TITLE 31. NATURAL RESOURCES AND CONSERVATION

PART 10. TEXAS WATER DEVELOPMENT BOARD

CHAPTER 358. STATE WATER PLANNING GUIDELINES

The Texas Water Development Board ("TWDB" or "board") adopts amendments to §358.4, relating to state water planning guidelines, and §358.6, relating to water loss audits, without changes to the text as published in the November 3, 2017, issue of the Texas Register (42 TexReg 6120).

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

The purpose of the amendments is to implement legislative changes from Senate Bill (SB) 1511, 85th Legislative Session, and House Bill (HB) 1573, 85th Legislative Session. The specific provisions being amended or added and the reasons for the amendments are addressed in more detail below.

SECTION BY SECTION DISCUSSION OF THE ADOPTED AMENDMENTS.

Subchapter A. State Water Plan Development.

Section 358.4. Guidelines.

An amendment to §358.4(b)(7) includes the words "and projects" following "water management strategies" to clarify that water management strategy projects will be evaluated for implementation in the state water plan.

A new §358.4(b)(9) implements the requirement in SB 1511 that the state water plan include an assessment of the extent to which projects prioritized by the board for providing financial assistance from the State Water Implementation Fund for Texas were implemented and an analysis of any impediments to implementation in the decade in which the projects were needed.

Subchapter B. Data Collection.

Section 358.6. Water Loss Audits.

A new §358.6(b)(4) implements the requirement in HB 1573 that required water loss audits be "completed by a person trained to conduct water loss auditing," and the requirement that the board make water loss audit training available without charge on its website.

An amendment to §358.6(c) includes the specification that a water loss audit is considered administratively complete if the audit was completed by a person who has been trained to conduct water loss auditing in addition to having all required responses provided.

REGULATORY IMPACT ANALYSIS

The board 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 implement legislative changes, improve processes, increase flexibility, and provide greater clarity regarding the TWDB's rules related to regional water planning and water loss audits.

Even if the adopted amendments 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 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 proposed solely under the general powers of the agency, but rather Texas Water Code §16.0121 and §16.053. Therefore, this rulemaking does not fall under any of the applicability criteria in Texas Government Code, §2001.0225.

TAKINGS IMPACT ASSESSMENT

The board evaluated these rule amendments and performed an analysis of whether they constitute a taking under Texas Government Code Chapter 2007. The specific purpose of these amendments is to implement legislative changes regarding the TWDB's rules related to state water planning and water loss audits. The rule amendments will substantially advance this stated purpose by adding language related to legislative changes regarding state water planning and water loss audits.

The board's analysis indicates that Texas Government Code Chapter 2007 does not apply to this rulemaking 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 board is the agency that administers the regional water planning process in order to develop a state water plan. In addition, the board is the agency that administers water loss audits.

Nevertheless, the board further evaluated this rulemaking and performed an assessment of whether it constitutes a taking under Texas Government Code, Chapter 2007. Promulgation and enforcement of these amended rules would be neither a statutory nor a constitutional taking of private real property. Specifically, the amendments do 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 rulemaking requires compliance with state law regarding the state water planning process and the water loss audit process. Therefore, the rulemaking does not constitute a taking under Texas Government Code Chapter 2007.

PUBLIC COMMENT

The rule amendments were open for public comment, and the comment period ended on December 4, 2017. No comments were received, and no changes to the rules as proposed have been made.

SUBCHAPTER A. STATE WATER PLAN DEVELOPMENT

31 TAC §358.4

STATUTORY AUTHORITY

This rulemaking is adopted under the authority of Texas Water Code §6.101, §16.0121, and §16.053.

The adopted rulemaking affects Chapter 16 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 January 25, 2018.

TRD-201800314

Todd Chenoweth

General Counsel

Texas Water Development Board

Effective date: February 14, 2018

Proposal publication date: November 3, 2017

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


SUBCHAPTER B. DATA COLLECTION

31 TAC §358.6

STATUTORY AUTHORITY

This rulemaking is adopted under the authority of Texas Water Code §6.101.

The adopted rulemaking affects Chapter 16 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 January 25, 2018.

TRD-201800315

Todd Chenoweth

General Counsel

Texas Water Development Board

Effective date: February 14, 2018

Proposal publication date: November 3, 2017

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