PART 10. TEXAS WATER DEVELOPMENT BOARD
CHAPTER 356. GROUNDWATER MANAGEMENT
The Texas Water Development Board (TWDB) proposes amendments to 31 Texas Administrative Code (TAC) Subchapters A, B, C, E, and G, more specifically §§356.10, 356.20, 356.22, 356.31 - 356.35, 356.51 - 356.57, and §§356.70 - 356.72.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED AMENDMENT.
The TWDB is proposing this rulemaking primarily to modernize, update, and clarify rule language to facilitate groundwater management in the state and to clarify requirements for groundwater conservation districts. The proposed rule language adds more specificity and clarity regarding desired future condition packages, including non-relevant aquifer documentation; required elements of groundwater management plans; and brackish groundwater production zones. Additionally, the TWDB proposes adding definitions for brackish groundwater, conservation, groundwater management area, and non-relevant aquifer.
SECTION BY SECTION DISCUSSION OF PROPOSED AMENDMENTS.
31 TAC 356, Subchapter A
Section 356.10, Definitions, is proposed to be amended primarily to add the following new definitions: "brackish groundwater" in proposed §356.10(5), "conservation" in proposed §356.10(9), "groundwater management area" in proposed §356.10(15), and "non-relevant aquifer" in proposed §356.10(21). Other proposed amendments to §356.10 include correcting an error in §356.10(3) to refer to the "quantity" of water rather than the "quality" of water, renumbering the entire section to provide for new definitions and to modernize and clarify the rule language improving the readability of the rule.
31 TAC 356, Subchapter B
Sections 356.20 and 356.22 are proposed to be amended to modernize the rule language. No changes are proposed to §356.21 and that rule will not be published with this proposal.
31 TAC 356, Subchapter C
No changes are proposed to §356.30. That rule will not be published with this proposal.
Section 356.31 is proposed to be amended to update the title of the section and the due date by which desired future condition packages are due from a designated representative of each groundwater management area to the Executive Administrator of the TWDB. The proposed amendments also clarify "non-relevant" aquifer designations and required documentation submitted as part of a desired future condition package.
Section 356.32 is proposed to be amended to update the title of the section, to clarify the contents of the submission package for desired future conditions due to the TWDB, to require the submission of "non-relevant" aquifer information, and to renumber the section as appropriate.
Section 356.33 is proposed to be amended to require that a package submitting a desired future condition by the representative of a groundwater management area be signed and dated by that representative. The proposed amendments also clarify how the Executive Administrator of the TWDB will determine whether a submission package is administratively complete.
Section 356.34 is proposed to be amended to modernize the rule language.
Section 356.35 is proposed to be amended to clarify that a desired future condition package is what is declared administratively complete by the Executive Administrator.
31 TAC 356, Subchapter E
No changes are proposed to Section 356.50, and the rule will not be republished with this proposal.
Section 356.51 is proposed to be amended to modernize the rule language.
Section 356.52 is proposed to be amended to clarify that "management objectives," must correspond to a "management goal," to include proposed §356.52(a)(5) in the review of submitted management plans. Amendments to this section also include proposed §356.52(a)(7) requiring a consideration of water supply needs and water management strategies, in accordance with statute, and to modernize and re-number the rule language throughout the section.
Section 356.53 is proposed to be amended to modernize the rule language, to update the kind of information submitted to the Executive Administrator during review of a management plan, and to reflect that documentation of notice of the plan's adoption may be posted on the official website of a District. §356.53(a)(1) is amended to remove the requirement for hard-copy submissions of adopted management plans and to provide for only the submission of electronic versions of adopted management plans.
Section 356.54 is proposed to be amended to clarify that management plans are "revised" rather than "amended" when an adopted plan is not approved by the Executive Administrator.
Section 356.55 is proposed to be amended to modernize the rule language.
Section 356.56 is proposed to be amended to update the title of the section, to add new §356.56(a) clarifying the process of Executive Administrator approval of amended management plans, to provide that changes to approved management plans will be defined as "amendments" rather than "addendums," and to re-number the section.
Section 356.57 is proposed to be amended to update the rule language.
31 TAC 356 Subchapter G
Section 356.70 is proposed to be amended to update §356.70(d) to provide the TWDB the authority to amend a designated brackish groundwater production zone on its own, or by request by a district. In addition, §356.70(e) is proposed to be added to the rule requiring the TWDB to provide public notice of an amendment related to a designated brackish groundwater production zone.
Section 356.71 is proposed to be amended to update the rule language.
Section 356.72 is proposed to be amended to require districts to submit certain report information to the TWDB and to clarify and update the language.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENTS (Texas Government Code §2001.024(a)(4))
Ms. Rebecca Trevino, Chief Financial Officer, has determined that there will be no fiscal implications for state or local governments from the proposed rulemaking. For the first five years these rules are in effect, there is no expected additional cost to state or local governments resulting from their administration.
These rules are not expected to result in reductions in costs to either state or local governments and there is no change in costs with the proposed amendments to the rule because the proposed rule revisions are to modernize and clarify existing rule language. 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. Additionally, there are no foreseeable implications relating to state or local governments' costs or revenue resulting from these rules.
Because these rules will not impose a cost on regulated persons, the requirement included in Texas Government Code, §2001.0045 to repeal a rule does not apply. Furthermore, the requirement in §2001.0045 does not apply because these rules are necessary for groundwater management resources of this state as authorized by the Texas Water Code and are necessary to implement legislation.
The TWDB 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 (Texas Government Code §2001.024(a)(5))
Ms. Rebecca Trevino also has determined that for each year of the first five years the proposed rulemaking is in effect, the public will benefit from the rulemaking as the rules are necessary for groundwater management resources of this state. Ms. Rebecca Trevino also has determined that for each year of the first five years the proposed rulemaking is in effect, the rules will not impose an economic cost on persons required to comply with the proposed rule as it modernizes, updates, and clarifies rule language to facilitate groundwater management in the state and certain requirements for groundwater conservation districts.
ECONOMIC AND LOCAL EMPLOYMENT IMPACT STATEMENT (Texas Government Code §§2001.022, 2006.002); REGULATORY FLEXIBILITY ANALYSIS (Texas Government Code §2006.002)
The TWDB has determined that a local employment impact statement is not required because the proposed rule does not adversely affect a local economy in a material way for the first five years that the proposed rule is in effect because it will impose no new requirements on local economies. The TWDB 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 TWDB 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.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION (Texas Government Code §2001.0225)
The TWDB 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 update and clarify existing rules that are necessary for groundwater management in the state and certain requirements for groundwater conservation districts.
Even if the proposed 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 proposed solely under the general powers of the agency, but rather Texas Water Code Section 15.001 §16.0012, §16.060, §35.004, §36.001, §36.1015, §36.1071, §36.1072, Section 36.1073, §36.108, §36.1084, §36.1085, and §36.3011.Therefore, this proposed rule does not fall under any of the applicability criteria in Texas Government Code §2001.0225.
The TWDB 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 (Texas Government Code §2007.043)
The TWDB evaluated this proposed 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 update and clarify existing rules that are necessary for groundwater management in the state and certain requirements for groundwater conservation districts. The proposed rule would substantially advance this stated purpose by aligning definitions with agency and industry practice and providing greater detail for desired future condition packages and required elements of groundwater management plans.
The TWDB's analysis indicates that Texas Government Code, Chapter 2007 does not apply to this proposed 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 charged with the delineation of groundwater management areas in order to assist with the conservation, preservation, protection and prevention of the waste of the state's groundwater resources.
Nevertheless, the TWDB further evaluated this proposed rule and performed an assessment of whether it constitutes a taking under Texas Government Code Chapter 2007. Promulgation and enforcement of this proposed rule would be neither a statutory nor a constitutional taking of private real property. Specifically, the subject proposed regulation does not affect a landowner's rights in private real property because this rulemaking does not burden, 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 updates the state's existing rules that facilitate groundwater management without burdening or restricting or limiting the owner's right to property and reducing its value by 25% or more. Therefore, the proposed rule does not constitute a taking under Texas Government Code, Chapter 2007.
GOVERNMENT GROWTH IMPACT STATEMENT (Texas Government Code §2001.0221)
The TWDB reviewed the proposed rulemaking in light of the government growth impact statement requirements of Texas Government Code §2001.0221 and has determined, for the first five years the proposed rule would be in effect, the proposed rule will not: (1) create or eliminate a government program; (2) require the creation of new employee positions or the elimination of existing employee positions; (3) require an increase or decrease in future legislative appropriations to the agency; (4) require an increase or decrease in fees paid to the agency; (5) create a new regulation; (6) expand, limit, or repeal an existing regulation; (7) increase or decrease the number of individuals subject to the rule's applicability; or (8) positively or adversely affect this state's economy.
SUBMISSION OF COMMENTS (Texas Government Code §2001.024(a)(7))
Written comments on the proposed rulemaking may be submitted by mail to 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. Include "Chapter 356" in the subject line of any comments submitted.
SUBCHAPTER A. DEFINITIONS
STATUTORY AUTHORITY (Texas Government Code §2001.024(a)(3))
The amendment is proposed under the authority of Texas Water Code §6.101, 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, and also under the authority of Texas Water Code §15.001 §16.0012, §16.060, §35.004, §36.001, §36.1015, §36.1071, §36.1072, §36.1073, §36.108, §36.1084, §36.1085, and §36.3011.
This rulemaking affects Water Code, §15.001 §16.0012, §16.060, §35.004, §36.001, §36.1015, §36.1071, §36.1072, §36.1073, §36.108, §36.1084, §36.1085, and §36.3011.
§356.10.Definitions.
The following words and terms, when used in this chapter, will
[shall] have the following meanings unless the context
clearly indicates otherwise. Words defined in Texas Water Code Chapter
36, Groundwater Conservation Districts, that are not defined here will
[shall] have the meanings provided in Chapter 36.
(1) Affected Person--An owner of land in the management area, a district in or adjacent to the management area, a regional water planning group with a water management strategy in the management area, a person or entity who holds or is applying for a permit from a district in the management area, a person or entity who has groundwater rights in the management area or any other person defined as affected with respect to a management area by Texas Commission on Environmental Quality rule.
(2) Agency--The Texas Water Development Board.
(3) Amount of groundwater being used on an annual basis--An
estimate of the quantity [quality] of groundwater
annually withdrawn or flowing from wells in an aquifer for at least
the most recent five years that information is available. It may include data from Texas Water Development Board historical water use estimates, an
estimate of exempt uses, and data collected by the district.
(4) Board--The governing body of the Texas Water Development Board.
(5) Brackish groundwater--Groundwater containing 1,000 to 9,999 milligrams per liter of total dissolved solids for the purposes of brackish groundwater production zone designations.
(6) [(5)] Brackish groundwater
production zone operating permit--A permit issued by a district under
Texas Water Code §36.1015.
(7) [(6)] Conjunctive use--The
combined use of groundwater and surface water sources that optimizes
the beneficial characteristics of each source, such as water banking,
aquifer storage and recovery, enhanced recharge, and joint management.
(8) [(7)] Conjunctive surface water
management issues--Issues related to conjunctive use such as
groundwater or surface water quality degradation and impacts of shifting
between surface water and groundwater during shortages.
(9) Conservation--Practices, techniques, and technologies that will reduce the consumption of water, reduce the loss or waste of water, improve the efficiency in the use of water, or increase the recycling and reuse of water so that a water supply is made available for future or alternative uses.
(10) [(8)] Designated brackish
groundwater production zone--An aquifer, subdivision of an aquifer,
or geologic stratum designated under Texas Water Code §16.060(b)(5).
(11) [(9)] Desired future condition--The
desired, quantified condition of groundwater resources (such as water
levels, spring flows, or volumes) within a groundwater management
area at one or more specified future times as defined by district
representatives [participating groundwater conservation
districts] within a groundwater management area as part of the
joint planning process.
(12) [(10)] District--Any district
or authority subject to Chapter 36, Texas Water Code.
(13) [(11)] Executive administrator--The
executive administrator of the Texas Water Development Board or a
designated representative.
(14) [(12)] Groundwater
availability model [Groundwater Availability Model]--A
regional groundwater flow model provided [approved]
by the executive administrator.
(15) Groundwater management area--An area delineated and designated by the Texas Water Development Board as an area most suitable for management of groundwater resources through regional joint groundwater planning.
(16) [(13)] Major aquifer--An
aquifer designated as a major aquifer by the board [in
the State Water Plan].
(17) [(14)] Minor aquifer--An
aquifer designated as a minor aquifer by the board [in
the State Water Plan].
(18) [(15)] Modeled available
groundwater [Modeled Available Groundwater]--The
amount of water that the executive administrator determines may be
produced on an average annual basis to achieve a desired future condition.
(19) [(16)] Most efficient use
of groundwater--Practices, techniques, and technologies that a district
determines will provide the least consumption of groundwater for each
type of use balanced with the benefits of using groundwater.
(20) [(17)] Natural resources
issues--Issues related to environmental and other concerns that may
be affected by a district's groundwater management plan and rules,
such as impacts on endangered species, soils, oil and gas production,
mining, air and water quality degradation, agriculture, and plant
and animal life.
(21) Non-relevant aquifer--An aquifer or portion of an aquifer deemed not relevant for joint planning purposes by district representatives within a groundwater management area.
(22) [(18)] Office--State Office
of Administrative Hearings.
(23) [(19)] Petition--A document
submitted to a [the groundwater conservation]
district by an affected person appealing the reasonableness of a desired
future condition.
(24) [(20)] Projected water demand--The
quantity of water needed on an annual basis according to the state
water plan for the state water plan planning period.
(25) [(21)] Recharge enhancement--Increased
recharge accomplished by the modification of the land surface, streams,
or lakes to increase seepage or infiltration rates or by the direct
injection of water into the subsurface through wells.
(26) [(22)] Relevant aquifer--An
aquifer designated as a major or minor aquifer, or any undesignated
aquifer deemed relevant for joint planning by district representatives
within a groundwater management area.
(27) [(23)] State water plan--The
most recent state water plan adopted by the board under Texas Water
Code §16.051 (relating to State Water Plan).
(28) [(24)] Surface water management
entities--Political subdivisions as defined by Texas Water Code Chapter
15 and identified from Texas Commission on Environmental Quality records
that are granted authority under Texas Water Code Chapter 11 to store,
take, divert, or supply surface water either directly or by contract
for use within the boundaries of a district, including but not
limited to river authorities or irrigation authorities.
(29) [(25)] Total estimated
recoverable storage [Total Estimated Recoverable Storage]--The
estimated amount of groundwater within an aquifer that accounts for
recovery scenarios that range between 25% and 75% of the porosity-adjusted
aquifer volume.
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 July 24, 2024.
TRD-202403352
Ashley Harden
General Counsel
Texas Water Development Board
Earliest possible date of adoption: September 8, 2024
For further information, please call: (512) 463-2776
The amendments are proposed under the authority of Texas Water Code §6.101, 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, and also under the authority of Texas Water Code §15.001 §16.0012, §16.060, §35.004, §36.001, §36.1015, §36.1071, §36.1072, §36.1073, §36.108, §36.1084, §36.1085, and §36.3011.
This rulemaking affects Water Code, §15.001 §16.0012, §16.060, §35.004, §36.001, §36.1015, §36.1071, §36.1072, §36.1073, §36.108, §36.1084, §36.1085, and §36.3011.
§356.20.Scope of Subchapter.
This subchapter describes the agency's delineation and designation of groundwater management areas pursuant to the requirements of Texas Water Code §35.004.
§356.22.Request to Amend Groundwater Management Area Boundaries.
(a) A request to amend the boundaries of a groundwater
management area must be made in writing [addressed]
to the executive administrator and must contain the following:
(1) a resolution supporting the change signed by each of the district representatives in each affected groundwater management area;
(2) a demonstration that the geographic and hydrogeologic conditions require the proposed boundary change or an explanation that the change involves only an administrative correction; and
(3) a copy of the notice and minutes of the public meeting held by the districts in each affected groundwater management area at which the districts approved the resolution in paragraph (1) of this subsection.
(b) The executive administrator will review the request and will notify the districts of his decision.
(1) If the proposed change involves only an administrative adjustment or correction to the boundary data files identified in §356.21 of this subchapter (relating to Designation of Groundwater Management Areas), the executive administrator will instruct agency staff to make the change and notify the districts upon completing the change.
(2) If the proposed change involves a substantive change to the boundaries of one or more groundwater management areas, the request will be presented to the board for authorization.
(c) The executive administrator may, in his discretion, make administrative corrections to the data files described in §356.21 of this subchapter. The executive administrator will notify the affected districts before making any correction.
(d) The executive administrator may, in his discretion, waive any of the requirements of this subchapter upon a showing of good cause.
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 July 24, 2024.
TRD-202403353
Ashley Harden
General Counsel
Texas Water Development Board
Earliest possible date of adoption: September 8, 2024
For further information, please call: (512) 463-2776
The amendments are proposed under the authority of Texas Water Code §6.101, 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, and also under the authority of Texas Water Code §15.001 §16.0012, §16.060, §35.004, §36.001, §36.1015, §36.1071, §36.1072, §36.1073, §36.108, §36.1084, §36.1085, and §36.3011.
This rulemaking affects Water Code, §15.001 §16.0012, §16.060, §35.004, §36.001, §36.1015, §36.1071, §36.1072, §36.1073, §36.108, §36.1084, §36.1085, and §36.3011.
§356.31.Desired Future Condition Package Submission Date.
(a) The desired future conditions for the relevant
aquifers within the groundwater management area must be approved
by a resolution adopted by a two-thirds vote of all the district
representatives [districts] in a groundwater management
area not later than January 5, 2027 [2022],
in accordance with Texas Water Code §36.108. Subsequent desired
future conditions must be proposed and finally adopted by the district
representatives before the end of each successive five-year period
after that date.
(b) A designated representative of the groundwater management area must provide complete copies of all documents required under §356.32 of this subchapter (relating to Desired Future Condition Package) to the executive administrator no later than 60 days following the date on which the district representatives within the groundwater management area adopted desired future conditions.
(c) [(b)] The district representatives
[districts] in a groundwater management area may,
as part of the process for adopting and submitting desired future
conditions, propose classification of a relevant aquifer or [portion or] portions of a relevant aquifer as non-relevant if
the districts determine that aquifer characteristics, projected groundwater
demands, and current groundwater uses do not warrant adoption of a
desired future condition. Non-relevant aquifers do not require
a desired future condition. [In such a case no desired
future condition is required.] The districts must submit the
following documentation for non-relevant aquifers to the
agency as part of the desired future condition package [related
to the portion of the relevant aquifer proposed to be classified as
non-relevant]:
(1) A description, location, and/or map of the aquifer or portion of the aquifer;
(2) A summary of aquifer characteristics, projected groundwater demands, and current groundwater uses, including the total estimated recoverable storage as provided by the executive administrator, that support the conclusion that desired future conditions in adjacent or hydraulically connected relevant aquifer(s) will not be affected; and
(3) An explanation of why the aquifer or portion of the aquifer is non-relevant for joint planning purposes.
§356.32.Desired Future Condition [Submission] Package.
A designated representative of the groundwater management
area [Districts] must provide the following to the
executive administrator no later than 60 days following the date on
which the district representatives [districts]
in the groundwater management area [collectively] adopted
the desired future condition(s):
(1) a copy of the desired future conditions explanatory report addressing the information required by Texas Water Code §36.108(d-3) and the criteria in Texas Water Code §36.108(d);
(2) non-relevant aquifer documentation required by §356.31(c) of this subchapter (relating to Desired Future Condition Package Submission Date);
(3) [(2)] a copy of the resolution
of the groundwater management area adopting the desired future conditions
as required by Texas Water Code §36.108(d-3);
(4) [(3)] a copy of the notice
that was posted for the joint planning meeting at which the districts
collectively adopted the desired future condition(s) as required by
Texas Water Code §36.108(e) and §36.108(e-2);
(5) [(4)] the name of a designated
representative of the groundwater management area;
(6) [(5)] any groundwater availability
model files or aquifer assessments acceptable to the executive administrator
used in developing the adopted desired future condition with documentation
sufficient to replicate the work; and
(7) [(6)] any other information
the executive administrator may require to be able to estimate the
modeled available groundwater.
§356.33.Determination of Administrative Completeness.
A submitted package will be considered administratively complete
if it contains complete copies of all documents required under §356.32
of this subchapter (relating to Desired Future Condition [Submission] Package) and is signed and dated by the designated
representative of the groundwater management area.
(1) The executive administrator will acknowledge in
writing receipt of submitted packages and will review for administrative
completeness. The agency may request clarifications while reviewing
the package for administrative completeness. If the submitted package
is administratively complete, the executive administrator will notify
the district representatives within the groundwater management area
in writing. If requests for clarification are not acknowledged or
addressed in a reasonable amount of time, the executive administrator
will [advise whether they are administratively complete
or will ] provide a notice of deficiencies.
(2) The designated representative of the groundwater
management area [Districts] must submit to the executive
administrator an updated package that contains corrections to the
deficiencies noted in paragraph (1) of this section no later than
90 days following the date on which the executive administrator provided
a notice of deficiencies.
§356.34.District Adoption of the Desired Future Condition.
Each district must [shall] adopt the
desired future condition for the aquifer(s) within its boundaries
as soon as possible after the executive administrator advises that
the desired future condition package submitted pursuant to §356.32
of this subchapter (relating to Desired Future Condition [Submission] Package) is administratively complete.
§356.35.Modeled Available Groundwater.
The executive administrator will provide the modeled available groundwater value for each relevant aquifer with a desired future condition to districts in a groundwater management area and the appropriate regional water planning groups no later than 180 days after the executive administrator has provided notice that the submitted desired future condition package is administratively complete as described in §356.33 of this subchapter (relating to Determination of Administrative Completeness).
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 July 24, 2024.
TRD-202403355
Ashley Harden
General Counsel
Texas Water Development Board
Earliest possible date of adoption: September 8, 2024
For further information, please call: (512) 463-2776
The amendments are proposed under the authority of Texas Water Code §6.101, 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, and also under the authority of Texas Water Code §15.001 §16.0012, §16.060, §35.004, §36.001, §36.1015, §36.1071, §36.1072, §36.1073, §36.108, §36.1084, §36.1085, and §36.3011.
This rulemaking affects Water Code, §15.001 §16.0012, §16.060, §35.004, §36.001, §36.1015, §36.1071, §36.1072, §36.1073, §36.108, §36.1084, §36.1085, and §36.3011.
§356.51.Required Management Plan.
In accordance with Texas Water Code §§36.1071 (including
coordination with surface water management entities on a regional
basis), 36.1072, and 36.1085, a district must [shall]
develop and submit to the executive administrator a management plan
that meets the requirements of §356.52 of this subchapter (relating
to Required Content of Management Plan). [The management plan
goals must be time-based and quantifiable.]
§356.52.Required Content of Management Plan.
(a) A management plan must [shall]
contain, unless explained in detail as not applicable,
the following elements:
(1) Management goals:
(A) providing the most efficient use of groundwater;
(B) controlling and preventing waste of groundwater;
(C) controlling and preventing subsidence;
(D) addressing conjunctive surface water management issues;
(E) addressing natural resource issues which impact the use and availability of groundwater, and which are impacted by the use of groundwater;
(F) addressing drought conditions;
(G) addressing conservation, recharge enhancement, rainwater harvesting, precipitation enhancement and brush control, where appropriate and cost-effective; and
(H) addressing the desired future conditions adopted
by the district under [established pursuant to] Texas
Water Code §36.108;
(2) Management objective(s) for each
management goal. Management objectives are specific, measurable, and
time-based statements of future outcomes that the district will
use to achieve each [the] management goal [goals] in paragraph (1) of this subsection. [Management
objectives are specific and time-based statements of future outcomes,
each linked to a management goal.] Each future outcome must
be the result of actions that can be taken by the district during
the five years following the effective date of the adopted management plan;
(3) Performance standard(s) for each management objective. Performance standards are indicators or measures used to evaluate the effectiveness and efficiency of district activities. Evaluation of the effectiveness of district activities measures the performance of the district. Evaluation of the efficiency of district activities measures how well district resources are used to produce an output, such as the amount of resources devoted for each management action;
(4) Details of how the district will manage groundwater
supplies in the district, including a methodology by which the district
will track its progress in achieving its management goals. At least
one goal must be tracked on an annual basis; however, other goals
may be defined and tracked over a longer time period as appropriate;
[and]
(5) The actions, procedures, performance, and avoidance that are or may be necessary by the district to effect the plan, including specifications and proposed rules;
(6) [(5)] Estimates of the following:
(A) modeled available groundwater in the district as provided by the executive administrator based on the desired future condition established under Texas Water Code §36.108;
(B) the amount of groundwater being used within the district on an annual basis taken from either the water use survey data provided by the executive administrator or the district's own estimate;
(C) the annual amount of recharge from precipitation,
if any, to each aquifer [the groundwater resources]
within the district, as provided by the executive administrator;
(D) [for each aquifer,] the annual volume
of water that discharges from each [the] aquifer within the district to springs and any surface water bodies,
including lakes, streams, and rivers, as provided by the
executive administrator;
(E) the annual volume of flow into and out of the district
within each aquifer and between aquifers in the district, as
provided by [if a groundwater availability model is available
from] the executive administrator;
(F) the projected surface water supply in the district according to the most recently adopted state water plan; and
(G) the projected water demand for water in the district
according to the most recently adopted state water plan; and[.]
(7) Details of the district's consideration of:
(A) Water supply needs within the district according to the most recently adopted state water plan, emphasizing those needs that impact groundwater supply within the district; and
(B) Water management strategies sourced from within the district boundaries according to the most recently adopted state water plan, emphasizing strategies that are or will be impacted by district actions.
(b) The management goals, management objectives, and performance standards [and management objectives] required in subsection (a)(1), (2), and (3) of this section must be consistent with the established desired future conditions of the district's
groundwater management area(s).
(c) Estimates required in subsection (a)(5) of
this section must be developed with [Each district must
use the] groundwater availability modeling information provided
by the executive administrator in conjunction with the district's
best available site-specific information and data. [provided by the district when developing the estimates required in
subsection (a)(5) of this section.]
§356.53.Plan Submission.
(a) A district requesting approval of its management
plan, or of an amended [update of its] management
plan to incorporate adopted desired future conditions, or any
other updates as necessary, will [that apply to the district,
shall] submit to the executive administrator the following:
[(1) one hard copy of the adopted
management plan;]
(1) [(2)] one electronic copy
of the adopted management plan; and
(2) [(3)] documentation that
the plan was adopted after notice posted in accordance with Texas
Government Code Chapter 551, including a copy of the posted agenda,
meeting minutes, and copies of the notice either posted on the
district's website or provided to the county clerk. [printed
in the newspaper or publisher's affidavit.]
(b) The plan or revised plan under §356.54 of
this subchapter (relating to Approval) will [shall]
be considered properly submitted to the executive administrator when
all of the items specified in subsection (a) of this section are received
by the executive administrator.
§356.54.Approval.
(a) The executive administrator will approve a plan as administratively complete when it contains the information required by Texas Water Code §36.1071(a) and (e). The executive administrator will notify the district in writing of the determination.
(b) If approval is denied, the executive administrator
will provide written reasons for the denial with the notice of denial.
A district has 180 days from receipt of notice to submit a revised
management plan for review and approval. A revised [or amended]
management plan must comply with all requirements of this subchapter.
(c) An approved management plan remains in effect until:
(1) the district fails to readopt a management plan at least 90 days before the plan expires;
(2) the district fails to submit the district's readopted management plan to the executive administrator at least 60 days before the plan expires; or
(3) the executive administrator determines that the readopted management plan does not meet the requirements for approval and the district has exhausted all appeals to the board or court in accordance with Texas Water Code §36.1072(f).
§356.55.Appeal of Denial of Management Plan Approval.
(a) If the executive administrator denies approval of a management plan, a revised management plan, or an amendment to a management plan, the district may appeal the denial by notifying the executive administrator in writing of its intent to appeal, not later than 60 days after the executive administrator's written notice of denial.
(1) Not later than 30 days after filing its notice
of intent to appeal, a district will [shall]
submit to the executive administrator in writing points of appeal
addressing each of the executive administrator's reasons for denial
of approval.
(2) The appeal must [shall] be
heard at the first regularly scheduled meeting of the board to occur
after the expiration of 30 days from the receipt of the district's
written points of appeal. Written notice of appeal and written points
of appeal will [shall] be considered to be received
by the executive administrator when received in the Austin offices
of the agency.
(3) The executive administrator may file a written
response to the district's points of appeal with the board and must [shall] provide a copy of the response to the district.
(b) If the board upholds the executive administrator's decision to deny approval of the management plan, the district may request that the matter be mediated or, failing mediation, may appeal to a district court in Travis County, in accordance with Texas Water Code §36.1072(f).
§356.56.Approval of Management Plan Amendments.
(a) Amendments to a plan that substantially affect the management plan require approval by the executive administrator and must be submitted in accordance with §356.53 of this subchapter (relating to Plan Submission). Substantial amendments include updating estimates of modeled available groundwater, revising the desired future conditions goal, or any changes to elements required by Texas Water Code §36.1071. A plan must be updated no later than two years after the adoption of desired future conditions by the district representatives within the groundwater management area(s).
(b) [(a)] If the district proposes
to amend its plan for revisions of items not required by Texas
Water Code §36.1071 or that do not substantially affect the plan [other than the modeled available groundwater or desired future condition],
the district must [shall] submit a written copy
of the proposed amendment to the executive administrator so that the
executive administrator may determine whether the amendment requires approval.
(c) [(b)] If the executive administrator
determines that a proposed [the] amendment substantially
affects the plan and requires approval, the district must [shall] submit all amendments to the management plan developed
under §356.52 of this subchapter (relating to Required Content
of Management Plan) to the executive administrator within 60 days
of adoption of the amendment by the district's board. [Amendments
shall be submitted either in the form of an addendum to the management
plan or as changes highlighted within the entire management plan.]
(d) All management plan amendments or proposed amendments must be submitted in writing to the executive administrator and include a cover letter noting the amendments made or proposed amendments to the plan.
[(c) If the amendments address items
required by Texas Water Code §36.1071, they should be in the
form of an amended plan instead of an addendum to avoid confusion
and preserve the integrity of the plan. Amendments must be submitted
in accordance with §356.53 of this subchapter (relating to Plan
Submission). Incorporation of newly developed desired future conditions
and modeled available groundwater values must be adopted as an amendment.]
§356.57.Sharing with Regional Water Planning Groups.
Each district must [shall] forward a
copy of its approved management plan to the chair of each regional
water planning group within the district's boundaries.
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 July 24, 2024.
TRD-202403356
Ashley Harden
General Counsel
Texas Water Development Board
Earliest possible date of adoption: September 8, 2024
For further information, please call: (512) 463-2776
The amendments are proposed under the authority of Texas Water Code §6.101, 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, and also under the authority of Texas Water Code §15.001 §16.0012, §16.060, §35.004, §36.001, §36.1015, §36.1071, §36.1072, §36.1073, §36.108, §36.1084, §36.1085, and §36.3011.
This rulemaking affects Water Code, §15.001 §16.0012, §16.060, §35.004, §36.001, §36.1015, §36.1071, §36.1072, §36.1073, §36.108, §36.1084, §36.1085, and §36.3011.
§356.70.Brackish Groundwater Production Zone Designation.
(a) The agency will identify and designate local or regional brackish groundwater production zones in areas of the state with moderate to high availability and productivity of brackish groundwater that can be used to reduce the use of fresh groundwater and that:
(1) are separated by hydrogeologic barriers sufficient to prevent significant impacts to water availability or water quality in any area of the same or other aquifers, subdivisions of aquifers, or geologic strata that have an average total dissolved solids level of 1,000 milligrams per liter or less at the time of designation of the zones; and
(2) are not located in:
(A) an area of the Edwards Aquifer subject to the jurisdiction of the Edwards Aquifer Authority;
(B) the boundaries of the:
(i) Barton Springs-Edwards Aquifer Conservation District;
(ii) Harris-Galveston Subsidence District; or
(iii) Fort Bend Subsidence District;
(C) an aquifer, subdivision of an aquifer, or geologic stratum that:
(i) has an average total dissolved solids level of more than 1,000 milligrams per liter; and
(ii) is serving as a significant source of water supply for municipal, domestic, or agricultural purposes at the time of designation of the zones; or
(D) an area of a geologic stratum that is designated or used for wastewater injection through the use of injection wells or disposal wells permitted under Texas Water Code Chapter 27.
(b) In designating a brackish groundwater production
zone under this section, the agency will [shall]:
(1) determine the amount of brackish groundwater that
the zone is capable of producing over a 30-year period and a 50-year
period without causing a significant impact to water availability
or water quality as described by subsection (a)(1) of this section; [and]
(2) include in the designation description:
(A) the amounts of brackish groundwater that the zone is capable of producing during the periods described by paragraph (1) of this subsection; and
(B) recommendations regarding reasonable monitoring to observe the effects of brackish groundwater production within the zone; and
(3) work with [groundwater conservation]
districts and stakeholders and consider the most recently updated Brackish
Groundwater Manual for Texas Regional Water Planning Groups[,
and any updates to the manual,] and other relevant scientific
data or findings.
(c) Areas of the state that are not designated as brackish groundwater production zones are not precluded from development of brackish groundwater or from future designation of zones.
(d) The agency may amend a designated brackish groundwater production zone upon its own initiative or upon request by a district. A request for an amendment from a district must be made in writing and include justification and documentation supporting the requested amendment.
(e) The Agency will provide notice of the intent to amend a designated brackish groundwater production zone with proposed changes to any district within the applicable brackish groundwater production zone and to the district(s) and any entity that requested the amendment through a district.
[(d) The Agency may amend a designated
brackish groundwater production zone upon its own initiative or upon
request by a groundwater conservation district and will publish guidance
discussing the timing for considering amendments. The Agency will
provide notice of intent to amend brackish groundwater production
zone with proposed changes to any groundwater conservation district
within the applicable brackish groundwater production zone and to
any entity that requested the amendment. A request from a groundwater
conservation district must be in form and substance acceptable to
the Executive Administrator and include a justification and documentation
supporting the requested amendment.]
§356.71.Brackish Groundwater Production Zone Operating Permit Review.
(a) This section does not apply to a district that overlies the Dockum Aquifer and includes wholly or partly 10 or more counties.
(b) When a district submits an application for a brackish groundwater production zone operating permit to the agency, the agency will conduct a technical review of the application, subject to subsections (c) and (d) of this section.
(c) Upon receipt of such an application, the agency will assess the application to determine whether a proposed production well is located within a designated brackish groundwater production zone. If a proposed production well is not located within a designated brackish groundwater production zone, the agency will not conduct the technical review of the application. If a proposed production well is located within a designated brackish groundwater production zone, the agency will conduct the technical review of the applicable permit application or applicable portions of a permit application in accordance with subsections (d) - (f) of this section.
(d) Upon receipt of an application for a brackish groundwater production zone operating permit for a proposed production well located within a designated brackish groundwater production zone and that includes all of the information required by Texas Water Code §36.1015(g), the agency will conduct a technical review of the application. If the agency does not receive all of the information required by Texas Water Code §36.1015(g), the agency will notify the district of the missing information. The agency will not conduct a technical review of an incomplete application until all required information is received.
(e) After conducting the application assessment and
required technical review of a complete application, the agency will
[ shall] provide a report of the technical review
of the application to the district that submitted the application
that includes:
(1) findings regarding the compatibility of the proposed well field design with the designated brackish groundwater production zone, including:
(A) whether the proposed production exceeds the amount
of brackish groundwater that the zone is capable of producing over
a 30-year period and a 50-year period, as determined pursuant to Texas
Water Code §16.060(e) and [is] in addition to the
amount of modeled available groundwater provided under Texas Water
Code §36.108; and
(B) whether the parameters and assumptions used in the model described in Texas Water Code §36.1015(g)(4)(A) are compatible with the designated brackish groundwater production zone;
(2) recommendations for the monitoring system required by Texas Water Code §36.1015(e)(4) and (6), including whether the number of monitoring wells are adequate and in appropriate locations and aquifers, in accordance with recommendations established under Texas Water Code §16.060(e)(2)(B);
(3) verification the district rules require [required] monitoring of land elevations for a project located
in a designated brackish groundwater production zone in the Gulf Coast
Aquifer, as required by Texas Water Code §36.1015(e)(5).
(f) The findings and recommendations included in subsection
(e) of this section [subsection] will only be
site-specific if the agency has received site-specific data and information
from the district.
§356.72.Annual Report Review.
(a) When a district has received an annual report
required under Texas Water Code §36.1015(e)(6) and reviewed the
report for any missing information, the district will submit the report
to the agency and request a review, under [ If a district
makes a request under] Texas Water Code §36.1015(j).
The[, the] agency will investigate and issue a technical
report to the district that sent the request, subject to subsection
(b) of this section [subsection].
(b) Upon receipt of a request, the agency will determine whether it has received the applicable annual report and all of the information required under Texas Water Code §36.1015(e)(6), and for a project located in a designated brackish groundwater production zone in the Gulf Coast Aquifer, the information required to be collected under Texas Water Code §36.1015(e)(5) related to subsidence. If the agency has not received all of the information required under Texas Water Code §36.1015(e)(6) or §36.1016(e)(5), as applicable, the agency will notify the district of the missing information and will not conduct a technical review of the reports until all required information is received.
(c) Not later than the 120th day after the date the agency receives all of the required information, the agency will investigate and issue a technical report on whether:
(1) brackish groundwater production from the designated
brackish groundwater production zone under the project that
is the subject of the report [from the designated brackish groundwater
production zone] is projected to cause:
(A) significant aquifer level declines in the same or an adjacent aquifer, subdivision of an aquifer, or geologic stratum that were not anticipated by the agency in the designation of the zone;
(B) negative effects on quality of water in an aquifer, subdivision of an aquifer, or geologic stratum; or
(C) for a project located in a designated brackish groundwater production zone in the Gulf Coast Aquifer, subsidence during the permit term; or
(2) [whether not] enough information is
available to determine if [whether] brackish
groundwater production from the designated brackish groundwater
production zone under the project that is the subject of the
report [from the designated brackish groundwater production zone]
is projected to cause the conditions listed in paragraph (1)
of this subsection [(c)(1) of this section].
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 July 24, 2024.
TRD-202403357
Ashley Harden
General Counsel
Texas Water Development Board
Earliest possible date of adoption: September 8, 2024
For further information, please call: (512) 463-2776