Marked Agenda
Commissioners' Work Session
December 13, 1996
1:30 p.m. - 7:00 p.m.
Room 201S, Building E, Park 35, Austin
OLD BUSINESS
- Docket No. 96-1844-EXE. THE COMMISSION WILL CONDUCT A CLOSED MEETING TO RECEIVE LEGAL ADVICE AND WILL DISCUSS PENDING OR CONTEMPLATED LITIGATION, SETTLEMENT OFFERS, AND/OR THE APPOINTMENT, EMPLOYMENT, EVALUATION, REASSIGNMENT, DUTIES, DISCIPLINE OR DISMISSAL OF SPECIFIC COMMISSION EMPLOYEES, as permitted by Sections 551.071 and 551.074, the Open Meetings Act, codified as Chapter 551 of the Government code. No final action, decision or vote with regard to any legal or personnel matter considered in the closed meeting shall be made in the absence of further notice issued in accordance with Chapter 551 of the Government Code. The Commissioners chose not to discuss this item at this time.
NEW BUSINESS
- Consideration of the Commissioners' priorities on rule and policy development. The Commissioners chose to discuss this item in conjunction with item #10.
- Consideration of memoranda of understanding and agreement between the Texas Natural Resource Conservation Commission and other governmental entities, including a memorandum of understanding between the Texas Natural Resource Conservation Commission and the Texas Parks and Wildlife Department concerning wastewater discharges from aquaculture facilities. Nina Fantl (Legal) and Carol Kim (Water Policy) presented this item. Commissioner Baker moved that the Commission approve the proposal for publication in the Texas Register. The motion was seconded by Commissioner Marquez and approved unanimously. The Executive Director will sign the MOU on behalf of this agency.
- Consideration of potential revisions to 30 TAC Chapter 122, the federal operating permit rule implementing Title V of the Federal Clean Air Act, including public notice requirements and issues relating to application and permitting requirements. Karen Olson (Operating Permits) and Susan Owen (Legal) presented this item. The Commissioners directed staff to develop public notice requirements for the program which require a single, bilingual notice.
- The Texas Natural Resource Conservation Commission will meet in closed session to discuss following pending litigation: The Texas Natural Resource Conservation Commission and the State of Texas vs. United States Environmental Protection Agency, No. 96-60544, in the United States Court of Appeals for the Fifth Circuit; The Texas Natural Resource Conservation Commission and the State of Texas vs. Carol Browner, Administrator of the United States Environmental Protection Agency and the United States Environmental Protection Agency, No. 96-1283, in the United States Court of Appeals for the District of Columbia Circuit; The Texas Natural Resource Conservation Commission and the State of Texas vs. Carol Browner, Administrator of the United States Environmental Protection Agency and the United States Environmental Protection Agency, No. 96-1304, in the United States Court of Appeals for the District of Columbia Circuit. The authority for this meeting is Section 551.071 of the Texas Open Meetings Act, Chapter 551 of the Texas Government Code. The Commission may also meet in open session to take action on this matter as required by Section 551.102 of the Texas Open Meetings Act, Chapter 551 of the Government Code. The Commissioners discussed this item in closed session, but did not taken any action.
- The Commission will discuss the requirements in Commission rules on public notice of proceedings, and discuss possible rulemaking projects to revise and streamline notice requirements. The Commission may also discuss proposed legislation on this subject. The Commissioners chose not to discuss this item at this time.
- Consideration of issues related to existing and proposed policies regarding water rights necessary for the reuse of water. Mark Jordan (Water Policy) presented this item. The Commissioners invited public comment on this issue and received comment from: Michael Booth of Booth, Ahrens, and Werkenthin; Doug Caroom of Bickerstaff Heath; Greg Rothe of SAWS; Glenn Jarvis of the Texas Irrigation Council; and Cindy Loeffler of the Texas Parks and Wildlife Department. Until the agency receives direction from the state legislature, staff is directed to go with the following instructions -
- Except as specifically provided otherwise in the water right, surface water appropriated under a water right can be beneficially used and reused by the water right holder for the authorized purposes, locations, etc. under the water right prior to its release to a stream. This could include the full, authorized consumption of the water appropriated under the water right resulting in no return flows. If there is a need to protect senior downstream water rights or environmental flow needs, then upon granting a new water right, special return flow requirements should be placed in the water right, including point of return and amount, if the latter can be reasonably calculated.
- When determining the availability of unappropriated water that can be appropriated on a dependable basis for a new water right, existing water rights shall be valued at their full amounts as recorded in the water rights. This means that return flows that may someday be directly reused under an existing water right upstream shall not be included in determining water availability for future water rights on a dependable basis. Water rights may be granted based upon the use of return flows, but only with the condition that the water available for the right is dependent upon interruptible return flows.
- Once surface water has been diverted under a water right and returns to a stream, it is presumed to be "surplus" water and, therefore, subject to appropriation by others. This presumption can be overcome only if the further use of these return flows was contemplated when the water right was originally granted because the original right provides for a downstream diversion point to pick up and reuse these return flows. If a water right holder wants to pick up his discharged return flows downstream, he will need to apply for a new appropriation of water, junior to all other existing water rights and subject to environmental conditions. He may not obtain a bed and banks permit for this. However, he may still directly reuse this water prior to its return to the stream in accordance with the purposes and locations etc under the water right.
- Prior to the discharge of "developed" water, the developer may obtain a "bed and banks" permit for the conveyance of this water in a water course for subsequent diversion (less carriage losses) and use by the developer. "Developed" water is water that would not have been in the stream but for the efforts of the developer and is for the subsequent use by the developer. Developed water typically originates as privately- owned groundwater, but may also include surface or groundwater obtained through an interbasin transfer and put into a stream of the receiving basin. It does not include water that is originally from the stream. A person may not obtain a bed and banks permit after the fact to divert water historically discharged by that person, including water that may have been considered developed water prior to its discharge. A bed and banks permit will not be allowed to a person who temporarily ceases the discharge for the purpose of attempting to quality for a bed and banks permit. A bed and banks permit would be allowable for any new discharge of developed water above the historical discharge if such authorization is obtained prior to the increased discharge. Nothing prevents the historical discharger of developed water from ceasing the discharge and directly reusing the water. Such reuse may be subject to water quality requirements in accordance with Commission rules under Chapter 310, new 210, if for the alternative disposal of treated effluent such as irrigation.
- A bed and banks permit will not be granted for the primary purpose of using the stream to "polish" the water quality of the discharged water so that the water diverted is of significantly better quality than the water discharged. In all cases, the discharge must meet the water quality standards for the receiving stream
- Consideration of issues related to the reauthorization of the Safe Drinking Water Act. Steve Walden (Water Utilities) and Sally Gutierrez (Water Utilities) presented this item. The Commissioners provided instructions on the following related issues -
- Staff will work on the loan forgiveness issue in Chapter 17 in an effort to entice regional suppliers to take over some of the non-economically viable systems. The Omnibus Water Bill will also address this issue.
- Staff needs to meet with other agency staff (IR, Waste, etc.) to discuss source water assessment, which will require additional staff work. This issue may come back to the Commissioners at a later date.
- Consideration of issues related to the upcoming legislative session. David Duncan (IGR) presented this item. The Commissioners discussed several legislative issues. They provided feedback to staff on the following:
- Occupational Licensing - The Commissioners will not pursue this as an agency issue at this time since it appears that the legislature may address it.
- Permit Revocation - The Chairman stated that his preference is to go forward and adopt some language regarding the 1660 test. Staff indicated that this proposed legislation will allow the agency to do so.
- Municipal Solid Waste Management and Resource Recovery Advisory Council (MSWMRRAC) - In response to the state providing a stipend to council members, the Commissioners asked that the MSWMRRAC's policy be similar to what is provided to other like councils. The Commissioners also concurred with the MSWMRRAC's request to add three positions to the council and eliminate two positions.
- Permit Transfer Requirements - The Chairman asked why there is no prior approval required for transfers of air permits, while there is a pre-transfer requirement for all other permits (with the exception of water rights).
- General Permits - Commissioner Marquez asked if this proposal is consistent with the general permits in the air program. He also asked if there are other agency programs that can be reviewed for general permits. Staff will return with answers to the questions. Potential sponsors will be advised that the agency may request an amendment in the future if the Commissioners decide to extend this proposal to other programs. (The Commissioners may also wish to amend the draft permit transfer legislation to reflect greater program consistency.)
- Consolidated Public Notice - The Commissioners provided staff with the following feedback: support change in statutory language regarding who is entitled to a mailed notice from "administrative completeness" to "technical completeness" and from "appropriate county tax rolls" to "real property appraisal records;" work on the issue of the area and level of newspaper publication further and discuss it individually with the Commissioners and the Executive Director; combine notice of intent statutes with similar notice of administratively complete application statutes; add members of the legislature to the agency's mailing list for notice of receipt of applications when administratively complete (unless a legislator has requested additional notice); support a change in the bilingual notice which would add language regarding the enrollment in bilingual programs; continue notice by mail of administratively complete applications; support consistent language for notice of hearing requirements.
- Consolidated Emergency Authority - Staff will follow up on whether or not the proposed legislation will cover temporary authorizations for construction.
- Environmental Regulations Innovation Act - Staff was instructed to bring this proposal to the Commissioners for their review prior to finding sponsors.
- BCP - Once the General Counsel has reviewed and approved proposed changes to the program, staff may move forward without returning to the Commissioners for further instructions.
- Consideration of issues related to the enforcement penalty policy and the small entity/minor source no penalty policy. The Commissioners chose not to discuss this item at this time. This item was continued to the January 13, 1997, Commissioners' Work Session. Please note that this session will be held from 10:00 a.m. until noon in E-201S, rather than our regular meeting time.
- Planning for the next Commissioners' Work Session. The next work session is tentatively scheduled for Monday, January 13, 1997, from 10:00 a.m. until noon, in E-201S. The General Counsel's Office will discuss the scheduling of issues with Catherine Collins (OPRD) at a later date.