PART 10. TEXAS WATER DEVELOPMENT BOARD
CHAPTER 354. MEMORANDA OF UNDERSTANDING
31 TAC §§354.1, 354.2, 354.4, 354.6, 354.9, 354.15
The Texas Water Development Board (TWDB) adopts the repeal of 31 Texas Administrative Code §§354.1, 354.2, 354.4, 354.6, 354.9, and 354.15. The proposal is adopted without changes as published in the February 3, 2023, issue of the Texas Register (48 TexReg 470). The rules will not be republished.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED AMENDMENT.
The TWDB determined through a review of its rules in Chapter 354 that the aforementioned rules for repeal are either expired, were adopted to facilitate the administration of Agency directives that are no longer necessary, or are instead interagency contracts effective pursuant to Chapter 771, Texas Government Code.
EFFECTIVE DATE.
These rules will become effective on September 1, 2023.
SECTION BY SECTION DISCUSSION OF ADOPTED AMENDMENTS.
Section 354.1 is repealed as the manner of compliance between the Texas Historical Commission and the TWDB has changed since the promulgation of the rule.
Section 354.2 is repealed because the term of the contract expired August 31, 2017.
Section 354.4 is repealed because the term of the contract expired August 31, 2017, and the General Appropriations Act rider relating to the contract has not been renewed.
Section 354.6 is repealed and the contract will not be readopted into rule as a memorandum of understanding because the contract is an interagency contract between the named agencies under Chapter 771, Texas Government Code.
Section 354.9 is repealed because the term of the contract expired August 31, 2017.
Section 354.15 is repealed because the initiative between the Comptroller of Public Accounts and the Agency is no longer necessary to facilitate TWDB directives.
REGULATORY IMPACT ANALYSIS DETERMINATION (Texas Government Code §2001.0225)
The TWDB reviewed the repeal in light of the regulatory analysis requirements of Texas Government Code §2001.0225 and determined that the repeal is not subject to Texas Government Code §2001.0225, because it does not meet the definition of a "major environmental rule" as defined in the Administrative Procedure Act. A "major environmental rule" is defined as a rule with the specific intent to protect the environment or reduce risks to human health from environmental exposure, a rule that may adversely affect in a material way the economy or a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The intent of the repeal is to conduct a review and reorganization of the TWDB's rules as required by state law.
Even if the rule were a major environmental rule, Texas Government Code §2001.0225 still would not apply to this rulemaking because Texas Government Code §2001.0225 only applies to a major environmental rule, the result of which is to: (1) exceed a standard set by federal law, unless the rule is specifically required by state law; (2) exceed an express requirement of state law, unless the rule is specifically required by federal law; (3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or (4) adopt a rule solely under the general powers of the agency instead of under a specific state law. This rulemaking does not meet any of these four applicability criteria because it: (1) does not exceed any federal law; (2) does not exceed an express requirement of state law; (3) does not exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; and (4) is not adopted solely under the general powers of the agency, but rather under Texas Water Code §§5,104, 6.101, and 6.104. Therefore, this rule does not fall under any of the applicability criteria in Texas Government Code §2001.0225.
TAKINGS IMPACT ASSESSMENT (Texas Government Code §2007.043)
The TWDB evaluated this repeal and performed an analysis of whether it constitutes a taking under Texas Government Code, Chapter 2007. The specific purpose of this repeal is conducted pursuant to TWDB review and reorganization of its existing Memoranda of Understanding between it and various other state governmental agencies and in order to implement recent legislation. The repeal substantially advances this stated purpose.
The TWDB's analysis also indicates that Texas Government Code, Chapter 2007 does not apply to this repeal because this is an action that is reasonably taken to fulfill an obligation imposed by state statute which is exempt under Texas Government Code §2007.003(b)(4). The TWDB as an agency is required by law to promulgate into its rules all memoranda of understanding it enters into with the TCEQ.
The TWDB evaluated this repeal and performed an assessment of whether it constitutes a taking under Texas Government Code Chapter 2007. Promulgation and enforcement of this repeal would be neither a statutory nor a constitutional taking of private real property because it neither relates to nor impacts private property. Specifically, the subject regulation does not affect a landowner's rights in private real property because this rulemaking does not burden, restrict, or limit the owner's right to property and reduce its value by 25% or more beyond that which would otherwise exist in the absence of the regulation. Therefore, the repeal does not constitute a taking under Texas Government Code, Chapter 2007.
PUBLIC COMMENTS (Texas Government Code §2001.033(a)(1))
The comment period ended March 6, 2023. No comments were received.
STATUTORY AUTHORITY (Texas Government Code §2001.033(a)(2))
The amendment is adopted under the authority of Texas Water Code §6.101, which provides the TWDB with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State, and also under the authority of Water Code §§5.104 and 6.104, which require the TWDB to adopt by rule any MOU with the TCEQ.
This rulemaking affects Texas Water Code, Chapters 6, Subchapter D.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on July 27, 2023.
TRD-2023002677
Ashley Harden
General Counsel
Texas Water Development Board
Effective date: September 1, 2023
Proposal publication date: February 3, 2023
For further information, please call: (512) 463-7686
The Texas Water Development Board (TWDB) adopts 31 Texas Administrative Code §354.6. The proposal is adopted without changes as published in the February 3, 2023, issue of the Texas Register (48 TexReg 472). The rule will not be republished.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED AMENDMENT.
The TWDB adopts new §354.6 related to a new Memorandum of Understanding (MOU) between the Texas Water Development Board and the Texas Commission on Environmental Quality (TCEQ). The current §354.6 is repealed elsewhere in this same issue of the Texas Register.
EFFECTIVE DATE.
The rule will become effective on September 1, 2023.
SECTION BY SECTION DISCUSSION OF ADOPTED AMENDMENTS.
§354.6. Memorandum of Understanding Between the Texas Water Development Board and the Texas Commission on Environmental Quality Related to Expedited Permit Review for Interregional Water Supply Projects.
This proposed rule would replace an outdated MOU, repealed elsewhere in this issue of the Texas Register, with a new MOU entered into between the TWDB and TCEQ. House Bill (HB) 1052, passed during the 86th Texas Legislative Session, required the TWDB and TCEQ to enter into an MOU related to the expedited permit review for interregional water supply projects funded by the TWDB's State Participation Program. This bill was codified as Texas Water Code §16.145. Texas Water Code §5.104 requires the TWDB to adopt by rule any MOU between the TWDB and TCEQ.
REGULATORY IMPACT ANALYSIS DETERMINATION (Texas Government Code §2001.0225)
The TWDB reviewed the rulemaking in light of the regulatory analysis requirements of Texas Government Code §2001.0225 and determined that the rulemaking is not subject to Texas Government Code §2001.0225, because it does not meet the definition of a "major environmental rule" as defined in the Administrative Procedure Act. A "major environmental rule" is defined as a rule with the specific intent to protect the environment or reduce risks to human health from environmental exposure, a rule that may adversely affect in a material way the economy or a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The intent of the rulemaking is to delineate the responsibilities of the TWDB and TCEQ related to expedited permit reviews for interregional water supply projects funded through the State Participation Program.
Even if the rule were a major environmental rule, Texas Government Code §2001.0225 still would not apply to this rulemaking because Texas Government Code §2001.0225 only applies to a major environmental rule, the result of which is to: (1) exceed a standard set by federal law, unless the rule is specifically required by state law; (2) exceed an express requirement of state law, unless the rule is specifically required by federal law; (3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or (4) adopt a rule solely under the general powers of the agency instead of under a specific state law. This rulemaking does not meet any of these four applicability criteria because it: (1) does not exceed any federal law; (2) does not exceed an express requirement of state law; (3) does not exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; and (4) is not adopted solely under the general powers of the agency, but rather Texas Water Code §§ 5.104 and 6.104. Therefore, this rule does not fall under any of the applicability criteria in Texas Government Code §2001.0225.
TAKINGS IMPACT ASSESSMENT (Texas Government Code §2007.043)
The TWDB evaluated this rule and performed an analysis of whether it constitutes a taking under Texas Government Code, Chapter 2007. The specific purpose of this rule is to comply with the statutory requirement to enter into this MOU outlined in Texas Water Code §16.145. The rule would substantially advance this stated purpose by delineating the responsibilities of the TWDB and TCEQ related to expedited permit reviews for interregional water supply projects funded through the State Participation Program.
The TWDB's analysis indicates that Texas Government Code, Chapter 2007 does not apply to this rule because this is an action that is reasonably taken to fulfill an obligation mandated by state law, which is exempt under Texas Government Code §2007.003(b)(4). The TWDB is the agency that implements the State Participation Program.
Nevertheless, the TWDB further evaluated this rule and performed an assessment of whether it constitutes a taking under Texas Government Code Chapter 2007. Promulgation and enforcement of this rule would be neither a statutory nor a constitutional taking of private real property. Specifically, the subject regulation does not affect a landowner's rights in private real property because this rulemaking does not burden, restrict, or limit the owner's right to property and reduce its value by 25% or more beyond that which would otherwise exist in the absence of the regulation. This rule simply delineates the TWDB's and TCEQ's responsibilities related to expedited permit reviews for interregional water supply projects funded through the State Participation Program and establishes compliance with the TWDB's requirement to publish all MOUs with TCEQ in rule. Therefore, the proposed rule does not constitute a taking under Texas Government Code, Chapter 2007.
PUBLIC COMMENTS (Texas Government Code §2001.033(a)(1))
The comment period ended March 6, 2023. No comments were received.
STATUTORY AUTHORITY (Texas Government Code §2001.033(a)(2))
The amendment is adopted under the authority of Texas Water Code §6.101, which provides the TWDB with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State, and also under the authority of Water Code §§ 5.104 and 6.104, which requires the TWDB to adopt by rule all MOUs with the TCEQ.
This rulemaking affects Texas Water Code, Chapters 6, 16, and 17.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on July 26, 2023.
TRD-202302656
Ashley Harden
General Counsel
Texas Water Development Board
Effective date: September 1, 2023
Proposal publication date: February 3, 2023
For further information, please call: (512) 463-7686