1. Texas Water Development Board
Chapter 356 Rulemaking
Texas Alliance of Groundwater Districts
October 30, 2012
Presented by:
Kristen O. Fancher
816 Congress Avenue
Suite 1900
kfancher@lglawfirm.com Austin, Texas 78701
(512) 322-5800
(512) 322-5804 (512) 472-0532 Fax
www.lglawfirm.com
©Lloyd Gosselink Rochelle & Townsend, P.C.

2. Purpose Behind TWDB Rulemaking –
Why this is Important to Stakeholders
• Implements statutory changes to Chapter 36 of Texas
Water Code made by:
− SB 660 (TWDB Sunset legislation)
− SB 727
− SB 737
• TWDB is also taking this opportunity
to organize the rules and revise other
areas that were not required to be
changed due to legislation
©Lloyd Gosselink Rochelle & Townsend, P.C.

3. Current Status of Rulemaking –
Where Are We Now?
• January 9, 2012 - TWDB staff held a stakeholder
meeting to receive input on the rules and allowed for
written comments to be submitted until mid-February
• August 6, 2012 - TWDB staff issued a “pre-publication”
draft of the rules
• August 22, 2012 - TWDB held a stakeholder meeting to
receive verbal and written comments on the pre-
publication draft rules
• September 20, 2012 – TWDB Board votes to publish
draft rules in Texas Register
©Lloyd Gosselink Rochelle & Townsend, P.C.

4. Current Status of Rulemaking –
Where are We Now?
• October 5, 2012 – Draft rules are published in Texas
Register; formal 30-day public comment period begins
• October 22, 2012 – TWDB holds formal public comment
meeting to receive verbal comments
• November 4, 2012 at 5:00 p.m. – Deadline for written
comments to be submitted to TWDB
• December 2012 – TWDB staff will review comments,
make changes and present final rules to TWDB Board
for adoption
©Lloyd Gosselink Rochelle & Townsend, P.C.

5. Comprehensive Changes to Rules
• Definitions
• Ability to Amend GMA Boundaries
• DFC adoption process
• DFC submission package
• DFC appeals process
• Management Plan review
©Lloyd Gosselink Rochelle & Townsend, P.C.

6. TWDB’s Response to Comments (Since
August 2012 Draft of Rules)
• Definitions:
– DFC
– MAG
– GAM
– Non-relevant aquifer
– Person with a legally defined interest in groundwater
– Total estimated recoverable storage
©Lloyd Gosselink Rochelle & Townsend, P.C.

7. DFC Adoption Process
1. GCDs in GMA 3. GCDs hold
2. 90 day public
consider 9 statutory public hearings
comment period
factors and propose within their
begins after
DFCs for adoption boundaries during
proposed DFCs
by 2/3 vote of GMA 90 day public
mailed to GCDs
reps comment period
5. GMA produces
explanatory report 4. GMA meets to
6. Individual officially adopt
and adoption
districts adopt DFCs; consider
resolution to GCDs
DFCs*** summary reports
and submits DFCs
to TWDB*** of GCDs
©Lloyd Gosselink Rochelle & Townsend, P.C.

8. TWDB’s Response to Comments
• DFC Submission Package:
– Changed to make clear that explanatory report is required
along with adoption resolution
– Notice requirements changed to conform with statute
– Removed language that all GAMs/aquifer assessments
considered be submitted
• Submission of Documentation to Address Deficiencies:
– Changed to 90 days (from 60)
• Adoption of DFCs:
– Conforms to statutory language
©Lloyd Gosselink Rochelle & Townsend, P.C.

9. TWDB’s Response to Comments Cont…
• TWDB Providing MAGs to GCDs:
– Provided within 180 days
• Appeal of DFCs:
– Deadline to appeal changed to 120 days after GMA
adoption; GCDs have 90 days to respond to appeal petition
– TWDB Board allowed to review petition and any evidence
relevant to petition
• Management Plan Submission to TWDB:
– Removed requirement to send plan in 6 mos. before
deadline
©Lloyd Gosselink Rochelle & Townsend, P.C.

10. Remaining Issues in Rules
• DFC Submission Package – conform to statute
• District Adoption of DFCs – conform to statute
• Appeal of DFCs – TWDB Board consider same factors
as districts consider in 36.108
• Management Plan – clarify that plan only has to be
updated for applicable DFCs
• Non-relevant aquifer
©Lloyd Gosselink Rochelle & Townsend, P.C.

11. Current TWDB Definition of
Non-relevant Aquifer
• The portion or portions of a major or minor aquifer,
not included as a source of water in the State Water
Plan, for which the GMA determines that:
a) aquifer uses and conditions do not warrant adoption
of a DFC for joint planning in the GMA; and
b) groundwater conditions will not affect the
achievement of DFCs in adjacent or hydraulically
connected relevant aquifers.
©Lloyd Gosselink Rochelle & Townsend, P.C.

12. Draft Rule 356.31: Proof of Non-
Relevant Aquifer
• Allows GMA opportunity to prove an aquifer is non-
relevant for purposes of joint planning
• Must submit documentation to TWDB proving the
aquifer is non-relevant
©Lloyd Gosselink Rochelle & Townsend, P.C.

13. Proposed Definition
• Change Definition to :
(14) Relevant aquifer – The portion or portions of a major or
minor aquifer for which districts in a groundwater
management area determine that aquifer characteristics,
groundwater demands, and current groundwater uses
warrant adoption of a DFC for joint planning in a GMA.
©Lloyd Gosselink Rochelle & Townsend, P.C.

14. Proposed Change to Proof of Non-
Relevant Provision
• Add following language to proof requirements:
– Any portion or portions of a major or minor aquifer declared,
under § 356.31(b), to be non-relevant for joint planning in a
groundwater management area, but which are determined to
be relevant on a local level, must be included in local district
Groundwater Management Plans in accordance with
§36.1071, and may be included in Regional Water Plans and
the State Water Plan as deemed appropriate by the Regional
Water Planning Group and the Board.
©Lloyd Gosselink Rochelle & Townsend, P.C.

15. Participation in Rulemaking Process
• Comment deadline is November 4th at 5:00
p.m. (30 days after publication)
• Can submit written comments to TWDB at:
– Legal Services, Texas Water Development
Board, P.O. Box 13231, Austin, Texas 78711-
3231; or
– rulescomments@twdb.texas.gov; or
– Fax: (512) 475-2053.
©Lloyd Gosselink Rochelle & Townsend, P.C.

16. QUESTIONS?
Thank You
Kristen Fancher
kfancher@lglawfirm.com
(512) 322-5804
©Lloyd Gosselink Rochelle & Townsend, P.C.