The document summarizes updates on pending and proposed rulemakings from TCEQ and TWDB. For TCEQ, rules are proposed that would limit who can file petitions for rulemaking, amend public comment processes, and establish standards for seawater desalination projects. For TWDB, proposed rules would expand the definition of "interregional conflicts" and consider shifting some county boundaries between regional water planning areas.

1. TWCA Fall Conference
Agency Rulemaking Update
Howard S. Slobodin
October 15, 2015

2. TCEQ Rulemaking Update

3. Pending Rulemakings
Amendments to Chapter 20 – HB 763
Amendments to Chapters 1, 39, 50, 55, 70 and
80 – SBs 709 and 1267
Amendments to Chapter 290 – HB 1146
Amendments to Chapters 217 and 317
Seawater Desalination – HB 2031 and HB 4067

4. Amendments to Chapter 20
House Bill 763

5. Amendments to Chapter 20
Limits persons and entities that can file
petitions for rulemaking
Hearing Sept. 29, comments closed October
5, anticipated adoption Dec. 9
TCEQ received no comments on the proposed
rulemaking

6. Amendments to Chapter 20
Petitions for rulemaking may only be filed by:
• Texas residents
• Business entities located in Texas
• Governmental (political) subdivisions, but
not state agencies
• Public or private organizations located in
Texas

7. Amendments to Chapters 1,
39, 50, 55, 70 and 80
Senate Bills 709 and 1267

8. Amendments to Chapter 1, 39,
50, 55, 70 and 80
Multiple changes to the CCH process from
beginning to end
Hearing Sept. 15, comments closed Sept. 21,
anticipated adoption Dec. 9

9. Amendments to Chapter 1, 39,
50, 55, 70 and 80
SB 709 – changes to CCH process for air,
water quality, waste and UIC:
• Timely comments on application required
to be affected person for hearing request
• Groups must identify member who is
affected person
• No adoption of comments

10. Amendments to Chapter 1, 39,
50, 55, 70 and 80
SB 709 – changes to CCH process for air,
water quality, waste and UIC:
• Notice to reps and senators
• Identifies additional factors to be
considered in determining “affected
person” status

11. Amendments to Chapter 1, 39,
50, 55, 70 and 80
SB 709 – changes to CCH process for air,
water quality, waste and UIC
Filing of application, draft permit, preliminary
decision and supporting docs establishes
prima facie demonstration that: 1) draft permit
meets all state and federal legal and technical
requirements; and, 2) permit, if issued
consistent with draft permit, would protect
HH&S, environment and property

12. Amendments to Chapter 1, 39,
50, 55, 70 and 80
SB 709 – changes to CCH process for air,
water quality, waste and UIC
Time limit for PFDs, 180 days from prelim.
hearing, date specified by the commission,
subject to exceptions (agreement of parties
and ALJ, deprivation of due process)

13. Amendments to Chapter 1, 39,
50, 55, 70 and 80
SB 1267 – modifies APA notice requirements,
deadlines and judicial review provisions:
• No presumed notice third day after
mailing
• Creates avenue for extending MFR
deadline where notice allegedly not
received

14. Amendments to Chapter 1, 39,
50, 55, 70 and 80
Rule implementation is faithful to SBs 709 and
1267
Comments OPIC, Sierra Club, Public Citizen,
EPA, Harris County Pollution Control Services,
Tex. Assoc. of Manufacturers, Tex. Chapter
Solid Waste Assoc. of N.A., TCC,
WEAT/TACWA, TXOGA

15. Amendments to Chapter 1, 39,
50, 55, 70 and 80
Supportive comments:
• PFD should issue no later than earlier of
180 days of prelim. hearing or date
specified by commission (TAM, similar
comment from TXOGA), 180-day
deadline should be from first day of multi-
day prelim. hearing (TCC)
• Clarify that if a requestor withdraws their
CCH request, they take their issues with
them (TxSWANA)

16. Amendments to Chapter 1, 39,
50, 55, 70 and 80
Supportive comments:
• Notices to legislators (30 days prior to
issuance of draft permit) should occur
concurrently with application processing
(TCC), and rules should provide a
deadline for TCEQ to furnish notice
(WEAT/TACWA)
• Hearing requestors should be required to
identify disputed draft permit provisions
(TXOGA)

17. Amendments to Chapter 1, 39,
50, 55, 70 and 80
Critical comments:
• Continued hand-wringing over passage
of SB 709 and 1267 (Generally)
• Proposed revisions could jeopardize
federal judicial review requirements for
CWA, RCRA and CAA programs (limit or
restrict public’s ability to engage in
judicial review process) (EPA)

18. Amendments to Chapter 1, 39,
50, 55, 70 and 80
Critical comments:
• Prima facie case should be rebuttable by
contrary evidence that raises a
“reasonable suspicion.” (Sierra Club)
• Rules allow applicants with pending
applications to “game the system” by
withdrawing an application prior to
September 1st (Public Citizen)

19. Amendments to Ch. 290
HB 1146

20. Amendments to Chapter 290
Authorizes use of volunteer licensed operators
Hearing June 23, public comment closed June
29, anticipated adoption Nov. 4, 2015
Licensed operator required for public water
system can be:
• employee
• contractor
• volunteer

21. Amendments to
Chapters 217 and 317
Design Criteria for Domestic
Wastewater Systems

22. Amendments to Chs. 217 & 317
Chapter 217 substantially revised to:
• add design criteria and approval requirements
for rehabilitation of existing infrastructure
• add design criteria for new technologies, (e.g.,
cloth filters and air lift pumps)
• Update/develop requirements to reflect modern
practices, standards and trends

23. Amendments to Chs. 217 & 317
Chapter 217 revision timeline:
• Petition for rulemaking in July 2011
• Stakeholder meetings Nov. 2011 and Mar.
2012
• Hearing June 23, comments closed June
29, anticipated adoption Nov. 4

24. Amendments to Chs. 217 & 317
Chapter 217 revisions not intended to
retroactively apply to projects approved for
construction before effective date unless the
project proposes to: 1) alter or re-rate existing
infrastructure, 2) rehabilitate existing collection
system infrastructure, or 3) re-approve a facility
with an expired wastewater permit

25. Chapter 317
In Aug. 2008, Chapter 317 was repealed and
replaced with the adoption of Chapter 217
Repeal of Chapter 317 created regulatory
uncertainty for owners and operators of existing
facilities not subject to Chapter 217 requirements
ED initiated this rulemaking to re-adopt Chapter
317 as means to address this uncertainty

26. Marine Seawater
Desalination
House Bills 2031 and 4097

27. Marine Seawater Desalination
HB 2031 addresses diversion, treatment and
use of marine seawater and the discharge of
treated marine seawater and related waste:
• Adds Water Code Chapter 18 defining
marine seawater desal. projects
• Must obtain permit to divert and use state
water, i.e., seawater diverted less than 3
miles seaward of coast of Texas, or if tds
based on a yearly average of samples taken
monthly at the water source is less than
20,000 mg/L

28. Marine Seawater Desalination
HB 4097 has some provisions that overlap or are
associated with HB 2031 except it is specific to
utilization of marine seawater for industrial
purposes
TCEQ has chosen a joint rulemaking for HB 2031
and HB 4067:
• No proposed rules released
• Stakeholder meeting on Oct 8. re.
development of proposed rules

29. Marine Seawater Desalination
Written stakeholder comments are due by
October 23, 2015
Proposed rules expected Spring of 2016

30. TWDB Rulemaking Update

31. Pending Rulemakings
Amendments to Chapter 357
RWPA Boundaries

32. Amendments to
Chapter 357
Interregional Conflicts

33. Amendments to Chapter 357
Amendments to expand Chapter 357’s
existing definition of “interregional conflict” in
response to Texas Water Development Board
v. Ward Timber, LTD, et al., 411 S.W.3rd 554
(Tex. App.―Eastland 2013, no pet.)
Hearing July 23, public comment closed
August 4, anticipated adoption October

34. Amendments to Chapter 357
RWPG alleging interregional conflict must
demonstrate at least a potential for a
substantial adverse effect on the region
IRC exists where host region has studied
impacts of recommended strategy on
economic, agricultural, and natural resources,
and demonstrates potential for a substantial
adverse effect on the region as a result of
those impacts

35. Amendments to Chapter 357
What constitutes a “substantial adverse effect”
is unanswered by the proposed amendments:
• Short- versus long-term effects?
• Probable, foreseeable or remote?
Do not address serial challenges to the same
or similar recommended WMSs in successive
regional water plans

36. Regional Water Planning
Area Boundary Review

37. RWPA Boundary Review
Board required to review RWP area
boundaries at least every five years under
TEX. WATER CODE § 16.053(b)
Notice to stakeholders Aug. 20, comment
period extended from close of Sept. 22 to Oct.
13, consideration scheduled Oct. 13
ED has recommended boundaries remain the
same
Nine written comments

38. RWPA Boundary Review
Regions L&P:
• SARA supported existing Region L
boundaries
• GBRA asked the Board to consider
shifting five counties – Gonzales,
Dewitt, Victoria, Calhoun, and Refugio
- from Region L to Region P

39. RWPA Boundary Review
Regions C&D:
• Red River County WCID, No. 1 and
County Judge, and City of Clarksville
supported moving Red River County
from Region D to Region C
• Bowie County Judge supported
maintaining the current Region C and
D boundaries

40. TWCA Fall Conference
Agency Rulemaking Update
Howard S. Slobodin
October 15, 2015