summary of proposed chapter 356 twdb rules, kristen fancher, lloyd gosselink rochelle &...

©Lloyd Gosselink Rochelle & Townsend, P.C.

Kristen O. Fancher

[email protected]

(512) 322-5804

816 Congress Avenue Suite 1900

Austin, Texas 78701(512) 322-5800

(512) 472-0532 Faxwww.lglawfirm.com

Texas Water Development Board

Chapter 356 Rulemaking

Texas Alliance of Groundwater DistrictsOctober 30, 2012

Presented by:


Purpose Behind TWDB Rulemaking – Why this is Important to Stakeholders

• Implements statutory changes to Chapter 36 of Texas Water Code made by:− SB 660 (TWDB Sunset legislation)− SB 727− SB 737

• TWDB is also taking this opportunity to organize the rules and revise other areas that were not required to be changed due to legislation


Current Status of Rulemaking – Where Are We Now?

• January 9, 2012 - TWDB staff held a stakeholder meeting to receive input on the rules and allowed for written comments to be submitted until mid-February

• August 6, 2012 - TWDB staff issued a “pre-publication” draft of the rules

• August 22, 2012 - TWDB held a stakeholder meeting to receive verbal and written comments on the pre-publication draft rules

• September 20, 2012 – TWDB Board votes to publish draft rules in Texas Register


Current Status of Rulemaking – Where are We Now?

• October 5, 2012 – Draft rules are published in Texas Register; formal 30-day public comment period begins

• October 22, 2012 – TWDB holds formal public comment meeting to receive verbal comments

• November 4, 2012 at 5:00 p.m. – Deadline for written comments to be submitted to TWDB

• December 2012 – TWDB staff will review comments, make changes and present final rules to TWDB Board for adoption


Comprehensive Changes to Rules

• Definitions

• Ability to Amend GMA Boundaries

• DFC adoption process

• DFC submission package

• DFC appeals process

• Management Plan review


TWDB’s Response to Comments (Since

August 2012 Draft of Rules)• Definitions:

– DFC– MAG– GAM– Non-relevant aquifer– Person with a legally defined interest in groundwater– Total estimated recoverable storage


DFC Adoption Process

1. GCDs in GMA consider 9 statutory factors and propose DFCs for adoption by 2/3 vote of GMA

reps

2. 90 day public comment period

begins after proposed DFCs mailed to GCDs

3. GCDs hold public hearings

within their boundaries during

90 day public comment period

4. GMA meets to officially adopt DFCs; consider

summary reports of GCDs

5. GMA produces explanatory report

and adoption resolution to GCDs and submits DFCs

to TWDB***

6. Individual districts adopt

DFCs***


TWDB’s Response to Comments

• DFC Submission Package:– Changed to make clear that explanatory report is required

along with adoption resolution– Notice requirements changed to conform with statute – Removed language that all GAMs/aquifer assessments

considered be submitted• Submission of Documentation to Address Deficiencies:

– Changed to 90 days (from 60)• Adoption of DFCs:

– Conforms to statutory language


TWDB’s Response to Comments Cont…• TWDB Providing MAGs to GCDs:

– Provided within 180 days • Appeal of DFCs:

– Deadline to appeal changed to 120 days after GMA adoption; GCDs have 90 days to respond to appeal petition

– TWDB Board allowed to review petition and any evidence relevant to petition

• Management Plan Submission to TWDB:– Removed requirement to send plan in 6 mos. before

deadline


Remaining Issues in Rules• DFC Submission Package – conform to statute

• District Adoption of DFCs – conform to statute

• Appeal of DFCs – TWDB Board consider same factors as districts consider in 36.108

• Management Plan – clarify that plan only has to be updated for applicable DFCs

• Non-relevant aquifer


Current TWDB Definition of Non-relevant Aquifer

• The portion or portions of a major or minor aquifer, not included as a source of water in the State Water Plan, for which the GMA determines that:

a) aquifer uses and conditions do not warrant adoption of a DFC for joint planning in the GMA; and

b) groundwater conditions will not affect the achievement of DFCs in adjacent or hydraulically connected relevant aquifers.


Draft Rule 356.31: Proof of Non-Relevant Aquifer

• Allows GMA opportunity to prove an aquifer is non-relevant for purposes of joint planning

• Must submit documentation to TWDB proving the aquifer is non-relevant


Proposed Definition

• Change Definition to :

(14) Relevant aquifer – The portion or portions of a major or minor aquifer for which districts in a groundwater management area determine that aquifer characteristics, groundwater demands, and current groundwater uses warrant adoption of a DFC for joint planning in a GMA.


Proposed Change to Proof of Non-Relevant Provision

• Add following language to proof requirements:– Any portion or portions of a major or minor aquifer declared,

under § 356.31(b), to be non-relevant for joint planning in a groundwater management area, but which are determined to be relevant on a local level, must be included in local district Groundwater Management Plans in accordance with §36.1071, and may be included in Regional Water Plans and the State Water Plan as deemed appropriate by the Regional Water Planning Group and the Board.


Participation in Rulemaking Process• Comment deadline is November 4th at 5:00

p.m. (30 days after publication)• Can submit written comments to TWDB at:

– Legal Services, Texas Water Development Board, P.O. Box 13231, Austin, Texas 78711-3231; or

– [email protected]; or – Fax: (512) 475-2053.


QUESTIONS?

Thank You

Kristen [email protected]

(512) 322-5804

summary of proposed chapter 356 twdb rules, kristen fancher, lloyd gosselink rochelle &...

Documents

twdb staff

twdb rulemaking

dfcsto twdb

comments cont twdb

proof of nonrelevant

twdb board votes

appeal petition twdb

rules dfc submission