SWM-CS 981111file:///CVWINDOWS/TEMP/environmental-quality.html
TITLE environmental- quality
Part I. Texas Natural Resource Conservation Commission
Chapter 216. Water Quality Performance Standards for Urban Development
Subchapter B. Municipal Water Pollution Control and Abatement
30 TAC § §216.21- 216.30
The Texas Natural Resource Conservation Commission (commission) proposes new § §216.21- 216.30,
concerning municipal water pollution control and abatement. These sections will form a new Subchapter B
under Chapter 216 concerning Municipal Water Pollution Control and Abatement Plans.
EXPLANATION OF RULE
The proposed rules will implement: revisions to Texas Water Code, §26.177 made by House Bill 1190 (1997)
passed during the 75th Texas Legislature (1997). The bill revised Texas Water Code §26.177 and made the
section permissive for any community regardless of population, and required only for communities with
populations of 10,000 or greater where the Clean Rivers Regional Assessment of Water Quality or other
commission assessments or studies demonstrate a water pollution impact not associated with permitted
sources. The proposed rulemaking provides flexibility in allowing affected cities the opportunity to correct the
problems using those resources available to them within a reasonable time, but not to exceed five years.
Representatives of potentially impacted municipalities participated in the development of the rule providing
suggested language and comment on the requirements of the rule.
In developing the rule, program staff has also considered other related matters such as: federal permitting
under Phase 11 of the storm water permitting program; delegation of the National Pollutant Discharge
Elimination System permitting program to the state; revision of state and federal water quality standards to
address wet weather conditions; evolving federal policy on Total Maximum Daily Loads; and the development
of a state coastal nonpoint source management program in compliance with Section 6217 of the Coastal Zone
Management Act.
Proposed new §216.21, relating to Purpose and Policy, explains that the purpose of these rules is to establish
procedures and measures to address water pollution, identified in cities of 10,000 or more, that is not
attributable to a permitted source. This section also establishes that this subchapter is not intended to prevent
the commission from abating or preventing the pollution of water through permits, orders or other actions.
Proposed new §216.22, relating to Applicability, explains that the proposed rule applies to cities with
populations of 10,000 or more in which a water quality assessment report has identified a water pollution
problem that is not attributable to a permitted source.
Proposed new §216.23, relating to Definitions, includes definitions that apply to this subchapter and are not
included in 30 TAC, Chapter 3.
Proposed new §216.24, relating to Water Quality Assessments and Studies, specifically identifies the related
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water quality assessments and studies which may be used by the executive director to identify water pollution
that is not attributable to permitted sources. Water quality assessments and studies which may be used by the
executive director to identify water pollution that is not attributable to permitted sources include, but are not
limited to, the Commission's program to develop Total Maximum Daily Loads (TMDLs) in accordance with
§303(d) of the federal Clean Water Act. In this scenario, cities and other stakeholders located in watersheds of
waterbodies that do not meet applicable water quality standards would be encouraged and given an
opportunity to work with the Commission in the development of TMDLs for the segment. TMDLs are
technical analyses performed to determine how much pollution a waterbody can receive without violating its
water quality standards. If, during the development of a TMDL, sources, other than permitted, in a city are
determined to be contributing to the violation of water quality standards, the city will be notified by the
executive director and given a reasonable amount of time to correct the problem. Actions undertaken by the
city to correct the problem will need to be coordinated with the TMDL Implementation Plan adopted for the
waterbody.
Proposed new §216.25, relating to Notice, explains that the executive director will notify a city if it is
determined that an assessment or study has identified water pollution that is not attributable to with permitted
sources.
Proposed new §216.26, relating to Public Meeting Held by the Commission, explains that unless the executive
director and the city agree that the city should be required to develop and implement a water pollution control
and abatement program after expiration of a specified time period, the commission at a commission meeting
shall evaluate and take action on the executive director's recommendation. The subsection further explains that
the commission may find that the city continues to meet the criteria and needs to implement a program, refer
the matter to SOAH, determine that the city is not required to develop a Water Pollution Control and
Abatement Program, or issue any other order the commission deems appropriate.
Proposed new §216.27, relating to Water Pollution Control and Abatement Program, explains that a water
pollution control and abatement program under this subchapter shall encompass areas within the city's
municipal boundaries and its extra - territorial jurisdiction and explains the elements of such a program.
Proposed new §216.28, relating to Submittal of Water Pollution Control and Abatement Programs, details the
process for a city submitting a water pollution control and abatement program to the commission.
Proposed new §216.29, relating to Amendment Procedures for Water Pollution Control and Abatement
Programs, details the process for the city to submit an amendment to the program :for commission review and
approval. The proposed rule also provides that the commission may, on its own motion or in response to a
petition by the executive director, require the city to amend its program.
Proposed new §216.30, relating to Appeals, explains that any person affected by any ruling by a city related to
waste pollution control and abatement outside of the corporate limits, may appeal such an action to the
commission or the appropriate state district court.
FISCAL NOTE
Mr. Stephen Minick, Strategic Planning and Appropriations Division, has determined that for the first five
years these proposed sections are in effect, there will be fiscal implications as a result of enforcement and
administration of the sections. The effect on state government will be an increase in cost associated with the
development and administration of a program that will include the review of water quality assessment data,
processing notifications, preparing for public meetings and contested hearings, and. processing appeals and
amendments to water pollution control and abatement plans. The cost to state government is estimated to be
approximately $65,000 per year for the first five years the rules are in effect. The net effect of the provisions of
House Bill 1190 and these proposed rules will be to reduce the potential costs to local governments of
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compliance with Water Code §26.177 because of the repeal of the mandatory provisions for development of a
pollution abatement plan. The effect on local government will be the costs to those cities of greater than
10,000 population that demonstrate a water pollution impact not attributable to permitted sources. The costs to
any one city that makes such demonstration will vary according to the plan the city develops to resolve the
problem and will also vary according to the level and extent of problem, size of city, and complexity of the
plan. The actual costs to any affected city can only be determined on a site - specific basis. No additional fees
will be imposed on any affected city to implement this program.
PUBLIC BENEFIT
Mr. Minick also has determined that for the first five years these proposed new sections are in effect, the
public benefit anticipated as a result of enforcement of and compliance with these sections will be
improvements in the control and abatement of water pollution coming from non -point sources in the areas and
municipalities where water quality assessments have identified water pollution problems. Another public
benefit expected is the improvement of the quality of surface water resources in the State. The provisions of
House Bill 1190 and these rules as proposed impose costs only on certain cities with demonstrated water
quality problems. Other than those costs that have been described for affected cities under this rule, there are
no economic costs to any person, including any small business, anticipated as a result of compliance with the
rule as proposed.
REGULATORY IMPACT ANALYSIS
The commission has reviewed the proposed rulemaking in light of the regulatory analysis requirement of
Texas Government Code, §2001.0225, and has determined that the rulemaking is not subject to §2001.0225
because the rule is not a "major environmental rule" as defined in that section of the code and does not exceed
any standard, requirement or authority set by federal or state law or delegated agreement. Although the
proposed rule is intended to protect the environment, it does not meet the other of the two separate
requirements that must be met for the definition to apply. The proposed rulemaking will 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. Furthermore, even if the proposed rule met the
definition of a "major environmental :rule ": (1) the proposed rule does not exceed a standard set by federal law;
(2) the proposed rule does not exceed any expressed requirement of state law; (3) there is no delegation
agreement or contract directly applicable to the proposed rule, and (4) the rule is not adopted solely under the
general powers of the commission, but is adopted under the specific authority of Texas Water Code §26.177.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a Takings Impact Assessment for these rules pursuant to Texas Government
Code Annotated, §2007.043. The following is a summary of that Assessment. The specific purpose of the rule
is to implement requirements of §26.1.77 of the Texas Water Code. The proposed rule will substantially
advance this specific purpose by establishing procedures to address water pollution that is not attributable to
permitted sources in cities with populations of 10,000 or more. Promulgation and enforcement of these rules
will not burden private real property which is the subject of the rules because the rule governs actions a city
must take to abate and/or prevent water pollution occurring within its jurisdiction. The rule requires cities to
identify and regulate discharges into waters in the state which are non - permitted and may be contributing to
the pollution of a water body. To the extent a municipality must enact an ordinance, rule, regulatory
requirement, resolution, policy, guideline, or similar measure to address the issue of non - permitted discharges
which might have an effect on real private property, §2007.003(b)(4) of the Texas Government Code exempts
a municipality from application of the Private Real Property Act.
COASTAL MANAGEMENT PROGRAM
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The executive director has reviewed the proposed rulemaking and found that the rule does not govern air
pollution emissions, on site sewage disposal systems, or underground storage tanks or other specific nonpoint
source control related actions expressly identified under Coastal Coordination Act Implementation Rules, 31
TAC §505.11(b)(2), relating to Actions and Rules Subject to the Coastal Management Program (CMP), nor
does it govern or authorize actions listed in Coastal Coordination Act Implementation Rules, 31 TAC
§505.11(a)(6). Therefore, the proposed rule is not subject to the CMP. However, the development and
implementation of water pollution control and abatement plans, where appropriate, will provide significant
protection for coastal natural resources and will be an integral part of the state's coastal non -point source
pollution control program.
PUBLIC HEARING A public hearing on the proposal will be held on November 10, 1998 at 10:00 a.m. in
Room 2210 of the TNRCC Building F, located at 12100 Park 35 Circle, Austin. The hearing is structured to
receive oral or written comments by interested persons. Individuals may present oral statements, when called
upon, in the order of registration. Open discussion within the audience will not occur during the hearing;
however, a commission staff member will be available to discuss the proposal 30 minutes prior to the hearing
and will answer questions before and after the hearing.
SUBMITTAL OF COMMENTS
Written comments on the proposal should refer to Rule Log No. 97164 -216 -WT and may be mailed to
Lutrecia Oshoko, MC 204, Texas Natural Resource Conservation Commission, Office of Policy and
Regulatory Development, P.O. Box 13087, Austin, Texas 78711 -3087 or faxed to (512) 239 -4808. Written
comments must be received by 5:00 p.m., November 30, 1998. Such comments will not receive individual
responses, but will be addressed in the preamble of the adopted rules and published in the Texas Register. For
more information, please contact Arthur Talley of the Data Collection Section at (512) 239 -4546.
STATUTORY AUTHORITY
The new sections are proposed under the Texas Water Code, §5.103 and §26.011 which provides the
commission authority to adopt rules necessary to carry out its powers and duties under the provisions of the
Texas Water Code, and under §26.177 which provides the Commission with the authority to establish rules
providing the criteria for the establishment of water pollution control and abatement programs and the review
and approval of those programs.
There are no other codes, statutes or rules that will be affected by this proposal
§21621.Purpose and Policv.
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The purpose of this subchapter is to establish procedures and measure in accordance with Texas Water Code
§26.177(a) to address water pollution that is not attributable to permitted sources in cities that have a
population of 10.000 or more persons
An unauthorized discharge is a violation of Texas Water Code 426.121. Nothing in this subchapter is
intended to limit or prevent the commission from abating or preventing the pollution of water in the state
through permits orders or other enforcement actions authorized under the Texas Water Code hapter 26 or
other applicable state or federal law.
§216.22.Antilicabilitk
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a
This rule applies to any city with a population of at least 10.000 Persons based on the most recent federal
decennial census. and in which a water quality assessment report required by Texas Water Code §26.0135 or
other commission assessment or study as described in §216.24 of this title (relating to Water Quality
Assessments and Studies). has identified water pollution that is not attributable to permitted sources Cities
meeting applicability shall be required to satisfy applicable Provisions of this subchapter upon receipt of notice
issued by the executive director pursuant to 4216.25 of this title (relating to Notice).
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A city
whose population falls below
10.000. based
on the most recent federal decennial census. will no longer
have a
duty to satisfy the applicable
provisions of this
subchapter upon the executive director' receipt from
the city
of the most recent federal
decennial census
indicating that the population has fallen below 10.000.
A Water Pollution Control and Abatement Program submitted under this subchapter is not a Water Pollution
and Abatement Plan as provided by Texas Water Code, 426.12 1 (a)(2)(B).
-6216.23. Definitions.
Terms defined in Chapter 3 of this title (relating to Definitions) will have the same meaning when used in this
subchapter unless the definition -is pecifically modified in this ection
City - A municipality or city existing created or organized under the general home rule or special laws of
this state.
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Extra Territorial Jurisdiction - An area outside the corporate limits of a municipality as defined in Local
Government Code. 442.021
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Permitted Sources - A source that discharges or is required to discharge pollution into or adjacent to waters in
the state as authorized by a valid permit general permit or rule pursuant to the Texas Water Code the federal
Clean Water Act. or other applicable state or federal law,
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Pollution - The alteration of the physical
thermal
chemical or biological
quality of or the contamination of
any water in the state that renders the water harmful
detrimental or injurious to humans animal life
vegetation. or property or to public health
safety
or welfare or impairs the
usefulness or the public enjoyment
of the water for any lawful or reasonable
purpose This definition includes
but is not limited to nonpoint
sources of pollution as those sources are
defined
and identified pursuant to
Chapter 220 of this title (relating to
eeional Assessments of Water Ouality)
the federal
Clean Water Act the
Coastal Management Act Chapter
6217 and other applicable state and federal-statutes.
regulations policies and
guidance
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Significant Waste Discharge - The discharge of waste to waters in the state which causes or threatens to cause
pollution.
Water Pollution Control and Abatement Program - A program developed pursuant to this Chapter that
includes personnel. services. functions. schedules, and reports developed by a city to prevent or correct water
pollution problems within its jurisdiction
$216.24. Water Quality Assessments and Studies.
Water Quality assessments and studies that may be used by the executive director to identify water pollution
that Is not attributable to permitted sources shall consist of one or more of the following:
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State Water Quality Inventory The state program which assesses the quality of surface and ground waters
resulting in a report describing the status of water quality in the state in accordance with the Federal Clean
Water Act. 4305(b):
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Clean Rivers Program Watershed water quality assessments conducted in accordance with Texas Water Code
426.0135:
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State Nonpoint Source Assessment The state program implemented in compliance with Federal Clean Water
Act. 4319(a) which identifies surface and ground waters in the state which cannot reasonably be expected to
attain or maintain applicable water quality standards or the goals and requirements of the federal Clean Water
Act without additional controls for nonpoint sources of pollution:
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Total Maximum Daily Load Pursuant to Clean Water Act 4303(d) the identification and prioritization of
waters within the state for which the effluent limitations required by 4301(b)(1)(A) and (B) of the Clean Water
Act are not stringent enough to implement any water quality standard applicable to such waters: or,
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Other. Special studies pilot projects reports or other quality assured assessments of water quality in the state
prepared. approved. or accepted by the executive director that identi non permitted sources of water
pollution wlthln cities including information used by the executive director for the purpose of updating the
state's list of Impaired waters prepared in accordance with the federal Clean Water Act. §303(d).
§21625.Notice.
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If it is determined by the executive director that a city has met the criteria set forth in 4216.22(a) of this title
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(relating toApplicability) or the executive director is requiring—the city to amend an existing water pollution
control and abatement program. the executive director shall notify the city. This notice shall specify the
following;
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the basis for the executive director's determination:
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That the city meets the criteria set forth in 4216.22(a) of this title* or,
That the citv's existing Water Pollution Control and Abatement Program should be amended:
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that the executive director may undertake additional water quality assessments and studies in the impacted
area as set out in 4216.24 of this title (relating to Water Quality Assessments and Studigsh
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that the city may undertake additional water quality assessments and studies in the impacted area within its
jurisdiction which comply with quality assurance requirements of the executive director: and
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the time period (not to exceed five years) within which the city may try to correct the problem The executive
director may amend this time period when new or additional information or circumstances warrant such an
amendment.
U16.26.Public Meeting Held by the Commission.
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After expiration of the time period specified in 4216.25(a)14) of this title (relating to Notice) the executive
erector shall determine whether a city still meets the criteria set forth in §216.221-a) of this title (relating to
Applicability_) based on water quality assessments and studies et out in 4216.24 of this title (relating to Water
Quality Assessments and Studies) performed subsequent to the initial determination taking into consideration
any measures taken by the city to correct the problem.
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If the executive director determines that a city continues to meet the criteria set forth in §216.22(a) of this title
the executive director at a public meeting g eld by the-conmlission shall recommend that the ity be required to
submit a Water Pollution Control and Abatement Program or when appropriate amend an exi tin Water
Pollution Control and Abatement Program.
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No public meeting shall be required ii'the executive director and the city agree that the city should be required
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to develop and implement a Water Pollution Control and Abatement Program or amend an existing Program
In lieu of a public meeting. the city based on an agreement with the executive director may request that the
commission Issue an agreed order to submit a Program as described in §216 27 of this title (relating to Water
Pollution Control and Abatement Program) or an amendment to an existing Program as described in 4216.29
of this title (relating to Amendment Procedures for Water Pollution Control and Abatement Programs).
The city shall cause notice of the public meeting to be published in accordance with &39.5 and 439.7 of this
title (relating to Public Notice eneral Provisions and Text of Public Noticed informing�he public of the
meeting and that the public has thirty (30) days prior to the public meeting to provide written comment to the
commission on whether the city should be required to develop and implement a Water Pollution Control and
Abatement Program or amend an existing Water Pollution Control and Abatement Program
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After consideration of the matter at the public meeting the co mmi sion maw
refer the matter to SOAH for a contested case hearing conducted pursuant to the Administrative Procedure Act
(APA) to determine whether the city continues to meet the criteria set forth in 4216.22(a) of this title,
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determine that the city is not required to submit a Water Pollution Control and. Abatement Program-
determine that the city continues to meet the criteria set forth in 4216.22(a) of this title and approve the
executive director's recommendation that the city be required to develop or where appropriate amend. and
implement a Water Pollution Control and Abatement Program • or
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issue any other order the commission deems appropriate
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The public meeting held by the comm1ss. pursuant to this section shall satisfy the requirement of the public
hearing mandated by Texas Water Code §26.177.
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A commission order issued pursuant to subsection (e) of this section is a final and appealable order under
Texas Water Code &5,351. As a prerequisite to appeal a motion forre-hearine !under &80.271 of this title
(relating to Motion for Rehearing) must be filed within 20 days after the date the ity or the city's attorney of
record is notified of the commission's final decision or order under this subchapter
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The Water Pollution Control and Abatement Program of a city shall encompass the area within a city's
municipal boundaries and. subject to Texas Water Code. 426.179 (relating to Designation of Water Quality
Protection Zones in Certain Areas). may include areas within its extra - territorial jurisdiction which in the
judgment of the city should be included to enable the city to achieve its objectives for the area within its
territorial jurisdiction.
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The city shall include in the Program the services and functions which in the judgment of the city or as may
be reasonably required by the commission. will provide effective water pollution control and abatement for the
city. including the following services and functions:
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the development and maintenance oil an inventory of all significant waste discharges into or adjacent to the
water within the city and where the c=ity so elects. within the extraterritorial jurisdiction of the city without
regard to whether or not the discharges are authorized by the commission•
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the regular monitoring of all significignt waste discharges included in the inventory prepared pursuant to
paragraph (1) of this subsection:
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the collecting of samples and the conducting of periodic inspections and tests of the waste discharges being
monitored to determine whether the discharges are being conducted in compliance with this chapter and any
,applicable permits, orders. or rules of the commission. and whether they should be covered by a permit from
the commission:
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a procedure for obtaining compliance; by the waste dischargers being monitored including where necessary the
use of legal enforcement proceedings:
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the development and execution of reasonable and realistic plans for controlling and abating pollution or
potential pollution resulting from generalized discharges of waste which are not traceable to a specific source
such as storm sewer discharees and urban runoff from rainwater: and
any additional services functions. or, other requirements as may be prescribed by commission rule to
effectuate the purposes of this subchapter.
§216.28. Submittal of Water Pollution Control and Abatement Programs
A Water Pollution Control and Abatement Program shall be submitted to the executive director of the
commission in accordance with the order issued pursuant to 4216.26 of this title (relating to Public Meeting
Held by the Commission). The Water Pollution Control and Abatement Program for the city shall be signed
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and sealed by a professional engineer licensed in the State of Texas who shall certify that the city's Program is
designed to abate and prevent water pollution not attributable to permitted scmrces located within the city
§216.29.Amendment Pro .edure for Water Pollution Control and Abatement Programs.
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A city may amend the Water Pollution Control and Abatement Program for that city at any time by submitting
an amended Water Pollution Control and Abatement Program to the executive director of the commis ion.
The amended Water Pollution Control and Abatement Program for the city shall be signed and sealed by a
professional engineer licensed in the State of Texas who shall certify that the city's Program is deigned to
abate and prevent water pollution not attributable to permitted sources located within the city.
The executive director ma require a city to amend a Water Pollution Control and Abatement Program for that
city when new or additional information or circumstances warrant such changes to effectuate the purposes of
this subchapter.
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The notice, public meeting and hearing requirements provided under §2165.25(a) of this title (relating to
Notice) and L216.26 of this title (relating to Public Meetin H,g eld by the Commission) shall apply to an
amendment of a Water Pollution Control and Abatement Program
§216 30 Appeals
Pursuant to Texas Water Code 626.177( ) any person affected b y any ruling. order. decision. ordinance,
program. resolution, or other act of a city relating to water pollution control and abatement outside the
c orate limits of such city adopted pursuant to this subchapter or any other latutory authorization may
meal such action to the commission or district court An appeal must be filed with _the commission's chief
clerk within 60 days of the enactment of the ruling. order, &P i ion ordinance, program resolution or act of
the city. The issue on appeal is whether the action or program is invalid. arbitrary. unreasonable inefficient or
ineffective in its attempt to control water quality. and the comet. ion's order on the appeal will be based on
whether the city's actions or programs meet these criteria The commission or district court may overturn or
modify the action of the city. If an appeal is taken from a commission ruling the commi sion ruling shall be in
effect for all purposes until final disposition is made by a court of competent_iurisdiction so as not to delay any
penrr . approvals
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the
agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on October 16, 1998.
TRD- 9816273
Margaret Hoffman
Director, Environmental Law Division
Texas National Resource Conservation Commission
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Earliest possible date of adoption: November 29, 1998
For further information, please call: (512) 239 -4640
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