The Texas Commission on Environmental Quality (TCEQ or commission) adopts an amendment to §297.1 without change to the proposed text as published in the February 15, 2013, issue of the Texas Register (38 TexReg 773) and will not be republished.
Background and Summary of the Factual Basis for the Adopted Rule
On June 21, 2012, Bickerstaff Heath Delgado Acosta LLP submitted a rulemaking petition on behalf of the City of Irving (Project Number 2012-034-PET-NR). In their petition, the City of Irving requested that the commission amend the definition of "Municipal use" in §297.1(32) to allow indirect reuse of treated wastewater effluent, referred to hereinafter as use of return flows, for watering of parks, golf courses, and parkways as a municipal use, after that use of return flows has been authorized by the commission. At the TCEQ's agenda on August 8, 2012, the commission approved the initiation of a rulemaking based on this petition.
As requested in the petition, the commission adopts an amendment to the definition of "Municipal use" to add a reference to the use of return flows in addition to reclaimed water for the uses authorized by the existing rule. The commission also expands the authorized uses to include watering of other public or recreational spaces and adopts a reference to Texas Water Code (TWC), §11.042, since authorizations for the use of return flows are issued by the commission under this statute.
Section Discussion
§297.1, Definitions
The existing definition of "Municipal use" in §297.1(32) allows for the use of reclaimed water in lieu of potable water for domestic, recreational, commercial, or industrial purposes or for the watering of golf courses, parks, and parkways. The commission adopts an amendment to §297.1(32) to change the definition of municipal use to add watering of "other public or recreational spaces" to the list of authorized water uses and to allow use of return flows authorized pursuant to TWC, §11.042, for all of those uses. Other public or recreational spaces could include areas such as athletic fields, neighborhood common areas, and other spaces within a community or municipality and its environs with public uses. The definition of reclaimed water in §297.1(39) requires that its quality be suitable for its intended use. Similarly, adopted §297.1(32)(C) includes language to ensure that any return flows diverted under this rule that are intended for human consumption as defined in §290.38(32) are of suitable quality for their intended use.
Under a revised definition of municipal use, certain water needs could be satisfied by non-potable return flows, preserving potable supplies for human consumption. Additionally, municipal water right holders could gain the flexibility to use permitted return flows for public purposes without the expense of treating the water to make it potable or the expense of amending existing permits for the use of return flows to add irrigation use. The use of return flows is a water planning strategy being explored by many municipal water right holders to stretch existing supplies. The change adopted in this rule could help enable municipal water right holders to implement that strategy. To accommodate these changes, the commission also adopts the re-lettered and re-numbered rule language. The commission adopts the amendment based on a petition for rulemaking.
Final Regulatory Impact Determination
The commission reviewed the adopted rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the rulemaking is not subject to §2001.0225. "Major environmental rule" means a rule, the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, 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.
First, the adopted rulemaking does not meet the statutory definition of a "major environmental rule" because its specific intent is not to protect the environment or reduce risks to human health from environmental exposure. The specific intent of the adopted rulemaking is to expand the definition of municipal use to include the use of return flows for certain purposes.
Second, the adopted rulemaking does not meet the statutory definition of a "major environmental rule" because the adopted rule would not adversely affect in a material way the economy, 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. It is not anticipated that the cost of complying with the adopted rule would be significant with respect to the economy as a whole or with respect to a sector of the economy; therefore, the adopted amendment will not adversely affect in a material way the economy, a sector of the economy, productivity, competition, or jobs.
The commission invited public comment regarding the draft regulatory impact analysis determination during the public comment period. The commission did not receive any comment relating to the draft regulatory impact analysis.
Takings Impact Assessment
The commission evaluated this adopted rulemaking and performed an assessment of whether the adopted rule constitutes a taking under Texas Government Code, Chapter 2007. The commission adopted the rule for the specific purpose of clarifying that use of return flows for purposes already identified in the existing definition qualifies as municipal use. In all instances, a municipality operating under this rule amendment will be exercising control over property already belonging to it pursuant to an authorization to use return flows issued by the TCEQ.
A "taking" under Texas Government Code, Chapter 2007 means a governmental action that affects private real property in a manner that requires compensation to the owner under the United States or Texas Constitution, or a governmental action that affects real private property in a manner that restricts or limits the owner's right to the property and reduces the market value of affected real property by at least 25%.
Because no taking of private real property will occur by amending the definitions as adopted, the commission has determined that promulgation and enforcement of the adopted rule would be neither a statutory nor a constitutional taking of private real property. Specifically, there are no burdens imposed on private real property under the rule because the adopted rule neither relates to, nor has any impact on, the use or enjoyment of private real property, and there would be no reduction in real property value as a result of the rule. Therefore, the adopted rule would not constitute a taking under Texas Government Code, Chapter 2007.
Consistency with the Coastal Management Program
The commission reviewed the adopted rulemaking and found the adoption is a rulemaking identified in the Coastal Coordination Act Implementation Rule, 31 TAC §505.11(b)(4), relating to Actions and Rules Subject to the Coastal Management Program, and will, therefore, require that the goals and policies of the Texas Coastal Management Program (CMP) be considered during the rulemaking process.
The commission reviewed this rulemaking for consistency with the CMP goals and policies in accordance with the regulations of the Coastal Coordination Advisory Committee and determined that the rulemaking is administrative in nature and will have no substantive effect on commission actions subject to the CMP and is, therefore, consistent with CMP goals and policies.
The commission invited public comment regarding the consistency with the CMP during the public comment period. The commission did not receive any comments regarding the consistency with the coastal management program.
Public Comment
The commission held a public hearing on March 12, 2013. The comment period closed on March 18, 2013. The commission received comments from the City of Irving, represented by Bickerstaff Heath Delgado Acosta LLP, and the Lower Colorado River Authority (LCRA).
The City of Irving supported the rule as proposed. LCRA suggested changes to the rule as discussed in the Response to Comments section of this preamble.
Response to Comments
The City of Irving commented that it supported the rule as proposed.
The commission acknowledges this comment.
LCRA expressed concerns that the rule may create ambiguities in water supply contracts for municipal use that have relied on the existing definition of "municipal use" in the commission's rules and its inherent limitations to establish contract price and quantity. LCRA commented that it appeared that the proposed change in the rule has the potential to provide benefit to the buyer at the seller's expense.
The commission responds that the rule change does not materially expand the definition of municipal use to include uses not already authorized under the definition for the use of water for municipal purposes. The adopted rule change will not affect any entity other than those that already have an authorization under TWC, §11.042, for the use of wastewater effluent return flows for municipal purposes. Rather, the rule allows a water user who already holds an authorization to use return flows under TWC, §11.042, for municipal purposes to continue to do so pursuant to active authorizations under both TWC, §11.042, and 30 TAC Chapter 210. If an entity with a TWC, §11.042 authorization for municipal use water chooses to contract for the sale of that water to a different user, the terms of such a contract are private agreements which are not subject to the provisions of this rule change. No change has been made in response to this comment.
LCRA suggested that for municipal use that does not rely on an underlying water contract a water rights amendment to add agricultural use would appear to achieve the same result in a straightforward yet transparent process and not require this rule change.
The commission responds that the petition to initiate this rule change was considered at a public meeting. The commission ordered that the rule be published and made available for public participation. Notwithstanding any potential alternative permitting procedures, this rule change is appropriate and necessary for the administration of authorizations under TWC, §11.042, for municipal use generally in that it will enable more efficient use of water for municipal purposes. No change has been made in response to this comment.
LCRA expressed concern that the proposed rule change may not promote the most beneficial use of water during exceptional droughts. LCRA commented that when read in conjunction with the commission's rules for implementing suspension of water rights during drought and the commission's rules regarding drought contingency plans, there could be a circumstance where a municipality with a junior water right that authorizes indirect municipal use would be allowed to continue landscape irrigation in spite of a senior priority call under a water right for agricultural use that has historically relied on such return flows to grow crops.
Priority status of return flows is addressed in the underlying permit for the use of those return flows. Depending on the terms of each individual authorization under TWC, §11.042, water used under the authorization may or may not be subject to senior priority calls. This rule change does not impact the time priority of any authorization under TWC, §11.042, relative to other water rights in a river basin. No change has been made in response to this comment.
LCRA commented that it is not clear that reuse (direct or indirect) results in an offsetting reduction in demand on the state's water supplies, which is of particular concern in severe drought.
The commission acknowledges this comment and responds that the rule change is not intended to encourage or discourage use of return flows, but rather to clarify that water authorized for use of return flows under TWC, §11.042, for municipal purposes is subject to the same authorizations and limitations that apply to all use of water for municipal purposes. No change has been made in response to this comment.
LCRA commented that the rule should provide that in response to any downstream senior priority calls, a municipality implementing indirect reuse under the rule change should be required by the commission to demonstrate that such use is critical to meet a human health and safety need in order to continue the diversion under their junior rights.
The commission responds that whether use of return flows is subject to senior priority calls is dependent on the terms of each individual authorization to use return flows under TWC, §11.042. Authorizations to use return flows under TWC, §11.042, that are subject to senior priority calls are subject to the requirements of 30 TAC Chapter 36 which already outlines procedures under which municipal water use is managed for human health and safety needs during times of shortage. No change has been made in response to this comment.
Statutory Authority
The amendment is adopted under Texas Water Code (TWC), §5.102, which establishes the commission's general authority necessary to carry out its jurisdiction; §5.103, which establishes the commission's general authority to adopt rules; and §5.105, which establishes the commission's authority to set policy by rule.
The adopted rule implements TWC, §§5.102, 5.103, and 5.105.