which the user would otherwise be authorized.
The incentive for non-agricultural users to contract for a lower volume of
groundwater withdrawal from the aquifer is the assessment by the Authority
of a proportionately lower aquifer management fee. In order to retain long-term
flexibility for water planning by the Authority, the rule provides a maximum
term of one year for user contracts. The basis for the rule, conservation
incentives for Block 1 users, is consistent with planned reductions in withdrawals
from the aquifer consistent with the Act.
Section 709.27 establishes an effective period of one calendar year for
aquifer management fees calculated and assessed by the general manager. The
annual basis of the aquifer management fee is tied to the Authority's need
to meet its annual operating revenue requirements. The use of a calendar year
for the calculation and assessment of the aquifer management fee allows the
Authority to manage the aquifer management fee system in conjunction with
its annual budgetary process.
Section 709.29 prohibits the Authority from expending aquifer management
fee revenues for the purchase or operation of water supply facilities. The
aquifer management fee system is specifically linked to the Authority's need
to meet its annual operating revenue requirements. Expenditures based on aquifer
management fee revenues for other purposes are not contemplated by the rule.
This rule will ensure that aquifer management fee revenues collected by the
Authority are used as intended by the Act.
Section 709.31 allows the Authority, under conditions spelled out in the
rule, to waive fees in the form of an offset if an aquifer user is required
to pay aquifer management fees to the Authority and the Authority owes money
to the user. The basis of the waiver is an attempt to simplify, by contract,
the transfer of money between the Authority and regulated users.
Section 709.33, Enforcement for Nonpayment, states that the general manager
may suspend the processing of any application if there is a determination
that the applicant is delinquent on payment of an aquifer management fee.
In addition, the general manager may take other actions authorized by law
to enforce the fee requirement in this subchapter. This section is consistent
with § 1.36 of the Act relating to Enforcement which states the Authority
"may enter orders to enforce the terms and conditions of permits, orders,
or rules issued or adopted under this article." Uniform enforcement of the
collection of aquifer management fees is central to the ability of the Authority
to finance its operations pursuant to the requirements of the Act.
Section 709.35 prohibits withdrawal of groundwater from the aquifer by
any person if the person, or his predecessor in interest, is delinquent in
the payment of an aquifer management fee that is due and payable to the Authority.
Uniform enforcement of this prohibition works in concert with § 709.33,
Enforcement for Nonpayment, to protect the aquifer from unauthorized withdrawals
and assure collection of aquifer management fees. Collection of these fees
is central to the ability of the Authority to finance its operations pursuant
to the requirements of the Act.
III. REGULATORY IMPACT ANALYSIS OF MAJOR ENVIRONMENTAL RULES.
Section 2001.0225 of the Texas Government Code requires an agency to perform,
under certain circumstances, a regulatory analysis of "major environmental
rules." The Authority has determined that none of the rules are "major environmental
rules" as that term is defined by §2001.0225(g)(3) of the Texas Government
Code. The basis for this determination is that the rules do not have the specific
intent to "protect the environment" or "reduce risks to human health from
environmental exposure." The specific intent of these rules is to provide
an outline of procedures for implementing and collecting fees by the Authority,
resulting in the development of a uniform fee system that generates revenue
for the Authority. This revenue is used by the Authority to regulate the use
of the aquifer. For this reason, the Authority finds that none of the rules
are "major environmental rules" and that, therefore, no further analysis is
required by § 2001.0225 of the Texas Government Code.
IV. TEXAS PRIVATE REAL PROPERTY RIGHTS PRESERVATION ACT.
Chapter 2007 of the Texas Government Code, also known as the "Texas Private
Real Property Rights Preservation Act," requires governmental entities, under
certain circumstances, to prepare a takings impact assessment ("TIA") in connection
with certain covered categories of proposed governmental actions. Based on
the following reasons, the Authority has determined that it need not prepare
a TIA in connection with the adoption of these rules. First, the Authority
has made a "categorical determination" that rules establishing procedures
for implementing and collecting fees do not affect private real property.
These rules set forth the various types of fees imposed by the Authority and
provide procedures for the adoption and assessment, as well as the billing
and collection, of those fees. They have no direct affect on private real
property and may not result in a taking. Second, the Authority's action in
adopting these rules is an action that is reasonably taken to fulfill an obligation
mandated by state law and is thus excluded from the Texas Private Real Property
Rights Preservation Act under § 2007.003(b)(4) of the Texas Government
Code. See Act §§ 1.08(a), 1.11(a), (b), (d)(2), (f), and (h), 1.15(a),
1.16(b) and (d)(1), 1.29(a), (b), (c), (d), (e), (f), (g), and (h), 1.36(b),
1.44(c)(2) of the Act; § 2001.004(1) of the APA; and § 36.205 of
the Texas Water Code . It was held in
Edwards Aquifer
Authority v. Bragg,
21 S.W.3d. 375 (Tex. App. -- San Antonio 2000,
pet. filed), that the Edwards Aquifer Act expressly mandates the adoption
of substantive and procedural permitting rules and that such actions are therefore
excepted from the Texas Private Real Property Rights Preservation Act. The
holding in that case controls here. Third, it is the position of the Authority
that all valid actions of the Authority are excluded from the Texas Private
Real Property Rights Preservation Act under § 2007.003(b)(11)(C) of the
Texas Government Code as actions of a political subdivision taken under its
statutory authority to prevent waste or protect the rights of owners of interest
in groundwater. Accordingly, a TIA need not be prepared in connection with
the adoption of these rules.
V. SUMMARY OF PUBLIC COMMENTS.
Five public hearings were held on these and other rules proposed by the
Authority on: Wednesday, August 9, 2000 at 6:00 p.m. at the Conference Center
of the Edwards Aquifer Authority, 1615 N. St. Mary's Street, San Antonio,
Texas; Tuesday, August 15, 2000 at 6:00 p.m. at the New Braunfels Civic Center,
380 S. Seguin Avenue, New Braunfels, Texas; Thursday, August 17, 2000 at 6:00
p.m. at St. Paul's Lutheran Church, 1303 Avenue M, Hondo, Texas; Tuesday,
August 22, 2000 at 6:00 p.m. at the Sgt. Willie De Leon Civic Center, 300
E. Main Street in Uvalde, Texas; and Thursday August 24, 2000 at the San Marcos
Activities Center, 501 E. Hopkins, San Marcos, Texas. Oral and/or written
comments on these rules were provided by Paul Aelvoet; Harold Weiblen; Thomas
C. Trautner for Aldridge Nursery, Inc.; Herb Faseler; Richard Frenzel for
the Bexar County Water Control and Improvement District #10 in Windcrest;
Rafael Pineda; Susan Combs for the Texas Department of Agriculture; Eddy D.
Edmondson for the Texas Nursery & Landscape Association; Vinson &
Elkins L.L.P.; P J Ellison Kalil for Ellison's Greenhouses, Inc.; Bickerstaff,
Heath, Smiley, Pollan, Kever & McDaniel, L.L.P. for the Texas Farm Bureau;
David Sabalka for Color Spot Nurseries; Scott Peck, AIFD TME; Judy Rutledge
for Allied Florists of Houston; Fohn Farm Inc., Joe M. Fohn, for Bobby Fohn
and David Fohn; Ralph and Allen Gilliam, Gilliam Ranch; Gregory and Cora Rothe;
John Persyn; Mark Lamon for the Medina County Farm Bureau; Glenn Bragg, JoLynn
Bragg, and David Bragg for Bragg Pecan Farms, Inc.; Curtis Boehme, Nelson
Boehme and Dorothy Boehme for S.J. Boehme & Sons Inc.; Earl & Brown;
San Antonio Water System; Ken Horton for the Texas Pork Producers Association,
Inc.; Ross Wilson for the Texas Cattle Feeders Association, Inc.; Jeane M.
Funkhouser for Eden Etc. Florists; Jim and Ellen Ellison for Ellison's Greenhouses,
Inc.; Jimmy Klepac for Klepac Greenhouses, Inc.; Gayle Johnson for the Texas
State Florists' Association; M.M. McWilliam; Frank Mechler, Jr.; Glen Kriewald;
Ernie Schreiner; Rudy Botello; Jerry (surname illegible); Carroll T. Keller;
Edgar H. Alzlnot, Jr.; G.J. Boehme; William R. Fewell; Ralph Kohlleppel, Jr.;
R.Q. Stinson; Lynn F. Boehme; Ralph Kohlleppel; Chris Schuele; David B. Carter;
Gail F. Boehme; Harry Lee Keller; Tim Schott; Morris Salazar; Kye Mash; Wm.
Terry (surname illegible); Marshall Persyn; (first name illegible) Haby; Raymond
T.(surname illegible); Jeff Tickner; George (surname illegible); Ted Kohlleppel;
David Kohlleppel; David M. (surname illegible); James G. Wernette; Gilbert
Eryeso; Alvin Santlelonso; Tylar J. (surname illegible); Aubrey Freeman; David
Villarreal; Pamela Gardner; Mark Mendosa; Jacinto Sala; Alex Nieto; John Mueller;
Edward Moore; (first name illegible) Villarreal; (first name illegible) Vogt;
Jay Rogers; J. Lyon Argell; D.A. Villarreal; John Persyn; Melvin M. Zinsmeyer;
Roger T. Graff; Deborah Cox; Karen Bain; Thomas Chautner; P. Gregory; Wm.
Bain; Keith Taylor; (first name illegible) A. Neumann; Robert Neumann; Glenn
Weiblen; Maurice DeCork, Jr.; (first name illegible) Boehme; Harold J. Bemos;
(first name illegible) Besh; Stanley Riker; William H. Reus; Austin A. Clary;
Fred Schueling, Jr.; Joe M. Fohn for Fohn Farm; Donald Bush for Hidden Valley;
Ronnie Muennik; Tom Verstuyft; Richard S. Sterling; Calvin Bendell; Edwin
L. Yanta; Chuck (surname illegible); Deon E. Stewart; Scott Noell; (first
name illegible) Wurzbach; Charles L. Noonan, Jr.; Sarah L. Tracy; Rebecca
D. Faseler; Roy Reyes; Ricky Robles; Melissa Ackermann; Derek Boehme; Julie
Boehme; Niesso Boehme; Pat Wylach; Kathleen D. Carskaddin; Thomas Boehme;
Authur Weiblen; Corinne Davenport; Harvey Boehme; Darlene Boehme; Jeanette
Boehme; (first name illegible) Keller; Cindy Hawkins; C. Ray Hawkins; Elva
Hawkins; Arthur G. Isle "Tootie"; Dale K. Saatek, Jr.; Robert DeLeo, Jr.;
(first name illegible) W. Banner; Mark Vish; Staci S. Boehme; Vicki Boehme;
Allison Boehme; George James; Russell Meyer; Clarence Mumme; Annette Billings;
Wade Swanson; Geneviere Aelvoet; Amy Soltos; (first name illegible) Linderman;
Rick Aelvoet; Robert Fohn; David Fohn; Jared Boehme; Fred Weiblen; Adele Boehme;
Derek M. (surname illegible); Melissa Boehme; Leah Boehme; Morris Faseler;
Cordell Bohlen; Jay E. Muennik; Franklin Muennik; Malvern Jesk; Jimmy Stewart;
Thomas H. Carskadden; Rebecca C. Janysek; Roy Lee Bippert; Eloise Bippert;
Shawn Noonan; Lucille Bippert; Leonard Bippert; Michele D. Bippert; Troy Bippert;
Kris Noonan; Wm Reichert; Bernard Echtle; Margaret M. Echtle; Michael E. Echtle;
Ashley Echtle; George M. Echtle; Alfred Keller, Jr.; Agnes E. Echtle; Marcella
Keller; William Echtle; Michael Weiblen; Kathy Eaton; Joy M. Persyn; Brad
Haby; Rebecca J. Haby; Gary Grantham; Marsha Lanham; Jeffrey Lanham; Gladys
Gembler for the Bexar County Farm Bureau; and other individuals whose first
and last names were illegible on the written comments. (The Authority has
made every effort to interpret the names contained in this list as accurately
as possible based on the oral and written comments received).
Section 709.1(1)
Proposed § 709.1(1) sets forth the definition for "agriculture use"
as "the use of water for irrigation use."
Public Comment No. 1:
Eddy D. Edmondson, Texas Nursery and Landscape Association ("TNLA"), Jeane
M. Funkhouser, Eden Etc. Florists, PJ Ellison Kalil, Ellison's Greenhouses,
Inc. (T.S.F.A. Grower Director), Scott Peck, AIFD TME, Judy Rutledge, TMF,
Allied Florists of Houston, Jim and Ellen Ellison, Ellison's Greenhouse,
Jimmy Klepac, Klepac Greenhouses Incorporated, Gayle Johnson, AAF TMF, Texas
State Florists' Association, and David Sabalka, Color Spot Nurseries
propose that the definition of "agriculture use" be expanded to include
nursery products so that those in the nursery business are treated as agricultural
users and not industrial users under the rules. The proposed change to §
709.1(1) reads as follows:
Agricultural use- The use of water for irrigation use, "or for watering
nursery products by a nursery grower as those terms are identified in the
Texas Agricultural Code, Subtitle B, Chapter 71, Subchapter A, § 71.041."
Authority's Response:
The Authority staff received the above-referenced comments, and disagrees
with the comments. The basis for this determination is that according to the
Edwards Aquifer Authority Act (the "Act"), aquifer management fees for agricultural
use are to be no more than 20% of the rate charged to municipal and industrial
users. The purpose of this break in the fee structure is to protect industries
having an inelastic demand for their products. There is no evidence the Act
intended nurseries be included in that category. In light of the above discussion,
the Authority has not modified §709.1(1) accordingly.
Public Comment No. 2:
John Riley with Vinson & Elkins, L.L.P., commented that the definition
of "agricultural use" is too narrow and contrary to the intent of the Act.
He maintains that restricting the definition of "agricultural use" to that
of "irrigation use" makes agricultural activities more expensive. Riley believes
the Legislature intended the reduced agricultural fee to be applied more broadly
that just in regards to the water that is used for irrigation. Accordingly,
Riley requests a clarification or change in the rule to reflect this.
Authority's Response:
The Authority staff received the above-referenced comment, and disagrees
with the comment. The basis for this determination is that according to the
Act, aquifer management fees for agricultural use are to be no more than 20%
of the rate charged to municipal and industrial users. The purpose of this
break in the fee structure is to protect industries having an inelastic demand
for their products. There is no evidence the Act intended a broader definition
of "agricultural use" be used. In light of the above discussion, the Authority
has not modified §709.1(1) accordingly.
Public Comment No. 3:
Douglas Caroom with Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel,
L.L.P., for the Texas Farm Bureau ("TFB."), asserts that the definition omits
nurseries, aquaculture, feedlot operations, and other agricultural-type operations
that may use Aquifer water, denying these types of agricultural operations
the benefit of the 20% fee limitation imposed by the Act. The TFB recommends
that the Authority use the definition of "Agriculture" as provided in §
2.001 of the Texas Agriculture Code.
Authority's Response:
The Authority staff received the above-referenced comment, and disagrees
with the comment. The basis for this determination is that according to the
Act, aquifer management fees for agricultural use are to be no more than 20%
of the rate charged to municipal and industrial users. The purpose of this
break in the fee structure is to protect industries having an inelastic demand
for their products. There is no evidence the Act intended the operations listed
by the TFB be included in that category. In light of the above discussion,
the Authority has not modified §709.1(1) accordingly.
Public Comment No. 4:
Susan Combs, Commissioner of the Texas Department of Agriculture ("TDA"),
asserts the Texas Legislature did not intend for the definitions "irrigation
use" and "agricultural use" to have identical definitions. TDA proposes that
"agricultural use" include nurseries and feedlot operations.
Authority's Response:
The Authority staff received the above-referenced comment, and disagrees
with the comment. The basis for this determination is that according to the
Act, aquifer management fees for agricultural use are to be no more than 20%
of the rate charged to municipal and industrial users. The purpose of this
break in the fee structure is to protect industries having an inelastic demand
for their products. There is no evidence the Act intended nurseries or feedlot
operations be included in that category. In light of the above discussion,
the Authority has not modified §709.1(1) accordingly.
Public Comment No. 5:
Ross Wilson, Vice President of the Texas Cattle Feeders Association and
Ken Horton, Executive Vice President of the Texas Pork Producers Association,
Inc., proposed that livestock production and the consumption of water by livestock
be included in the definition of "agricultural use" and thereby entitled to
the "agricultural user" fee.
Authority's Response:
Authority staff received the above-referenced comment, and disagrees with
the comment. The basis for this determination is that according to the Act,
aquifer management fees for agricultural use are to be no more than 20% of
the rate charged to municipal and industrial users. The purpose of this break
in the fee structure is to protect industries having an inelastic demand for
their products. There is no evidence the Act intended livestock production
be included in that category. Moreover, most groundwater for raising livestock
in the region is used by wells that are exempt from the Authority's permit
requirement and therefore is not subject to any aquifer management fee. In
light of the above discussion, Authority staff has not modified §709.1(1)
accordingly.
Public Comment No. 6:
Earl & Brown proposes changing § 709.1(1) so that it reads: "the
use of groundwater for irrigation use and/or for agricultural industrial use."
Earl & Brown also proposes the addition of a definition for "agricultural
industrial use" which reads: "beneficial use of groundwater for the production
of food or fiber or for any other use that may be deemed agricultural as that
term is commonly defined."
Authority's Response:
Authority staff received the above-referenced comment, and disagrees with
the comment. The basis for this determination is that the recommended definitions
are too broad. There is no evidence the Act intended the definition of agricultural
use be defined as proposed. In light of the above discussion, Authority staff
has not modified §709.1(1) accordingly.
Section 709.1(4)
Proposed § 709.1(4) sets forth the definition for "cash needs approach"
and states in part:
the method of determining annual operating revenue requirement of the Authority
based on, and sufficient to cover, all cash needs for administrative and program
expenses, including but not limited to . . ..
Public Comment No. 7:
Earl & Brown proposed changing § 709.1(4) so that it reads:
the method of determining the annual operating revenue requirements of
the Authority based on, and sufficient to cover, all "reasonable and necessary"
cash needs for administrative and program expenses . . ..
Authority's Response:
Authority staff received the above-referenced comment, and disagrees with
the comment. The basis for this determination is that the board of directors
adopts an annual budget it believes to be appropriate for the Authority's
administrative and programmatic needs. Therefore, implicit in this "cash needs
approach" is the assumption that the Authority's expenses are reasonable and
necessary. In light of the above discussion, Authority staff has not modified §709.1(4)
accordingly.
Section 709.1(8)
Proposed § 709.1(8) sets forth the definition for "non-agricultural
use" as "the beneficial use of groundwater withdrawn from the aquifer for
any use other than irrigation use."
Public Comment No. 8:
Susan Combs, Commissioner of the TDA, proposes the word "irrigation" be
changed to "agriculture" so that the definition reads: "the beneficial use
of groundwater withdrawn from the aquifer for any use other than agriculture
use."
Authority's Response:
Authority staff received the above-referenced comment, and disagrees with
the comment. The basis for this determination is the proposed definition is
too broad and would have to be defined. The purpose of the Act's break in
the fee structure between irrigation and municipal use is to protect industries
having an inelastic demand for their products. There is no evidence that any
other sector of the agricultural industry is subject to this price inelasticity.
In light of the above discussion, Authority staff has not modified §709.1(8)
accordingly.
Public Comment No 9:
Earl & Brown proposes changing § 709.1(8) to read as follows:
Beneficial use of groundwater withdrawal from the aquifer for any use other
than irrigation or agricultural industrial use.
Authority's Response:
Authority staff received the above-referenced comment, and disagrees with
the comment. The basis for this determination is the proposed definition is
too broad and would have to be defined. The purpose of the Act's break in
the fee structure between irrigation and municipal use is to protect industries
having an inelastic demand for their products. There is no evidence that any
other sector of the agricultural industry is subject to this price inelasticity.
In light of the above discussion, Authority staff has not modified §709.1(8)
accordingly.
Section 709.11
Proposed § 709.11 establishes the permit application fees and states:
The general manager shall impose a $25 fee to file with the Authority an
application for a regular, term, or an emergency groundwater withdrawal permit,
a well construction permit, monitoring well permit, aquifer recharge and storage
permit, and recharge recovery permits. The fee must be paid at the time the
application is filed.
Public Comment No. 10:
Earl & Brown recommends adding the following sentence to the end of §
709.11:
Permit application fee shall be waived by the Authority on all applications
submitted prior to the adoption of these rules.
Authority's Response:
Authority staff received the above-referenced comment, and disagrees with
the comment. The basis for this determination is that the permit application
fee is specifically authorized by the Act. Moreover, the majority of permit
application fees were received in 1996. In light of the above discussion,
Authority staff has not modified §709.11 accordingly.
Public Comment No. 11:
TFB states that proposed § 709.11 contradicts § 707.403. Section
707.403 states, in part, as follows:
For all applications other than for an agricultural conservation loan,
a non-refundable application fee of $25 must accompany that application in
order for it to be considered by the Authority.
Authority's Response:
Authority staff received the above-referenced comment, and agrees with
the comment. To address this apparent contradiction, the Authority staff has
modified §709.11 as set forth below:
The general manager shall impose a $25 fee to file with the Authority any
application, including but not limited to, an application for a regular, term,
or an emergency groundwater withdrawal permit, a well construction permit,
monitoring well permit, aquifer recharge and storage permit, and recharge
recovery permits. The fee must be paid at the time the application is filed.
Section 709.13
Proposed § 709.13 deals with Enforcement for Nonpayment and states:
If the applicant has failed to pay the permit application fee or is delinquent
to the Authority with respect to any other fee that is due and owing from
the applicant to the Authority, the general manager may refuse to accept for
filing, or otherwise process, a permit application.
Public Comment No. 12:
SAWS states that it doubts the Authority has the ability to stall processing
of any application that is not in arrears or found to be in violation of EAA
rules.
Authority's Response:
Authority staff received the above-referenced comment, and disagrees with
the comment. The basis for this determination is that Article 1, § 1.36
of the Act, expressly provides that the Authority "may enter orders to enforce
the terms and conditions of permits, orders, or rules issued or adopted under
this article." Further, the Authority by rule "shall provide for the suspension
of a permit of any class for a failure to pay a required fee or a violation
of a permit condition or order of the authority or a rule adopted by the authority."
In light of the above discussion, Authority staff has not modified §709.13.
Section 709.19(d)(3)
Proposed § 709.19(d)(3) provides as follows:
By December 20th, the general manager shall calculate the aquifer management
fee that may be assessed against Block 1 non-agricultural use on a unit cost
basis by dividing the net annual operating revenue requirements by the total
authorized aquifer use of Block 1 non-agricultural users.
Public Comment No. 13:
SAWS proposes amending the rule to recognize the contracted permit amount
as follows:
By December 20th, the general manager shall calculate the aquifer management
fee that may be assessed against Block 1 non-agricultural use on a unit cost
basis by dividing the net annual operating revenue requirements by the total
authorized "or contracted" aquifer use of Block 1 non-agricultural users.
Authority's Response:
Authority staff received the above-referenced comment, and agrees with
the comment. The basis for this determination is that the calculation of annual
aquifer management fees is derived after staff determines the total authorized
annual aquifer use for non-agricultural users. The Authority should use the
total authorized and contracted aquifer use as described in §709.25 to
calculate the aquifer management fee for Block 1 non-agricultural users. In
light of the above discussion, Authority staff has modified §709.19(d)(3)
accordingly.
Sections 709.19(a), 709.19(d)(2), 709.19(d)(3), 709.19(d)(4), 709.21(c)
Proposed § 709.19(a) states that:
Not later than December 31st of each year, the general manager shall, pursuant
to this subchapter, calculate and assess an aquifer management fee for the
succeeding year.
Proposed § 709.19(d)(2) provides that:
Not later than November 30th, the general manager shall determine the total
volume of aquifer use as reported in the groundwater users reports for the
prior year by Block 1 non-agricultural users.
Proposed §§ 709.19(d)(3) and 709.19(d)(4) provide that the deadline
by which the general manager shall calculate the aquifer management fee to
be assessed against non-agricultural users and agricultural users, is December
20th.
Public Comment No. 14:
SAWS proposes changing § 709.19(a) to read: "no later than December
20th of each year . . .." SAWS also requests the elimination of § 709.19(d)(2)
stating it is an unnecessary step in fee assessment, and that there be consistency
among the dates used in this section.
Authority's Response:
Authority staff received the above-referenced comments, and disagrees in
part with the comments. The basis for this determination in regard to §709.19(a)
is that the proposed change would limit the Authority's flexibility to assess
aquifer management fees for the succeeding year. However, to achieve consistency,
Authority staff recommends changing the dates in §709.19(d)(3) and §709.19(d)(4)
from December 20th to December 31st. In light of the above discussion, Authority
staff has modified §709.19(d)(3) and §709.19(d)(4) as set forth
below:
(d)(3) By December 31st . . ..
(d)(4) By December 31st . . ..
The Authority staff agrees in part with the comments. The basis for this
determination in regard to §709.19(d)(2) is that although this section
details an important step in the process of calculating aquifer management
fees, including a specific reference to a date is not necessary. In light
of the above discussion, Authority staff has modified §709.19(d)(2) as
set forth below:
(d)(2) The general manager shall determine the total volume of aquifer
use as reported in the groundwater users reports for the prior year by Block
1 non-agricultural users.
In light of these modifications by the Authority, § 709.21(c) has
also been amended to maintain consistency between the dates used in §
709.19 and § 709.21 as follows:
§ 709.21(c) Not later than December 31st, the general manager shall
mail an aquifer management fee invoice to all non-agricultural users. Not
later than December 31st, the general manager shall mail a groundwater use
report form to all agricultural users . . ..
Section 709.19(d)(4)
Proposed § 709.19(d)(4) states, in part, that "the general manager
shall calculate the aquifer management fee for Block 2 agricultural users
at an amount equal to 20 percent of the aquifer management fee for Block 1
non-agricultural users."
Public Comment No. 15:
Susan Combs, Commissioner of the TDA, asserts that § 709.19(d)(4)
requires the Authority's general manager to determine the aquifer management
fees for agricultural users at an amount that "may not be more than 20 percent
of the fee rate for municipal use", pursuant to § 1.29(e) of the Act.
TDA further asserts that the Authority is repressing irrigated agriculture
by increasing water rates and charging the maximum rate allowed by law. Accordingly,
TDA requests that the Authority consider the financial position of farmers
and ranchers before charging these rates.
Authority's Response:
Authority staff received the above-referenced comment, and agrees in part
with the comment. The basis for this determination is that to better reflect
the requirements and the intent of the Act, the board may determine annually
by resolution the aquifer management fee rate for agricultural users. This
rate will be $3.00 per acre-foot for base irrigation groundwater and not more
than 20% of the fee rate for municipal use for unrestricted irrigation groundwater.
The board may consider limiting aquifer management fees for agricultural users
in this annual resolution. In light of the above discussion, Authority staff
has modified §709.19(d)(1) and (4) accordingly.
Public Comment No. 16:
Fohn Farm Inc./Fohn Bros. Farms, through Joe M. Fohn commenting for Bobby
Fohn and David Fohn, commented on the cost of aquifer management fees stating
it reported a monetary per acre loss on its crops and asked the Authority
to consider the current depressed state of agricultural prices, asserting
that such status makes higher management fees unaffordable.
Authority's Response:
Authority staff received the above-referenced comment, and agrees in part
with the comment. The basis for this determination is that to better reflect
the requirements and the intent of the Act, the board may determine annually
by resolution the aquifer management fee rate for agricultural users. This
rate will be $3.00 per acre-foot for base irrigation groundwater and not more
than 20% of the fee rate for municipal use for unrestricted irrigation groundwater.
The board may consider limiting aquifer management fees for agricultural users
in this annual resolution. In light of the above discussion, Authority staff
has modified §709.19(d)(1) and (4) accordingly.
Public Comment No. 17:
The following persons and associations commented on § 709.19(d)(4)
and urge the Authority to adopt a maximum cap of $3.00 per acre foot regarding
water management fees:
M.M. McWilliam; Frank Mechler, Jr.; Glen Kriewald; Ernie Schreiner; Glenn
Bragg; Rudy Botello; Jerry (surname illegible); Carroll T. Keller; Edgar H.
Alzlnot, Jr.; G.J. Boehme; William R. Fewell; Ralph Kohlleppel, Jr.; R.Q.
Stinson; Lynn F. Boehme; Ralph Kohlleppel; Chris Schuele; David B. Carter;
Gail F. Boehme; Harry Lee Keller; Tim Schott; Morris Salazar; Kye Mash; Wm.
Terry (surname illegible); Marshall Persyn; (first name illegible) Haby; Raymond
T.(surname illegible); Jeff Tickner; George (surname illegible); Ted Kohlleppel;
David Kohlleppel; David M. (surname illegible); James G. Wernette; Gilbert
Eryeso; Alvin Santlelonso; Tylar J. (surname illegible); Aubrey Freeman; David
Villarreal; Pamela Gardner; Mark Mendosa; Jacinto Sala; Alex Nieto; John Mueller;
Edward Moore; (first name illegible) Villarreal; (first name illegible) Vogt;
Jay Rogers; J. Lyon Argell; D.A. Villarreal; John Persyn; Melvin M. Zinsmeyer;
Roger T. Graff; Deborah Cox; Karen Bain; Thomas Chautner; P. Gregory; Wm.
Bain; Keith Taylor; (first name illegible) A. Neumann; Robert Neumann; Glenn
Weiblen; Maurice DeCork, Jr.; (first name illegible) Boehme; Harold J. Bemos;
(first name illegible) Besh; Stanley Riker; William H. Reus; Austin A. Clary;
Fred Schueling, Jr.; Joe M. Fohn (Fohn Farm); Donald Bush (Hidden Valley);
Ronnie Muennik; Tom Verstuyft; Richard S. Sterling; Calvin Bendell; Edwin
L. Yanta; Chuck (surname illegible); Deon E. Stewart; Scott Noell; (first
name illegible) Wurzbach; Charles L. Noonan, Jr.; Sarah L. Tracy; Rebecca
D. Faseler; Roy Reyes; Ricky Robles; Melissa Ackermann; Derek Boehme; Julie
Boehme; Niesso Boehme; Pat Wylach; Kathleen D. Carskaddin; Thomas Boehme;
Arthur Weiblen; Corinne Davenport; Harvey Boehme; Darlene Boehme; Jeanette
Boehme; (first name illegible) Keller; Cindy Hawkins; C. Ray Hawkins; Elva
Hawkins; Arthur G. Isle "Tootie"; Dale K. Saatek, Jr.; Robert DeLeo, Jr.;
(first name illegible) W. Banner; Mark Vish; Dorothy M. Boehme; Staci S. Boehme;
Vicki Boehme; Curtis Boehme; Allison Boehme; Paul Aelvoet; George James; Russell
Meyer; Clarence Mumme; Annette Billings; Wade Swanson; Geneviere Aelvoet;
Amy Soltos; (first name illegible) Linderman; Rick Aelvoet; Robert Fohn; David
Fohn; Harold Weiblen; Jared Boehme; Fred Weiblen; Adele Boehme; Nelson Boehme;
Derek M. (surname illegible); Melissa Boehme; Leah Boehme; Morris Faseler;
Cordell Bohlen; Jay E. Muennik; Franklin Muennik; Malvern Jesk; Jimmy Stewart;
Thomas H. Carskadden; Rebecca C. Janysek; Roy Lee Bippert; Eloise Bippert;
Shawn Noonan; Lucille Bippert; Leonard Bippert; Michele D. Bippert; Troy Bippert;
Kris Noonan; Wm Reichert; Bernard Echtle; Margaret M. Echtle; Michael E. Echtle;
Ashley Echtle; George M. Echtle; Alfred Keller, Jr.; Agnes E. Echtle; Marcella
Keller; William Echtle; Michael Weiblen; Kathy Eaton; Joy M. Persyn; Brad
Haby; Rebecca J. Haby; Gary Grantham; Marsha Lanham; Thomas C. Trautner; Jeffrey
Lanham; Mark Lamon for the Medina County Farm Bureau; Gladys Gembler for the
Bexar County Farm Bureau, and other individuals whose first and last names
were illegible on the written comments.
Authority Response:
Authority staff received the above-referenced comment, and agrees in part
with the comment. The basis for this determination is that to better reflect
the requirements and the intent of the Act, the board may determine annually
by resolution the aquifer management fee rate for agricultural users. This
rate will be $3.00 per acre-foot for base irrigation groundwater and not more
than 20% of the fee rate for municipal use for unrestricted irrigation groundwater.
The board may consider limiting aquifer management fees for agricultural users
in this annual resolution. In light of the above discussion, Authority staff
has modified §709.19(d)(1) and (4) accordingly.
Public Comment No. 18:
In assessing the aquifer management fee under § 709.19(d)(4), Clarence
Mumme requests that the Authority consider: 1) the Agricultural Industry's
inability to pass the increased cost of water to their produce buyers, 2)
the possibility that the unlimited or increasing charge for water use would
become an unaffordable cost of business for farmers, 3) the possibility of
soon incurring a $30.00 per acre user fee that would equal the cost of leasing
irrigated land, 4) the contention that land owners pay a higher price for
irrigated land, 5) the expense and risk of drilling a well, plus the expenditures
made in purchasing, operating, and maintaining irrigation equipment, 6) the
economic impact of farming in the seven county area, 7) annual changes in
rainfall coupled with the assertion that irrigation water is used only when
there is an insufficient amount of rain, and 8) the lower expense related
to rain water as opposed to pumped water. Finally, Mr. Mumme proposes capping
charges for farmers' water usage at $3.50 per acre-foot per year or, in the
alternative, pay land owners $250 per acre foot per year for non-usage of
his/her allocated two acre feet.
Authority's Response:
Authority staff received the above-referenced comment, and agrees in part
with the comment. The basis for this determination in regard to limiting the
amount of the annual aquifer management fee for agricultural users is that
the board may determine annually by resolution the aquifer management fee
rate for agricultural users. This rate will be $3.00 per acre-foot for base
irrigation groundwater and not more than 20% of the fee rate for municipal
use for unrestricted irrigation groundwater. The board may consider limiting
aquifer management fees for agricultural users in this annual resolution.
In light of the above discussion, Authority staff has modified §709.19(d)(1)
and (4) accordingly.
Authority staff received the above-referenced comment, and disagrees in
part with the comment. The basis for this determination in regard to paying
land owners for non-usage of his/her allocated two acre-feet per acre, is
that the Authority may consider payment for non-use of a well owner's allocated
groundwater in a separate program. In light of the above discussion, Authority
staff has not modified §709.19(d)(4) accordingly.
Public Comment No. 19:
Ralph and Allen Gilliam of Gilliam Ranch, and Gregory and Cora Rothe, propose
the elimination of § 709.19(d)(4) so the Board may retain the discretion
to set agricultural user fees annually, as a part of the budget process. The
Board's retention of this discretion may aid in avoiding high fees which could
make farming economically prohibitive. Alternatively, if the rule is not abolished,
the commenters assert that a modification is necessary to allow the general
manager to annually recommend a proper percentage relationship between agricultural
and non-agricultural users.
Authority's Response:
Authority staff received the above-referenced comment, and disagrees in
part with the comment. The basis for this determination is that aquifer management
fees are mandated by the Act and must be available as a regulatory tool. In
light of the above discussion, Authority staff has not modified §709.19(d)(4)
accordingly.
Authority staff received the above-referenced comment, and agrees in part
with the comment. The basis for this determination is that to better reflect
the requirements and the intent of the Act, the board may determine annually
by resolution the aquifer management fee rate for agricultural users. This
rate will be $3.00 per acre-foot for base irrigation groundwater and not more
than 20% of the fee rate for municipal use for unrestricted irrigation groundwater.
The board may consider limiting aquifer management fees for agricultural users
in this annual resolution. In light of the above discussion, Authority staff
has modified §709.19(d)(1) and (4) accordingly.
Public Comment No. 20:
S. J. Boehme and Sons, Inc. (through Curtis, Nelson, and Dorothy Boehme),
recommends changing the wording of § 709.19(d)(4) to read:
(d)The aquifer management fee shall be calculated and addressed as follows:
(4) By December 20th, except as provided in § 711.420(3) of this title
(relating to Enforcement) the general manager shall calculate the aquifer
management fee for Block 2 agricultural users at $3.00 per acre foot for the
first acre foot of initial regular permit - the amount above an acre foot
be charged no more than 20 percent of the aquifer management fee for Block
1 non-agricultural users.
Boehme and Sons assert these changes will:
(1) promote water conservation for agricultural use;
(2) encourage the sale or lease of water to Block 1 non-agricultural users
resulting in an increase in management fees return per acre foot;
(3) aide tenants and renters in remaining in agriculture thereby allowing
landowners to continue leasing their land; and
(4) result in a smaller increase of management fees for non-agricultural
users.
Authority's Response:
Authority staff received the above-referenced comment, and agrees in part
with the comment. The basis for this determination is that to better reflect
the requirements and the intent of the Act, the board may determine annually
by resolution the aquifer management fee rate for agricultural users. This
rate will be $3.00 per acre-foot for base irrigation groundwater and not more
than 20% of the fee rate for municipal use for unrestricted irrigation groundwater.
The board may consider limiting aquifer management fees for agricultural users
in this annual resolution. In light of the above discussion, Authority staff
has modified §709.19(d)(1) and (4) accordingly.
Public Comment No. 21:
Glenn Bragg, JoLynn Bragg, and David Bragg of Pecan Farms, Inc. ("Bragg"),
contend that the language of this section mandates that agricultural fees
be set at 20% of industrial/municipal use, thereby eliminating the Authority's
ability to adjust agricultural fees below the 20% mark. Bragg contends the
Act (§ 1.29(e)) demonstrates that the 20% rate was intended to be a maximum
fee which allows the Authority to set rates below that maximum. Furthermore,
Bragg comments that agricultural user fees will increase over time and users
will likely receive buy-down fee assessments for both the 450,000 and 400,000
acre-feet (FY 2008) caps. Consequently, the fees and the increasing budgets
will rapidly become insupportable for agriculture if the Authority immediately
begins charging at the 20% maximum rate. Bragg emphasizes that agricultural
users cannot pass the cost of increasing fees off to the consumer and recommends
that agricultural water fees be fixed at the current rate of $3.70 per acre-foot
unless or until agricultural prices can support an increase.
Authority's Response:
Authority staff received the above-referenced comment, and agrees in part
with the comment. The basis for this determination is that to better reflect
the requirements and the intent of the Act, the board may determine annually
by resolution the aquifer management fee rate for agricultural users. This
rate will be $3.00 per acre-foot for base irrigation groundwater and not more
than 20% of the fee rate for municipal use for unrestricted irrigation groundwater.
The board may consider limiting aquifer management fees for agricultural users
in this annual resolution. In light of the above discussion, Authority staff
has modified §709.19(d)(1) and (4) accordingly.
Public Comment No. 22:
Paul Aelvoet commented on 709.19(d)(4) and states Senate Bill 1477 requires
the agricultural fee be no more than 20% of the non-agricultural fee. He states
"an amount equal to 20%" is an illegal changing of the law.
Authority's Response:
Authority staff received the above-referenced comment, and agrees in part
with the comment. The basis for this determination is that to better reflect
the requirements and the intent of the Act, the board may determine annually
by resolution the aquifer management fee rate for agricultural users. This
rate will be $3.00 per acre-foot for base irrigation groundwater and not more
than 20% of the fee rate for municipal use for unrestricted irrigation groundwater.
The board may consider limiting aquifer management fees for agricultural users
in this annual resolution. In light of the above discussion, Authority staff
has modified §709.19(d)(1) and (4) accordingly.
Public Comment No. 23:
Harold Weiblen commented on §709.19(d)(4) and states the language
in the proposed rule should track the Act.
Authority's Response:
Authority staff received the above-referenced comment, and agrees in part
with the comment. The basis for this determination is that to better reflect
the requirements and the intent of the Act, the board may determine annually
by resolution the aquifer management fee rate for agricultural users. This
rate will be $3.00 per acre-foot for base irrigation groundwater and not more
than 20% of the fee rate for municipal use for unrestricted irrigation groundwater.
The board may consider limiting aquifer management fees for agricultural users
in this annual resolution. In light of the above discussion, Authority staff
has modified §709.19(d)(1) and (4) accordingly.
Public Comment No. 24:
Thomas C. Trautner with Aldridge Nursery, Inc. states that the proposed
fees will be about $7.00 an acre foot and may rise over the next few years,
due mostly to the Authority's litigation expenses. He contends increasing
fees to pay for litigation is against the law and unreasonable under §
1.29(b) of the Edwards Aquifer Authority Act. Mr. Trautner also contends the
$7.00 fee per acre foot could go as high as $20.00 for irrigation use. For
most farmers that rarely net more than $100,000 annually, this $14,000 fee
during a drought would taken 14% of that income. He feels $7.00 is an unreasonable
amount to pay for your own water and asserts that farmers will eventually
become unable to operate if these higher management prices continue to rise.
Authority's Response:
Authority staff received the above-referenced comment, and disagrees in
part with the comment. The basis for this determination in regard to the statement
that increasing fees to pay for litigation is illegal and unreasonable, is
that § 1.29 of the Act expressly provides that the Authority shall assess
aquifer management fees "to finance its administrative expenses and programs"
thereby allowing the Authority to take into account litigation expenses when
determining fees. In light of the above discussion, Authority staff has not
modified §709.19(d)(4) accordingly.
Authority staff received the above-referenced comment, and disagrees in
part with the comment. The basis for this determination in regard to the statement
that increasing fees to $7.00 and above will result in farmers being unable
to operate, is that the Authority cannot make such a determination based on
the variables involved. Crop production costs are based on the type of crop
grown and profit margins vary according to the type of crop grown. The Authority
has determined, however, that to better reflect the requirements and the intent
of the Act, the board may determine annually by resolution the aquifer management
fee rate for agricultural users. This rate will be $3.00 per acre-foot for
base irrigation groundwater and not more than 20% of the fee rate for municipal
use for unrestricted irrigation groundwater. The board may consider limiting
aquifer management fees for agricultural users in this annual resolution.
In light of the above discussion, Authority staff has modified §709.19(d)(1)
and (4) accordingly.
Section 709.21
Proposed § 709.21 deals with Billing and Collection of aquifer management
fees.
Public Comment No. 25:
Richard Frenzel, General Manager of the Bexar County Water Control and
Improvement District #10 in Windcrest objects to agricultural users being
guaranteed two-acre feet of water per year. He also disagrees with agricultural
users paying "after the fact" for whatever they use, while municipal/industrial
users have to pay in advance for whatever they are going to be allocated.
Authority's Response:
Authority staff received the above-referenced comment, and disagrees with
the comment. The basis for this determination is that this requirement is
described in the Act. Moreover, user contracts described in §709.25 provide
an opportunity for municipal and industrial well owners to pay only for the
groundwater projected to be used in a given year. In light of the above discussion,
Authority staff has not modified §709.21 accordingly.
Section 709.21(b)(2)(B)
Proposed § 709.21(b)(2)(B) states, in part, as follows:
(2) If the aquifer use is non-agricultural, then the fee shall be assessed
on:
(B) for a permittee, the total volume of groundwater authorized to be withdrawn
in a final permit issued by the board, irrespective of whether the groundwater
was actually withdrawn.
Public Comment No. 26:
Earl & Brown proposes an addition to § 709.21(b)(2)(B). As amended,
it would read:
(B) for a permittee, the total volume of groundwater authorized to be withdrawn
in a final permit issued by the board, irrespective of whether the groundwater
was actually withdrawn. However, in order to promote conservation and avoid
unnecessary waste under a "take or pay" scheme, the Authority shall refund
to the payor Aquifer Management Fees in an amount equal to that portion unpumped
permit which was not withdrawn during the calender year.
Authority's Response:
Authority staff received the above-referenced comment, and disagrees with
the comment. The basis for this determination in regard to the "take or pay"
issue is that user contracts described in §709.25 are intended to promote
conservation by allowing non-agricultural users to voluntarily limit the amount
of groundwater they will use in a calendar year. In light of the above discussion,
Authority staff has not modified §709.21(b)(2)(B) accordingly.
Section 709.21(c) and (e)
Proposed § 709.21(c) states, in part, that "the general manager shall
mail a groundwater use report form to all agricultural users to report aquifer
use for the preceding calendar year."
Proposed § 709.21(e) states, in part, "for agricultural users, the
groundwater use report shall constitute an aquifer management fee invoice
. . . This invoice for agricultural use becomes due and payable immediately
upon mailing of the groundwater use report by the general manager."
Public Comment No. 27:
SAWS recommends the following changes to the above-mentioned sections:
(c)...to report aquifer use for "current" calender year.
(e) This invoice for agricultural use becomes due and payable immediately
upon mailing of the groundwater use report by the "agricultural user."
Authority's Response:
Authority staff received the above-referenced comment, and agrees with
the comment. The basis for this determination is the proposed revisions will
better describe the process for distributing annual groundwater use report
forms and for collecting aquifer management fees. In light of the above discussion,
Authority staff has modified §709.21(c) and §709.21(e) accordingly.
(Note: Although SAWS' comment refers to §709.21(b), Authority staff has
concluded the comment was intended to address §709.21(c)).
Section 709.21(d)
Proposed § 709.21(d) provides for the payment of the aquifer management
fee by non-agricultural users and provides that:
An aquifer management fee invoice for a non-agricultural user becomes due
and payable immediately upon mailing. If the total annual aquifer management
fee invoice for the user is less than $600, the user shall pay the fee on
a lump sum basis. Such an invoice becomes delinquent if payment in full is
not received by the Authority on or before March 1st of the year for which
the aquifer management fee is in effect. If the total annual aquifer management
fee invoice for a non-agricultural user is equal to or greater than $600,
then the user may elect to pay the fee on a lump sum or in equal monthly payments.
Such an invoice becomes delinquent if payment in full for a lump sum payment
is not received in full by March 1st of the year for which the aquifer management
fee is in effect. If the non-agricultural user elects to pay on a monthly
payment schedule, then the pro rata portion of the invoice becomes due monthly
on the last working day of each month. Each monthly payment of an invoice
becomes delinquent if payment in full is not received by the Authority on
or before the last working day of each month for which the monthly payment
becomes due and payable.
Public Comment No. 28:
Richard Frenzel, General Manager of the Bexar County Water Control and
Improvement District #10 in Windcrest, proposes changing § 709.21(d)
to read as follows:
An aquifer management fee invoice for a non-agricultural user becomes due
and payable immediately upon mailing. If the total annual aquifer management
fee invoice for the user is less than $600, the user shall pay the fee on
a lump sum basis. Such an invoice becomes delinquent if payment in full is
not received by the Authority on or before March 1st of the year for which
the aquifer management fee is in effect. If the total annual aquifer management
fee invoice for a non-agricultural user is equal to or greater than $600,
then the user may elect to pay the fee "in" a lump sum or in equal monthly
payments. Such an invoice becomes delinquent if payment in full for a lump
sum payment is not received in full by March 1st of the year for which the
aquifer management fee is in effect. If the non-agricultural user elects to
pay on a monthly payment schedule, then the pro rata portion of the invoice
becomes due monthly on the last working day of each month. Each monthly payment
of an invoice becomes delinquent if payment in full is not received by the
Authority on or before the last working day of each month for which the monthly
payment becomes due and payable.
Authority's Response:
Authority staff received the above-referenced comment, and agrees with
the comment. The basis for this determination is this was a typographical
error. In light of the above discussion, Authority staff has modified §709.21(d)
accordingly.
Public Comment No. 29:
Herb Faseler commented that § 709.21(d) is discriminatory because
an aquifer management fee for a non-agricultural user is delinquent if not
paid by March 1 of the year for which the fee is in effect, while an invoice
for agricultural users is delinquent if not received by January 31 of each
year. He states January is a difficult month because farmers and ranchers
must pay taxes in January and that a payment plan should be an option for
agricultural users.
Authority's Response:
Authority staff received the above-referenced comment, disagrees with the
comment. The basis for this determination is that as agricultural users, farmers
pay aquifer management fees for groundwater used in the production of a crop
during the preceding year. Municipal and industrial users are paying for the
current year's groundwater use by March 1, whereas farmers are paying after
the fact based on actual water use. Therefore, the proposed rule is not discriminatory.
In light of the above discussion, Authority staff has not modified §709.21(d)
accordingly.
Section 709.21(f)
Proposed § 709.21(f) states:
For any aquifer management fee that is delinquent, if payment in full is
not received on or before 10 days after the date the amount became delinquent,
then the General Manger shall assess, for every month thereafter that the
invoice remains delinquent, a penalty of 5 percent of the then delinquent
amount.
Public Comment No. 30:
Thomas C. Trautner asserts that the five percent penalty is usurious, especially
when additional pumping cannot occur until late fees and penalties are paid.
Authority's Response:
Authority staff received the above-referenced comment, and agrees in part
with the comment. The basis for this determination in regard to the penalty
for late payments is that in an effort to maintain consistency with other
legal constraints, the section should be amended to allow the Authority to
assess a penalty for late payments in an amount equivalent to the maximum
amount allowed by law. In light of the above discussion, Authority staff has
modified §709.21(f) accordingly.
Section 709.21(g)
Public Comment No. 31:
Earl & Brown proposes adding § 709.21 (g), which reads:
If the total amount of Aquifer Management Fees for Block-1 Non-Agricultural
User Exceeds a total of $1,000 annually, the payor shall have the option of
paying the Authority a one time $10 Administration Fee and then be allowed
to pay the total fees in 12 equal monthly installments to the Authority.
Authority's Response:
Authority staff received the above-referenced comment, and disagrees with
the comment. The basis for this determination in regard to monthly payments
of Block 1 non-agricultural aquifer management fees is that the proposal to
add §709.21(g) is repetitive of §709.21(d) detailing options for
monthly payment of aquifer management fees for non-agricultural users. In
light of the above discussion, Authority staff has not added §709.21(g)
accordingly.
Chapter 709 - General
In response to the Authority's request to the Texas Workforce Commission
("TWC") to prepare a Local Employment Impact Statement pursuant to §
2001.022 of the Texas Government Code, the TWC responded in a letter to the
Authority regarding Chapter 709 stating:
After reviewing the information provided to our Department, there is no
apparent basis to refute the proposed employment impacts outlined in the (information
submitted on behalf of the Authority). Our data will not confirm nor deny
the potential lost jobs nor the newly created jobs based upon the impact of
these proposed rules.
The Authority determined the letter did not constitute a Local Employment
Impact Statement because it did not meet the criteria identified in §
2001.022(a) of the Texas Government Code. Because the Commission did not prepare
and deliver to the Authority a Local Employment Impact Statement within 25
days after the date on which the Commission received the proposed rules, the
proposed rules are presumed not to affect local employment pursuant to §
2001.022(e) of the Texas Government Code and no Local Employment Impact Statement
is required to be included in the Notice of Proposed Rule.
Public Comment No. 32:
Thomas C. Trautner with Aldridge Nursery states the Authority is not excused
from examining the impact of Chapter 709 on employment because the TWC did
not make any findings regarding the issue.
Authority Response:
Authority staff received the above-referenced comment, and disagrees with
the comment. The Authority has complied with all the requirements of the Texas
Government Code and has applied the legal presumption set out in § 2001.022(e).
Based on the letter provided by the TWC, no Local Employment Impact Statement
is required to be included in the Notice of Proposed Rule. There is no additional
requirement that the Authority conduct an impact analysis independent of the
TWC.
Public Comment No. 33:
Rafael Pineda states the Texas Legislature was not authorized to exercise
total domain over water. "This water is private water, and it should stay
private water." He also feels a great deal of water can be conserved with
various sprinkler systems.
Authority's Response:
Authority staff received the above-referenced comment, and disagrees with
the comment. The basis for this determination is that the aquifer is a natural
resource of Texas. The Legislature, through § 1.08 of the Act, has stated
that the Authority has "all of the powers, rights, and privileges necessary
to manage, conserve, preserve, and protect the aquifer and to increase the
recharge of, and prevent the waste or pollution of water in the aquifer."
In light of the above discussion, Authority staff has not modified any rules
contained in Chapter 709.
Public Comment No. 34:
The TFB asserts that the Authority was required by the Texas Private Real
Property Rights Preservation Act to prepare a "takings impact assessment"
or "TIA" before providing notice of the proposed adoption of the Chapter 709
rules.
Authority's Response:
The Authority staff received the above-referenced comment and disagrees
with the comment. Chapter 2007 of the Texas Government Code, also known as
the "Texas Private Real Property Rights Preservation Act" ("TPRPRA"), requires
governmental entities, under certain circumstances, to prepare a TIA in connection
with certain covered categories of proposed governmental actions. Based on
the following reasons, the Authority has determined that it need not prepare
a TIA in connection with the adoption of these rules.
First, the Authority has made a "categorical determination" that these
proposed Chapter 709 rules do not affect vested property rights and, as such,
adoption of these rules is not an action that "may result in a taking." The
rules at issue here establish procedures for implementing and collecting fees.
The rules set forth the various types of fees imposed by the Authority and
provide procedures for the adoption and assessment, as well as the billing
and collection, of those fees. They have no direct affect on private real
property and may not result in a taking.
Second, the Authority's action in adopting these rules is an action that
is reasonably taken to fulfill an obligation mandated by state law and is
thus excluded from the Texas Private Real Property Rights Preservation Act
under § 2007.003(b)(4) of the Texas Government Code. See §§
1.08(a), 1.11(a), (b), (d)(2), (f), and (h), 1.15(a), 1.16(b) and (d)(1),
1.29(a), (b), (c), (d), (e), (f), (g), and (h), 1.36(b), 1.44(c)(2) of the
Act; § 2001.004(1) of the APA; and § 36.205 of the Texas Water Code
.
This conclusion is directly supported and controlled by the decision in
Third, it is the position of the Authority that all valid actions of the
Authority are excluded from the Texas Private Real Property Rights Preservation
Act under § 2007.003(b)(11)(C) of the Texas Government Code as actions
of a political subdivision taken under its statutory authority to prevent
waste or protect the rights of owners of interest in groundwater. Accordingly,
a TIA need not be prepared in connection with the proposal of these rules.
Accordingly, for the reasons stated above, a TIA need not be performed
in connection with the proposal of these rules.
Public Comment No. 35:
The TDA commented generally that the Authority should have prepared a "small
business effects statement" prior to proposing the adoption of the Chapter
709 rules, pursuant to § 2006.002(d) of the Texas Government Code.
Authority Response:
The Authority staff received the above-referenced comment and disagrees
for the following reasons. Chapter 2006 of the Texas Government Code, subchapter
A, requires state agencies to prepare a small business effects statement (SBES)
prior to proposing, for adoption, a rule that would have an adverse economic
effect on small businesses. By the statute's express terms, this requirement
applies only to a "state agency." The term "state agency" is defined, for
the purposes of Chapter 2006, subchapter A, as "a department, board, bureau,
commission, division, office, council or other agency of the state."
Section 2006.002 does not apply to the Authority because the Authority
does not meet the definition of the term "state agency" as set out forth in
Chapter 2006. Section 1.02(a) of the Act creates the Authority as a "conservation
and reclamation district" under Article XVI, § 59 of the Texas Constitution.
Conservation and reclamation districts created under this authority have long
been considered to be "political subdivisions" of the State of Texas.
A political subdivision differs from a department, board or agency of the
State.
A political subdivision has jurisdiction over
a portion of the State; a department, board or agency of the State exercises
its jurisdiction throughout the State.
Members of the governing body
of a political subdivision are elected in local elections or are appointed
by locally elected officials; those who govern departments, boards or agencies
of the State are elected in statewide elections or are appointed by State
officials.
Guaranty Petroleum,
609 S.W.2d at 531 (emphasis
added).
This opinion makes clear that state agencies are characterized by having
statewide jurisdiction and are governed by persons who are elected in statewide
elections or are appointed by state officials. Political subdivisions like
the Authority, on the other hand, have jurisdiction over only a portion of
the state and are governed by persons who are elected in local elections or
are appointed by locally elected officials. These principles have been reiterated
by the Texas Supreme Court in
Lohec v. Galveston
County Commissioners Court,
841 S.W.2d 361, 364 (Tex. 1992) (noting
that "statewide jurisdiction" is "a trait required of entities recognized
as department, boards, or agencies of the state") and
Monsanto Company v. Cornerstones Municipal Utility District,
865 S.W.2d
937, 939-40 (Tex. 1993).
Because the Authority has jurisdiction over only a portion of the State
and because the members of its governing body are elected in local elections
or are appointed by locally elected officials, the Authority is a political
subdivision and not a state agency, and is not subject to the SBES requirement
found in Chapter 2006 of the Government Code.
No revisions to the Chapter 709 are required in response to this comment.
VI. CONCISE RESTATEMENT OF THE STATUTORY PROVISIONS UNDER WHICH THE RULES
ARE ADOPTED.
Section 1.08(a) of the Act provides that the Authority "has all of the
powers, rights, and privileges necessary to manage, conserve, preserve, and
protect the aquifer and to increase the recharge of, and prevent the waste
or pollution of water in, the aquifer." This section provides the Authority
with broad and general powers to take actions as necessary to manage, conserve,
preserve, and protect the aquifer and to increase the recharge of, and prevent
the waste or pollution of water in, the aquifer.
Section 1.11(a) of the Act provides that the Board of Directors ("Board")
of the Authority "shall adopt rules necessary to carry out the authority's
powers and duties under (Article 1 of the Act), including rules governing
procedures of the Board and the authority." This section directs the Board
to adopt rules as necessary to implement the various substantive programs
set forth in the Act related to the Edwards Aquifer, which includes application,
registration, aquifer management, and regular permit special retirement fees,
and in particular, administrative procedures to be used before the Board and
the Authority.
Section 1.11(b) of the Act requires the Authority "ensure compliance with
permitting, metering, and reporting requirements and shall regulate permits."
This section, in conjunction with § 1.11(a) and (h) of the Act, and §
2001.004(1) of the APA, empowers the Authority to establish procedures related
to the filing and processing of various applications and registrations with
and by the Authority.
Section 1.11(d)(2) of the Act provides, among other things, that the Authority
may enter into contracts.
Section 1.11(f) of the Act provides the Authority may contract with a person
who uses water from the aquifer for the Authority or that person to construct,
operate, own, finance, and maintain water supply facilities which include
a dam, reservoir, treatment facility, transmission facility, or recharge project.
This section further provides management fees or special fees may not be used
for purchasing or operating these facilities.
Section 1.11(h) of the Act provides, among other things, that the Authority
is "subject to" the APA. Pursuant to this section, the Authority is required
to comply with the APA in connection with its rulemaking, even though the
Authority is not a state agency and would therefore otherwise not generally
be subject to APA requirements. Section 2001.004(1) of the APA requires agencies
subject to the APA to "adopt rules of practice stating the nature and requirements
of all available formal and informal procedures."
Section 1.15(a) of the Act directs the Authority to manage withdrawals
from the aquifer and manage all withdrawal points from the aquifer as provided
by this Act.
Section 1.16(b) of the Act sets forth certain requirements concerning an
existing user's declaration of historical use and an applicant's payment of
application fees required by the Board.
Section 1.16(d)(1) of the Act requires the Board to grant an initial regular
permit to an existing user who, among other things, files a declaration and
pays fees as required by this section.
Section 1.29(a) of the Act relates to fees. This section provides that
the allocation of the cost of reducing withdrawals or permit retirements must
be borne: solely by users of the aquifer for reducing withdrawals from the
level on the effective date of this article to 450,000 acre-feet a year, or
the adjusted amount determined under § 1.14(b) for the period ending
December 31, 2007; and equally by downstream water rights holders for permit
retirements from 450,000 acre-feet a year, or the adjusted amount determined
under § 1.14(d) for the period ending December 31, 2007, to 400,000 acre-feet
a year, or the adjusted amount determined under §1.14(d) for the period
beginning January 1, 2008.
Section 1.29(b) of the Act provides for the assessment of aquifer management
fees based on aquifer use under the water management plan to finance the Authority's
authorized administrative expenses and programs. This section also allows
water districts governed by Chapter 52 of the Texas Water Code and within
the Authority's boundaries, to contract with the Authority to pay the Authority's
expenses through taxes in lieu of user fees, to be paid by water users in
the district. This section provides the Authority with the power to assess
fees in order to generate revenue to finance the operation of the Authority
in its regulation of the aquifer, however, the Authority may not collect a
total amount of fees and taxes that is more than is reasonably necessary for
the administration of the Authority.
Section 1.29(c) of the Act provides that the Authority shall assess an
equitable special fee based on permitted aquifer water rights to be used only
to finance the retirement of rights necessary to meet the goals of the Authority
for reducing the maximum annual volume of water withdrawals from the aquifer.
The section further provides the Authority shall set the fees on permitted
aquifer users at a level sufficient to match the funds raised from the assessment
of equitable special fees on downstream water rights holders.
Section 1.29(d) of the Act provides for the assessment of equitable special
fees by the Commission on all downstream water rights holders in the Guadalupe
River Basin to be used to finance the retirement of aquifer rights necessary
to meet the goals of the Authority for reducing the maximum annual volume
of water withdrawals from the aquifer. This section further provides that
downstream water rights holders shall pay the assessed fees to the Authority.
This section prohibits the assessment of fees by the Commission on contractual
deliveries of water stored in Canyon Lake that may be diverted downstream
of the San Marcos Springs or Canyon Dam.
Section 1.29(e) of the Act provides for the development of an equitable
fee structure under § 1.29 and authorizes the Authority to establish
different fee rates on a per acre-foot basis for different types of use. The
fees must be equitable between types of uses and shall be assessed on the
amount of water a permit holder is authorized to withdraw under the permit.
Aquifer management fee rates for agricultural use shall be based on the volume
of water withdrawn and may not be more than 20 percent of the fee rate for
municipal use. Aquifer management fees rates for non-agricultural users are
to be based on the face value of a permittee's initial regular permit or the
amount authorized to be withdrawn under interim authorization status.
Section 1.29(f) of the Act requires the Authority to impose a permit application
fee of not more than $25.
Section 1.29(g) of the Act empowers the Authority to impose a registration
application fee of not more than $10.
Section 1.29(h) of the Act states that special fees collected under subsection
(c) or (d) of §1.29 may not be used to finance a surface water supply
reservoir project.
Section 1.36(b) of the Act provides the Authority with enforcement power
and states that Authority shall provide for the suspension of a permit of
any class for failure to pay a required fee or for a violation of a permit
condition, order of the Authority, or rule adopted by the Authority.
Section 1.44(c)(2) of the Act relates to cooperative contracts for artificial
recharge and states the political subdivision causing artificial recharge
of the aquifer is entitled to withdraw during any 12-month period the measured
amount of water actually injected or artificially recharged during the preceding
12-month period, as demonstrated and established by expert testimony, less
an amount determined by the Authority to account for that part of the artificially
recharged water discharged through springs, and to compensate the Authority
in lieu of users' fees.
Section 2001.004(1) of the APA requires agencies subject to the APA to
"adopt rules of practice stating the nature and requirements of all available
formal and informal procedures." This proposed rulemaking is in furtherance
of this legislative mandate. These proposed rules are rules of practice that
state the procedures applicable to the fee setting process of the Authority.
Section 36.205 of the Texas Water Code authorizes groundwater conservation
districts to set fees for administrative acts of the districts. Such fees
may not unreasonably exceed the cost to the district of performing the administrative
function for which the fee is charged.
Subchapter A. DEFINITIONS
31 TAC §709.1
The new section is adopted pursuant to §§ 1.08(a),
1.11(a), (b), (d)(2), (f), and (h), 1.15(a), 1.16(b) and (d)(1), 1.29(a),
(b), (c), (d), (e), (f), (g), and (h), 1.36(b), 1.44(c)(2) of the Act; §
2001.004(1) of the Texas Administrative Procedure Act (Texas Government Code
Annotated, §§ 2001.001-.902 (Vernon 2000)) ("APA"); and § 36.205
of the Texas Water Code (Texas Water Code Annotated, § 36.205 (Vernon
2000)). The Authority interprets these sections as authorizing the Authority
to adopt rules establishing a fee structure for the Authority.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the
Secretary of State on October 18, 2000.
TRD-200007351
Gregory M. Ellis
General Manager
Edwards Aquifer Authority
Effective date: November 7, 2000
Proposal publication date: August 11, 2000
For further information, please call: (210) 222-2204
31 TAC §§709.3, 709.5, 709.7
The new sections are adopted pursuant to §§ 1.08(a),
1.11(a), (b), (d)(2), (f), and (h), 1.15(a), 1.16(b) and (d)(1), 1.29(a),
(b), (c), (d), (e), (f), (g), and (h), 1.36(b), 1.44(c)(2) of the Act; §
2001.004(1) of the Texas Administrative Procedure Act (Texas Government Code
Annotated, §§ 2001.001-.902 (Vernon 2000)) ("APA"); and § 36.205
of the Texas Water Code (Texas Water Code Annotated, § 36.205 (Vernon
2000)). The Authority interprets these sections as authorizing the Authority
to adopt rules establishing a fee structure for the Authority.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with
the Office of the Secretary of State on October 18, 2000.
TRD-200007352
Gregory M. Ellis
General Manager
Edwards Aquifer Authority
Effective date: November 7, 2000
Proposal publication date: August 11, 2000
For further information, please call: (210) 222-2204
31 TAC §§709.9, 709.11, 709.13
The new sections are adopted pursuant to §§ 1.08(a),
1.11(a), (b), (d)(2), (f), and (h), 1.15(a), 1.16(b) and (d)(1), 1.29(a),
(b), (c), (d), (e), (f), (g), and (h), 1.36(b), 1.44(c)(2) of the Act; §
2001.004(1) of the Texas Administrative Procedure Act (Texas Government Code
Annotated, §§ 2001.001-.902 (Vernon 2000)) ("APA"); and § 36.205
of the Texas Water Code (Texas Water Code Annotated, § 36.205 (Vernon
2000)). The Authority interprets these sections as authorizing the Authority
to adopt rules establishing a fee structure for the Authority.
§709.11.Permit Application Fees; Applicability.
The general manager shall impose a $25 fee to file with the Authority
any application, including but not limited to, an application for a regular,
term, or an emergency groundwater withdrawal permit, a well construction permit,
monitoring well permit, aquifer recharge and storage permit, and recharge
recovery permits. The fee must be paid at the time the application is filed.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with
the Office of the Secretary of State on October 18, 2000.
TRD-200007353
Gregory M. Ellis
General Manager
Edwards Aquifer Authority
Effective date: November 7, 2000
Proposal publication date: August 11, 2000
For further information, please call: (210) 222-2204
31 TAC §§709.15, 709.17, 709.19, 709.21, 709.23, 709.25, 709.27, 709.29, 709.31, 709.33, 709.35
The new sections are adopted pursuant to §§ 1.08(a),
1.11(a), (b), (d)(2), (f), and (h), 1.15(a), 1.16(b) and (d)(1), 1.29(a),
(b), (c), (d), (e), (f), (g), and (h), 1.36(b), 1.44(c)(2) of the Act; §
2001.004(1) of the Texas Administrative Procedure Act (Texas Government Code
Annotated, §§ 2001.001-.902 (Vernon 2000)) ("APA"); and § 36.205
of the Texas Water Code (Texas Water Code Annotated, § 36.205 (Vernon
2000)). The Authority interprets these sections as authorizing the Authority
to adopt rules establishing a fee structure for the Authority.
§709.19.Adoption and Assessment.
(a)
Not later than December 31st of each year, the general
manager shall, pursuant to this subchapter, calculate and assess an aquifer
management fee for the succeeding year.
(b)
The aquifer management fee shall be based on aquifer use.
(c)
The aquifer management fee shall be based on two user blocks,
and be uniform such that the average unit cost of groundwater, regardless
of quantity withdrawn, remains constant and is applicable to all the aquifer
users within the same user block. The Blocks shall be as follows:
(1)
Block 1: non-agricultural users; and
(2)
Block 2: agricultural users.
(d)
The aquifer management fee shall be calculated and assessed
as follows:
(1)
By resolution and order, the board shall adopt a Block
1 and an agricultural users aquifer management fee rate and budget reflecting
its annual operating revenue requirement for the succeeding fiscal year based
on a cash-needs approach. The budget shall determine the net annual operating
revenue requirement by subtracting from the annual operating revenue requirement
any carryover funding from the current fiscal year in addition to funding
from other sources expected to be available for expenditure during the fiscal
year, including but not limited to, aquifer management fees for agriculture
use for preceding calendar years.
(2)
The general manager shall determine the total volume of
aquifer use as reported in the groundwater users reports for the prior year
by Block 1 non-agricultural users.
(3)
By December 31st, the general manager shall calculate the
aquifer management fee that may be assessed against Block 1 non-agricultural
use on a unit cost basis by dividing the net annual operating revenue requirements
by the total authorized or contracted aquifer use of Block 1 non-agricultural
users.
(4)
By December 31st, except as provided in §711.420(3)
of this title (relating to Enforcement), the general manager shall calculate
the aquifer management fee for Block 2 agricultural users as follows:
(A)
For base irrigation groundwater: $3.00 per acre-foot; or
(B)
For unrestricted irrigation groundwater: Not more than
20 percent of the aquifer management fee for Block 1 non-agricultural users.
(e)
The unit cost for the aquifer management fees shall be
expressed in dollars per acre-foot per annum.
§709.21.Billing and Collection.
(a)
All persons authorized for aquifer use under interim authorization
status pursuant to §1.17 of the Act and the rules of the Authority, or
under a final groundwater withdrawal permit issued by the board, are required
to pay to the Authority an aquifer management fee as assessed pursuant to
this subchapter.
(b)
The general manager shall bill to and collect from all
aquifer users an aquifer management fee for the fiscal year as calculated
and assessed by the general manager pursuant to this subchapter, unless subject
to a user contract under §709.25 of this title (relating to User Contracts),
(1)
If the aquifer use is agricultural, the aquifer management
fee shall be assessed on the total volume of groundwater withdrawn in a calendar
year from the aquifer by an aquifer user.
(2)
If the aquifer use is non-agricultural, then the fee shall
be assessed on:
(A)
for an applicant qualifying for interim authorization status
under §1.17 of the Act, the historical, maximum beneficial use set forth
in §4B of the application for initial regular permit, irrespective of
whether the groundwater was actually withdrawn; or
(B)
for a permittee, the total volume of groundwater authorized
to be withdrawn in a final permit issued by the board, irrespective of whether
the groundwater was actually withdrawn.
(c)
Not later than December 31st, the general manager shall
mail an aquifer management fee invoice to all non-agricultural users. Not
later than December 31st, the general manager shall mail a groundwater use
report form to all agricultural users to report aquifer use for the current
calendar year.
(d)
An aquifer management fee invoice for a non-agricultural
user becomes due and payable immediately upon mailing. If the total annual
aquifer management fee invoice for the user is less than $600, the user shall
pay the fee on a lump sum basis. Such an invoice becomes delinquent if payment
in full is not received by the Authority on or before March 1st of the year
for which the aquifer management fee is in effect. If the total annual aquifer
management fee invoice for a non-agricultural user is equal to or greater
than $600, then the user may elect to pay the fee in a lump sum or in equal
monthly payments. Such an invoice becomes delinquent if payment in full for
a lump sum payment is not received in full by March 1st of the year for which
the aquifer management fee is in effect. If the non-agricultural user elects
to pay on a monthly payment schedule, then the pro rata portion of the invoice
becomes due monthly on the last working day of each month. Each monthly payment
of an invoice becomes delinquent if payment in full is not received by the
Authority on or before the last working day of each month for which the monthly
payment becomes due and payable.
(e)
For agricultural users, the groundwater use report shall
constitute an aquifer management fee invoice. An agricultural user shall file
a completed groundwater use report form with the Authority no later than January
31st of each year for aquifer use for the preceding calendar year. Payment
of the aquifer management fee shall accompany the completed groundwater use
report. This invoice for agricultural use becomes due and payable immediately
upon mailing of the groundwater use report by the agricultural user. An invoice
becomes delinquent if payment in full is not received by the Authority on
or before January 31st of each year.
(f)
For any aquifer management fee that is delinquent, if payment
in full is not received on or before 10 days after the date the amount became
delinquent, then the General Manager shall assess, for every month thereafter
that the invoice remains delinquent, a penalty equivalent to the maximum amount
allowed by law.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with
the Office of the Secretary of State on October 18, 2000.
TRD-200007354
Gregory M. Ellis
General Manager
Edwards Aquifer Authority
Effective date: November 7, 2000
Proposal publication date: August 11, 2000
For further information, please call: (210) 222-2204
I. INTRODUCTION.
The Edwards Aquifer Authority ("Authority") adopts new 31 TAC, §§711.1,
711.10, 711.12, 711.14, 711.90, 711.92, 711.94, 711.96, 711.98, 711.100, 711.102,
711.104, 711.108, 711.110, 711.112, 711.116, 711.118, 711.130, 711.132, 711.134,
711.160, 711.162, 711.164, 711.166, 711.168, 711.170, 711.172, 711.174, 711.176,
711.180, 711.220, 711.222, 711.224, 711.226, 711.228, 711.230, 711.232, 711.234.
Sections 711.1, 711.12, 711.94, 711.96, 711.98, 711.100, 711.102, 711.108,
711.112, 711.116, 711.118, 711.130, 711.134, 711.166, 711.168, 711.172, and
711.176 are adopted with changes to the proposed text as published in the
August 11, 2000, issue of the
Texas Register
(25 TexReg 7548 - 7596) and are republished herein. Sections 711.10, 711.14,
711.90, 711.92, 711.104, 711.110, 711.132, 711.160, 711.162, 711.164, 711.170,
711.174, 711.180, 711.220, 711.222, 711.224, 711.226, 711.228, 711.230, 711.232,
and 711.234 are adopted without changes and will not be republished.
These rules have been written to implement the Authority's groundwater
withdrawal permitting program.
In response to the public comments, the Authority has elected not to adopt §711.178
at this time and hereby withdraws the rule from consideration for permanent
adoption.
II. SUMMARY OF THE FACTUAL BASES FOR THE ADOPTED RULES; AND CONCISE RESTATEMENT
OF THE STATUTORY PROVISIONS UNDER WHICH THE RULES ARE ADOPTED.
The Edwards Aquifer Authority Act, Act of May 30, 1993, 73rd Legislature,
Regular Session, Chapter 626, 1993 TEXAS GENERAL LAWS 2350, as amended by
Act of May 28, 1995, 74th Legislature, Regular Session, Chapter 3189, 1995
TEXAS GENERAL LAWS 2505, Act of May 16, 1995, 74th Legislature, Regular Session,
Chapter 361, 1995 TEXAS GENERAL LAWS 3280, and Act of May 6, 1999, 76th Legislature,
Regular Session, Chapter 163, 1999 TEXAS GENERAL LAWS 634 (the "Act"), requires
the Authority to implement a permitting system whereby "existing users" of
groundwater from the Edwards Aquifer and other potential users of aquifer
water may apply for and receive initial regular permits and other types of
permits issued by the Authority allowing for the withdrawal of groundwater
from the aquifer. Other types of permits are also required by the Act for
well construction and related work. Certain other withdrawals are exempted
by the Act from permitting requirements. The Act also specifies an "interim
authorization" period prior to the issuance by the Authority of final initial
regular permits during which certain existing users of the aquifer may continue
to make withdrawals. The Act imposes a number of restrictions upon the use
of the aquifer during the interim authorization period as well as after permits
are issued. It also places limits on the ability to transfer permits or interim
authorization status. The rules in this Chapter 711 are intended to effectuate
these various components of the Act.
The new sections are adopted pursuant to the following statutory provisions:
Section 1.01 of the Act contains the findings of the Texas Legislature
that the Edwards Aquifer is a distinctive natural resource and that a special
regional management district (the Authority) is required for the effective
control of the resource to protect terrestrial and aquatic life, domestic
and municipal water supplies, existing industries, and the economic development
of the state.
Section 1.03(1) defines the "Edwards Aquifer."
Section 1.03(4) of the Act defines "beneficial use" to mean the use of
water that is economically necessary for a purpose authorized by law when
reasonable intelligence and reasonable diligence are used in applying the
water to that purpose. The concept of beneficial use is incorporated into
the permitting rules of Chapter 711.
Section 1.03(9) of the Act defines "domestic or livestock use." This concept
is incorporated into the exempt well rules found within Chapter 711.
Section 1.03(10) of the Act defines "existing user" as a person who has
withdrawn and beneficially used underground water from the aquifer on or before
June 1, 1993. This concept is incorporated into the Chapter 711 rules, while
also accounting for the beneficial use requirement and including the successors
in interest of existing users within the definition.
Section 1.03(11) of the Act defines "industrial use." The Chapter 711 rules
incorporate this concept within the types of uses for which aquifer water
may be withdrawn.
Section 1.03(12) of the Act defines "irrigation use." The Chapter 711 rules
incorporate this concept within the types of uses for which aquifer water
may be withdrawn.
Section 1.03(13) of the Act defines "livestock." The Chapter 711 rules
incorporate this concept when determining whether a well qualifies as "exempt"
from permitting requirements.
Section 1.03(14) of the Act defines "municipal use." The Chapter 711 rules
incorporate this concept within the types of uses for which aquifer water
may be withdrawn.
Section 1.03(21) of the Act defines "waste." This concept is incorporated
into the Chapter 711 rules, while also including other practices which are
considered wasteful under the Act or under the long-standing water law concept
of beneficial use.
Section 1.07 of the Act provides, in part, that the actions taken by the
Authority pursuant to the Act may not be construed as depriving or divesting
owners of their ownership rights as landowners in underground water, subject
to rules adopted by the Authority.
Section 1.08(a) of the Act provides that the Authority "has all of the
powers, rights, and privileges necessary to manage, conserve, preserve, and
protect the aquifer and to increase the recharge of, and prevent the waste
or pollution of water in, the aquifer." This section provides the Authority
with broad and general powers to take actions as necessary to manage, conserve,
preserve, and protect the aquifer and to increase the recharge of, and prevent
the waste or pollution of water in, the aquifer. These rules further those
objectives.
Section 1.08(b) makes it clear that the Authority's powers apply only to
water within or withdrawn from the Edwards Aquifer, and not to surface water.
Section 1.11(a) of the Act provides that the Board of Directors ("Board")
of the Authority "shall adopt rules necessary to carry out the authority's
powers and duties under (Article 1 of the Act), including rule governing procedures
of the board and the authority." This section provides broad rulemaking authority
to implement the various substantive and procedures programs set forth in
the Act related to the Edwards Aquifer, including the permitting program.
Section 1.11(b) of the Act requires the Authority to "ensure compliance
with permitting, metering, and reporting requirements and . . . regulate permits."
This section, in conjunction with § 1.11(a) and (h) of the Act, and §
2001.004(1) of the APA, requires the Authority to adopt and enforce the Chapter
711 rules.
Section 1.11(d)(2) of the Act empowers the Authority to enter into contracts.
Pursuant to this section, the Authority may enter into contracts with well
owners concerning meters and reimbursement for same under Subchapter M of
the Chapter 711 rules.
Section 1.11(d)(8) of the Act provides that the Authority may close abandoned,
wasteful or dangerous wells. The Authority's rules relating to the requirement
of beneficial use and the prohibition of waste, as well as the closure of
abandoned wells derive in part from this statutory authority.
Section 1.11(d)(10) of the Act provides that the Authority may enforce
Chapter 32 of the Texas Water Code and TNRCC rules adopted thereunder. (Chapter
32 is now administered not by the TNRCC, but by the Texas Department of Licensing
and Regulation.) Chapter 32 imposes certain duties upon drillers of water
wells and the owners of those wells. The Authority's rules relating to well
construction, well abandonment and cancellation contained within Chapter 711
derive in part from this statutory authority.
Section 1.11(d)(11) of the Act provides that the Authority may require
to be furnished with copies of the water well drillers' logs that are required
by Chapter 32 of the Texas Water Code.
Section 1.11(h) of the Act provides, among other things, that the Authority
is "subject to" the APA. This section essentially provides that the Authority
is required to comply with the APA for its rulemaking, even though the Authority
is a political subdivision and not a state agency that would generally be
subject to APA requirements. Section 2001.004(1) of the APA requires agencies
subject to the APA to "adopt rules of practice stating the nature and requirements
of all available formal and informal procedures."
Section 1.13 of the Act requires the Authority to allow credit to be given
for certified reuse of aquifer water. The Authority will likely adopt rules
implementing this section. This concept is acknowledged in Subchapter F.
Section 1.14(a) of the Act provides that authorizations to withdraw aquifer
water shall be limited in order to: protect water quality of the aquifer and
surface streams to which the aquifer contributes springflow; achieve water
conservation; maximize beneficial use of water from the aquifer; protect aquatic
and wildlife habitat as well as federally or state-designated threatened or
endangered species; and provide for instream uses, bays and estuaries. The
Chapter 711 rules are adopted, in large part, pursuant to these statutory
mandates.
Section 1.14(b) of the Act imposes, subject to certain limitations, an
initial aquifer withdrawal "cap" for permitted withdrawals of 450,000 acre-feet
per year, until December 31, 2007. The Chapter 711 rules implement this cap,
explain to which permits it applies, how it can be raised, and other procedural
details.
Section 1.14(c) of the Act imposes, subject to certain limitations, an
aquifer withdrawal "cap" for permitted withdrawals of 400,000 acre-feet per
year, beginning January 1, 2008. The Chapter 711 rules implement this cap,
explain to which permits it applies, how it can be raised, and other procedural
details.
Section 1.14(d) of the Act provides that either of the caps listed above
may be raised by the Authority if, through studies and implementation of certain
strategies, the authority, in consultation with state and federal agencies,
determines the caps may be raised.
Section 1.14(e) of the Act requires the Authority to prohibit withdrawals
from new wells drilled after the effective date of the Act unless the "caps"
are raised and then only on an interruptible basis. The Chapter 711 rules
incorporate this prohibition.
Section 1.14(f) of the Act entitles the Authority to allow (or not allow)
permitted withdrawals on an uninterruptible basis when certain index wells
are at or above the following measurements: for the San Antonio pool, when
well J-17 is at or above 650 mean sea level (msl); and for the Uvalde Pool,
when well J-27 is at or above 865 msl. The section also imposes the duty on
the Authority to limit additional withdrawals to ensure that springflows are
not affected during critical drought conditions. The Chapter 711 rules incorporate
these concepts by making withdrawals subject to various conditions keyed on
drought conditions and critical period management rules.
Section 1.14(g) of the Act allows the Authority to, by rule, define other
pools within the aquifer in accordance with hydrogeologic research, and to
establish index wells for any pool to monitor the level of the aquifer to
aid the regulation of withdrawals from the pools.
Section 1.14(h) of the Act provides that the Authority generally must ensure,
by December 31, 2012, that continuous minimum springflows of Comal and San
Marcos Springs are maintained to protect threatened and endangered species
to the extent required by federal law. The Chapter 711 rules incorporate this
requirement by making withdrawals subject to various conditions keyed on drought
conditions and critical period management rules.
Section 1.15(a) of the Act directs the Authority "to manage withdrawals
from the aquifer and manage all withdrawal points from the aquifer as provided
by the Act." This section is implemented through the Chapter 711 rules.
Section 1.15(b) of the Act states that "except as provided by §§1.17
and 1.33 of this article, a person may not withdraw water from the aquifer
or begin construction of a well or other works designed for the withdrawal
of water from the aquifer without obtaining a permit from the authority."
This section is implemented through the Chapter 711 rules.
Section 1.15(c) of the Act allows the Authority to issue regular permits,
term permits, and emergency permits. This section is implemented through the
Chapter 711 rules.
Section 1.15(d) of the Act provides that each permit issued by the Authority
must specify the maximum rate and total volume of water that the user may
withdraw annually. This section is implemented through the Chapter 711 rules.
Section 1.16(a) of the Act allows an existing user to apply for an initial
regular permit by filing a declaration of historical use documenting use of
aquifer water during the period from June 1, 1972 through May 31, 1993. The
initial regular permits issued pursuant to the Chapter 711 rules will be based
upon such.
Section 1.16(b) of the Act, in conjunction with
Barshop v. Medina County Underground Water Conservation District,
925
S.W. 2d 618, 630 (Tex. 1996)(holding that declarations must be filed within
six months after the effective date of the Act, i.e., December 30, 1996) provides
that an existing user's declaration of historical use (permit application)
must be file on or before December 30, 1996, and the applicant must timely
pay all application fees required by the Authority. It further requires irrigation
applicants to submit, as part of their applications, documentation regarding
the number of acres irrigated during the historical period.
Section 1.16(c) of the Act provides that an owner of a well from which
the water will be used exclusively for domestic use or watering livestock
and that is exempt under § 1.33 of the Act is not required to file a
declaration of historical use.
Section 1.16(d) of the Act requires the Board to grant an initial regular
permit to an existing user who: (1) files a declaration and pays fees as required
by this section; and (2) establishes by convincing evidence beneficial use
of underground water from the aquifer. This requirement is incorporated into
the Chapter 711 rules.
Section 1.16(e) of the Act explains the quantity of water to be permitted
under an initial regular permit. Pursuant to this section, if enough water
is available, each existing user shall be permitted for an amount equal to
the user's maximum beneficial use during the historical period. If there is
not enough water available, then this section requires the Authority to "proportionately
adjust" permit amounts downward in order to meet the withdrawals "caps" discussed
above. However, this section also creates certain "permit minimums" for existing
irrigation users and for those existing users who have operated a well for
three or more years during the historical period. This section also requires
the Authority to extrapolate water use on an annual basis for those existing
users who do not have a full year's use during the historical period. These
concepts are incorporated into Chapter 711, primarily in Subchapter G.
Section 1.16(f) requires the Authority to equitably treat persons whose
historic use was affected by participation in a federal program, such as agricultural
subsidy programs. This concept is incorporated in the Chapter 711 rules.
Section 1.16(g) of the Act provides that initial regular permits do not
have a term and remain in effect until abandoned, cancelled or retired. These
concepts are incorporated in the Chapter 711 rules.
Section 1.16(h) of the Act requires the Authority to notify each permit
holder of the limitations to which the permit is subject. This concept is
incorporated into the Chapter 711 rules, primarily in Subchapter F.
Section 1.17(a) of the Act provides that a person who, on the effective
date of this article, owns a producing well that withdraws water from the
aquifer may continue to withdraw and beneficially use water without waste
until final action on permits by the Authority, if: "(1) the well is in compliance
with all statutes and rules relating to well construction, approval, location,
spacing, and operation; and (2) by March 1, 1994, the person files a declaration
of historical use on a form as required by the authority."
Section 1.18 of the Act allows the Authority, in certain circumstances,
to issue additional regular permits. This concept is incorporated into the
Chapter 711 rules, primarily in Subchapter E.
Section 1.19 of the Act allows the Authority to issue term permits and
places certain limitations and conditions on the right to withdraw water under
such a permit. This concept is incorporated into the Chapter 711 rules, primarily
in Subchapter E.
Section 1.20 of the Act allows the Authority to issue emergency permits
under certain circumstances and subject to certain conditions. This concept
is incorporated into the Chapter 711 rules, primarily in Subchapter E.
Section 1.21 of the Act sets out a process by which the Authority is to
implement a plan for reducing the withdrawal "cap" from 450,000 to 400,000
acre-feet per year by January 1, 2008. The plan must be enforceable and include
various water conservation, reuse, retirement, and other management measures.
If, on or after January 1, 2008, total permitted withdrawals still exceed
the 400,000 acre-feet cap, then the Authority must implement "equal percentage
reductions" of all permits in order to reach the cap. This concept is implemented
in Chapter 711, primarily in Subchapter G.
Section 1.22 of the Act provides that the Authority may acquire permitted
aquifer rights to be used for: holding in trust for sale or transfer to other
users; holding in trust as a means of managing aquifer demand; holding for
resale or retirement as a means of achieving pumping reductions required by
the Act; or retiring the rights. These concepts are implemented in part in
Chapter 711.
Section 1.23(a) of the Act provides that the Authority may require certain
permittees to submit and implement water conservation plans and water reuse
plans. These concepts are implemented in part in Chapter 711, primarily through
Subchapter F.
Section 1.25 of the Act requires the Authority to develop and implement
a comprehensive water management plan and, in conjunction with the SCTWAC
and other water districts, to develop and implement a plan for providing alternative
water supplies, with oversight by state agencies and the Edwards Aquifer Legislative
Oversight Committee. The alternative supplies plan shall consider alternative
technologies, financing issues, costs and benefits, and environmental issues.
These concepts are implemented, in part, in Chapter 711, primarily through
Subchapter F.
Section 1.26 of the Act requires the Authority to prepare and coordinate
implementation of a critical period management plan which meets certain, enumerated
criteria. These concepts are implemented in part in Chapter 711, primarily
through Subchapter F.
Section 1.29 of the Act authorizes the imposition of various types of fees
on various types of permits. The Chapter 711 rules acknowledge this fee provision,
primarily in Subchapter E.
Section 1.31 of the Act provides that nonexempt well owners must install
and maintain meters or alternative measuring devices to measure the flow rate
and cumulative amount of water withdrawn from each well. These concepts are
implemented in the Chapter 711 rules.
Section 1.32 of the Act requires permittees to submit annual water use
reports to the Authority. This section is acknowledged in Subchapter F.
Section 1.33 of the Act provides the criteria for exempt wells -- i.e.,
wells that produce no more than 25,000 gallons of water per day for domestic
and livestock use and that are not within or serving a subdivision requiring
platting. The section explains that such wells are exempt from metering requirements.
However, such wells must be registered with the Authority. These concepts
are implemented in Chapter 711.
Section 1.34 of the Act imposes certain limitations upon the ways in which
aquifer water and/or water rights may be transferred (alienated). First, aquifer
water must be used within the Authority's boundaries. Second, the section
allows the Authority to establish rules by which a person may install water
conservation equipment and sell the water conserved. Third, the section further
provides that a holder of a permit for irrigation use may not transfer more
than 50 percent of the irrigation rights initially permitted and that the
user's remaining irrigation water rights must be used in accordance with the
original permit and must pass with transfer of the irrigated land. These concepts
are implemented, in part, in Chapter 711.
Section 1.35 of the Act prohibits: withdrawing aquifer water except as
authorized by a permit; violating permit terms or conditions; wasting aquifer
water; polluting or contributing to the pollution of the aquifer; or violating
the Act or an Authority rule. These concepts are implemented in Chapter 711.
Section 1.36 of the Act empowers the Authority to enter orders enforcing
the terms and conditions of permits, orders, or rules, and to draft rules
suspending permits for failure to pay required fees or violations of permits,
orders or rules. These concepts are implemented, in part, in Chapter 711.
Section 2001.004(1) of the APA requires agencies subject to the APA to
"adopt rules of practice stating the nature and requirements of all available
formal and informal procedures." This rulemaking is in furtherance of this
legislative mandate.
Chapter 32 of the Texas Water Code imposes certain duties upon drillers
of water wells and the owners of those wells. Section 1.11(d)(10) of the Act
provides that the Authority may enforce Chapter 32 and TNRCC rules adopted
thereunder. (Chapter 32 is now administered not by the TNRCC, but by the Texas
Department of Licensing and Regulation.) The Authority's rules relating to
well construction, well abandonment and cancellation contained within Chapter
711derive in part from this statutory authority and implement this chapter
and the supporting rules.
Chapter 36 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 36.101(a) empowers the Authority to make and
enforce rules to provide for conserving, preserving, protecting, and recharging
of the groundwater in order to, among other things, prevent waste and carry
out the duties provided elsewhere in Chapter 36. This requirement is implemented,
in large part, through Chapter 711.
Chapter 36 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 36.111 requires the Authority to require aquifer
users to keep and maintain reports of drilling, equipping, and completing
water wells and the production and uses of groundwater. Chapter 711 implements
these requirements.
Chapter 36 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 36.113 empowers districts such as the Authority
to require permits for drilling, equipping, or completing wells or for altering
the size of wells or well pumps. The section further specifies the permitted
format and contents of permit applications, and lays out criteria for the
district to consider when ruling on a permit application. The section also
provides that permits may be issued subject to the district's rules and other
restrictions. The Chapter 711 rules incorporate these requirements.
Chapter 36 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 36.1131 specifies what may be included as elements
of a permit issued by a district.
Chapter 36 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 36.115 provides that no person may drill a
well, alter the size of a well or well pump, or operate a well without first
obtaining a permit from the Authority.
Chapter 36 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 36.119(a) decrees that drilling a well without
a required permit or operating a well at a higher rate of production than
the rate approved for the well is declared to be illegal, wasteful per se,
and a nuisance. This concept is incorporated into Chapter 711, primarily in
the definition of waste found in § 711.1.
Chapter 49 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 49.211(a) endows districts such as the Authority
with the "functions, powers, authority, rights, and duties that will permit
accomplishment of the purposes for which it was created or the purposes authorized
by the constitution, this code, or any other law." This broad delegation of
powers is incorporated into the Chapter 711 rules.
Chapter 49 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 49.221 empowers representatives of the Authority
to enter land and perform tests and other inspections. This authority is incorporated
into Chapter 711, primarily in § 711.416.
16 TAC, Chapter 76. Section 1.11(d)(10) of the Act provides that the Authority
may enforce Chapter 32 and TNRCC rules adopted thereunder. Chapter 32 of the
Texas Water Code imposes certain duties upon drillers of water wells and the
owners of those wells. (Chapter 32 is now administered not by the TNRCC, but
by the Texas Department of Licensing and Regulation (TDLR).) The TDLR's rules
implementing Chapter 32 are found at 16 TAC, Chapter 76. These rules impose
numerous duties upon well drillers and well owners related to well construction,
operation, and plugging. The Authority's rules relating to well construction,
well abandonment and cancellation contained within Chapter 711 implement,
in part, the rules found in 16 TAC, Chapter 76.
Subchapter A
Section 711.1, Subchapter A of the Chapter 711 rules, sets forth the definitions
that will apply to all rules issued by the Authority in Chapter 711. These
rules have been written to provide uniform definitions for words and phrases
that are expected to be used consistently throughout Chapter 711. They are
intended to provide useful "short-hand" to reduce the amount of cumbersome
regulatory language necessary in other Authority rules, thus allowing for
a more efficient understanding and operation of other rules of the Authority.
Contained within § 711.1 are definitions of "existing user" (§711.1(2)),
"contract user" (§711.1(1)), and "prior user" (§711.1(4)). In order
to obtain an initial regular permit, the applicant must be an "existing user."
See Act § 1.16(a).
As defined by § 711.1(2), an "existing user" is "a person, or the
successor in interest of such a person, who, on June 1, 1993, owned an existing
well from which groundwater from the aquifer had been withdrawn and placed
to beneficial use during the historical period." A well owner who transferred
his interest in the well during the historical period is referred to by the
Authority as a "prior user." A person who did not own an aquifer well, but
who withdrew or purchased aquifer water during the historical period pursuant
to a contractual or other agreement with the well owner, qualifies as a "contract
user." Although "existing user" is defined in the Act, the Authority believes
that, based upon the remainder of the text of the Act, the statutory definition
of "existing user" requires elaboration by the Authority and the definitions
of "contract user" and "prior user" must be added.
The statutory definition states that an existing user need only have beneficially
used aquifer water "on or before June 1, 1993," a date which corresponds with
the close of the statutory "historical period." See Act § 1.16(a). The
Act goes on to provide, however, any application for an "initial regular permit"
must be based upon aquifer use during the historical period. See Act §
1.16(a) and (b). Thus, no initial regular permit may be granted to an "existing
user" unless his or her use was during the historical period. The Authority's
definition makes this clear.
The Authority's definition also clarifies that an "existing user" may be
the person who owned the existing well on June 1, 1993 or his "successor in
interest." Because, for any particular applicant, the ownership of points
of withdrawal and places of use may not have been static since the inception
and closure of the statutory historical period, the Authority must account
for transfers and the impact of transfers on existing user status.
The Authority's definition also clarifies that an "existing user" must
be the owner of the well for which an application is sought. The Authority
believes this requirement is implicit in the Act. The sine qua non of an "existing
user" is ownership of the point(s) of withdrawal (i.e. well(s)) from which
the withdrawals are made during the historical period. For example, §
1.17(a) makes clear that interim authorization status only extends to persons
owning non-exempt producing wells. Further, numerous sections of the Act make
reference to the owner of a well having certain rights and duties, thereby
confirming that proper applicants for initial regular permits must be the
well owners. See §§1.03(21)(E) and (F) (relating to the definition
of waste); 1.16(b) (evidentiary obligation of owners of irrigation wells);
1.16(c) (owners of exempt wells not required to file declarations of historical
use); 1.17(a) (owners of producing wells may continue to withdraw under interim
authorization); 1.17(d)(2) (well owners may file declarations of historical
use); and 1.31(a) (owners of nonexempt wells).
It is equally necessary to define "contract user" (711.1(1)) and "prior
user" (711.1(4)) which create a distinction as to who may apply for a permit.
For any individual well, the ownership of points of withdrawal and places
of use may not have been static since the inception and closure of the statutory
historical period. Thus, without elaboration by the Authority, a reading of
the definition of "existing user" in the Act could lead one to the incorrect
inference that there may be multiple permit holders deriving their permits
from the same point of withdrawal, place of use, and historical use. This
could result in absurd outcomes, such as former well owners applying for initial
regular permits for wells they no longer own.
Take, for example, a hypothetical well that was owned and used by more
than one person before, during and after the historical period. The well was
originally owned and used by Mr. U prior to the commencement of the historical
period in 1972. It was then sold to Mr. V in 1970. The well was owned and
used by Mr. V for the period from 1970 through 1980. It was then sold by Mr.
V to Mr. W in 1980. Mr. W used the well himself until 1985. While continuing
to own the well, Mr. W then, by contract, leased his land to Mr. X and allowed
Mr. X to withdraw water from the well to irrigate the land. Mr. W sold the
well to Mr. Y in 1995, after the close of the historical period in 1993. Mr.
Y filed a timely permit application with the Authority. Mr. Y then sold his
land, well and permit application to Mr. Z in 1998. Unless distinctions are
made, via the Authority's rules, between contract users, existing users, and
prior users, there would be confusion as to who may apply for and obtain a
permit for the historical use of the well in question. The legislature did
not intend to allow Messrs. U, V, W, X, Y and Z each to obtain a permit for
the same well and historical use. For example, Mr. U cannot be an existing
user because he did not have use during the historical period, even though
he may have been the original owner. Mr. V, who has not held any interest
in the land or the well since 1980, has no right to claim a permit. Similarly,
Messrs. W and Y have not held any interest since 1995 and 1998, respectively.
Mr. X simply leased from Mr. W the right to withdraw water from the well.
He does not have an ownership interest. Under the definitions adopted by the
Authority, Mr. U has no status of any kind, Messrs. V and W would be "prior
users", and Messrs. V, W, and Y would be the predecessors in interest to the
"existing user," Mr. Z, and Mr. X would be a "contract user." Mr. Y, although
a former existing user, would have no status because he acquired and sold
his interest after the close of the historical period. Only Mr. Z would be
the "existing user" entitled to apply for an initial regular permit. Mr. Z
would also be entitled to base his permit application on the pumpage during
the historical period of his predecessors in interest, and any prior users
and contract users. This is consistent with the Court's reasoning in
Section 711.1(3) defines "historical use" as "the lawful withdrawing and
placing to beneficial use of groundwater from the aquifer during the historical
period." The Authority believes this definition is required to add clarity
as to the type of historical usage upon which a permit application may be
granted. The Authority is charged with the duty to prevent waste of the aquifer.
See Act § 1.08. The Act makes it clear that, while an initial regular
permit must be based upon historical usage, that historical usage must have
lawfully been obtained and put to beneficial use during the historical period.
Section 1.16(d) of the Act states that a initial regular permit shall be granted
to an applicant who files a declaration, pays his fee, and "establishes by
convincing evidence beneficial use of underground water from the aquifer."
(Emphasis added.) See also § 1.16(e). The common law relating to groundwater,
which was controlling during the historical period, likewise prohibits the
waste (i.e., non-beneficial use) of groundwater. Thus, waste constitutes an
unlawful use of groundwater which cannot be considered by the Authority when
calculating one's eligibility for a permit. The definition clarifies this
point.
As amended in response to public comments (discussed more fully below), §
711.1(5) defines "producing well" as "a well from which groundwater from the
aquifer is capable of being withdrawn for a beneficial use." This definition
is needed to clarify the phrase "producing well" which is found in §
1.17(a) of the Act. Section 1.17 provides certain well owners with the right
to continue pumping aquifer water, pursuant to "interim authorization" status,
while their permit applications are pending before the Authority. The section
states, in part, that "a person who, on the effective date of the Act, owns
a producing well that withdraws water from the aquifer may continue to withdraw
and beneficially use water without waste until final action on permits by
the authority. . . ." Without clarification by the Authority, this section
of the Act could be read to mean that, in order to qualify for interim authorization
status, a well owner must have actually withdrawn water on the effective date
of the Act (June 28, 1996). The Authority does not believe this to be the
Legislature's intent. Instead, the Authority believes the intent was to allow
anyone who, on the effective date of the Act, owned a well capable of producing,
regardless of whether it actually produced on that particular date, to qualify
for interim authorization status assuming the other statutory criteria are
met. The definition makes this clear.
Section 711.1(6) defines "waste" using 10 different criteria. Six of those
criteria are essentially identical to those found in Act's definition of waste
found at § 1.03(21) and require no further elaboration. Although "waste"
is defined in the Act, the Authority believes that, based upon the remainder
of the text of the Act, and other statutory authorities, the statutory definition
of "waste" requires elaboration by the Authority. Thus, additional definitional
criteria for waste are added, consistent with the Act and other statutes for
which the Authority has enforcement responsibility. First, subparagraph (E)
of the Act's definition of "waste" is modified by the italicized language:
Willfully or negligently causing, suffering or permitting groundwater from
the aquifer to escape into any river, creek, natural watercourse, depression,
lake, reservoir, drain, sewer, street, highway, road, or road ditch, or onto
any land other than that of the owner of the well, unless:
(1) such discharge is authorized by permit, rule, or order issued by the
commission under Chapter 26, Water Code;
and
(2) after discharge, the groundwater from the
aquifer is beneficially used by the existing user, applicant or permittee
making the discharge;
This revision reiterates the requirement found throughout the Act that
water from the aquifer be beneficially used and not wasted.
Next, the following subparagraph H is added to the definition of "waste:"
(H) Constructing, installing, drilling, equipping, completing, altering,
operating, maintaining, or making withdrawals from a well without a required
permit;
Chapter 36 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 36.119(a) decrees that drilling a well without
a required permit or operating a well at a higher rate of production than
the rate approved for the well is declared to be illegal, wasteful per se,
and a nuisance. This concept is incorporated into Chapter 711 primarily through
subparagraph (H) of the waste definition in § 711.1.
Next, the following subparagraph (I) is added to the definition of "waste:"
(I) Withdrawal of water that is substantially in excess of the volume or
rate reasonably required for a beneficial use;
The addition of subparagraph (I) is consistent with and in harmony with
the Legislative objectives of the Act. Subparagraph (I) is designed to further
elucidate the meaning of subparagraph (B) of the definition related to beneficial
use. It also furthers the objectives of other applicable provisions of the
Act. Section 1.03(4) of the Act defines "beneficial use" as "the use of the
Next, the following subparagraph (J) is added to the definition of "waste:"
(J) Irrigation use of groundwater from the aquifer in a volume per irrigated
acre that is so insufficient that a crop could not have been reasonably cultivated
and produced.
The Act delegates to the Authority broad discretion to limit waste of water,
protect the aquifer, and maximize the beneficial use of water from the aquifer.
See, e.g., Act §§ 1.08(a) and 1.14(a). Section 1.16(d)(2) dictates
that groundwater first be beneficially used before it can qualify for the
statutory irrigator minimum in section 1.16(e). The use of a quantity of aquifer
water in a volume per acre that is insufficient to reasonably cultivate and
produce a crop does not constitute a beneficial use and is, therefore, wasteful.
The definition in § 711.1(6)(J) implements this beneficial use requirement.
Subchapter B
The Act requires the Authority to implement a permitting system whereby
certain "existing users" of groundwater from the aquifer and other potential
users of aquifer water may apply for and receive initial regular permits and/or
other types of permits issued by the Authority allowing for the withdrawal
of groundwater from the aquifer. Other types of permits are also required
by the Act for well construction and related work. Sections 711.10 - 711.14,
Subchapter B of the Chapter 711 rules, set forth the activities for which
a permit from the Authority is required.
Section 711.10 sets out the purposes of the Chapter 711 rules, which relate
to managing the aquifer to protect the aquifer, species dependent upon springflows
from the aquifer, and the various entities and other interests utilizing the
aquifer. These purposes are derived directly from sections 1.01, 1.06(a) and
1.08(a) of the Act, furthering the Legislative objectives behind the creation
of the Authority, and require no further elaboration.
Section 711.12 identifies the types of activities for which a permit is
generally required from the Authority. This section provides that a permit
is generally required before one may construct, alter or operate an aquifer
well, including a monitoring well, or a well pump. These provisions derive
primarily from § 1.15(b) of the Act. The Authority interprets the requirement
in § 1.15(b) of the Act, to obtain a permit before constructing a well,
to extend to all types of aquifer wells, including monitoring wells, and to
extend to construction activities such as the installation of pumps. This
conclusion is buttressed by Chapter 36 of the Texas Water Code, which generally
applies to groundwater districts such as the Authority. Section 36.113 empowers
districts such as the Authority to require permits for drilling, equipping,
or completing wells or for altering the size of wells or well pumps. However,
as set forth in rule § 711.12(b), the Authority does not consider the
well construction permit requirement to extend to routine operation and maintenance
operations for wells after they are constructed.
Section 711.12 further provides that a permit is generally required before
one may recharge water into the aquifer, store water in the aquifer, or construct
or alter a well designed to withdraw non-Edwards groundwater if the well intersects
the Edwards Aquifer. These provisions derive primarily from the Authority's
duties to protect the aquifer as mandated in sections 1.08(a), 1.14(a) and
1.15(a) of the Act and § 36.113 of the Texas Water Code. The Authority
believes that the construction of wells which intersect the aquifer, or projects
designed to enhance recharge into the aquifer or store water in the aquifer
all have the potential to negatively impact the quality and/or quantity of
water within the aquifer. Accordingly, it is appropriate to regulate such
activities through the Authority's permitting process.
Section 711.14 identifies the types of groundwater withdrawals for which
a withdrawal permit is not required from the Authority -- withdrawals from
wells qualifying for interim authorization status, or from exempt wells. This
rule derives directly from and implements sections 1.15(b), 1.17(a) and 1.33
of the Act, which create exemptions from the permit requirement for "exempt
wells" and wells qualifying for interim authorization status.
Subchapter E
The Act requires the Authority to implement a permitting system whereby
"existing users" of groundwater from the aquifer and other potential users
of aquifer water may apply for and receive initial regular permits and/or
other types of permits issued by the Authority allowing for the withdrawal
of groundwater from the aquifer. The Act also requires the Authority to issue
permits for the construction of Edwards Aquifer wells. Sections 711.90-711.118,
Subchapter E of the Chapter 711 rules, help fulfill these requirements by
setting forth the types of permits issued by the Authority, the conditions
governing how and when such permits could be issued, the quantity of and conditions
under which water could be withdrawn or wells constructed pursuant to such
permits, the duration of such permits, the required contents of permit applications,
and the rights and limitations associated with being the holder of such permits.
Primarily, the sections in Subchapter E list the information that the Authority
has determined is necessary for its consideration and issuance of various
types of permits. Most of the sections in Subchapter E each list the attributes
of the various kinds of permits issued by the Authority and the criteria by
which permit applications will be judged. The rules also identify the elements
an applicant is required to prove in order to obtain a permit from the Authority.
The requirements in these rules pertain to information that the Authority
needs in order to effectively manage, conserve and protect the Aquifer and
to implement its statutorily-mandated programs.
Section 711.90 identifies the types of permits which may be issued by the
Authority: (1) initial regular permits, as authorized by § 1.16 of the
Act; (2) additional regular permits, as authorized by § 1.18 of the Act;
(3) term permits, as authorized by § 1.19 of the Act; (4) emergency permits,
as authorized by § 1.20 of the Act; (5) and (6) aquifer recharge and
storage permits and recharge recovery permits, as authorized by sections 1.08(a)
and 1.14(a), 1.15(a) of the Act and § 36.113 of the Texas Water Code;
(7) well construction permits, as authorized by § 1.15(b) of the Act;
and (8) monitoring wells, as authorized by § 1.15(a) and (b) of the Act.
The Authority interprets the requirement in § 1.15(b) of the Act to obtain
a permit before constructing a well to extend to all types of aquifer wells,
including monitoring wells. The Authority further believes that projects designed
to enhance recharge into the aquifer or store water in the aquifer (i.e.,
aquifer recharge and storage and recharge recovery activities) can potentially
negatively impact the quality and/or quantity of water within the aquifer.
Accordingly, it is appropriate to regulate such activities through the Authority's
permitting process.
Section 711.92 provides that, as designated in a groundwater withdrawal
permit, aquifer water may be beneficially used only for irrigation use, municipal
use or industrial use. This limitation derives from the Act. The Act clearly
requires that water pumped from the aquifer be "beneficially used" and not
wasted. See, e.g., Act sections 1.16(d) and (e) (authorizing permits if beneficial
use is established, and calculating permit amounts based upon beneficial use
without waste), 1.17 and 1.18. While the Act does not expressly identify the
types of use which may be considered "beneficial," the Act does identify and
define four specific types of use - domestic or livestock use, industrial
use, irrigation use, and municipal use. Domestic or livestock use is expressly
made exempt from permitting requirements pursuant to sections 1.15(b) and
1.33 of the Act and such use is not governed by § 711.92. The Authority
has concluded that the remaining three types of uses identified in the Act
-- industrial, irrigation and municipal -- cover the gambit of known, lawful
purposes to which water from the aquifer is being put or is likely to be put
and for which a permit would be required.
Section 711.94(a) requires that groundwater withdrawn from the aquifer,
whether withdrawn during or after the historical period, must be placed to
beneficial use without waste. This limitation derives from the Act. The Act
clearly requires that water pumped from the aquifer be "beneficially used"
and not wasted. See, e.g., Act sections 1.16(d) and (e) (authorizing permits
if beneficial use is established, and calculating permit amounts based upon
beneficial use without waste), 1.17 and 1.18. Section 1.35(c) prohibits the
waste of water withdrawn from the aquifer. The use of water in a way that
is not beneficial is the equivalent of wasting water. Section 1.08(a) of the
Act charges the Authority with the duty to prevent the waste of aquifer water.
Section 711.94(b) and (c) provide that the beneficial use of water by a
"contract user" (one who withdrew or purchased and put to beneficial use aquifer
water during the statutory historical period pursuant to a contract or other
legal right from a prior or existing user from an existing well) may only
be claimed by the prior or existing user in support of a permit application.
As discussed more fully in the discussion for Subchapter A, above, this rule
is included to avoid the result whereby more than one person (i.e., the prior
user, existing user, and/or contract user) each seeks a permit based upon
the same pumpage during the historical period.
Section 711.94(d) states that "irrigation in the volume of two-acre feet
per irrigated acre is rebuttably presumed to constitute beneficial use without
waste." It is clear that § 1.16(e) the Act calls for a "permit minimum"
for certain irrigators equivalent to two-acre feet per acre. Thus, this rule
makes it clear that irrigators begin with the presumption in their favor that
irrigation in that quantity is not wasteful. The purpose of including the
phrase "rebuttably presumed" in this rule is not to affect the process by
which irrigators are issued permits or to affect their eligibility for the
statutory two acre-feet irrigator minimum. Instead, it is intended to facilitate
the Authority's ability and duty to prevent waste by irrigators once permits
have been issued. Not all irrigation practices necessitate the use of two
acre-feet of water per acre per year, nor are irrigators any more exempt than
any other aquifer users from the requirement in § 1.35(c) of the Act
that aquifer water be beneficially used and not wasted. It is possible that
an irrigator's practices may be wasteful even if his rate of use is below
two acre-feet per acre per year. In that event, the Authority needs to retain
the right to rebut the presumption that usage of two acre-feet is not wasteful.
Section 711.94(e) provides that irrigation of multiple or successive crops
is a beneficial use to the extent it does not constitute waste. This provision
is added to make it clear that the planting of multiple crops in any given
year is not, in itself, considered by the Authority to be wasteful. Such practices
are common within the boundaries of the Authority, and the Authority does
not believe it would be reasonable to consider such practices wasteful in
the absence of other evidence indicating waste.
Section 711.94(f) provides a mechanism whereby prior or existing users
whose historic use has been affected by a requirement of or participation
in a federal program shall be given a credit in their permit applications
for the amount of water they would have withdrawn and beneficially used were
it not for the federal program. This section derives directly from §
1.16(f) of the Act which requires the Authority to adopt a rule implementing
a mechanism to equitably treat permit applicants whose use of the aquifer
during the historical period was "affected" by a requirement of, or participation,
in a "federal program." Through this rule, the Authority attempts to treat
such persons equitably by giving them a "beneficial use credit" for the amount
which they would have withdrawn, but for participation in the federal program.
That credit is based upon the use by other, similarly situated pumpers who
were not affected by the federal program.
Section 711.94(g) provides a mechanism whereby beneficial use of aquifer
water, during the historical period, at the same place of use by multiple
existing users -- each owning different wells -- will be shared on a pro rata
basis. The Authority is aware of several permit applications which fit the
following general description: Applicant A, who owns well A, files an application
based upon A's aquifer pumpage from well A during the historical period which
was used to irrigate Blackacre. Applicant B, who owns well B, also files an
application based upon B's aquifer pumpage from well B during the historical
period which was used to irrigate Blackacre. Blackacre consists of 100 acres.
If no provision is made in the Authority's rules governing how the historical
irrigation of Blackacre should be handled in the permitting process, the incorrect
inference might be made that Applicant A and Applicant B are each entitled
to irrigation permits for 200 acre-feet (100 acres times the statutory two
acre-feet per acre irrigator minimum). The Authority has concluded that such
a result is contrary to the Act and the intent of the Legislature when they
passed the Act. Such an outcome would result in four acre-feet per acre worth
of permits being issued. With § 711.94(g), Applicant A and Applicant
B would each get a permit for 100 acre-feet (100 acres times the statutory
two acre-feet per acre irrigator minimum divided by two applicants).
Section 711.96 clarifies that the Authority's permitting program is limited
to withdrawals from the Edwards Aquifer. Therefore, the section states that
the Authority cannot issue a permit for the withdrawal of water from non-Edwards
aquifers. Similarly, the section provides a mechanism whereby applications
for wells withdrawing water from multiple aquifers, including the Edwards
Aquifer, will be granted by the Authority only for a quantity corresponding
to the amount the well withdraws from the Edwards Aquifer. Section 1.08(b)
of the Act makes it clear that the Authority's regulatory powers do not extend
to aquifers other than the Edwards Aquifer or to surface waters. Thus, the
Authority lacks the power to issue a permit for water withdrawn by an applicant
during the historical period from an aquifer other than the Edwards. Notwithstanding
this rule, permit applicants or permit holders remain free to pump groundwater
from aquifers other than the Edwards without any restriction from the Authority.
Section 711.98 identifies who may apply for, and the attributes of, an
initial regular permit ("IRP"). This section is intended to locate, in one
convenient reference point, the general attributes of IRPs as contemplated
and intended by the Act. It is common practice for water resource management
agencies to identify the criteria necessary to implement their permitting
programs. The list of the attributes of an IRP, together with the list of
criteria which must be proven in order to obtain such a permit, will assist
in enabling the Authority to manage all points of withdrawal from the Edwards
Aquifer, and to accomplish its other various duties to manage, conserve, preserve,
and protect the Edwards Aquifer and to prevent waste or pollution of the aquifer.
The attributes of IRPs are discussed below. Where appropriate, the statutory
basis for each rule is identified in parentheses. Only existing users may
apply for IRPs (Act § 1.16). IRPs are transferrable (Act § 1.34(a)).
IRPs have a perpetual term (Act § 1.16(g)). IRPs may be proportionally
adjusted in accordance with the Authority's rules in Subchapter G of Chapter
711 (Act § 1.16(e)). IRPs may be retired in accordance with the Authority's
springflow maintenance rules, equal percentage reduction rules, and permit
retirement rules. (Act sections 1.14(h), 1.16(g), and 1.21). IRPs may be suspended
in accordance with the Authority's demand management rules and groundwater
trust rules (Act sections 1.14(d) and 1.22). IRPs may be interrupted in accordance
with the Authority's drought management rules, critical period management
rules, and springflow maintenance rules (Act sections 1.14(d) and (h), and
1.26). IRPs may be abandoned and/or cancelled in accordance with the Authority's
abandonment and cancellation rules (Act § 1.16(g)). This rule does not
itself set forth the substantive rules relating to proportional adjustment,
permit retirement, and so on. Instead, it merely clarifies that IRPs are subject
to those rules and provides a reference to those rules.
The section also lists the elements which an initial regular permit applicant
must prove in order to be granted such a permit. For example, the application
(declaration) must have been filed and application fee paid on or before December
30, 1996 (required by Act § 1.16(b)) and
Barshop
v. Medina County Underground Water Conservation District,
925 S.W.
2d 618, 630 (Tex. 1996) (holding that declarations must be filed within six
months after the effective date of the Act, i.e., December 30, 1996). The
application must identify an existing well which was owned by the applicant,
or the applicant's predecessor in interest, on June 1, 1993, and the well
must be located within the Authority's boundaries and must be a point of withdrawal
for Edwards aquifer water. (Act sections 1.14(e), 1.03(1), 1.08(b)). The usage
upon which the application is based must have been made during the historical
period and by the applicant, a prior user who is the applicant's predecessor
in interest, or a contract user. This requirement is included in order to
clarify that an application must be based upon historical use and an applicant
cannot base his application upon historical use by others with whom the applicant
lacks any connection to the well in question. The historical withdrawals must
have been placed to a beneficial use for irrigation, municipal or industrial
use. (See the discussion for § 711.92, above.) The rule provides that
in order to obtain an IRP, the well cannot qualify for exempt well status.
(See discussion of public comments on this rule, below.) Finally, the application
must be in compliance with the Act and the Authority's rules.
Section 711.98(k) explains that IRPs shall be issued in an amount as calculated
in §§ 711.176 and/or 711.180 of the Chapter 711 rules. These rules
explain how permit amounts are arrived at and are discussed in more detail
below.
Section 711.100 identifies who may apply for, and the attributes of, an
additional regular permit ("ARP"). This section is intended to locate, in
one convenient reference point, the general attributes of ARPs as contemplated
and intended by the Act. It is common practice for water resource management
agencies to identify the criteria necessary to implement their permitting
programs. The list of the attributes of an ARP, together with the list of
criteria which must be proven in order to obtain such a permit, will assist
in enabling the Authority to manage all points of withdrawal from the Edwards
Aquifer, and to accomplish its other various duties to manage, conserve, preserve,
and protect the Edwards Aquifer and to prevent waste or pollution of the aquifer.
The attributes of ARPs are discussed below. The rule provides that any
person owning or proposing to construct a well may apply for an ARP if final
determinations have been made by the Authority on all IRP applications and
the board has declared it will accept ARP applications. § 1.18 of the
Act makes it clear that ARPs are subject to the 450,000 and 400,000 acre-feet
"caps," and ARPs may be issued by the Authority only if, after all IRPs are
issued, there is still water available under those caps for permitting of
ARPs. Thus, the Authority will only begin accepting ARP applications in the
unlikely event that the cap hasn't been met after all IRP determinations.
The rule provides that any applications submitted prior to that time will
be returned to the applicant.
Section 711.100 also provides that ARPs are transferrable (Act § 1.34(a))
and have a perpetual term. The Authority has concluded that the term is perpetual
because, once issued, ARPs are functionally no different than IRPs, which
have a perpetual term.
The rule provides that ARPs may be retired in accordance with the Authority's
springflow maintenance rules, equal percentage reduction rules, and permit
retirement rules. (Act sections 1.14(h) and 1.21). ARPs may be suspended in
accordance with the Authority's demand management rules and groundwater trust
rules (Act sections 1.14(d) and 1.22). ARPs may be interrupted in accordance
with the Authority's drought management rules, critical period management
rules, and springflow maintenance rules (Act sections 1.14(d) and (h), and
1.26). The Authority has also concluded in this rule that, just as with IRPs,
ARPs may be abandoned and/or cancelled in accordance with the Authority's
abandonment and cancellation rules. The Authority reached this conclusion
because, once issued, ARPs are functionally no different than IRPs, and it
would be nonsensical for ARPs to be immune from the abandonment and cancellation
rules while IRPs are subject to such rules. This rule does not itself set
forth the substantive rules relating to permit retirement, suspension, and
so on. Instead, it merely clarifies that ARPs are subject to those rules and
provides a reference to those rules.
Section 711.100 also lists the elements which, assuming there is water
available for such permits, an additional regular permit applicant must prove
in order to be granted such a permit. For example, the applicant must pay
a fee; the application must identify an existing or proposed well; the well
must be located within the Authority's boundaries and must be a point of withdrawal
for Edwards aquifer water; and the water produced must be used within the
Authority's boundaries. (Act sections 1.14(e), 1.03(1), 1.08(b), 1.34(a)).
The withdrawals must be proposed to be placed to a beneficial use for irrigation,
municipal or industrial use. (See the discussion for § 711.92, above.)
Section 711.100 also provides that an ARP application cannot be granted
unless there will continue to be sufficient water (i.e., enough water below
the cap) to provide for any restorations to IRPs required in the event that
either of the withdrawal caps are raised. This provision is included because §
1.16(d) gives the Authority the ability, under limited circumstances, to raise
either of the withdrawal caps. In the event these caps are raised, the Authority
will, to the extent possible, restore back to IRPs amounts reduced off of
IRP amounts through the "proportional adjustment" or "equal percentage reduction"
processes mandated by sections 1.16(e) and 1.21(c) of the Act, respectively.
The Act gives a clear preference to IRPs over ARPs and to existing users,
generally. Thus, in keeping with that preference, the Authority has determined
that no ARPs shall be issued if such issuance will reduce the amount of water
available to restore to any IRP.
The rule provides that in order to obtain an ARP, the well cannot qualify
for exempt well status. (See discussion of public comments on the rule 711.98,
below.) The rule also requires that the proposed withdrawals be consistent
with the Authority's comprehensive groundwater management rules. As originally
proposed, the rule included a requirement that the applicant demonstrate that
he has no other reasonable source of water from a municipal supply. This requirement
applies to term and emergency permits, but was inadvertently added to this
rule for ARPs, and was not intended to be included among the requirements
for an ARP. Accordingly, the Authority has deleted this requirement in the
rule as adopted. Finally, the application must be in compliance with the Act
and the Authority's rules.
Section 711.102 identifies who may apply for, and the attributes of, a
term permit. This section is intended to locate, in one convenient reference
point, the general attributes of term permits, as contemplated and intended
by the Act. It is common practice for water resource management agencies to
identify the criteria necessary to implement their permitting programs. The
list of the attributes of a term permit, together with the list of criteria
which must be proven in order to obtain such a permit, will assist in enabling
the Authority to manage all points of withdrawal from the Edwards Aquifer,
and to accomplish its other various duties to manage, conserve, preserve,
and protect the Edwards Aquifer and to prevent waste or pollution of the aquifer.
The rule provides that any person owning or proposing to construct a well
may apply for a term permit. Section 1.19 of the Act vests the Authority with
the discretion to issue term permits. Because the Act does not require the
Authority to issue term permits, and because it is charged with managing,
conserving and protecting the aquifer, the Authority will not issue term permits
unless the board has issued an order authorizing the issuance of such permits.
The rule provides that the Authority will only begin accepting term permit
applications after such an order has been issued. Any applications submitted
prior to that time will be returned to the applicant. The board is also to
specify, by January 15 of each year, the total quantity of water from each
pool which may be withdrawn pursuant to term permits.
Section 711.102 also provides that term permits are only transferrable
as to ownership (Act § 1.34(a)). Term permits are designed to be issued
for special cases. Their issuance will be based upon highly specific facts
as to the need of the applicant and the place and purpose of use. If a party
applies for and receives a permit based upon his specific needs, it would
defeat the limited purpose of term permits to allow the permit holder to then
sell the permit to a third party for totally unrelated uses and places of
use.
Section 711.102 provides that term permits may be interrupted if certain
index wells drop to certain levels. As proposed, the rule was keyed to three
index wells. In response to comments, the Authority has amended the rule so
that only two index wells apply. Specifically, two different interruption
criteria are specified. First, for a well located in the San Antonio pool,
a term permit may be interrupted if the J-17 index well measures at or less
than 665 feet above mean sea level (msl). Second, for a well located in the
Uvalde pool, a term permit may be interrupted if the J-27 index well measures
at or less than 865 feet above msl. These interruption criteria are mentioned
in the Act.
Section 711.102 next provides that term permits may also be interrupted
in accordance with the Authority's springflow maintenance rules, critical
period management rules, and drought management rules. (See Act sections 1.14(d)
and (h), and 1.26). This rule does not itself set forth the substantive rules
relating to springflow maintenance, critical period and drought management
rules. Instead, it merely clarifies that term permits are subject to those
rules and provides a reference to those rules.
Section 711.102 next provides that a term permit may be issued for any
period of time that the Authority considers feasible, but not to exceed 10
years. This provision derives directly from § 1.19(a) of the Act.
Section 711.102 also lists the elements which, assuming water is available
for term permits, a term permit applicant must prove in order to be granted
such a permit. For example, the applicant must pay a fee; the application
must identify an existing or proposed well; the well must be located within
the Authority's boundaries and must be a point of withdrawal for Edwards Aquifer
water; and the water produced must be used within the Authority's boundaries.
(Act sections 1.14(e), 1.03(1), 1.08(b), 1.34(a)). Further, the well cannot
qualify for exempt well status. (See discussion of public comments on the
rule 711.98, below.) The rule also requires that the applicant be in compliance
with any other groundwater permits held by him or her, proposed withdrawals
be consistent with the Authority's comprehensive groundwater management rules,
and that the applicant has no other reasonable source of water from a municipal
distribution system. Because term permits are more vulnerable to interruption
than are initial and additional regular permits, they are not as desirable
or dependable for water users' needs, nor are they particularly desirable
from the Authority's standpoint. The Authority wishes to discourage the drilling
of numerous new wells into the aquifer in order to satisfy the short-term
needs of the kind required for a term permit.
Because the Authority is charged with managing withdrawals from the aquifer, §
711.102 requires that the applicant demonstrate that: the withdrawals pursuant
to the proposed term permit will not unreasonably negatively affect other
permittees and the applicant will take all reasonable measures to conserve
water. The proposed use of water pursuant to the permit application must be
economically feasible in relation to the proposed length of the permit. The
applicant must, where applicable, have an approved on-site sewer system or
a permit to construct such a system. Finally, the application must be in compliance
with the Act and the Authority's rules.
Section 711.104 identifies who may apply for, and the attributes of, an
emergency permit. This section is intended to locate, in one convenient reference
point, the general attributes of emergency permits, as contemplated and intended
by the Act. It is common practice for water resource management agencies to
identify the criteria necessary to implement their permitting programs. The
list of the attributes of an emergency permit, together with the list of criteria
which must be proven in order to obtain such a permit will assist in enabling
the Authority to manage all points of withdrawal from the Edwards Aquifer,
and to accomplish its other various duties to manage, conserve, preserve,
and protect the Edwards Aquifer and to prevent waste or pollution of the aquifer.
The rule provides that any person owning a well may apply for an emergency
permit. Section 711.104 provides that emergency permits are not transferrable.
This is because emergency permits are designed to be issued for special cases.
Their issuance will be based upon highly specific facts relating to the need
of the applicant, and the place and purpose of use. If a party applies for
and receives an emergency permit based upon his specific needs, it would defeat
the very limited purpose of emergency permits to allow the permit holder to
then sell the permit to a third party.
Section 711.104 provides that, unlike other withdrawal permits issued by
the Authority, emergency permits are not interruptible and may have a term
that does not exceed 30 days. Pursuant to § 1.20 of the Act and §
711.104, emergency permits are intended to be issued only under very limited
circumstances. They may be issued only "to prevent the loss of life or to
prevent severe, imminent threats to the public health or safety." Given such
circumstances, combined with the fact that, pursuant to § 1.20 of the
Act, emergency permits are generally only valid for 30 days, the Authority
has determined that it would be counterproductive to subject emergency permits
to interruption.
Section 711.104 next lists the elements which an applicant must prove in
order to be granted an emergency permit. The applicant must pay a fee; the
application must identify an existing or proposed well; the well must be located
within the Authority's boundaries and must be a point of withdrawal for Edwards
Aquifer water; and the water produced must be used within the Authority's
boundaries. (Act sections 1.14(e), 1.03(1), 1.08(b), 1.34(a)). Further, the
well cannot qualify for exempt well status. (See discussion of public comments
on the rule 711.98, below.) The withdrawals pursuant to the proposed permit
must be placed to a beneficial use for irrigation, municipal or industrial
use. The rule also requires that the applicant be in compliance with any other
groundwater permits held by him or her and that the withdrawal amounts authorized
in all other groundwater withdrawal permits held by the applicant, if any,
have been exhausted. Before an applicant may be issued a permit, he or she
must have no other source of water from a municipal distribution system. Because
emergency permits are issued for very short terms, they are not a particularly
dependable water source, nor are they a long-term solution to an applicant's
water needs. Therefore, Authority wishes to discourage the drilling of numerous
new wells into the aquifer in order to satisfy the short-term needs of the
kind required for an emergency permit. The Authority wishes to encourage the
use of alternate water sources, such as a municipal distribution system, in
lieu of emergency permits. Section 711.104, as adopted, furthers that objective.
Pursuant to § 1.20 of the Act, § 711.104 requires the applicant
demonstrate that he or she will take all reasonable measures to conserve water.
Finally, the application must be in compliance with the Act and the Authority's
rules.
In keeping with the purpose of an emergency permit, § 711.104 provides
that, if an emergency permit is to be issued, the board shall issue a permit
which authorizes only the withdrawal of an amount of Edwards Aquifer water
which is necessary to prevent the loss of life or to prevent severe, imminent
threats to public health or safety as demonstrated in the application.
Section 1.15(a) and (b) of the Act direct the Authority to manage and regulate
all withdrawal points from the aquifer and to require a permit for any person
seeking to construct a well or other works designed to withdraw aquifer water.
Section 1.08(a) of the Act endows the Authority with broad powers to manage,
conserve, preserve and protect the aquifer and prevent the waste or pollution
of water in the aquifer. Activities related to the construction of wells have
the obvious potential to negatively impact the quantity and quality of water
within the aquifer. Therefore, the Authority adopts § 711.108 which implements
the Authority's well construction permitting program. Section 711.108 identifies
who may apply for, and the attributes of, a well construction permit ("WCP").
This section is intended to locate, in one convenient reference point, the
general attributes of WCPs as contemplated and intended by the Act. It is
common practice for water resource management agencies to identify the criteria
necessary to implement their permitting programs. The list of the attributes
of a WCP, together with the list of criteria which must be proven in order
to obtain such a permit will, assist in enabling the Authority to manage all
points of withdrawal from the Edwards Aquifer, and to accomplish its other
various duties to manage, conserve, preserve, and protect the Edwards Aquifer
and to prevent waste or pollution of the aquifer.
The rule provides that one must first apply for and obtain a WCP in order
to:
1) construct, install, drill, equip, complete, alter, operate or maintain
a well or other works designed for the withdrawal of aquifer water;
2) construct, install, drill, equip, complete, alter, operate or maintain
a well or other works designed for the monitoring of the water quality or
level of the aquifer;
3) equip, complete, alter, operate or maintain a well pump installed or
to be installed on an aquifer well; or
4) construct, install, drill, equip, complete or alter a well or other
works designed to withdraw groundwater from an aquifer other than the Edwards
Aquifer, but that intersects the Edwards Aquifer.
(For a more thorough discussion of these criteria, see the discussion of §
711.12, above.)
Section 711.108 provides that WCPs are not transferrable. This is because
WCPs are intended to be issued to individual applicants who can demonstrate
their intention and ability to comply with the rules of the Authority in the
construction activity in question. If a party applies for and receives a WCP,
the Authority believes it would defeat the very limited purpose of a WCP to
allow the permit holder to then sell the permit to a third party.
Section 711.108 provides that WCPs have a term of 180 days within which
construction activities must be completed. Upon application to the Authority,
the permit term may be extended by one additional 180-day period if the permit
holder demonstrates to the Authority that the permit holder's failure to complete
the well within the original 180-day term is not due to the permit holder's
own lack of diligence. Upon the expiration of the permit term, the permit
automatically expires and is cancelled. The Authority believes it would be
counterproductive to issue open-ended construction permits without providing
any deadline within which to perform the proposed construction activities.
The Authority has concluded that construction permits should be issued to
allow construction of wells for which there is a real need, not for wells
which may be needed at some indefinite point in the future. Further, issuance
of open-ended construction permits (i.e., permits with no construction deadline)
would hinder the Authority's ability to monitor permit holders' construction
activities for compliance with the Authority's rules. Thus, adding a construction
deadline increases the administrative convenience and effectiveness of the
Authority.
Section 711.108 next lists the elements which an applicant must prove in
order to be granted a WCP. The applicant must pay a fee; the application must
identify an existing or proposed well; the well must be located within the
Authority's boundaries and must be a point of withdrawal for Edwards Aquifer
water; the withdrawals must be proposed to be placed to a beneficial use for
domestic or livestock use, irrigation use, municipal use, or industrial use;
and the water produced must be used within the Authority's boundaries. (Act
sections 1.14(e), 1.03(1), 1.08(b), 1.34(a)).
The rule also requires that the applicant have a legal right to make withdrawals
from the well. In other words, the proposed well must either be exempt, or
one for which a groundwater withdrawal permit has been obtained. Section 711.108
requires that the applicant be in compliance with any other Authority permits
held by him or her and that the quantity of water the well would be capable
of producing, if constructed, is consistent with the quantity of water the
applicant proposed to produce.
Section 711.108 requires the applicant demonstrate: that the construction
and operation of the proposed well would not unreasonably negatively affect
the aquifer or other permittees; and that the proposed well will be constructed,
operated and maintained consistent with the Authority's own water quality
rules and all other applicable local, state and federal laws relating to well
construction, operation and maintenance. Section 1.11(d)(10) of the Act empowers
the Authority, within its boundaries, to enforce Chapter 32 of the Texas Water
Code and any rules adopted thereunder. Chapter 32 relates to issues concerning
well construction. Similarly, Chapter 36 of the Texas Water Code generally
applies to groundwater districts such as the Authority. Section 36.113 empowers
districts such as the Authority to require permits for drilling, equipping,
or completing wells or for altering the size of wells or well pumps. Section
36.115 prohibits the drilling of a well or alteration of a well pump without
a permit. The Chapter 711 rules incorporate these requirements. The Authority
believes it is appropriate to require compliance with these "other applicable
laws" in § 711.108. Finally, the application must be in compliance with
the Act and the Authority's rules.
Section 711.110 identifies who may apply for, and the attributes of, a
monitoring well permit ("MWP"). This section is intended to locate, in one
convenient reference point, the general attributes of MWPs as contemplated
and intended by the Act. It is common practice for water resource management
agencies to identify the criteria necessary to implement their permitting
programs. The list of the attributes of a MWP, together with the list of criteria
which must be proven in order to obtain such a permit will assist in enabling
the Authority to manage all points of withdrawal from the Edwards Aquifer,
and to accomplish its other various duties to manage, conserve, preserve,
and protect the Edwards Aquifer and to prevent waste or pollution of the aquifer.
Section 1.15(a) and (b) of the Act directs the Authority to manage and
regulate all withdrawal points from the aquifer and to require a permit for
any person seeking to construct a well or other works designed to withdraw
aquifer water. Section 1.08(a) of the Act endows the Authority with broad
powers to manage, conserve, preserve and protect the aquifer and prevent the
waste or pollution of water in the aquifer. Activities related to the construction
of wells have the obvious potential to negatively impact the quantity and
quality of water within the aquifer. Although a monitoring well will typically
withdraw much less water than other aquifer wells, the Authority has determined
that a permit should be required for such wells. The Authority cannot effectively
regulate wells of which it is unaware. Further, just as with any other type
of well, monitoring wells are potential conduits of contamination of the aquifer
and this rule will help prevent pollution of water in the aquifer.
Section 711.110 provides that any person proposing to construct a monitoring
well may apply for a MWP. Section 711.110 provides that MWPs are transferrable,
non-interruptible, and perpetual in term. The Authority does not believe that
the quantity of water withdrawn by monitoring wells is sufficient to warrant
interruption during times of drought, etc. Further, a key function of monitoring
wells is to monitor water quality and quantity in the aquifer. This function
is critically important during times of drought and other circumstances during
which other types of permits may be interrupted. Thus, monitoring well withdrawals
are arguably more valuable and necessary during times when other permit withdrawals
are subject to interruption.
Section 711.110 next lists the elements which a MWP applicant must prove
in order to be granted such a permit. The applicant must pay a fee; the application
must identify an existing or proposed well; the well must be located within
the Authority's boundaries and must be a point of withdrawal for Edwards Aquifer
water; and the well must be used for monitoring purposes. The rule also requires
that the applicant demonstrate that he or she will take all reasonable measures
to conserve water. Finally, the application must be in compliance with the
Act and the Authority's rules.
Section 711.112 identifies the many provisions that shall be included,
and the issues that are to be addressed, in any groundwater withdrawal permit
issued by the Authority. It is common practice for water resource management
agencies to identify and specify the contents of their permits. This list
of the required contents of a groundwater withdrawal permit will assist the
Authority in managing all points of withdrawal from the Edwards Aquifer, and
accomplishing its other various duties to manage, conserve, preserve, and
protect the Edwards Aquifer and to prevent waste or pollution of the aquifer.
Pursuant to section 711.112, the permit shall identify: the name, address
and phone number of the permit owner and any authorized representative of
the owner; the type of permit; the permit term; the purpose of use for the
permit; and the maximum authorized rate of withdrawal in gallons per minute,
together with the maximum total annual volume of withdrawal by purpose of
use. The Authority is required, pursuant to § 1.15(d) of the Act, to
specify a maximum rate and total volume of withdrawal for each groundwater
withdrawal permit issued by it. Where applicable, the permit shall identify
the applicant's "maximum historical use," "historical average minimum" or
"irrigator minimum," "phase-1 proportionally adjusted amount," "step-up amount,"
"phase-2 proportionally adjusted amount," and "equal percentage reduction
amount." These terms are relevant to the method by which initial regular permit
amounts are calculated and reduced in order to achieve the 450,000 and 400,000
acre-feet "caps" mandated by the Act. They may also bear upon any "restoration"
of permit amounts in the event that the Authority raises either of the withdrawal
caps. These terms are defined and applied in sections 711.172 and 711.174
of these rules. Readers are encouraged to refer to the discussion of those
sections, below, for a more complete explanation of those terms and their
purposes.
Section 711.112 also requires that the permit identify the location of
the well(s) for which the permit is issued; the place of use of the water
withdrawn; the source of the groundwater (which must be the Edwards Aquifer);
the type of meter or alternative measuring method employed on the well(s);
the conditions for the retirement, suspension, or interruption of withdrawals
or, where applicable, the conditions for renewal of the permit; any reporting
requirements imposed upon the permit holder; a notice that the permit is subject
to the limitations provided in the Act and the Authority's rules; a listing
of the standard groundwater withdrawal conditions set forth in the Subchapter
F rules (discussed in more detail below); and any other appropriate conditions
on the withdrawal of water from the aquifer.
Section 711.116 identifies the many provisions that shall be included,
and issues that are to be addressed, in any well construction permit ("WCP")
issued by the Authority. It is common practice for water resource management
agencies to identify and specify the contents of their permits. This list
of the required contents of a WCP will assist the Authority in managing all
points of withdrawal from the Edwards Aquifer, and accomplishing its other
various duties to manage, conserve, preserve, and protect the Edwards Aquifer
and to prevent waste or pollution of the aquifer.
Pursuant to § 711.116, the permit shall identify: the name, address
and phone number of the permit owner and any authorized representative of
the owner; the type of permit; the permit term; and the purpose of use for
the permit. The Authority is required, pursuant to § 1.15(d) of the Act,
to specify a maximum rate and total volume of withdrawal for each groundwater
withdrawal permit issued by it. Thus, § 711.116 requires the permit to
specify the maximum authorized rate of withdrawal in gallons per minute, together
with the maximum annual volume of withdrawal by purpose of use for the proposed
well.
As originally proposed, the rule also required the permit to specify the
maximum monthly rate of withdrawals in acre-feet. This requirement has been
deleted to conform more closely with the two rate and volume criteria which
are specified in § 1.15(d) of the Act.
Section 711.116 also requires that the permit provide a detailed legal
description of the well location and identify: the applicant's specific legal
authority to make withdrawals if the well is constructed; the source of the
groundwater (which must be the Edwards Aquifer); the pump size, pumping rate,
pumping method and other specifications for metering the well; the internal
diameter, well depth and other construction specifications for the well; and
any reporting requirements imposed upon the permit holder. The permit must
also include a notice that the permit is subject to the limitations provided
in the Act and the Authority's rules and any other appropriate conditions
on the withdrawal of water from the aquifer.
Section 711.118 identifies the many provisions that shall be included,
and the issues that are to be addressed, in any monitoring well permit ("MWP")
issued by the Authority. It is common practice for water resource management
agencies to identify and specify the contents of their permits. This list
of the required contents of a MWP will assist the Authority in managing all
points of withdrawal from the Edwards Aquifer, and accomplishing its other
various duties to manage, conserve, preserve, and protect the Edwards Aquifer
and to prevent waste or pollution of the aquifer.
Pursuant to § 711.118, the permit shall identify: the name, address
and phone number of the permit owner and any authorized representative of
the owner; the type of permit; the permit term; and the purpose of use for
the well authorized by the permit. The Authority is required, pursuant to §
1.15(d) of the Act, to specify a maximum rate and total volume of withdrawal
for each groundwater withdrawal permit issued by it. Thus, § 711.118
requires the permit to specify the maximum authorized rate of withdrawal in
gallons per minute, together with the maximum annual volume of withdrawal
by purpose of use for the proposed well.
As originally proposed, the rule also required the permit to specify the
maximum monthly rate of withdrawals in acre-feet. This requirement has been
deleted to conform more closely with the two rate and volume criteria which
are specified in § 1.15(d) of the Act.
Section 711.118 also requires that the permit provide a detailed legal
description of the well location and identify: the purpose of the monitoring
activity; the source of the groundwater (which must be the Edwards Aquifer);
the pump size, pumping rate, pumping method and other specifications for metering
the well; the internal diameter, well depth and other construction specifications
for the well; the construction specifications for any additional monitoring
equipment to be installed or associated with the well; and any reporting requirements
imposed upon the permit holder. The permit must also include a notice that
the permit is subject to the limitations provided in the Act and the Authority's
rules and any other appropriate conditions on the withdrawal of water from
the aquifer.
Many of the sections listing the required contents of Authority permits
include provisions requiring: "any other appropriate conditions . . . as determined
by the Authority" or "any other information required by the board to implement
the Act or the Authority's rules." (See §§ 711.112(26) and (27),
711.116(16) and (17), and 711.118(17) and (18).) The basis for these provisions
lies in the need for flexibility in the processing and issuance of applications
by the Authority. The Authority will need to exercise such flexibility. The
processing and issuance of many applications will be straight-forward, presenting
a generic and well-defined set of issues to be examined. Other applications,
however, will be unique and will present special issues and raise questions
that are specific to that application. The provisions allowing the Authority
to require "other information" provides the Authority with some flexibility
in dealing with unique situations.
Subchapter F
While the Act requires the Authority to implement a permitting system,
it also imposes a number of restrictions, limitations and other requirements
upon the withdrawal of water from the Edwards Aquifer. Sections 711.130-711.134,
Subchapter F of the Chapter 711 rules, harmonize these provisions of the Act
by notifying holders of groundwater withdrawal permits that they must comply
with a number of conditions, including: avoiding actions that adversely affect
water quality or threatened or endangered aquifer-dependent species; complying
with other Authority rules, including rules designed to protect water quality,
conserving water, maximizing beneficial use of water, protecting aquatic and
wildlife habitat and threatened or endangered species, and protecting instream
uses, bays and estuaries; and complying with the Act. These conditions will
be incorporated into the terms of the permits when they are issued. These
conditions implement requirements from the Act and are necessary for the Authority
to effectively regulate its permits in order to manage, conserve, preserve,
and protect the aquifer and to prevent the waste or pollution of water in
the aquifer. The Subchapter F rules do not themselves set forth the substantive
conditions which apply to permits issued by the Authority. Instead, they merely
clarify that the permits are subject to those conditions and provide a reference
to the rules implementing those conditions.
Section 711.130 states that the purpose of Subchapter F is to establish
the standard conditions required to be contained in a groundwater withdrawal
permit. Those conditions are designed, among other things, to: 1) protect
the quality of water in the aquifer; 2) protect the water quality of the surface
streams to which the aquifer provides springflow; 3) achieve water conservation
and the maximization of groundwater available for withdrawal from the aquifer;
4) protect aquatic and wildlife habitat and listed threatened or endangered
species; and 5) provide for instream uses, bays and estuaries. These objectives
derive directly from § 1.14(a) of the Act, and the Authority is given,
by that section of the Act, a clear mandate to limit "authorizations to withdraw
water from the aquifer" (i.e. permits) in order to achieve those objectives.
Because the objectives listed in § 711.130 derive directly from §
1.14(a) of the Act, no further elaboration is required.
In response to public comments, and as discussed more fully in the public
comments discussion, the Authority has revised and reorganized §711.130
and §711.134. These revisions are primarily non-substantive and are intended
to make the rule more easily understood.
Section 711.132 simply clarifies that Subchapter F applies to all groundwater
withdrawal permits issued by the Authority.
Section 711.134 is included in the Chapter 711 rules in order to comply
with the statutory mandate contained within § 1.16(h) of the Act. Section
1.16(h) requires the Authority to provide notice to each permit holder that
his or her permit "is subject to limitations" provided in the Act. These limitations
are referred to by the Authority as "conditions" upon the permits issued by
the Authority. Thus, 711.134 lists each of the conditions (or limitations)
which the Act empowers or requires the Authority to impose upon groundwater
withdrawal permits. The section does not itself set forth the substance of
the conditions which apply to permits issued by the Authority. Instead, it
merely clarifies that the permits are subject to those conditions and provides
a reference to the rules or other applicable laws which actually implement
those conditions. The section also specifies that the permit holder is required
to comply with the listed conditions. This section is intended to locate,
in one convenient reference point, the standard conditions to which all groundwater
withdrawal permits are subject and with which all permit holders must comply.
The conditions listed in § 711.134, and the statutory bases therefor,
are as follows:
1) Permittees must comply with the Authority's rules relating to the construction,
operation, and maintenance of wells. Sections 1.08(a), 1.11(a), (b), (d)(10)
and (11), (h), 1.14(a)(1) and (2), 1.15(a) and (b), 1.35(d) of the Act and
Chapters 32, 36 and 49 of the Texas Water Code empower and require the Authority
to regulate the construction, operation and maintenance of Edwards Aquifer
wells within its boundaries.
2) Permittees must comply with the Authority's rules relating to the abandonment
and closure of wells. Sections 1.08(a), 1.11(a),(b), (d)(8),(10), and (11),
(h), 1.14(a), 1.15(a), and 1.16(g), 1.35(d) of the Act and Chapters 32, 36
and 49 of the Texas Water Code empower and require the Authority to implement
and enforce rules regarding the abandonment and closure of wells.
3) Permittees must comply with the Authority's rules relating to the spacing
of wells. Sections 1.08(a), 1.11(a), (b), and (h), 1.14(a), 1.15(a), and 1.35(d)
of the Act and Chapters 36 and 49 of the Texas Water Code empower and require
the Authority to regulate the spacing of Edwards Aquifer wells within its
boundaries.
4) Permittees must comply with the Authority's rules relating to the installation,
operation and maintenance or well fields. Sections 1.08(a), 1.11(a), (b) and
(h), 1.14(a), 1.15(a), 1.35(d) of the Act and Chapters 36 and 49 of the Texas
Water Code empower and require the Authority to regulate wells fields of Edwards
Aquifer wells within its boundaries.
5) Permittees must comply with the Authority's rules relating to the recharge
of the aquifer. Sections 1.08(a), 1.11(a), (b), (d), (f) and (h), 1.14(d),
1.15(a), 1.27(b), 1.44, 1.45 of the Act empower and require the Authority
to regulate artificial recharge activities related to the Aquifer.
6) Permittees must take no action that pollutes or contributes to the pollution
of the aquifer. Sections 1.08(a), 1.14(a), 1.15, and 1.35(d) of the Act empower
and require the Authority to regulate and prevent pollution of the Aquifer.
7) Permittees must comply with the Authority's aquifer water reuse rules.
Sections 1.03(19), 1.08(a), 1.11(a), (b), (d), and (h), 1.13, 1.14(d), 1.15(a),
1.21(b), 1.23, 1.24(c), and 1.27(b)(3) of the Act empower and require the
Authority to regulate and require the beneficial use and utilization of groundwater
withdrawn from the aquifer that is reused.
8) Permittees are prohibited from wasting aquifer water. Sections 1.08(a),
1.11(a), (b), (f), and (h), 1.14(e), (f), 1.15(a), (b), (c) and (d), 1.16(c),
(d), (g) and (h), 1.18, 1.19, 1.20, 1.33, 1.35, and 1.44(a) of the Act and
Chapter 36 of the Texas Water Code empower and require the Authority to regulate
and prevent the waste of water from the Aquifer.
9) Permittees must comply with the Authority's groundwater conservation
rules. Sections 1.01, 1.08(a), (b), 1.11(a), (b), (d), 1.14(a), 1.15(a), 1.17(c),
1.21(b), 1.23(a), (b) and (c), 1.24, 1.25(a), 1.27(b), and 1.34(b) of the
Act empower and require the Authority to adopt rules designed to conserve
groundwater.
10) Permittees must comply with the Authority's demand management rules.
Sections 1.08(a), 1.10(i), 1.11(a), (b), (d) and (h), 1.14(h), 1.15(a), 1.17(c),
1.22(a) and (b), 1.25(a), and 1.29(a) of the Act empower and require the Authority
to adopt rules designed to manage the demand for aquifer water.
11) Permittees must comply with the Authority's drought management rules.
Sections 1.08(a), 1.11(a), (b), and (h), 1.14(d) and (f), 1.15(a), 1.17(c)
of the Act empower and require the Authority to adopt rules designed to manage
the aquifer during times of drought.
12) Permittees must comply with the Authority's critical period management
rules. Sections 1.08(a), 1.11(a), (b) and (h), 1.14(d) and (f), 1.15(a), 1.17(c)
and 1.26 of the Act empower and require the Authority to adopt rules designed
to manage the aquifer what the Act describes as "critical periods."
13) and 14) Permittees must comply with the Authority's rules relating
to the installation, operation and maintenance of meters or alternative measuring
methods, including any record keeping and reporting requirements contained
therein. Sections 1.08(a), 1.11(a), (b),(d) and (h), 1.15(a), 1.31, 1.32 and
1.33(a) of the Act and Chapters 36 and 49 of the Texas Water Code empower
and require the Authority to adopt rules regulating meters or alternative
measuring devices and their installation on aquifer wells.
15) Permittees must comply with the Authority's rules requiring the beneficial
use of aquifer water and prohibiting waste. Sections 1.08(a), 1.11(a), (b),
(f) and (h), 1.14(e) and (f), 1.15(a), (b), (c) and (d), 1.16(c), (d), (g)
and (h), 1.18, 1.19, 1.20, 1.33(a), 1.35and 1.44(a) of the Act and Chapter
36 of the Texas Water Code empower and require the Authority to adopt rules
requiring beneficial use and prohibiting waste.
16) Permittees must comply with the Authority's rules relating to the interruption
or retirement of withdrawal rights. Sections 1.08(a), 1.11(a), (b), (d) and
(h), 1.14(a), (d), (f) and (h), 1.15(a), 1.17(c) and 1.27(a) and (b) of the
Act empower and require the Authority to adopt rules providing mechanisms
whereby permitted withdrawal rights may be interrupted and/or retired.
17) and 18) Permittees must comply with the Authority's rules relating
to the method by which permits are "proportionally adjusted" or reduced by
"equal percentage reduction" in order to achieve the withdrawal caps. Sections
1.08(a), 1.11(a), (b) and (h), 1.14(b) and (c), 1.15(a) and (b), 1.16, 1.18(a),
(b) and (c), 1.20(d), 1.21(a) and (c), 1.44(d) of the Act empower and require
the Authority to implement such reduction strategies.
19) Permittees must comply with the Authority's rules relating to the retirement
of withdrawal rights. Sections 1.08(a), 1.11(a), (b) and (h), 1.14(h), 1.15(a),
1.16(g), 1.21, 1.22(a), 1.24(c), 1.29(a), (c) and (d) of the Act empower and
require the Authority to adopt rules providing mechanisms whereby permitted
withdrawal rights may be interrupted.
20) Permittees must comply with the Authority's rules relating to the acquisition
of additional water supplies. Sections 1.08(a), 1.11(a), (b), and (h), 1.15(a),
1.25(a) and (b), and 1.27(b) of the Act empower and require the Authority
to adopt such rules.
21) Permittees must comply with the Authority's rules requiring the providing
of notice in the event of a change in name or mailing address.
22) Permittees must pay all applicable Authority fees. Such fees are authorized
by § 1.29 of the Act.
23) Permittees must comply with the Authority's rules relating to the interim
authorization period. Sections 1.08(a), 1.11(a), (b) and (h), 1.15(a) and
(b), 1.16(c), 1.17 and 1.33(a) of the Act empower and require the Authority
to adopt rules governing the interim authorization period.
24) and 25) Permittees must comply with the Authority's rules relating
to the abandonment and cancellation of wells or permits. Sections 1.08(a),
1.11(a), (b), (d)(8) and (h), 1.14(b) and (c), 1.15(a) and 1.16(g) of the
Act empower and require the Authority to adopt rules governing abandoned or
cancelled wells or permits.
26) Permittees must comply with the Authority's rules relating to the method
by which permits amounts may be are "restored" in the event the withdrawal
caps are raised. Sections 1.08(a), 1.11(a), (b) and (h), 1.14(d) and 1.15(a)
of the Act empower the Authority to adopt such rules.
27) Permittees must comply with the Authority's rules regulating the transfer
of permit rights. Sections 1.08(a), 1.11(a), (b) and (h), 1.15(a), 1.22(a),
1.24(c), 1.28(b), 1.30, and 1.34 of the Act and Chapter 36 of the Texas Water
Code empower the Authority to adopt such rules.
28) Permittees must comply with the Authority's prohibitions against transferring
water outside the boundaries of the Authority. Section 1.34(a) of the Act
empower the Authority to prohibit such transfers.
29) - 32) Finally, permittees must comply with the terms of their permits,
the Act, the Authority's rules, and any other condition which may, in the
board's discretion, be reasonable and appropriate. The basis for these provisions
lies in the need for flexibility in the issuance and regulation of permits
by the Authority. The Authority will need to exercise such flexibility. Many
permits will be straight-forward, presenting a generic and well-defined set
of issues to be examined. Other permits, however, will be unique and will
present special issues and raise questions that are specific to that permit.
The provisions allowing the Authority to require compliance with "other reasonable
conditions" provides the Authority with some flexibility in dealing with unique
situations.
Subchapter G
The Act requires the Authority to implement a permitting system. The Act
also imposes two "caps" which limit the aggregate amount of certain permitted
withdrawals which may be issued by the Authority. Specifically, the Act mandates
that, initially, total permitted withdrawals for initial and additional regular
permits may not exceed 450,000 acre-feet per year and, after January 1, 2008,
total permitted withdrawals may not exceed 400,000 acre-feet per year. In
the absence of these "caps," total permitted withdrawals might exceed the
cap amounts. Therefore, the Act requires the Authority to "proportionally
adjust" initial regular permit amounts to reach the 450,000 acre-feet cap,
and implement "equal percentage reductions" in order to reach the 400,000
acre-feet cap. The Act also imposes several permit "minimums" applicable to
certain initial regular permit holders. Sections 711.160-711.182, Subchapter
G of the proposed Chapter 711 rules, implement these provisions of the Act
by establishing the amount of groundwater available for permitting, explaining
which types of permits are subject to the caps, implementing a method of calculating
the permit minimums, and setting out the procedures for carrying out "proportional
adjustment" and "equal percentage reductions."
Section 711.160 explains that the purpose of the subchapter is to establish
the amount of groundwater available for permitting, and to set forth the procedures
to be used to proportionally adjust permit amounts and implement equal percentage
reductions to permit amounts. The factual basis for § 711.160 is grounded
in legal facts found in the Act. A review of the Act demonstrates that the
Authority's permit program needs to establish the amount of groundwater available
for permitting for each category of groundwater withdrawal permits; and establish
procedures for implementing "proportional adjustments" and "equal percentage
reductions" of initial regular permits under certain circumstances. For initial
and additional regular permits, sections 1.14 (b) and (c) of the Act impose
two permitted withdrawal parameters or "caps," subject to certain limitations.
The first cap (1.14 (b)) sets a maximum of 450,000 acre-feet of permitted
withdrawals per year until December 31, 2007. The second cap (1.14 (c)) sets
a maximum of 400,000 acre-feet per year of permitted withdrawals beginning
January 1, 2008. Section 1.16 (e) of the Act requires that initial regular
permits be proportionally adjusted in the event that the aggregate maximum
historical use of groundwater from the aquifer exceeds 450,000 acre-feet per
annum. Section 1.21(c) requires equal percentage reductions of initial regular
permits and additional regular permits (if any) in order to meet the 400,000
acre-feet per annum "cap." These legislative facts form the basis of and set
parameters for the purpose of Subchapter G as stated in this section. The
rules set forth in this subchapter implement these requirements of the Act.
In that §711.160 identifies these purposes to be advanced by subchapter
G, a rational connection is established between the legislative factual basis
in the Act and the final rule as adopted.
Section 711.162 provides that Subchapter G only applies to certain categories
of groundwater withdrawal permits. The factual basis for § 711.162 is
grounded in legal facts found in the Act. The Authority may issue other types
of permits, such as well construction permits. However, the Authority interprets
the "caps" in sections 1.14(b) and (c) as being applicable only to initial
and additional regular permits. Similarly, it interprets the "equal percentage
reduction" provisions of § 1.21(c) to apply to initial and additional
regular permits. A review of § 1.16(e) of the Act shows that it may only
apply to initial regular permits. Initial and additional regular permits are
both groundwater withdrawal permits. There are other types of groundwater
withdrawal permits recognized in the Act which require consideration of the
amount of groundwater available for permitting (term permits and emergency
permits). Monitoring well permits, while not mentioned in the Act, also exist
within the Authority boundaries and require treatment in this subchapter.
These facts form the basis for § 711.162. In that § 711.162 limits
the scope of subchapter G to groundwater withdrawal permits, there is a rational
connection between the factual basis and the final rule as adopted.
Section 711.164 provides that the aggregate withdrawal "caps" - 450,000
acre-feet from the effective date of these rules through December 31, 2007
and 400,000 acre-feet thereafter - apply to initial regular permits and additional
regular permit unless either of the caps is increased by the Authority pursuant
to § 1.14(d) of the Act. The factual basis for § 711.164 is grounded
in legislative facts found in the Act. Sections 1.14(b) and (c) of the Act,
respectively, provide that the amounts of groundwater available for permitting
are 450,000 acre-feet per year through December 31, 2007, and 400,000 acre-fee
per year thereafter, unless either of the caps is increased by the Authority
pursuant to § 1.14 (d). Sections 1.14(b) and (c) do not specifically
identify the groundwater withdrawal permits to which the "caps" apply. Those
sections do not state that the caps apply to all permits. However, a review
of the Act as a whole shows that these caps can logically only apply to initial
and additional regular permits. In this analysis, it is important to also
consider the import of §§ 1.16(e), 1.18(a), 1.19, 1.20, and 1.21(a)
of the Act. The "cap" is made applicable to initial regular permits by §
1.16(e) where it provides that, "to the extent water is available for permitting,"
certain permit amounts should be recognized and certain proportional adjustment
procedures may need to be invoked. Section 1.16 addresses exclusively the
issuance of initial regular permits. Section 1.18(a) also provides that "to
the extent water is available for permitting after the issuance of permits
to existing users" (i.e. initial regular permits), then the Authority may
issue additional regular permits. Neither § 1.19 nor 1.20, relating to
term and emergency permits, respectively, contain langauge such as "to the
extent water is available for permitting" which would suggest an intent to
subject those types of permits to the caps. Further, term and emergency permits
are subjected to their own, independent limiting factors. Section 1.19 of
the Act provides for interruption of withdrawals under term permits based
on the triggering of certain index well water levels. Because of this interruptibility
feature of term permits at higher aquifer levels (than initial and additional
regular permits might otherwise be subject to) it is unnecessary to apply
the caps in sections 1.14(b) and (c) to term permits. Section 1.20(d) specifically
provides that withdrawals under emergency permits may be made "without regard
to its effect on other permit holders." The Authority interprets this provision
to mean that the issuance of emergency permits does not affect the permit
allocation process under §1.14(b) and (c), the proportional adjustment
process under § 1.16(e), or the equal percentage reduction process under §
1.12(c). Section 1.21(a) and (c) also reinforce the conclusion that the "caps"
do not apply to term or emergency permits. Under subsection (a), the Authority
is to prepare a plan to reduce withdrawals "under regular permits" to meet
the cap. Similarly, subsection (c) establishes the process to reduce withdrawals
"under regular permits" to reduce "each regular permit" to meet the cap. These
legislative facts in the form of sections of the Act form the factual basis
for § 711.164. This rules implements these requirements of the Act. In
that § 711.164 identifies the amount of groundwater available for permitting
for initial and additional regular permits, a rational connection is established
between the legislative factual basis in the Act and the final rule as adopted.
Section 711.166 states that the amount of groundwater which may be withdrawn
pursuant to term permits is not subject to the withdrawal caps. Instead, the
aggregate amount of term permits which can be issued by the Board will be
governed by the amount specified in the Board's annual order authorizing the
issuance of term permits. Further, term permit withdrawals will only be authorized
when the key index well levels are greater than as specified as follows: 1)
for wells within the San Antonio pool, when well J-17 is greater than 665
feet above mean sea level; and 2) for wells within the Uvalde pool, when well
J-27 is greater than 865 feet above mean sea level.
The Act does not establish a "cap" on the amount of groundwater available
for permitting for term permits. However, under § 1.15(a) of the Act,
the Authority is authorized to manage all points of withdrawals from the aquifer.
Additionally, § 1.08(a) confers on the Authority all of the powers, rights,
and privileges necessary to manage, conserve, preserve and protect the aquifer.
Withdrawals under term permits early or late in a year when the aquifer is
above certain higher index well readings (i.e. when the aquifer is "full")
may affect the water supply that will be available to the holders of initial
regular permits during periods of low rainfall and high rates of withdrawals.
Term permit withdrawals may also affect the performance of the Authority's
other aquifer management programs. The amount of groundwater that is in the
aquifer at the beginning of a year varies based on the prior year's rainfall
and amount of withdrawals. Accordingly, the act of establishing, by order
of the Board, on an annual basis the amount of groundwater that may be permitted
under term permits will assist the Authority in managing the overall water
supply that is available from the aquifer. Section 711.166 also provides the
conditions set forth in the Act that term permit withdrawals will only be
authorized when key index well levels are greater than as specified as follows:
for wells within the San Antonio pool, when well J-17 is greater than 665
feet above mean sea level; and for wells within the Uvalde pool, when well
J-27 is greater than 865 feet above mean sea level. There is a rational connection
between this factual basis for § 711.166 and the rule as adopted because
it provides rational limits on term permit withdrawals, which are not subject
to the "cap" as discussed above for § 711.164, by specifying aggregate
permissible term permit withdrawals in the Board's annual order, and by conditioning
term permit withdrawals on index well readings.
Section 711.168 provides that the amount of groundwater which may be withdrawn
pursuant to emergency permits is not subject to the withdrawal caps. Instead,
the amount of emergency permits the board may issue shall not exceed the amount
necessary to prevent the loss of life or to prevent severe, imminent threats
to public health or safety. The criteria for eligibility for an emergency
permit derive from §1.20 of the Act. The Act does not establish a "cap"
on the amount of groundwater available for permitting for emergency permits.
However, under § 1.15(a) of the Act, the Authority is authorized to manage
all points of withdrawals from the aquifer. Additionally, § 1.08(a) confers
on the Authority all of the powers, rights, and privileges necessary to manage,
conserve, preserve and protect the aquifer . Because of the nature and duration
of withdrawals under emergency permits (i.e. relatively low withdrawal amounts
in rare circumstances for relatively short 30-day time periods), there is
little likelihood that these withdrawals will materially affect the water
supply that will available to the holders of regular permits. Moreover, emergency
permit withdrawals are not likely to affect the performance of the Authority's
other aquifer management programs. This section ensures that groundwater withdrawals
necessary to meet emergency conditions, as described in this section, are
available only in quantities of groundwater determined by the Authority to
be necessary. The Act and the rules defer judgment to the Authority with regard
to making a determination on whether conditions meet the criteria listed in
this section and, therefore, justify an emergency permit. The maintenance
of public health and safety is established in this section as a requirement
that takes precedence over all other allocation requirements and parameters
on groundwater withdrawn from the aquifer. Accordingly, there is a rational
connection between this factual basis for § 711.168 and the rule as adopted
because it provides that emergency permit withdrawals are not subject to the
"cap" as discussed above for § 711.164, and that amount of withdrawals
under emergency should be limited to that amount required to address the emergency.
Section 711.170 provides that the amount of groundwater which may be withdrawn
pursuant to monitoring well permits is not subject to the withdrawal caps.
Instead, the amount of monitoring well permits may not exceed the amount reasonably
necessary to properly collect water quality samples from the aquifer. The
Act does not establish a "cap" on the amount of groundwater available for
permitting for monitoring well permits. However, under § 1.15(a) of the
Act, the Authority is authorized to manage all points of withdrawal from the
aquifer. Additionally, § 1.08(a) confers on the Authority all of the
powers, rights, and privileges necessary to manage, conserve, preserve and
protect the aquifer. Because of the nature and duration of withdrawals under
monitoring well permits (i.e. generally low withdrawal amounts on an intermittent
basis), there is little likelihood that these withdrawals will materially
affect the water supply that will available to the holders of regular permits.
Moreover, monitoring well permit withdrawals are not likely to affect the
performance of the Authority's other aquifer management programs. This section
ensures that groundwater withdrawals necessary to perform monitoring well
functions are available in quantities of groundwater determined by the Authority
to be necessary for this purpose. Subsection 711.170 (b) states that irrespective
of the groundwater levels of index wells J-17, TD 69-47-306, or J-27, the
amount of groundwater from the aquifer that the Board may permit to be withdrawn
pursuant to monitoring well permits shall not exceed the amount necessary
to properly collect water quality samples from the aquifer for each calendar
year. This section gives proper recognition to the significance of groundwater
quality monitoring to the long-term maintenance of the viability of the aquifer.
Monitoring activities will not be constrained or made more difficult by groundwater
policy established by the Authority to allocate withdrawals for persons with
other types of permits. Accordingly, there is a rational connection between
this factual basis for § 711.170 and the rule as adopted because it provides
that monitoring well permit withdrawals are not subject to the "cap" as discussed
above for § 711.164, and that amount of withdrawals under monitoring
well permits emergency should be limited to that amount required for this
purpose.
Section 711.172 sets forth the mechanism by which initial regular permits
will be proportionately adjusted, if necessary, in order to reach the 450,000
acre-feet withdrawal cap or other applicable cap. The factual basis for §
711.172 is grounded in the legislative facts found in § 1.16(e) of the
Act. Section 1.16(e) provides for proportional adjustment under certain circumstances.
Section 1.16 is limited to initial regular permits. Accordingly, the proportional
adjustment process only applies to initial regular permits. Subsection (a)
of § 711.172 provides that this section only applies to initial regular
permits.
Section 1.16(e) provides for, among other things, the recognition of groundwater
withdrawal amounts in an initial regular permit equal to "the average amount
of water withdrawn annually during the historical period." Only existing users
who have "operated a well for three or more years during the historical period"
qualify for this treatment. The Authority refers to this concept as the "historical
average minimum." The Act provides no guidance in its text as to (1) what
"operate a well" means; (2) how the "three or more years" is calculated for
purpose of qualifying for the historical average minimum; and (3) how the
historical average minimum is calculated for purposes of determining the average
annual beneficial use during the historical period.
"Operate a well" can essentially be interpreted to mean one of at least
two concepts: (1) the well is being supplied with energy, the pump is engaged,
and groundwater is emanating and being discharged from the well head; or (2)
the well is fully functionally and is capable of making withdrawals, but is
not in fact making withdrawals or is only intermittently making withdrawals
(these wells are sometimes referred to as well "capable of operation"). The
"operate a well" criteria has the purpose of determining eligibility for the
"historical average minimum" based on three or more years of operation. Because §
1.16 of the Act, among others, requires actual beneficial use of groundwater
from the aquifer during the historical period in order to be eligible to receive
an initial regular permit, the Authority interprets the phrase "operate a
well" as requiring a physical discharge of groundwater from the well as constituting
the operation of a well for purposes of the threshold determination of eligibility
of an existing user for the "historical average minimum."
As for the "three or more years" criteria, a year could mean either that
a well was operated for a full three or more years (i.e., 1095 or more continuous
or intermittent days) or that the operation of the well occurred at any time
in a year, albeit for a period of time less than a full year. Generally, water
users do not keep their water accounting records on a daily basis. Most water
use reporting is on an annual basis. Additionally, most water wells do not
operate on a continuous basis. There may be days when withdrawals from a well
are not required to be made. Accordingly, the Authority interprets "three
or more years" to mean that an applicant is required to have withdrawn groundwater
from a well and placed the water to a beneficial use in three or more years
during the historical period (even if it was for no more than one day within
a year).
As for the calculation of "average amount of water withdrawn annually during
the historical period," the Authority refers to standard definitions of an
"average" as constituting a single value that summarizes or represents the
general significance of a set of unequal values and being the quotient obtained
by dividing the sum total of a set of figures by the number of figures. See
WEBSTER'S COLLEGIATE DICTIONARY 80 (10th ed. 1997). The "number of figures"
for purposes of § 1.16(e) would be the total number of years during the
historical period inclusive of an after the date of initial installation of
the well, irrespective of whether withdrawals may have been made in any year.
The "sum total of a set of figures" would be the total aggregate withdrawals
during the historical period.
As for calculating the "historical average" as discussed above, the purpose
of § 1.16(e) in allowing for a "historical average minimum" is to recognize
as a minimum initial regular permit groundwater withdrawal amount the arithmetic
mean (as discussed above) of the aggregate water that is required on an annual
basis for the beneficial use requirements of an existing user. The actual
beneficial use requirement of an existing user would necessarily include both
low and high water use years. Moreover, the high years may be very high (as
long as the use was not wasteful), and the low years may be very low, even
including years in which there was no water use. However, these high and low
years would nonetheless be accurate representations of the actual beneficial
use requirements for an existing user in that particular year. Therefore,
for purposes of calculation of a "historical average," a year in which a well
that was capable of operation but did not in fact operate should be included
for purposes of calculating the average historical beneficial use.
The Act does not provide definitions for "operate a well" or "historical
average minimum." Because these terms are likely to be regularly used by the
Authority in its rules and in the general conducting of its procedures as
they relate to its permit program, as well as by the regulated community that
will interact with the Authority as an applicant or permittee, the Authority
has determined that it is useful to define these terms. Section 711.172(b)(1)
and (4) incorporates the concepts discussed upon in the factual basis discussed
above providing a rational connection between the factual basis and the final
rule as adopted.
The factual basis for the definition of "irrigator minimum" is derived
from the legislative facts contained in the Act. Section 1.16(e) provides
that existing irrigator users receive an initial regular permit for not less
than 2.0 acre-feet per acre for each acre actually irrigated in any one calendar
year during the historical period. During the historical period an irrigator
may have placed water to beneficial use for irrigation during the historical
period in four typical ways. First, the irrigator may have withdrawn groundwater
from a well owned by the irrigator and irrigated a place of use owned by the
irrigator. Second, the irrigator may have withdrawn groundwater from a well
owned by the irrigator and irrigated a place of use owned by a third party.
Third, the irrigator may have leased or assigned to a third-party the right
to withdraw groundwater from a well owned by the irrigator and the third-party
irrigated a place of use owned by the irrigator. Fourth, the irrigator may
have leased or assigned to a third-party the right to withdraw groundwater
from a well owned by the irrigator and the third-party irrigated a place of
use owned by the third-party. Additionally, a transferee of an application
for an initial regular permit may have relied on the placing to beneficial
use for irrigation purpose that may have been done by a contract user, prior
existing user or former existing user. The withdrawal of groundwater from
a well, or the irrigation of a place of use may have occurred lawfully with
the permission of the owner of the place of use, or unlawfully without such
permission. The Authority does not interpret the Act as requiring it to issue
an initial regular permit to a person who had no legal right to access either
the well or the place of use for irrigation purposes. As is discussed in the
definition of "existing user" in § 711.1(2), an existing user who may
be eligible for an "irrigator minimum" must also be the owner of the well
from which the place of use was irrigated. The Act does not provide a definition
for "irrigator minimum." Because this term is likely to be regularly used
by the Authority in its rules and in the general conducting of its procedures
as they relate to its permit program, as well as by the regulated community
that will interact with the Authority as an applicant or permittee, the Authority
has determined that it is useful to define this term. Section 711.172(b)(2)
incorporates the concepts discussed upon in the factual basis discussed above
providing a rational connection between the factual basis and the final rule
as adopted.
The factual basis for the definition of "maximum historical use" is derived
from the legislative facts contained in the Act. Section 1.16(e) provides
that "to the extent water is available for permitting, the board shall issue
the existing user a permit for withdrawal of an amount of water equal to the
user's maximum beneficial use of water without waste during any one calendar
year of the historical period." The Authority refers to this concept as "maximum
historical use." Section 1.16(e) also provides for the upward extrapolation
of an existing user's maximum historical use" if a water user does not have
historical use for a full year." Because irrigators are to receive an initial
regular permit in the amount of their "irrigator minimum" as discussed above,
irrigators generally do not claim "maximum historical use" other than the
2.0 acre-feet per year constituting the "irrigator minimum." The Act does
not provide a definition for "maximum historical use." Because this term is
likely to be regularly used by the Authority in its rules and in the general
conducting of its procedures as they relate to its permit program, as well
as by the regulated community that will interact with the Authority as an
applicant or permittee, the Authority has determined that it is useful to
define this term. Section 711.172(b)(2) incorporates the concepts discussed
upon in the factual basis discussed above thereby providing a rational connection
between the factual basis and the final rule as adopted.
The factual basis for the definition of "step-up amount" is derived from
the legislative facts contained in the Act. Section 1.16(e) provides for the
proportional adjustment of initial regular permits in the event that the aggregate
maximum historical uses exceeds the amount of groundwater available for permitting
(i.e. 450,000 acre-feet per annum). This section also provides for the minimum
initial regular permit amounts as discussed above: the irrigator minimum and
the historical average minimum. If the proportional adjustment process results
in adjusting an initial regular permit below the required minimum, then the
groundwater withdrawal amount in the permit must be adjusted back upwards
to the applicable minimum. The definition accounts for situations in which
an irrigator applicant qualifies for both the irrigator and historical average
minimums, by calculating the step-up amount as the difference between the
higher of the two minimums and the applicant's phase 1 proportionally adjusted
amount. The Authority refers to this upward adjustment as a "step-up amount."
The Act does not provide a definition for "step-up amount." Because this term
is likely to be regularly used by the Authority in it rules and in the general
conducting of its procedures as they relate to its permit program, as well
as by the regulated community that will interact with the Authority as an
applicant or permittee, the Authority has determined that it is useful to
define this term. Section 711.172(b)(2) incorporates these concepts in the
factual basis discussed above.
Section 1.16 (e) of the Act requires that initial regular permits be proportionally
adjusted in the event that the aggregate of all maximum historical uses of
groundwater from the aquifer exceeds 450,000 acre-feet per annum. The purpose
of this section is to provide a procedural mechanism to achieve the 450,000
acre-foot "cap." Subsection (c) of § 711.172 reflects this purpose.
Section 1.16(e) does not define the term "proportional." The Authority
refers to standard definitions of "proportional" as "having the same or a
constant ratio." See WEBSTER'S COLLEGIATE DICTIONARY 936 (10th ed. 1997).
Subsection (d) of 711.172 incorporates this definitional concept.
Section 1.16(e) of the Act requires that initial regular permits be proportionally
adjusted in the event that the aggregate maximum historical use of groundwater
from the aquifer exceeds 450,000 acre-feet per annum. The Authority has no
discretion in this regard. Section 1.16(e) mandates that the proportional
adjustment process be applied if the criteria in that section are satisfied.
Subsection (e) of § 711.172 incorporates this duty to proportionally
adjust.
Section 1.16(e), while requiring proportional adjustment under certain
circumstances, does not state what procedural device should be used by the
Authority to make the adjustment. Section 1.11(c) of the Act authorizes the
board to issues orders to enforce the Act and its rules. The board will issue
an order when it grants an application for an initial regular permit. Thus,
it is appropriate also to issue an order to accomplish a proportional adjustment.
The use of orders by governing bodies such as the board of directors of the
Authority is a common procedural tool to effectuate a regulatory action. Therefore,
subsection (f) of § 711.172 incorporates the concept of a proportional
adjustment order.
Section 1.16(e), while requiring proportional adjustment under certain
circumstances and giving some guidance, does not state in a detailed manner
how the Authority is to calculate the adjustment. A review of § 1.16(e)
reveals that several concepts and steps need to be set out in the calculation.
Under § 1.16(e) it will be necessary for the Authority to determine each
applicant's maximum historical use (MHU) during the historical period. The
board must also determine if an applicant qualifies for an "irrigator minimum"
or a "historical average minimum." Then, a proportional adjustment factor
(referred to by the Authority as a "phase-1 proportional adjustment factor"
or "PA-1 factor") will be calculated by subtracting 450,000 from the total
of all maximum historical uses (MHUs) and dividing the result by the total
of all MHUs. A "phase-1 proportionally adjusted amount" ("PA-1 Amount") will
then need to be calculated for each applicant by multiplying the applicant's
MHU times the PA-1 Factor and subtracting the product from the applicant's
MHU. In order to implement the duty to issue initial regular permits at an
irrigator minimum or an historical average minimum to an applicant who so
qualifies, the Authority will then need to compare the PA-1 Amount to the
minimum. If the PA-1 amount is less than the minimum, the Authority will then
determine a "step-up amount" (SUA) which will be equal to the difference between
the minimum and the PA-1 Amount. If, after the SUAs are made, the 450,000
"cap" will be exceeded (which the Authority estimates is likely), then the
Authority will need to pursue a "withdrawal reduction" program. Section 711.180,
discussed more fully below, discusses this program and will allow the Authority
to further reduce withdrawals by entering into agreed orders whereby initial
regular permit applicants may waive (possibly by selling to the Authority)
all or part of their applications for initial regular permits. If the "withdrawal
reduction" program is successful, then the 450,000 "cap" will have been met
and there will be no need to do a second proportional adjustment. If, despite
these waivers, the total of all PA-1 Amounts plus all SUAs still exceeds the
450,000 acre-feet cap, then a second proportional adjustment will need to
implemented by calculating a "Phase-2 proportional adjustment factor" (referred
to by the Authority as a "PA-2 Factor") by adding the totals of all remaining
PA-1 amounts and SUAs, subtracting 450,000 from the sum, and then dividing
the result by the totals of all remaining PA-1 amounts and SUAs. The second
proportionately adjusted amount (PA-2 Amount) will then be calculated for
each applicant as follows: for applicants eligible for an SUA, their PA-2
amount will be calculated by multiplying the PA-2 factor by their PA-1 and
SUA, and subtracting the result from the total of their PA-1 amount and SUA;
for those ineligible for an SUA, their PA-2 amount will be calculated by multiplying
the PA-2 factor by their PA-1 amount and subtracting the result from their
PA-1 amount. At this point, if not sooner, the 450,000 acre-foot cap will
have been met. Subsection (g) of § 711.172 incorporates these concepts
for the calculation of proportional adjustments under § 1.16(e) of the
Act. The approach meets the requirements of § 1.16 of the Act and provides
an integrated procedure that distributes the reduction of withdrawals among
the existing initial regular permits.
Section 1.14(d) of the Act provides that the "caps" may be raised under
certain circumstances. Section 1.21(c) of the Act allows for the "restoration"
of reduced amounts under certain circumstances. If the "cap" is raised it
will be necessary to identify how the additional groundwater available for
permitting will be allocated. Subsection (h) of 711.172 provides that if the
"cap" is raised, then the proportionately adjusted amounts will be restored
through the inverse application of this section.
Pursuant to § 1.21 (c) of the Act, §711.174 establishes the "equal
percentage reduction" process for the retirement of initial regular permits.
The equal percentage reduction requirement of the Act is triggered after January
1, 2008 if the overall volume of groundwater authorized to be withdrawn from
the aquifer under regular permits is greater than 400,000 acre-feet per year.
Under this requirement, the maximum authorized withdrawal of each regular
permit will be reduced by an equal percentage as necessary to reduce overall
maximum demand to 400,000 acre-feet per year or to an adjusted amount determined
under subsection (d) of § 1.14 of the Act. The equal percentage reduction
process only applies to initial regular permits. (This procedure also theoretically
applies to additional regular permits. However, because the Authority estimates
the aggregate of the irrigator and historical average minimums will exceed
the 450,000 "cap" there will likely be no water left that is available for
permitting of additional regular permits after all initial regular permits
have been issued.) The equal percentage reduction rules will be a subchapter
of the comprehensive water management plan implementation rules in chapter
715 of this title. These rules have not yet been proposed. Section 711.174
is a cross-reference in chapter 711 to those rules in chapter 715 as an aid
to those who may have an interest in that subject matter.
Section 1.16(e) provides for the various scenarios governing the groundwater
withdrawal amount to be issued in an initial regular permit. There are two
basic scenarios as follows: (1) the aggregate maximum historical use of all
applications for initial regular permits does not exceed the 450,000 acre-foot
"cap;" or (2) the aggregate maximum historical use does exceed the 450,000
acre-foot "cap." In the event of the first scenario, an applicant must receive
an initial regular permit in the amount of his "maximum historical use." In
the second scenario, which appears much more likely, proportional adjustment
under § 1.16(e) of the Act is triggered. Under this circumstance there
are six possible outcomes: (1) if an applicant does not qualify for an irrigator
or historical average minimum, and no phase-2 proportional adjustment is performed,
then the initial regular permit is issued in the phase-1 proportionally adjusted
amount; (2) if an applicant does not qualify for an irrigator or historical
average minimum, and a phase-2 proportional adjustment is performed, then
the initial regular permit is issued in the phase-2 proportionally adjusted
amount; (3) if an applicant does qualify for an irrigator or historical average
minimum, and no phase-2 proportional adjustment is performed, and the phase-1
proportionally adjusted amount is greater than the irrigator or historical
average minimum, as appropriate, then the initial regular permit is issued
in the phase-1 proportionally adjusted amount; (4) if an applicant does qualify
for an irrigator or historical average minimum, and no phase-2 proportional
adjustment is performed, and the phase-1 proportionally adjusted amount is
less than the irrigator or historical average minimum, as appropriate, then
the initial regular permit is issued, after step-up, in the amount of the
irrigator or historical average minimum; (5) if an applicant does qualify
for an irrigator or historical average minimum, a phase-2 proportional adjustment
is performed, and the phase-2 proportionally adjusted amount is greater than
the irrigator or historical average minimum, as appropriate, then the initial
regular permit is issued in the phase-2 proportionally adjusted amount; and
(6) if an applicant does qualify for an irrigator or historical average minimum,
a phase-2 proportional adjustment is performed, and the phase-2 proportionally
adjusted amount is less than the irrigator or historical average minimum,
as appropriate, then the initial regular permit is issued in the phase-2 proportionally
adjusted amount and the applicant is compensated by the Authority for the
fair market value of the difference between the applicant's PA-2 amount and
minimum. Section 711.176 sets forth these methods by which initial regular
permit amounts will be determined. In cases such as category (6), above, compensation
will be provided at the fair market value as defined in § 11.0275 of
the Texas Water Code. Section 711.176 is intended to normalize allocations
when the 450,000 acre-feet cap is not exceeded and in several contingency
options that derive from circumstances in which the aggregate cap is exceeded.
The section is needed because, based upon the Authority's extensive review
of the initial regular permit applications on file, it appears entirely possible
that the aggregate of the maximum historical uses will exceed the cap and
it even appears likely that the aggregate of all minimums will exceed the
cap. In order to meet its statutory duty to achieve the cap, the Authority
must implement measures to adjust permit amounts. In the event that withdrawals
derived under Phase-2 calculations cannot be authorized, compensation is provided
for.
Section 1.14(b) of the Act prohibits the Authority from issuing initial
regular permits in an aggregate amount that exceeds 450,000 acre-feet per
annum. The basic procedure provided by the Act to ensure that the aggregate
total does not exceed the "cap" is the proportional adjustment process contained
in § 1.16(e) of the Act. The Authority currently estimates that after
"stepping-up" the proportionally adjusted permits to their appropriate minimums,
the aggregate of the irrigator and historical average minimums will exceed
the "cap." Accordingly, the Authority will be required to "reduce withdrawals"
and, under § 129(a)(1) of the Act, those withdrawal reduction costs are
to be borne by existing users. One manner in which the Authority may "reduce
withdrawals" to the 450,000 acre-foot "cap" is to enter into agreements with
applicants that they may abandon or waive all or part of their application
for an agreed to compensation. By entering into such agreements at the application
phase (pre-permit issuance) rather than waiting until initial regular permits
have been issued (which the Authority cannot do if the "cap" is going to be
exceeded) the Authority will be able to affect the final aggregate groundwater
withdrawal amount in the initial regular permits. Section 711.180 provides
the procedural mechanism for this "withdrawal reduction" by the application
waiver approach to be realized.
Subchapter I
The Act requires the Authority to impose and enforce a number of restrictions,
limitations and other requirements upon the use of water from the aquifer.
Sections 711.220-711.234, Subchapter I of the Chapter 711 rules, impose a
number of prohibitions on aquifer use, including: requiring water withdrawn
from the aquifer to be used within the Authority's boundaries; limiting withdrawals
from new wells; requiring permits for most withdrawals and well construction;
requiring registration of exempt wells; requiring compliance with the Act,
the Authority's rules and the terms of Authority permits; and prohibiting
waste or pollution of the aquifer.
Section 711.220(a) generally requires that groundwater withdrawn from the
aquifer be used within the Authority's boundaries. This rule implements §
1.34(a) of the Act which states that aquifer water "must be used within the
boundaries of the Authority." Section 711.220(b) states that, for water processed
into or used to produce a commodity, the place of use is the plant site where
the commodity is produced. This portion of the rule is not found in the Act,
however, its creation is a necessary extension of subsection (a). Realizing
aquifer water will, at times, be used in the production of commodities, the
Authority has established a uniform rule that designates the site of production
as the place where aquifer water is used. It would not be practical to use
the destination point of commodities as the place of use; such a concept would
make it impossible for producers to market their products beyond the Authority's
boundaries.
Section 711.222 prohibits aquifer withdrawals from new wells unless the
withdrawals are from an exempt well, a permitted well, or a well identified
as a point of withdrawal in a transfer approved by the Authority. This rule
is based on § 1.15 of the Act which gives the Authority the power to
manage withdrawals from the aquifer and all withdrawal points from the aquifer.
Section 1.15 of the Act further states that unless exemptions apply, a person
"may not withdraw water from the aquifer . . . without obtaining a permit
from the Authority." The water management programs implemented by the Authority
in furtherance of the Act are based, in part, on the Authority's ability to
issue permits to control and manage aquifer withdrawals. Without this ability,
the Authority would not be able to carry out the statutory mandates set out
in the Act, such as the maximum permitted withdrawal levels. Section 711.222
will ensure that new well withdrawals are in compliance with the limitations
imposed by the Act.
Section 711.224(a) generally prohibits groundwater withdrawals without
a permit issued by the Authority unless otherwise excepted. This rule is derived
directly from § 1.35(a) of the Act which states that a person "may not
withdraw water from the aquifer except as authorized by a permit issued by
the Authority or by this article." While § 1.35(a) of the Act indicates
water may be withdrawn from the aquifer without a permit if authorized by
other provisions in the article, the Authority has included specific references
in § 711.224(a) to those provisions of the Act providing exceptions to
the permitting requirements. Therefore, the Authority has included in §
711.224(a) the exceptions from the permitting requirement provided in §§
1.15(b), 1.16(c), 1.17(a) and 1.33(a) and (c) of the Act and § 711.14
of this title (relating to Withdrawals Not Requiring a Groundwater Withdrawal
Permit).
Section 711.224(b) prohibits new well construction unless authorized pursuant
to a well construction permit. This provision is based on § 1.15(a) and
(b) of the Act which authorizes the Authority to manage all withdrawals from
the aquifer and states that a person may not "begin construction of a well
. . . for withdrawal of water from the aquifer without obtaining a permit
from the Authority." This section is further based on §36.119(a) of the
Texas Water Code which decrees that drilling a well without a required permit
is illegal. Under § 1.08(a) of the Act, chapter 52 of the Texas Water
Code is applicable to the Authority to the extent that it does not conflict
with the Act. Chapter 52 has since been repealed and recodified as chapter
36, Texas Water Code, which is now applicable to the Authority. See Act of
May 29, 1995, 74th Legislature, Regular Session, Chapter 933, sec. 2, 6, 1995
Texas General Laws 4673. Section 711.224(c) prohibits the operation of a well
at a higher rate of production than authorized in a withdrawal permit. The
foundation for this requirement is also located in § 36.119(a) of the
Texas Water Code which decrees that operating a well at a higher rate of production
than the rate approved for the well is illegal. Additional grounds for §
711.224(c) are found in § 1.15(d) of the Act which requires each permit
"specify the maximum rate and total volume of water" that may be withdrawn.
Implementing the concepts of § 36.119(a) of the Water Code and §
1.15 of the Act into § 711.224 will prevent unauthorized withdrawals
or levels of withdrawals from permitted wells as well as the construction
of unauthorized wells.
Section 711.226 prohibits operation of an exempt well unless the well has
been registered with the Authority. This rule implements § 1.33(b) of
the Act which states that exempt wells must register with the Authority. By
conditioning operation of an exempt well on the filing of the statutorily
mandated registration, the rule will ensure compliance with the Act.
Section 711.228 prohibits violations of the Act, the Authority's rules,
or the terms or conditions of a permit. This rule is derived from § 1.35(b)
of the Act which states that a person "may not violate the terms or conditions
of the permit." It is also derived from § 1.35(e) of the Act which states
that a person "may not violate this article or a rule of the Authority adopted
under this article." The adoption of this rule will enable the Authority to
use the enforcement powers authorized by § 1.36 of the Act which states
the Authority "may enter orders to enforce the terms and conditions of permits,
orders, or rules issued or adopted under this article." The purpose of §
711.228 is to deter violations. However, in the event a provision of the Act,
a rule adopted by the Authority, or the terms and conditions or a permit,
are violated, the Authority will have the ability to take enforcement action.
Section 711.230 prohibits the waste of groundwater within or withdrawn
from the aquifer. This rule is derived from § 1.35(c) of the Act which
expressly prohibits the waste of aquifer water. The establishment of a rule
prohibiting waste is further supported by § 1.08(a) of the Act which
states that the Authority "has all of the powers, rights, and privileges necessary
. . . to prevent the waste or pollution of water in the aquifer." The adoption
of this rule will enable the Authority to use the enforcement powers authorized
by § 1.36 of the Act which states the Authority "may enter orders to
enforce the terms and conditions of permits, orders, or rules issued or adopted
under this article." The purpose of § 711.230 is to deter violations.
However, in the event aquifer water is wasted in violation of this rule, the
Authority will have the ability to take enforcement action to stop the waste.
Section 711.232 prohibits the pollution of the aquifer. This provision
is based directly on § 1.35(d) of the Act which states that a "person
may not pollute or contribute to the pollution of the aquifer." The establishment
of a rule prohibiting pollution is further supported by § 1.08(a) of
the Act which states that the Authority "has all of the powers, right, and
privileges necessary . . . to prevent the waste or pollution of water in the
aquifer." The adoption of this rule will enable the Authority to use the enforcement
powers authorized by § 1.36 of the Act which states the Authority "may
enter orders to enforce the terms and conditions of permits, orders, or rules
issued or adopted under this article." The purpose of § 711.232 is to
deter pollution of the aquifer. However, in the event the aquifer is polluted
in violation of this rule, the Authority will have the ability to take enforcement
action to stop such action.
Section 711.234 identifies various practices declared to be nuisances.
These practices are: 1) wasting of aquifer water; 2) operation of a well at
a higher rate of production than the rate approved for the well; and 3) pollution
of the aquifer. This section is based, in part, on § 36.119(a) of the
Texas Water Code. Under § 1.08(a) of the Act, chapter 52 of the Texas
Water Code is applicable to the Authority to the extent that it does not conflict
with the Act. Chapter 52 has since been repealed and recodified as chapter
36, Texas Water Code, which is now applicable to the Authority. See Act of
May 29, 1995, 74th Legislature, Regular Session, Chapter 933, sec. 2, 6, 1995
Texas General Laws 4673. Chapter 36 of the Texas Water Code generally applies
to groundwater districts such as the Authority. Section 36.119(a) decrees
that operating a well at a higher rate of production than the rate approved
for the well is declared to be a nuisance. This concept is incorporated into §
711.234(2). Section 711.234(1) is based on § 11.092, Texas Water Code,
which states the wasteful use of water is a public nuisance. While this particular
rule applies to surface water, the Authority has determined it should be applied
to aquifer groundwater in an effort to protect those who use the water. Finally,
the Authority includes pollution or the contribution to the pollution of the
aquifer as a nuisance in § 711.234(3). This classification is supported
by Texas common law which defines a public nuisance as a condition that amounts
to an unreasonable interference with a right common to the general public.
By declaring waste, excessive production, and pollution of aquifer water
as nuisances, § 711.234 is intended to prevent the occurrence of these
practices which could endanger or cause harm to lawful users of the aquifer.
III. REGULATORY IMPACT ANALYSIS OF MAJOR ENVIRONMENTAL RULES.
Section 2001.0225 of the Texas Government Code requires an agency to perform,
under certain circumstances, a regulatory analysis of major environmental
rules ("RIAMER"). There are two primary components that must be met before
a RIAMER is required. First, no RIAMER need be prepared if the rules in question
are not "major environmental rules" or "MERs." Second, even if the rules are
MERs, no RIAMER need be prepared if adoption of the MERs would not result
in any one of the following criteria listed in § 2001.0225(a)(1)-(4):
1. the MER would "exceed" a standard set by federal law, unless the MER
is specifically required by state law;
2. the MER would "exceed" an express requirement of state law, unless the
MER is specifically required by federal law;
3. the MER would "exceed" a requirement of a delegation agreement or contract
between the state and an agency or representative of the federal governmental
to implement a state and federal program; or
4. the MER is adopted solely under the "general powers" of the agency instead
of under a specific state law.
The following analysis examines whether a RIAMER is required for any of
the rules on a subchapter by subchapter basis.
Analysis of Subchapter A
The Authority has determined that none of the rules in Subchapter A of
31 TAC - § 711.1 (the "Subchapter A Rules") are "major environmental
rules" as that term is defined by §2001.0225(g)(3) of the Texas Government
Code. The Subchapter A rules set forth the definitions that will apply to
all rules issued by the Authority in Chapter 711. These rules have been written
to provide uniform definitions for words and phrases that are expected to
be used consistently throughout Chapter 711. They are intended to provide
useful "short-hand" to reduce the amount of cumbersome regulatory language
necessary in other Authority rules, thus allowing for a more efficient understanding
and operation of other rules of the Authority. The definitions have no regulatory
import outside of their incorporation in substantive rules that may be found
elsewhere in Chapter 711. Because they do not have the specific intent to
protect the environment or reduce risks to human health from environmental
exposure, they are not MERs.
Further, even if any of the Subchapter A rules were MERs, no RIAMER need
be prepared for those rules because none of the rules in Subchapter A meet
any of the criteria listed in APA § 2001.0225(a)(1)-(4). First, the rules
do not exceed a standard set by federal law. The only reasonably related federal
law establishes the Sole Source Aquifer Program implemented by the EPA for
portions of the Edwards Aquifer, which applies only to federally-funded projects
conducted on the aquifer. Under that program, no federal financial assistance
may be made to projects that the EPA determines may contaminate the Edwards
Aquifer so as to create a significant hazard to public health. There is no
federal law that specifically requires definitions such as those contained
in the Subchapter A rules. Therefore, the Subchapter A rules do not exceed
a standard set by federal law.
Second, the Subchapter A rules do not exceed an express requirement of
state law. Instead, the rules are designed to carry out the Authority's statutory
responsibility to: manage, conserve, preserve and protect the aquifer, adopt
rules to carry out its powers and duties under the Act, to regulate permits,
manage withdrawals and points of withdrawals from the aquifer, require various
types of permits for certain withdrawals, allow for interim authorization
withdrawals prior to permit issuance, impose various conditions and restrictions
on aquifer use, require that aquifer use be limited to beneficial uses, prohibit
waste of aquifer water, and regulate transfers of aquifer rights (pursuant
to,
inter alia,
§§ 1.03(4), (10)
and (21), 1.08(a), 1.11(a) and (b), 1.14, 1.15, 1.16, 1.17 and 1.34 of the
Act). The rules are designed to comply with these express requirements of
state law and not exceed them. There are no other applicable "express requirements
of state law" which are exceeded by these rules.
Third, the Subchapter A rules do not exceed a requirement of a delegation
agreement or contract between the State of Texas and an agency or representative
of the federal government to implement a state and federal program. The subject
matter of the rules is not covered by any delegation agreement or contract
between the state and an agency or representative of the federal government
to implement a state and federal program.
Fourth, the Subchapter A rules would not be adopted solely under the general
powers of the Authority instead of under a specific state law. While these
rules are adopted in part under the Authority's general powers, they are also
adopted under the Act. In particular, the rules are adopted pursuant to,
Analysis of Subchapter B Rules
With respect to Subchapter B of 31 TAC, §§ 711.10 - 711.14 (the
"Subchapter B Rules"), the Authority has determined that only § 711.12
is a "major environmental rule" as that term is defined by §1.0225(g)(3)
of the Texas Government Code because it has the specific intent to protect
the environment. The Subchapter B rules generally set forth the activities
for which a permit from the Authority is required. The other Subchapter B
rules do not have the specific intent to protect the environment or reduce
risks to human health from environmental exposure and are, therefore, not
MERs.
Further, no RIAMER need be prepared for any of the Subchapter B rules because
none of the rules in Subchapter B meet any of the criteria listed in APA §
2001.0225(a)(1)-(4). First, the rules do not exceed a standard set by federal
law. The only reasonably related federal law establishes the Sole Source Aquifer
Program implemented by the EPA for portions of the Edwards Aquifer, which
applies only to federally-funded projects conducted on the aquifer. Under
that program, no federal financial assistance may be made to projects that
the EPA determines may contaminate the Edwards Aquifer so as to create a significant
hazard to public health. There is no federal law that specifically requires
permitting for withdrawals of Edwards Aquifer groundwater, or for well construction
or related work. Therefore, the Subchapter B rules do not exceed a standard
set by federal law. Moreover, even if the rules did exceed a standard set
by federal law, the rules are specifically required by the Act, a state law
which requires the Authority to, among other things: manage, conserve, preserve
and protect the aquifer; adopt rules to carry out its powers and duties under
the Act; regulate permits, manage withdrawals and points of withdrawals from
the aquifer; require various types of permits for certain withdrawals and
well construction; and protect the quality of the water within the aquifer
(pursuant to,
inter alia,
§§ 1.08(a),
1.11(a), (b) and (d), 1.14 and 1.15 of the Act).
Second, the Subchapter B rules do not exceed an express requirement of
state law. Instead, the rules are designed to carry out the Authority's statutory
responsibility to: manage, conserve, preserve and protect the aquifer, adopt
rules to carry out its powers and duties under the Act, to regulate permits,
manage withdrawals and points of withdrawals from the aquifer, require various
types of permits for certain withdrawals and well construction, and protect
the quality of the water within the aquifer (pursuant to,
inter alia
§§ 1.08(a), 1.11(a), (b) and (d), 1.14 and 1.15
of the Act). The rules are designed to comply with these express requirements
of state law and not exceed them. Other than the Act, there are no other "express
requirements of state law" which could be exceeded by these rules.
Third, the Subchapter B rules do not exceed a requirement of a delegation
agreement or contract between the State of Texas and an agency or representative
of the federal government to implement a state and federal program. The subject
matter of the rules is not covered by any delegation agreement or contract
between the state and an agency or representative of the federal government
to implement a state and federal program.
Fourth, the Subchapter B rules would not be adopted solely under the general
powers of the Authority instead of under a specific state law. While these
rules are adopted in part under the Authority's general powers, they are also
adopted under the Act, a specific state law regarding the Edwards Aquifer.
In particular, the rules are adopted pursuant to,
inter alia,
§§ 1.08(a), 1.11(a), (b) and (d), 1.14 and 1.15
of the Act, which require the Authority to, among others: manage, conserve,
preserve and protect the aquifer; adopt rules to carry out its powers and
duties under the Act; regulate permits, manage withdrawals and points of withdrawals
from the aquifer; require various types of permits for certain withdrawals
and well construction; and protect the quality of the water within the aquifer.
For these reasons, it is not necessary to perform a RIAMER on the Subchapter
B rules.
Analysis of Subchapter E
The Subchapter E rules of 31 TAC, §§ 711.90-711.118 (the "Subchapter
E Rules") would implement the Authority's permitting program by essentially
setting forth: the categories of permits issued by the Authority, the conditions
governing how and when such permits could be issued, the quantity of and conditions
under which water could be withdrawn or wells constructed pursuant to such
permits, the duration of such permits, the required contents of permit applications,
and the rights and limitations associated with being the holder of such permits.
Because these rules impose limits on the legal authority to withdraw groundwater
which did not exist under the common law, they would tend to have an environmental
protection aspect. Therefore, Subchapter E rules are probably MERs because
they have the specific intent to "protect the environment."
However, no RIAMER need be prepared for any of the Subchapter E rules because
none of them meet any of the criteria listed in APA § 2001.0225(a)(1)-(4).
First, the rules do not exceed a standard set by federal law. The only reasonably
related federal law establishes the Sole Source Aquifer Program implemented
by the EPA for portions of the Edwards Aquifer, which applies only to federally-funded
projects conducted on the aquifer. There is no federal law that specifically
requires permitting for withdrawals of Edwards Aquifer groundwater or for
construction of Edwards Aquifer wells. Therefore, the Subchapter E rules do
not exceed a standard set by federal law. Moreover, even if the rules did
exceed a standard set by federal law, the rules are specifically required
by state law which requires the Authority to manage, conserve, preserve and
protect the aquifer, adopt rules to carry out its powers and duties under
the Act, to regulate permits, manage withdrawals and points of withdrawals
from the aquifer, require various types of permits for certain withdrawals
and well construction, and specify withdrawal amounts pursuant to those permits
(pursuant to,
inter alia,
§§ 1.03(9),
(11), (12), (13) and (14), 1.08(a), 1.11(a) and (b), 1.14, 1.15, 1.16, 1.18,
1.19, 1.20 and 1.33(a), (b) and (c) of the Act).
Second, the Subchapter E rules do not exceed an express requirement of
state law. Instead, the rules are designed to carry out the Authority's statutory
responsibility to manage, conserve, preserve and protect the aquifer, adopt
rules to carry out its powers and duties under the Act, to regulate permits,
manage withdrawals and points of withdrawals from the aquifer, require various
types of permits for certain withdrawals and well construction, and specify
withdrawal amounts pursuant to those permits (pursuant to,
inter alia,
§§ 1.03(9), (11), (12), (13) and (14), 1.08(a),
1.11(a) and (b), 1.14, 1.15, 1.16, 1.18, 1.19, 1.20 and 1.33(a), (b) and (c)
of the Act). The rules are designed to comply with these express requirements
of state law and not exceed them. Other than the Act, there are no other "express
requirements of state law" which are applicable to these rules or which could
be exceeded by these rules.
Third, the Subchapter E rules do not exceed a requirement of a delegation
agreement or contract between the State of Texas and an agency or representative
of the federal government to implement a state and federal program. The subject
matter of the rules is not covered by any delegation agreement or contract
between the state and an agency or representative of the federal government
to implement a state and federal program.
Fourth, the Subchapter E rules would not be adopted solely under the general
powers of the Authority instead of under a specific state law. While these
rules are adopted in part under the Authority's general powers, they are also
adopted under the Act, a specific state law regarding the Edwards Aquifer.
In particular, the rules are adopted pursuant to,
inter alia
§§ 1.03(9), (11), (12), (13) and (14), 1.08(a),
1.11(a) and (b), 1.14, 1.15, 1.16, 1.18, 1.19, 1.20 and 1.33(a), (b) and (c)
of the Act, which require the Authority to manage, conserve, preserve and
protect the aquifer, adopt rules to carry out its powers and duties under
the Act, to regulate permits, manage withdrawals and points of withdrawals
from the aquifer, require various types of permits for certain withdrawals
and well construction, and specify withdrawal amounts pursuant to those permits.
For these reasons, it is not necessary to perform a RIAMER on the Subchapter
E rules.
Analysis of Subchapter F
The Act requires the Authority to implement a permitting system. At the
same time, the Act imposes a number of restrictions, limitations and other
requirements upon the withdrawal of water from the Edwards Aquifer. The Subchapter
F rules of 31 TAC, §§ 711.130-711.134 (the "Subchapter F Rules")
would harmonize these provisions of the Act by clarifying that holders of
groundwater withdrawal permits must comply with a number of conditions, including:
avoiding actions that adversely affect water quality, or threatened or endangered
aquifer-dependent species; complying with other Authority rules, including
rules designed to protect water quality, conserve water, maximize beneficial
use of water, protect aquatic and wildlife habitat and threatened or endangered
species, and protect instream uses, bays and estuaries; and complying with
the Act. Because these rules impose limits on the legal authority to withdraw
groundwater which did not exist under the common law, they would tend to have
an environmental protection aspect. Therefore, the Subchapter F rules are
probably MERs because they have the specific intent to "protect the environment."
However, no RIAMER need be prepared for any of the Subchapter F rules because
none of them meet any of the criteria listed in APA § 2001.0225(a)(1)-(4).
First, the rules do not exceed a standard set by federal law. The only reasonably
related federal law establishes the Sole Source Aquifer Program implemented
by the EPA for portions of the Edwards Aquifer, which applies only to federally-funded
projects conducted on the aquifer. There is no federal law that specifically
requires permitting for withdrawals of Edwards Aquifer groundwater or for
construction of Edwards Aquifer wells, or which imposes conditions upon such
permits akin to those found in the Subchapter F rules. Therefore, the Subchapter
F rules do not exceed a standard set by federal law. Moreover, even if the
rules did exceed a standard set by federal law, the rules are specifically
required by the Act, a state law which requires the Authority to, among other
things: manage, conserve, preserve and protect the aquifer; adopt rules to
carry out its powers and duties under the Act; regulate permits; manage withdrawals
and points of withdrawals from the aquifer; require various types of permits
for certain withdrawals and well construction; develop and implement a demand
management plan; close abandoned, wasteful or dangerous wells; regulate well
construction, operation, maintenance and closure; ensure adequate springflows;
protect threatened and endangered species; provide notice to permit holders
of the limitations provided by the Act; retire permits to reduce withdrawals;
implement water conservation and reuse measures; acquire permitted rights
for aquifer management purposes; require water conservation and reuse plans;
implement a conservation management plan, a demand management plan, and a
critical period management plan; limit transport of water out of Uvalde and
Medina Counties; impose fees; regulate withdrawals of water from the Guadalupe
River in lieu of aquifer withdrawals; require meters on aquifer wells; require
water use reports; and regulate transfers of aquifer rights (pursuant to,
Second, the Subchapter F rules do not exceed an express requirement of
state law. Instead, the rules are designed to carry out the Authority's statutory
responsibility to, among other things: manage, conserve, preserve and protect
the aquifer; adopt rules to carry out its powers and duties under the Act;
regulate permits; manage withdrawals and points of withdrawals from the aquifer;
require various types of permits for certain withdrawals and well construction;
develop and implement a demand management plan; close abandoned, wasteful
or dangerous wells; regulate well construction, operation, maintenance and
closure; ensure adequate springflows; protect threatened and endangered species;
provide notice to permit holders of the limitations provided by the Act; retire
permits to reduce withdrawals; implement water conservation and reuse measures;
acquire permitted rights for aquifer management purposes; require water conservation
and reuse plans; implement a conservation management plan; a demand management
plan, and a critical period management plan; limit transport of water out
of Uvalde and Medina Counties; impose fees; regulate withdrawals of water
from the Guadalupe River in lieu of aquifer withdrawals; require meters on
aquifer wells; require water use reports; and regulate transfers of aquifer
rights (pursuant to,
inter alia,
§§
1.07, 1.08(a), 1.10(i)(1) and (2), 1.11(a), (b), (d)(8), (d)(10), and (d)(11),
1.14, 1.15, 1.16, 1.17, 1.21, 1.22, 1.23(a), 1.25, 1.26, 1.28(b), 1.29, 1.30,
1.31, 1.32, 1.34, 1.35, and 1.36 of the Act). The rules are designed to comply
with these express requirements of state law and not exceed them. There are
no other "express requirements of state law" which are applicable to these
rules or which could be exceeded by these rules.
Third, the Subchapter F rules do not exceed a requirement of a delegation
agreement or contract between the State of Texas and an agency or representative
of the federal government to implement a state and federal program. The subject
matter of the rules is not covered by any delegation agreement or contract
between the state and an agency or representative of the federal government
to implement a state and federal program.
Fourth, the Subchapter F rules would not be adopted solely under the general
powers of the Authority instead of under a specific state law. While these
rules are adopted in part under the Authority's general powers, they are also
adopted under the Act, a specific state law regarding the Edwards Aquifer.
In particular, the rules are adopted pursuant to,
inter alia,
§§ 1.07, 1.08(a), 1.10(i)(1) and (2), 1.11(a),
(b), (d)(8), (d)(10) and (d)(11), 1.14, 1.15, 1.16, 1.17, 1.21, 1.22, 1.23(a),
1.25, 1.26, 1.28(b), 1.29, 1.30, 1.31, 1.32, 1.34, 1.35, and 1.36 of the Act,
which require the Authority to, among other things: manage, conserve, preserve
and protect the aquifer; adopt rules to carry out its powers and duties under
the Act; regulate permits; manage withdrawals and points of withdrawals from
the aquifer; require various types of permits for certain withdrawals and
well construction; develop and implement a demand management plan; close abandoned,
wasteful or dangerous wells; regulate well construction, operation, maintenance
and closure; ensure adequate springflows; protect threatened and endangered
species; provide notice to permit holders of the limitations provided by the
Act; retire permits to reduce withdrawals; implement water conservation and
reuse measures; acquire permitted rights for aquifer management purposes;
require water conservation and reuse plans; implement a conservation management
plan, a demand management plan, and a critical period management plan; limit
transport of water out of Uvalde and Medina Counties; impose fees; regulate
withdrawals of water from the Guadalupe River in lieu of aquifer withdrawals;
require meters on aquifer wells; require water use reports; and regulate transfers
of aquifer rights. For these reasons, it is not necessary to perform a RIAMER
on the Subchapter F rules.
Analysis of Subchapter G
The Act requires the Authority to implement a permitting system. The Act
also imposes two "caps" which limit the aggregate amount of certain permitted
withdrawals which may be issued by the Authority. Specifically, the Act mandates
that, initially, total permitted withdrawals may not exceed 450,000 acre-feet
per year and, after January 1, 2008, total permitted withdrawals may not exceed
400,000 acre-feet per year. In the absence of these "caps," total permitted
withdrawals might exceed the cap amounts. Therefore, the Act requires the
Authority to "proportionally adjust" permit amounts to reach the 450,000 acre-feet
cap, and implement "equal percentage reductions" in order to reach the 400,000
acre-feet cap. The Act also imposes several permit "minimums" applicable to
certain initial regular permit holders. The Subchapter G rules of 31 TAC, §§
711.160-711.180 (the "Subchapter G Rules") would implement these provisions
of the Act by establishing the amount of groundwater available for permitting,
explaining which types of permits are subject to the caps, implementing a
method of calculating the permit minimums, and setting out the procedures
for carrying out "proportional adjustment" and "equal percentage reductions."
Because the Subchapter G rules implement caps on the aggregate amounts
of groundwater withdrawal permits, and provide for proportional adjustment,
and equal percentage reductions of permits, this subchapter would tend to
have an environmental protection aspect. Therefore, the Subchapter G rules
are probably MERs because they have the specific intent to "protect the environment."
However, no RIAMER need be prepared for any of the Subchapter G rules because
none of them meet any of the criteria listed in APA § 2001.0225(a)(1)-(4).
First, the rules do not exceed a standard set by federal law. The only reasonably
related federal law establishes the Sole Source Aquifer Program implemented
by the EPA for portions of the Edwards Aquifer, which applies only to federally-funded
projects conducted on the aquifer. There is no federal law that specifically
requires permitting for withdrawals of Edwards Aquifer groundwater or limits
the maximum amount which can be withdrawn pursuant to those permits. Therefore,
the Subchapter G rules do not exceed a standard set by federal law. Moreover,
even if the rules did exceed a standard set by federal law, the rules are
specifically required by the Act, a state law which requires the Authority
to, among other things: manage, conserve, preserve and protect the aquifer;
adopt rules to carry out its powers and duties under the Act; regulate permits;
manage withdrawals and points of withdrawals from the aquifer; require various
types of permits for certain withdrawals; limit permitted withdrawals to achieve
the caps and protect the aquifer; proportionately adjust, if necessary, to
meet the 450,000 acre-feet cap; implement the permit minimums; and conduct
equal percentage reduction, if necessary, to meet the 400,000 acre-feet cap
(pursuant to,
inter alia,
§§ 1.08(a),
1.11(a) and (b), 1.14, 1.15, 1.16, 1.18, 1.19, 1.20, 1.21, and 1.44 of the
Act).
Second, the Subchapter G rules do not exceed an express requirement of
state law. Instead, the rules are designed to carry out the Authority's statutory
responsibility to, among other things: manage, conserve, preserve and protect
the aquifer; adopt rules to carry out its powers and duties under the Act;
regulate permits; manage withdrawals and points of withdrawals from the aquifer;
require various types of permits for certain withdrawals; limit permitted
withdrawals to achieve the caps and protect the aquifer; proportionately adjust,
if necessary, to meet the 450,000 acre-feet cap; implement the permit minimums;
and conduct equal percentage reduction, if necessary, to meet the 400,000
acre-feet cap (pursuant to,
inter alia,
§§
1.08(a), 1.11(a) and (b), 1.14, 1.15, 1.16, 1.18, 1.19, 1.20, 1.21, and 1.44
of the Act). The rules are designed to comply with these express requirements
of state law and not exceed them. There are no other "express requirements
of state law" which could be exceeded by these rules.
Third, the Subchapter G rules do not exceed a requirement of a delegation
agreement or contract between the State of Texas and an agency or representative
of the federal government to implement a state and federal program. The subject
matter of the rules is not covered by any delegation agreement or contract
between the state and an agency or representative of the federal government
to implement a state and federal program.
Fourth, the Subchapter G rules would not be adopted solely under the general
powers of the Authority instead of under a specific state law. While these
rules are adopted in part under the Authority's general powers, they are also
adopted under the Act, a specific state law regarding the Edwards Aquifer.
In particular, the rules are adopted pursuant to,
inter alia,
§§ 1.08(a), 1.11(a) and (b), 1.14, 1.15, 1.16,
1.18, 1.19, 1.20, 1.21, and 1.44 of the Act, which require the Authority to,
among other things: manage, conserve, preserve and protect the aquifer; adopt
rules to carry out its powers and duties under the Act; regulate permits;
manage withdrawals and points of withdrawals from the aquifer; require various
types of permits for certain withdrawals; limit permitted withdrawals to achieve
the caps and protect the aquifer; proportionately adjust, if necessary, to
meet the 450,000 acre-feet cap; implement the permit minimums; and conduct
equal percentage reduction, if necessary, to meet the 400,000 acre-feet cap.
For these reasons, it is not necessary to perform a RIAMER on the Subchapter
G rules.
Analysis of Subchapter I
The Act requires the Authority to impose and enforce a number of restrictions,
limitations and other requirements upon the use of water from the aquifer.
The Subchapter I rules of 31 TAC,- §§ 711.220-711.234 (the "Subchapter
I Rules") impose a number of prohibitions on aquifer use, including: requiring
water withdrawn from the aquifer to be used within the Authority's boundaries;
limiting withdrawals from new wells; requiring permits for most withdrawals
and well construction; requiring registration of exempt wells; requiring compliance
with the Act, the Authority's rules and the terms of Authority permits; and
prohibiting waste or pollution of the aquifer.
The Authority has determined that §§711.222, 711.224, 711.230,
and 711.232 have the specific intent to protect the environment and are, therefore,
probably MERs. The other Subchapter I rules do not have the specific intent
to protect the environment or reduce risks to human health from environmental
exposure and are, therefore, not MERs.
However, no RIAMER need be prepared for any of the Subchapter I rules because
none of them meet any of the criteria listed in APA § 2001.0225(a)(1)-(4).
First, the rules in Subchapter I do not exceed a standard set by federal law.
The only reasonably related federal law establishes the Sole Source Aquifer
Program implemented by the EPA. There is no federal law that specifically
imposes restrictions akin to those in the Subchapter I rules. Therefore, the
Subchapter I rules do not exceed a standard set by federal law. Moreover,
even if the rules did exceed a standard set by federal law, the rules are
specifically required by the Act, a state law which requires the Authority
to, among other things: manage, conserve, preserve and protect the aquifer;
adopt rules to carry out its powers and duties under the Act; regulate permits,
manage withdrawals and points of withdrawals from the aquifer; limit withdrawals
from new wells; prohibit transfers of water outside the Authority's boundaries;
require compliance with permits, the Act, and Authority rules; and prohibit
waste and pollution of the aquifer (pursuant to,
inter alia
1.08(a), 1.11(a) and (b), 1.14(e), 1.15(a), 1.34(a), and
1.35 of the Act).
Second, the Subchapter I rules do not exceed an express requirement of
state law. Instead, the rules are designed to carry out the Authority's statutory
responsibility to: manage, conserve, preserve and protect the aquifer, adopt
rules to carry out its powers and duties under the Act, regulate permits;
manage withdrawals and points of withdrawals from the aquifer, limit withdrawals
from new wells, prohibit transfers of water outside the Authority's boundaries,
require compliance with permits, the Act, and Authority rules, and prohibit
waste and pollution of the aquifer (pursuant to,
inter alia
§§ 1.08(a), 1.11(a) and (b), 1.14(e), 1.15(a),
1.34(a), and 1.35 of the Act). The rules are designed to comply with these
express requirements of state law and not exceed them. Other than the Act,
there are no other "express requirements of state law" which could be exceeded
by these rules.
Third, the Subchapter I rules do not exceed a requirement of a delegation
agreement or contract between the State of Texas and an agency or representative
of the federal government to implement a state and federal program. The subject
matter of the rules is not covered by any delegation agreement or contract
between the state and an agency or representative of the federal government
to implement a state and federal program.
Fourth, the Subchapter I rules would not be adopted solely under the general
powers of the Authority instead of under a specific state law. While these
rules are adopted in part under the Authority's general powers, they are also
adopted under the Act, a specific state law regarding the Edwards Aquifer.
In particular, the rules are adopted pursuant to,
inter alia,
§§ 1.08(a), 1.11(a) and (b), 1.14(e), 1.15(a),
1.34(a), and 1.35 of the Act, which require the Authority to, among other
things: manage, conserve, preserve and protect the aquifer; adopt rules to
carry out its powers and duties under the Act; regulate permits; manage withdrawals
and points of withdrawals from the aquifer; limit withdrawals from new wells;
prohibit transfers of water outside the Authority's boundaries; require compliance
with permits, the Act, and Authority rules; and prohibit waste and pollution
of the aquifer. For these reasons, it is not necessary to perform a RIAMER
on the Subchapter I rules.
IV. TEXAS PRIVATE REAL PROPERTY RIGHTS PRESERVATION ACT.
Chapter 2007 of the Texas Government Code, also known as the "Texas Private
Real Property Rights Preservation Act" ("TPRPRA"), requires governmental entities,
under certain circumstances, to prepare a TIA in connection with certain covered
categories of proposed governmental actions. Based on the following reasons,
the Authority has determined that it need not prepare a TIA in connection
with the adoption of these rules.
First, the Authority has made a "categorical determination" that these
Chapter 711 rules do not affect vested property rights and, as such, adoption
of these rules is not an action that "may result in a taking." The rules at
issue here implement a permitting program for the withdrawal of water from
the Edwards Aquifer. The Act requires the Authority to implement a permitting
system whereby existing users and other potential users of aquifer water may
apply for and receive permits issued by the Authority allowing for the withdrawal
of groundwater from the aquifer. Other types of permits are also required
by the Act for well construction and related work. Certain other withdrawals
are exempted by the Act from permitting requirements. The Act also specifies
an interim authorization period prior to the issuance by the Authority of
final permits during which certain existing users of the aquifer may continue
to make withdrawals. The Act imposes a number of restrictions upon the use
of the aquifer during the interim authorization period as well as after permits
are issued. It also places limits on the ability to transfer permitted or
interim authorization rights. These rules are intended to effectuate these
various components of the Act.
TPRPRPA makes it clear that a TIA need only be performed when the proposed
governmental action is one that "may result in a taking." See id., §§
2007.043(a), 2007.041(a), 2007.042(a). If an action is one that has no potential
to result in a taking, then no TIA need be performed. Adoption of the rules
at issue here is not an action that "may result in a taking" for two reasons.
The rules cannot result in the taking of a vested private real property right.
Traditional takings doctrine dictates that, in order to constitute a compensable
taking, the property right alleged to have been "taken" must rise to the level
of a vested right. Prior to the adoption of the Act, a landowner's right to
pump groundwater underlying his or her property derived from the common law
English Rule, also known as the "Rule of Capture." The rules implement a permitting
structure which is admittedly at odds with the Rule of Capture. However, a
landowner's common law Rule of Capture right does not rise to the level of
a vested property right. Under the common law, water underlying a landowner's
property may be reduced to possession by the pumping of another. In other
words, a landowner has no right to exclude others from the water underlying
his land. As such, the landowner's expectancy of water does not rise to the
level of a vested property right which could be "taken" by the passage of
these rules and passage of these rules is not an action that may result in
a taking.
Additionally, with respect to Edwards Aquifer water, any common law rights
a landowner may have had in the past have been effectively abolished by the
Legislature within the boundaries of the EAA by the passage of the Act. Under
the old common law, a landowner was essentially free to drill a well and pump
as much water as he pleased for whatever use and location of use he pleased.
Passage of the Act changed the rules within the boundaries of the EAA. The
basis for the right to withdraw groundwater under the Act changed from being
an incident of the ownership of land to one based on use during the statutorily-defined
"historical period." See Act § 1.16. Excluding "exempt" wells, a landowner
must now obtain a permit prior to drilling a well and making withdrawals,
and this permit may be issued only if there is "water available for permitting"
or if certain aquifer conditions are met. Id. §§ 1.14, 1.15, 1.16,
1.18 and 1.19. The rate and total quantity of withdrawals are subject to limitation.
Id. § 1.15(d). Regulation under the Act leaves no room for the common
law to operate within the boundaries of the EAA with respect to Edwards Aquifer
groundwater. As a result, there are no vested property rights which could
be taken by the passage of these rules and no TIA need be prepared.
Second, the Authority's action in adopting these rules is an action that
is reasonably taken to fulfill an obligation mandated by state law and is
thus excluded from the Texas Private Real Property Rights Preservation Act
under § 2007.003(b)(4) of the Texas Government Code. See §§
1.03(4), (9) - (14), (21), 1.07, 1.08(a), 1.10(i)(1), (2), 1.11(a), (b), (d)(2),
(8), (10), (11), (h), 1.14(a) - (f), (h), 1.15(a) - (d), 1.16(a), (c) - (h),
1.17(a) - (d), 1.18, 1.19, 1.20, 1.21, 1.22(a)(1)-(4), 1.23(a), 1.25, 1.26,
1.28(b), 1.29, 1.31, 1.32, 1.33, 1.34, 1.35, 1.36 of the Act, §§
36.101(a), 36.111, 36.113, 36.1131, 36.119(a), 49.211(a), and 49.221 of the
Texas Water Code, and § 2001.004(1) of the APA.
This conclusion is directly supported and controlled by the decision in
Third, it is the position of the Authority that all valid actions of the
Authority are excluded from the Texas Private Real Property Rights Preservation
Act under § 2007.003(b)(11)(C) of the Texas Government Code as actions
of a political subdivision taken under its statutory authority to prevent
waste or protect the rights of owners of interest in groundwater. Accordingly,
a TIA need not be prepared in connection with the proposal of these rules.
Fourth, it is the position of the Authority that the adoption of these
rules constitutes an action taken by a governmental entity to "to prohibit
or restrict a condition or use of private real private real property if the
governmental entity proves that the condition or use constitutes a public
or private nuisance as defined by background principles of nuisance and property
law of this state." Texas Government Code Annotated, § 2007.003(b)(6).
Fifth, it is the position of the Authority that the adoption of these rules
constitutes an action which: "(A) is taken in response to a real and substantial
threat to public health and safety; (B) is designed to significantly advance
the health and safety purpose; and (C) does not impose a greater burden than
is necessary to achieve the health and safety purpose." Texas Government Code
Annotated, § 2007.003(b)(13). Accordingly, for the reasons stated above,
a TIA need not be performed in connection with the proposal of these rules.
V. SUMMARY OF PUBLIC COMMENTS.
Five public hearings were held on the Chapter 711 rules and other rules
proposed by the Authority on: Wednesday, August 9, 2000, at 6:00 p.m. at the
Conference Center of the Edwards Aquifer Authority, 1615 N. St. Mary's Street,
San Antonio, Texas; Tuesday, August 15, 2000 at 6:00 p.m. at the New Braunfels
Civic Center, 380 S. Seguin Avenue, New Braunfels, Texas; August 17, 2000
at 6:00 p.m. at St. Paul's Lutheran Church, 1303 Avenue M, Hondo, Texas; Tuesday,
August 22, 2000 at 6:00 p.m. at the Sgt. Willie De Leon Civic Center, 300
E. Main Street in Uvalde, Texas; and Thursday August 24, 2000 at the San Marcos
Activities Center, 501 E. Hopkins, San Marcos, Texas.
At those hearings, public comments were received on the proposed Chapter
711 rules. In addition, written comments were received from members of the
public regarding Chapter 711. The public comment period closed on September
11, 2000. Oral and/or written comments were provided by Inland Ocean, Inc.
("Inland"); Fulbright & Jaworski, L.L.P. on behalf of Vulcan Materials
Co. ("Vulcan"); San Antonio Water System ("SAWS"); Earl & Brown ("Earl &
Brown"); Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, L.L.P.
on behalf of the Texas Farm Bureau ("TFB"); Vinson & Elkins, L.L.P. ("V&E");
Edward G. Vaughan ("Vaughan"); Howard M. Schirmer ("Schirmer"); Bexar County
Water Control and Improvement District No. 10 ("BCWCID"); W. M. Menard, Sr.
("Menard"); Howard B. Shadrock ("Shadrock"); Robert Grossenbacher ("Grossenbacher");
Verstraeten Bros. Farms, Inc. ("VBI"); Denis Zinsmeyer ("Zinsmeyer"); Cemex
USA Construction, Inc. ("Cemex"); Steve Kosub ("Kosub"); Kirk Patterson ("Patterson");
City Public Service of San Antonio, Texas ("CPS"); Bexar County Farm Bureau
("BCFB"); Medina County Farm Bureau ("MCFB"); Gilliam Ranch and Gregory and
Cora Rothe ("Gilliam and Rothe"); Bragg Pecan Farms, Inc. ("Bragg"); Dietrich
J. Gembler III ("Gembler"); Tracy King ("King"); JoLynn Bragg ("Ms. Bragg");
Maurice Rimkus ("Rimkus"); Lawrence Friesenhahn ("Friesenhahn"); Rodney Reagan
("Reagan"); Richard Frenzel ("Frenzel"); Thomas Taggert on behalf of the City
of San Marcos ("Taggert"); Russell Johnson, on behalf of SAWS ("Johnson");
Herb Faseler ("Faseler"); Suzanne (last name unknown) on behalf of East Medina
County Special Utility District ("Suzanne"); Paul Aelvoet ("Aelvoet"); John
(last name unknown) ("John"); and the Texas Department of Agriculture ("TDA").
While the commenters generally did not express support or opposition to
adoption of the rules as a whole, they did, as discussed more fully below,
suggest changes to and/or opposition to certain portions of the rules.
Section 711.1(2)
Vulcan commented upon § 711.1(2), which, as proposed, states:
(2) Existing user-A person or the successor in interest of a such person,
who, on June 1, 1993, owned an existing well from which groundwater from the
aquifer had been withdrawn and placed to beneficial use during the historical
period.
Vulcan maintains that one need not be the well owner in order to be an
"existing user," and that lessees, assigns, and easement holders should be
considered "existing users" thereby entitled to ownership of initial regular
permits. Vulcan further contends that ownership interests of lessees, easement
holders, and other assignees may be limited in time, place of use, or purpose.
Accordingly, while Vulcan does not seek any amendment to the definition of
"existing user" in § 711.1(2), it seeks to add a definition in §
711.1 which would define "owned an existing well" to include those who are
lessees, assignees, easement holders or others with a legal right to withdraw
water from an aquifer well.
Authority staff received the above-referenced comment and disagrees with
it. The basis for this determination is as follows. The
sine qua non
of an "existing user" is ownership of the point(s) of
withdrawal (i.e. well(s)) from which the withdrawals are made during the historical
period. It is correct that the Court in
Barshop v.
Medina County Underground Water Conservation District,
925 S.W. 2d
618, 630 n.3 (Tex. 1996) stated as follows:
This holding does not necessarily limit the definition of 'user' to individuals
owning land. Under some circumstances, an entity that does not own the land
or the well may be considered a "user" if the entity had some right to withdraw
water.
The Authority does not necessarily disagree with this
dicta
of the Court. However, this discussion is not applicable to the
definition of "existing user." There is a distinction between an "existing
user" and a mere "user" of the aquifer. First, the Court noted that the term
"user" was not defined by the Act. The term "existing user" is defined by
the Act. See § 1.03(10). Second, the Court was careful to preserve this
distinction in the above-cited footnote. Third, the discussion of "user" in
footnote 3 was in relation to the nature of the "use" of groundwater from
the aquifer and whether the "use" runs with the landowner personally, or with
the land, and did not concern the issue of whether a mere "user" who owned
no well could qualify as an "existing user." The Court stated as follows:
The Act does not define 'user' and does not specify whether the use of
water runs with the land. It is therefore unclear whether a 'user' includes
prior and future owners of the land, or whether a 'user' is only the landowner
in possession of the land at the time a permit is requested (i.e. when the
declaration of historical use is on file on or before December 30, 1996).
A review of the Act also shows that an "existing user" must own the well
upon which the declaration for historical use is based. For example, §
1.17(a) makes clear that interim authorization status only extends to persons
owning non-exempt producing wells. Further, in numerous sections the Act makes
reference to the owner of a well having certain rights and duties, thereby
confirming that proper applicants for initial regular permits must be the
well owners. See §§1.03(21)(E) and (F) (relating to the definition
of waste); 1.16(b) (evidentiary obligation of owners of irrigation wells);
1.16(c) (owners of exempt wells not required to file declarations of historical
use); 1.17(a) (owners of producing wells may continue to withdraw under interim
authorization); and 1.31(a) (owners of nonexempt wells).
In light of the above discussion, Authority staff has not modified §
711.1(2) and has not added a new definition of "owned an existing well" in §711.1
as suggested by Vulcan.
Section 711.1(5)
SAWS submitted comments regarding § 711.1(5) of the proposed rules.
SAWS requests a clarification of the definition of "producing well." SAWS
recommends § 711.1(5) read :
(5) Producing well- A well from which groundwater from the aquifer is capable
of being withdrawn for a beneficial use.
SAWS does not explain the basis for this suggested change.
Authority staff received the above-referenced comment and agrees with it.
The basis for this determination is that if a well is incapable of withdrawing
water for beneficial use it is most likely an abandoned well. The Authority
believes it is reasonable to treat all non-abandoned wells which are capable
of withdrawing aquifer water as "producing wells." In light of the above discussion,
Authority staff has modified §711.1(5) as suggested by SAWS.
Section 711.1(6)(E)
Earl & Brown submitted an unintelligible comment on a portion of the
proposed definition of "waste" in § 711.1(6)(E).
Because the comment is unintelligible, no response is required by the Authority.
An unidentified speaker commented on § 711.1(6)(E) which defines,
in part, "waste." The commentator stated that while the Authority holds agricultural
producers accountable for waste, the rules only contain one minor rule regarding
the waste that results from altered springflow. He feels the proposed rules
are too focused on agriculture.
The Authority disagrees with this comment. The basis for this determination
is as follows. The definition found in §711.1(6)(E) closely tracks the
statutory definition found in § 1.03(21) of the Act. Further, the language
of the definition is not in any way limited to agriculture, but applies to
any practice that may result in waste. In light of the above discussion, the
Authority has declined to revise § 711.1(6)(E).
Section 711.1(6)(J)
Bragg and Ms. Bragg commented on the definition of waste contained in §711.1(6)(J).
They appear to support the definition agreeing that water use in an amount
that is insufficient for crop production constitutes waste. Instead of recommending
revisions to § 711.1(6)(J), they appear to recommend that each existing
irrigation user be guaranteed a minimum of 2 acre-feet of water for seasonal
crop irrigation or, for permanent crops such as pecans which allegedly have
greater water requirements, that each existing irrigation user be guaranteed
a minimum equal to whatever amount is necessary to complete a crop cycle.
In order to make this feasible, Bragg suggests the Authority raise the 450,000
acre-feet withdrawal "cap" by 0.3% to account for all pecan farmers.
Authority staff received the above-referenced comments and agrees that
water use which is insufficient for crop production constitutes waste. The
Authority disagrees with the remainder of the comments. The Act is prescriptive
regarding the calculation of maximum historical use, average historical use,
and two acre-feet per irrigated acre in any one year during the historical
period from 1972 to 1993. Irrigators of commercial pecan orchards, while entitled
to at least a two acre-feet minimum, can receive a permit for more than two
acre-feet if evidence of groundwater withdrawal from the aquifer, during the
historical period, demonstrates that their historical average minimum exceeds
two acre-feet per acre per year. The Authority, however, does not believe
it has the statutory authority to increase the statutory irrigator minimum
to an amount in excess of two acre feet per year. Further, the Authority does
not believe that, at this time, it would be justified in raising the 450,000
acre-feet withdrawal "cap." Section 1.14(b) of the Act mandates that, until
December 31, 2007, permitted withdrawals may not exceed 450,000 acre-feet
of water per year. The chapter 711 rules are written to implement this 450,000
acre-feet cap. It is true that § 1.14(d) of the Act allows the Authority
to, under limited circumstances, raise this cap. This can be done, however,
only under very limited circumstances. Before determining that the cap may
be raised, the Authority must first, through studies and implementation of
various water management strategies, determine that additional supplies are
available from the aquifer. The Authority must also undertake consultations
with appropriate state and federal agencies in order to raise the cap. At
this time, the Authority does not believe it has adequate data nor does it
believe that sufficient water management strategies have been implemented
or adequate consultations have taken place in order to justify raising the
cap. While the Authority may, at some future date, attempt to raise the cap,
it declines to do so at this time. In light of the above discussion, Authority
staff has declined to modify § 711.1(6)(J).
Earl & Brown, on behalf of their clients, commented upon proposed rule §
711.1(6)(J), which defines "waste", in part, as:
Irrigation use of groundwater from the aquifer in a volume per irrigated
acre that is so insufficient that a crop could not have been reasonably cultivated
and produced.
Earl & Brown seeks the deletion of this item, arguing that there is
no basis for it in the Act, and that the language is confusing and ambiguous.
The Authority disagrees with this comment. The basis for this determination
is as follows. The Act delegates to the Authority broad discretion to limit
waste of water, protect the aquifer, and maximize the beneficial use of water
from the aquifer. See, e.g., Act §§ 1.08(a) and 1.14(a). It is true
that § 1.16(e) of the Act provides that existing irrigation users may
receive a permit for not less than two acre-feet a year for each acre of land
the user actually irrigated in any one calendar year during the historical
period. However, § 1.16(d)(2) dictates that groundwater first be beneficially
used before it can qualify for the statutory irrigator minimum in § 1.16(e).
The use of a quantity of aquifer water in a volume per acre that is insufficient
to reasonably cultivate and produce a crop does not constitute a beneficial
use and is, therefore, wasteful. The definition in § 711.1(6)(J) implements
this beneficial use requirement. In light of the above discussion, the Authority
has declined to revise § 711.1(6)(J).
Section 711.12(a)(4)
As proposed, rule § 711.12(a)(4) states that any person wishing to
"install, equip, complete, alter, operate, or maintain a well pump installed
or to be installed on a well designed for the withdrawal of groundwater from
the aquifer" must first obtain a permit from the Authority. SAWS commented
that the first word of this section, "install," is confusing and redundant
of the later phrase "installed or to be installed" and suggests that it be
deleted.
Authority staff agrees with the comment. The basis for this determination
is that the word "install" is arguably synonymous with equip and is confusing
because it is redundant in light of the phrase "installed or to be installed."
In light of the above discussion, Authority staff has modified § 711.12(a)(4).
Sections 711.20 and 711.32
V&E commented upon proposed rules §§ 711.20 and 711.32 which
are not a part of these proposed rules and which, therefore, require no response
by the Authority.
Section 711.94(c)
SAWS commented upon proposed § 711.94(c). SAWS seeks clarification
that a contract user only has a right to receive a permit if specifically
granted by contract. SAWS proposes that the section read:
(c) Unless otherwise provided by contract, the beneficial use of groundwater
by a contract user may only be claimed by a prior user or existing user in
support of a declaration.
The Authority supports this suggested revision and will revise the rule.
The revision clarifies the intent of the rule, which is to identify the appropriate
users who may claim beneficial use by contract users. It also makes clear
the Authority's conclusion that contract users may not themselves claim historical
use and obtain an initial regular permit.
Section 711.94(d)
Both Earl & Brown and Faseler commented upon proposed §711.94(d),
which states:
Irrigation use of groundwater from the aquifer in the volume of two acre-feet
per irrigated acre is rebuttably presumed to constitute beneficial use without
waste.
Earl & Brown proposes changing the word "rebuttably" to "irrebuttably."
Faseler, on the other hand, believes the percolation rate should be used to
determine how water is to be applied, not as a regulation.
The Authority disagrees with these comments. The purpose of including the
phrase "rebuttably presumed" in the rule is not to affect the process by which
irrigators are issued permits or to affect the eligibility of an irrigator
for the statutory two acre-feet irrigator minimum. Instead, it is intended
to facilitate the Authority's ability to prevent waste by irrigators once
permits have been issued. Not all irrigation practices necessitate the use
of two acre-feet of water per acre per year, nor are irrigators any more exempt
than any other aquifer users from the requirement that aquifer water be beneficially
used and not wasted. It is possible that an irrigator's practices may be wasteful
even if his rate of use is below two acre-feet per acre per year. In that
event, the Authority believes it needs to retain the right to rebut the presumption
that usage of two acre-feet is not wasteful.
Section 711.96(b)(1)
Vaughan commented on proposed rule § 711.96(b)(1), which states:
(b) An Application for a groundwater withdrawal permit for a well that
withdraws groundwater from multiple aquifers, including the Edwards Aquifer,
may be granted by the board in an amount that does not exceed:
(1) for irrigation use, the pro rata share of the number of acres beneficially
irrigated with the volume of aquifer water withdrawn from the well based on
the percentage of aquifer water produced from the well, multiplied by two
acre-feet; or. . .
Vaughan claims the Act provides existing irrigation users/ applicants "shall
receive a permit for not less than two acre feet a year for each acre of land
the user actually irrigated in any one calendar year during the historical
period." Vaughan relays the calculation for historical users which he states
gives such users a permit for "at least the average amount of water withdrawn
annually during the historical period." Vaughan argues the legislative intent
mandated irrigation permits of two acre feet per year based only upon the
number of irrigated acres during the historical period.
The Authority disagrees with this comment. Based upon § 1.16(d)(2)
of the Act, there is a statutory requirement that irrigation water must be
beneficially used and not wasted. This necessarily means that the volume of
groundwater applied to the land for irrigation purposes must be in sufficient
minimum quantities to reasonably cultivate and produce a crop and thereby
constitute beneficial use.
Pursuant to § 1.08(b) of the Act, the Authority has jurisdiction only
over "groundwater within or withdrawn from the Edwards Aquifer." Thus, the
Authority has no statutory authority to issue an initial regular permit for
the irrigation of land by non-Edwards Aquifer water. Notwithstanding the rule,
permit applicants or permit holders remain free to pump groundwater from aquifers
other than the Edwards without any restrictions from the Authority.
Sections 711.172 - 711.176
Edward G. Vaughan generally protests proposed rules §§ 711.172
through 711.176 to the extent that they endeavor to limit the permit amount
to below the supposed statutory minimum of two feet per acre. Vaughan cites §
1.16 of the Act and legislative intent as mandating that irrigators shall
not receive a permit for less than two acre feet for each acre of land actually
irrigated in any one calendar year during the historical period.
Authority staff received the above-referenced comment, and disagrees with
it. The reasons for this disagreement are found in response to other comments
to §711.172 and §711.176 below.
Section 711.96(b)(1)
Earl & Brown commented on proposed rule §711.96(b)(1). While the
comment is difficult to interpret, Earl & Brown appears to be concerned
that the wording of this provision improperly results in a double reduction
of the permit amount. Earl & Brown suggests that the permit amount should
be calculated by multiplying the total acreage irrigated times the percentage
of Edwards Aquifer water produced times two acre-feet per acre.
The Authority agrees with the method of calculation suggested by Earl &
Brown and states that it is consistent with the intent of the rule as originally
proposed. In light of the comments, the Authority staff has modified §711.96
(b)(1) to clarify the wording of the method by which the permit amount for
multiple aquifer wells is calculated to be consistent with this intent.
Section 711.96(b)(1) and (b)(2)
SAWS commented on proposed rule § 711.96(b)(1) and (b)(2), concurrently.
SAWS, in order to clarify that only production of Edwards groundwater is at
issue in the case of a commingled well, asks that the sections read:
(b)(1) ...based on the percentage of Edwards Aquifer water produced from
the well,... and
(b)(2) ...actual amount of groundwater from the Edwards Aquifer.
Authority staff received the above-referenced comment, and agrees that
only production of Edwards groundwater is at issue in the case of a commingled
well. However, no amendment to these rules is necessary because "aquifer"
is defined in Authority §702.1(b)(6) as "the Edwards Aquifer . . . ".
In light of the above discussion, Authority staff has not modified §711.96
(b)(1) and §711.96 (b)(2) .
Section 711.96(b)(2)
Earl & Brown, on behalf of their clients, commented on proposed §711.96
(b)(2), which states:
(b) An application for a groundwater withdrawal permit for a well that
withdraws groundwater from multiple aquifers, including the Edwards Aquifer,
may be granted by the board in an amount that does not exceed: . . .
(2) for non-irrigation use, the actual amount of groundwater from the aquifer.
Earl & Brown claims the rule needs to be clarified to stipulate that
the water withdrawn from the aquifer must be beneficially used.
Authority staff received the above-referenced comment, and agrees with
it. The Authority notes that all withdrawals of groundwater from the aquifer
are subject to the continuing duty to be placed to beneficial use. However,
the Authority agrees that it is useful to reemphasize that principle in this
rule. In light of the above discussion, Authority staff has modified §711.96
(b)(2).
Proposed Counterpart to § 711.96 for Edwards Water Commingled with
Surface Water
SAWS proposes adding a new section similar to §711.96 which would
address the situation of Edwards Aquifer water commingled with surface water
before being put to a beneficial use.
Authority staff received the above-referenced comment, and agrees that
such a rule may be worth considering. Under the procedural requirements of
the APA, however, the Authority is limited in its ability to adopt new rules
without first providing notice and an opportunity for the public to comment
upon those rules. Therefore, the Authority declines to create such a rule
at this time, but may consider such an option in future rulemaking efforts.
Further, Authority staff disagrees the change is entirely necessary because
this fact situation is already covered by other rules. For example, in Section
711.1(6)(J) the definition of "waste" includes that if the well is too small
to irrigate the claimed acreage with sufficient enough water to successfully
raise a crop, then use of that water is per se waste. In evaluating the applications
the staff will reduce the acreage for which an initial regular permit is issued
to the amount that can reasonably be supported by the well.
Section 711.98(e), (f), and (g), §711.100
Section 711.98(e) states that initial regular permits may be retired in
accordance with the following rules of the Authority: (1) the Springflow Maintenance
Rules of Subchapter G of Chapter 715; (2) the equal percentage reduction rules
of Subchapter G of Chapter 711; or (3) the regular permit retirement rules
of Subchapter H of Chapter 715. Subchapters G and H of Chapter 715 have yet
to be adopted by the Authority. SAWS objects to specifically identifying these
Subchapters in favor of a more generic approach stating that permit may be
retired in accordance with "future rules adopted by the Authority."
SAWS makes similar suggestions for §711.98(f) and (g), which identify
rules by which initial regular permits may be suspended or interrupted, respectively.
SAWS also suggests similar changes in § 711.100.
The Authority disagrees with these comments. The level of detail in the
rules as proposed is greater than that suggested by SAWS. The Authority believes
it is preferable to identify, as much as possible, the circumstances by which
permits may be retired, suspended or interrupted and the location of the applicable
rules. The fact that these rules will be developed at a future date does not
diminish the need to provide the public with notice of the proposed location
of the relevant rules.
Section 711.98(g)(3)
As proposed, § 711.98(g)(3) provides as follows:
(g) If in effect, initial regular permits may be interrupted in accordance
with the following rules: ...
(3) the springflow maintenance rules pursuant to Subchapter G (relating
to Springflow Maintenance Rules) of Chapter 715 (relating to Comprehensive
Water Management Plan Implementation).
Bragg's comments express opposition not at this particular rule, but at
the substance of any future springflow maintenance rules which might be adopted
by the Authority. Bragg recommends that the Authority evaluate further the
effect of groundwater use restrictions and their effect on springflows, with
particular attention to: 1) quantifying the effects of water use restrictions
imposed long distances from the springs on actual springflows; and 2) assessing
springflow augmentation to protect endangered species dependent upon springflows.
The Authority declines to delete or revise § 711.98(g)(3) in response
to this comment. All initial regular permits will likely be subject to at
least some degree of spring flow maintenance rules pursuant to Chapter 715,
Subchapter G of this title (relating to Springflow Maintenance Rules; Comprehensive
Water Management Plan Implementation). The Authority believes it is appropriate
to give the regulated community advance notice of that fact via § 711.98(g)(3). §
711.98(g)(3) does not itself set forth the substantive springflow maintenance
rules. Instead, it merely provides a reference to those rules. The Authority
acknowledges, however, that the issues raised by Bragg, regarding the substance
of what the springflow maintenance rules should require, are relevant for
consideration at the time those rules are drafted and considered for adoption.
In light of the above discussion, Authority staff has not modified §
711.98(g)(3).
Section 711.98(i)
As proposed, § 711.98(i) states: "Initial regular permits may be canceled
pursuant to Subchapter H of this Chapter (relating to Abandonment and Cancellation)."
While SAWS appears, in the abstract, to acknowledge the need to cancel certain
permits through the abandonment and cancellation process, SAWS also states
that it needs to obtain pumping rights to be held in reserve for future use.
Because SAWS is concerned about having such unused rights canceled by the
Authority, it proposes deletion of § 711.98(i). SAWS also comments that
unused rights serve a conservation purpose.
The Authority declines to delete § 711.98(i) in response to this comment.
Section 1.16(g) of the Act provides that, once issued, initial regular permits
remain in effect "until the permit is abandoned, cancelled, or retired." The
Authority believes it is appropriate to give the regulated community advance
notice of the limitations of initial regular permits and the circumstances
under which such permits may be canceled. Further, § 711.98(i) does not
set forth the substantive rules regarding when cancellation may take place.
Instead, it merely provides a reference to those rules.
Section 711.98(j)(1)
Schirmer commented on rule § 711.98 (j)(1), which states, in part:
(j) . . . The board shall grant an application for an initial regular permit
if the following elements are established by convincing evidence: . . .
(1) the applicant filed a declaration on or before December 30, 1996;.
. .
Schirmer claims that, roughly 100 years ago, the owner of Comal Springs
manually enhanced the flow of the springs. He claims that the current owner
of Comal Springs was required to file a declaration on or before December
30, 1996 in order maintain this allegedly enhanced springflow. Having failed
to do so, Schirmer apparently contends that flow at Comal Springs should be
restricted by the Authority.
The Authority disagrees with the comment. Without even addressing the factual
allegations raised by Schirmer, the Authority does not believe that a permit
is required for springflows at Comal Springs. A primary objective of the Act
is to preserve and protect springflows and the species which depend upon those
springflows. This objective would be undermined by ordering the restriction
of such springflows. Finally, the entire permitting structure, embodied in
the Act, applies to withdrawals from the aquifer made by wells, not to natural
springs. In light of the above discussion, Authority staff has not modified §
711.98 (j)(1).
Section 711.98(j)(12)
As proposed, § 711.98(j)(12) reads, in part:
. . . The board shall grant an application for an initial regular permit
if the following elements are established by convincing evidence: . . .
(12) the well(s) does not qualify for exempt well status; . . .
Earl & Brown proposes that paragraph (12) should revised to read: "the
well is not registered as an exempt well." Earl & Brown reasons that an
owner of an exempt well may choose to apply for and receive a permit based
upon his historical pumpage even though he could have otherwise foregone the
permit process and simply operated his well as an exempt well.
The Authority disagrees. The Act makes it clear that wells which qualify
as exempt are therefore exempt from the permitting requirement and the 450,000
and 400,000 acre-feet withdrawal caps. See §§ 1.14(b) and (c), 1.15(b),
1.16(c), and 1.33. In other words, no permit may be issued for such wells.
A well that qualifies for exempt well status, and is therefore required to
register as an exempt well, cannot simultaneously or alternatively be a permitted
well. Exempt status derives from the purpose of use, location of the point
of withdrawal, and well production capacity. Exempt well rights are not transferrable
because they derive from the land where the well is located and the purpose
of use. Issuance of a permit for an exempt well, as desired by Earl &
Brown, would lead to results which are administratively absurd and were not
intended by the Legislature. For example, the owner of an exempt well who
chose to obtain a permit for that well ("Mr. X") could arguably transfer (sell)
the permit to another landowner ("Mr. Y"). Mr. Y could then make withdrawals
based upon the transferred permit apparently without regard to whether his
use qualifies as exempt. However, even though he no longer owns a permit,
Mr. X could continue to make exempt withdrawals from his well, assuming he
met the criteria in § 1.33 of the Act. The result would be a doubling
of the rights to withdraw aquifer water based upon the same historical use
-- a result which could not have been intended by the Legislature when it
passed the Act. In light of the above discussion, Authority staff has not
modified §711.98(j)(12).
Section 711.98(k)
SAWS asked that § 711.98(k) be modified to read:
The board shall issue withdrawal amounts to an applicant for an initial
regular permit pursuant to § 711.176 (relating to Groundwater Withdrawal
Amount for Initial Regular Permits: Compensation for Step-Up Amounts) or as
modified by 711.180 of this title (relating to Voluntary Waiver of Applications
for Initial Regular Permits) of this chapter.
The Authority agrees with this comment and revises the rule accordingly.
Section 711.180 authorizes the Authority to enter into agreed orders waiving
all or a portion an applicant's claimed maximum historical use, PA amount,
step up amount, base irrigation groundwater or unrestricted irrigation groundwater
claimed in or proposed in a permit application. Thus, an applicant's ultimate
permit amount may be affected by such an agreed order, and it is appropriate
to acknowledge the effect § 711.180 can have upon the board's permit
calculations.
Sections 711.98 - 711.110
TFB submitted comments generally regarding §§ 711.98 - 711.110
of the proposed rules. TFB notes that all of these sections, as proposed,
require that the Board grant an application for a permit if certain elements
are established by "convincing evidence." TFB asserts that although the Board,
via the Act, is required to grant an initial regular permit only after the
applicant establishes by "convincing evidence beneficial use of underground
water from the aquifer," the Act does not require that all elements be proven
by convincing evidence. Additionally, TFB contends this standard is required
only for initial regular permits and is inappropriate for other permits, such
as emergency or well-monitoring permits. Therefore, TFB suggests the "convincing
evidence" burden of proof should only apply to proving beneficial use of groundwater
for initial regular permits.
Authority staff received the above-referenced comment, and disagrees with
it. The basis for this determination is that administrative efficiency and
consistency is fostered by the uniform use of terminology applicable to the
permitting process. In light of the above discussion, Authority staff has
not modified §§ 711.98- 711.110 .
Section 711.102(d)
Section 711.102(d) provides the circumstances under which withdrawals pursuant
to term permits may be interrupted. BCWCID identified a typographical error
and commented that §711.102(d)(2) should be revised to read:
If in effect, term permits shall be interrupted in accordance with the
following rules: . . .
(2) for wells completed in the San Antonio pool and within Atascosa and
Medina counties, well TD 69-47-306 is equal to or less than 685 feet above
mean sea level:
This comment has been rendered moot by nature of the fact that the Authority
has elected to delete §711.102(d)(2) as proposed.
Section 711.102(g)
Earl & Brown identified a typographical error in § 711.102(g),
which, as proposed, read:
The board shall issue a groundwater withdrawal amount to an applicant for
an term permit in the amount that is consistent with Chapter 715 of this title
(relating to Comprehensive Water Management Plan Implementation).
Earl & Brown notes that the word "an" should be changed to "a."
The Authority staff agrees and has modified § 711.102(g).
Section 711.102(c)
Section 711.102(c) of the proposed rules states that term permits "are
transferrable pursuant to Subchapter L (relating to Transfers) of this chapter."
Subchapter L, which is in the process of being published as proposed rules,
states that term permits are not transferrable except as to ownership. A mere
transfer of ownership cannot alter the purpose of use, point of withdrawal,
place of use or other permit characteristics. SAWS states that term permits
should not be transferable and § 711.102(c) should make this fact clear.
SAWS requests more clarity which would prevent a reader from having to reference
another portion of the rules.
Authority staff received the above-referenced comment and agrees with it
in part. The basis for this determination is that ownership is the only anticipated
aspect of a term permit which may be transferred pursuant to Subchapter L
(relating to Transfers) of this chapter. A mere transfer of ownership would
not affect the term permit's purpose of use, point of withdrawal or place
of use. In light of the above discussion, Authority staff has modified §
711.102(c) to read:
(c) Term permits are transferable only as to ownership, pursuant to Subchapter
L (relating to Transfers) of this chapter.
Section 711.102(d)
As originally proposed, §711.102(d) identified the scenarios under
which withdrawals pursuant to term permits may be interrupted. It identifies
various index well levels as well as various rules which are not yet adopted
by the Authority. SAWS objects to specifically referencing rules which are
not yet adopted and instead favors a more generic approach of stating that
term permits may be retired in accordance with "rules adopted by the Authority
as allowed by § 1.14(f) and other sections of the Act." SAWS further
objects to the use of index well TD 69-47-306 until "supporting hydrogeologic
research under § 1.14(g) of the Act has been conducted."
The Authority disagrees with these comments. The level of detail in the
rules as proposed is greater than that suggested by SAWS. The Authority believes
it is preferable to identify, as much as possible, the circumstances by which
term permits may be interrupted and the location of the applicable rules.
The fact that these rules will be developed at a future date does not diminish
the need to provide the public with notice of the proposed location of the
relevant rules.
Similarly the Authority disagrees that additional hydrogeologic research
is required before establishing additional index wells for any aquifer pool.
Section 1.14(g) of the Act provides that additional index wells may be established
for a pool (in this case, the San Antonio pool), if such additional index
wells "aid the regulation of withdrawals from the pool." Nevertheless, the
Authority has deleted §711.102(d)(2) as it was originally proposed and
term permits will now only be interrupted based on index wells J-17 and J-27.
Section 711.102(f)(12), (g), and (h)
Section 711.102 deals with term permits and references and, in part, Chapter
715. SAWS objects to the references to Chapter 715 because those rules have
not yet been adopted. SAWS proposes that § 711.102 be changed to read:
(f) The board shall grant an application for a term permit if the following
elements are established by convincing evidence: . . .
(12) the proposed withdrawal of groundwater is consistent with the water
available for permitting. . . .
(g) The board shall issue a groundwater withdrawal amount to an applicant
for a term permit in the amount that is consistent with the water available
for permitting.
(h) By January 15 of each year, the board by order shall determine the
total quantity of groundwater that may be withdrawn from each pool of the
aquifer for that calendar year pursuant to term permits. At any time by order
of the Board this determination may be revised as appropriate based upon actual
aquifer conditions.
Authority staff received the above-referenced comment and disagrees with
it. The level of detail in the rule as proposed is greater than that suggested
by SAWS. The Authority believes it is preferable to identify, as much as possible,
the circumstances by which term permits shall be governed and the location
of the applicable rules. The fact that these rules will be developed at a
future date does not diminish the need to provide the public with notice of
the proposed location of the relevant rules. In light of the above discussion,
Authority staff has not modified §711.102(f)(12), (g) or (h).
Section 711.108(a)
Earl & Brown identified a typographical error in §711.108(a) which
requires the addition of the word "the" as italicized below:
Any person proposing to perform any of
the
activities set forth in § 711.12(a)(2)-(5) of this title (relating to
Activities Requiring a Permit) shall apply for a well construction permit.
The Authority staff agrees and has modified § 711.108(a) .
Section 711.108(c)
Earl & Brown and SAWS both commented upon rule §711.108(c) which
states:
A well constructed pursuant to a well construction permit must be completed
within 180 days of the issuance of the permit. The permit expires if the well
has not been constructed within 180 days of the permit issuance. Upon expiration
of the term, the permit automatically expires and is canceled.
Earl & Brown first asserts that confusion arises from the fact that
the first sentence indicates the well must be "completed" within 180 days
while the second sentence states the well must have been "constructed" within
the 180 day period. Second, Earl & Brown proposes that the last sentence
of § 711.108(c) be changed to read:
"Upon expiration of the term, in the event the permittee has not constructed/completed
a groundwater withdrawal well within the term period, the permit then automatically
expires and is canceled."
Due to the size and complexity of the large wells drilled by it, SAWS believes
the 180-day period to construct a well should be lengthened to one year, with
a mechanism in place to request extensions.
The Authority disagrees with the second comment from Earl & Brown.
Upon the expiration of the term, and barring any extensions of the term by
the Authority, a construction permit expires and is canceled regardless of
whether the well has been completed or not.
The Authority agrees with the first comment from Earl & Brown. The
Authority believes that the wording of the rule could be clarified by using
the term "completed" consistently throughout.
The Authority also agrees with SAWS that there should be a mechanism for
lengthening the 180-day term in response to special circumstances. Other commenters
on the Chapter 707 rules, which were proposed concurrently with Chapter 711,
have also pointed out that 180 days may, at times, be inadequate when there
is a shortage or unavailability of water well drillers to construct a well.
Accordingly, the Authority has revised § 711.108(c) to read:
A well constructed pursuant to a well construction permit must be completed
within 180 days of the issuance of the permit. The permit term may be extended
by one additional 180-day extension period by the general manager. In order
to obtain such an extension, the holder of a well construction permit must
submit a written request to the general manager explaining the need for the
extension. If the holder of the well construction permit demonstrates a need
for an extension and demonstrates that the permit holder's failure to complete
the well within the original 180-day term is not due to the permit holder's
own lack of diligence, then the general manager may authorize the extension.
Upon expiration of the term, including any extension granted, the permit automatically
expires and is canceled.
Section 711.108(d)(7)
SAWS and Earl & Brown identified a typographical error in §711.108(d)(7)
which requires the revision of the word "beneficial" to "beneficially."
The Authority staff agrees and has modified § 711.108(d)(7) .
Section 711.108(d)(3)
Earl & Brown commented upon proposed rule §711.108(d)(3), which
states:
"(3) the well head is or will be physically located within the boundaries
of the authority;"
Earl & Brown suggests "authority" be changed to "Authority." The Authority
agrees and will make the change .
Section 711.108(d)(5)
Earl & Brown commented upon proposed rule §711.108(d)(5). Earl &
Brown suggests the word "aquifer," the last word in §711.108(d)(5), be
capitalized to read "Aquifer."
The Authority disagrees and feels it is appropriate to refer to the aquifer
in lower case.
Section 711.108(d)(6)
Earl & Brown commented upon proposed rule §711.108(d)(6), which
provides that applications for well construction permits shall be granted
if a number of conditions are established, including that "(6) the withdrawals
are proposed to be placed to a beneficial use for domestic, livestock, irrigation,
municipal, or industrial use; . . .".
Earl & Brown asserts this section would allow a well to qualify as
an exempt well so long as the water is beneficially used for "domestic, livestock,
irrigation, and municipal or industrial use," thereby expanding the definition
of an exempt well, in conflict with the Act.
Authority staff received the above-referenced comment and disagrees with
it. The basis for this determination is that §711.108(d)(6) has nothing
to do with qualifying for exempt well status. Instead, it sets the criteria
for granting a well construction permit. It does not expand the criteria for
exempt wells. However, in order to provide additional clarity on this issue,
the Authority has amended this section in order to more closely track the
statutory definition for domestic or livestock use and to make other editorial
changes. Accordingly, the section now reads:
(6) the withdrawals are proposed to be placed to a beneficial use for domestic
or livestock use, irrigation use, municipal use, or industrial use;
Section 711.108(d)(9)
Earl & Brown commented upon proposed rule §711.108(d)(9) which
identifies one of the required elements of a well construction application.
The rules states:
(9) The quantity of groundwater the well would be capable of producing,
if constructed, is consistent with the quantity of groundwater the applicant
proposes to produce pursuant to exempt well status or pursuant to a groundwater
withdrawal permit.
Earl & Brown comments that the provision should be clarified to mirror
the language in the Act relating to exempt wells, found at § 1.33, which
provides that a well producing 25,000 gallons of water a day or less for domestic
or livestock use is exempt from metering requirements.
Authority staff received the above-referenced comment and disagrees with
it. The basis for this determination is that a well with sufficient capacity
to produce more than 25,000 gallons of water a day would require a meter to
ensure it did not produce more than 25,000 gallons of water per day. By requiring
that the well be constructed so that it is capable of only producing the quantity
of groundwater the applicant proposes to produce for exempt status, the Authority
ensures that the well does not exceed exempt well status and does not need
a meter. In light of the above discussion, Authority staff has not modified §711.108
(d)(9).
Section 711.108(d)(11)
Earl & Brown commented upon proposed rule §711.108 (d)(11), which
provides that applications for well construction permits shall be granted
if a number of conditions are established, including that "(11) the proposed
well construction and operation would not unreasonably negatively affect the
aquifer or other permittees." Earl & Brown suggests that this provision
be omitted because the term "unreasonably negatively affect the aquifer or
other permittees" is vague, ambiguous, and inconsistent with the proposed
rules. Earl & Brown argues that "unreasonably negatively" should not be
used solely as a benchmark for exempt wells.
Authority staff received the above-referenced comment and disagrees with
it. The basis for this determination is that §711.108(d)(11) provides
a benchmark not only for exempt wells, but for the construction of any wells.
It also provides protection for current aquifer users. The rule is consistent
with the Authority's statutory duty to manage, conserve, preserve and protect
the aquifer and its users. In light of the above discussion, the Authority
has not modified §711.108(d)(11).
Section 711.108(d)(14)
Earl & Brown commented upon proposed rule §711.108(d)(14), which
provides that applications for well construction permits shall be granted
if a number of conditions are established, including that "(14) the application
is in compliance with the Act;"
Earl & Brown suggests that, rather than making a general statement
that "the application is in compliance with the Act," this provision should
continue by listing what must be included in order for an applicant to be
in compliance with the Act or, alternatively, incorporate requirements set
forth in the Act.
The Authority disagrees. The requirements of the Act are set out in the
text of the Act and are further developed in the text of the Authority's rules.
To reincorporate these requirements into the confines of a single rule would
result in needless duplication and confusion. Accordingly, the Authority declines
to modify § 711.108(d)(14).
Section 711.108(d)(15)
Earl & Brown commented upon proposed rule §711.108(d)(15), which
provides that applications for well construction permits shall be granted
if a number of conditions are established, including that "(15) the application
is in compliance with the rules of the Authority."
Earl & Brown suggests that, rather than making a general statement
that "the application is in compliance with the rules of the Authority," this
provision should continue by listing what must be included in order for an
applicant to be in compliance with the rules.
The Authority disagrees. The requirements of the rules are set forth in
the text of the Authority's rules. To reincorporate these requirements into
the confines of a single rule would result in needless duplication and confusion.
Accordingly, the Authority declines to modify § 711.108(d)(15).
Comment on Exempt Wells
Earl & Brown includes a "general comment" concerning whether and when,
pursuant to § 1.33(c) of the Act, a well within or serving a subdivision
requiring platting qualifies as exempt. This comment is not responsive to
any of the Chapter 711 rules within this Final Order Adopting Rules. The Authority
is in the process of publishing notice of its proposed exempt well rules.
Earl & Brown is encouraged to comment on those rules at the appropriate
time.
Section 711.112
Section 711.112 states that groundwater permits issued by the Authority
"shall include" various components, including: "(13) The equal percentage
reduction amount as calculated pursuant to §711.174 of this title . .
. and subchapter H . . . of Chapter 715 of this title . . .; the amount that
may be subject to restoration pursuant to § 711.172(h) of this chapter
. . . and § 711.304 of the chapter . . . ." (Emphasis added.) SAWS recommends
changing § 711.112 (13)to read:
(13) the amount that may be subject to restoration.
SAWS believes this change would add clarity to initial regular permits
by identifying the permit amount that may be subject to restoration in the
event that additional groundwater supplies become available for permitting.
Authority staff received the above-referenced comment and disagrees with
it. The Authority believes that the rule already makes it clear that the "equal
percentage reduction amount" is an "amount that may be subject to restoration"
in the event that additional groundwater supplies become available for permitting,
such as if the Authority raises the 450,000 or 400,000 acre-feet withdrawals
caps. The Authority has declined to revise § 711.112 in response to this
comment.
Section 711.112(17)
Section 711.112 states that groundwater permits issued by the Authority
"shall include" various components, including: "(17) metering or alternative
measuring method." SAWS asserts that permits will need to be reissued should
a change in meters occur. This, according to SAWS, would be unnecessarily
burdensome. SAWS suggests that the permit only have the "duty to meter" as
a requirement and that meter registration be handled outside the permit process.
SAWS requests that § 711.112(17) read:
(17) requirement to register meters or alternative metering method;
Authority staff received the above-referenced comment and disagrees. The
basis for this determination is that the listing, required in § 711.112,
merely identifies the issues that are to be addressed in all groundwater withdrawal
permits issued by the Authority. The substantive issues raised in the rules
do not direct the Authority on how to address the issues in a permit, but
simply that the issues must be addressed. The Authority retains considerable
flexibility in the permit drafting process regarding how to most effectively
address each issue, required by this rule, to be a part of the permit. The
Authority will draft its permits in such a way that permits need not necessarily
be reissued upon meter changeouts. In light of the above discussion, Authority
staff has not modified § 711.112(17).
Section 711.112(19)
Section 711.112 states that groundwater permits issued by the Authority
"shall include" various components, including: "(19) conditions for suspension
of withdrawals." SAWS believes permits should not able to be suspended, but
rather limited, by future unwritten Authority rules. SAWS asserts that §
1.16(h) of the Act clearly recognizes permit limitations and only requires
the Authority to notify permit holders "that the permit is subject to limitations."
SAWS would have the rule read:
(19) conditions for limitation of withdrawals;
Authority staff received the above-referenced comment and disagrees with
it. The basis for this determination is that the term "limitation" as used
in § 1.16(h) of the Act is a generic term which encompasses several kinds
of reduction strategies on a permittee's right to withdraw groundwater. These
reduction strategies will be more fully developed in Chapter 715 of this title
(relating to Comprehensive Water Management Plan Implementation) and will
include permit retirements, suspensions and interruptions. In light of the
above discussion, Authority staff has not modified § 711.112(19) .
Section 711.112(21)
Section 711.112 states that groundwater permits issued by the Authority
"shall include" various components, including: "(21) conditions for renewal."
SAWS suggests that the rule read:
(21) conditions for renewal, if any;
The Authority received the above-referenced comment and agrees with it
in concept. The basis for this determination is that not all groundwater withdrawal
permits are renewable. Therefore, the Authority has modified § 711.112(21)
as follows:
(21) conditions for renewal, if applicable;
Section 711.116
SAWS submitted comments regarding § 711.116 of the proposed rules
which relates to the contents of well construction permits. SAWS states that
before completion of a well, the withdrawal rate may not be known, but only
estimated. Therefore, any limitations as to withdrawals are only appropriate
for construction of exempt wells. SAWS maintains that all other wells would
require transfer of permitted water rights before use. SAWS suggested that §
711.116 read:
(6) maximum estimated rate of withdrawal in gallons per minute;
(7) if an exempt well, restriction of production to 25,000 gallons of water
a day or less for domestic or livestock use;
(8) ELIMINATE (8)
(16) any other appropriate conditions on the well construction as...
The Authority received the above-referenced comments and disagrees with
them. The basis for this determination is that for enforcement purposes, the
Authority is required to established clear and identifiable maximum or minimum
parameters that must be met by permittees in order to be in compliance with
a permit. The creation of compliance parameters based on estimated amounts
would not provide the Authority with enforceable permit criteria. However,
the Authority does recognize that the wording in §711.116(16) contains
a typographical error which has been corrected.
Sections 711.130 and 711.134
TFB submitted comments regarding § 711.134, relating to Standard Conditions,
of the proposed rules. Generally, TFB contends this section proposes standard
permit conditions which the Authority intends to incorporate into every groundwater
withdrawal permit. The section, according to TFB, is written in an awkward
manner. TFB suggests the Authority re-write the section in an active voice
as follows:
The Authority shall incorporate the following conditions into groundwater
withdrawal permits: (1) The permittee shall comply with the requirements of
Subchapter G of Chapter 713 of this title, relating to the construction operation,
and maintenance of wells.
TFB maintains that, as presently written, the section is unclear as to
who is to comply with the standard conditions. TFB has assumed that the permittee
is to comply with the conditions and that the Authority will incorporate provisions
similar to these in each permit. Additionally, TFB suggests the removal of
the explanatory phrases in § 711.134(1), (2), (3), and (4) and replacing
them in § 711.130. TFB believes these phrases in § 711.134 make
the section cumbersome.
The Authority received the above-referenced comment and agrees with it.
The basis for this determination is that the section would be more clearly
understood by permittees. In light of the above discussion, Authority staff
has modified § 711.130 and §711.134 to read:
Section 711.130 Purpose
The purpose of this subchapter is to establish the standard conditions
required to be contained in a groundwater withdrawal permit issued by the
authority for, among other things:
(1) the protection of the water quality of the groundwater of the aquifer;
(2) the protection of the water quality of the surface streams to which
the aquifer provides springflow;
(3) the achievement of water conservation, and the maximization of the
beneficial use of groundwater available for withdrawal from the aquifer;
(4) the protection of aquatic and wildlife habitat, and the protection
of species that have been listed as threatened or endangered under applicable
federal or state law; and
(5) the providing for instream uses, bays, and estuaries.
Section 711.134 Standard Conditions
Any groundwater withdrawal permit issued by the authority is subject to
and the permittee shall comply with the following conditions:
(1) the construction, operation and maintenance of wells pursuant to subchapter
C (relating to Well Construction, Operation and Maintenance) of chapter 713
of this title (relating to Water Quality);
(2) the abandonment and closure of wells pursuant to subchapter D (relating
to Abandoned Wells; Well Closures) of chapter 713 of this title (relating
to Water Quality);
(3) the spacing of wells pursuant to subchapter E (relating to Well Spacing)
of chapter 713 of this title (relating to Water Quality);
(4) the installation, operation and maintenance of well fields pursuant
to subchapter F (relating to Well Head Protection) of chapter 713 of this
title (relating to Water Quality);
(5) the recharge of the aquifer pursuant to subchapter J of this chapter
(relating to Aquifer Recharge, Storage and Recovery Project);
(6) taking no action that pollutes or contributes to the pollution of the
aquifer;
(7) the beneficial use and utilization of groundwater withdrawn from the
aquifer that is reused pursuant to subchapter I (relating to Reuse Rules)
of chapter 715 of this title (relating to Comprehensive Water Management Plan
Implementation);
(8) not wasting groundwater within or withdrawn from the aquifer pursuant
to subchapters E (relating to Permitted Wells) and I of this chapter (relating
to Prohibitions);
(9) the beneficial use and utilization of groundwater withdrawn from the
aquifer pursuant to subchapter C (relating to Groundwater Conservation Rules)
of chapter 715 of this title (relating to Comprehensive Water Management Plan
Implementation);
(10) the beneficial use and utilization of groundwater withdrawn from the
aquifer pursuant to subchapter D (relating to Demand Management Rules) of
chapter 715 of this title (relating to Comprehensive Water Management Plan
Implementation);
(11) the interruption of the right to withdraw and beneficially use groundwater
from the aquifer pursuant to subchapter E (relating to Drought Management
Rules) of chapter 715 of this title (relating to Comprehensive Water Management
Plan Implementation) ;
(12) the interruption of the right to withdraw and beneficially use groundwater
from the aquifer pursuant to subchapter F (relating to Critical Period Management
Rules) of chapter 715 of this title (relating to Comprehensive Water Management
Plan Implementation);
(13) the installation, operation and maintenance of meters and alternative
measuring methods pursuant to subchapter M of this chapter (relating to Meters;
Alternative Measuring Methods; and Reporting);
(14) the keeping and filing of reports pursuant to subchapter M of this
chapter (relating to Meters; Alternative Measuring Methods; and Reporting),
and any other applicable law or rule;
(15) the use of groundwater withdrawn from the aquifer only for an authorized
beneficial use and without waste pursuant to subchapter E of this chapter
(relating to Permitted Wells) and I (relating to Prohibitions);
(16) the retirement or interruption of the right to withdraw and beneficially
use groundwater from the aquifer pursuant to subchapter G (relating to Springflow
Maintenance Rules) of chapter 715 of this title (relating to Comprehensive
Water Management Plan Implementation);
(17) proportional adjustment pursuant to subchapter G (relating to Groundwater
Available for Permitting, Proportional Adjustment, Equal Percentage Reductions)
of chapter 711 of this title (relating to Groundwater Withdrawal Permits);
(18) retirement by equal percentage reductions pursuant to subchapter G
(relating to Groundwater Available for Permitting, Proportional Adjustment,
Equal Percentage Reductions) of chapter 711 of this title (relating to Groundwater
Withdrawal Permits);
(19) retirement pursuant to subchapter H (relating to Withdrawal Reductions
and Regular Permit Retirement Rules) of chapter 715 of this title (relating
to Comprehensive Water Management Plan Implementation);
(20) the acquisition of additional water supplies pursuant to subchapter
J (relating to Alternative Water Supply Rules) of chapter 715 of this title
(relating to Comprehensive Water Management Plan Implementation);
(21) the provision of notice of changes in name and mailing address of
the permitting pursuant to §707.105 of chapter 707 of this title (relating
to Change of Name, Address or Telephone Number);
(22) the payment of all registration, application, aquifer management,
and retirement fees pursuant to chapter 709 of this title (relating to Fees);
(23) the cessation of withdrawals under interim authorization status pursuant
to subchapter D (relating to Interim Authorization) of chapter 711 of this
title (relating to Groundwater Withdrawal Permits);
(24) abandonment pursuant to subchapter H (relating to Abandonment and
Cancellation) of chapter 711 of this title (relating to Groundwater Withdrawal
Permits);
(25) cancellation pursuant to subchapter H (relating to Abandonment and
Cancellation) of chapter 711 of this title (relating to Groundwater Withdrawal
Permits);
(26) the restoration of equally proportionally reduced amounts pursuant
to subchapter K (relating to Additional Groundwater Supplies) of chapter 711
of this title (relating to Groundwater Withdrawal Permits);
(27) the transfer of the permit pursuant to subchapter L (relating to Transfers)
of chapter 711 of this title (relating to Groundwater Withdrawal Permits);
(28) the prohibition on the use of groundwater withdrawn from the aquifer
at a place of use outside of the boundaries of the authority pursuant to §
711.220 of this chapter (relating to Place of Use Outside of Authority Boundaries);
(29) compliance with the terms and conditions of the permit;
(30) compliance with the act;
(31) compliance with the rules of the authority; and
(32) any other condition as may, in the discretion of the board be reasonable
and appropriate.
Section 711.134
Menard comments on § 711.134 of the proposed rules as this section,
among other things, relates to groundwater withdrawal permit conditions based
on interruption. Menard objects to § 711.134 which, among other things,
may result in the interruption of his permit rights to withdraw groundwater
from the aquifer, allegedly thereby depriving him, without compensation, of
the ability to beneficially use or lease groundwater.
The Authority received the above-referenced comment and disagrees with
it. The basis for this determination is that interruptions of withdrawals
under a statutory-based permitting system are temporary and triggered by aquifer
or springflow conditions. Thus, interruptions are based upon the lack of available
water. The Authority is not aware of any legal duty to compensate the owners
of groundwater withdrawal permits for interruptions based on these conditions.
Accordingly, the Authority has not modified § 711.134 based on this comment.
Howard B. Shadrock also commented upon § 711.134 of the proposed rules.
Shadrock describes irrigation as drought "insurance" and expresses concern
over losing that insurance and his inability to cover his costs. Shadrock
basically complains that his right to irrigation can be interrupted and not
provide him with the water he may need to irrigate during drought conditions.
The Authority received the above-referenced comment and is unable to formulate
a response. The nature of the comment is such that it does not make a recommendation
concerning a proposed rule, but rather makes observations as to an alleged
affect of aquifer regulation during drought conditions. The Authority notes
that § 711.134 merely catalogues all of the other sections or other subchapters
of the Authority's rules that may impose permit conditions. This section does
not itself state the substance of the conditions. The substantive section
will be in the other sections or subsections and the Authority encourages
commenters to provide comments on the substance of those rules at the appropriate
time.
Earl & Brown commented upon proposed rule §711.134(1), which,
as proposed, provided:
Any groundwater withdrawal permit issued by the authority is subject to
the following conditions:
(1) the protection of the water quality of the native groundwater of the
aquifer by: . . .
Earl & Brown suggests the term "native groundwater" should be clearly
defined either in this provision or in the General Definition section of these
proposed rules.
As shown above, this subsection has been deleted from § 711.134.
Grossenbacher commented on proposed rule § 711.134(4)(D) regarding
"Standard Conditions"' and which reads as follows:
(4) the protection of aquatic and wildlife habitat, and the protection
of species that have been listed as threatened or endangered under applicable
federal or state law by:
(D) the interruption of the right to withdraw and beneficially use groundwater
from the aquifer pursuant to Chapter 715, Subchapter F of this title (relating
to Critical Period Management Rules; Comprehensive Water Management Plan Implementation);
Grossenbacher believes that this section creates a "use it or lose it"
rule which is counterproductive and a confiscation of his water rights. Secondly,
Grossenbacher comments on the transfer by sale or lease of water rights and
the critical period management program of the Authority and its impact on
transfers.
The Authority received the above-referenced comment and disagrees with
it. Section 711.134(4)(D) is merely a reference to the subchapter that will
contain the critical period management rules, and groundwater withdrawal permits
will be subject to being conditioned based on those rules. Section 711.134(4)(D)
does not itself contain the substance of those rules. Rather, it provides
a handy cross-reference to the permittee of where the substance of those rules
may be found. The Authority notes, however, that the critical period management
plan is not conceived to contain a 10 year "use it or lose it" provision.
Rather, this issue is addressed in the abandonment and cancellation rules
which are pending proposal by the Authority. We encourage commenters to comment
on the "use it or lose it" provisions that may be contained in those rules
in proposed subchapter H of chapter 711 of this title.
As for Grossenbacher's comments on transfers, the Authority notes that
the transfer rules are also not part of these proposed rules and any comments
directed thereto are more appropriately made when the transfer rules are proposed
in subchapter L of Chapter 711 of this title.
Schirmer and VBI also commented on proposed rule § 711.134(4)(D).
They ask that it be deleted. Schirmer and VBI are Bexar County irrigation
farmers and assert that Bexar County farmers are more adversely affected by
the Authority's rules than farmers in Medina and Uvalde Counties. Schirmer
encourages the Authority to develop an irrigation suspension program for Bexar
County farmers.
The Authority received the above-referenced comments and disagrees with
the request to delete § 711.134(4)(D). Section 711.134 merely catalogues
all of the other sections or other subchapters of the Authority's rules that
may impose permit conditions. This section does not itself state the substance
of the conditions. The substantive section will be in the other sections or
subsections and the Authority encourages comments to provide comments on the
substance of those rules at the appropriate time.
SAWS also commented on section of § 711.134. SAWS concurs that withdrawals
are limited as per § 1.14 of the Act, but objects to referencing as of
yet unwritten rules in § 711.134. SAWS finds it unnecessary for the Authority
to try to give meaning to every action in § 1.16(g) of the Act. SAWS
comments that it would "hate to see" unused required rights canceled by the
Authority because, according to SAWS, unused rights serve a conservation purpose
and should not be canceled. SAWS seeks the following revisions:
(1) the protection of the water quality of the native groundwater of the
aquifer by taking no action that pollutes or contributes to the pollution
of the aquifer; and
ELIMINATE: (1)(A), (1)(B), (1)(C), (1)(D), (1)(E), and (1)(F);
(2)(A), (2)(B), (2)(C), (2)(D), (2)(E), and (2)(F);
(3)(B), (3)(C), (3)(D), (3)(E), (3)(F), (3)(G), and (3)(H);
(4)(A), (4)(B), (4)(C), (4)(D), (4)(E), (4)(H), and (4)(I);
(5)(A),(5)(B), (5)(C), (5)(D), (5)(E), and (5)(H); and (10).
Authority staff received the above-referenced comments and disagrees with
them. The basis for this determination is that § 711.134 provides specific
conditions of the permit and notice to the applicant that the permit is subject
to additional rules that are consistent with the Act stated therein. Section
711.134 merely catalogues all of the other sections or other subchapters of
the Authority's rules that may impose permit conditions. This section does
not itself state the substance of the conditions. The substantive section
will be in the other sections or subsections and the Authority encourages
commenters to provide comments on the substance of those rules at the appropriate
time. The Authority believes it is appropriate and helpful for the regulated
public to be given notice of the relevant rules which may affect their permits.
TFB submitted comments relating to § 711.134(4)(J) of the proposed
rules, which states:
Any groundwater withdrawal permit...is subject to the following conditions...
. . .
(4) the protection of aquatic and wildlife habitat, and the protection
of species that have been listed as threatened or endangered under applicable
federal or state law by: . . .
(J) engaging in no conduct that violates the Endangered Species Act, 16
U.S.C. § § 1531-1544 (1998), or applicable state law, relative to
listed threatened or endangered species; . . .
TFB seeks the deletion of this provision. TFB presumes that, as a condition
of the permit, the provision would require the permittee to comply with the
Endangered Species Act ("ESA"). TFB believes the provision is an indefinite
requirement and questions what standards the Authority would apply in proving
compliance. TFB also points out that the prohibitions of the ESA apply to
all applicants whether it is stated in the Authority's rules or not.
The Authority agrees that the regulated community is required by federal
law to comply with the ESA regardless of whether that fact is stated as a
permit condition by the Authority. Therefore, the Authority has deleted §
711.134(4)(J).
Sections 711.164(b) and 711.170
Zinsmeyer's comments purport to relate to proposed §711.164(b) and §711.170.
However, his comments do not appear to be directed at those rules. Section
711.164(b) identifies the 400,000 acre-feet "cap" which becomes effective
beginning January 1, 2008. Section 711.170 identifies the amount of groundwater
available for permitting for monitoring well permits. Zinsmeyer asserts that
every irrigator is entitled to a permit for two acre-feet per acre. He also
states that the "use it or lose it" proposal is contradictory in that a well
owner will not conserve water if he loses his right to the amount he actually
saved.
These comments seem to be directed towards rules which are not a part of
this rulemaking package, but which the Authority is in the process of proposing
for possible adoption at a later date and which will be located at Chapter
711, Subchapter H of this title (relating to Abandonment and Cancellation;
Groundwater Withdrawal Permits). In light of the above discussion, Authority
staff has not modified §§ 711.164(b) or 711.170.
Sections 711.166 and 711.168
Taggert commented on §§711.166 and 711.168 which relate to groundwater
available for permitting for term and emergency permits. He states as follows:
These rules propose to exclude term and emergency permits from the statutory
cap on annual withdrawals. Because of the potential impact of this element
to the proposed rules on springflows, the City of San Marcos recommends that
the EAA Board and Staff carefully analyze the quantity available for term
permitting, and closely scrutinize the circumstances giving rise to emergency
permits.
Authority staff received the above-referenced comment and agrees: 1) that
term and emergency permits do not apply towards the caps; and 2) that the
Authority should carefully analyze the quantity of water available for term
and emergency permits. The rules, as written, are designed to foster this
inquiry. No modification of §§711.166 and 711.168 is requested or
warranted in response to this comment.
Section 711.166(b)(2)
SAWS commented upon proposed rule § 711.166(b)(2), which states that
term permit applications are allowed for wells within the San Antonio pool
and within Atascosa or Medina counties when well TD 69-47-306 is greater than
685 feet above mean sea level. SAWS maintains that reference to any index
well, beyond those mentioned in the Act, should be avoided unless the supporting
hydrogeologic research under § 1.14(g) has been conducted. SAWS seeks
the deletion of § 711.166(b)(2).
The Authority disagrees that additional hydrogeologic research is required
before establishing additional index wells for any aquifer pool. Section 1.14(g)
of the Act provides that additional index wells may be established for a pool
(in this case, the San Antonio pool), if such additional index wells "aid
the regulation of withdrawals from the pool." Nevertheless, the Authority
has deleted §711.166(b)(2) as it was originally proposed and term permits
will now only be interrupted based on index wells J-17and J-27.
Section 711.168(b)
SAWS commented on § 711.168 (b) of the proposed rules which references
index well TD 69-47-306 when discussing the availability of water for emergency
permits. SAWS asserts that reference to any index wells, other than those
mentioned in the Act, should be avoided unless the supporting hydrogeologic
research under § 1.14(g) has been conducted. SAWS suggests amending §
711.168(b) by deleting the reference to well TD 69-47-306.
This comment has been rendered moot by nature of the fact that the Authority
has deleted references to well TD 69-47-306 in this section.
Section 711.170(b)
SAWS comments on § 711.170 (b) of the proposed rules which references
index well TD 69-47-306 when discussing the availability of water for monitoring
well permits. SAWS asserts that reference to any index wells, other then those
mentioned in the Act, should be avoided unless the supporting hydrogeologic
research under § 1.14(g) has been conducted. SAWS suggests changing §
711.170(b) by deleting the reference to well TD 69-47-306.
The Authority received the above-referenced comment and disagrees that
additional hydrogeologic research is required before establishing additional
index wells for any aquifer pool. Section 1.14(g) of the Act provides that
additional index wells may be established for a pool (in this case, the San
Antonio pool), if such additional index wells "aid the regulation of withdrawals
from the pool." In light of the above discussion, Authority staff has not
modified § 711.170(b).
Section 711.172
Suzanne (last name unknown), with the East Medina County Special Utility
District, commented on § 711.172, the proportional reduction rule. She
states the decreases in water permits will not allow for the growth rates
in Medina County. While she supports farmers getting two acre-feet, she is
concerned that Medina County does not have funds like SAWS to transfer water
from Canyon Lake or down from the coast.
The Authority received the above-referenced comment and agrees that the
proportional adjustment process, which is mandated by the Act, will require
some entities to obtain supplemental water supplies. The Authority believes
this to be an unavoidable outcome mandated by the Act. The reductions required
by the Act and implemented in § 711.172 will require many aquifer users
to raise funds to secure other aquifer permits or alternative water sources.
The Authority declines to modify § 711.172 in response to this comment.
Section 711.172(b)(1)
Several individuals and entities submitted comments regarding the definition
of "historical average minimum" found at § 711.172(b)(1). That definition,
as proposed, read as follows:
Historical average minimum-the minimum amount of groundwater from the aquifer,
as determined by the authority, that an applicant, who operated a well in
three or more years during the historical period, shall be authorized to withdraw
in an initial regular permit equal to the average amount of groundwater withdrawn
annually during the historical period calculated as follows:
Figure: 31 TAC Chapter 711 Preamble-1
Frenzal, of Bexar County Water and Control Improvement District #10, complains
that the definition is hard to follow and needs reworking.
Cemex claims the definition of "historical average minimum" is flawed and
should include a mechanism by which longer-term existing users (having operated
a well for more than 10 years in the historical period) could eliminate up
to five consecutive years of use from the calculation of their historical
average. Cemex alleges that a straightforward average calculation prejudices
longer-term existing users, as opposed to shorter-term existing users, because
longer-term users would be unable to omit earlier years of lesser usage from
the period used to calculate their historical average. Cemex points to a prior
version of the Authority's rules which contained a mechanism like the one
now sought by Cemex. Cemex alleges that the fact that the Authority previously
considered such a mechanism to be a viable option, coupled with what Cemex
believes to be the Texas Legislature's supposed acquiescence and affirmance
of the Authority rule containing that mechanism, divests the Authority of
the power to substitute a different rule at this time. Cemex also asserts
that policy considerations support the use of a mechanism by which longer-term
existing users could eliminate up to five consecutive years of use from the
calculation of their historical average instead of a straightforward average
calculation.
Making the same arguments as Cemex, Vulcan argues in favor of a mechanism
allowing long-term existing users to elect to omit a period of time from the
calculation used to arrive at their historical average. Vulcan also contends
that the Authority's calculation method will use the "historical average minimum"
as the "starting point" from which permits will be adjusted downward.
TFB contends that the calculation of the historical average minimum provided
in this section skews the average downward for each well that has operated
for three or more years during the historical period. TFB asserts the calculation
includes years during the historical period when no water was withdrawn by
the well under consideration and also includes the year of the well's installation
in the calculation. This approach is inappropriate, according to TFB, because
the above-mentioned years should not be added in the calculation in light
of the fact that § 1.16(e) of the Act refers to the historical average
minimum as the average of the amount of water actually withdrawn annually
during the historical period. TFB suggests two alternative methods. Under
the first method, TFB would: (1) exclude the year of well installation, any
years in which no pumping occurred, and all years for which annual pumping
fell outside three standard deviations of the statistical root mean square
value; and (2) then calculate the average for the remaining years. A second
method, which is the one apparently preferred by TFB, would be to establish
a threshold amount of withdrawal for which years having a lesser withdrawal
volume would not be included in the calculation of the average.
Johnson commented that the end result of the rule is that long-term users
who are required to use an average over a long period of time are treated
less fairly than short-time users. However, he stated that given the difficult
compromise that had to be achieved to address allocation of historical use
consistent with statutory guidelines, the rules as drafted and published are
as close to the middle ground as can be accomplished.
Using arguments similar to those made by the TFB, Earl & Brown asserts
that the minimum should not be calculated by including years during the historical
period when no water was withdrawn by the well owner under consideration.
Kosub commented that the definition should be revised to make it clear
that the concept of waste is incorporated and considered when an applicant's
historical average minimum is calculated. Pursuant to the definition, as proposed,
the minimum is based, in part, upon the "total aggregate withdrawals from
the well (in AF/annum) during the historical period." Kosub wishes to see
the definition revised to make it clear that withdrawals during the historical
period which were wasted and not put to a beneficial use are not included
in the calculation of the historical average minimum.
With respect to the comment from Frenzel, the Authority acknowledges that
the definition is somewhat lengthy and hard to follow. The Authority believes,
however, that this is, to some degree, an unavoidable consequence of the highly
technical and complex subject matter. As explained more fully below, however,
the Authority has slightly revised the definition in § 711.172(b)(1)
in response to another comment and in order to clarify it.
The Authority disagrees with the comments submitted by Cemex and Vulcan.
The Authority does not believe it is bound, as a matter of law or policy,
to re-adopt its prior rule which included a mechanism by which longer-term
existing users (having operated a well for more than 10 years in the historical
period) could eliminate up to five consecutive years of use from the calculation
of their historical average. The Authority declines to include such a mechanism
in § 711.172(b)(1) or in the Chapter 711 rules generally because the
Authority now believes that such a mechanism lacks a solid statutory basis.
This change in position is based, in part, upon the Authority's two-and-a-half
years of additional experience in working with the Act since the original
rule, now sought by Cemex and Vulcan, was adopted. Section 1.16(e) of the
Act states, in part, that an existing user "who operated a well for three
or more years during the historical period shall receive a permit
for at least the average amount of water withdrawn annually during the historical
period
." (Emphasis added.) The Authority believes this wording sets
out a straightforward averaging process, and does not allow for the exclusion
of certain amounts of "water withdrawn annually during the historical period."
For the same reasons, the Authority declines to adopt the TFB's and Earl &
Brown's suggestions that certain years of low or no pumpage during the historical
period be excluded from the calculation of the historical average minimum.
The Authority agrees with the comments by Johnson.
It is true that the Authority has, in the past, taken the position now
advocated by Cemex and Vulcan. However, the Authority, just like any administrative
agency, must have the right and power to repeal, amend or revise its own rules.
Administrative agencies may, when reconsidering the relevant facts, alter
past interpretations or overturn past administrative rulings and practices.
The Authority does not agree with the assertion that the Texas Legislature
has acquiesced or affirmed the Authority's prior rule on this point and that
the Authority is therefore legally prohibited from abandoning its old rule
or reinterpreting the Act. The old rule cited by Cemex and Vulcan, 31 TAC,§
703.1, was adopted by the Authority effective March 1, 1998. The rule was
invalidated by a Final Judgment issued by the Honorable Judge Joseph H. Hart
on December 17, 1998 in a lawsuit styled
Living Springs
Artesian Springs, Ltd. v. Edwards Aquifer Authority,
Cause No. 98-02644,
in the District Court of Travis County, Texas, 353rd Judicial District. Thus,
when the Texas Legislature convened the following month, in January 1999,
there was no such rule in effect that the Legislature could, as Cemex and
Vulcan contend, "endorse." As a result, there is no basis to contend that
the Legislature "agreed," "acquiesced," or "affirmed" the Authority's prior
rule.
The Authority also disagrees with Vulcan's assertion that the method used
by the Authority to calculate permit amounts will use the "historical average
minimum" as the "starting point" from which permits will then be adjusted
downward. Section 711.172(g) describes the proportional adjustment process
and uses, as the starting point from which permits are proportionately adjusted
downward, each applicant's maximum historical use.
The Authority notes that the comment from Kosub is well taken. The intent
of the Authority has always been that water withdrawn during the historical
period, but which was not put to a beneficial use (i.e., was wasted), cannot
be included in an applicant's "total aggregate withdrawals during the historical
period" for purposes of calculating the applicant's historical average minimum.
The Authority believes that the wording of § 711.172(b)(1) should be
revised to make this intent clearer and that the definition could otherwise
be clarified. Accordingly, the Authority has revised the rule to read as follows:
Historical average minimum- an amount, as determined by the authority,
for an applicant who operated a well in three or more years during the historical
period, equal to the average amount of groundwater withdrawn annually during
the historical period and put to beneficial use, calculated as follows:
Figure: 31 TAC Chapter 711 Preamble-2
Section 711.172
Patterson asserts that proportional adjustment, without a "buydown" of
permits to reach the 450,000 acre-feet cap, can be accomplished by amending §
711.172 so as to issue an interruptible permit to each applicant for the difference
between the applicant's "minimum" permit (either the "historical average minimum"
or the "irrigator minimum") and the applicant's permit calculated after the
"first proportional reduction" to 450,000 af/y. Patterson suggests this approach
because: (1) "buy-downs" are cost prohibitive; (2) the interruptible rights
that would be issued to municipal, industrial, and agricultural permit applicants
would become very valuable; and (3) the Authority has better uses to which
the "buydown" funds could be put.
Authority staff received the above-referenced comment and disagrees with
it. The Authority has concluded that an interruptible initial regular permit
for the "step-up" amount may have the potential to negatively affect the Authority's
other aquifer management programs that are designed to maintain aquifer and
springflow levels. Additionally, the interruptibility criteria may well render
this part of the initial regular permit unsuitable for the purposes of use
for many permittees because the water would not be legally available for withdrawal
after the aquifer dropped below certain index well levels earlier in the year
and would likely remain unavailable for the remainder of the year. Finally,
Authority assessment of this approach indicates that the overall economic
effect on the region is less if a "step-up amount" withdrawal reduction program
is adopted instead of the issuance of interruptible permits for the "step-up
amount." In light of the above discussion, the Authority has not modified §
711.172.
Section 711.172(b)(2)
TFB submitted comments regarding proposed rule § 711.172(b)(2), which
defines the "irrigator minimum" as follows:
(2) Irrigator minimum-the minimum amount of groundwater from the aquifer,
as determined by the authority, that an applicant for irrigation use shall
be authorized to withdraw in an initial regular permit equal to two acre-feet
times each acre of land the applicant, or his contract user, prior user, or
former existing user actually irrigated in any one calendar year during the
historical period if the applicant, or his contract user, prior user, or former
existing user:
(A) owned, leased, or otherwise had a legal right to irrigate the land
during the historical period; and
(B) owned the well from which the land was irrigated.
TFB alleges that the rule is not clear and seeks clarification as to whether
the applicant may have owned the well during the historical period, but leased
the irrigated property and the use of the well to a prior user, contract user
or former existing user.
The Authority agrees with the comment, in part. The applicant must be an
existing user. See § 711.98(a); Act § 1.16(a). However, because
the ownership of points of withdrawal and places of use has not been static
since the inception and closure of the historical period, the Authority must
account for transfers and the impact of transfers on existing user status.
There are several types of possible "existing users." First, the classical
existing user would be a person who on June 1, 1993, owned an existing aquifer
well with historical usage and filed a declaration. This type of existing
user would have been the sole owner of the well during the historical period
and would not yet have transferred his interest in the well at the time the
Authority issues the final initial regular permit. A second type of existing
user would be a transferee of the first category of existing user where the
transferee acquired his interest in the well during the historical period
and has not yet transferred his interest in the well. A third type of existing
user is one who acquired his interest in the well after the close of the historical
period. A well owner who transferred his interest in the well during the historical
period is referred to by the Authority as a "prior user." See § 711.1(4).
An existing user who transferred his interest in the well after the close
of the historical period is referred to by the Authority as a "former existing
user." As defined by § 711.1(2), an existing user is a person, or the
successor in interest of such a person, who, on June 1, 1993, owned an existing
aquifer well with historical usage. The existing user is free to have owned
the well during the historical period, but leased the irrigated property and
the use of the well to a contract user, prior user, or former existing user.
(If such a lease was made to a prior user or former existing user, then the
prior user or former existing user would also be considered a contract user.)
A contract user is defined in § 711.1(1) as a person who, during the
historical period, withdrew and placed to beneficial use aquifer water pursuant
to a contract or other legal right obtained from a prior user or existing
user who owned the existing well. Thus, a contract user cannot have been the
owner of the well and § 711.172(b)(2) is misleading to the extent it
suggests the contract user must have owned the well. In light of the TFB comment
and in order to make the definition more easily understandable, the Authority
has modified § 711.172(b)(2) to read:
(2) Irrigator minimum- an amount, as determined by the authority, for an
applicant for irrigation use, equal to two acre-feet times each acre of land
the applicant, or his contract user, prior user, or former existing user actually
irrigated in any one calendar year during the historical period if:
(A) the applicant, or his contract user, prior user, or former existing
user owned, leased, or otherwise had a legal right to irrigate the land during
the historical period; and
(B) the applicant, or his prior user or former existing user owned the
well from which the land was irrigated.
Section 711.172(b)(3)(C)
Frenzel and SAWS commented on § 711.172(b)(3)(C), which states:
(3) Maximum historical use (MHU)-the amount of groundwater from the aquifer
as determined by the authority that, unless proportionally adjusted, an applicant
for an initial regular permit is authorized to withdraw equal to the greater
of the following, as may be applicable: . . .
(C) for an applicant who has beneficial use without waste during the historical
period, but, due to the applicant's activities not having been commenced and
in operation for a full calendar year, the applicant does not have beneficial
use for a full calendar year, the applicant's extrapolated maximum beneficial
use calculated as follows: the amount of groundwater that would normally have
been placed to beneficial use without waste by the applicant for a full calendar
year during the historical period for the applied for purpose had the applicant's
activities been commenced and in operation for a full calendar year during
the historical period.
Frenzel expresses concern that the "extrapolation" allowed by this rule
unfairly treats existing users with less than one year's full use during the
historical period more favorably than long-term existing users.
SAWS urges "stricter adherence" to § 1.16(e) of the Act for less than
one-year users and suggests that the rule read:
(b)(3)(C) for an applicant who has beneficial use without waste during
the historical period for less than a full year, the amount of water that
would normally be beneficially used without waste for the intended purpose
for a calendar year.
The Authority disagrees with the Frenzel comment. The basis for this determination
is that the Authority believes the extrapolation called for in the rule is
directly mandated by § 1.16(e) of the Act, which states: "If a water
user does not have historical use for a full year, then the authority shall
issue a permit for withdrawal based on an amount of water that would normally
be beneficially used without waste for the intended purpose for a calendar
year."
The Authority also disagrees with the SAWS comment. Rather than merely
parroting what § 1.16(e) of the Act says, the Authority believes that
it is helpful and appropriate to "flesh out" in more detail the process by
which the "extrapolation" for a full year's use will take place. In light
of the above discussion, Authority staff has not modified §711.172(b)(3)(C).
Section 711.172(b)(4)
SAWS commented upon § 711.172(b)(4) of the proposed rules, which defines
"operate a well" as "the withdrawal of groundwater from a well for a beneficial
use." SAWS requests clarification regarding the commencement of a well's operation.
SAWS suggests the well's operation begins after it is completed, regardless
of withdrawals. Accordingly, SAWS proposes that § 711.172(b)(4) read:
(b)(4) Operate a well- the capability to withdraw groundwater from a well
for a beneficial use.
Authority staff received the above-referenced comment and disagrees with
it. Section 1.16(e) of the Act provides that, in order to be eligible for
the historical average minimum, an applicant must have "operated a well for
three or more years during the historical period." The Authority interprets
this provision to mean that the applicant must have actually withdrawn water
from a well in at least three years. The Authority disagrees with SAWS' suggestion
that the phrase "operate a well" should include years in which a well was
capable of being operated, but was not actually used to withdraw water. In
light of the above discussion, the Authority has not modified § 711.172(b)(4).
Section 711.172
SAWS comments on § 711.172 in general. SAWS requests clarification
of the calculations found within § 711.172 and asserts the rules should
incorporate hypothetical examples. SAWS suggests grouping the terms "PA-1
amount +" and "SUAs" together, appropriately, in Figure 31 TAC §711.172(g)(8)(A).
The Authority received the above-referenced comment and disagrees with
it. The basis for this determination is the commenter did not specify how
the calculations found within § 711.172 could be clarified. Given the
complexity of the subject matter, the Authority acknowledges that these rules
are unavoidably difficult. It is not clear, however, that adding hypothetical
examples would add to the clarity to the rules. In light of the above discussion,
Authority staff has not modified § 711.172 in response to this comment.
Section 711.172(b)(5)
Earl & Brown commented upon proposed rule §711.172(b)(5), which,
as proposed, provided:
(5) Step-up amount (SUA)-the amount of groundwater from the aquifer as
determined by the authority that an applicant for an initial regular permit
is authorized to withdraw equal to the difference between an applicant's irrigator
or historical average minimum, if any, and the applicant's PA-1 amount as
determined in subsection(g)(5) of this section.
Earl & Brown comments that the provision should clarify whether the
step-up amount is to be "stepped up" with firm or uninterruptible rights or
otherwise.
Authority staff received the above-referenced comment and believes the
commenter misapprehends the nature of the definition. The definition of the
step-up amount (SUA) in §711.172(b)(5) is but one part of the method
used to calculate initial regular permit amounts. The definition does not
specify whether SUAs are interruptible, nor should it. Instead, all groundwater
withdrawal amounts authorized in initial regular permits may be subject to
interruption, as is made clear in § 711.98(g). The Authority concedes,
however, that the definition of SUA could be made clearer. Further, the Authority
believes a provision must be made to account for irrigators who qualify for
both of the minimums in order to ensure that such irrigators get the benefit
of whichever minimum is larger. Accordingly, the Authority has modified §
711.172(b)(5) to read:
(5) Step-up amount (SUA)- the difference between an applicant's irrigator
or historical average minimum, if any, and the applicant's PA-1 amount as
determined in subsection(g)(5) of this section. Where an irrigator applicant
qualifies for both an irrigator minimum and an historical average minimum,
the SUA shall be equal to the difference between whichever of the applicant's
minimums is greater and the applicant's PA-1 amount.
Sections 711.172 - 711.176
The TFB submitted comments generally regarding §§ 711.172-711.176
of the proposed rules. TFB maintains that these rules, operating together,
do not guarantee the withdrawal minimums the Act expressly provides in §
1.16(e) which states:
An existing irrigation user shall receive a permit for not less that two
acre-feet a year for each acre of land the user actually irrigated in any
one calendar year during the historical period. An existing user who has operated
a well for three or more years during the historical period shall receive
a permit for at least the average amount of water withdrawn annually during
the historical period. (Emphasis added by TFB).
TFB contends this is non-negotiable language which the Authority cannot
ignore. However, according to TFB, proposed rules §§ 711.172-711.176
allow an applicant to receive an initial regular permit authorizing withdrawal
of groundwater, from the aquifer, in an amount below that which the Act guarantees.
The Authority received the above-referenced comment, and disagrees with
it. The Act does not guarantee that the initial regular permit minimums would
always be able to be withdrawn in any particular year. In fact, sections of
the Act, such as § 1.26 relating to critical period management, may specifically
result in the inability to withdraw, in a year, the full groundwater amount
allowed in an initial regular permit due to aquifer or springflow conditions.
Further, there is only one scenario under which certain applicants may
not receive permits entitling them to withdraw the full minimum amount-if
an applicant qualifies for a minimum, a PA-2 amount is calculated, and the
applicant's minimum is greater than his PA-2 amount, then that applicant will
receive a permit allowing him to withdraw only his PA-2 amount. It should
be noted that the Authority believes there is a reasonable chance that this
scenario will never occur because the Authority's withdrawal reduction (buy-down)
program will be effective in achieving the cap. It should be further noted
that even if this scenario does occur the applicant will be compensated by
the Authority for the fair market value of the difference between the applicant's
minimum and PA-2 amount.
Finally, the Authority needs the ability to implement this scenario, if
necessary, based upon the realities of the permit program. Based upon its
extensive review of the initial regular permit applications on file, it appears
entirely likely that the aggregate of all permit minimums will exceed the
450,000 acre-foot cap, yet section 1.14(b) of the Act mandates that permitted
withdrawals may not exceed the 450,000 cap. Thus, the Authority must have
a mechanism in place in order to achieve the cap. Given that compensation
is provided for the amount below the minimum which the applicant may not withdraw,
the Authority believes the approach taken by it in § 711.176 is a reasonable
way to achieve the cap. In light of the above discussion, the Authority has
not modified §§711.172 through 711.176 in response to this comment.
Section 711.172(b)(1)
CPS made comments relating to § 711.172(b)(1)of the proposed rules.
CPS suggests the Authority make clear what partial years are to be considered
when determining the historical average minimum under this section.
The Authority received the above-referenced comment and disagrees with
it. The basis for this determination is that § 711.172(b)(1) provides
that any operation, by withdrawal of groundwater, of a well in a year counts
as a year for purposes of determining eligibility for the historical average
minimum. Therefore, there is no need to identify or provide for special calculation
provisions for partial years. Accordingly, the Authority has not modified §711.172(b)(1)
in response to this comment.
Section 711.172(b)(3)
CPS commented upon proposed rule § 711.172(b)(3). CPS contends the
Authority should clarify how partial years will be treated when determining
permitted amounts, particularly for maximum historic use amounts under this
section.
Authority staff received the above-referenced comment and disagrees with
it. The basis for this determination is that § 711.172(b)(3) provides
that for purposes of determining maximum historical use, full calendar years
are to be used. If a year is a partial year, the maximum historical use, as
with any other full calendar year, is the maximum aggregate withdrawal for
that full or partial year. The rule does not allow for the interpolation of
the maximum historical use for a partial year except for the special statutorily-derived
(1.16(e)) single partial year rule in § 711.172(b)(3)(C). Therefore,
there is no need to identify or provide for special calculation provisions
for partial years. Accordingly, the Authority has not modified § 711.172(b)(3).
Section 711.172(b)(5)
TFB submitted comments regarding proposed rule § 711.172(b)(5). TFB
asserts the definition of "step-up amount" is ambiguous. As a result, TFB
suggests defining the numerical amount as a mathematical equation.
The Authority received the above-referenced comment and agrees in part
with it. The basis for this determination is the description for "step-up
amount" found in § 711.172(g)(6) is derived from a mathematical equation.
The Phase-1 proportionally adjusted amount is described in § 711.172(g)(5).
However, as noted above, the Authority staff has modified § 711.172(b)(5)
to clarify it.
Section 711.172(e)
Bragg submitted comments relating to proposed rule § 711.172(e), which
states:
(e) Duty to Proportionally Adjust. If the total aggregate maximum historical
use of all initial regular permits exceeds the amount of groundwater available
for permitting in § 711.164(a) of this title (relating to Groundwater
Available for Permitted Withdrawals for Initial and Additional Regular Permits),
the board shall, pursuant to this section, proportionally adjust the maximum
historical use of each permit.
Bragg contends proportional adjustment for agriculture is detrimental and
possibly fatal to the industry primarily because an amount less than 2 acre-feet
is: 1) not enough to raise annual crops; and 2) will destroy investments and
equipment, land purchases, and make improvement impossible. Bragg contends
that § 1.14(d) of the Act gives the Authority the power to raise the
amount of groundwater available for permitting.
Authority staff received the above-referenced comment and is unable to
formulate a clear "agree or disagree" response. The commenter notes several
detrimental effects that may be caused to the agricultural economy due to
the operation of the rule. However, the commenter does not recommend that
the rule be changed. Instead, Bragg recommends that the Authority invoke some
other power, with which it has been endowed, to increase the groundwater available
for permitting pursuant to § 1.14(d) of the Act. The Authority notes
that § 1.16(e) of the Act requires that, if necessary, it perform a proportional
adjustment process on all applicants for an initial regular permit. The legislature
has not, however, authorized the Authority to consider economic impacts in
the proportional adjustment process. Yet (as explained above) the Authority
is required to conduct a proportional adjustment process if necessary under §
1.16(e) of the Act. The Authority agrees that § 1.14(d) creates a process
whereby the groundwater available for permitting may be increased. However,
the Authority may invoke this procedure only after a certain technical basis
is determined to exist and after certain consultation procedures have been
complied with. The decision to invoke § 1.l4(d) will be available in
the event the technical data base is found to exist and the procedural steps
occur. The Authority notes that it has proposed other rules to implement §
1.14(d) in subchapter K of this title. The Authority encourages the commenter
to comment on those rules at the appropriate time. Accordingly, the Authority
has not modified proposed § 711.172(e).
Section 711.172(g)(7) and (g)(8)
TFB submitted comments regarding proposed rule § 711.172(g)(7) and §
711.172(g)(8), which states:
(7) Phase 2-Proportional Adjustment Factor. If the total of all PA-1 amounts
plus all step-up amounts remaining after the Board has issued agreed order
pursuant to § 711.180 of this title (relating to Voluntary Waiver of
Applications for Initial Regular Permits) exceeds 450,000 acre feet per annum,
then the board shall calculate a Phase-2 proportional adjustment factor ("PA-2
Factor") as follows:
(8) Phase 2-Proportionally Adjusted Amount. The board shall then calculate
a Phase-2 proportionally adjusted amount ("PA-2 amount") for each applicant
issued an initial regular permit as follows:
(A) For all applicants eligible to receive a step-up amount:
(B) For all applicants not eligible to receive a step-up amount:
TFB suggests the formula given in § 711.172(g)(8)(A) may be incorrectly
written. As written, TFB asserts that the formula applies the PA-2 factor
only to the PA-1 amounts, not to SUAs. The formula is presently written as
follows:
PA-2 amount = (PA-1 amounts + SUAs) - (PA-2 Factor * PA-1 amounts + SUAs).
TFB contends that the present formula reduces algebraically in the following
manner:
PA-2 amount = (PA-1 amounts + SUAs) - (PA-2 Factor * PA-1 amounts + SUAs)
which = (PA-1 amounts + SUAs) - (PA-2 Factor * PA-1 amounts) - SUAs
= PA-1 amounts - (PA-2 Factor * PA-1 amounts)
= PA-1 amounts * (1- PA-2 Factor)
TFB states that the reduction occurs because the PA-2 Factor does not operate
on the SUAs term as written. The SUAs terms cancel each other. Therefore,
the equation reduces down to that equation given in § 711.176(g)(8)(B).
TFB maintains that if this is the intended equation for § 711.176(g)(8)(A),
then the equations in § § 711.176(g)(8)(A) and 711.176(g)(8)(B)
are identical eradicating the need for separate statements in (8)(A) and (B).
On the other hand, if the intent was to reduce the total quantity "(PA-1
amounts + SUAs)" proportionally to the multiplier "PA-2 Factor," the formula
should be written as:
PA-2 amount = (PA-1 amounts + SUAs)
which = (PA-1 amounts + SUAs)
= PA-1 amounts * (1- PA-2 Factor) + SUAs * (1- PA-2 Factor)
= (PA-1 amounts + SUAs) * (1 - PA-2 Factor).
TFB asserts these two mathematical approaches give different results. The
latter equation would produce a proportional reduction of the total quantity
(PA-1 amount + SUA's) rather than only PA-1 amounts.
Grammatically, TFB contends that referring to "PA-1 amounts" and "SUAs"
as plural was likely unintended because the formula appears to apply to an
individual permit amount-a single quantity.
The Authority received the above-referenced comments and agrees with them.
The determination is based on the intention that the formula be written as
follows: PA-2 amount = (PA-1 amount + SUA) - (PA-2 Factor x (PA-1 amount +
SUA)). In light of the above discussion, Authority staff has modified §
711.172(g)(8)(A).
Section 711.172(g)(9)
TFB submitted comments regarding proposed § 711.172(g)(9), which states:
the board shall issue a final initial regular permit to each eligible applicant...as
provided in § 711.176(c)..."
TFB asks whether § 711.176(c) is the correct cross-reference. According
to TFB, § 711.176(c) only applies to the issuance of permits where the
irrigator or historical average minimum is greater than the PA-1 amount. TFB
indicated that it is assuming that permits will be issued to applicants that
do not have an irrigator minimum or a historical average minimum.
The Authority received the above-referenced comment and agrees with it.
The basis for this determination is that § 711.176 should be amended
to include a provision disposing of applications for those who do not qualify
for a step-up amount or whose irrigator or historical average minimum is less
than their PA-1 or PA-2 amount. By including these provisions, the Authority
has reorganized §711.176 and §711.172(g)(9) to read:
§ 711.172(g)(9):
the board shall issue an initial regular permit to each eligible applicant...as
provided in § 711.176(b) and (c). . ."
Section 711.176(b):
(b) If the aggregate maximum historical use of all applicants to be issued
initial regular permits exceeds the amount of groundwater available for permitting
in §711.164(a) of this chapter (relating to Groundwater Available for
Permitted Withdrawals for Initial and Additional Regular Permits), then an
applicant shall receive an initial regular permit authorizing the withdrawal
of groundwater from the aquifer in the following amount:
(1) if the applicant does not qualify for an irrigator or historical average
minimum, and no PA-2 amount is calculated pursuant to § 711.172(g)(7)
and (8) of this chapter (relating to Proportional Adjustment of Initial Regular
Permits), then in an amount equal to the applicant's PA-1 amount as calculated
in §711.172(g)(4) and(5);
(2) if the applicant does not qualify for an irrigator or historical average
minimum, and a PA-2 amount is calculated pursuant to § 711.172(g)(7)
and (8) of this chapter (relating to Proportional Adjustment of Initial Regular
Permits), then in an amount equal to the applicant's PA-2 amount;
(3) if the applicant qualifies for an irrigator or historical average minimum,
no PA-2 amount is calculated pursuant to § 711.172(g)(7) and (8) of this
chapter (relating to Proportional Adjustment of Initial Regular Permits),
and the applicant's irrigator or historical average minimum (or where an irrigator
applicant qualifies for both minimums, the greater of the two) is less than
the applicant's PA-1 amount as calculated in §711.172(g)(4) and (5),
then in an amount equal to the applicant's PA-1 amount;
(4) if the applicant qualifies for an irrigator or historical average minimum,
no PA-2 amount is calculated pursuant to § 711.172(g)(7) and (8) of this
chapter (relating to Proportional Adjustment of Initial Regular Permits),
and the applicant's irrigator or historical average minimum (or where an irrigator
applicant qualifies for both minimums, the greater of the two) is greater
than the applicant's PA-1 amount as calculated in §711.172(g)(4) and
(5), then in an amount equal to the applicant's irrigator or historical average
minimum (or where an irrigator applicant qualifies for both minimums, the
greater of the two);
(5) if the applicant qualifies for an irrigator or historical average minimum,
a PA-2 amount is calculated pursuant to § 711.172(g)(7) and (8) of this
chapter (relating to Proportional Adjustment of Initial Regular Permits),
and the applicant's irrigator or historical average minimum (or where an irrigator
applicant qualifies for both minimums, the greater of the two) is less than
the applicant's PA-2 amount, then in an amount equal to the applicant's PA-2
amount; or
(6) if the applicant qualifies for an irrigator or historical average minimum,
a PA-2 amount is calculated pursuant to § 711.172(g)(7) and (8) of this
chapter (relating to Proportional Adjustment of Initial Regular Permits),
and the applicant's irrigator or historical average minimum (or where an irrigator
applicant qualifies for both minimums, the greater of the two) is greater
than the applicant's PA-2 amount, then in an amount equal to the applicant's
PA-2 amount. In such a case, the difference between the applicant's PA-2 amount
and the applicable minimum may not be withdrawn by the applicant, but instead,
the authority shall provide to the applicant compensation for this amount
at the fair market value as that term is defined in §11.0275, Texas Water
Code (relating to Fair Market Value).
(c) Initial regular permits issued by the board pursuant to this section
may be issued with a provisional groundwater withdrawal amount until the total
amount of groundwater permitted for withdrawal in initial regular permits
is finally determined following an opportunity for contested case hearings
on all initial regular permit applications, as provided in § 711.172(f)
of this chapter (relating to Proportional Adjustment of Initial Regular Permits).
The authority may periodically issue Proportional Adjustment Orders in order
to assure that the amount of groundwater permitted for withdrawal in initial
regular permits does not exceed the amount available for permitted withdrawals
under section 711.164 of this chapter (relating to Groundwater Available for
Permitted Withdrawals for Initial and Additional Regular Permits).
Section 711.174(b)
SAWS commented upon § 711.174(b) of the proposed rules. SAWS suggests
that the proposed rule should reference only the Act or defined rule. SAWS
proposes changing § 711.174 to read:
(b)...retirement of initial regular permits
The Authority received the above-referenced comment and disagrees with
it. The basis for this determination is that the reference to proposed subchapter
H of chapter 715 will provide a useful cross-reference to the relevant rules
that will apply the equal percentage reduction process. By giving interested
persons notice of the future location of these rules, such persons will be
able to monitor developments in this regard and better understand the organization
of the Authority's permit program rules. In light of the above discussion,
Authority staff has not modified §711.174.
Section 711.176(b)
TFB commented on proposed rule § 711.176(b), which, as proposed, read:
(b) If the aggregate maximum historical use of all applicants for initial
regular permits does not exceed the amount of groundwater available for permitting
in § 711.164(a) of this title (relating to groundwater Available for
Permitted Withdrawals for Initial and Additional Regular Permits), than an
applicant shall receive an initial regular permit authorizing the withdraw
of groundwater from the aquifer in the following amounts: . . .
TFB acknowledges § 711.176(b) provides that an the applicant will
receive an initial regular permit authorizing an amount not less than the
irrigator minimum, or the historical average minimum, if the aggregate maximum
historical use of all applicants for initial regular permits exceeds 450,000
acre-feet each calendar year. However, the section does not expressly mention
what amounts applicants with no irrigator or historical average minimum will
be permitted to withdraw. TFB assumed applicants not qualifying for irrigation
or historical average minimums will be issued an initial regular permit for
their Phase 2 Proportionally Adjusted Amount. TFB also asserts that this section
does not clearly define what amount an irrigator will be authorized to withdraw
if his PA-2 amount exceeds his irrigation minimum. Therefore, TFB suggests
the user should receive a permit for his PA-2 amount.
Additionally, TFB maintains that § 711.176(b) does not ensure that
those minimums TFB considers to be guaranteed by the Act can actually be withdrawn.
TFB argues that § 711.176(c) will, in fact, drop an irrigation user below
his two-acre feet per acre irrigated.
As noted above, the Authority has modified §§ 711.172 and 711.176
in response to this and other comments.
Section 711.176(c)(1)
TFB submitted commented regarding proposed rule § 711.176(c)(1), which,
as proposed, read:
(c) If the irrigator or historical average minimum is greater than the
PA-1 amount as calculated in § 711.172(g)(5) of this title (relating
to Proportional Adjustment of Initial Regular Permits), the groundwater withdrawal
amount in a final initial regular permit shall be issued by the board at the
irrigator or historical average minimum as follows:
First, TFB asserts that the threshold in the initial paragraph (provided
above) is ambiguous. The paragraph seems to require that either the irrigator
minimum or the historical average minimum exceed the PA-1 amount because it
is triggered if a permit holder's (here an Initial Regular Permit) "irrigator
or historical average minimum" is greater than a PA-1 amount. TFB contends
it is uncertain whether this is the meaning that is intended since the same
phraseology, "irrigator minimum" and "historical average minimum," is used
elsewhere (TFB cites § § 711.172(b)(5), 711.172(g)(6)) in a vague
manner and not capable of precise application numerically. Therefore, according
to TFB, it is unclear whether the use of the wording in this section is intentionally
or merely repetitive. Second, TFB maintains the section's requirement that
the board issue "a final initial regular permit at the irrigator or historical
average minimum" is unclear as well. TFB specifically poses the question of
whether the section is meant to read "at the irrigator or historical average
minimum, respectively" in reference to previous references to various different
quantities. TFB is assuming an applicant may be able to receive assignment
of both values.
As noted above, the Authority has modified §711.176 (c).
Section 711.176(c)
TFB submitted comments in reference to § 711.176(c)(1), which states:
(c) If the irrigator or historical average minimum is greater that the
PA-1 amount as calculated in § 711.172(g)(5) of this title (relating
to Proportional Adjustment of Initial Regular Permits), then the groundwater
withdrawal amount in a final initial permit shall be issued by the board at
the irrigator or historical average minimum as follows:
(1) the PA-1 amount shall be authorized to be withdrawn as a permitted
withdrawal pursuant to the groundwater withdrawal schedule required by §
711.178 of this title (relating to Groundwater Withdrawal Schedules); and.
. .
TFB comments that this section purports to allow a permit holder to withdraw
the full PA-1 amount although it may be assumed, in some instances, the PA-1
amount will be greater than the PA-2 amount. TFB argues that this seems contradictory
and ambiguous especially in light of what §§ 711.176(c)(2) and 711.176(c)(3)
require.
The Authority has received the above-referenced comment, and agrees in
part with it. As noted above, the Authority has modified § 711.176 in
order to, among other things, specify when permit holders will be authorized
to withdraw their PA-1 amount and when they will be authorized to withdraw
their PA-2 amount.
Section 711.176(c)
TFB commented upon § 711.176(c)(2) of the proposed rules which states:
(c) If the irrigator or historical average minimum is greater that the
PA-1 amount as calculated in § 711.172(g)(5) of this title (relating
to Proportional Adjustment of Initial Regular Permits), then the groundwater
withdrawal amount in a final initial permit shall be issued by the board at
the irrigator or historical average minimum as follows:
(2) to the extent necessary, in order to satisfy groundwater available
for permitted withdrawals under § 711.164(a) of this title (relating
to Groundwater Available for Groundwater for Initial and Regular Permits),
the step-up amount as calculated in § 711.172 (b)(5) and (g)(6) of this
title (relating to Proportional Adjustment of Initial Regular Permits) may
not be withdrawn; and . . .
TFB contends this section precludes withdrawal of step-up amounts as necessary
to satisfy the 450,000 acre-foot limit of § 711.164(a), yet does not
indicate a quantitative definition of the manner in which the Authority intends
to implement the phrase "to the extent necessary."
SAWS also commented upon proposed rules § 711.176(c)(1), (c)(2), and
(c)(3), concurrently. SAWS asserts concern that the step up amount is held
hostage and unusable. Therefore, SAWS suggests that, if compensation is paid
under a PA-2 adjustment, all water for which compensation is not received
is available for pumping. SAWS proposes the following changes to § 711.176:
ELIMINATE (c)(1) and (c)(2)
and (c)(3) renumbered (c)(1) to read: less the amount that is proportionally
adjusted pursuant to ...(relating to Fair Market Value).
The Authority has received the above-referenced comments, and agrees in
part and disagrees in part. The section as written is intended to allow PA-1
water and step-up water to be withdrawn by a permittee as long as and until
the aggregate amount of groundwater available for permitting (i.e. the 1.14(b)
"cap") is exceeded by the issuance of initial regular permits. Because §
1.14(b) of the Act prevents the Authority from issuing initial regular permits
in an amount that exceeds the cap, PA-1 and step-up water will not necessarily
always be available to be withdrawn. If the Authority is required to engage
in a phase-2 proportional adjustment, the amount of PA-1 water and step-up
water (as may be applicable depending on if an applicant qualifies for a minimum
or not) that is phase-2 proportionally adjusted will no longer be able to
be withdrawn. However, the Authority agrees that the section could be more
clearly stated. In light of the above discussion, Authority staff has modified §
711.176 as noted above.
Section 711.176(c)(2) and (3)
The BC Farm Bureau submitted comments regarding § 711.176(c)(2) and
(3). The BC Farm Bureau maintains the two-acre foot irrigator minimum should
not be subject to a proportional adjustment. According to the BC Farm Bureau,
the Act does not provide compensation in lieu of statutory minimums, but it
does provide certain guarantees for historical users, which should extend
to agricultural users.
Frenzel also inquired into whether the irrigator minimum was subject to
proportional adjustment.
The MC Farm Bureau submitted comments regarding proposed rules § 711.176
(c) (2) and (c)(3), concurrently. MC Farm Bureau contends the Legislature
recognized the importance of the two acre foot minimum for agriculture and
that minimum should not be subject to a proportional adjustment. MC Farm Bureau
claims that while the Act does provide historical users some specified "guarantees,"
it does not make provisions for compensation in lieu of statutory minimums.
The Authority has received the above-referenced comments and disagrees
with them. The basis for this determination is that by virtue of § 1.14(b)
of the Act, the Authority may not issue initial regular permits in an amount
that exceeds the caps established in those sections. At the same time, by
virtue of § 1.16(e) of the Act, the Authority is required to issue certain
initial regular permits with either an irrigator minimum or historical average
minimum, if applicable. In the event the aggregate of the minimums exceeds
the cap, the Authority must have a procedure to adjust the permits to equal
the cap. The legislature in § 1.16(e) of the Act provided a procedure
known as "proportional adjustment" to accomplish this objective. In addition,
as for the payment of proportionally adjusted water below a recognized minimum
in order to meet the § 1.14(b) cap, the legislature (in § 1.29(a)(1)
of the Act) authorized an allocation procedure for the costs of this withdrawal
reduction process. Accordingly, the Authority has not modified § 711.176
in response to these comments.
Section 711.176(c)(3)
TFB commented upon § 711.176(c)(3) of the proposed rules, which states:
(c) If the irrigator or historical average minimum is greater than the
PA-1 amount as calculated in § 711.172(g)(5) of this title (relating
to Proportional Adjustment of Initial Regular Permits), then the groundwater
withdrawal amount in a final initial permit shall be issued by the board at
the irrigator or historical average minimum as follows:
(3) the amount that is proportionally adjusted pursuant to § 711.172(g)(7)
and (8) of this title (relating to Proportional Adjustment of Initial Regular
Permits) may not be withdrawn, but instead the authority shall provide compensation
for this amount at the fair market value as that term is defined in §
11.0275, Texas Water Code, (relating to Fair Market Value).
TFB claims the section is ambiguous and/or mathematically imprecise. Specifically,
TFB argues there is not clear identification as to what numerical quantity
is intended by the phrase "the amount that is proportionally adjusted pursuant
to § 711.172(g)(7) and (8)." If applied literally, TFB contends this
wording identifies the quantity "(PA-1 amounts + SUAs)" in Section 711.176(g)(8)(A),
and "(PA-1)" in § 711.172(g)(8)(B) because those are the quantities "proportionally
adjusted" by a proportional reduction. Alternatively, TFB asserts the reference
perhaps should be to the quantitative amount of the proportional reduction-the
decrement of the reduction.
Furthermore, TFB explains that questions regarding whether or not §
711.172(g)(8)(A) is correctly written/worded, extends to § 711.176(c)(3).
TFB contends that if the right hand side of the equation in § 711.172(g)(8)(A)
is written as
(PA-1 amounts + SUAs) - (PA-2 Factor * PA-1 amounts + SUAs)
then the quantity acted on by proportional reduction is only the quantity
"PA-1 amounts," it being the only quantity multiplied by "PA-2 Factor." On
the other hand, if the right hand side should have been written as
(PA-1 amounts + SUAs) - PA-2 Factor * (PA-1 amounts + SUAs),
then the quantity" (PA-1 amounts + SUAs)" is the quantity proportionally
reduced.
As stated above, TFB claims this ambiguity extends to § 711.176(c)(3).
Specifically, it extends to the part of the subsection which states that the
quantity that is "proportionally adjusted" may not be withdrawn, and to that
portion which states that permit holders will be compensated for this quantity.
The Authority received the above-referenced comment and agrees with it
in part, and disagrees in part. The basis for this determination is that the
comments really relate to §711.172(g)(7) and (8) which, as noted above,
have been revised. In light of the above discussion, Authority staff, as discussed
above for § 711.172(g)(7) and § 711.172(g)(8), has modified §
711.172(g)(8)(A), but not § 711.176 in response to this comment.
Section 711.176(c)(3)
John (last name unknown) commented on the use of the term "fair market
value" in § 711.176(c)(3) in relation to the amount the Authority is
required to compensate the landowner when the Authority is required to take
away from the two acre feet minimum. He believes the rules should state how
that amount is determined and how it is defined.
The Authority received the above-referenced comment, and disagrees with
it. The basis for this determination is that the term "fair market value"
is defined in § 11.0275, Texas Water Code, to mean as follows:
Whenever the law requires the payment of fair market value for a water
right, fair market value shall be determined by the amount of money that a
willing buyer would pay a willing seller, neither of which is under any compulsion
to buy or sell, for the water in an arm-length transaction and shall not be
limited to the amount of money that the owner of the water right has paid
or is paying for the water.
The Authority believes that this statutory definition is adequate for purposes
of § 711.176. The Authority has not modified § 711.176 in response
to this comment.
Section 711.176(c)(3)
Inland, submitted comments relating to proposed rule § 711.176(c)(3).
Inland asserts that the Authority's "buy-down" to the 450,000 ac. ft. level
is premature and would be extremely costly and detrimental to municipalities.
According to Inland, under-allocated municipal interests will transfer money
to the irrigators and the over-allocated irrigators will transfer withdrawal
permits to the municipalities. Therefore, Inland contends that the Authority
has interjected itself into the buy-down so that the base rights that are
not being used and cannot otherwise be transferred are legitimately bought
and retired.
Authority staff received the above-referenced comment, and disagrees with
it. The basis for this determination is that no withdrawal reductions (referred
to by the commenter as a "buy-down") to the §1.14(b) cap will occur unless
it is required due to the aggregate of the minimums exceeding the §1.14(b)
cap. If this occurs, the implementation of the program would not be premature,
but instead would occur at the appropriate time as required by the Act. Whether
the withdrawal reduction program is "costly and detrimental to municipalities"
because they are "under-allocated" and irrigators are "over-allocated" is
largely a function of the irrigator and historical average minimums as established
by the legislature in § 1.16(e) of the Act. The Authority is unable to
affect the initial regular permit "allocation" process by altering the statutorily
established minimums in the face of convincing evidence presented by an applicant
for an initial regular permit, whether the applicant is an irrigator, municipal
or industrial applicant. As for the Authority's "interjection" into the withdrawal
reduction process, this is the role that the Authority has been assigned by
the legislature through the Act. Finally, for purposes of achieving the §1.14(b)
cap, there is no practical difference between the Authority accomplishing
the withdrawal reduction by acquiring the waiver by an applicant of its step-up
water, base irrigation groundwater, or other categories of water as long as
the waiver results in the §1.14(b) cap being achieved. Moreover, after
the Authority has issued initial regular permits, the retirement of permitted
rights (whether (1) base irrigation groundwater, (2) unrestricted irrigation
groundwater of irrigators, or (3) other municipal or industrial rights) may
also be implemented to lessen the need for withdrawal reductions to meet the §1.14(b)
cap. Accordingly, the Authority has not modified § 711.176 in response
to this comment.
Section 711.178
The MC Farm Bureau comments on proposed rule §711.178. The MC Farm
Bureau asserts a requirement for withdrawal schedules for irrigators does
not serve a useful purpose and would result in unpredictable and unreliable
estimates related to water resource management planning. In this regard, it
comments that the annual water use report should be sufficient information
for the Authority. The MC Farm Bureau is also concerned about the impact of §
711.178(e) on the 2.0 acre-foot per acre per year irrigator minimum and the
110% monthly withdrawal limitation. The MC Farm Bureau suggests either the
deletion of §711.178 or the exemption of irrigators from the requirement
to submit withdrawal schedules.
Bragg has a similar comment to § 711.178. Bragg comments that agricultural
irrigation is based on initial soil moisture (rainfall), evaporation, and
specific plant use requirements. Due to the fact rainfall cannot be predicted,
either in the short or long term, farmers are unable to predict their irrigation
needs. Therefore, Bragg recommends that this paragraph be deleted.
BC Farm Bureau also commented upon proposed rule § 711.178. The BC
Farm Bureau contends § 711.178 should be entirely deleted or exempt agricultural
users from submitting withdrawal schedules. The BC Bureau maintains requiring
the submission of these schedules serves no real purpose and would result
in inaccurate estimates and unreliable planning. Further, it argues that the
Authority already requires an annual report of groundwater pumping.
Rimkus commented on § 711.178(b), stating the requirement to file,
by November 1 of the year after a permit is issued, the amount of water he
plans to withdraw each month, is unreasonable. He suggests requiring the following
information: 1) what are an irrigator's planting intentions for next year?
(acres and crops), and 2) is pre-irrigation planned? Mr. Rimkus states an
agriculture expert can take this information and prepare a forecast of the
amount of water needed.
Friesenhahn also commented on § 711.178, stating he cannot predict
water needs for the following year.
Reagan commented on § 711.178 and believes that it does not follow
the legislature's intent. Reagan states there was never any intent to require
anyone to meet any schedule for using water. Reagan believes that unless the
Authority gets better at predicting the weather, farmers cannot be expected
to forecast water usage.
Gilliam Ranch and Gregory and Cora Rothe also commented § 711.178
(e) and (f). Gilliam Ranch and the Rothes maintain that the Act does not give
the EAA specific regulatory authority over pumping on a monthly basis. Gilliam
and the Rothes are concerned that § 711.178(e) could effectively limit
pumping to less than the two acre feet per acre provided by the Act if an
irrigator decides to accelerate pumping for the purposes of crop rotation
or compensating for dry weather. Gilliam and the Rothes believe predicting
water levels is not a reasonable justification for this rule and recommend
that § 711.178 (e) and (f) be removed.
TFB also submitted comments relating to § 711.178(e) of the proposed
rules. TFB expressed concern over the possibility that this section will undermine
the irrigator minimum established in § 1.16(e) of the Act. TFB asserts
that a permittee, in any given year, may not actually be able to use his allotted
two-acre feet per acre irrigated because in some months, when water is actually
needed, the irrigator's use is limited by the schedule that results from pure
guesswork. Other months, the irrigators may not need the water due to sufficient
rainfall. TFB argues that this limitation is not authorized by the Act and
also claims that the Authority did not provide an explanation about how the
value of 110% was determined as the appropriate amount.
Gembler also commented on § 711.178 by saying that this rule will
not work because irrigators do not know how much it will rain.
Vaughan also comments on § 711.178. Vaughan states that § 711.178
is unworkable from an irrigator's standpoint. First, Vaughan claims the proposed
rule requires farmers to guess or speculate what crops will be located in
a particular location before such estimations are actually feasible. Specifically,
Vaughan addresses § 711.178 (e), which states: "No permittee may withdraw
groundwater from the aquifer during any month in excess of 110% of the scheduled
monthly amount." Such a provision will adversely affect farming by causing
farmers to guess both: (1) the amount of rainfall that will occur and (2)
how much water they will require, months in advance. Vaughan argues that the
cost of taking time to produce and review paperwork will outweigh the benefits
of receiving information that he contends is conjecture at best. As a result,
Vaughan predicts that farmers will overestimate their usage early in the year
and the carry forward the unused portions of water for the rest of the year.
Grossenbacher also commented on § 711.178 of the proposed rules. He
states the rule, in general, is hard to understand. Specifically, under §
711.178, he contends it is nearly impossible for irrigation farmers to provide
monthly projections, a year in advance, regarding the amount of water they
intend to use as outlined in the proposed rule. SAWS also commented upon proposed
rule § 711.178(e) and (f). Specifically, SAWS expresses concern over
monthly pumping limits imposed by these subsections. SAWS asserts there is
no grant of authority in the Authority's enabling act that allows for withdrawal
limits at times other than may be imposed pursuant to a critical period program.
It recommends that subsections (e) and (f) be deleted.
CPS also commented upon proposed rule § 711.178(e). CPS objects to
the requirement that a permittee may not withdraw groundwater from the aquifer
during any month in excess of 110% of this planned monthly amount. CPS asserts
this cap is too restrictive because it is not possible to accurately plan
water usage a year in advance. CPS suggests one of the following alternatives
be considered in lieu of § 711.178(e): (1) the deletion of § 711.178(e);
(2) the amendment of § 711.178(e) to allow withdrawal of 125% of the
planned monthly amount; or (3) a new § 711.178(g) allowing for a permittee
to adjust the monthly schedule on a quarterly or semi-annual basis.
SAWS commented upon proposed rule § 711.178(b). Specifically, SAWS
suggests that § 711.178(b) read:
No later than December 20th of the first year after a groundwater withdrawal
permit has been issued to a permittee and continuing each year thereafter,
a permittee shall file with the Authority an anticipated groundwater withdrawal
schedule on a form approved by the Authority containing the following information:
. . .
Friesenhahn commented on § 711.178(b)(3) which requires a permittee
to provide "any other information as determined by the board or the general
manager." He feels this type of general language is unacceptable.
In response to these public comments, the Authority has elected not to
adopt § 711.178 at this time and hereby withdraws the rule.
Section 711.180
SAWS submitted comments regarding proposed rule § 711.180. SAWS asserts
that the Authority should use only the most generic terms in describing what
an applicant may voluntarily waive. According to SAWS, the Authority's current
statement, as to restriction in transfer of irrigation rights, will be challenged
and does not follow state law regarding disposal of property rights. SAWS
suggests amending § 711.180 to read:
...waiver of all or part of an applicant's maximum historical use, PA amount,
or step-up amount.
The Authority received the above-referenced comment and disagrees with
it. The references to base irrigation and unrestricted irrigation groundwater
is necessary to properly delineate the full range of application features
that may be waived and to make this section conform to the substantive content
of the transfer rules to be found in subchapter L of this chapter that have
recently been proposed. Also, inclusion of these types of groundwater, in
the application waiver rules, will assist the Authority in its withdrawal
reduction and retirement programs. Accordingly, the Authority has not modified §
711.180.
Section 711.220
Menard's remarks involve the cancellation of groundwater withdrawal permits
under § 711.220.
The Authority has received the above-referenced comment and is unable to
respond to it at this time. The basis for this determination is that this
section is not a proposed section under this Final Order Adopting Rules. Section
711.220 is in the process of being proposed in subchapter H of this chapter
in another Notice of Proposed Rule of the Authority. The Authority encourages
Mr. Menard to comment on § 711.220 at that time.
Section 711.230
SAWS commented upon proposed rule § 711.230. SAWS maintains that water
may be stored within the Edwards Aquifer through an "Aquifer Recharge and
Storage Permit" for recovery at a later date. According to SAWS such storage
should not be misconstrued as wasteful or subject to a waste determination.
SAWS proposes that § 711.230 read:
A person may not waste groundwater withdrawn from the aquifer.
The Authority received the above-referenced comment and disagrees with
it. The basis for this determination is that if the Authority issues aquifer
recharge and storage permits, under other permitting rules of the Authority,
it will necessarily have found that the activity will not constitute the waste
of groundwater within the aquifer. However, waste can occur due to the injection
of water into the Aquifer and the facts, at some time, may show effects on
water quality or that the aquifer has no storage capacity in the area injected.
The Authority will need to be able to take appropriate enforcement action
in such cases. Accordingly, the Authority has not modified § 711.230.
Section 711.232
Schirmer commented upon proposed rule § 711.232 relating to pollution
of the aquifer. Schirmer asserts users over the recharge zone to the north
of Bexar County continue to engage in new development and meter installation
which, he contends, contributes to the pollution of the Aquifer. Schirmer
recommends the Authority enforce § 711.232 to limit further pollution.
Menard also commented upon proposed rule § 711.232. Menard believes
pollution and building over the recharge zone of the aquifer is a further
restriction on his property right and lowers its value. Menard suggests stricter
planning, guidance, and enforcement of the section.
Verstraeten also made comments regarding § 711.232. Verstraeten stated
his concern regarding municipal water systems' leasing and purchase of pumping
rights in Uvalde and Medina Counties pumping out in Bexar County which he
believes prematurely lowers Bexar County water levels. Verstraeten requests
that any municipal water system that supplies water over the recharge zone
should be responsible for any pollution of the aquifer that occurs as a result.
Verstraeten suggests enforcement of § 711.232 by the Authority.
Authority staff received the above-referenced comments and agrees with
them. The basis for this determination is that the commenters request that
the Authority enforce this rule as written. Accordingly, the Authority has
not modified § 711.232.
Section 711.234
SAWS made comments regarding proposed rule § 711.234. SAWS is concerned
that the Authority makes a distinction that nuisances exist for exempt wells
while the same occurrences are permit violations for permitted wells. SAWS
suggests the first sentence of § 711.234 be changed to read:
For exempt wells, the following are declared nuisances:
Furthermore, SAWS maintains that water is capable of being stored in the
Aquifer, through an "Aquifer Recharge and Storage Permit," for later recovery.
SAWS argues that such storage should not be misconstrued as wasteful or subject
to a waste determination. Accordingly, SAWS requests that § 711.234 (1)
read:
(1) the wasting of groundwater withdrawn from the aquifer;
The Authority received the above-referenced comment and disagrees with
it. The basis for this determination is that this section makes no distinction
between exempt and non-exempt wells. The owner of any well that withdraws
groundwater at a rate in excess of the permitted amounts will be deemed to
be a nuisance. As to the comment concerning waste and aquifer recharge and
storage permits, the Authority refers the commenter to its response to §
711.230. Accordingly, the Authority has not modified § 711.234.
Section 711.328
Vulcan made comments to proposed § 711.328 relating to transfer of
ownership. Section 711.328 is not a proposed rule that is the subject of this
Final Order Adopting Rules. Vulcan's comments focus on certain legal arguments
related to the nature of an "existing user." Vulcan also suggests clarification
of this section and certain amendments.
The Authority has received the above-referenced comment and is unable to
respond to the comment at this time. The basis for this determination is that
this section is not a proposed section under this Final Order Adopting Rules.
Section 711.328 is in the process of being proposed in subchapter L of this
chapter in another Notice of Proposed Rule of the Authority. The Authority
encourages Vulcan to comment on § 711.328 at that time.
Comments on the Chapter 711 rules generally
Representative Tracy King
Tracy King, State Representative for the 43rd District which includes Medina
and Uvalde Counties and four other counties, gave a general comment not directed
to any specific rule. He does not favor this legislation and does not like
being forced to regulate groundwater. Rep. King wants the Authority to remember
two guarantees in the statute: 1) two-acre feet minimum, and 2) the historical
minimum guarantees. Rep. King advises the Authority to avoid court challenges
by keeping in mind the intent of the legislature.
The Authority received the above-referenced comment and agrees with it.
The basis for this determination is that the legislature created two statutory
permit minimums in § 1.16(e) of the Act, an irrigator minimum and a historical
average minimum. The Authority has accounted for these minimums in §711.172(b)(1)
and (2), 711.172(g)(6), and §711.176(b)(1) and (2). No specific action
is requested to be taken relative to any particular section of the proposed
rules. In light of this, the Authority has not modified any of the proposed
rules.
Inland
Inland generally commented on the Chapter 711 rules without reference to
any specific rule. Inland asserts the municipalities in the region are being
asked to shoulder an inequitable burden because they have not been granted
their maximum historical beneficial use while other historical users, who
have no current needs, have been given their maximum historical use. Therefore,
Inland contends that the Authority is dividing the region through unfair and
inequitable treatment of municipal interests and not utilizing legislatively
provided mechanisms (§ 1.14(d)) which could ensure fairness.
The Authority received the above-referenced comment and disagrees with
it. The basis for this determination is that no existing user of groundwater
from the aquifer that will be granted an initial regular permit will likely
receive a permit for their maximum historical use. All such permits will likely
be issued after a time where the maximum historical use will have been proportionally
adjusted. To the extent that the proportional adjustment process may result
in an "equitable" or "inequitable" allocation of the water resources from
the aquifer is a decision that has already been made by the Texas Legislature
by the passage of Edwards Aquifer Authority Act. The Authority, through its
rulemaking process, is generally unable to make reallocations of groundwater
from the aquifer in a way that is contrary to the intent of the legislature
as expressed in the Act. The Authority agrees that § 1.14(d) creates
a process whereby the groundwater available for permitting may be increased.
However, the Authority may invoke this procedure only after a certain technical
basis is determined to exist and after certain consultation procedures have
been complied with. The decision to invoke § 1.l4(d) will be available
in the event the technical data base is found to exist and the procedural
steps occur. Accordingly, the Authority has not modified and proposed sections
in chapter 711.
TFB
TFB asserts that the Authority was required by the Texas Private Real Property
Rights Preservation Act to prepare a "takings impact assessment" or "TIA"
before providing notice of the proposed adoption of the Chapter 711 rules.
The Authority disagrees. Chapter 2007 of the Texas Government Code, also
known as the "Texas Private Real Property Rights Preservation Act" ("TPRPRA"),
requires governmental entities, under certain circumstances, to prepare a
TIA in connection with certain covered categories of proposed governmental
actions. Based on the following reasons, the Authority has determined that
it need not prepare a TIA in connection with the adoption of these rules.
First, the Authority has made a "categorical determination" that these
Chapter 711 rules do not affect vested property rights and, as such, adoption
of these rules is not an action that "may result in a taking." The rules at
issue here implement a permitting program for the withdrawal of water from
the Edwards Aquifer. The Act requires the Authority to implement a permitting
system whereby existing users and other potential users of aquifer water may
apply for and receive permits issued by the Authority allowing for the withdrawal
of groundwater from the aquifer. Other types of permits are also required
by the Act for well construction and related work. Certain other withdrawals
are exempted by the Act from permitting requirements. The Act also specifies
an interim authorization period prior to the issuance by the Authority of
final permits during which certain existing users of the aquifer may continue
to make withdrawals. The Act imposes a number of restrictions upon the use
of the aquifer during the interim authorization period as well as after permits
are issued. It also places limits on the ability to transfer permitted or
interim authorization rights. These rules are intended to effectuate these
various components of the Act.
TPRPRPA makes it clear that a TIA need only be performed when the proposed
governmental action is one that "may result in a taking." See id., §§
2007.043(a), 2007.041(a), 2007.042(a). If an action is one that has no potential
to result in a taking, then no TIA need be performed. Adoption of the rules
at issue here is not an action that "may result in a taking" for two reasons.
The rules cannot result in the taking of a vested private real property
right. Traditional takings doctrine dictates that, in order to constitute
a compensable taking, the property right alleged to have been "taken" must
rise to the level of a vested right. Prior to the adoption of the Act, a landowner's
right to pump groundwater underlying his or her property derived from the
common law English Rule, also known as the "Rule of Capture." The rules implement
a permitting structure which is admittedly at odds with the Rule of Capture.
However, a landowner's common law Rule of Capture right does not rise to the
level of a vested property right. Under the common law, water underlying a
landowner's property may be reduced to possession by the pumping of another.
In other words, a landowner has no right to exclude others from the water
underlying his land. As such, the landowner's expectancy of water does not
rise to the level of a vested property right which could be "taken" by the
passage of these rules and passage of these rules is not an action that may
result in a taking.
Additionally, with respect to Edwards Aquifer water, any common law rights
a landowner may have had in the past have been effectively abolished by the
Legislature within the boundaries of the EAA by the passage of the Act. Under
the old common law, a landowner was essentially free to drill a well and pump
as much water as he pleased for whatever use and location of use he pleased.
Passage of the Act changed the rules within the boundaries of the EAA. The
basis for the right to withdraw groundwater under the Act changed from being
an incident of the ownership of land to one based on use during the statutorily-defined
"historical period." See Act § 1.16. Excluding "exempt" wells, a landowner
must now obtain a permit prior to drilling a well and making withdrawals,
and this permit may be issued only if there is "water available for permitting"
or if certain aquifer conditions are met. Id. §§ 1.14, 1.15, 1.16,
1.18 and 1.19. The rate and total quantity of withdrawals are subject to limitation.
Id. § 1.15(d). Regulation under the Act leaves no room for the common
law to operate within the boundaries of the EAA with respect to Edwards Aquifer
groundwater. As a result, there are no vested property rights which could
be taken by the passage of these rules and no TIA need be prepared.
Second, the Authority's action in adopting these rules is an action that
is reasonably taken to fulfill an obligation mandated by state law and is
thus excluded from the Texas Private Real Property Rights Preservation Act
under § 2007.003(b)(4) of the Texas Government Code. See §§
1.03(4), (9) - (14), (21), 1.07, 1.08(a), 1.10(i)(1), (2), 1.11(a), (b), (d)(2),
(8), (10), (11), (h), 1.14(a) - (f), (h), 1.15(a) - (d), 1.16(a), (c) - (h),
1.17(a) - (d), 1.18, 1.19, 1.20, 1.21, 1.22(a)(1)-(4), 1.23(a), 1.25, 1.26,
1.28(b), 1.29, 1.31, 1.32, 1.33, 1.34, 1.35, 1.36 of the Act, §§
36.101(a), 36.111, 36.113, 36.1131, 36.119(a), 49.211(a), and 49.221 of the
Texas Water Code, and § 2001.004(1) of the APA.
This conclusion is directly supported and controlled by the decision in
Third, it is the position of the Authority that all valid actions of the
Authority are excluded from the Texas Private Real Property Rights Preservation
Act under § 2007.003(b)(11)(C) of the Texas Government Code as actions
of a political subdivision taken under its statutory authority to prevent
waste or protect the rights of owners of interest in groundwater. Accordingly,
a TIA need not be prepared in connection with the proposal of these rules.
Fourth, it is the position of the Authority that the adoption of these
rules constitutes an action taken by a governmental entity to "to prohibit
or restrict a condition or use of private real private real property if the
governmental entity proves that the condition or use constitutes a public
or private nuisance as defined by background principles of nuisance and property
law of this state." Texas Government Code Annotated, § 2007.003(b)(6).
Fifth, it is the position of the Authority that the adoption of these rules
constitutes an action which: "(A) is taken in response to a real and substantial
threat to public health and safety; (B) is designed to significantly advance
the health and safety purpose; and (C) does not impose a greater burden than
is necessary to achieve the health and safety purpose." Texas Government Code
Annotated, § 2007.003(b)(13). Accordingly, for the reasons stated above,
a TIA need not be performed in connection with the proposal of these rules.
TDA
The TDA commented generally that the Authority should have prepared a "small
business effects statement" prior to proposing the adoption of the Chapter
711 rules, pursuant to § 2006.002(d) of the Texas Government Code.
The Authority disagrees for the following reasons. Chapter 2006 of the
Texas Government Code, subchapter A, requires state agencies to prepare a
small business effects statement (SBES) prior to proposing, for adoption,
a rule that would have an adverse economic effect on small businesses. By
the statute's express terms, this requirement applies only to a "state agency."
The term "state agency" is defined, for the purposes of Chapter 2006, subchapter
A, as "a department, board, bureau, commission, division, office, council
or other agency of the state." Id. § 2006.001(3).
Section 2006.002 does not apply to the Authority because the Authority
does not meet the definition of the term "state agency" as set out forth in
Chapter 2006. Section 1.02(a) of the Act creates the Authority as a "conservation
and reclamation district" under Article XVI, § 59 of the Texas Constitution.
Conservation and reclamation districts created under this authority have long
been considered to be "political subdivisions" of the State of Texas.
A political subdivision differs from a department, board or agency of the
State. A political subdivision has jurisdiction over a portion of the State;
a department, board or agency of the State exercises its jurisdiction throughout
the State. Members of the governing body of a political subdivision are elected
in local elections or are appointed by locally elected officials; those who
govern departments, boards or agencies of the State are elected in statewide
elections or are appointed by State officials.
Guaranty Petroleum,
609 S.W.2d at 531 (emphasis
added).
This opinion makes clear that state agencies are characterized by having
statewide jurisdiction and are governed by persons who are elected in statewide
elections or are appointed by state officials. Political subdivisions like
the Authority, on the other hand, have jurisdiction over only a portion of
the state and are governed by persons who are elected in local elections or
are appointed by locally elected officials. These principles have been reiterated
by the Texas Supreme Court in
Lohec v. Galveston
County Commissioners Court,
841 S.W.2d 361, 364 (Tex. 1992) (noting
that "statewide jurisdiction" is "a trait required of entities recognized
as department, boards, or agencies of the state") and
Monsanto Company v. Cornerstones Municipal Utility District,
865 S.W.2d
937, 939-40 (Tex. 1993).
Because the Authority has jurisdiction over only a portion of the State
and because the members of its governing body are elected in local elections
or are appointed by locally elected officials, the Authority is a political
subdivision and not a state agency, and is not subject to the SBES requirement
found in Chapter 2006 of the Government Code.
No revisions to the Chapter 711 are required in response to this comment.
Subchapter A. DEFINITIONS
31 TAC §711.1
VI. CONCISE RESTATEMENT OF THE STATUTORY PROVISIONS UNDER
WHICH THE RULES ARE ADOPTED.
The new sections are adopted pursuant to the following statutory provisions:
Section 1.01 of the Act contains the findings of the Texas Legislature
that the Edwards Aquifer is a distinctive natural resource and that a special
regional management district (the Authority) is required for the effective
control of the resource to protect terrestrial and aquatic life, domestic
and municipal water supplies, existing industries, and the economic development
of the state.
Section 1.03(1) defines the "Edwards Aquifer."
Section 1.03(4) of the Act defines "beneficial use" to mean the use of
water that is economically necessary for a purpose authorized by law when
reasonable intelligence and reasonable diligence are used in applying the
water to that purpose. The concept of beneficial use is incorporated into
the permitting rules of Chapter 711.
Section 1.03(9) of the Act defines "domestic or livestock use." This concept
is incorporated into the exempt well rules found within Chapter 711.
Section 1.03(10) of the Act defines "existing user" as a person who has
withdrawn and beneficially used underground water from the aquifer on or before
June 1, 1993. This concept is incorporated into the Chapter 711 rules, while
also accounting for the beneficial use requirement and including the successors
in interest of existing users within the definition.
Section 1.03(11) of the Act defines "industrial use." The Chapter 711 rules
incorporate this concept within the types of uses for which aquifer water
may be withdrawn.
Section 1.03(12) of the Act defines "irrigation use." The Chapter 711 rules
incorporate this concept within the types of uses for which aquifer water
may be withdrawn.
Section 1.03(13) of the Act defines "livestock." The Chapter 711 rules
incorporate this concept when determining whether a well qualifies as "exempt"
from permitting requirements.
Section 1.03(14) of the Act defines "municipal use." The Chapter 711 rules
incorporate this concept within the types of uses for which aquifer water
may be withdrawn.
Section 1.03(21) of the Act defines "waste." This concept is incorporated
into the Chapter 711 rules, while also including other practices which are
considered wasteful under the Act or under the long-standing water law concept
of beneficial use.
Section 1.07 of the Act provides, in part, that the actions taken by the
Authority pursuant to the Act may not be construed as depriving or divesting
owners of their ownership rights as landowners in underground water, subject
to rules adopted by the Authority.
Section 1.08(a) of the Act provides that the Authority "has all of the
powers, rights, and privileges necessary to manage, conserve, preserve, and
protect the aquifer and to increase the recharge of, and prevent the waste
or pollution of water in, the aquifer." This section provides the Authority
with broad and general powers to take actions as necessary to manage, conserve,
preserve, and protect the aquifer and to increase the recharge of, and prevent
the waste or pollution of water in, the aquifer. These rules further those
objectives.
Section 1.08(b) makes it clear that the Authority's powers apply only to
water within or withdrawn from the Edwards Aquifer, and not to surface water.
Section 1.11(a) of the Act provides that the Board of Directors ("Board")
of the Authority "shall adopt rules necessary to carry out the authority's
powers and duties under (Article 1 of the Act), including rule governing procedures
of the board and the authority." This section provides broad rulemaking authority
to implement the various substantive and procedures programs set forth in
the Act related to the Edwards Aquifer, including the permitting program.
Section 1.11(b) of the Act requires the Authority to "ensure compliance
with permitting, metering, and reporting requirements and . . . regulate permits."
This section, in conjunction with § 1.11(a) and (h) of the Act, and §
2001.004(1) of the APA, requires the Authority to adopt and enforce the Chapter
711 rules.
Section 1.11(d)(2) of the Act empowers the Authority to enter into contracts.
Pursuant to this section, the Authority may enter into contracts with well
owners concerning meters and reimbursement for same under Subchapter M of
the Chapter 711 rules.
Section 1.11(d)(8) of the Act provides that the Authority may close abandoned,
wasteful or dangerous wells. The Authority's rules relating to the requirement
of beneficial use and the prohibition of waste, as well as the closure of
abandoned wells derive in part from this statutory authority.
Section 1.11(d)(10) of the Act provides that the Authority may enforce
Chapter 32 of the Texas Water Code and TNRCC rules adopted thereunder. (Chapter
32 is now administered not by the TNRCC, but by the Texas Department of Licensing
and Regulation.) Chapter 32 imposes certain duties upon drillers of water
wells and the owners of those wells. The Authority's rules relating to well
construction, well abandonment and cancellation contained within Chapter 711
derive in part from this statutory authority.
Section 1.11(d)(11) of the Act provides that the Authority may require
to be furnished with copies of the water well drillers' logs that are required
by Chapter 32 of the Texas Water Code.
Section 1.11(h) of the Act provides, among other things, that the Authority
is "subject to" the APA. This section essentially provides that the Authority
is required to comply with the APA for its rulemaking, even though the Authority
is a political subdivision and not a state agency that would generally be
subject to APA requirements. Section 2001.004(1) of the APA requires agencies
subject to the APA to "adopt rules of practice stating the nature and requirements
of all available formal and informal procedures."
Section 1.13 of the Act requires the Authority to allow credit to be given
for certified reuse of aquifer water. The Authority will likely adopt rules
implementing this section. This concept is acknowledged in Subchapter F.
Section 1.14(a) of the Act provides that authorizations to withdraw aquifer
water shall be limited in order to: protect water quality of the aquifer and
surface streams to which the aquifer contributes springflow; achieve water
conservation; maximize beneficial use of water from the aquifer; protect aquatic
and wildlife habitat as well as federally or state-designated threatened or
endangered species; and provide for instream uses, bays and estuaries. The
Chapter 711 rules are adopted, in large part, pursuant to these statutory
mandates.
Section 1.14(b) of the Act imposes, subject to certain limitations, an
initial aquifer withdrawal "cap" for permitted withdrawals of 450,000 acre-feet
per year, until December 31, 2007. The Chapter 711 rules implement this cap,
explain to which permits it applies, how it can be raised, and other procedural
details.
Section 1.14(c) of the Act imposes, subject to certain limitations, an
aquifer withdrawal "cap" for permitted withdrawals of 400,000 acre-feet per
year, beginning January 1, 2008. The Chapter 711 rules implement this cap,
explain to which permits it applies, how it can be raised, and other procedural
details.
Section 1.14(d) of the Act provides that either of the caps listed above
may be raised by the Authority if, through studies and implementation of certain
strategies, the authority, in consultation with state and federal agencies,
determines the caps may be raised.
Section 1.14(e) of the Act requires the Authority to prohibit withdrawals
from new wells drilled after the effective date of the Act unless the "caps"
are raised and then only on an interruptible basis. The Chapter 711 rules
incorporate this prohibition.
Section 1.14(f) of the Act entitles the Authority to allow (or not allow)
permitted withdrawals on an uninterruptible basis when certain index wells
are at or above the following measurements: for the San Antonio pool, when
well J-17 is at or above 650 mean sea level (msl); and for the Uvalde Pool,
when well J-27 is at or above 865 msl. The section also imposes the duty on
the Authority to limit additional withdrawals to ensure that springflows are
not affected during critical drought conditions. The Chapter 711 rules incorporate
these concepts by making withdrawals subject to various conditions keyed on
drought conditions and critical period management rules.
Section 1.14(g) of the Act allows the Authority to, by rule, define other
pools within the aquifer in accordance with hydrogeologic research, and to
establish index wells for any pool to monitor the level of the aquifer to
aid the regulation of withdrawals from the pools.
Section 1.14(h) of the Act provides that the Authority generally must ensure,
by December 31, 2012, that continuous minimum springflows of Comal and San
Marcos Springs are maintained to protect threatened and endangered species
to the extent required by federal law. The Chapter 711 rules incorporate this
requirement by making withdrawals subject to various conditions keyed on drought
conditions and critical period management rules.
Section 1.15(a) of the Act directs the Authority "to manage withdrawals
from the aquifer and manage all withdrawal points from the aquifer as provided
by the Act." This section is implemented through the Chapter 711 rules.
Section 1.15(b) of the Act states that "except as provided by §§1.17
and 1.33 of this article, a person may not withdraw water from the aquifer
or begin construction of a well or other works designed for the withdrawal
of water from the aquifer without obtaining a permit from the authority."
This section is implemented through the Chapter 711 rules.
Section 1.15(c) of the Act allows the Authority to issue regular permits,
term permits, and emergency permits. This section is implemented through the
Chapter 711 rules.
Section 1.15(d) of the Act provides that each permit issued by the Authority
must specify the maximum rate and total volume of water that the user may
withdraw annually. This section is implemented through the Chapter 711 rules.
Section 1.16(a) of the Act allows an existing user to apply for an initial
regular permit by filing a declaration of historical use documenting use of
aquifer water during the period from June 1, 1972 through May 31, 1993. The
initial regular permits issued pursuant to the Chapter 711 rules will be based
upon such.
Section 1.16(b) of the Act, in conjunction with
Barshop v. Medina County Underground Water Conservation District,
925
S.W. 2d 618, 630 (Tex. 1996)(holding that declarations must be filed within
six months after the effective date of the Act, i.e., December 30, 1996) provides
that an existing user's declaration of historical use (permit application)
must be file on or before December 30, 1996, and the applicant must timely
pay all application fees required by the Authority. It further requires irrigation
applicants to submit, as part of their applications, documentation regarding
the number of acres irrigated during the historical period.
Section 1.16(c) of the Act provides that an owner of a well from which
the water will be used exclusively for domestic use or watering livestock
and that is exempt under § 1.33 of the Act is not required to file a
declaration of historical use.
Section 1.16(d) of the Act requires the Board to grant an initial regular
permit to an existing user who: (1) files a declaration and pays fees as required
by this section; and (2) establishes by convincing evidence beneficial use
of underground water from the aquifer. This requirement is incorporated into
the Chapter 711 rules.
Section 1.16(e) of the Act explains the quantity of water to be permitted
under an initial regular permit. Pursuant to this section, if enough water
is available, each existing user shall be permitted for an amount equal to
the user's maximum beneficial use during the historical period. If there is
not enough water available, then this section requires the Authority to "proportionately
adjust" permit amounts downward in order to meet the withdrawals "caps" discussed
above. However, this section also creates certain "permit minimums" for existing
irrigation users and for those existing users who have operated a well for
three or more years during the historical period. This section also requires
the Authority to extrapolate water use on an annual basis for those existing
users who do not have a full year's use during the historical period. These
concepts are incorporated into Chapter 711, primarily in Subchapter G.
Section 1.16(f) requires the Authority to equitably treat persons whose
historic use was affected by participation in a federal program, such as agricultural
subsidy programs. This concept is incorporated in the Chapter 711 rules.
Section 1.16(g) of the Act provides that initial regular permits do not
have a term and remain in effect until abandoned, cancelled or retired. These
concepts are incorporated in the Chapter 711 rules.
Section 1.16(h) of the Act requires the Authority to notify each permit
holder of the limitations to which the permit is subject. This concept is
incorporated into the Chapter 711 rules, primarily in Subchapter F.
Section 1.17(a) of the Act provides that a person who, on the effective
date of this article, owns a producing well that withdraws water from the
aquifer may continue to withdraw and beneficially use water without waste
until final action on permits by the Authority, if: "(1) the well is in compliance
with all statutes and rules relating to well construction, approval, location,
spacing, and operation; and (2) by March 1, 1994, the person files a declaration
of historical use on a form as required by the authority."
Section 1.18 of the Act allows the Authority, in certain circumstances,
to issue additional regular permits. This concept is incorporated into the
Chapter 711 rules, primarily in Subchapter E.
Section 1.19 of the Act allows the Authority to issue term permits and
places certain limitations and conditions on the right to withdraw water under
such a permit. This concept is incorporated into the Chapter 711 rules, primarily
in Subchapter E.
Section 1.20 of the Act allows the Authority to issue emergency permits
under certain circumstances and subject to certain conditions. This concept
is incorporated into the Chapter 711 rules, primarily in Subchapter E.
Section 1.21 of the Act sets out a process by which the Authority is to
implement a plan for reducing the withdrawal "cap" from 450,000 to 400,000
acre-feet per year by January 1, 2008. The plan must be enforceable and include
various water conservation, reuse, retirement, and other management measures.
If, on or after January 1, 2008, total permitted withdrawals still exceed
the 400,000 acre-feet cap, then the Authority must implement "equal percentage
reductions" of all permits in order to reach the cap. This concept is implemented
in Chapter 711, primarily in Subchapter G.
Section 1.22 of the Act provides that the Authority may acquire permitted
aquifer rights to be used for: holding in trust for sale or transfer to other
users; holding in trust as a means of managing aquifer demand; holding for
resale or retirement as a means of achieving pumping reductions required by
the Act; or retiring the rights. These concepts are implemented in part in
Chapter 711.
Section 1.23(a) of the Act provides that the Authority may require certain
permittees to submit and implement water conservation plans and water reuse
plans. These concepts are implemented in part in Chapter 711, primarily through
Subchapter F.
Section 1.25 of the Act requires the Authority to develop and implement
a comprehensive water management plan and, in conjunction with the SCTWAC
and other water districts, to develop and implement a plan for providing alternative
water supplies, with oversight by state agencies and the Edwards Aquifer Legislative
Oversight Committee. The alternative supplies plan shall consider alternative
technologies, financing issues, costs and benefits, and environmental issues.
These concepts are implemented, in part, in Chapter 711, primarily through
Subchapter F.
Section 1.26 of the Act requires the Authority to prepare and coordinate
implementation of a critical period management plan which meets certain, enumerated
criteria. These concepts are implemented in part in Chapter 711, primarily
through Subchapter F.
Section 1.29 of the Act authorizes the imposition of various types of fees
on various types of permits. The Chapter 711 rules acknowledge this fee provision,
primarily in Subchapter E.
Section 1.31 of the Act provides that nonexempt well owners must install
and maintain meters or alternative measuring devices to measure the flow rate
and cumulative amount of water withdrawn from each well. These concepts are
implemented in the Chapter 711 rules.
Section 1.32 of the Act requires permittees to submit annual water use
reports to the Authority. This section is acknowledged in Subchapter F.
Section 1.33 of the Act provides the criteria for exempt wells -- i.e.,
wells that produce no more than 25,000 gallons of water per day for domestic
and livestock use and that are not within or serving a subdivision requiring
platting. The section explains that such wells are exempt from metering requirements.
However, such wells must be registered with the Authority. These concepts
are implemented in Chapter 711.
Section 1.34 of the Act imposes certain limitations upon the ways in which
aquifer water and/or water rights may be transferred (alienated). First, aquifer
water must be used within the Authority's boundaries. Second, the section
allows the Authority to establish rules by which a person may install water
conservation equipment and sell the water conserved. Third, the section further
provides that a holder of a permit for irrigation use may not transfer more
than 50 percent of the irrigation rights initially permitted and that the
user's remaining irrigation water rights must be used in accordance with the
original permit and must pass with transfer of the irrigated land. These concepts
are implemented, in part, in Chapter 711.
Section 1.35 of the Act prohibits: withdrawing aquifer water except as
authorized by a permit; violating permit terms or conditions; wasting aquifer
water; polluting or contributing to the pollution of the aquifer; or violating
the Act or an Authority rule. These concepts are implemented in Chapter 711.
Section 1.36 of the Act empowers the Authority to enter orders enforcing
the terms and conditions of permits, orders, or rules, and to draft rules
suspending permits for failure to pay required fees or violations of permits,
orders or rules. These concepts are implemented, in part, in Chapter 711.
Section 2001.004(1) of the APA requires agencies subject to the APA to
"adopt rules of practice stating the nature and requirements of all available
formal and informal procedures." This rulemaking is in furtherance of this
legislative mandate.
Chapter 32 of the Texas Water Code imposes certain duties upon drillers
of water wells and the owners of those wells. Section 1.11(d)(10) of the Act
provides that the Authority may enforce Chapter 32 and TNRCC rules adopted
thereunder. (Chapter 32 is now administered not by the TNRCC, but by the Texas
Department of Licensing and Regulation.) The Authority's rules relating to
well construction, well abandonment and cancellation contained within Chapter
711derive in part from this statutory authority and implement this chapter
and the supporting rules.
Chapter 36 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 36.101(a) empowers the Authority to make and
enforce rules to provide for conserving, preserving, protecting, and recharging
of the groundwater in order to, among other things, prevent waste and carry
out the duties provided elsewhere in Chapter 36. This requirement is implemented,
in large part, through Chapter 711.
Chapter 36 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 36.111 requires the Authority to require aquifer
users to keep and maintain reports of drilling, equipping, and completing
water wells and the production and uses of groundwater. Chapter 711 implements
these requirements.
Chapter 36 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 36.113 empowers districts such as the Authority
to require permits for drilling, equipping, or completing wells or for altering
the size of wells or well pumps. The section further specifies the permitted
format and contents of permit applications, and lays out criteria for the
district to consider when ruling on a permit application. The section also
provides that permits may be issued subject to the district's rules and other
restrictions. The Chapter 711 rules incorporate these requirements.
Chapter 36 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 36.1131 specifies what may be included as elements
of a permit issued by a district.
Chapter 36 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 36.115 provides that no person may drill a
well, alter the size of a well or well pump, or operate a well without first
obtaining a permit from the Authority.
Chapter 36 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 36.119(a) decrees that drilling a well without
a required permit or operating a well at a higher rate of production than
the rate approved for the well is declared to be illegal, wasteful per se,
and a nuisance. This concept is incorporated into Chapter 711, primarily in
the definition of waste found in § 711.1.
Chapter 49 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 49.211(a) endows districts such as the Authority
with the "functions, powers, authority, rights, and duties that will permit
accomplishment of the purposes for which it was created or the purposes authorized
by the constitution, this code, or any other law." This broad delegation of
powers is incorporated into the Chapter 711 rules.
Chapter 49 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 49.221 empowers representatives of the Authority
to enter land and perform tests and other inspections. This authority is incorporated
into Chapter 711, primarily in § 711.416.
16 TAC, Chapter 76. Section 1.11(d)(10) of the Act provides that the Authority
may enforce Chapter 32 and TNRCC rules adopted thereunder. Chapter 32 of the
Texas Water Code imposes certain duties upon drillers of water wells and the
owners of those wells. (Chapter 32 is now administered not by the TNRCC, but
by the Texas Department of Licensing and Regulation (TDLR).) The TDLR's rules
implementing Chapter 32 are found at 16 TAC, Chapter 76. These rules impose
numerous duties upon well drillers and well owners related to well construction,
operation, and plugging. The Authority's rules relating to well construction,
well abandonment and cancellation contained within Chapter 711 implement,
in part, the rules found in 16 TAC, Chapter 76.
§711.1.Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise:
(1)
Contract user--A person who:
(A)
withdrew or purchased groundwater from the aquifer during
the historical period pursuant to a contract or other legal right obtained
from a prior user or an existing user, from an existing well owned by the
prior user or an existing user; and
(B)
placed the groundwater to beneficial use.
(2)
Existing user--A person or the successor in interest of
a such a person, who, on June 1, 1993, owned an existing well from which groundwater
from the aquifer had been withdrawn and placed to beneficial use during the
historical period,
(3)
Historical use--The lawful withdrawing and placing to beneficial
use of groundwater from the aquifer during the historical period.
(4)
Prior user--A person who owned an existing well during
the historical period and withdrew groundwater from the aquifer from the well
and placed it to beneficial use during the historical period, and during the
historical period conveyed the ownership interest in the well to another person.
(5)
Producing well--A well from which groundwater from the
aquifer is capable of being withdrawn for a beneficial use.
(6)
Waste --
(A)
Withdrawal of groundwater from the aquifer at a rate and
amount that causes or threatens to cause intrusion into the reservoir of water
unsuitable for agricultural, gardening, domestic or stock-raising purposes;
(B)
The flowing or producing of wells from the aquifer if the
water produced is not used for a beneficial purpose;
(C)
Escape of groundwater from the aquifer to any other reservoir
that does not contain groundwater;
(D)
Pollution or harmful alteration of groundwater in the aquifer
by salt water or other deleterious matter admitted from another stratum or
from the surface of the ground;
(E)
Willfully or negligently causing, suffering or permitting
groundwater from the aquifer to escape into any river, creek, natural watercourse,
depression, lake, reservoir, drain, sewer, street, highway, road, or road
ditch, or onto any land other than that of the owner of the well, unless:
(i)
such discharge is authorized by permit, rule, or order
issued by the commission under Chapter 26, Water Code; and
(ii)
after discharge, the groundwater from the aquifer is beneficially
used by the existing user, applicant or permittee making the discharge;
(F)
Groundwater pumped from the aquifer for irrigation that
escapes as irrigation tailwater onto land, other than that of the well owner,
unless permission has been granted by the occupant of the land receiving the
discharge;
(G)
For water produced from an artesian well, "waste" has the
meaning assigned by the Water Code, §11.205;
(H)
Constructing, installing, drilling, equipping, completing,
altering, operating, maintaining, or making withdrawals from a well without
a required permit;
(I)
Withdrawal of water that is substantially in excess of
the volume or rate reasonably required for a beneficial use; or
(J)
Irrigation use of groundwater from the aquifer in a volume
per irrigated acre that is so insufficient that a crop could not have been
reasonably cultivated and produced.
This agency hereby certifies that the adoption
has been reviewed by legal counsel and found to be a valid exercise of the
agency's legal authority.
Filed with the Office of
the Secretary of State on October 18, 2000.
TRD-200007355
Gregory M. Ellis
General Manager
Edwards Aquifer Authority
Effective date: November 7, 2000
Proposal publication date: August 11, 2000
For further information, please call: (210) 222-2204
31 TAC §§711.10, 711.12, 711.14
VI. CONCISE RESTATEMENT OF THE STATUTORY PROVISIONS UNDER
WHICH THE RULES ARE ADOPTED.
The new sections are adopted pursuant to the following statutory provisions:
Section 1.01 of the Act contains the findings of the Texas Legislature
that the Edwards Aquifer is a distinctive natural resource and that a special
regional management district (the Authority) is required for the effective
control of the resource to protect terrestrial and aquatic life, domestic
and municipal water supplies, existing industries, and the economic development
of the state.
Section 1.03(1) defines the "Edwards Aquifer."
Section 1.03(4) of the Act defines "beneficial use" to mean the use of
water that is economically necessary for a purpose authorized by law when
reasonable intelligence and reasonable diligence are used in applying the
water to that purpose. The concept of beneficial use is incorporated into
the permitting rules of Chapter 711.
Section 1.03(9) of the Act defines "domestic or livestock use." This concept
is incorporated into the exempt well rules found within Chapter 711.
Section 1.03(10) of the Act defines "existing user" as a person who has
withdrawn and beneficially used underground water from the aquifer on or before
June 1, 1993. This concept is incorporated into the Chapter 711 rules, while
also accounting for the beneficial use requirement and including the successors
in interest of existing users within the definition.
Section 1.03(11) of the Act defines "industrial use." The Chapter 711 rules
incorporate this concept within the types of uses for which aquifer water
may be withdrawn.
Section 1.03(12) of the Act defines "irrigation use." The Chapter 711 rules
incorporate this concept within the types of uses for which aquifer water
may be withdrawn.
Section 1.03(13) of the Act defines "livestock." The Chapter 711 rules
incorporate this concept when determining whether a well qualifies as "exempt"
from permitting requirements.
Section 1.03(14) of the Act defines "municipal use." The Chapter 711 rules
incorporate this concept within the types of uses for which aquifer water
may be withdrawn.
Section 1.03(21) of the Act defines "waste." This concept is incorporated
into the Chapter 711 rules, while also including other practices which are
considered wasteful under the Act or under the long-standing water law concept
of beneficial use.
Section 1.07 of the Act provides, in part, that the actions taken by the
Authority pursuant to the Act may not be construed as depriving or divesting
owners of their ownership rights as landowners in underground water, subject
to rules adopted by the Authority.
Section 1.08(a) of the Act provides that the Authority "has all of the
powers, rights, and privileges necessary to manage, conserve, preserve, and
protect the aquifer and to increase the recharge of, and prevent the waste
or pollution of water in, the aquifer." This section provides the Authority
with broad and general powers to take actions as necessary to manage, conserve,
preserve, and protect the aquifer and to increase the recharge of, and prevent
the waste or pollution of water in, the aquifer. These rules further those
objectives.
Section 1.08(b) makes it clear that the Authority's powers apply only to
water within or withdrawn from the Edwards Aquifer, and not to surface water.
Section 1.11(a) of the Act provides that the Board of Directors ("Board")
of the Authority "shall adopt rules necessary to carry out the authority's
powers and duties under (Article 1 of the Act), including rule governing procedures
of the board and the authority." This section provides broad rulemaking authority
to implement the various substantive and procedures programs set forth in
the Act related to the Edwards Aquifer, including the permitting program.
Section 1.11(b) of the Act requires the Authority to "ensure compliance
with permitting, metering, and reporting requirements and . . . regulate permits."
This section, in conjunction with § 1.11(a) and (h) of the Act, and §
2001.004(1) of the APA, requires the Authority to adopt and enforce the Chapter
711 rules.
Section 1.11(d)(2) of the Act empowers the Authority to enter into contracts.
Pursuant to this section, the Authority may enter into contracts with well
owners concerning meters and reimbursement for same under Subchapter M of
the Chapter 711 rules.
Section 1.11(d)(8) of the Act provides that the Authority may close abandoned,
wasteful or dangerous wells. The Authority's rules relating to the requirement
of beneficial use and the prohibition of waste, as well as the closure of
abandoned wells derive in part from this statutory authority.
Section 1.11(d)(10) of the Act provides that the Authority may enforce
Chapter 32 of the Texas Water Code and TNRCC rules adopted thereunder. (Chapter
32 is now administered not by the TNRCC, but by the Texas Department of Licensing
and Regulation.) Chapter 32 imposes certain duties upon drillers of water
wells and the owners of those wells. The Authority's rules relating to well
construction, well abandonment and cancellation contained within Chapter 711
derive in part from this statutory authority.
Section 1.11(d)(11) of the Act provides that the Authority may require
to be furnished with copies of the water well drillers' logs that are required
by Chapter 32 of the Texas Water Code.
Section 1.11(h) of the Act provides, among other things, that the Authority
is "subject to" the APA. This section essentially provides that the Authority
is required to comply with the APA for its rulemaking, even though the Authority
is a political subdivision and not a state agency that would generally be
subject to APA requirements. Section 2001.004(1) of the APA requires agencies
subject to the APA to "adopt rules of practice stating the nature and requirements
of all available formal and informal procedures."
Section 1.13 of the Act requires the Authority to allow credit to be given
for certified reuse of aquifer water. The Authority will likely adopt rules
implementing this section. This concept is acknowledged in Subchapter F.
Section 1.14(a) of the Act provides that authorizations to withdraw aquifer
water shall be limited in order to: protect water quality of the aquifer and
surface streams to which the aquifer contributes springflow; achieve water
conservation; maximize beneficial use of water from the aquifer; protect aquatic
and wildlife habitat as well as federally or state-designated threatened or
endangered species; and provide for instream uses, bays and estuaries. The
Chapter 711 rules are adopted, in large part, pursuant to these statutory
mandates.
Section 1.14(b) of the Act imposes, subject to certain limitations, an
initial aquifer withdrawal "cap" for permitted withdrawals of 450,000 acre-feet
per year, until December 31, 2007. The Chapter 711 rules implement this cap,
explain to which permits it applies, how it can be raised, and other procedural
details.
Section 1.14(c) of the Act imposes, subject to certain limitations, an
aquifer withdrawal "cap" for permitted withdrawals of 400,000 acre-feet per
year, beginning January 1, 2008. The Chapter 711 rules implement this cap,
explain to which permits it applies, how it can be raised, and other procedural
details.
Section 1.14(d) of the Act provides that either of the caps listed above
may be raised by the Authority if, through studies and implementation of certain
strategies, the authority, in consultation with state and federal agencies,
determines the caps may be raised.
Section 1.14(e) of the Act requires the Authority to prohibit withdrawals
from new wells drilled after the effective date of the Act unless the "caps"
are raised and then only on an interruptible basis. The Chapter 711 rules
incorporate this prohibition.
Section 1.14(f) of the Act entitles the Authority to allow (or not allow)
permitted withdrawals on an uninterruptible basis when certain index wells
are at or above the following measurements: for the San Antonio pool, when
well J-17 is at or above 650 mean sea level (msl); and for the Uvalde Pool,
when well J-27 is at or above 865 msl. The section also imposes the duty on
the Authority to limit additional withdrawals to ensure that springflows are
not affected during critical drought conditions. The Chapter 711 rules incorporate
these concepts by making withdrawals subject to various conditions keyed on
drought conditions and critical period management rules.
Section 1.14(g) of the Act allows the Authority to, by rule, define other
pools within the aquifer in accordance with hydrogeologic research, and to
establish index wells for any pool to monitor the level of the aquifer to
aid the regulation of withdrawals from the pools.
Section 1.14(h) of the Act provides that the Authority generally must ensure,
by December 31, 2012, that continuous minimum springflows of Comal and San
Marcos Springs are maintained to protect threatened and endangered species
to the extent required by federal law. The Chapter 711 rules incorporate this
requirement by making withdrawals subject to various conditions keyed on drought
conditions and critical period management rules.
Section 1.15(a) of the Act directs the Authority "to manage withdrawals
from the aquifer and manage all withdrawal points from the aquifer as provided
by the Act." This section is implemented through the Chapter 711 rules.
Section 1.15(b) of the Act states that "except as provided by §§1.17
and 1.33 of this article, a person may not withdraw water from the aquifer
or begin construction of a well or other works designed for the withdrawal
of water from the aquifer without obtaining a permit from the authority."
This section is implemented through the Chapter 711 rules.
Section 1.15(c) of the Act allows the Authority to issue regular permits,
term permits, and emergency permits. This section is implemented through the
Chapter 711 rules.
Section 1.15(d) of the Act provides that each permit issued by the Authority
must specify the maximum rate and total volume of water that the user may
withdraw annually. This section is implemented through the Chapter 711 rules.
Section 1.16(a) of the Act allows an existing user to apply for an initial
regular permit by filing a declaration of historical use documenting use of
aquifer water during the period from June 1, 1972 through May 31, 1993. The
initial regular permits issued pursuant to the Chapter 711 rules will be based
upon such.
Section 1.16(b) of the Act, in conjunction with
Barshop v. Medina County Underground Water Conservation District,
925
S.W. 2d 618, 630 (Tex. 1996)(holding that declarations must be filed within
six months after the effective date of the Act, i.e., December 30, 1996) provides
that an existing user's declaration of historical use (permit application)
must be file on or before December 30, 1996, and the applicant must timely
pay all application fees required by the Authority. It further requires irrigation
applicants to submit, as part of their applications, documentation regarding
the number of acres irrigated during the historical period.
Section 1.16(c) of the Act provides that an owner of a well from which
the water will be used exclusively for domestic use or watering livestock
and that is exempt under § 1.33 of the Act is not required to file a
declaration of historical use.
Section 1.16(d) of the Act requires the Board to grant an initial regular
permit to an existing user who: (1) files a declaration and pays fees as required
by this section; and (2) establishes by convincing evidence beneficial use
of underground water from the aquifer. This requirement is incorporated into
the Chapter 711 rules.
Section 1.16(e) of the Act explains the quantity of water to be permitted
under an initial regular permit. Pursuant to this section, if enough water
is available, each existing user shall be permitted for an amount equal to
the user's maximum beneficial use during the historical period. If there is
not enough water available, then this section requires the Authority to "proportionately
adjust" permit amounts downward in order to meet the withdrawals "caps" discussed
above. However, this section also creates certain "permit minimums" for existing
irrigation users and for those existing users who have operated a well for
three or more years during the historical period. This section also requires
the Authority to extrapolate water use on an annual basis for those existing
users who do not have a full year's use during the historical period. These
concepts are incorporated into Chapter 711, primarily in Subchapter G.
Section 1.16(f) requires the Authority to equitably treat persons whose
historic use was affected by participation in a federal program, such as agricultural
subsidy programs. This concept is incorporated in the Chapter 711 rules.
Section 1.16(g) of the Act provides that initial regular permits do not
have a term and remain in effect until abandoned, cancelled or retired. These
concepts are incorporated in the Chapter 711 rules.
Section 1.16(h) of the Act requires the Authority to notify each permit
holder of the limitations to which the permit is subject. This concept is
incorporated into the Chapter 711 rules, primarily in Subchapter F.
Section 1.17(a) of the Act provides that a person who, on the effective
date of this article, owns a producing well that withdraws water from the
aquifer may continue to withdraw and beneficially use water without waste
until final action on permits by the Authority, if: "(1) the well is in compliance
with all statutes and rules relating to well construction, approval, location,
spacing, and operation; and (2) by March 1, 1994, the person files a declaration
of historical use on a form as required by the authority."
Section 1.18 of the Act allows the Authority, in certain circumstances,
to issue additional regular permits. This concept is incorporated into the
Chapter 711 rules, primarily in Subchapter E.
Section 1.19 of the Act allows the Authority to issue term permits and
places certain limitations and conditions on the right to withdraw water under
such a permit. This concept is incorporated into the Chapter 711 rules, primarily
in Subchapter E.
Section 1.20 of the Act allows the Authority to issue emergency permits
under certain circumstances and subject to certain conditions. This concept
is incorporated into the Chapter 711 rules, primarily in Subchapter E.
Section 1.21 of the Act sets out a process by which the Authority is to
implement a plan for reducing the withdrawal "cap" from 450,000 to 400,000
acre-feet per year by January 1, 2008. The plan must be enforceable and include
various water conservation, reuse, retirement, and other management measures.
If, on or after January 1, 2008, total permitted withdrawals still exceed
the 400,000 acre-feet cap, then the Authority must implement "equal percentage
reductions" of all permits in order to reach the cap. This concept is implemented
in Chapter 711, primarily in Subchapter G.
Section 1.22 of the Act provides that the Authority may acquire permitted
aquifer rights to be used for: holding in trust for sale or transfer to other
users; holding in trust as a means of managing aquifer demand; holding for
resale or retirement as a means of achieving pumping reductions required by
the Act; or retiring the rights. These concepts are implemented in part in
Chapter 711.
Section 1.23(a) of the Act provides that the Authority may require certain
permittees to submit and implement water conservation plans and water reuse
plans. These concepts are implemented in part in Chapter 711, primarily through
Subchapter F.
Section 1.25 of the Act requires the Authority to develop and implement
a comprehensive water management plan and, in conjunction with the SCTWAC
and other water districts, to develop and implement a plan for providing alternative
water supplies, with oversight by state agencies and the Edwards Aquifer Legislative
Oversight Committee. The alternative supplies plan shall consider alternative
technologies, financing issues, costs and benefits, and environmental issues.
These concepts are implemented, in part, in Chapter 711, primarily through
Subchapter F.
Section 1.26 of the Act requires the Authority to prepare and coordinate
implementation of a critical period management plan which meets certain, enumerated
criteria. These concepts are implemented in part in Chapter 711, primarily
through Subchapter F.
Section 1.29 of the Act authorizes the imposition of various types of fees
on various types of permits. The Chapter 711 rules acknowledge this fee provision,
primarily in Subchapter E.
Section 1.31 of the Act provides that nonexempt well owners must install
and maintain meters or alternative measuring devices to measure the flow rate
and cumulative amount of water withdrawn from each well. These concepts are
implemented in the Chapter 711 rules.
Section 1.32 of the Act requires permittees to submit annual water use
reports to the Authority. This section is acknowledged in Subchapter F.
Section 1.33 of the Act provides the criteria for exempt wells -- i.e.,
wells that produce no more than 25,000 gallons of water per day for domestic
and livestock use and that are not within or serving a subdivision requiring
platting. The section explains that such wells are exempt from metering requirements.
However, such wells must be registered with the Authority. These concepts
are implemented in Chapter 711.
Section 1.34 of the Act imposes certain limitations upon the ways in which
aquifer water and/or water rights may be transferred (alienated). First, aquifer
water must be used within the Authority's boundaries. Second, the section
allows the Authority to establish rules by which a person may install water
conservation equipment and sell the water conserved. Third, the section further
provides that a holder of a permit for irrigation use may not transfer more
than 50 percent of the irrigation rights initially permitted and that the
user's remaining irrigation water rights must be used in accordance with the
original permit and must pass with transfer of the irrigated land. These concepts
are implemented, in part, in Chapter 711.
Section 1.35 of the Act prohibits: withdrawing aquifer water except as
authorized by a permit; violating permit terms or conditions; wasting aquifer
water; polluting or contributing to the pollution of the aquifer; or violating
the Act or an Authority rule. These concepts are implemented in Chapter 711.
Section 1.36 of the Act empowers the Authority to enter orders enforcing
the terms and conditions of permits, orders, or rules, and to draft rules
suspending permits for failure to pay required fees or violations of permits,
orders or rules. These concepts are implemented, in part, in Chapter 711.
Section 2001.004(1) of the APA requires agencies subject to the APA to
"adopt rules of practice stating the nature and requirements of all available
formal and informal procedures." This rulemaking is in furtherance of this
legislative mandate.
Chapter 32 of the Texas Water Code imposes certain duties upon drillers
of water wells and the owners of those wells. Section 1.11(d)(10) of the Act
provides that the Authority may enforce Chapter 32 and TNRCC rules adopted
thereunder. (Chapter 32 is now administered not by the TNRCC, but by the Texas
Department of Licensing and Regulation.) The Authority's rules relating to
well construction, well abandonment and cancellation contained within Chapter
711derive in part from this statutory authority and implement this chapter
and the supporting rules.
Chapter 36 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 36.101(a) empowers the Authority to make and
enforce rules to provide for conserving, preserving, protecting, and recharging
of the groundwater in order to, among other things, prevent waste and carry
out the duties provided elsewhere in Chapter 36. This requirement is implemented,
in large part, through Chapter 711.
Chapter 36 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 36.111 requires the Authority to require aquifer
users to keep and maintain reports of drilling, equipping, and completing
water wells and the production and uses of groundwater. Chapter 711 implements
these requirements.
Chapter 36 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 36.113 empowers districts such as the Authority
to require permits for drilling, equipping, or completing wells or for altering
the size of wells or well pumps. The section further specifies the permitted
format and contents of permit applications, and lays out criteria for the
district to consider when ruling on a permit application. The section also
provides that permits may be issued subject to the district's rules and other
restrictions. The Chapter 711 rules incorporate these requirements.
Chapter 36 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 36.1131 specifies what may be included as elements
of a permit issued by a district.
Chapter 36 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 36.115 provides that no person may drill a
well, alter the size of a well or well pump, or operate a well without first
obtaining a permit from the Authority.
Chapter 36 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 36.119(a) decrees that drilling a well without
a required permit or operating a well at a higher rate of production than
the rate approved for the well is declared to be illegal, wasteful per se,
and a nuisance. This concept is incorporated into Chapter 711, primarily in
the definition of waste found in § 711.1.
Chapter 49 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 49.211(a) endows districts such as the Authority
with the "functions, powers, authority, rights, and duties that will permit
accomplishment of the purposes for which it was created or the purposes authorized
by the constitution, this code, or any other law." This broad delegation of
powers is incorporated into the Chapter 711 rules.
Chapter 49 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 49.221 empowers representatives of the Authority
to enter land and perform tests and other inspections. This authority is incorporated
into Chapter 711, primarily in § 711.416.
16 TAC, Chapter 76. Section 1.11(d)(10) of the Act provides that the Authority
may enforce Chapter 32 and TNRCC rules adopted thereunder. Chapter 32 of the
Texas Water Code imposes certain duties upon drillers of water wells and the
owners of those wells. (Chapter 32 is now administered not by the TNRCC, but
by the Texas Department of Licensing and Regulation (TDLR).) The TDLR's rules
implementing Chapter 32 are found at 16 TAC, Chapter 76. These rules impose
numerous duties upon well drillers and well owners related to well construction,
operation, and plugging. The Authority's rules relating to well construction,
well abandonment and cancellation contained within Chapter 711 implement,
in part, the rules found in 16 TAC, Chapter 76.
§711.12.Activities Requiring a Permit.
(a)
Except as provided in § 711.14 of this title (relating
to Withdrawals Not Requiring a Groundwater Withdrawal Permit) and subsection
(b) of this section, a person desiring to engage in any of the following activities
is required to obtain a permit from the Authority before the commencement
of the activity:
(1)
withdraw groundwater from the aquifer;
(2)
construct, install, drill, equip, complete, alter, operate,
or maintain a well, or other works, designed for the withdrawal of groundwater
from the aquifer;
(3)
construct, install, drill, equip, complete, alter, operate,
or maintain a well, or other works, designed for the monitoring of the water
quality or level of the aquifer,
(4)
equip, complete, alter, operate, or maintain a well pump
installed or to be installed on a well designed for the withdrawal of groundwater
from the aquifer;
(5)
construct, install, drill, equip, complete or alter a well
or other works designed to withdraw groundwater from an aquifer other than
the Edwards Aquifer, but that intersects the Edwards Aquifer;
(6)
recharge water into the aquifer; or
(7)
store water within the aquifer.
(b)
The requirement to obtain a well construction permit under
subsection (a)(2)-(4) of this section does not apply to the performance of
routine operation and maintenance after construction and installation of a
well if the well is:
(1)
an existing non-exempt well that qualifies for interim
authorization status under the Act, § 1.17, and subchapter D of this
chapter (relating to Interim Authorization);
(2)
an existing non-exempt well for which a groundwater withdrawal
permit has been issued by the board; or
(3)
an existing exempt well.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed
with the Office of the Secretary of State on October 18, 2000.
TRD-200007356
Gregory M. Ellis
General Manager
Edwards Aquifer Authority
Effective date: November 7, 2000
Proposal publication date: August 11, 2000
For further information, please call: (210) 222-2204
31 TAC §§711.90, 711.92, 711.94, 711.96, 711.98, 711.100, 711.102, 711.104, 711.108, 711.110, 711.112, 711.116, 711.118
VI. CONCISE RESTATEMENT OF THE STATUTORY PROVISIONS UNDER
WHICH THE RULES ARE ADOPTED.
The new sections are adopted pursuant to the following statutory provisions:
Section 1.01 of the Act contains the findings of the Texas Legislature
that the Edwards Aquifer is a distinctive natural resource and that a special
regional management district (the Authority) is required for the effective
control of the resource to protect terrestrial and aquatic life, domestic
and municipal water supplies, existing industries, and the economic development
of the state.
Section 1.03(1) defines the "Edwards Aquifer."
Section 1.03(4) of the Act defines "beneficial use" to mean the use of
water that is economically necessary for a purpose authorized by law when
reasonable intelligence and reasonable diligence are used in applying the
water to that purpose. The concept of beneficial use is incorporated into
the permitting rules of Chapter 711.
Section 1.03(9) of the Act defines "domestic or livestock use." This concept
is incorporated into the exempt well rules found within Chapter 711.
Section 1.03(10) of the Act defines "existing user" as a person who has
withdrawn and beneficially used underground water from the aquifer on or before
June 1, 1993. This concept is incorporated into the Chapter 711 rules, while
also accounting for the beneficial use requirement and including the successors
in interest of existing users within the definition.
Section 1.03(11) of the Act defines "industrial use." The Chapter 711 rules
incorporate this concept within the types of uses for which aquifer water
may be withdrawn.
Section 1.03(12) of the Act defines "irrigation use." The Chapter 711 rules
incorporate this concept within the types of uses for which aquifer water
may be withdrawn.
Section 1.03(13) of the Act defines "livestock." The Chapter 711 rules
incorporate this concept when determining whether a well qualifies as "exempt"
from permitting requirements.
Section 1.03(14) of the Act defines "municipal use." The Chapter 711 rules
incorporate this concept within the types of uses for which aquifer water
may be withdrawn.
Section 1.03(21) of the Act defines "waste." This concept is incorporated
into the Chapter 711 rules, while also including other practices which are
considered wasteful under the Act or under the long-standing water law concept
of beneficial use.
Section 1.07 of the Act provides, in part, that the actions taken by the
Authority pursuant to the Act may not be construed as depriving or divesting
owners of their ownership rights as landowners in underground water, subject
to rules adopted by the Authority.
Section 1.08(a) of the Act provides that the Authority "has all of the
powers, rights, and privileges necessary to manage, conserve, preserve, and
protect the aquifer and to increase the recharge of, and prevent the waste
or pollution of water in, the aquifer." This section provides the Authority
with broad and general powers to take actions as necessary to manage, conserve,
preserve, and protect the aquifer and to increase the recharge of, and prevent
the waste or pollution of water in, the aquifer. These rules further those
objectives.
Section 1.08(b) makes it clear that the Authority's powers apply only to
water within or withdrawn from the Edwards Aquifer, and not to surface water.
Section 1.11(a) of the Act provides that the Board of Directors ("Board")
of the Authority "shall adopt rules necessary to carry out the authority's
powers and duties under (Article 1 of the Act), including rule governing procedures
of the board and the authority." This section provides broad rulemaking authority
to implement the various substantive and procedures programs set forth in
the Act related to the Edwards Aquifer, including the permitting program.
Section 1.11(b) of the Act requires the Authority to "ensure compliance
with permitting, metering, and reporting requirements and . . . regulate permits."
This section, in conjunction with § 1.11(a) and (h) of the Act, and §
2001.004(1) of the APA, requires the Authority to adopt and enforce the Chapter
711 rules.
Section 1.11(d)(2) of the Act empowers the Authority to enter into contracts.
Pursuant to this section, the Authority may enter into contracts with well
owners concerning meters and reimbursement for same under Subchapter M of
the Chapter 711 rules.
Section 1.11(d)(8) of the Act provides that the Authority may close abandoned,
wasteful or dangerous wells. The Authority's rules relating to the requirement
of beneficial use and the prohibition of waste, as well as the closure of
abandoned wells derive in part from this statutory authority.
Section 1.11(d)(10) of the Act provides that the Authority may enforce
Chapter 32 of the Texas Water Code and TNRCC rules adopted thereunder. (Chapter
32 is now administered not by the TNRCC, but by the Texas Department of Licensing
and Regulation.) Chapter 32 imposes certain duties upon drillers of water
wells and the owners of those wells. The Authority's rules relating to well
construction, well abandonment and cancellation contained within Chapter 711
derive in part from this statutory authority.
Section 1.11(d)(11) of the Act provides that the Authority may require
to be furnished with copies of the water well drillers' logs that are required
by Chapter 32 of the Texas Water Code.
Section 1.11(h) of the Act provides, among other things, that the Authority
is "subject to" the APA. This section essentially provides that the Authority
is required to comply with the APA for its rulemaking, even though the Authority
is a political subdivision and not a state agency that would generally be
subject to APA requirements. Section 2001.004(1) of the APA requires agencies
subject to the APA to "adopt rules of practice stating the nature and requirements
of all available formal and informal procedures."
Section 1.13 of the Act requires the Authority to allow credit to be given
for certified reuse of aquifer water. The Authority will likely adopt rules
implementing this section. This concept is acknowledged in Subchapter F.
Section 1.14(a) of the Act provides that authorizations to withdraw aquifer
water shall be limited in order to: protect water quality of the aquifer and
surface streams to which the aquifer contributes springflow; achieve water
conservation; maximize beneficial use of water from the aquifer; protect aquatic
and wildlife habitat as well as federally or state-designated threatened or
endangered species; and provide for instream uses, bays and estuaries. The
Chapter 711 rules are adopted, in large part, pursuant to these statutory
mandates.
Section 1.14(b) of the Act imposes, subject to certain limitations, an
initial aquifer withdrawal "cap" for permitted withdrawals of 450,000 acre-feet
per year, until December 31, 2007. The Chapter 711 rules implement this cap,
explain to which permits it applies, how it can be raised, and other procedural
details.
Section 1.14(c) of the Act imposes, subject to certain limitations, an
aquifer withdrawal "cap" for permitted withdrawals of 400,000 acre-feet per
year, beginning January 1, 2008. The Chapter 711 rules implement this cap,
explain to which permits it applies, how it can be raised, and other procedural
details.
Section 1.14(d) of the Act provides that either of the caps listed above
may be raised by the Authority if, through studies and implementation of certain
strategies, the authority, in consultation with state and federal agencies,
determines the caps may be raised.
Section 1.14(e) of the Act requires the Authority to prohibit withdrawals
from new wells drilled after the effective date of the Act unless the "caps"
are raised and then only on an interruptible basis. The Chapter 711 rules
incorporate this prohibition.
Section 1.14(f) of the Act entitles the Authority to allow (or not allow)
permitted withdrawals on an uninterruptible basis when certain index wells
are at or above the following measurements: for the San Antonio pool, when
well J-17 is at or above 650 mean sea level (msl); and for the Uvalde Pool,
when well J-27 is at or above 865 msl. The section also imposes the duty on
the Authority to limit additional withdrawals to ensure that springflows are
not affected during critical drought conditions. The Chapter 711 rules incorporate
these concepts by making withdrawals subject to various conditions keyed on
drought conditions and critical period management rules.
Section 1.14(g) of the Act allows the Authority to, by rule, define other
pools within the aquifer in accordance with hydrogeologic research, and to
establish index wells for any pool to monitor the level of the aquifer to
aid the regulation of withdrawals from the pools.
Section 1.14(h) of the Act provides that the Authority generally must ensure,
by December 31, 2012, that continuous minimum springflows of Comal and San
Marcos Springs are maintained to protect threatened and endangered species
to the extent required by federal law. The Chapter 711 rules incorporate this
requirement by making withdrawals subject to various conditions keyed on drought
conditions and critical period management rules.
Section 1.15(a) of the Act directs the Authority "to manage withdrawals
from the aquifer and manage all withdrawal points from the aquifer as provided
by the Act." This section is implemented through the Chapter 711 rules.
Section 1.15(b) of the Act states that "except as provided by §§1.17
and 1.33 of this article, a person may not withdraw water from the aquifer
or begin construction of a well or other works designed for the withdrawal
of water from the aquifer without obtaining a permit from the authority."
This section is implemented through the Chapter 711 rules.
Section 1.15(c) of the Act allows the Authority to issue regular permits,
term permits, and emergency permits. This section is implemented through the
Chapter 711 rules.
Section 1.15(d) of the Act provides that each permit issued by the Authority
must specify the maximum rate and total volume of water that the user may
withdraw annually. This section is implemented through the Chapter 711 rules.
Section 1.16(a) of the Act allows an existing user to apply for an initial
regular permit by filing a declaration of historical use documenting use of
aquifer water during the period from June 1, 1972 through May 31, 1993. The
initial regular permits issued pursuant to the Chapter 711 rules will be based
upon such.
Section 1.16(b) of the Act, in conjunction with
Barshop v. Medina County Underground Water Conservation District,
925
S.W. 2d 618, 630 (Tex. 1996)(holding that declarations must be filed within
six months after the effective date of the Act, i.e., December 30, 1996) provides
that an existing user's declaration of historical use (permit application)
must be file on or before December 30, 1996, and the applicant must timely
pay all application fees required by the Authority. It further requires irrigation
applicants to submit, as part of their applications, documentation regarding
the number of acres irrigated during the historical period.
Section 1.16(c) of the Act provides that an owner of a well from which
the water will be used exclusively for domestic use or watering livestock
and that is exempt under § 1.33 of the Act is not required to file a
declaration of historical use.
Section 1.16(d) of the Act requires the Board to grant an initial regular
permit to an existing user who: (1) files a declaration and pays fees as required
by this section; and (2) establishes by convincing evidence beneficial use
of underground water from the aquifer. This requirement is incorporated into
the Chapter 711 rules.
Section 1.16(e) of the Act explains the quantity of water to be permitted
under an initial regular permit. Pursuant to this section, if enough water
is available, each existing user shall be permitted for an amount equal to
the user's maximum beneficial use during the historical period. If there is
not enough water available, then this section requires the Authority to "proportionately
adjust" permit amounts downward in order to meet the withdrawals "caps" discussed
above. However, this section also creates certain "permit minimums" for existing
irrigation users and for those existing users who have operated a well for
three or more years during the historical period. This section also requires
the Authority to extrapolate water use on an annual basis for those existing
users who do not have a full year's use during the historical period. These
concepts are incorporated into Chapter 711, primarily in Subchapter G.
Section 1.16(f) requires the Authority to equitably treat persons whose
historic use was affected by participation in a federal program, such as agricultural
subsidy programs. This concept is incorporated in the Chapter 711 rules.
Section 1.16(g) of the Act provides that initial regular permits do not
have a term and remain in effect until abandoned, cancelled or retired. These
concepts are incorporated in the Chapter 711 rules.
Section 1.16(h) of the Act requires the Authority to notify each permit
holder of the limitations to which the permit is subject. This concept is
incorporated into the Chapter 711 rules, primarily in Subchapter F.
Section 1.17(a) of the Act provides that a person who, on the effective
date of this article, owns a producing well that withdraws water from the
aquifer may continue to withdraw and beneficially use water without waste
until final action on permits by the Authority, if: "(1) the well is in compliance
with all statutes and rules relating to well construction, approval, location,
spacing, and operation; and (2) by March 1, 1994, the person files a declaration
of historical use on a form as required by the authority."
Section 1.18 of the Act allows the Authority, in certain circumstances,
to issue additional regular permits. This concept is incorporated into the
Chapter 711 rules, primarily in Subchapter E.
Section 1.19 of the Act allows the Authority to issue term permits and
places certain limitations and conditions on the right to withdraw water under
such a permit. This concept is incorporated into the Chapter 711 rules, primarily
in Subchapter E.
Section 1.20 of the Act allows the Authority to issue emergency permits
under certain circumstances and subject to certain conditions. This concept
is incorporated into the Chapter 711 rules, primarily in Subchapter E.
Section 1.21 of the Act sets out a process by which the Authority is to
implement a plan for reducing the withdrawal "cap" from 450,000 to 400,000
acre-feet per year by January 1, 2008. The plan must be enforceable and include
various water conservation, reuse, retirement, and other management measures.
If, on or after January 1, 2008, total permitted withdrawals still exceed
the 400,000 acre-feet cap, then the Authority must implement "equal percentage
reductions" of all permits in order to reach the cap. This concept is implemented
in Chapter 711, primarily in Subchapter G.
Section 1.22 of the Act provides that the Authority may acquire permitted
aquifer rights to be used for: holding in trust for sale or transfer to other
users; holding in trust as a means of managing aquifer demand; holding for
resale or retirement as a means of achieving pumping reductions required by
the Act; or retiring the rights. These concepts are implemented in part in
Chapter 711.
Section 1.23(a) of the Act provides that the Authority may require certain
permittees to submit and implement water conservation plans and water reuse
plans. These concepts are implemented in part in Chapter 711, primarily through
Subchapter F.
Section 1.25 of the Act requires the Authority to develop and implement
a comprehensive water management plan and, in conjunction with the SCTWAC
and other water districts, to develop and implement a plan for providing alternative
water supplies, with oversight by state agencies and the Edwards Aquifer Legislative
Oversight Committee. The alternative supplies plan shall consider alternative
technologies, financing issues, costs and benefits, and environmental issues.
These concepts are implemented, in part, in Chapter 711, primarily through
Subchapter F.
Section 1.26 of the Act requires the Authority to prepare and coordinate
implementation of a critical period management plan which meets certain, enumerated
criteria. These concepts are implemented in part in Chapter 711, primarily
through Subchapter F.
Section 1.29 of the Act authorizes the imposition of various types of fees
on various types of permits. The Chapter 711 rules acknowledge this fee provision,
primarily in Subchapter E.
Section 1.31 of the Act provides that nonexempt well owners must install
and maintain meters or alternative measuring devices to measure the flow rate
and cumulative amount of water withdrawn from each well. These concepts are
implemented in the Chapter 711 rules.
Section 1.32 of the Act requires permittees to submit annual water use
reports to the Authority. This section is acknowledged in Subchapter F.
Section 1.33 of the Act provides the criteria for exempt wells -- i.e.,
wells that produce no more than 25,000 gallons of water per day for domestic
and livestock use and that are not within or serving a subdivision requiring
platting. The section explains that such wells are exempt from metering requirements.
However, such wells must be registered with the Authority. These concepts
are implemented in Chapter 711.
Section 1.34 of the Act imposes certain limitations upon the ways in which
aquifer water and/or water rights may be transferred (alienated). First, aquifer
water must be used within the Authority's boundaries. Second, the section
allows the Authority to establish rules by which a person may install water
conservation equipment and sell the water conserved. Third, the section further
provides that a holder of a permit for irrigation use may not transfer more
than 50 percent of the irrigation rights initially permitted and that the
user's remaining irrigation water rights must be used in accordance with the
original permit and must pass with transfer of the irrigated land. These concepts
are implemented, in part, in Chapter 711.
Section 1.35 of the Act prohibits: withdrawing aquifer water except as
authorized by a permit; violating permit terms or conditions; wasting aquifer
water; polluting or contributing to the pollution of the aquifer; or violating
the Act or an Authority rule. These concepts are implemented in Chapter 711.
Section 1.36 of the Act empowers the Authority to enter orders enforcing
the terms and conditions of permits, orders, or rules, and to draft rules
suspending permits for failure to pay required fees or violations of permits,
orders or rules. These concepts are implemented, in part, in Chapter 711.
Section 2001.004(1) of the APA requires agencies subject to the APA to
"adopt rules of practice stating the nature and requirements of all available
formal and informal procedures." This rulemaking is in furtherance of this
legislative mandate.
Chapter 32 of the Texas Water Code imposes certain duties upon drillers
of water wells and the owners of those wells. Section 1.11(d)(10) of the Act
provides that the Authority may enforce Chapter 32 and TNRCC rules adopted
thereunder. (Chapter 32 is now administered not by the TNRCC, but by the Texas
Department of Licensing and Regulation.) The Authority's rules relating to
well construction, well abandonment and cancellation contained within Chapter
711derive in part from this statutory authority and implement this chapter
and the supporting rules.
Chapter 36 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 36.101(a) empowers the Authority to make and
enforce rules to provide for conserving, preserving, protecting, and recharging
of the groundwater in order to, among other things, prevent waste and carry
out the duties provided elsewhere in Chapter 36. This requirement is implemented,
in large part, through Chapter 711.
Chapter 36 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 36.111 requires the Authority to require aquifer
users to keep and maintain reports of drilling, equipping, and completing
water wells and the production and uses of groundwater. Chapter 711 implements
these requirements.
Chapter 36 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 36.113 empowers districts such as the Authority
to require permits for drilling, equipping, or completing wells or for altering
the size of wells or well pumps. The section further specifies the permitted
format and contents of permit applications, and lays out criteria for the
district to consider when ruling on a permit application. The section also
provides that permits may be issued subject to the district's rules and other
restrictions. The Chapter 711 rules incorporate these requirements.
Chapter 36 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 36.1131 specifies what may be included as elements
of a permit issued by a district.
Chapter 36 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 36.115 provides that no person may drill a
well, alter the size of a well or well pump, or operate a well without first
obtaining a permit from the Authority.
Chapter 36 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 36.119(a) decrees that drilling a well without
a required permit or operating a well at a higher rate of production than
the rate approved for the well is declared to be illegal, wasteful per se,
and a nuisance. This concept is incorporated into Chapter 711, primarily in
the definition of waste found in § 711.1.
Chapter 49 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 49.211(a) endows districts such as the Authority
with the "functions, powers, authority, rights, and duties that will permit
accomplishment of the purposes for which it was created or the purposes authorized
by the constitution, this code, or any other law." This broad delegation of
powers is incorporated into the Chapter 711 rules.
Chapter 49 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 49.221 empowers representatives of the Authority
to enter land and perform tests and other inspections. This authority is incorporated
into Chapter 711, primarily in § 711.416.
16 TAC, Chapter 76. Section 1.11(d)(10) of the Act provides that the Authority
may enforce Chapter 32 and TNRCC rules adopted thereunder. Chapter 32 of the
Texas Water Code imposes certain duties upon drillers of water wells and the
owners of those wells. (Chapter 32 is now administered not by the TNRCC, but
by the Texas Department of Licensing and Regulation (TDLR).) The TDLR's rules
implementing Chapter 32 are found at 16 TAC, Chapter 76. These rules impose
numerous duties upon well drillers and well owners related to well construction,
operation, and plugging. The Authority's rules relating to well construction,
well abandonment and cancellation contained within Chapter 711 implement,
in part, the rules found in 16 TAC, Chapter 76.
§711.94.Beneficial Use.
(a)
Groundwater withdrawn from the aquifer must:
(1)
have been placed to beneficial use without waste during
the historical period; or
(2)
be placed to beneficial use without waste after the historical
period.
(b)
Unless otherwise provided by contract, the beneficial use
of groundwater by a contract user inures to the benefit of a prior user or
an existing user from whose well the contract user made withdrawals.
(c)
Unless otherwise provided by contract, the beneficial use
of groundwater by a contract user may only be claimed by a prior user or existing
user in support of a declaration.
(d)
Irrigation use of groundwater from the aquifer in the volume
of two acre-feet per irrigated acre is rebuttably presumed to constitute beneficial
use without waste.
(e)
The irrigation of multiple or successive crops is a beneficial
use to the extent it does not constitute waste.
(f)
For a prior user or an existing user whose historic use
has been affected by a requirement of, or participation in, a federal program,
a beneficial use credit shall be given for the amount that would have been
withdrawn and beneficially used during the historical period by such prior
user or existing user but for the operation of the federal program. If the
use was for irrigation purposes, the credit is based on irrigation use on
comparable acres on a similarly situated farm that is not in the federal program.
If the use was for non-irrigation purposes, the credit is based upon the use
of a comparable and similarly situated user whose uses were not affected by
participation in a federal program.
(g)
Unless otherwise provided by contract, the beneficial use
of groundwater during the historical period on the same place of use by multiple
existing users each owning different wells is shared pro rata based on the
number of existing users who irrigated the place of use during the historical
period with the sum total of each existing user's pro rata share not exceeding
two acre-feet per irrigated acre.
§711.96.Non-Aquifer Groundwater.
(a)
The Authority may not issue to an applicant a groundwater
withdrawal permit to withdraw groundwater from an aquifer other than the Edwards
Aquifer.
(b)
An application for a groundwater withdrawal permit for
a well that withdraws groundwater from multiple aquifers, including the Edwards
Aquifer, may be granted by the board in an amount that does not exceed:
(1)
for irrigation use, the number of acres beneficially irrigated
with the water withdrawn from the well multiplied by the percentage of aquifer
water produced from the well, multiplied by two acre-feet; or
(2)
for non-irrigation use, the actual amount of groundwater
withdrawn from the aquifer and placed to beneficial use.
§711.98.Initial Regular Permits.
(a)
An existing user may apply for an initial regular permit.
(b)
Initial regular permits are transferable pursuant to subchapter
L of this chapter (relating to Transfers).
(c)
The term of an initial regular permit is perpetual.
(d)
If in effect, initial regular permits may be proportionally
adjusted in accordance with the proportional adjustment rules pursuant to
subchapter G of this chapter (relating to Groundwater Available for Permitting;
Proportional Adjustment; and Equal Percentage Reduction).
(e)
If in effect, initial regular permits may be retired in
accordance with the following rules:
(1)
the springflow maintenance rules pursuant to subchapter
G (relating to Springflow Maintenance Rules) of chapter 715 of this title
(relating to Comprehensive Water Management Plan Implementation);
(2)
the equal percentage reduction rules pursuant to subchapter
G of this chapter (relating to Groundwater Available for Permitting, Proportional
Adjustment, Equal Percentage Reduction); or
(3)
the regular permit retirement rules pursuant to subchapter
H (relating to Withdrawal Reductions and Regular Permit Retirement Rules)
of chapter 715 of this title (relating to Comprehensive Water Management Plan
Implementation).
(f)
If in effect, initial regular permits may be suspended
in accordance with the following rules:
(1)
the demand management rules pursuant to subchapter D (relating
to Demand Management) of chapter 715 of this title (relating to Comprehensive
Water Management Plan Implementation); or
(2)
the groundwater trust pursuant to subchapter N of this
chapter (relating to Groundwater Trust).
(g)
If in effect, initial regular permits may be interrupted
in accordance with the following rules:
(1)
the drought management rules pursuant to subchapter E (relating
to Drought Management Rules) of chapter 715 of this title (relating to Comprehensive
Water Management Plan Implementation);
(2)
the critical period management rules pursuant to subchapter
F (relating to Critical Period Management Rules) of chapter 715 of this title
(relating to Comprehensive Water Management Plan Implementation); or
(3)
the springflow maintenance rules pursuant to subchapter
G (relating to Springflow Maintenance Rules) of chapter 715 of this title
(relating to Comprehensive Water Management Plan Implementation).
(h)
Initial regular permits may be abandoned pursuant to subchapter
H of this chapter (relating to Abandonment and Cancellation).
(i)
Initial regular permits may be canceled pursuant to subchapter
H of this chapter (relating to Abandonment and Cancellation).
(j)
Subject to the duty of the board to determine the amount
of groundwater that may be withdrawn under an initial regular permit, the
board shall grant an application for an initial regular permit if the following
elements are established by convincing evidence:
(1)
the applicant filed a declaration on or before December
30, 1996;
(2)
the applicant paid the application fee on or before December
30, 1996;
(3)
the application identifies an existing well(s);
(4)
on June 1, 1993, the applicant, or a prior user who is
the applicant's predecessor or in interest, owned the well;
(5)
the well head is physically located within the boundaries
of the authority;
(6)
the well is a withdrawal point for groundwater;
(7)
the groundwater withdrawn from the well immediately prior
to its intake into the well casing was physically located within and discharged
directly from the aquifer;
(8)
at the time of the withdrawals, the well was operated by:
(A)
the applicant;
(B)
a prior user who is the applicant's predecessor in interest
to the ownership of the well; or
(C)
a contract user;
(9)
the withdrawals were made during the historical period;
(10)
the place of use at which the withdrawals were beneficially
used is physically located within the boundaries of the authority;
(11)
the withdrawals were placed to a beneficial use for irrigation,
municipal, or industrial use;
(12)
the well(s) does not qualify for exempt well status;
(13)
the application is in compliance with the Act; and
(14)
the application is in compliance with the rules of the
Authority.
(k)
The board shall issue withdrawal amounts to an applicant
for an initial regular permit pursuant to §711.176 of this title (relating
to Groundwater Withdrawal Amount for Initial Regular Permits; Compensation
for Phase-2 Proportional Amounts) or as modified by §711.180 of this
title (relating to Voluntary Waiver of Applications for Initial Regular Permits)
of this chapter.
§711.100.Additional Regular Permits.
(a)
Any person owning a well, or proposing to construct a well,
may apply for an additional regular permit if:
(1)
final determinations have been made by the board on all
applications for initial regular permits filed with the authority on or before
December 30, 1996; and
(2)
the board has issued an order stating that the authority
is accepting for filing applications for additional regular permits.
(b)
Unless the board has issued the order authorizing applications
for additional regular permits to be filed with the authority, the general
manager may not process any application received and must return the application
to the applicant along with any application fee submitted. When the general
manager is authorized to accept for filing applications for additional regular
permits, they shall be processed in the order in which they are received according
to the official date and time stamp of the authority on the application.
(c)
Additional regular permits are transferable pursuant to
subchapter L of this chapter (relating to Transfers).
(d)
The term of an additional regular permit is perpetual.
(e)
If in effect, additional regular permits may be retired
in accordance with the following rules:
(1)
the springflow maintenance rules pursuant to subchapter
G (relating to Springflow Maintenance Rules) of chapter 715 of this title
(relating to Comprehensive Water Management Plan Implementation);
(2)
the equal percentage reduction rules pursuant to subchapter
G of this chapter (relating to Groundwater Available for Permitting; Proportional
Adjustment; Equal Percentage Reduction); or
(3)
the regular permit retirement rules pursuant to subchapter
H (relating to Withdrawal Reductions and Regular Permit Retirement Rules)
of chapter 715 of this title (relating to Comprehensive Water Management Plan
Implementation).
(f)
If in effect, additional regular permits may be suspended
in accordance with the following rules:
(1)
the demand management rules pursuant to subchapter D (relating
to Demand Management) of chapter 715 of this title (relating to Comprehensive
Water Management Plan Implementation); or
(2)
the groundwater trust pursuant to subchapter N of this
chapter (relating to Groundwater Trust).
(g)
If in effect, additional regular permits may be interrupted
in accordance with the following rules:
(1)
the drought management rules pursuant to subchapter E (relating
to Drought Management Rules) of chapter 715 of this title (relating to Comprehensive
Water Management Plan Implementation);
(2)
the critical period management rules pursuant to subchapter
F (relating to Critical Period Management Rules) of chapter 715 of this title
(relating to Comprehensive Water Management Plan Implementation); or
(3)
the springflow maintenance rules pursuant to subchapter
G (relating to Springflow Maintenance Rules) of chapter 715 of this title
(relating to Comprehensive Water Management Plan Implementation).
(h)
Additional regular permits may be abandoned pursuant to
subchapter H of this chapter (relating to Abandonment and Cancellation).
(i)
Additional regular permits may be canceled pursuant to
subchapter H of this chapter (relating to Abandonment and Cancellation).
(j)
Subject to the duty of the board to determine the amount
of groundwater that may be withdrawn under an additional regular permit, the
board shall grant an application for an additional regular permit if the following
elements are established by convincing evidence:
(1)
the applicant paid the application fee;
(2)
the application identifies an existing or proposed well(s);
(3)
the well head is physically located within the boundaries
of the authority;
(4)
the well is a withdrawal point for groundwater;
(5)
the groundwater proposed to be withdrawn from the well
immediately prior to its intake into the well casing will be physically located
within and discharged directly from the aquifer;
(6)
the place of use at which the withdrawals are proposed
to be beneficially used is physically located within the boundaries of the
authority;
(7)
the withdrawals are proposed to be placed to a beneficial
use for irrigation, municipal, or industrial use;
(8)
there remains water available for permitting after the
board has made final determinations on:
(A)
all applications for initial regular permits;
(B)
any restorations of proportional adjustments or equal percentage
reductions pursuant to § 711.304 of this title (relating to Allocation
of Additional Groundwater Supplies ) of this chapter; and
(C)
all prior applications for additional regular permits;
(9)
the well does not qualify for exempt well status;
(10)
the proposed withdrawal of groundwater is consistent with
chapter 715 of this title (relating to Comprehensive Water Management Plan
Implementation);
(11)
the application is in compliance with the Act; and
(12)
the application is in compliance with the rules of the
Authority.
(k)
The board shall issue a groundwater withdrawal amount to
an applicant for an additional regular permit in an amount that is consistent
with chapter 715 of this title (relating to Comprehensive Water Management
Plan Implementation).
§711.102.Term Permits.
(a)
Any person owning a well, or proposing to construct a well,
may apply for a term permit.
(b)
Unless the board has issued an order authorizing applications
for term permits to be filed with the authority, the general manager may not
process any application received and must return the application to the applicant
along with any application fee submitted. When the general manager is authorized
to accept for filing applications for term permits, they shall be processed
in the order in which they are received according to the official date and
time stamp of the authority on the application.
(c)
Term permits are transferable only as to ownership pursuant
to subchapter L of this chapter (relating to Transfers).
(d)
If in effect, term permits shall be interrupted in accordance
with the following rules:
(1)
for wells completed in the San Antonio pool, the level
of the aquifer for the San Antonio pool is equal to or less than 665 feet
above mean sea level as measured at well J-17;
(2)
for wells completed in the Uvalde pool, the level of the
aquifer for the Uvalde pool is equal to or less than 865 feet above mean sea
level as measured at well J-27;
(3)
the drought management rules pursuant to subchapter E (relating
to Drought Management Rules) of chapter 715 (relating to Comprehensive Water
Management Plan Implementation);
(4)
the critical period management rules pursuant to subchapter
F (relating to Critical Period Management Rules) of chapter 715 of this title
(relating to Comprehensive Water Management Plan Implementation); or
(5)
the springflow maintenance rules pursuant to subchapter
G (relating to Springflow Maintenance Rules) of chapter 715 of this title
(relating to Comprehensive Water Management Plan Implementation).
(e)
A term permit may be issued for any period the Authority
considers feasible not to exceed ten years. Upon expiration of the term, the
permit automatically expires and is canceled.
(f)
Subject to the duty of the board to determine the amount
of groundwater that may be withdrawn under a term permit, the board shall
grant an application for a term permit if the following elements are established
by convincing evidence:
(1)
the applicant paid the application fee;
(2)
the application identifies an existing or proposed well(s);
(3)
the well head is physically located within the boundaries
of the authority;
(4)
the well is a withdrawal point for groundwater;
(5)
the groundwater proposed to be withdrawn from the well
immediately prior to its intake into the well casing will be physically located
within and discharged directly from the aquifer;
(6)
the withdrawals are proposed to be placed to a beneficial
use;
(7)
the place of use at which the withdrawals are proposed
to be beneficially used is physically located within the boundaries of the
authority;
(8)
groundwater is available for permitting from the San Antonio
or Uvalde pools, as appropriate;
(9)
the well does not qualify for exempt well status;
(10)
the applicant is in compliance with other groundwater
withdrawal permits, if any;
(11)
the proposed withdrawal of groundwater under the term
permit, if granted, would not unreasonably negatively affect other permittees;
(12)
the proposed withdrawal of groundwater is consistent with
chapter 715 of this title (relating to Comprehensive Water Management Plan
Implementation);
(13)
the proposed use of groundwater is economically feasible
in relation to the proposed length of the term;
(14)
if applicable, the applicant has or will have an approved
existing on-site sewer systems, or has been granted an application to construct
such a system by the appropriate regulatory agency;
(15)
the applicant will take all reasonable measures to ensure
conservation of water withdrawn;
(16)
the applicant has no other source of water from a municipal
distribution system;
(17)
the application is in compliance with the Act; and
(18)
the application is in compliance with the rules of the
Authority.
(g)
The board shall issue a groundwater withdrawal amount to
an applicant for a term permit in the amount that is consistent with chapter
715 of this title (relating to Comprehensive Water Management Plan Implementation).
(h)
By January 15 of each year, the board by order shall determine
the total quantity of groundwater that may be withdrawn from each pool of
the aquifer for that calendar year pursuant to term permits. At any time by
order of the Board this determination may be revised as appropriate based
upon actual aquifer conditions to be consistent with chapter 715 of this title
(relating to Comprehensive Water Management Plan Implementation).
§711.108.Well Construction Permits
(a)
Any person proposing to perform any of the activities set
forth in § 711.12(a)(2)-(5) of this chapter (relating to Activities Requiring
a Permit) shall apply for a well construction permit.
(b)
Well construction permits are not transferable pursuant
to subchapter L of this chapter (relating to Transfers).
(c)
A well constructed pursuant to a well construction permit
must be completed within 180 days of the issuance of the permit. The permit
term may be extended by one additional 180-day extension period by the general
manager. In order to obtain such an extension, the holder of a well construction
permit must submit a written request to the general manager explaining the
need for the extension. If the holder of the well construction permit demonstrates
a need for an extension and demonstrates that the permit holder's failure
to complete the well within the original 180-day term is not due to the permit
holder's own lack of diligence, then the general manager may authorize the
extension. Upon expiration of the term, including any extension granted, the
permit automatically expires and is canceled.
(d)
The general manager shall grant an application for a well
construction permit if the following elements are established by convincing
evidence:
(1)
the applicant paid the application fee;
(2)
the application identifies a proposed or an existing well(s);
(3)
the well head is or will be physically located within the
boundaries of the Authority;
(4)
the well is a withdrawal point for groundwater;
(5)
the groundwater proposed to be withdrawn from the well
immediately prior to its intake into the well casing will be physically located
within and discharged directly from the aquifer;
(6)
the withdrawals are proposed to be placed to a beneficial
use for domestic or livestock use, irrigation use, municipal use, or industrial
use;
(7)
the place of use at which the withdrawals are proposed
to be beneficially used is physically located within the boundaries of the
authority;
(8)
the applicant has a legal right to make withdrawals from
the well;
(9)
the quantity of groundwater the well would be capable of
producing, if constructed, is consistent with the quantity of groundwater
the applicant proposes to produce pursuant to exempt well status or pursuant
to a groundwater withdrawal permit;
(10)
the applicant is in compliance with other permits the
applicant holds from the Authority;
(11)
the proposed well construction and operation would not
unreasonably negatively affect the aquifer or other permittees;
(12)
the well will be constructed, operated and maintained
consistent with all applicable local, state, and federal well construction,
operation, and maintenance law;
(13)
the well will be constructed, operated and maintained
consistent with chapter 713 this title (relating to Water Quality);
(14)
the application is in compliance with the Act; and
(15)
the application is in compliance with the rules of the
Authority.
§711.112.Contents of Groundwater Withdrawal Permits.
Groundwater withdrawal permits issued by the Authority shall contain
the following:
(1)
name, address and telephone number of the owner of the
permit;
(2)
name, address and telephone number of an authorized representative,
if any, of the owner;
(3)
permit category;
(4)
permit term;
(5)
purpose of use;
(6)
maximum rate of withdrawal in gallons per minute;
(7)
maximum volume of withdrawals by purpose in acre-feet on
an annual basis;
(8)
if applicable, maximum historical use as defined in §
711.172(B)(3) of this chapter (relating to Proportional Adjustment of Initial
Regular Permits);
(9)
if applicable, historical average or irrigator minimum
as defined in § 711.172(b)(1) and (2), respectively, of this chapter
(relating to Proportional Adjustment of Initial Regular Permits);
(10)
if applicable, Phase-1 proportionally adjusted amount
as calculated pursuant to § 711.172(g)(5) of this chapter (relating to
Proportional Adjustment of Initial Regular Permits);
(11)
if applicable, Step-up amount as calculated pursuant to §
711.172(g)(6) of this chapter (relating to Proportional Adjustment of Initial
Regular Permits);
(12)
if applicable, Phase-2 proportionally adjusted amount
as calculated pursuant to § 711.172(g)(8) of this chapter (relating to
Proportional Adjustment of Initial Regular Permits);
(13)
if applicable, the equal percentage reduction amount as
calculated pursuant to § 711.174 of this chapter (relating to Equal Percentage
Reduction of Initial Regular Permits) and subchapter H (relating to Withdrawal
Reductions) and Regular Permit Retirement Rules of chapter 715 (relating to
Comprehensive Management Plan Implementation of this title); the amount that
may be subject to restoration pursuant to § 711.172(h) of this chapter
(relating to Proportional Adjustment of Initial Regular Permits) and §
711.304 of the chapter (relating to Allocation of Additional Groundwater Supplies);
(14)
location of the point(s) of withdrawal;
(15)
place of use;
(16)
source of groundwater;
(17)
metering or alternative measuring method;
(18)
conditions for retirement of permits;
(19)
conditions for suspension of withdrawals;
(20)
conditions for interruption of withdrawals;
(21)
conditions for renewal, if applicable;
(22)
reporting requirements;
(23)
notice that the permit is subject to the limitations provided
in the Act and these rules;
(24)
the standard groundwater withdrawal conditions set forth
in subchapter F of this chapter (relating to Standard Groundwater Withdrawal
Conditions);
(25)
any other appropriate conditions on the withdrawal of
groundwater from the aquifer as determined by the Authority; and
(26)
any other information required by the board to implement
the Act or the Authority's rules.
§711.116.Contents of Well Construction Permits.
Well construction permits issued by the Authority shall contain the
following:
(1)
name, address and telephone number of the owner of the
permit;
(2)
name, address and telephone number of an authorized representative,
if any, of the owner;
(3)
permit category;
(4)
permit term;
(5)
purpose of use of the well;
(6)
maximum rate of withdrawal in gallons per minute;
(7)
maximum volume of withdrawals by purpose in acre-feet on
an annual basis;
(8)
legal description of the location of the well, including:
(A)
county;
(B)
section, block and survey;
(C)
labor and league;
(D)
number of feet to the two nearest non-parallel property
lines (legal survey lines); and
(E)
other adequate legal description, as may be required by
the Authority;
(9)
identification of the specific legal authority of the applicant
to make withdrawals of groundwater from the aquifer from the well;
(10)
the source of groundwater;
(11)
size of the pump, pumping rate, pumping method, and other
construction specifications for metering or alternative measuring method;
(12)
internal diameter, total well depth, depth of cement casing,
size, and other well construction specifications as appropriate;
(13)
reporting requirements;
(14)
notice that the permit is subject to the limitations provided
in the Act and these rules;
(15)
any other appropriate conditions on the well construction
as determined by the Authority; and
(16)
any other information required by the board to implement
the Act or the Authority's rules.
§711.118.Contents of Monitoring Well Permits.
Monitoring well permits issued by the Authority shall contain the following:
(1)
name, address and telephone number of the owner of the
permit;
(2)
name, address and telephone number of an authorized representative,
if any, of the owner;
(3)
permit category;
(4)
permit term;
(5)
purpose of use of the well;
(6)
maximum rate of withdrawal in gallons per minute;
(7)
maximum volume of withdrawals by purpose in acre-feet on
an annual basis;
(8)
legal description of the location of the well, including:
(A)
county;
(B)
section, block and survey;
(C)
labor and league;
(D)
number of feet to the two nearest non-parallel property
lines (legal survey lines); and
(E)
other adequate legal description, as may be required by
the Authority;
(9)
purpose of the monitoring activity;
(10)
the source of groundwater;
(11)
size of the pump, pumping rate, pumping method, and other
construction specifications for metering or alternative measuring method;
(12)
internal diameter, total well depth, depth of cement casing,
size, and other well construction specifications as appropriate;
(13)
construction specification for other monitoring equipment
to be installed in and associated with the well;
(14)
reporting requirements;
(15)
notice that the permit is subject to the limitations provided
in the Edwards Aquifer Act and these rules;
(16)
any other appropriate conditions on the construction well
as determined by the Authority; and
(17)
any other information required by the board to implement
the Act or the Authority's rules.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed
with the Office of the Secretary of State on October 18, 2000.
TRD-200007357
Gregory M. Ellis
General Manager
Edwards Aquifer Authority
Effective date: November 7, 2000
Proposal publication date: August 11, 2000
For further information, please call: (210) 222-2204
31 TAC §§711.130, 711.132, 711.134
VI. CONCISE RESTATEMENT OF THE STATUTORY PROVISIONS UNDER
WHICH THE RULES ARE ADOPTED.
The new sections are adopted pursuant to the following statutory provisions:
Section 1.01 of the Act contains the findings of the Texas Legislature
that the Edwards Aquifer is a distinctive natural resource and that a special
regional management district (the Authority) is required for the effective
control of the resource to protect terrestrial and aquatic life, domestic
and municipal water supplies, existing industries, and the economic development
of the state.
Section 1.03(1) defines the "Edwards Aquifer."
Section 1.03(4) of the Act defines "beneficial use" to mean the use of
water that is economically necessary for a purpose authorized by law when
reasonable intelligence and reasonable diligence are used in applying the
water to that purpose. The concept of beneficial use is incorporated into
the permitting rules of Chapter 711.
Section 1.03(9) of the Act defines "domestic or livestock use." This concept
is incorporated into the exempt well rules found within Chapter 711.
Section 1.03(10) of the Act defines "existing user" as a person who has
withdrawn and beneficially used underground water from the aquifer on or before
June 1, 1993. This concept is incorporated into the Chapter 711 rules, while
also accounting for the beneficial use requirement and including the successors
in interest of existing users within the definition.
Section 1.03(11) of the Act defines "industrial use." The Chapter 711 rules
incorporate this concept within the types of uses for which aquifer water
may be withdrawn.
Section 1.03(12) of the Act defines "irrigation use." The Chapter 711 rules
incorporate this concept within the types of uses for which aquifer water
may be withdrawn.
Section 1.03(13) of the Act defines "livestock." The Chapter 711 rules
incorporate this concept when determining whether a well qualifies as "exempt"
from permitting requirements.
Section 1.03(14) of the Act defines "municipal use." The Chapter 711 rules
incorporate this concept within the types of uses for which aquifer water
may be withdrawn.
Section 1.03(21) of the Act defines "waste." This concept is incorporated
into the Chapter 711 rules, while also including other practices which are
considered wasteful under the Act or under the long-standing water law concept
of beneficial use.
Section 1.07 of the Act provides, in part, that the actions taken by the
Authority pursuant to the Act may not be construed as depriving or divesting
owners of their ownership rights as landowners in underground water, subject
to rules adopted by the Authority.
Section 1.08(a) of the Act provides that the Authority "has all of the
powers, rights, and privileges necessary to manage, conserve, preserve, and
protect the aquifer and to increase the recharge of, and prevent the waste
or pollution of water in, the aquifer." This section provides the Authority
with broad and general powers to take actions as necessary to manage, conserve,
preserve, and protect the aquifer and to increase the recharge of, and prevent
the waste or pollution of water in, the aquifer. These rules further those
objectives.
Section 1.08(b) makes it clear that the Authority's powers apply only to
water within or withdrawn from the Edwards Aquifer, and not to surface water.
Section 1.11(a) of the Act provides that the Board of Directors ("Board")
of the Authority "shall adopt rules necessary to carry out the authority's
powers and duties under (Article 1 of the Act), including rule governing procedures
of the board and the authority." This section provides broad rulemaking authority
to implement the various substantive and procedures programs set forth in
the Act related to the Edwards Aquifer, including the permitting program.
Section 1.11(b) of the Act requires the Authority to "ensure compliance
with permitting, metering, and reporting requirements and . . . regulate permits."
This section, in conjunction with § 1.11(a) and (h) of the Act, and §
2001.004(1) of the APA, requires the Authority to adopt and enforce the Chapter
711 rules.
Section 1.11(d)(2) of the Act empowers the Authority to enter into contracts.
Pursuant to this section, the Authority may enter into contracts with well
owners concerning meters and reimbursement for same under Subchapter M of
the Chapter 711 rules.
Section 1.11(d)(8) of the Act provides that the Authority may close abandoned,
wasteful or dangerous wells. The Authority's rules relating to the requirement
of beneficial use and the prohibition of waste, as well as the closure of
abandoned wells derive in part from this statutory authority.
Section 1.11(d)(10) of the Act provides that the Authority may enforce
Chapter 32 of the Texas Water Code and TNRCC rules adopted thereunder. (Chapter
32 is now administered not by the TNRCC, but by the Texas Department of Licensing
and Regulation.) Chapter 32 imposes certain duties upon drillers of water
wells and the owners of those wells. The Authority's rules relating to well
construction, well abandonment and cancellation contained within Chapter 711
derive in part from this statutory authority.
Section 1.11(d)(11) of the Act provides that the Authority may require
to be furnished with copies of the water well drillers' logs that are required
by Chapter 32 of the Texas Water Code.
Section 1.11(h) of the Act provides, among other things, that the Authority
is "subject to" the APA. This section essentially provides that the Authority
is required to comply with the APA for its rulemaking, even though the Authority
is a political subdivision and not a state agency that would generally be
subject to APA requirements. Section 2001.004(1) of the APA requires agencies
subject to the APA to "adopt rules of practice stating the nature and requirements
of all available formal and informal procedures."
Section 1.13 of the Act requires the Authority to allow credit to be given
for certified reuse of aquifer water. The Authority will likely adopt rules
implementing this section. This concept is acknowledged in Subchapter F.
Section 1.14(a) of the Act provides that authorizations to withdraw aquifer
water shall be limited in order to: protect water quality of the aquifer and
surface streams to which the aquifer contributes springflow; achieve water
conservation; maximize beneficial use of water from the aquifer; protect aquatic
and wildlife habitat as well as federally or state-designated threatened or
endangered species; and provide for instream uses, bays and estuaries. The
Chapter 711 rules are adopted, in large part, pursuant to these statutory
mandates.
Section 1.14(b) of the Act imposes, subject to certain limitations, an
initial aquifer withdrawal "cap" for permitted withdrawals of 450,000 acre-feet
per year, until December 31, 2007. The Chapter 711 rules implement this cap,
explain to which permits it applies, how it can be raised, and other procedural
details.
Section 1.14(c) of the Act imposes, subject to certain limitations, an
aquifer withdrawal "cap" for permitted withdrawals of 400,000 acre-feet per
year, beginning January 1, 2008. The Chapter 711 rules implement this cap,
explain to which permits it applies, how it can be raised, and other procedural
details.
Section 1.14(d) of the Act provides that either of the caps listed above
may be raised by the Authority if, through studies and implementation of certain
strategies, the authority, in consultation with state and federal agencies,
determines the caps may be raised.
Section 1.14(e) of the Act requires the Authority to prohibit withdrawals
from new wells drilled after the effective date of the Act unless the "caps"
are raised and then only on an interruptible basis. The Chapter 711 rules
incorporate this prohibition.
Section 1.14(f) of the Act entitles the Authority to allow (or not allow)
permitted withdrawals on an uninterruptible basis when certain index wells
are at or above the following measurements: for the San Antonio pool, when
well J-17 is at or above 650 mean sea level (msl); and for the Uvalde Pool,
when well J-27 is at or above 865 msl. The section also imposes the duty on
the Authority to limit additional withdrawals to ensure that springflows are
not affected during critical drought conditions. The Chapter 711 rules incorporate
these concepts by making withdrawals subject to various conditions keyed on
drought conditions and critical period management rules.
Section 1.14(g) of the Act allows the Authority to, by rule, define other
pools within the aquifer in accordance with hydrogeologic research, and to
establish index wells for any pool to monitor the level of the aquifer to
aid the regulation of withdrawals from the pools.
Section 1.14(h) of the Act provides that the Authority generally must ensure,
by December 31, 2012, that continuous minimum springflows of Comal and San
Marcos Springs are maintained to protect threatened and endangered species
to the extent required by federal law. The Chapter 711 rules incorporate this
requirement by making withdrawals subject to various conditions keyed on drought
conditions and critical period management rules.
Section 1.15(a) of the Act directs the Authority "to manage withdrawals
from the aquifer and manage all withdrawal points from the aquifer as provided
by the Act." This section is implemented through the Chapter 711 rules.
Section 1.15(b) of the Act states that "except as provided by §§1.17
and 1.33 of this article, a person may not withdraw water from the aquifer
or begin construction of a well or other works designed for the withdrawal
of water from the aquifer without obtaining a permit from the authority."
This section is implemented through the Chapter 711 rules.
Section 1.15(c) of the Act allows the Authority to issue regular permits,
term permits, and emergency permits. This section is implemented through the
Chapter 711 rules.
Section 1.15(d) of the Act provides that each permit issued by the Authority
must specify the maximum rate and total volume of water that the user may
withdraw annually. This section is implemented through the Chapter 711 rules.
Section 1.16(a) of the Act allows an existing user to apply for an initial
regular permit by filing a declaration of historical use documenting use of
aquifer water during the period from June 1, 1972 through May 31, 1993. The
initial regular permits issued pursuant to the Chapter 711 rules will be based
upon such.
Section 1.16(b) of the Act, in conjunction with
Barshop v. Medina County Underground Water Conservation District,
925
S.W. 2d 618, 630 (Tex. 1996)(holding that declarations must be filed within
six months after the effective date of the Act, i.e., December 30, 1996) provides
that an existing user's declaration of historical use (permit application)
must be file on or before December 30, 1996, and the applicant must timely
pay all application fees required by the Authority. It further requires irrigation
applicants to submit, as part of their applications, documentation regarding
the number of acres irrigated during the historical period.
Section 1.16(c) of the Act provides that an owner of a well from which
the water will be used exclusively for domestic use or watering livestock
and that is exempt under § 1.33 of the Act is not required to file a
declaration of historical use.
Section 1.16(d) of the Act requires the Board to grant an initial regular
permit to an existing user who: (1) files a declaration and pays fees as required
by this section; and (2) establishes by convincing evidence beneficial use
of underground water from the aquifer. This requirement is incorporated into
the Chapter 711 rules.
Section 1.16(e) of the Act explains the quantity of water to be permitted
under an initial regular permit. Pursuant to this section, if enough water
is available, each existing user shall be permitted for an amount equal to
the user's maximum beneficial use during the historical period. If there is
not enough water available, then this section requires the Authority to "proportionately
adjust" permit amounts downward in order to meet the withdrawals "caps" discussed
above. However, this section also creates certain "permit minimums" for existing
irrigation users and for those existing users who have operated a well for
three or more years during the historical period. This section also requires
the Authority to extrapolate water use on an annual basis for those existing
users who do not have a full year's use during the historical period. These
concepts are incorporated into Chapter 711, primarily in Subchapter G.
Section 1.16(f) requires the Authority to equitably treat persons whose
historic use was affected by participation in a federal program, such as agricultural
subsidy programs. This concept is incorporated in the Chapter 711 rules.
Section 1.16(g) of the Act provides that initial regular permits do not
have a term and remain in effect until abandoned, cancelled or retired. These
concepts are incorporated in the Chapter 711 rules.
Section 1.16(h) of the Act requires the Authority to notify each permit
holder of the limitations to which the permit is subject. This concept is
incorporated into the Chapter 711 rules, primarily in Subchapter F.
Section 1.17(a) of the Act provides that a person who, on the effective
date of this article, owns a producing well that withdraws water from the
aquifer may continue to withdraw and beneficially use water without waste
until final action on permits by the Authority, if: "(1) the well is in compliance
with all statutes and rules relating to well construction, approval, location,
spacing, and operation; and (2) by March 1, 1994, the person files a declaration
of historical use on a form as required by the authority."
Section 1.18 of the Act allows the Authority, in certain circumstances,
to issue additional regular permits. This concept is incorporated into the
Chapter 711 rules, primarily in Subchapter E.
Section 1.19 of the Act allows the Authority to issue term permits and
places certain limitations and conditions on the right to withdraw water under
such a permit. This concept is incorporated into the Chapter 711 rules, primarily
in Subchapter E.
Section 1.20 of the Act allows the Authority to issue emergency permits
under certain circumstances and subject to certain conditions. This concept
is incorporated into the Chapter 711 rules, primarily in Subchapter E.
Section 1.21 of the Act sets out a process by which the Authority is to
implement a plan for reducing the withdrawal "cap" from 450,000 to 400,000
acre-feet per year by January 1, 2008. The plan must be enforceable and include
various water conservation, reuse, retirement, and other management measures.
If, on or after January 1, 2008, total permitted withdrawals still exceed
the 400,000 acre-feet cap, then the Authority must implement "equal percentage
reductions" of all permits in order to reach the cap. This concept is implemented
in Chapter 711, primarily in Subchapter G.
Section 1.22 of the Act provides that the Authority may acquire permitted
aquifer rights to be used for: holding in trust for sale or transfer to other
users; holding in trust as a means of managing aquifer demand; holding for
resale or retirement as a means of achieving pumping reductions required by
the Act; or retiring the rights. These concepts are implemented in part in
Chapter 711.
Section 1.23(a) of the Act provides that the Authority may require certain
permittees to submit and implement water conservation plans and water reuse
plans. These concepts are implemented in part in Chapter 711, primarily through
Subchapter F.
Section 1.25 of the Act requires the Authority to develop and implement
a comprehensive water management plan and, in conjunction with the SCTWAC
and other water districts, to develop and implement a plan for providing alternative
water supplies, with oversight by state agencies and the Edwards Aquifer Legislative
Oversight Committee. The alternative supplies plan shall consider alternative
technologies, financing issues, costs and benefits, and environmental issues.
These concepts are implemented, in part, in Chapter 711, primarily through
Subchapter F.
Section 1.26 of the Act requires the Authority to prepare and coordinate
implementation of a critical period management plan which meets certain, enumerated
criteria. These concepts are implemented in part in Chapter 711, primarily
through Subchapter F.
Section 1.29 of the Act authorizes the imposition of various types of fees
on various types of permits. The Chapter 711 rules acknowledge this fee provision,
primarily in Subchapter E.
Section 1.31 of the Act provides that nonexempt well owners must install
and maintain meters or alternative measuring devices to measure the flow rate
and cumulative amount of water withdrawn from each well. These concepts are
implemented in the Chapter 711 rules.
Section 1.32 of the Act requires permittees to submit annual water use
reports to the Authority. This section is acknowledged in Subchapter F.
Section 1.33 of the Act provides the criteria for exempt wells -- i.e.,
wells that produce no more than 25,000 gallons of water per day for domestic
and livestock use and that are not within or serving a subdivision requiring
platting. The section explains that such wells are exempt from metering requirements.
However, such wells must be registered with the Authority. These concepts
are implemented in Chapter 711.
Section 1.34 of the Act imposes certain limitations upon the ways in which
aquifer water and/or water rights may be transferred (alienated). First, aquifer
water must be used within the Authority's boundaries. Second, the section
allows the Authority to establish rules by which a person may install water
conservation equipment and sell the water conserved. Third, the section further
provides that a holder of a permit for irrigation use may not transfer more
than 50 percent of the irrigation rights initially permitted and that the
user's remaining irrigation water rights must be used in accordance with the
original permit and must pass with transfer of the irrigated land. These concepts
are implemented, in part, in Chapter 711.
Section 1.35 of the Act prohibits: withdrawing aquifer water except as
authorized by a permit; violating permit terms or conditions; wasting aquifer
water; polluting or contributing to the pollution of the aquifer; or violating
the Act or an Authority rule. These concepts are implemented in Chapter 711.
Section 1.36 of the Act empowers the Authority to enter orders enforcing
the terms and conditions of permits, orders, or rules, and to draft rules
suspending permits for failure to pay required fees or violations of permits,
orders or rules. These concepts are implemented, in part, in Chapter 711.
Section 2001.004(1) of the APA requires agencies subject to the APA to
"adopt rules of practice stating the nature and requirements of all available
formal and informal procedures." This rulemaking is in furtherance of this
legislative mandate.
Chapter 32 of the Texas Water Code imposes certain duties upon drillers
of water wells and the owners of those wells. Section 1.11(d)(10) of the Act
provides that the Authority may enforce Chapter 32 and TNRCC rules adopted
thereunder. (Chapter 32 is now administered not by the TNRCC, but by the Texas
Department of Licensing and Regulation.) The Authority's rules relating to
well construction, well abandonment and cancellation contained within Chapter
711derive in part from this statutory authority and implement this chapter
and the supporting rules.
Chapter 36 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 36.101(a) empowers the Authority to make and
enforce rules to provide for conserving, preserving, protecting, and recharging
of the groundwater in order to, among other things, prevent waste and carry
out the duties provided elsewhere in Chapter 36. This requirement is implemented,
in large part, through Chapter 711.
Chapter 36 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 36.111 requires the Authority to require aquifer
users to keep and maintain reports of drilling, equipping, and completing
water wells and the production and uses of groundwater. Chapter 711 implements
these requirements.
Chapter 36 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 36.113 empowers districts such as the Authority
to require permits for drilling, equipping, or completing wells or for altering
the size of wells or well pumps. The section further specifies the permitted
format and contents of permit applications, and lays out criteria for the
district to consider when ruling on a permit application. The section also
provides that permits may be issued subject to the district's rules and other
restrictions. The Chapter 711 rules incorporate these requirements.
Chapter 36 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 36.1131 specifies what may be included as elements
of a permit issued by a district.
Chapter 36 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 36.115 provides that no person may drill a
well, alter the size of a well or well pump, or operate a well without first
obtaining a permit from the Authority.
Chapter 36 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 36.119(a) decrees that drilling a well without
a required permit or operating a well at a higher rate of production than
the rate approved for the well is declared to be illegal, wasteful per se,
and a nuisance. This concept is incorporated into Chapter 711, primarily in
the definition of waste found in § 711.1.
Chapter 49 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 49.211(a) endows districts such as the Authority
with the "functions, powers, authority, rights, and duties that will permit
accomplishment of the purposes for which it was created or the purposes authorized
by the constitution, this code, or any other law." This broad delegation of
powers is incorporated into the Chapter 711 rules.
Chapter 49 of the Texas Water Code generally applies to groundwater districts
such as the Authority. Section 49.221 empowers representatives of the Authority
to enter land and perform tests and other inspections. This authority is incorporated
into Chapter 711, primarily in § 711.416.
16 TAC, Chapter 76. Section 1.11(d)(10) of the Act provides that the Authority
may enforce Chapter 32 and TNRCC rules adopted thereunder. Chapter 32 of the
Texas Water Code imposes certain duties upon drillers of water wells and the
owners of those wells. (Chapter 32 is now administered not by the TNRCC, but
by the Texas Department of Licensing and Regulation (TDLR).) The TDLR's rules
implementing Chapter 32 are found at 16 TAC, Chapter 76. These rules impose
numerous duties upon well drillers and well owners related to well construction,
operation, and plugging. The Authority's rules relating to well construction,
well abandonment and cancellation contained within Chapter 711 implement,
in part, the rules found in 16 TAC, Chapter 76.
§711.130.Purpose.
The purpose of this subchapter is to establish the standard conditions
required to be contained in a groundwater withdrawal permit issued by the
authority for, among other things:
(1)
the protection of the water quality of the groundwater
of the aquifer;
(2)
the protection of the water quality of the surface streams
to which the aquifer provides springflow;
(3)
the achievement of water conservation, and the maximization
of the beneficial use of groundwater available for withdrawal from the aquifer;
(4)
the protection of aquatic and wildlife habitat, and the
protection of species that have been listed as threatened or endangered under
applicable federal or state law; and
(5)
the providing for instream uses, bays, and estuaries.
§711.134.Standard Conditions.
Any groundwater withdrawal permit issued by the authority is subject
to and the permittee shall comply with the following conditions:
(1)
the construction, operation and maintenance of wells pursuant
to subchapter C (relating to Well Construction, Operation and Maintenance)
of chapter 713 of this title (relating to Water Quality);
(2)
the abandonment and closure of wells pursuant to subchapter
D (relating to Abandoned Wells; Well Closures) of chapter 713 of this title
(relating to Water Quality);
(3)
the spacing of wells pursuant to subchapter E (relating
to Well Spacing) of chapter 713 of this title (relating to Water Quality);
(4)
the installation, operation and maintenance of well fields
pursuant to subchapter F (relating to Well Head Protection) of chapter 713
of this title (relating to Water Quality);
(5)
the recharge of the aquifer pursuant to subchapter J of
this chapter (relating to Aquifer Recharge, Storage and Recovery Project);
(6)
taking no action that pollutes or contributes to the pollution
of the aquifer;
(7)
the beneficial use and utilization of groundwater withdrawn
from the aquifer that is reused pursuant to subchapter I (relating to Reuse
Rules) of chapter 715 of this title (relating to Comprehensive Water Management
Plan Implementation);
(8)
not wasting groundwater within or withdrawn from the aquifer
pursuant to subchapters E (relating to Permitted Wells) and I of this chapter
(relating to Prohibitions);
(9)
the beneficial use and utilization of groundwater withdrawn
from the aquifer pursuant to subchapter C (relating to Groundwater Conservation
Rules) of chapter 715 of this title (relating to Comprehensive Water Management
Plan Implementation);
(10)
the beneficial use and utilization of groundwater withdrawn
from the aquifer pursuant to subchapter D (relating to Demand Management Rules)
of chapter 715 of this title (relating to Comprehensive Water Management Plan
Implementation);
(11)
the interruption of the right to withdraw and beneficially
use groundwater from the aquifer pursuant to subchapter E (relating to Drought
Management Rules) of chapter 715 of this title (relating to Comprehensive
Water Management Plan Implementation);
(12)
the interruption of the right to withdraw and beneficially
use groundwater from the aquifer pursuant to subchapter F (relating to Critical
Period Management Rules) of chapter 715 of this title (relating to Comprehensive
Water Management Plan Implementation);
(13)
the installation, operation and maintenance of meters
and alternative measuring methods pursuant to subchapter M of this chapter
(relating to Meters; Alternative Measuring Methods; and Reporting);
(14)
the keeping and filing of reports pursuant to subchapter
M of this chapter (relating to Meters; Alternative Measuring Methods; and
Reporting), and any other applicable law or rule; and
(15)
the use of groundwater withdrawn from the aquifer only
for an authorized beneficial use and without waste pursuant to subchapter
E (relating to Permitted Wells) and I of this chapter (relating to Prohibitions);
(16)
the retirement or interruption of the right to withdraw
and beneficially use groundwater from the aquifer pursuant to subchapter G
(relating to Springflow Maintenance Rules) of chapter 715 of this title (relating
to Comprehensive Water Management Plan Implementation);
(17)
proportional adjustment pursuant to subchapter G (relating
to Groundwater Available for Permitting, Proportional Adjustment, Equal Percentage
Reductions) of chapter 711 of this title (relating to Groundwater Withdrawal
Permits);
(18)
retirement by equal percentage reductions pursuant to
subchapter G (relating to Groundwater Available for Permitting, Proportional
Adjustment, Equal Percentage Reductions) of chapter 711 of this title (relating
to Groundwater Withdrawal Permits);
(19)
retirement pursuant to subchapter H (relating to Withdrawal
Reductions and Regular Permit Retirement Rules) of chapter 715 of this title
(relating to Comprehensive Water Management Plan Implementation);
(20)
the acquisition of additional water supplies pursuant
to subchapter J (relating to Alternative Water Supply Rules) of chapter 715
of this title (relating to Comprehensive Water Management Plan Implementation);
(21)
the provision of notice of changes in name and mailing
address of the permitting pursuant to §707.105 of chapter 707 of this
title (relating to Change of Name, Address or Telephone Number);
(22)
the payment of all registration, application, aquifer
management, and retirement fees pursuant to chapter 709 of this title (relating
to Fees);
(23)
the cessation of withdrawals under interim authorization
status pursuant to subchapter D (relating to Interim Authorization) of chapter
711 of this title (relating to Groundwater Withdrawal Permits);
(24)
abandonment pursuant to subchapter H (relating to Abandonment
and Cancellation) of chapter 711 of this title (relating to Groundwater Withdrawal
Permits);
(25)
cancellation pursuant to subchapter H (relating to Abandonment
and Cancellation) of chapter 711 of this title (relating to Groundwater Withdrawal
Permits);
(26)
the restoration of equally proportionally reduced amounts
pursuant to subchapter K (relating to Additional Groundwater Supplies) of
chapter 711 of this title (relating to Groundwater Withdrawal Permits);
(27)
the transfer of the permit pursuant to subchapter L (relating
to Transfers) of chapter 711 of this title (relating to Groundwater Withdrawal
Permits);
(28)
the prohibition on the use of groundwater withdrawn from
the aquifer at a place of use outside of the boundaries of the authority pursuant
to § 711.220 of this chapter (relating to Place of Use Outside of Authority
Boundaries);
(29)
compliance with the terms and conditions of the permit;
(30)
compliance with the act;
(31)
compliance with the rules of the authority; and
(32)
any other condition as may, in the discretion of the board
be reasonable and appropriate.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed
with the Office of the Secretary of State on October 18, 2000.
TRD-200007358
Gregory M. Ellis
General Manager
Edwards Aquifer Authority
Effective date: November 7, 2000
Proposal publication date: August 11, 2000
For further information, please call: (210) 222-2204
Part 10.
TEXAS WATER DEVELOPMENT BOARD
Chapter 375.
CLEAN WATER STATE REVOLVING FUND
2.
PROGRAM REQUIREMENTS
Subchapter B. PROVISIONS PERTAINING TO USE OF CAPITALIZATION GRANT FUNDS
Part 20.
EDWARDS AQUIFER AUTHORITY
Chapter 702.
GENERAL DEFINITIONS
Chapter 705.
JURISDICTION OF THE EDWARDS AQUIFER AUTHORITY
Chapter 707.
PROCEDURE BEFORE THE AUTHORITY
Subchapter B. GENERAL PROVISIONS
Subchapter C. MEETINGS OF THE BOARD
Subchapter D. REQUIREMENTS TO FILE APPLICATIONS AND REGISTRATIONS
Subchapter E. REQUIREMENTS FOR APPLICATIONS AND REGISTRATIONS
Subchapter F. ACTIONS ON APPLICATIONS AND REGISTRATIONS BY THE AUTHORITY
Subchapter G. PROCEDURES FOR CONTESTED CASE HEARINGS ON APPLICATIONS
Chapter 709.
FEES
Subchapter B. REGISTRATION FEES
Subchapter C. PERMIT APPLICATION FEES
Subchapter D. AQUIFER MANAGEMENT FEES
Chapter 711.
GROUNDWATER WITHDRAWAL PERMITS
Subchapter B. GENERAL PROVISIONS
Subchapter E. PERMITTED WELLS
Subchapter F. STANDARD GROUNDWATER WITHDRAWAL PERMIT CONDITIONS
Subchapter G. GROUNDWATER AVAILABLE FOR PERMITTING; PROPORTIONAL ADJUSTMENT; EQUAL PERCENTAGE REDUCTIONS