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") proposes amendments to §358.4, relating to state water planning guidelines, and §358.6, relating to water loss audits.

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

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 PROPOSED AMENDMENTS.

Subchapter A. State Water Plan Development.

Section 358.4. Guidelines.

An amendment to §358.4(b)(7) is proposed to include 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) is proposed to implement 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) is proposed to implement the requirement in HB 1573 that 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) is proposed to include 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.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENTS

Rebecca Trevino, Chief Financial Officer, has determined that there will be no significant fiscal implications for state or local governments as a result of the proposed rulemaking. For the first five years these amended rules are in effect, there are not expected to be additional costs to state or local governments resulting from their administration.

These rules are not expected to result in reduction in costs to local governments. These rules are not expected to result in reductions in costs to state government.

These rules are not expected to have any impact on state or local revenues. The rules do not require any increase in expenditures for state or local governments as a result of administering these rules.

Because these amended rules will not impose a cost on regulated persons, the requirement included in §2001.0045, Texas Government Code, to repeal a rule does not apply. Furthermore, the requirement in §2001.0045 does not apply because these rules are necessary to implement legislation.

The board invites public comment regarding this fiscal note. Written comments on the fiscal note may be submitted to the contact person at the address listed under the Submission of Comments section of this preamble.

PUBLIC BENEFITS AND COSTS

Ms. Trevino has also determined that for each year of the first five years the proposed rulemaking is in effect there will be no impact to the public.

LOCAL EMPLOYMENT IMPACT STATEMENT

The board has determined that a local employment impact statement is not required because the proposed amendments do not adversely affect a local economy in a material way for the first five years that the proposed amendments are in effect because they will impose no new requirements on local economies. The board also has determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities as a result of enforcing this rulemaking. The board also has determined that there is no anticipated economic cost to persons who are required to comply with the rulemaking as proposed. Therefore, no regulatory flexibility analysis is necessary. These amended rules are designed to implement legislative changes, improve the planning process and increase flexibility in planning, reduce certain unessential reporting requirements, and standardize and clarify language.

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The board reviewed the proposed 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 proposed rule 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 §6.101 and §16.053. Therefore, this proposed rulemaking does not fall under any of the applicability criteria in Texas Government Code, §2001.0225.

The board invites public comment regarding this draft regulatory impact analysis determination. Written comments on the draft regulatory impact analysis determination may be submitted to the contact person at the address listed under the Submission of Comments section of this preamble.

TAKINGS IMPACT ASSESSMENT

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

The board's analysis indicates that Texas Government Code, Chapter 2007 does not apply to this proposed 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 proposed rulemaking and performed an assessment of whether it constitutes a taking under Texas Government Code, Chapter 2007. Promulgation and enforcement of this proposed rulemaking would be neither a statutory nor a constitutional taking of private real property. Specifically, the subject proposed 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 proposed rulemaking does not constitute a taking under Texas Government Code, Chapter 2007.

SUBMISSION OF COMMENTS

Written comments on the proposed rulemaking may be submitted by mail to Mr. Todd Chenoweth, Office of General Counsel, Texas Water Development Board, P.O. Box 13231, Austin, Texas 78711-3231; by email to rulescomments@twdb.texas.gov; or by fax to (512) 475-2053. Comments will be accepted until 5:00 p.m. of the 31st day following publication in the Texas Register.

SUBCHAPTER A. STATE WATER PLAN DEVELOPMENT

31 TAC §358.4

STATUTORY AUTHORITY

This rulemaking is proposed under the authority of Texas Water Code §6.101 and §16.053.

The proposed rulemaking affects Chapter 16 of the Texas Water Code.

§358.4.Guidelines.

(a) The executive administrator shall prepare, develop, and formulate the state water plan and the Board shall adopt a state water plan pursuant to the schedule in Texas Water Code §16.051. The executive administrator shall identify the beginning of the 50-year planning period for the state and regional water plans. The executive administrator shall incorporate into the state water plan presented to the Board those regional water plans approved by the Board pursuant to Texas Water Code §16.053 and Chapter 357 of this title (relating to Regional Water Planning). The Board shall, not less than 30 days before adoption or amendment of the state water plan, publish notice in the Texas Register of its intent to adopt a state water plan and shall mail notice to each regional water planning group. The Board shall hold a hearing, after which it may adopt a water plan or amendments thereto.

(b) The state water plan shall include summaries for the state and from approved regional water plans, when available, which shall address, at a minimum, the following topics:

(1) Basis for planning, including sections on planning history, Texas water statutes, rules, regulations, and Texas' water supply institutions;

(2) Description of methods used for projecting future water demands which shall include methods for projecting future population and water demands for municipal and associated commercial and institutional uses, manufacturing, irrigation, steam electric power generation, mining, and livestock watering;

(3) Description of methods to address water quality problems related to water supply, to ensure public health, safety and welfare, to further economic growth, to protect agricultural and natural resources, to determine water supply availability, and to address drought response planning;

(4) Description of future conditions which shall, at a minimum, include:

(A) Demands for water;

(B) Supplies currently available;

(C) Comparison of water demand and supply to identify surpluses or needs of water;

(D) Social and economic impact of not meeting needs;

(E) Recommended solutions to meet needs;

(F) Needs for which no feasible water management strategy exists; and

(G) descriptions in subparagraphs (A) - (F) of this paragraph shall be presented for each county and basin by the major providers of water for municipal uses and for the following water use categories: municipal and associated commercial and institutional uses; manufacturing; irrigation; steam electric power generation; mining; and livestock watering;

(5) Consideration of recommendations of river and stream segments of unique ecological value and sites of unique value for construction of reservoirs to the legislature for potential protection;

(6) Regulatory, administrative, and legislative recommendations that the Board believes are needed and desirable to facilitate the orderly development, management, and conservation of water resources, to facilitate more voluntary water transfers, and the preparation for and response to drought conditions in order that sufficient water will be available at a reasonable cost to ensure public health, safety and welfare, further economic development, and protect the agricultural and natural resources of the entire state;

(7) The progress in meeting future water needs, including an evaluation of implementation of all water management strategies and projects that were recommended in the previous state water plan and projects funded by the Board; [and]

(8) Current and planned preparations for, and responses to, drought conditions in the state to be used in the development of the state's drought preparedness plan by the Drought Preparedness Council; and[.]

(9) With respect to projects included in the preceding state water plan that were given a high priority by the board for purposes of providing financial assistance under Texas Water Code, Chapter 15, Subchapter G:

(A) an assessment of the extent to which the projects were implemented in the decade in which they were needed; and

(B) an analysis of any impediments to the implementation of any projects that were not implemented in the decade in which they were needed.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 19, 2017.

TRD-201704210

Todd Chenoweth

General Counsel

Texas Water Development Board

Earliest possible date of adoption: December 3, 2017

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


SUBCHAPTER B. DATA COLLECTION

31 TAC §358.6

STATUTORY AUTHORITY

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

The proposed rulemaking affects Chapter 16 of the Texas Water Code.

§358.6.Water Loss Audits.

(a) Definitions. Unless otherwise indicated, in this section the following terms shall have the meanings assigned.

(1) Allowed apparent loss--A unique number for allowable apparent loss calculated for each utility.

(2) Annual real loss--A unique number calculated for each utility based on the utility's real loss on an annualized basis.

(3) Apparent loss--Unauthorized consumption, meter inaccuracy, billing adjustments, and waivers.

(4) Average system operating pressure--System operating pressure in pounds per square inch calculated using a weighted average approach as identified in the American Water Works Association M36 Manual.

(5) Category or Categories--A category of retail public utility as listed in Texas Water Code §16.0121(c).

(6) Executive Administrator--The executive administrator of the Board.

(7) Mitigation--An action or actions taken by a retail public utility to reduce the amount of total water loss in a system. Mitigation may include a detailed water loss assessment, pipe or meter replacement, or addition or improvement of monitoring devices to detect water loss.

(8) Real loss--Loss from main breaks and leaks, storage tank overflows, customer service line breaks, and line leaks.

(9) Retail public utility or utility--A retail public utility as defined by Texas Water Code §13.002.

(10) Service connection density--The number of a retail public utility's connections on a per mile basis.

(11) Total water loss--The sum of a utility's real loss and apparent loss.

(12) Unavoidable annual real loss--A unique number calculated for each utility based on the number of connections, miles of distribution lines, and operating pressure.

(b) A retail public utility that provides potable water shall perform a water loss audit and file with the executive administrator a water loss audit computing the utility's system water loss during the preceding calendar year, unless a different 12-month period is allowed by the executive administrator. The water loss audit may be submitted electronically.

(1) Audit required annually. The utility must file the water loss audit with the executive administrator annually by May 1st if the utility:

(A) has more than 3,300 connections; or

(B) is receiving financial assistance from the board, regardless of the number of connections. A retail public utility is receiving financial assistance from the board if it has an outstanding loan, loan forgiveness agreement, or grant agreement from the board.

(2) Audit required every five years. The utility must file the water loss audit with the executive administrator by May 1, 2016, and every five years thereafter by May 1st if the utility has 3,300 or fewer connections and is not receiving financial assistance from the board.

(3) The water loss audit must be performed in accordance with methodologies developed by the executive administrator based on the population served by the utility and taking into consideration the financial feasibility of performing the water loss audit, population density in the service area, the retail public utility's source of water supply, the mean income of the service population, and any other factors determined by the executive administrator. The executive administrator will provide the necessary forms and methodologies to the retail public utility.

(4) Effective January 1, 2019, the water loss audit must be performed by a person who has completed water loss audit training developed by the executive administrator. The executive administrator will make such training available without charge on the agency website, and may also provide such training in person or by video.

(c) The executive administrator shall determine if the water loss audit is administratively complete. A water loss audit is administratively complete if all required responses are provided and the audit is completed by a person who has been trained to conduct water loss auditing as described in paragraph (4) of subsection (b). In the event the executive administrator determines that a retail public utility's water loss audit is incomplete, the executive administrator shall notify the utility.

(d) A retail public utility that provides potable water that fails to submit a water loss audit or that fails to correct a water loss audit that is not administratively complete within the timeframe provided by the executive administrator is ineligible for financial assistance for water supply projects under Texas Water Code, Chapter 15, Subchapters C, D, E, F, G, H, J, O, Q, and R; Chapter 16, Subchapters E and F; and Chapter 17, Subchapters D, I, K, and L. The retail public utility will remain ineligible for financial assistance until a complete water loss audit has been filed with and accepted by the executive administrator.

(e) The following thresholds shall apply to the indicated categories of retail public utility:

(1) For a retail public utility with a population of more than 10,000:

(A) Apparent loss expressed as gallons per connection per day must be less than the utility's allowed apparent loss.

(B) Real loss expressed as gallons per connection per day must be less than three times the utility's unavoidable annual real loss.

(2) For a retail public utility with a population of 10,000 or fewer and a service connection density more than or equal to 32 connections per mile:

(A) Apparent loss expressed as gallons per connection per day must be less than the utility's allowed apparent loss.

(B) Real loss expressed as gallons per connection per day must be less than 50 gallons per connection per day.

(3) For a retail public utility with a population of 10,000 or fewer and a service connection density less than 32 connections per mile:

(A) Apparent loss expressed as gallons per connection per day must be less than the utility's allowed apparent loss.

(B) Real loss expressed as gallons per mile per day must be less than 1,600 gallons per mile per day.

(4) For a utility that has a volume of wholesale water sales that flow through the retail water distribution system:

(A) Apparent loss expressed as gallons per connection per day, determined using a modified calculation that includes the wholesale volume, must be less than the utility's allowed apparent loss.

(B) Real loss, expressed as gallons per connection per day and including a wholesale factor that takes into account the wholesale water volume, must be less than three times the utility's unavoidable annual real loss.

(f) If a retail public utility's total water loss meets or exceeds the threshold for that utility, the retail public utility must use a portion of any financial assistance received from the board for a water supply project to mitigate the utility's water loss. Mitigation will be in a manner determined by the retail public utility and the executive administrator in conjunction with the project proposed by the utility and funded by the board. On the request of a retail public utility, the board may waive the requirements of this subsection if the board finds that the utility is satisfactorily mitigating the utility's system water loss. The request for waiver should be addressed to the executive administrator and include information about the utility's current or planned activities to mitigate their water loss and their source of funding for that mitigation.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 19, 2017.

TRD-201704211

Todd Chenoweth

General Counsel

Texas Water Development Board

Earliest possible date of adoption: December 3, 2017

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


PART 21. TEXAS LOW-LEVEL RADIOACTIVE WASTE DISPOSAL COMPACT COMMISSION

CHAPTER 675. OPERATIONAL RULES

SUBCHAPTER B. EXPORTATION AND IMPORTATION OF WASTE

31 TAC §675.24

The Texas Low-Level Radioactive Waste Disposal Compact Commission (TLLRWDCC or Commission) proposes new §675.24, relating to Requirement to Report on the Importation of Certain Low-Level Radioactive Waste for Management or Disposal that is not Required to be Disposed of in the Compact Facility. In order to fulfill its responsibilities with respect to 42 United States Code, §§2021(b) - 2021(j) and §3.04(9) and §3.05(6) of the Compact as set out in Texas Health and Safety Code (THSC), §403.006, the Commission has determined that it is in the public interest that it gather information regarding low-level radioactive waste that enters the host state irrespective of whether it requires an agreement for importation for disposal at the Compact Facility. Proposed new §675.24 seeks to facilitate the gathering of that information by the way of reporting requirements after the entry of the low-level waste into the state rather than requiring approval for the importation of certain categories of low-level radioactive waste into the host state.

Fiscal Note

Leigh Ing, the Commission's Executive Director, has determined that, for the first five-year period the proposed rule is in effect, no fiscal implications are anticipated for the Compact Commission or for units of state or local government as a result of the administration or enforcement of the proposed rule.

Public Benefits and Costs

Ms. Ing has also determined that, for each year of the first five years the proposed rule would be in effect if adopted, the public benefit anticipated from the changes seen in the proposed rule will be increased knowledge available to the Commission and the public with respect to the presence of low-level radioactive waste in the host state. By requiring a quarterly report of certain information about low-level waste that enters the host state for a purpose other than disposal at the compact facility, the proposed Commission rule benefits the host state and the public by allowing more complete tracking of low-level radioactive waste that enters the host state.

It is anticipated that businesses and individuals will have no significant additional economic costs as a result of their compliance with the proposed rule. The new reporting requirements require the reporting of minimal information that is already maintained by the entities required to report under proposed new §675.24.

Economic Impact Statement and Regulatory Flexibility Analysis for Small Businesses, Microbusinesses, and Rural Communities

There is no direct adverse economic impact for small businesses, microbusinesses, and rural communities; therefore, no regulatory flexibility analysis specified in Texas Government Code, §2006.002 is required.

Local Employment Impact Statement

The Commission has determined that a local employment impact statement is not required because the proposed rule will not adversely affect a local economy for the first five years that the proposed rule will be in effect if adopted.

Regulatory Analysis

The Commission has determined that the proposed rule is not a "major environmental rule" as defined by Texas Government Code, §2001.0225.

Small Businesses and Microbusinesses

The Commission has determined that the proposed rule will not have an adverse economic impact on either small businesses or microbusinesses.

Takings

The Commission has concluded that the proposed rule does not restrict or limit an owner's right to his or her real property that would otherwise exist in the absence of this action.

Submittal of Comments

Written comments may be submitted to Leigh Ing, Executive Director, 505 West 15th Street, Austin, Texas 78701, or, by electronic mail to comments@tllrwdcc.org. All comments should reference "Rules." The Comment period closes on December 8, 2017. Copies of the proposed rulemaking can be obtained from the Commission's website at http://www.tllrwdcc.org/rules/. For further information, please contact Leigh Ing, Executive Director, (512) 217-8045.

Statutory Authority

The rule is proposed under the authority granted in §3.05(4), (6), and (7) of the Compact set out at THSC, §403.006 and in THSC, §401.207.

The proposed rule implements §3.04(9) and §3.05(6) of the Compact as set out at THSC §403.006.

§675.24.Requirement to Report on the Importation of Certain Low-Level Radioactive Waste for Management or Disposal that is not Required to be Disposed of in the Compact Facility.

(a) This section is applicable only in the host state.

(b) This section is designed to gather information on the importation into the host state for disposal or management of certain low-level waste that:

(1) is required when shipped to be listed on Nuclear Regulatory Commission (NRC) Forms 540 or 541 (Uniform Low-Level Waste Manifest Shipping Forms);

(2) is included within the definition of low-level radioactive waste found in 30 TAC §336.2(89) (relating to Definitions) as the definition is in effect on the date this section becomes effective or as 30 TAC §336.2(89) may be amended or renumbered in the future, but is not intended for disposal in the Compact Waste Facility;

(3) is not low-level radioactive waste described by 42 United States Code, §2021c(b)(1); and

(4) for the purposes of this section, the material described in this subsection will be referred to as Non-Compact-Facility Low-Level Radioactive Waste ("NCFW").

(c) Any entity in the host state that imports NCFW must enter into an agreement with the Commission that contains a requirement that it will report to the Commission on a quarterly basis the following information with respect to each shipment of NCFW that it has received in the previous quarter:

(1) the name of the generator;

(2) the name of the state and the name of the low-level waste compact (if any) where the waste originated;

(3) the activity of the waste in curies;

(4) the volume or weight of the waste; the date of receipt; whether the waste is being stored, processed, or otherwise managed;

(5) location of management; and

(6) the date of and location of disposal of that waste.

(d) Quarterly reports must be submitted electronically on forms provided by the Commission and must be submitted before the 31st day after the end of each quarter of the Commission's fiscal year.

(e) An entity that imports low-level radioactive waste into the host state as described in subsection (c) of this section shall have entered into an agreement with the Commission within 90 days after the effective date of this section or within such time extensions thereafter as the Commission may allow. To the maximum extent possible, each agreement entered into under this section will contain provisions identical to those in each other agreement entered into under this section.

(f) An entity that imports waste into the host state as described in subsection (c) of this section shall submit an application for entry into an agreement with the Commission electronically or on paper on a form provided by the Commission.

(g) Failure on the part of an entity that imports waste into the host state as described in subsection (c) of this section to comply with any provision of this section or the agreement entered into pursuant to subsection (d) of this section may result in the Commission reporting such failures to the host state agency that has licensed, permitted, or otherwise authorized the operation of such entities.

(h) The Commission may revoke or amend an agreement on its own motion or in response to an application by the agreement holder. When the Commission amends an NCFW agreement on its on motion, it may provide a reasonable time to allow the agreement holder to make the changes necessary to comply with any additional requirements imposed by the Commission. No importation of NCFW shall be allowed under any amended agreement for the importation of NCFW until:

(1) the amendment to the NCFW agreement has been executed by both the Commission and the agreement holder; and

(2) the agreement holder has made any changes necessary to comply with additional requirements.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 20, 2017.

TRD-201704221

Leigh Ing

Executive Director

Texas Low-Level Radioactive Waste Disposal Compact Commission

Earliest possible date of adoption: December 3, 2017

For further information, please call: (512) 239-6087