TITLE 31. NATURAL RESOURCES AND CONSERVATION

PART 10. TEXAS WATER DEVELOPMENT BOARD

CHAPTER 384. RURAL WATER ASSISTANCE FUND

SUBCHAPTER A. INTRODUCTORY PROVISIONS

31 TAC §384.3

The Texas Water Development Board (TWDB) adopts an amendment to 31 Texas Administrative Code (TAC) §384.3, relating to the TWDB's administration of the Rural Water Assistance Fund (RWAF). The proposal is adopted without changes as published in the October 20, 2017, issue of the Texas Register (42 TexReg 5835).

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED AMENDMENT.

The TWDB adopts an amendment to 31 TAC §384.3 to reflect amendments to Section 15.994(c) of the Texas Water Code with the enactment into law of House Bill 544, 85th Legislative Session.

DISCUSSION OF THE ADOPTED AMENDMENT.

Section 384.3. Use of Funds.

Section 384.3, relating to the use of funds in the RWAF, is expanded to include planning activities that would assist rural political subdivisions in obtaining and using financing from any source, and not just RWAF, in addition to outreach, financial, and technical assistance.

REGULATORY IMPACT ANALYSIS DETERMINATION

The TWDB reviewed the adopted 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 allow additional uses of RWAF funds in accordance with a revision to Chapter 15 of the Texas Water Code in the 85th Regular Legislative Session.

Even if the adopted 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 is adopted under authority of Texas Water Code §15.995. Therefore, this adopted rule does not fall under any of the applicability criteria in Texas Government Code, §2001.0225.

TAKINGS IMPACT ASSESSMENT

The TWDB evaluated this adopted 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 incorporate additional uses of RWAF financing in accordance with a revision to Chapter 15 of the Texas Water Code in the 85th Regular Legislative Session. The adopted rule would substantially advance this stated purpose amending the TWDB's RWAF rules to be consistent with the statutory amendments.

The TWDB's analysis indicates that Texas Government Code, Chapter 2007, does not apply to this adopted 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 administers the RWAF for the State of Texas.

Nevertheless, the TWDB further evaluated this adopted rule and performed an assessment of whether it constitutes a taking under Texas Government Code, Chapter 2007. Promulgation and enforcement of this adopted rule would be neither a statutory nor a constitutional taking of private real property. Specifically, the adopted regulation does not affect a landowner's rights in private real property because this rulemaking does not burden nor 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. In other words, this rule requires compliance with state law regarding RWAF. These requirements will not burden, restrict, or limit an owner's right to property. Therefore, the adopted rule does not constitute a taking under Texas Government Code, Chapter 2007.

PUBLIC COMMENT

No comments were received.

STATUTORY AUTHORITY

This rulemaking is adopted under the authority of Texas Water Code, §15.995, 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.

The adopted rulemaking affects Chapter 15 of the Texas Water Code.

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 December 8, 2017.

TRD-201705021

Todd Chenoweth

General Counsel

Texas Water Development Board

Effective date: December 28, 2017

Proposal publication date: October 20, 2017

For further information, please call: (512) 463-7686