PART 10. TEXAS WATER DEVELOPMENT BOARD
CHAPTER 354. MEMORANDA OF UNDERSTANDING
(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Water Development Board or in the Texas Register office, James Earl Rudder Building, 1019 Brazos Street, Austin, Texas.)
The Texas Water Development Board (board) proposes the repeal of §354.1, concerning Memorandum of Understanding between Texas Water Development Board and Texas Historical Commission (THC).
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED REPEAL
This section is proposed for repeal because a new §354.1 is proposed elsewhere in this issue of the Texas Register. The board has determined that due to the extensive reorganization of proposed new §354.1, repeal of the entire section is more efficient than to propose amendments for the changes. The revision of §354.1 results from review and changes negotiated by the board and the THC relating to procedures for compliance with state historic preservation statutes.
The repeal of §354.1 in its entirety provides the public with an opportunity to better understand the proposed new §354.1 without the confusion of extensive amendments. Current §354.1 affects the work of the board, the THC, and applicants for financial assistance from the board and their consultants. The rule provides for the conduct of archeological surveys under Texas Antiquities Permits, conditions on release of funds related to disposition of archeological and historic resources following commission review, and conditions for treatment of archeological and historic resources discovered during project construction. Section 354.1 is based on Texas Natural Resources Code Chapter 191, the Texas Antiquities Code, and Texas Water Code §6.101, which authorizes the board to adopt rules necessary to carry out the powers and duties of the board, and §6.104, which authorizes the board to enter into a memorandum of understanding with any other state agency and requires adoption by rule of any memorandum of understanding.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENTS
Rebecca Trevino, Chief Financial Officer, has determined that there is no fiscal impact to state or local governments as a result of this proposed repeal, because a rule governing the same subject matter is revised and proposed simultaneously with this repeal.
PUBLIC BENEFITS AND COSTS
Ms. Trevino has determined that there are public benefits to repealing this section because the proposed new section will be more streamlined and orderly and will clarify revised responsibilities of the board, the commission, and applicants for board funding. Additionally, Ms. Trevino has determined that there are no increased costs to public applicants for board funding resulting from the repeal of this section.
LOCAL EMPLOYMENT IMPACT STATEMENT
Ms. Trevino has determined that a local employment impact statement is not required, because the proposed repeal does not adversely affect a local economy in a material way for the first five years that the repeal is in effect as it will impose no new requirements on local economies.
Ms. Trevino has also determined that there will be no adverse economic effect on small businesses or micro-businesses as a result of the repeal of this section. The board has also determined that there is no anticipated economic cost to persons who are otherwise required to comply with the rule that is proposed for repeal. Therefore, no regulatory flexibility analysis is necessary.
REGULATORY IMPACT ANALYSIS
Ken Petersen, General Counsel, has determined that the proposed repeal is not subject to Texas Government Code §2001.0225 because it is not a major environmental rule under that section.
TAKINGS IMPACT ASSESSMENT
Mr. Petersen has determined that the promulgation and enforcement of this proposed repeal will constitute neither a statutory nor a constitutional taking of private real property. The proposed repeal does not adversely affect a landowner's rights in private real property, in whole or in part, temporarily or permanently, because the repeal does not impose a burden nor restrict or limit the owner's right to property. Therefore, the proposed repeal does not constitute a taking under Texas Government Code Chapter 2007.
SUBMITTAL OF COMMENTS
Comments on the proposed repeal will be accepted for 30 days following publication and may be submitted to Legal Services, Texas Water Development Board, P.O. Box 13231, Austin, Texas 78711-3231; by e-mail to rulescomments@twdb.texas.gov; or by fax at (512) 475-2053.
STATUTORY AUTHORITY
This repeal is proposed under the authority of Texas Water Code §6.101, which authorizes the board to adopt rules necessary to carry out the powers and duties of the board.
Cross reference to statute: Texas Water Code §6.104.
§354.1.Memorandum of Understanding Between Texas Water Development Board and Texas Historical Commission.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 22, 2013.
TRD-201301608
Kenneth L. Petersen
General Counsel
Texas Water Development Board
Earliest possible date of adoption: June 2, 2013
For further information, please call: (512) 463-8061
The Texas Water Development Board (board) proposes new §354.1, concerning Memorandum of Understanding (MOU) between the board and the Texas Historical Commission (THC).
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED NEW SECTION
This proposed new §354.1 replaces current §354.1 in its entirety. Current §354.1 is proposed for repeal elsewhere in this issue of the Texas Register. The proposed new §354.1 revises the responsibilities of the parties and reorganizes the contents of the MOU to make clear those responsibilities.
CHANGES IN THE PROPOSED NEW SECTION
Under the previous rule, board staff conducted archeological surveys as required by 13 TAC Chapter 26 rules relating to permits issued by the THC. Under the proposed MOU, consultants assisting applicants for board financial assistance are responsible for conducting necessary archeological surveys and documenting project review by the THC. Proposed new §354.1(b)(1) provides that board staff archeologists will determine whether a project qualifies for a Determination of No Effect or a Categorical Exclusion and will notify the THC of its conclusion. Under proposed new §354.1(b)(2), if archeological surveys of projects are necessary the board applicant will coordinate with the THC. Under proposed new §354.1(b)(3), the board will release funds following receipt of a notice to proceed from the THC; and proposed new §354.1(c) provides for conditions for treatment of archeological and historic resources discovered during project construction.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENTS
Rebecca Trevino, Chief Financial Officer, has determined that there will not be any additional estimated costs to state or local governments as a result of enforcing or administering the rule for the first five years the rule will be in effect. This rule contains procedural and substantive directives to the board, the THC, and applicants for board funding that are required to comply with the directives. There are no estimated additional costs because the directives are connected directly to statutory processes with which the agencies and board applicants must comply.
Ms. Trevino has determined that there are no estimated reductions in costs to state or local governments as a result of enforcing or administering this rule for the first five years the rule will be in effect. There are no changes to the duties or responsibilities of any state or local governmental entity. In addition, Ms. Trevino has determined that there will not be any loss of or increase to revenue to state or local governments as a result of enforcing or administering this rule for the first five years that the rule will be in effect. This proposed rule does not affect the revenues of state or local governments.
PUBLIC BENEFITS AND COSTS
Ms. Trevino has determined that for each year of the first five years the proposed rule is in effect, the public will benefit from the rule because the rule is not directed to members of the public but serves to protect the archeological and historic resources of the state. Additionally, the rule provides a public benefit through improved clarity and elimination of unnecessary requirements that will assist the public in understanding the activities of the board and the THC. These public benefits will be effective for the first five years the rule is in effect.
LOCAL EMPLOYMENT IMPACT STATEMENT
Ms. Trevino has determined that a local employment impact statement is not required, because the proposed rule does not adversely affect a local economy in a material way for the first five years that the proposed rule is in effect as it will impose no new requirements on local economies.
Ms. Trevino has determined that there will be no adverse economic effect on small businesses or micro-businesses as a result of this rule. The board has also determined that there is no anticipated economic cost to persons who are otherwise required to comply with the rule as proposed. Therefore, no regulatory flexibility analysis is necessary.
REGULATORY IMPACT ANALYSIS
Ken Petersen, General Counsel, has determined that the proposed rule is not subject to Texas Government Code §2001.0225 because it is not a major environmental rule under that section.
TAKINGS IMPACT ASSESSMENT
Mr. Petersen has determined that the promulgation and enforcement of this proposed rule will constitute neither a statutory nor a constitutional taking of private real property. The proposed rule does not adversely affect a landowner's rights in private real property, in whole or in part, temporarily or permanently, because the rule does not impose a burden nor restrict or limit the owner's right to property. Therefore, the proposed rule does not constitute a taking under Texas Government Code Chapter 2007.
SUBMITTAL OF COMMENTS
Comments on the proposed new rule will be accepted for 30 days following publication and may be submitted to Legal Services, Texas Water Development Board, P.O. Box 13231, Austin, Texas 78711-3231; by e-mail to rulescomments@twdb.texas.gov; or by fax at (512) 475-2053.
STATUTORY AUTHORITY
The new rule is proposed under the authority of Texas Water Code §6.101, which authorizes the board to adopt rules necessary to carry out the powers and duties of the board.
Cross reference to statute: Texas Water Code §6.104.
§354.1.Memorandum of Understanding with Texas Historical Commission.
(a) Introduction.
(1) Whereas, the Texas Water Development Board (TWDB) and the Texas Historical Commission (THC) desire to enter into a memorandum of understanding (MOU) to help define how the TWDB will ensure projects funded by the TWDB receive appropriate consideration of potential impacts to all types of archeological sites, historic buildings, historic structures and cemeteries under the Antiquities Code of Texas (Texas Natural Resources Code Chapter 191); and
(2) Whereas, under the provisions of Texas Water Code §6.104, TWDB may enter into a MOU with any other state agency and shall adopt by rule any MOU between TWDB and any other state agency; and
(3) Whereas, under the provisions of Texas Government Code Chapter 442, the THC is charged with the responsibility for the protection and preservation of the archeological and historical resources of Texas; and
(4) Whereas, under the provisions of the Texas Health and Safety Code Chapter 711, the THC has a number of specified roles, including the removal of burials from unknown or abandoned cemeteries; and
(5) Whereas, under the provisions of Texas Natural Resources Code §§191.051, 191.053, and 191.054, THC may contract with or issue permits to other state agencies for the discovery and scientific investigation of archeological deposits;
(6) Now, therefore, the TWDB and the THC agree to enter into this MOU regarding appropriate review of potential impacts to all types of archeological sites, historic buildings, historic structures or cemeteries for all projects to be constructed with financial assistance from the TWDB.
(b) Pre-construction Phase Responsibilities. In compliance with 13 TAC Chapter 26, TWDB will ensure that applicants for financial assistance provide the TWDB with documentation of appropriate coordination with the THC during the project planning phase for review of potential impacts to cultural resources on lands belonging to or controlled by any county, city, or other political subdivision of the State of Texas that may be impacted by proposed development projects funded in whole or in part by TWDB.
(1) Certain categories of projects funded by the TWDB, as defined under 31 TAC Chapter 371, Subchapter E; 31 TAC Chapter 375, Subchapter E; and 31 TAC §363.14, may be excluded from the formal environmental review requirements when proposed project scope or construction methods will not have any adverse impacts to the human environment, including cultural resources, such as rehabilitation or direct functional replacement of existing pipelines, pump station equipment, storage tanks, or treatment facility equipment. Such categories may include:
(A) State Funded Programs: a Determination of No Effect; or
(B) Federal Equivalency Programs: a Categorical Exclusion.
(C) TWDB will send THC the documents in this subsection as notification that the project has been excluded from formal environmental review and may not require THC review. The THC will not need to respond to Categorical Exclusions or Determinations of No Effect.
(2) For projects not eligible to receive a Categorical Exclusion or a Determination of No Effect, or for projects that may be excluded from formal environmental review once concerns about potential impacts have been adequately addressed, a TWDB applicant, or its consultants, may coordinate with THC to seek recommendations regarding the need for field investigations or to seek concurrence with a determination that the project may proceed without further investigations.
(A) For projects requiring field investigations, the TWDB applicant, or its consultants, will proceed as directed by the THC in a manner consistent with the Antiquities Code of Texas and the Archeological Survey Standards for Texas.
(B) The TWDB will not approve reports required under a Texas Antiquities permit or make recommendations regarding scope of work to the THC.
(3) For projects requiring coordination with the THC, the TWDB will not release funds for the design or construction phases of a project until written approval that a project may proceed has been received from the THC.
(c) Construction Phase Responsibilities. The TWDB will condition all financial assistance, consistent with 13 TAC §26.11 (relating to Location and Discovery of Cultural Resources and Landmarks), that if an archeological site is discovered during project construction:
(1) work will cease in the area of the discovery;
(2) the site will be protected; and
(3) the discovery will be reported immediately to the THC.
(4) As necessary, the TWDB will condition financial assistance to include THC recommendations for measures intended to ensure avoidance, minimization, or mitigation of potential impacts to cultural resources, such as construction monitoring by a qualified archaeologist.
(d) Term. This MOU will remain in full force and effect for the period of four years or until canceled by the written notice of either party. The MOU may be amended by mutual written agreement between the TWDB and the THC.
(e) Review. This MOU shall be reviewed and updated as provided by law or by agreement between the parties. THC and TWDB agree to convene every four years to review, update, or extend this agreement.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 22, 2013.
TRD-201301609
Kenneth L. Petersen
General Counsel
Texas Water Development Board
Earliest possible date of adoption: June 2, 2013
For further information, please call: (512) 463-8061