31 Tex. Admin. Code § 354.12 - Memorandum of Agreement Between the Texas Water Development Board and the Texas Commission on Environmental Quality Regarding Groundwater Conservation District Management Plan Approval and Enforcement
(a) This memorandum of agreement (MOA)
between the Texas Water Development Board (TWDB) and Texas Commission on
Environmental Quality (TCEQ) which sets forth the coordination of program
responsibilities related to groundwater conservation district management,
planning, approval, review, and oversight. This MOA is intended to clarify and
outline the necessary coordination required for the agencies to document their
respective duties, responsibilities, and functions as provided under Chapter 36
of the Texas Water Code.
(b)
Definitions.
(1) Approval. The approval of a
groundwater conservation district's adopted management plan as administratively
complete by the Executive Administrator of the TWDB as required under §
36.1072 of the Texas Water
Code.
(2) Enforcement actions.
Formal commission actions to achieve groundwater management by a groundwater
conservation district as identified under §
36.303 through §
36.308 of the Texas Water
Code including:
(A) issuing an order
requiring the district to take certain actions or refrain from taking certain
actions;
(B) dissolving the
district's board of directors in accordance with §§
36.305 and
36.307 of the Texas Water
Code;
(C) requesting the Attorney
General to bring suit for the appointment of a receiver to collect assets and
carry on the business of the district; or
(D) dissolving the district in accordance
with §§
36.304,
36.305, and
36.308 of the Texas Water
Code.
(3) Executive
Administrator. The Executive Administrator of the TWDB or a designated
representative.
(4) Executive
Director. The Executive Director of the TCEQ or a designated
representative.
(5) Executive
Director's Preliminary Report or EDPR. A pleading filed by the Executive
Director which, when issued and served under this title, seeks an enforcement
order against a respondent. EDPR is further defined in 30 TAC Chapter 70,
Subchapter C (relating to Enforcement Referrals to the State Office of
Administrative Hearings).
(6)
Groundwater conservation district (or district). Any district or authority
created under Section 52, Article III, or Section 59, Article XVI, Texas
Constitution, that has the authority to regulate the spacing of water wells,
the production from water wells, or both.
(7) Management Plan. The comprehensive plan
developed and adopted by the groundwater conservation district under §
36.1071 of the Texas Water
Code and subject to approval by the Executive Administrator of the TWDB under §
36.1072 of the Texas Water
Code that addresses groundwater management goals, performance standards, and
objectives which specifies actions, procedures, performance, and avoidance that
are or may be necessary to effect the plan.
(c) Interrelated Responsibilities and
Jurisdictions of the TCEQ and TWDB.
(1) The
TCEQ. The TCEQ has exclusive jurisdiction over the creation of groundwater
conservation districts pursuant to §
36.011 of the Texas Water
Code, for maintaining records of groundwater conservation district confirmation
election results under §
36.017(e)
of the Texas Water Code, for maintaining records of groundwater conservation
district directors registered with the TCEQ pursuant to §
36.054(e)
of the Texas Water Code, and has a right of supervision over groundwater
conservation districts pursuant to §
12.081 of the Texas Water
Code.
(A) The TCEQ is responsible for taking
certain enforcement action under §
36.303 of the Texas Water
Code if a groundwater conservation district board of directors fails to submit
a management plan, fails to receive approval of its management plan under §
36.1072 of the Texas Water
Code, or fails to submit or receive approval of an amendment to the management
plan under §
36.1073 of the Texas Water
Code. The TCEQ may not take enforcement action against a district under §
36.303 of the Texas Water
Code until either:
(i) the board of directors
of a district has failed to submit a management plan or amendment of its plan
by the required date;
(ii) the
board of directors of a district has failed to submit a revised management plan
(or subsequent amendment of a management plan) within 180 days of receiving
notice from the executive administrator that the management plan (or subsequent
amendment of a management plan) has not been approved and the district has not
appealed the executive administrator's decision to the TWDB;
(iii) the date the TWDB has taken final
action withholding approval of a management plan (or a subsequent amendment of
a management plan) if the district has appealed the Executive Administrator's
decision to the TWDB; or
(iv) a
district court in Travis County has taken final action withholding approval of
a management plan (or a subsequent amendment of a management plan) if the
district has appealed the TWDB's decision to a court.
(B) The TCEQ is responsible for taking
certain enforcement actions under §
36.303 of the Texas Water
Code if a petition requesting an inquiry related to groundwater conservation
district planning or management in a groundwater management area is not
dismissed and the TCEQ appointed review panel has prepared and submitted a
written report detailing findings and recommended actions.
(C) The TCEQ is responsible for taking
certain enforcement action under §
36.303 of the Texas Water
Code if it is determined by the SAO under §
36.302 of the Texas Water
Code that a groundwater conservation district is not actively engaged in
achieving the objectives of the district's management plan based on an audit of
the district's performance under the plan.
(D) The TCEQ is responsible for investigation
of the facts and circumstances of any violations of any rule or order of the
commission, consistent with agency authority under §
12.081 of the Texas Water
Code. The Executive Director must prepare and file a written report with the
commission and the subject district which documents the findings of the
investigation and includes any recommended enforcement actions the Executive
Director believes the commission should take under §
36.303 of the Texas Water
Code.
(E) An enforcement order
approved by the commission may require the district to take certain action,
refrain the district from taking certain actions, dissolve the district's board
of directors, request the Attorney General to bring suit for the appointment of
a receiver to collect assets and carry on the business of the district, or
dissolve the district, as identified under §
36.303(a)
of the Texas Water Code.
(2) The TWDB. Under §
36.1072(c)
of the Texas Water Code, the Executive Administrator of the TWDB is responsible
for approving groundwater conservation district management plans within 60 days
of receipt if the plans are administratively complete. Under §
36.1072(c)
of the Texas Water Code, if the Executive Administrator does not approve a
management plan, the Executive Administrator must provide to the district, in
writing, the reasons for the action. Within 180 days after the date of receipt
of notice, the district may submit a revised management plan for review and
approval. As identified under §
36.1072 of the Texas Water
Code, the Executive Administrator's decision may be appealed to the TWDB; the
decision of the TWDB may also be appealed to a district court in Travis County.
TWDB rules in Chapter 356 of Title 31 of the Texas Administrative Code more
fully set out these procedures.
(d) Agreed activities of each party to this
MOA. For the mutual benefit of the parties to this MOA and to provide for a
consistent regulatory framework, the parties agree to cooperate in function and
service to the following:
(1) The Executive
Director of the TCEQ will provide written notice to the Executive Administrator
of the TWDB when a new groundwater conservation district is created or
confirmed by voter election and the district's temporary board of directors has
fulfilled its statutory obligation and made such information available to the
TCEQ. Also, notice of the following information will be provided to the TWDB
within 15 days of receipt of required notifications from the district:
(A) the name, location, and enabling action
for the newly created district;
(B) the date of statutory creation or the
date of creation confirmation election, if an election is required; and
(C) the name of all directors,
mailing address(es), and term expiration dates for directors of the new
district.
(2) The
Executive Administrator of the TWDB will provide written notice to the
Executive Director of the TCEQ within 15 days, when the Executive
Administrator:
(A) has not received a
groundwater conservation district management plan by the required deadline for
submission from a district;
(B)
receives a groundwater conservation district management plan for administrative
completeness review;
(C) approves a
groundwater conservation district management plan as administratively
complete;
(D) denies approval of a
submitted groundwater conservation district management plan;
(E) receives a revised version of a
groundwater conservation district management plan within the 180-day response
period;
(F) fails to receive a
revised version of a groundwater conservation district management plan at the
expiration of the 180-day response period;
(G) receives documentation that a district
has appealed the Executive Administrator's management plan approval decision to
the TWDB, or a district has appealed TWDB's final decision to a district court
in Travis County; or
(H) receives
notice that final action by the TWDB or a district court in Travis County has
been completed.
(3) The
Executive Director of the TCEQ will provide written notice to the Executive
Administrator of the TWDB when non-compliance review and oversight actions are
taken against a groundwater conservation district. The Executive Director will
provide notice when:
(A) initial
notification-of-violation to a non-compliant district is issued;
(B) favorable actions are taken by a district
and the district has voluntarily come into compliance;
(C) formal enforcement action has been
initiated;
(D) the Executive
Director's Preliminary Report is filed with the TCEQ's Chief Clerk;
(E) final enforcement action has been taken
by the commission; and
(F) required
follow-up investigative activities are taken by the TCEQ in accordance with §
36.306 of the Texas Water
Code.
(4) Either party to
this MOA can substitute the individual notifications identified in paragraphs
(1) - (3) of this subsection with monthly notices to the other parties of all
actions taken in the previous thirty (30) days. These notices may be
transmitted as up-to-date and accurate reports from a database maintained by
the party.
(5) Both parties agree
to:
(A) meet as needed to coordinate and
maintain an efficient district performance review process;
(B) allow interagency access and review of
applicable files relating to processing of a management plan by the TWDB,
processing of an enforcement action by the TCEQ, or related file information
pertaining to the responsibilities of the agencies;
(C) share any groundwater conservation
district financial reports that may have been voluntarily submitted to an
agency;
(D) provide full disclosure
of related activities in the biennial legislative report required under §
35.018 of the Texas Water
Code; and
(E) identify the agency
contact person and mailing address for the formal communications specified by
this MOA, along with periodic update of the contact information, as
necessary.
(e)
General conditions.
(1) Term of MOA. The term
of this MOA shall be from the effective date until termination or amendment of
this MOA.
(2) Effective date. This
MOA, and any subsequent amendment, shall become effective immediately after the
date on which the TCEQ Executive Director and the TWDB Executive Administrator
sign the document, which ever date is later.
(3) Amendment of MOA. This MOA may be amended
by mutual agreement of the two parties in accordance with applicable law. Any
amendment of this MOA will become effective immediately after the date on which
the TCEQ Executive Director and the TWDB Executive Administrator sign the
amended document, which ever date is later.
(4) Termination of MOA. This MOA may be
terminated by either party upon thirty days written notice. The termination of
this MOA will become effective thirty days after notice is received by the
other party.
(5) Authority. By
signing this MOA, the signatories acknowledge that they are acting upon proper
authority from their governing bodies.
(6) Notices. Any notices required by this MOA
to be in writing shall be addressed to the respective party as follows:
(A) Executive Director, Texas Commission on
Environmental Quality, Attn: Todd Chenoweth, P.O. Box, 13087, Austin, TX
78711-3231;
(B) Executive
Administrator, Texas Water Development Board, Attn: Bill Mullican, P.O. Box
13231, Austin, TX 78711-3231; and
(C) The identified contact person may be
revised as necessary, in accordance with provision (d)(5)(E) of this MOA.
(f) Dated
September 17, 2007.
Notes
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