Howard Slobodin: Agency Rulemaking Update, TWCA Fall Conference 2015

TWCA Fall ConferenceAgency Rulemaking UpdateHoward S. SlobodinOctober 15, 2015

TCEQ Rulemaking Update

Pending RulemakingsAmendments 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

Amendments to Chapter 20

House Bill 763


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

Amendments to Chapter 20Petitions 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

Amendments to Chapters 1, 39, 50, 55, 70 and 80

Senate Bills 709 and 1267

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


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


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


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


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)


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


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


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)


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)


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)


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)

Amendments to Ch. 290

HB 1146


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

Amendments to Chapters 217 and 317

Design Criteria for Domestic Wastewater Systems

Amendments to Chs. 217 & 317Chapter 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

Amendments to Chs. 217 & 317Chapter 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

Amendments to Chs. 217 & 317Chapter 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

Chapter 317In 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

Marine Seawater Desalination

House Bills 2031 and 4097

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

Marine Seawater DesalinationHB 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

Marine Seawater DesalinationWritten stakeholder comments are due by October 23, 2015

Proposed rules expected Spring of 2016

TWDB Rulemaking Update

Pending RulemakingsAmendments to Chapter 357

RWPA Boundaries


Interregional Conflicts


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

Amendments to Chapter 357RWPG 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

Amendments to Chapter 357What 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

Regional Water Planning Area Boundary Review

RWPA Boundary ReviewBoard 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

RWPA Boundary ReviewRegions 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

RWPA Boundary ReviewRegions 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

TWCA Fall ConferenceAgency Rulemaking UpdateHoward S. SlobodinOctober 15, 2015

Howard Slobodin: Agency Rulemaking Update, TWCA Fall Conference 2015

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