TITLE 30. ENVIRONMENTAL QUALITY

PART 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

CHAPTER 222. SUBSURFACE AREA DRIP DISPERSAL SYSTEMS

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts amendments to §§222.1, 222.3, 222.5, 222.31, 222.33, 222.73, 222.75, 222.81, 222.83, 222.85, 222.87, 222.115, 222.119, 222.127, 222.157, 222.159, and 222.163.

Sections 222.1, 222.3, 222.5, 222.31, 222.33, 222.73, 222.75, 222.81, 222.83, 222.85, 222.87, 222.115, 222.119, 222.127, 222.157, 222.159, and 222.163 are adopted without changes to the proposed text as published in the June 28, 2019, issue of the Texas Register (44 TexReg 3227), and, therefore, will not be republished.

Background and Summary of the Factual Basis for the Adopted Rules

On March 14, 2016, the commission received a petition from the City of Austin (petitioner). The petitioner requested that the commission initiate rulemaking to amend 30 TAC Chapters 222 and 309 (Project Number 2016-033-PET-NR). The rulemaking would allow permittees and applicants to rely on the beneficial reuse of treated wastewater when calculating the amount of land required for disposal of treated wastewater. This would allow permittees and applicants to reduce the acreage dedicated for land application that is currently required by rule. The commission approved the petition to initiate rulemaking with stakeholder involvement. The executive director held a stakeholder meeting on August 9, 2016, and the public was invited to comment on the petition. The public comment period was from August 28, 2016 through October 28, 2016.

Based on information presented at the stakeholder meeting, the executive director understands that the petition was made in response to increasing demands on water supplies and decreasing availability of contiguous or neighboring tracts of land that are large enough for domestic wastewater disposal under the commission's current rules. This trend is currently appearing in parts of Central Texas where wastewater discharge to water in the state is restricted by the commission's rules and land application of treated wastewater is the only permissible disposal option. The executive director recognizes that land availability may also be limited in other parts of the state, and that practicable land application options are especially important wherever discharge to water in the state is restricted or infeasible.

The adopted revisions in this chapter, and the corresponding adopted revisions in Chapter 309, will allow a reduction in the acreage dedicated for land application of treated effluent by applying a "Beneficial reuse credit" when calculating the disposal site area required. An applicant could also foreseeably request to use a beneficial reuse credit to increase the permitted flow without changing the disposal tract acreage or to change both the acreage and the permitted flow. The beneficial reuse credit will be based on the demonstrated firm reclaimed water demand. The effluent storage size required by Chapter 222 may not be reduced by the beneficial reuse credit. The adopted rulemaking will establish the criteria for demonstrating firm reclaimed water demand, the procedure for calculating and applying the beneficial reuse credit, and the requirements for a permittee who has been granted a beneficial reuse credit. The adopted amendments also correct inaccurate or outdated references to TAC or provide additional clarity.

Section by Section Discussion

The commission amends Chapter 222 to replace the term "waste" with "wastewater" throughout to clarify that regulations in this chapter apply to wastewater.

The commission amends Chapter 222 to update references to ensure current and accurate cross-references, improve readability, improve rule structure, and use consistent terminology. These changes are non-substantive and are not specifically discussed in the Section by Section Discussion of this preamble (i.e., §§222.1, 222.3, 222.73, 222.75, 222.87, 222.115, 222.119, and 222.163).

§222.5, Definitions

The commission adopts §222.5(2) to define "Beneficial reuse credit" as the term is defined in adopted Chapter 309 for consistency and to establish usage of the term as it relates to adopted §222.83(d) and (e) and §222.127(c). The commission renumbers the subsequent paragraphs accordingly to accommodate the adopted definition.

The commission amends the definition of "Domestic waste" in renumbered §222.5(5) to correct the term to "Domestic Wastewater" and include a reference to 30 TAC §210.82 to clarify the term "Graywater" used in the definition.

The commission amends the definition of "Industrial waste" in renumbered §222.5(14) to correct the term to "Industrial wastewater" and clarify the term to be more consistent with the definition in 30 TAC §312.8.

The commission amends the definition of "Public contact" in renumbered §222.5(20) to replace the existing definition with language similar to the definition of "Public contact site" in §312.8 to prevent ambiguity and for consistency.

§222.31, Application Process

The commission amends §222.31(a) to remove reference to systems that did not have a permit prior to the adoption of the rules as this reference is obsolete.

The commission adopts to remove §222.31(b) and (c) since the references are obsolete. Subsurface area drip dispersal system facilities that held permits prior to July 31, 2006, have applied for permits under Chapter 222 and, therefore §222.31(b) and (c) are obsolete. The commission re-letters the subsequent subsections accordingly to accommodate the deletions.

The commission amends relettered §222.31(d) to remove redundant language.

The commission amends §222.31(l)(6) to change "poor performer" to "unsatisfactory performer" to be consistent with the definition in 30 TAC §60.2(g)(2) and correct the reference from 30 TAC §60.3 to 30 TAC §60.2.

§222.33, Public Notice

The commission deletes §222.33(a) to remove redundancy.

§222.81, Buffer Zone Requirements

The commission amends §222.81(a)(2) to remove the reference to §309.13(c)(1) as the reference is not necessary.

§222.83, Hydraulic Application Rate

The commission adopts §222.83(d) to allow the beneficial reuse credit to be used when calculating the disposal area required based on the hydraulic application rate. The applicant, if granted a beneficial reuse credit by the executive director in accordance with Chapter 309, Subchapter D (Beneficial Reuse Credit), may reduce the permitted wastewater flow volume by the beneficial reuse credit when calculating the disposal area required based on the hydraulic application rate. This allows a person to reduce the required size of the disposal site. An applicant could also foreseeably request to use a beneficial reuse credit to increase the permitted flow without changing the disposal tract acreage or to change both the acreage and the permitted flow.

The commission adopts §222.83(e) to prohibit reducing the disposal site area by more than 50% of the area required based on the permitted flow. The applicant must have a disposal site area that can receive at least 50% of the permitted flow, even if 100% of the effluent is used as reclaimed water. If an applicant who was granted a beneficial reuse credit in a previous permit action requests an increase in permitted flow, they must still satisfy this requirement. This requirement provides a reasonable margin of safety against unauthorized discharges (e.g., if a user is not able to accept reclaimed water).

§222.85, Effluent Quality

The commission amends §222.85(b)(1) to remove redundant language.

§222.127, Storage

The commission adopts §222.127(c) to prohibit the reduction of the required storage. Effluent storage is especially necessary if the disposal site acreage has been reduced by the beneficial reuse credit and the amount of reclaimed water distributed to users declines. Not allowing reductions in effluent storage provides an extra safety measure against unauthorized discharges (e.g., if a user is not able to accept reclaimed water).

§222.157, Soil Sampling

The commission amends §222.157(c) to remove "or extractable" to provide clarity. Acceptable methods that use extractions make it possible to report nutrients on a plant-available basis, which is more meaningful for calculating soil nutrient balances.

§222.159, Operator Licensing

The commission removes §222.159(d) because the compliance period has passed, and all facilities are required to meet the requirement.

Final Regulatory Impact Analysis 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 Texas Government Code, §2001.0225, because it does not meet the definition of a "Major environmental rule" as defined in that statute. Texas Government Code, §2001.0225, applies to major environmental rules the result of which are to exceed standards set by federal law, express requirements of state law, requirements of delegation agreements between the state and federal governments to implement a state and federal program, or rules adopted solely under the general powers of the agency instead of under a specific state law.

A "Major environmental rule" is 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. The adopted rulemaking does 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. The specific intent of the rulemaking is to adopt rules that identify best management practices that achieve the highest practicable level of water conservation and efficiency, including practices, techniques, and technologies that make water use more efficient, by allowing permittees and applicants to rely on the beneficial reuse of treated wastewater as an additional alternative means to dispose of a portion of its treated wastewater when calculating the amount of land required for disposal of wastewater. The adopted rulemaking affects the same class of regulated entities, except that the entities may be able to reduce the dedicated land application acreage that is currently required by rule, which incentivizes and encourages wastewater permittees and applicants to reuse treated wastewater.

The adopted rulemaking modifies the state rules related to subsurface irrigation and land application of treated wastewater. This may have a positive impact on the environment, human health, or public health and safety; however, the adopted rulemaking will not adversely affect the economy, a sector of the economy, productivity, competition, or jobs within the state or a sector of the state. Therefore, the commission concludes that the adopted rulemaking does not meet the definition of a "Major environmental rule."

Furthermore, even if the adopted rulemaking did meet the definition of a "Major environmental rule," it is not subject to Texas Government Code, §2001.0225, because it does not meet any of the four applicable requirements specified in Texas Government Code, §2001.0225(a). Texas Government Code, §2001.0225(a), applies only to a state agency's adoption of a "Major environmental rule" that: 1) exceeds a standard set by federal law, unless state law specifically requires the rule; 2) exceeds an express requirement of state law, unless federal law specifically requires the rule; 3) exceeds a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) is adopted solely under the general powers of the agency instead of under a specific state law.

In this case, the adopted rulemaking does not meet any of the four requirements in Texas Government Code, §2001.0225(a). First, this rulemaking does not exceed standards set by federal law. Second, the adopted rulemaking does not exceed an express requirement of state law, but rather meets the requirements under state law to adopt rules suggesting best management practices for achieving the highest practicable levels of water conservation and efficiency, and regulate more efficiently, the land disposal of treated wastewater by identifying practices, techniques, and technologies that make water use more efficient. Third, the adopted rulemaking does not exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program. Finally, the commission adopts the rulemaking under Texas Water Code, §§5.013, 5.102, 5.103, 5.105, 5.120, 11.1271(e), 26.011, 26.0135, 26.027, 26.034, 26.041, and 26.121. Therefore, the commission does not adopt the rulemaking solely under the commission's general powers.

The commission invited public comment regarding the Draft Regulatory Impact Analysis Determination during the public comment period. No comments were received on the Draft Regulatory Impact Analysis Determination.

Takings Impact Assessment

The commission evaluated the adopted rulemaking and performed an analysis of whether it constitutes a taking under Texas Government Code, §2007.043. The following is a summary of that analysis. The specific purpose of the rulemaking is to adopt rules that identify best management practices that achieve the highest practicable level of water conservation and efficiency by modifying TAC to allow permittees and applicants to rely on the beneficial reuse of treated wastewater as an additional alternative means to dispose of a portion of its treated wastewater when calculating the amount of land required for disposal of wastewater. The rulemaking will substantially advance this stated purpose by adopting language intended to regulate more efficiently the land application of treated wastewater by incentivizing and encouraging wastewater permittees and applicants to reuse treated wastewater.

Promulgation and enforcement of the adopted rules will not be a statutory or constitutional taking of private real property. Specifically, the adopted rulemaking does not apply to or affect any landowner's rights in private real property because it does not burden (constitutionally), restrict, or limit any landowner's right to real property and reduce any property's value by 25% or more beyond that which would otherwise exist in the absence of the regulations. These actions will not affect private real property.

Consistency with the Coastal Management Program

The commission reviewed the adopted rules and found that they are neither identified in Coastal Coordination Act implementation rules, 31 TAC §505.11(b)(2) or (4), nor will they affect any action/authorization identified in Coastal Coordination Act implementation rules, 31 TAC §505.11(a)(6). Therefore, the adopted rules are not subject to the Texas Coastal Management Program (CMP).

The commission invited public comment regarding the consistency with the CMP during the public comment period. No comments were received regarding the CMP.

Public Comment

The commission held a public hearing on July 25, 2019. The comment period closed on July 30, 2019. The commission received comments from Barton Springs Edwards Aquifer Conservation District (BSEACD), City of Austin Intergovernmental Relations (City of Austin), City of Lago Vista, City of Marble Falls, Clean Water Action, Clean Water Action members (638 members), Greater Edwards Aquifer Alliance (GEAA), Green Civil Design, Hill Country Alliance, Lower Colorado River Authority (LCRA), LJA Engineering, League of Women Voters of Texas (LWVTX), Protect Our Water (POW), Representative Erin Zwiener, Save Our Springs (SOS), Wimberley Valley Watershed Association (WVWA), and two individuals. One commenter was in support of the rulemaking and the rest of the commenters were in support of the rulemaking, but suggested changes.

Response to Comments

Comment

One individual expressed support for the rulemaking.

Response

The commission acknowledges this comment. No change was made in response to this comment.

Comment

Clean Water Action, Clean Water Action members, GEAA, Hill Country Alliance, LWVTX, POW, SOS, and WVWA expressed support for proposed §222.83(e), which prohibits reducing the disposal site area by more than 50% of the area required based on the permitted flow and proposed §222.127(c), which prohibits the reduction of the required storage based on beneficial reuse. In order to protect against unauthorized discharge, the maximum reduction limit ensures that land will be available for disposal in case there is more reclaimed water available than can be reused and the prohibition of the reduction of the storage requirement is a critical safeguard in protecting against unauthorized discharge.

Response

The commission acknowledges these comments. No change was made in response to these comments.

Comment

In reference to proposed §222.127(c), which prohibits the reduction of the required storage based on beneficial reuse, the City of Lago Vista and Representative Erin Zwiener suggested allowing the reduction of storage based on beneficial reuse.

LCRA suggested allowing off-site storage at the user's site to count toward the storage requirement because a distributed system of storage with reclaimed water stored at the user's site could reduce storage requirements at the Texas Land Application Permit (TLAP) facility and allow TLAP permittees to expand treatment capacity without an expensive and possibly redundant or unnecessary expansion of the on-site storage at the TLAP facility.

Response

The prohibition of reducing the storage requirement is a necessary precaution to prevent unauthorized discharges in the event there is more reclaimed water than can be applied or when a user no longer needs water from the permitted facility.

The commission explored the option of allowing off-site storage at the site of the user. However, the commission determined this did not provide an adequate safeguard when a user no longer needs water from the permitted facility. Beneficial reuse under 30 TAC Chapter 210 (use of Reclaimed Water) is on an on-demand basis and, therefore, even with a contract, a user can refuse to accept reuse water on any given day, which renders on-site storage from contracted users as temporary and unreliable. Therefore, the prohibition of reducing the storage is necessary to prevent unauthorized discharges in these cases.

No change was made in response to these comments.

Comment

BSEACD, Clean Water Action, Clean Water Action members, GEAA, Hill Country Alliance, LWVTX, POW, SOS, and WVWA recommended adding buffer zone requirements to beneficial reuse sites that are used to demonstrate firm reclaimed water demand.

BCEACD, Clean Water Action, and POW recommended requiring a minimum buffer zone between reuse sites and riparian and aquifer recharge features in order to protect ambient water quality.

GEAA and SOS stated that buffer zone protection is equally important to protect water quality whether the effluent application is through TLAP or beneficial reuse authorization.

SOS suggested applying the same buffer zone requirements from §309.13 (Unsuitable site Characteristics) and §222.81 (Buffer Zone Requirements) to sites that count toward a permittee's beneficial reuse credit.

The City of Marble Falls supported no buffer zone requirements. The City of Marble Falls expressed concern that the implementation of buffer zones could make pursuing a beneficial reuse credit infeasible for many communities.

Response

The commission respectfully disagrees with BSEACD, Clean Water Action, Clean Water Action members, GEAA, Hill Country Alliance, LWVTX, POW, SOS, and WVWA. The rulemaking allows permittees to take credit for beneficial reuse under Chapter 210, but does not amend Chapter 210. If buffer zone requirements were included in this rulemaking, it would not prevent the use of reclaimed water within the buffer zone, it would only prohibit water use data from being included in calculating the beneficial reuse credit.

No change was made in response to these comments.

Comment

GEAA and SOS suggested requiring monitoring of surface water downstream of beneficial reuse areas to assess potential adverse effects from expanded reclaimed water irrigation under the proposed rulemaking. The data gathered could be used in future rulemaking to formulate regulations that protect against any observed water quality degradation from reclaimed water use.

SOS suggested flexible methods and timing that could allow volunteer citizen-scientists to collect water samples or suggest a small application fee for the beneficial reuse credit that could fund a study performed by the TCEQ or an independent entity.

Response

This rulemaking does not address monitoring requirements for Chapter 210 users. Therefore, requiring downstream monitoring is beyond the scope of this rulemaking.

Additionally, the commission foresees multiple complications such as determining where to sample or how many monitoring locations to include, particularly when the user list can change frequently. Further, surface water quality data would not clearly identify the source of degradation due to the nature of non-point sources. No change was made in response to these comments.

Comment

BSEACD, City of Austin, GEAA, LCRA, and SOS suggested a more flexible method of determining firm reclaimed water demand to allow applicants for a new TLAP or an existing facility seeking to expand to serve new growth. SOS recommends a phased approach that allows the permitted flow to increase incrementally as developments are built out. Alternatively, SOS recommends allowing a permittee to submit a water balance for larger tracts to be irrigated to establish firm reclaimed water demand for future use of reclaimed water.

BSEACD and City of Austin recommended allowing less than two years of consecutive data be allowed to demonstrate firm reclaimed water demand for new developments under the following conditions: the application or renewal is sought to support new development; during the initial construction, the new development will include reclaimed water infrastructure (purple pipe) that will be operational at the time of occupancy; and firm reclaimed water demand for the new development is calculated using maximum building occupancies and fixture efficiencies for indoor demands and local precipitation and evapotranspiration data for outdoor demands.

Response

The commission agrees that there may be circumstances under which less than two years of data may be acceptable in demonstrating firm reclaimed water demand. The prohibition of prospective or speculative reclaimed water use to demonstrate firm reclaimed water demand in the proposed rules, at §309.23(h), was changed. Revised §309.23(h) now allows less than two years of data to demonstrate firm reclaimed water demand at the discretion of the executive director. For example, the commission believes a phased approach in increasing the permitted flow as the build-out of reuse infrastructure continues could be a situation where the executive director would allow less than two years of water use data. Additionally, under certain circumstances, a water balance could be used to demonstrate firm reclaimed water demand.

Comment

The City of Lago Vista and City of Marble Falls suggested allowing a 1:1 credit for proved reuse.

Response

The commission respectfully disagrees. The commission determined that counting 80% of the lowest month(s) for calculating the firm reclaimed water demand is a necessary safety factor to account for seasonal variability for outdoor uses. However, the proposed rulemaking does allow for 1:1 credit for proved reuse for indoor uses. No changes were made in response to these comments.

Comment

LJA Engineering suggests considering applying for a beneficial reuse credit be counted as a minor amendment since it would be a reduction in flow to permitted land application areas.

Response

The commission respectfully disagrees. The commission determined that granting a beneficial reuse credit to reduce the land application area is a major amendment because allowing the reduction of the land application area makes the permit less stringent. However, once a permit with a beneficial reuse credit has been issued, changing to a different phase would not require an amendment. Additionally, the commission determined that applying for a beneficial reuse credit would require a major amendment to adequately allow for public notice and public comment. No changes were made in response to this comment.

Comment

An individual commented that there is little information promoting rainwater as a viable alternative to the use of potable water for the purpose of irrigation. The individual believes that harvesting rainwater is a smart option.

Response

The commission agrees that harvesting rainwater is a good alternative to the use of potable water for the purpose of irrigation. However, the TCEQ does not regulate the use of rainwater under Chapter 222 and, therefore, is beyond the scope of this rulemaking. No change was made in response to this comment.

Comment

Green Civil Design suggested that the monthly volume used should only be required for the use being applied for (indoor, outdoor, or both). If the irrigation is metered separately and only outdoor use is being applied for there should not be a requirement to submit indoor use volumes.

Response

The commission agrees with this comment. Monthly volumes are required only for the type of use being applied for. No change was made in response to this comment.

Comment

Green Civil Design stated that some portion of irrigation systems will need to be supplemented with raw or potable water to meet peak demands. This supplementation needs to be considered when total nitrogen application is being evaluated. The total nitrogen should be tested after the mixing point with any supplemented water.

Response

Total nitrogen will be required to be tested at the wastewater treatment plant prior to mixing with any supplemental water. Total nitrogen should not be over-estimated for systems that need to supplement with raw or potable water as long as the volume of reclaimed water delivered to a user or provider, as required by §210.36 (Record Keeping and Reporting). No change was made in response to this comment.

SUBCHAPTER A. GENERAL PROVISIONS

30 TAC §§222.1, 222.3, 222.5

Statutory Authority

The amendments are adopted under Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission, while TWC, §5.102, provides the commission with the authority to carry out its duties and general powers under its jurisdictional authority as provided by TWC, §5.103; TWC, §5.103, which requires the commission to adopt any rule necessary to carry out its powers and duties under the TWC and other laws of the state; TWC, §5.105, which authorizes the commission to adopt rules and policies necessary to carry out its responsibilities and duties under the TWC; TWC, §5.120, which requires the commission to administer the law for the maximum conservation and protection of the environment and natural resources of the state; TWC, §26.011, which provides the commission with the authority to establish the level of quality to be maintained in, and to control the quality of, the water in the state; TWC, §26.0135, which provides the commission with the authority to monitor and assess the water quality of each watershed and river basin in the state; TWC, §26.027, authorizing the commission to issue permits for the discharge of waste or pollutants into or adjacent to water in the state; TWC, §26.034, which provides the commission with the authority, on a case-by-case basis, to review and approve plans and specifications for treatment facilities, sewer systems, and disposal systems that transport, treat, or dispose of primarily domestic wastes; TWC, §26.041, which gives the commission the authority to set standards to prevent the disposal of waste that is injurious to the public health; and TWC, §26.121, which gives the commission the authority to set standards to prohibit unauthorized discharges into or adjacent to water in the state.

The amendments are also adopted under TWC, §11.1271(e), which requires the commission, in conjunction with the Texas Water Development Board, to develop model water conservation programs for different types of water suppliers that suggest best management practices for achieving the highest practicable levels of water conservation and efficiency achievable for each specific type of water supplier.

The amendments implement TWC, §§5.013, 5.102, 5.103, 5.105, 5.120, 11.1271(e), 26.011, 26.0135, 26.027, 26.034, 26.041, and 26.121.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 20, 2019.

TRD-201904961

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: January 9, 2020

Proposal publication date: June 28, 2019

For further information, please call: (512) 239-6812


SUBCHAPTER B. ADMINISTRATIVE PROCEDURES

30 TAC §222.31, §222.33

Statutory Authority

The amendments are adopted under Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission, while TWC, §5.102, provides the commission with the authority to carry out its duties and general powers under its jurisdictional authority as provided by TWC, §5.103; TWC, §5.103, which requires the commission to adopt any rule necessary to carry out its powers and duties under the TWC and other laws of the state; TWC, §5.105, which authorizes the commission to adopt rules and policies necessary to carry out its responsibilities and duties under the TWC; TWC, §5.120, which requires the commission to administer the law for the maximum conservation and protection of the environment and natural resources of the state; TWC, §26.011, which provides the commission with the authority to establish the level of quality to be maintained in, and to control the quality of, the water in the state; TWC, §26.0135, which provides the commission with the authority to monitor and assess the water quality of each watershed and river basin in the state; TWC, §26.027, which authorizes the commission to issue permits for the discharge of waste or pollutants into or adjacent to water in the state; TWC, §26.034 which provides the commission with the authority, on a case-by-case basis, to review and approve plans and specifications for treatment facilities, sewer systems, and disposal systems that transport, treat, or dispose of primarily domestic wastes; TWC, §26.041, which gives the commission the authority to set standards to prevent the disposal of waste that is injurious to the public health; and TWC, §26.121, which gives the commission the authority to set standards to prohibit unauthorized discharges into or adjacent to water in the state.

The amendments are also adopted under TWC, §11.1271(e), which requires the commission, in conjunction with the Texas Water Development Board, to develop model water conservation programs for different types of water suppliers that suggest best management practices for achieving the highest practicable levels of water conservation and efficiency achievable for each specific type of water supplier.

The amendments implement TWC, §§5.013, 5.102, 5.103, 5.105, 5.120, 11.1271(e), 26.011, 26.0135, 26.027, 26.034, 26.041, and 26.121.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 20, 2019.

TRD-201904962

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: January 9, 2020

Proposal publication date: June 28, 2019

For further information, please call: (512) 239-6812


SUBCHAPTER C. SITING REQUIREMENTS AND EFFLUENT LIMITATIONS

30 TAC §§222.73, 222.75, 222.81, 222.83, 222.85, 222.87

Statutory Authority

The amendments are adopted under Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission, while TWC, §5.102, provides the commission with the authority to carry out its duties and general powers under its jurisdictional authority as provided by TWC, §5.103; TWC, §5.103, which requires the commission to adopt any rule necessary to carry out its powers and duties under the TWC and other laws of the state; TWC, §5.105, which authorizes the commission to adopt rules and policies necessary to carry out its responsibilities and duties under the TWC; TWC, §5.120, which requires the commission to administer the law for the maximum conservation and protection of the environment and natural resources of the state; TWC, §26.011, which provides the commission with the authority to establish the level of quality to be maintained in, and to control the quality of, the water in the state; TWC, §26.0135, which provides the commission with the authority to monitor and assess the water quality of each watershed and river basin in the state; TWC, §26.027, authorizing the commission to issue permits for the discharge of waste or pollutants into or adjacent to water in the state; TWC, §26.034, which provides the commission with the authority, on a case-by-case basis, to review and approve plans and specifications for treatment facilities, sewer systems, and disposal systems that transport, treat, or dispose of primarily domestic wastes; TWC, §26.041, which gives the commission the authority to set standards to prevent the disposal of waste that is injurious to the public health; and TWC, §26.121, which gives the commission the authority to set standards to prohibit unauthorized discharges into or adjacent to water in the state.

The amendments are also adopted under TWC, §11.1271(e), which requires the commission, in conjunction with the Texas Water Development Board, to develop model water conservation programs for different types of water suppliers that suggest best management practices for achieving the highest practicable levels of water conservation and efficiency achievable for each specific type of water supplier.

The amendments implement TWC, §§5.013, 5.102, 5.103, 5.105, 5.120, 11.1271(e), 26.011, 26.0135, 26.027, 26.034, 26.041, and 26.121.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 20, 2019.

TRD-201904964

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: January 9, 2020

Proposal publication date: June 28, 2019

For further information, please call: (512) 239-6812


SUBCHAPTER D. DESIGN CRITERIA

30 TAC §§222.115, 222.119, 222.127

Statutory Authority

The amendments are adopted under Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission, while TWC, §5.102, provides the commission with the authority to carry out its duties and general powers under its jurisdictional authority as provided by TWC, §5.103; TWC, §5.103, which requires the commission to adopt any rule necessary to carry out its powers and duties under the TWC and other laws of the state; TWC, §5.105, which authorizes the commission to adopt rules and policies necessary to carry out its responsibilities and duties under the TWC; TWC, §5.120, which requires the commission to administer the law for the maximum conservation and protection of the environment and natural resources of the state; TWC, §26.011, which provides the commission with the authority to establish the level of quality to be maintained in, and to control the quality of, the water in the state; TWC, §26.0135, which provides the commission with the authority to monitor and assess the water quality of each watershed and river basin in the state; TWC, §26.027, authorizing the commission to issue permits for the discharge of waste or pollutants into or adjacent to water in the state; TWC, §26.034, which provides the commission with the authority, on a case-by-case basis, to review and approve plans and specifications for treatment facilities, sewer systems, and disposal systems that transport, treat, or dispose of primarily domestic wastes; TWC, §26.041, which gives the commission the authority to set standards to prevent the disposal of waste that is injurious to the public health; and TWC, §26.121, which gives the commission the authority to set standards to prohibit unauthorized discharges into or adjacent to water in the state.

The amendments are also adopted under TWC, §11.1271(e), which requires the commission, in conjunction with the Texas Water Development Board, to develop model water conservation programs for different types of water suppliers that suggest best management practices for achieving the highest practicable levels of water conservation and efficiency achievable for each specific type of water supplier.

The amendments implement TWC, §§5.013, 5.102, 5.103, 5.105, 5.120, 11.1271(e), 26.011, 26.0135, 26.027, 26.034, 26.041, and 26.121.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 20, 2019.

TRD-201904965

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: January 9, 2020

Proposal publication date: June 28, 2019

For further information, please call: (512) 239-6812


SUBCHAPTER E. OPERATIONS AND MAINTENANCE

30 TAC §§222.157, 222.159, 222.163

Statutory Authority

The amendments are adopted under Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission, while TWC, §5.102, provides the commission with the authority to carry out its duties and general powers under its jurisdictional authority as provided by TWC, §5.103; TWC, §5.103, which requires the commission to adopt any rule necessary to carry out its powers and duties under the TWC and other laws of the state; TWC, §5.105, which authorizes the commission to adopt rules and policies necessary to carry out its responsibilities and duties under the TWC; TWC, §5.120, which requires the commission to administer the law for the maximum conservation and protection of the environment and natural resources of the state; TWC, §26.011, which provides the commission with the authority to establish the level of quality to be maintained in, and to control the quality of, the water in the state; TWC, §26.0135, which provides the commission with the authority to monitor and assess the water quality of each watershed and river basin in the state; TWC, §26.027, authorizing the commission to issue permits for the discharge of waste or pollutants into or adjacent to water in the state; TWC, §26.034, which provides the commission with the authority, on a case-by-case basis, to review and approve plans and specifications for treatment facilities, sewer systems, and disposal systems that transport, treat, or dispose of primarily domestic wastes; TWC, §26.041, which gives the commission the authority to set standards to prevent the disposal of waste that is injurious to the public health; and TWC, §26.121, which gives the commission the authority to set standards to prohibit unauthorized discharges into or adjacent to water in the state.

The amendments are also adopted under TWC, §11.1271(e), which requires the commission, in conjunction with the Texas Water Development Board, to develop model water conservation programs for different types of water suppliers that suggest best management practices for achieving the highest practicable levels of water conservation and efficiency achievable for each specific type of water supplier.

The amendments implement TWC, §§5.013, 5.102, 5.103, 5.105, 5.120, 11.1271(e), 26.011, 26.0135, 26.027, 26.034, 26.041, and 26.121.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 20, 2019.

TRD-201904967

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: January 9, 2020

Proposal publication date: June 28, 2019

For further information, please call: (512) 239-6812


CHAPTER 309. DOMESTIC WASTEWATER EFFLUENT LIMITATION AND PLANT SITING

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts amendments to §§309.1 - 309.4, 309.10 - 309.14, and 309.20; and new §§309.21 - 309.25.

New §309.23 and §309.25 are adopted with changes to the proposed text as published in the June 28, 2019, issue of the Texas Register (44 TexReg 3239), and, therefore, will be republished. The amendments to §§309.1 - 309.4, 309.10 - 309.14, and 309.20; and new §§309.21, 309.22, and 309.24 are adopted without changes to the proposed text as published and, therefore, will not be republished.

Background and Summary of the Factual Basis for the Adopted Rules

On March 14, 2016, the commission received a petition from the City of Austin (petitioner). The petitioner requested that the commission initiate rulemaking to amend 30 TAC Chapters 222 and 309 (Project Number 2016-033-PET-NR). The rulemaking would allow permittees and applicants to rely on the beneficial reuse of treated wastewater when calculating the amount of land required for land application of treated wastewater. This would allow permittees and applicants to reduce the acreage dedicated for land application that is currently required by rule. The commission approved the petition to initiate rulemaking with stakeholder involvement. The executive director held a stakeholder meeting on August 9, 2016, and the public was invited to comment on the petition. The public comment period was from August 28, 2016 through October 28, 2016.

Based on information presented at the stakeholder meeting, the executive director understands that the petition was made in response to increasing demands on water supplies and decreasing availability of contiguous or neighboring tracts of land that are large enough for domestic wastewater land application under the commission's current rules. This trend is currently appearing in parts of Central Texas where wastewater discharge to water in the state is restricted by the commission's rules and land application of treated wastewater may be the only permissible option. The executive director recognizes that land availability may also be limited in other parts of the state, and that practicable land application options are especially important wherever discharge to water in the state is restricted or infeasible.

The adopted revisions in this chapter and the corresponding adopted revisions in Chapter 222 will allow a reduction in the acreage required for land application of treated effluent by applying a "Beneficial reuse credit" to reduce the flow when calculating the required land application area. An applicant could also request to use a beneficial reuse credit to increase the permitted flow without reducing the land application acreage or to use a beneficial reuse credit to reduce the acreage and increase the permitted flow. The beneficial reuse credit will be based on the demonstrated firm reclaimed water demand. The effluent storage size required by Chapter 309 may not be reduced by the beneficial reuse credit. Adopted new §§309.21 - 309.25 will establish the criteria for demonstrating firm reclaimed water demand, the procedure for calculating and applying the beneficial reuse credit, and the requirements for a permittee who has been granted a beneficial reuse credit. The adopted amendments also correct inaccurate or outdated references to TAC or provide additional clarity.

Section by Section Discussion

The commission amends Chapter 309 to replace the term "disposal" with "land application" or "application" throughout to reflect that wastewater is beneficially applied and not just disposed of via land.

The commission amends Chapter 309 to replace the term "waste" with "wastewater" throughout to clarify that regulations in this chapter apply to wastewater.

The commission amends Chapter 309 to change surface water and groundwater to "water in the state" to be consistent with the definition of "water in the state" in Texas Water Code (TWC), §26.001.

The commission amends Chapter 309 to update references to ensure current and accurate cross-references, improve readability, improve rule structure, and use consistent terminology. These changes are non-substantive and may not specifically be discussed in the Section by Section Discussion of this preamble.

§309.3, Application of Effluent Sets

The commission amends §309.3(f)(2) to separate existing paragraph (2) into §309.3(f)(2)(A) and (B) to make it clear when Effluent Set 1 and Effluent Set 6 apply.

The commission amends §309.3 to move §309.3(f)(7) to §309.3(f) to define primary treatment prior to use in subsection (f).

§309.10, Purpose, Scope, and Applicability

The commission amends §309.10 to replace the word "chapter" with the word "subchapter" throughout the section. The contents of the section are intended to apply to Subchapter B but not to Subchapters A and C.

§309.11, Definitions

The commission amends §309.11 to replace the word "chapter" with the word "subchapter" in the introductory paragraph. The terms defined in the section were not used in Subchapters A and C and were intended to apply in Subchapter B only. This change constrains applicability of the defined to terms to Subchapter B, which also helps ensure clear understanding and applicability of terms defined and used in adopted Subchapter D.

§309.12, Site Selection to Protect Water in the State

The commission amends §309.12 to change the title from "Site Selection To Protect Groundwater or Surface Water" to "Site Selection to Protect Water in the State" to be consistent with the definition of water in the state in TWC, §26.001.

§309.13, Unsuitable Site Characteristics

The commission amends §309.13(c)(1) - (3) and (5) to clarify that the requirements apply to both surface and subsurface irrigation sites and to ensure consistency with the rules in 30 TAC Chapter 290 (Public Drinking Water). The rule applies to all wastewater irrigation systems, including the soil absorption systems identified in the existing rule.

The commission amends §309.13(d) to change the required thickness for a synthetic liner for a wastewater facility surface impoundment located above a recharge zone of a major or minor aquifer from 30 mils to 40 mils to be consistent with the requirements in 30 TAC Chapter 217 (Design Criteria for Domestic Wastewater Systems).

§309.20, Land Application of Sewage Effluent

The commission amends §309.20 to change the title from "Land Disposal of Sewage Effluent" to "Land Application of Sewage Effluent." The term "land application" clarifies that the section is for beneficial application of wastewater rather than disposal via land.

The commission amends §309.20 to move §309.20(b)(3)(B) before Figure: 30 TAC §309.20(b)(3)(A) to improve readability. The commission consolidates Tables 1 - 3 into the same figure, Figure: 30 TAC §309.20(b)(3)(B).

The commission amends §309.20(b)(4) to correct a reference to parameters listed in paragraph (3)(C) to instead reference the parameters listed earlier in the paragraph.

§309.21, Purpose, Scope, and Applicability

The commission adopts new §309.21(a) to state the purpose and scope of the adopted Subchapter D (Beneficial Reuse Credit).

The commission adopts new §309.21(b) to specify that the rules in adopted Subchapter D apply to an entity who applies for or holds a Texas Land Application Permit (TLAP) for land application of treated domestic wastewater and is seeking to include a beneficial reuse credit in the permit. The adopted subchapter also applies to an entity who holds a permit that includes a beneficial reuse credit. Adopted Subchapter D is intended to give flexibility where discharge to water in the state is restricted by commission rules or is otherwise infeasible.

The commission adopts new §309.21(c)(1) to establish that the rules in adopted Subchapter D do not apply to a facility that is authorized to discharge under a Texas Pollutant Discharge Elimination System (TPDES) permit issued under 30 TAC Chapter 305 (Consolidated Permits). The executive director determined that since facilities authorized to discharge are not subject to the same land constraints as facilities that must dispose of their treated wastewater by land application, adopted Subchapter D should not apply to facilities authorized to discharge.

The commission adopts new §309.21(c)(2) to establish that the rules in adopted Subchapter D do not apply to industrial facilities. The executive director determined that industries have flexibility through 30 TAC Chapter 210, Subchapter E (Special Requirements for Use of Industrial Reclaimed Water), that is not available to domestic wastewater treatment facilities which, by necessity, are bound to the populated areas they serve.

The commission adopts new §309.21(d) to clearly state that adopted Subchapter D does not allow the discharge of wastewater or reclaimed water to water in the state. The adopted language specifically states that a discharge from a pond or storage unit at the user's site directly resulting from rainfall events is considered an unauthorized discharge. This encourages a user to properly manage the reuse water they receive from the permittee. Adopted Subchapter D does not affect whether a discharge of wastewater or reclaimed water to water in the state is subject to applicable enforcement action under other law and rules.

§309.22, Definitions

The commission adopts new §309.22(1) and (2) to define "Beneficial reuse credit" and "Firm reclaimed water demand." The adopted definitions are necessary to establish the concept of the beneficial reuse credit adopted in Subchapter D. The beneficial reuse credit reduces the amount of flow used for calculating the required land application area. The firm reclaimed water demand is the amount of water used by the permittee or authorized users for beneficial reuse and is used to calculate the beneficial reuse credit.

The commission adopts new §309.22(3) to define "Reclaimed water" to establish usage of the term as it relates to adopted Subchapter D and maintain consistency with Chapter 210 (Use of Reclaimed Water).

The commission adopts new §309.22(4) to define "Total monthly volume" to clarify how to calculate the beneficial reuse credit in adopted §309.24.

The commission adopts new §309.22(5) to define "Total nitrogen" and establish the composition of the pollutant to be tested in the treated effluent as required in adopted §309.25(c), discussed later in this preamble.

The commission adopts new §309.22(6) to define "User" as the term is defined in Chapter 210 for consistency and to establish usage of the term as it relates to adopted Subchapter D.

The commission adopts new §309.22(7) to define "Water use data" to clarify that data used in demonstrating firm reclaimed water demand may be reclaimed water use data or potable water use data from a user who commits to substituting reclaimed water for existing potable water use.

§309.23, Demonstrating Firm Reclaimed Water Demand

The commission adopts new §309.23(a) to establish the requirement to submit five years of consecutive data for each user, if available, to demonstrate firm reclaimed water demand. If five years of data is not available, a minimum of two consecutive years of water use data is required. The executive director determined that at least two years of water data is necessary to support a user's demand as firm. Data submitted must be from the period immediately preceding the date the application is received.

The commission adopts new §309.23(b) to require the applicant to report the total monthly volume of water used. The applicant shall segregate indoor uses and outdoor uses in the monthly volumes submitted. The executive director needs this information to determine the beneficial reuse credit.

The commission adopts new §309.23(c) to clarify that water use data submitted for establishing firm reclaimed water demand may be from water use by the applicant or from other users. Contractual agreements with users for reclaimed water must be for a minimum term of five years to reasonably ensure that the user intends to use reclaimed water for the five-year term of the permit.

The commission adopts new §309.23(d) to require water use data submitted for establishing firm reclaimed water demand to be for the same type of use proposed. For example, if a user commits to using reclaimed water instead of potable water for toilet flushing at a particular facility, then the water use data must be for toilet flushing at that facility.

The commission adopts new §309.23(e) to specify the requirements for water use data submitted for establishing firm reclaimed water demand for each user: the amount of water used, the type of use, and the number of acres irrigated, if for an outdoor use. The amount of water used and type of use is necessary for calculating the beneficial reuse credit, as discussed later in this preamble. The number of acres irrigated for outdoor uses is necessary for estimating the application rate of reclaimed water.

The commission adopts new §309.23(f) to provide that the executive director may exclude a user's water data if the executive director determines that the user's water data is unreliable due to the user's noncompliance with state laws, rules, or permit conditions within the five-year period immediately preceding the date the application is received.

The commission adopts new §309.23(g) to provide that the executive director may deny a beneficial reuse credit if the applicant has had a violation that resulted in an enforcement action in the five-year period immediately preceding the date the application is received. All permit applications are subject to a compliance history review, as stated in 30 TAC Chapter 60 (Compliance History). The adopted rule ensures the executive director the discretion to consider an applicant's compliance history when reviewing a request for a beneficial reuse credit.

The commission adopts new §309.23(h) to allow less than two years of water use data to demonstrate firm reclaimed water demand at the discretion of the executive director. Less than two years of water use data may be considered when demonstrating firm reclaimed water demand, if the executive director determines that the data is reliable. For example, an entity that is building reclaimed water infrastructure may receive a phased permit that increases the permitted flow as the reclaimed water infrastructure is built-out. Additionally, under certain circumstances the executive director may accept a water balance to demonstrate firm reclaimed water demand. At adoption, §309.23(h) was amended in response to public comment. Proposed §309.23(h) prohibited the use of prospective or speculative water use data when applying for a beneficial reuse credit.

§309.24, Calculating and Using Beneficial Reuse Credit

The commission adopts new §309.24(a) to clarify the method for calculating beneficial reuse credit for outdoor uses. The commission adopts §309.24(a)(1) to clarify that, for users with less than five years of water use data, the beneficial reuse credit is calculated as 80% of the lowest single month of total outdoor water use. The commission adopts new §309.24(a)(2) to clarify that, for users with five or more years of water use data, it is calculated as 80% of the average of the lowest three months of total outdoor water use. Water use for outdoor purposes can vary dramatically due to climate and weather, therefore using the lowest month or average of the lowest three months of total water use mitigates some of the seasonal variation in outdoor use. Calculating 80% of the lowest month or lowest three months of total water use provides an additional margin of safety for unforeseen changes in water use rates. Allowing the average of the lowest three months for users with five or more years of data encourages historic or more established users and provides a more accurate representation of their water use.

The commission adopts new §309.24(b) to clarify the method for calculating beneficial reuse credit for indoor uses. The commission adopts new §309.24(b)(1) to clarify that, for users with less than five years of water use data, beneficial reuse credit is calculated as 100% of the lowest month of total water use.

The commission adopts new §309.24(b)(2) to clarify that, for users with five or more years of data, the beneficial reuse credit is calculated as 100% of the average of the lowest three months of total water use data. Water use for indoor purposes is not subject to the same degree of seasonal variation as outdoor use. Using the lowest month or average of the lowest three months of total water accounts for temporal variations, if present. For example, water use data for toilet flushing from a school building may decrease significantly during the summer months. Because indoor use is less variable than outdoor use, 100% of the lowest month or average of the lowest three months of total water use may be used in calculating the beneficial reuse credit. Allowing the average of the lowest three months for users with five or more years of data encourages historic or more established users and provides a more accurate representation of their water use.

The commission adopts new §309.24(c) to allow the beneficial reuse credit to be used when calculating the land application area required based on the hydraulic application rate. The applicant, if granted a beneficial reuse credit by the executive director, may reduce the permitted wastewater flow volume by the beneficial reuse credit when calculating the land application area required based on the hydraulic application rate for facilities that are regulated under Chapters 222 and 309. This allows an entity to reduce the required size of the land application site. An applicant could also foreseeably request to use a beneficial reuse credit to increase the permitted flow without changing the land application acreage or to change both the acreage and the permitted flow.

The commission adopts new §309.24(d) to prohibit reducing the land application site area by more than 50% of the area required based on the permitted flow. The applicant must have a land application site area that can receive at least 50% of the permitted flow, even if 100% of the effluent is used as reclaimed water. If an applicant who was granted a beneficial reuse credit in a previous permit action requests an increase in permitted flow, they must still satisfy this requirement. This requirement provides a reasonable margin of safety against unauthorized discharges (e.g., if a user is not able to accept reclaimed water).

The commission adopts new §309.24(e) to prohibit the reduction of the required storage. This applies to facilities that are regulated under Chapters 222 and 309. Effluent storage is especially necessary if the land application site acreage has been reduced by the beneficial reuse credit and the amount of reclaimed water distributed to users declines. Not allowing reductions in effluent storage provides an extra safety measure against unauthorized discharges (e.g., if a user is not able to accept reclaimed water).

The commission adopts new §309.24(f) to allow the use of water use data for a user with less than two years of data to recalculate the beneficial reuse credit during a permit renewal on a case-by-basis. Because changes in users do not require an amendment to the permit, the commission finds it appropriate to allow for newer users with less than two years of water use data to be included in the recalculation of the beneficial reuse credit during a renewal or in keeping track of their beneficial reuse credit.

§309.25, Requirements

The commission adopts new §309.25 to clarify the application requirements for an applicant seeking a beneficial reuse credit.

Adopted new §309.25(a)(1) requires the applicant to provide a list of users and irrigation areas considered in demonstrating firm reclaimed water demand. For users that propose to use the reclaimed water for irrigation, the list must also include the acreage and crops irrigated at each irrigation site. The executive director needs this information for the public record and for review and enforcement of the beneficial reuse credit.

Adopted new §309.25(a)(2) requires the applicant to submit a map of users using the applicant's reclaimed water. The executive director needs this information for the public record and for review and enforcement of the beneficial reuse credit.

Adopted new §309.25(a)(3) requires the applicant to submit the water use data used to calculate firm reclaimed water demand. The executive director will review the water use data for accuracy and eligibility.

Adopted new §309.25(a)(4) allows the executive director to require additional information as needed for reviewing the application. This may include additional information on firm reclaimed water demand users to provide the executive director with the information necessary to appropriately review the application.

Adopted new §309.25(a)(5) requires a permittee to apply for an amendment under Chapter 305 to obtain or change a beneficial reuse credit. For example, increasing the beneficial reuse credit to reduce the size of land application site would require a major amendment because it would make the permit less stringent by reducing the required land application area. Decreasing a beneficial reuse credit without decreasing the permitted flow would require a major amendment if it increases the required size of the land application site, potentially affecting adjacent landowners. Decreasing the beneficial reuse credit and the permitted flow by the same amount would require a minor amendment because this change would not result in less-restrictive permit conditions and would not affect adjacent landowners.

Adopted new §309.25(b)(1) requires an applicant to receive authorization in accordance with Chapter 210 before applying for a beneficial reuse credit. This requirement ensures that the applicant is an authorized provider of reclaimed water. The commission foresees that a new facility may be able to provide at least two years of data from proposed users and recognizes that a new facility would not be able to obtain authorization under Chapter 210 without an existing permit; therefore, the adopted rule provides that the executive director may temporarily waive the requirement to have a Chapter 210 authorization if a new facility applicant provides the information required to demonstrate firm reclaimed water demand. The adopted rule requires the executive director to phase the permit for a new facility so that the beneficial reuse credit will not become effective until the applicant obtains the authorization required by Chapter 210.

Adopted new §309.25(b)(2) requires the permittee and users, as applicable, to maintain authorization under Chapter 210 during the term of the permit to which the beneficial reuse credit is applied. This requirement prevents unauthorized use of reclaimed water.

Adopted new §309.25(b)(3) limits the wastewater permit term to five years if a beneficial reuse credit has been granted. This requirement results in a more frequent review of the water use data from authorized users and provides a more frequent assessment of the permit requirements, which helps to proactively ensure that a facility that relies on a beneficial reuse credit will be able to operate without causing or contributing to a discharge to water in the state.

Adopted new §309.25(b)(4) requires a permit that includes a beneficial reuse credit to specify both the permitted flow limit (the total flow the facility is permitted to treat) and the flow that may be land applied, which is equal to the permitted flow minus the beneficial reuse credit. Both flow limits are necessary to ensure protection of the environment because they are derived in different ways and are used for different purposes. For example, the permitted flow is based on wastewater generation estimates and is used for treatment facility design, but the land application limit is based on a hydraulic or nutrient application rate suitable for plant uptake during irrigation and is used to determine the required size of the land application site.

Adopted new §309.25(b)(5) requires a permittee that is granted a beneficial reuse credit to have a contractual agreement to pump and haul unused treated effluent and requires the applicant to dispose of excess wastewater under the contractual agreement if: a user no longer needs the reclaimed water, a new user has not been contracted to accept the unused reclaimed water, the storage capacity is not adequate to store the unused reclaimed water, and additional application to the permitted land application area would exceed the permitted application rate or is otherwise prohibited by the permit, such as when the ground is saturated or frozen. The permittee may use an alternate method of disposal previously approved by the executive director. This requirement provides a safety mechanism in case the amount of reclaimed water actually used is less than the firm reclaimed water demand demonstrated when calculating the beneficial reuse credit. A permittee who has been granted a beneficial reuse credit must remain compliant with the application rate authorized in the permit and is not authorized to discharge wastewater into water in the state, even if a reclaimed water user no longer accepts reclaimed water from the permittee.

Adopted new §309.25(b)(6) requires a permittee who is granted a beneficial reuse credit to meet the effluent quality standards for Type II reclaimed water, as described in §210.33 (Quality Criteria and Specific Uses for Reclaimed Water). This rule will require the effluent limits appropriate for Type II reclaimed water to be incorporated into the permit. Failure to meet the effluent limits is a permit violation that may be subject to enforcement action. These limits are necessary to protect human health and the environment.

Adopted new §309.25(c)(1) requires a permittee who has been granted a beneficial reuse credit to notify the executive director of any changes in users or irrigation areas within 30 days after the change. This requirement provides the commission with accurate information on the users of reclaimed water. A change in users or in areas used for outdoor use is not an amendment to the permit.

Adopted new §309.25(c)(2) requires a permittee that has been granted a beneficial reuse credit to maintain monthly data of the amount of reclaimed water used by each user, type of use for each site, acreage of each site for irrigation, crops irrigated at each irrigation sites, and total nitrogen concentration of the treated effluent. This data shall be sent to the executive director by September 30th of each year. The executive director will use the monthly reclaimed water use data, area of irrigation sites, crops irrigated and total nitrogen concentration of the treated effluent to determine whether the beneficial reuse credit is still appropriate and to verify that reclaimed water is not being over-applied on irrigation sites. The permittee shall also submit to the executive director a recalculation of the beneficial reuse credit by September 30th of each year. Recalculating the beneficial reuse credit with the most recent year of data will help the executive director determine whether the beneficial reuse credit is still appropriate. However, the recalculation of the beneficial reuse credit does not change the beneficial reuse credit or the required land application area in the permit unless the permit is amended. As described in adopted new §309.24(f), the permittee may use water use data from users with less than two years of data for recalculating the beneficial reuse credit on a case-by-case basis, but not to change the beneficial reuse credit.

Adopted new §309.25(c)(3) states that if the recalculated beneficial reuse credit is reduced, the executive director may require a permit amendment. This allows the commission to amend permits as necessary to ensure that permits are protective of the environment.

Adopted new §309.25(c)(4) establishes the frequency of total nitrogen testing of the treated effluent. Total nitrogen shall be tested quarterly for the first year to provide a more comprehensive representation of the effluent quality. After the first year, total nitrogen may be sampled annually, upon approval of the executive director. Data on the total nitrogen concentration of the effluent, in conjunction with the amount of reclaimed water applied and the acreage of irrigation sites, allows the executive director to calculate the amount of nitrogen applied at outdoor use sites and determine whether nitrogen was over-applied.

Adopted new §309.25(c)(5) requires the permittee to submit their monthly effluent monitoring reports to the executive director. Currently, these reports are required to be maintained on site (for TLAPs) and be made available to commission staff upon request or during a permit action. The adopted rule will require permittees that have been granted a beneficial reuse credit to submit these monthly reports to the executive director, as is already required for TPDES permits. The adopted rule is necessary to verify that the permittee complies with adopted §309.25(b)(6) pertaining to effluent quality.

Adopted new §309.25(c)(6) states that the executive director may require additional limitations or more frequent testing based on the results submitted annually and with the application on a case-by-case basis. At adoption, §309.25(c)(6) was added in response to public comment.

Final Regulatory Impact Analysis 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 Texas Government Code, §2001.0225, because it does not meet the definition of a "Major environmental rule" as defined in that statute. Texas Government Code, §2001.0225, applies to major environmental rules the result of which are to exceed standards set by federal law, express requirements of state law, requirements of a delegation agreements between state and the federal governments to implement a state and federal program, or rules adopted solely under the general powers of the agency instead of under a specific state law.

A "Major environmental rule" is 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. The adopted rulemaking does 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. The specific intent of the rulemaking is to adopt rules that identify best management practices that achieve the highest practicable level of water conservation and efficiency, including practices, techniques, and technologies that make water use more efficient, by allowing permittees and applicants to rely on the beneficial reuse of treated wastewater as an additional alternative means to dispose of a portion of its treated wastewater when calculating the amount of land required for land application of wastewater. The adopted rulemaking affects the same class of regulated entities, except that the entities may be able to reduce the dedicated land application acreage that is currently required by rule, which incentivizes and encourages wastewater permittees and applicants to reuse treated wastewater.

The adopted rulemaking modifies the state rules related to subsurface irrigation and land application of treated wastewater. This may have a positive impact on the environment, human health, or public health and safety; however, the adopted rulemaking will not adversely affect the economy, a sector of the economy, productivity, competition, or jobs within the state or a sector of the state. Therefore, the commission concludes that the adopted rulemaking does not meet the definition of a "Major environmental rule."

Furthermore, even if the adopted rulemaking did meet the definition of a "Major environmental rule," it is not subject to Texas Government Code, §2001.0225, because it does not meet any of the four applicable requirements specified in Texas Government Code, §2001.0225(a). Texas Government Code, §2001.0225(a), applies only to a state agency's adoption of a "Major environmental rule" that: 1) exceeds a standard set by federal law, unless state law specifically requires the rule; 2) exceeds an express requirement of state law, unless federal law specifically requires the rule; 3) exceeds a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) is adopted solely under the general powers of the agency instead of under a specific state law.

In this case, the adopted rulemaking does not meet any of the four requirements in Texas Government Code, §2001.0225(a). First, this rulemaking does not exceed standards set by federal law. Second, the adopted rulemaking does not exceed an express requirement of state law, but rather meets the requirements under state law to adopt rules suggesting best management practices for achieving the highest practicable levels of water conservation and efficiency, and regulate more efficiently, the land application of treated wastewater by identifying practices, techniques, and technologies that make water use more efficient. Third, the adopted rulemaking does not exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program. Finally, the commission adopts the rulemaking under TWC, §§5.013, 5.102, 5.103, 5.105, 5.120, 11.1271(e), 26.011, 26.0135, 26.027, 26.034, 26.041, and 26.121. Therefore, the commission does not adopt the rulemaking solely under the commission's general powers.

The commission invited public comment regarding the Draft Regulatory Impact Analysis Determination during the public comment period. No comments were received on the Draft Regulatory Impact Analysis Determination.

Takings Impact Assessment

The commission evaluated the adopted rulemaking and performed an analysis of whether it constitutes a taking under Texas Government Code, §2007.043. The following is a summary of that analysis. The specific purpose of the rulemaking is to adopt rules that identify best management practices that achieve the highest practicable level of water conservation and efficiency by modifying TAC to allow permittees and applicants to rely on the beneficial reuse of treated wastewater as an additional alternative means to dispose of a portion of its treated wastewater when calculating the amount of land required for land application of wastewater. The rulemaking will substantially advance this stated purpose by adopting language intended to regulate more efficiently the land application of treated wastewater by incentivizing and encouraging wastewater permittees and applicants to reuse treated wastewater.

Promulgation and enforcement of the adopted rules will not be a statutory or constitutional taking of private real property. Specifically, the adopted rulemaking does not apply to or affect any landowner's rights in private real property because it does not burden (constitutionally), restrict, or limit any landowner's right to real property and reduce any property's value by 25% or more beyond that which would otherwise exist in the absence of the regulations. These actions will not affect private real property.

Consistency with the Coastal Management Program

The commission reviewed the adopted rulemaking and found the rulemaking is identified in the Coastal Coordination Act implementation rules, 31 TAC §505.11(b)(2) (Actions and Rules Subject to the Coastal Management Program), and will, therefore, require that 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 will not affect any coastal natural resource areas because the rules only affect counties outside the CMP area 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. No comments were received regarding the consistency with the CMP.

Public Comment

The commission held a public hearing on July 25, 2019. The comment period closed on July 30, 2019. The commission received comments from Barton Springs Edwards Aquifer Conservation District (BSEACD), City of Austin Intergovernmental Relations (City of Austin), City of Lago Vista, City of Marble Falls, Clean Water Action, Clean Water Action members (638 members), Greater Edwards Aquifer Alliance (GEAA), Green Civil Design, Hill Country Alliance, Lower Colorado River Authority (LCRA), LJA Engineering, League of Women Voters of Texas (LWVTX), Protect Our Water (POW), Representative Erin Zwiener, Save Our Springs (SOS), Wimberley Valley Watershed Association (WVWA), and two individuals. One commenter was in support of the rulemaking and the rest of the commenters were in support of the rulemaking, but suggested changes.

Response to Comments

Comment

One individual expressed support for the rulemaking.

Response

The commission acknowledges this comment. No change was made in response to this comment.

Comment

Clean Water Action, Clean Water Action members, GEAA, Hill Country Alliance, LWVTX, POW, SOS, and WVWA expressed support for new §309.24(d), which prohibits reducing the disposal site area by more than 50% of the area required based on the permitted flow and new §309.24(e), which prohibits the reduction of the required storage based on beneficial reuse. In order to protect against unauthorized discharge, the maximum reduction limit ensures that land will be available for disposal in case there is more reclaimed water available than can be reused and the prohibition of the reduction of the storage requirement is a critical safeguard in protecting against unauthorized discharge.

Response

The commission acknowledges these comments. No change was made in response to these comments.

Comment

In reference to new §309.24(e), which prohibits the reduction of the required storage based on beneficial reuse, the City of Lago Vista and Representative Erin Zwiener suggested allowing the reduction of storage based on beneficial reuse.

LCRA suggested allowing off-site storage at the user's site to count toward the storage requirement because a distributed system of storage with reclaimed water stored at the user's site could reduce storage requirements at the TLAP facility and allow TLAP permittees to expand treatment capacity without an expensive and possibly redundant or unnecessary expansion of the on-site storage at the TLAP facility.

Response

The prohibition of reducing the storage requirement is a necessary precaution to prevent unauthorized discharges in the event there is more reclaimed water than can be applied or when a user no longer needs water from the permitted facility.

The commission explored the option of allowing off-site storage at the site of the user. However, the commission determined this did not provide an adequate safeguard when a user no longer needs water from the permitted facility. Beneficial reuse under Chapter 210 is on an on-demand basis and, therefore, even with a contract, a user can refuse to accept reuse water on any given day, which renders on-site storage from contracted users as temporary and unreliable. Therefore, the prohibition of reducing the storage is necessary to prevent unauthorized discharges in these cases.

No change was made in response to these comments.

Comment

Clean Water Action, Clean Water Action members, GEAA, Hill Country Alliance, LWVTX, POW, SOS, and WVWA expressed support for new §309.25(b)(5) that requires the permittee that is granted a beneficial reuse credit to have a contractual agreement to pump and haul unused treated effluent and requires the permittee to dispose of excess wastewater under the contractual agreement. This will guarantee that a permittee has a plan in place to dispose of excess effluent and prevent an unauthorized discharge.

Response

The commission acknowledges these comments. No change was made in response to these comments.

Comment

Clean Water Action, Clean Water Action members, GEAA, Hill Country Alliance, LWVTX, POW, SOS, and WVWA expressed support for new §309.25(c)(5) that requires the permittee to submit their monthly effluent monitoring reports to the executive director. Currently, records regarding flow rates, irrigation volumes, and effluent quality are maintained by operators on-site and, therefore, the public does not have opportunity to review data except during contested case hearings. The availability of wastewater irrigation records for review by TCEQ staff and the public will increase operational accountability.

Response

The commission acknowledges these comments. No change was made in response to these comments.

Comment

Clean Water Action, Clean Water Action members, GEAA, Hill Country Alliance, LWVTX, POW, SOS, and WVWA recommended strengthening §309.25(b)(6) that requires more stringent effluent limitations than Type II reclaimed water. The commenters expressed concern that the Type II effluent limitations are not sufficient to adequately protect surface water quality and request additional effluent standards that would not adversely impact sensitive creeks and streams, especially by minimizing the discharge of nitrogen and phosphorus.

SOS suggested higher treatment standards for reclaimed water being irrigated in the contributing zone of the Edwards Aquifer, particularly limits on nitrogen and phosphorus. Increases in these nutrients can cause algae blooms, lower dissolved oxygen levels, and harm to aquatic life in surface streams, springs, and groundwater.

GEAA and SOS stated that the City of Austin has performed studies that show nutrient increases in streams downstream of TLAP irrigation sites and, therefore, recommend nutrient loading standards similar to those for TLAPs be implemented for all irrigated beneficial reuse to prevent that degradation. Where a nutrient load calculation indicates the potential for application rates higher than what can be used by vegetation, effluent nutrient reduction should be required prior to beneficial reuse for landscape irrigation. SOS attached a copy of a study the City of Austin performed, "Reclaimed Water Irrigation Water Quality Impact Assessment" (April 2016).

Response

The rulemaking includes Type II requirements as a minimum for facilities that are granted a beneficial reuse credit. The TCEQ has determined that requiring Type I for all permittees that are granted a beneficial reuse credit is unnecessary since not all users will be Type I. However, if the permittee provides reclaimed water for Type I reuse, the permittee would still be responsible for further treatment to the Type I standards.

The commission respectfully disagrees that limitations for nutrients should be added to all permits with a beneficial reuse credit. However, §309.25(c)(6) has been added to the rulemaking to state that the commission may require additional limitations or more frequent testing based on the results submitted annually and with the application on a case-by-case basis.

Comment

BSEACD, Clean Water Action, Clean Water Action members, GEAA, Hill Country Alliance, LWVTX, POW, SOS, and WVWA recommended adding buffer zone requirements to beneficial reuse sites that are used to demonstrate firm reclaimed water demand.

BCEACD, Clean Water Action, and POW recommended requiring a minimum buffer zone between reuse sites and riparian and aquifer recharge features in order to protect ambient water quality.

GEAA and SOS stated that buffer zone protection is equally important to protect water quality whether the effluent application is through TLAP or beneficial reuse authorization.

SOS suggested applying the same buffer zone requirements from §309.13 (Unsuitable Site Characteristics) and §222.81 (Buffer Zone Requirements) to sites that count toward a permittee's beneficial reuse credit.

The City of Marble Falls supported no buffer zone requirements. The City of Marble Falls expressed concern that the implementation of buffer zones could make pursuing a beneficial reuse credit infeasible for many communities.

Response

The commission respectfully disagrees with BSEACD, Clean Water Action, Clean Water Action members, GEAA, Hill Country Alliance, LWVTX, POW, SOS, and WVWA. The rulemaking allows permittees to take credit for beneficial reuse under Chapter 210, but does not amend Chapter 210. If buffer zone requirements were included in this rulemaking, it would not prevent the use of reclaimed water within the buffer zone, it would only prohibit water use data from being included in calculating the beneficial reuse credit.

No change was made in response to these comments.

Comment

GEAA and SOS suggested requiring monitoring of surface water downstream of beneficial reuse areas to assess potential adverse effects from expanded reclaimed water irrigation under the proposed rulemaking. The data gathered could be used in future rulemaking to formulate regulations that protect against any observed water quality degradation from reclaimed water use.

SOS suggested flexible methods and timing that could allow volunteer citizen-scientists to collect water samples or suggest a small application fee for the beneficial reuse credit that could fund a study performed by the TCEQ or an independent entity.

Response

This rulemaking does not address monitoring requirements for Chapter 210 users. Therefore, requiring downstream monitoring is beyond the scope of this rulemaking.

Additionally, the commission foresees multiple complications such as determining where to sample or how many monitoring locations to include, particularly when the user list can change frequently. Further, surface water quality data would not clearly identify the source of degradation due to the nature of non-point sources. No change was made in response to these comments.

Comment

BSEACD, City of Austin, GEAA, LCRA, and SOS suggested a more flexible method of determining firm reclaimed water demand to allow applicants for a new TLAP or an existing facility seeking to expand to serve new growth. SOS recommends a phased approach that allows the permitted flow to increase incrementally as developments are built out. Alternatively, SOS recommends allowing a permittee to submit a water balance for larger tracts to be irrigated to establish firm reclaimed water demand for future use of reclaimed water.

BSEACD and City of Austin recommended allowing less than two years of consecutive data be allowed to demonstrate firm reclaimed water demand for new developments under the following conditions: the application or renewal is sought to support new development; during the initial construction, the new development will include reclaimed water infrastructure (purple pipe) that will be operational at the time of occupancy; and firm reclaimed water demand for the new development is calculated using maximum building occupancies and fixture efficiencies for indoor demands and local precipitation and evapotranspiration data for outdoor demands.

Response

The commission agrees that there may be circumstances under which less than two years of data may be acceptable in demonstrating firm reclaimed water demand. The prohibition of prospective or speculative reclaimed water use to demonstrate firm reclaimed water demand in proposed §309.23(h), was changed at adoption. Revised §309.23(h) allows less than two years of data to demonstrate firm reclaimed water demand at the discretion of the executive director. For example, the commission believes a phased approach in increasing the permitted flow as the build-out of reuse infrastructure continues could be a situation where the executive director would allow less than two years of water use data. Additionally, under certain circumstances, a water balance could be used to demonstrate firm reclaimed water demand.

Comment

SOS expressed support for new §309.21(d) which considers a discharge from a user's pond or storage unit that is directly resulting from a rainfall event an unauthorized discharge. SOS stated this rule is important to close a potential loophole that would otherwise allow users to dispose of wastewater via "accidental" discharge.

Response

The commission acknowledges this comment. No change was made in response to this comment.

Comment

The City of Lago Vista and City of Marble Falls suggested allowing a 1:1 credit for proved reuse.

Response

The commission respectfully disagrees. The commission determined that counting 80% of the lowest month(s) for calculating the firm reclaimed water demand is a necessary safety factor to account for seasonal variability for outdoor uses. However, the adopted rulemaking does allow for 1:1 credit for proved reuse for indoor uses. No change was made in response to these comments.

Comment

LJA Engineering suggests considering applying for a beneficial reuse credit be counted as a minor amendment since it would be a reduction in flow to permitted land application areas.

Response

The commission respectfully disagrees. The commission determined that granting a beneficial reuse credit to reduce the land application area is a major amendment because allowing the reduction of the land application area makes the permit less stringent. However, once a permit with a beneficial reuse credit has been issued, changing to a different phase would not require an amendment. Additionally, the commission determined that applying for a beneficial reuse credit would require a major amendment to adequately allow for public notice and public comment. No change was made in response to this comment.

Comment

An individual commented that there is little information promoting rainwater as a viable alternative to the use of potable water for the purpose of irrigation. The individual believes that harvesting rainwater is a smart option.

Response

The commission agrees that harvesting rainwater is a good alternative to the use of potable water for the purpose of irrigation. However, the commission does not regulate the use of rainwater under Chapter 309 and, therefore, is beyond the scope of this rulemaking. No change was made in response to this comment.

Comment

Green Civil Design suggested that the monthly volume used should only be required for the use being applied for (indoor, outdoor, or both). If the irrigation is metered separately and only outdoor use is being applied for there should not be a requirement to submit indoor use volumes.

Response

The commission agrees with this comment. Monthly volumes are required only for the type of use being applied for. No change was made in response to this comment.

Comment

Green Civil Design stated that some portion of irrigation systems will need to be supplemented with raw or potable water to meet peak demands. This supplementation needs to be considered when total nitrogen application is being evaluated. The total nitrogen should be tested after the mixing point with any supplemented water.

Response

Total nitrogen will be required to be tested at the wastewater treatment plant prior to mixing with any supplemental water. Total nitrogen should not be over-estimated for systems that need to supplement with raw or potable water as long as the volume of reclaimed water delivered to a user or provider, as required by §210.36 (Record Keeping and Reporting). No change was made in response to this comment.

SUBCHAPTER A. EFFLUENT LIMITATIONS

30 TAC §§309.1 - 309.4

Statutory Authority

The amendments are adopted under Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission, while TWC, §5.102, provides the commission with the authority to carry out its duties and general powers under its jurisdictional authority as provided by TWC, §5.103; TWC, §5.103, which requires the commission to adopt any rule necessary to carry out its powers and duties under the TWC and other laws of the state; TWC, §5.105, which authorizes the commission to adopt rules and policies necessary to carry out its responsibilities and duties under the TWC; TWC, §5.120, which requires the commission to administer the law for the maximum conservation and protection of the environment and natural resources of the state; TWC, §26.011, which provides the commission with the authority to establish the level of quality to be maintained in, and to control the quality of, the water in the state; TWC, §26.0135, which provides the commission with the authority to monitor and assess the water quality of each watershed and river basin in the state; TWC, §26.027, which authorizes the commission to issue permits for the discharge of wastewater or pollutants into or adjacent to water in the state; TWC, §26.034, which provides the commission with the authority, on a case-by-case basis, to review and approve plans and specifications for treatment facilities, sewer systems, and disposal systems that transport, treat, or dispose of primarily domestic wastes; TWC, §26.041, which gives the commission the authority to set standards to prevent the disposal of wastewater that is injurious to the public health; and TWC, §26.121, which gives the commission the authority to set standards to prohibit unauthorized discharges into or adjacent to water in the state.

The amendments are also adopted under TWC, §11.1271(e), which requires the commission, in conjunction with the Texas Water Development Board, to develop model water conservation programs for different types of water suppliers that suggest best management practices for achieving the highest practicable levels of water conservation and efficiency achievable for each specific type of water supplier.

The amendments implement TWC, §§5.013, 5.102, 5.103, 5.105, 5.120, 11.1271(e), 26.011, 26.0135, 26.027, 26.034, 26.041, and 26.121.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 20, 2019.

TRD-201904968

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: January 9, 2020

Proposal publication date: June 28, 2019

For further information, please call: (512) 239-6812


SUBCHAPTER B. LOCATION STANDARDS

30 TAC §§309.10 - 309.14

Statutory Authority

The amendments are adopted under Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission, while TWC, §5.102, provides the commission with the authority to carry out its duties and general powers under its jurisdictional authority as provided by TWC, §5.103; TWC, §5.103, which requires the commission to adopt any rule necessary to carry out its powers and duties under the TWC and other laws of the state; TWC, §5.105, which authorizes the commission to adopt rules and policies necessary to carry out its responsibilities and duties under the TWC; TWC, §5.120, which requires the commission to administer the law for the maximum conservation and protection of the environment and natural resources of the state; TWC, §26.011, which provides the commission with the authority to establish the level of quality to be maintained in, and to control the quality of, the water in the state; TWC, §26.0135, which provides the commission with the authority to monitor and assess the water quality of each watershed and river basin in the state; TWC, §26.027, which authorizes the commission to issue permits for the discharge of wastewater or pollutants into or adjacent to water in the state; TWC, §26.034, which provides the commission with the authority, on a case-by-case basis, to review and approve plans and specifications for treatment facilities, sewer systems, and disposal systems that transport, treat, or dispose of primarily domestic wastes; TWC, §26.041, which gives the commission the authority to set standards to prevent the disposal of wastewater that is injurious to the public health; and TWC, §26.121, which gives the commission the authority to set standards to prohibit unauthorized discharges into or adjacent to water in the state.

The amendments are also adopted under TWC, §11.1271(e), which requires the commission, in conjunction with the Texas Water Development Board, to develop model water conservation programs for different types of water suppliers that suggest best management practices for achieving the highest practicable levels of water conservation and efficiency achievable for each specific type of water supplier.

The amendments implement TWC, §§5.013, 5.102, 5.103, 5.105, 5.120, 11.1271(e), 26.011, 26.0135, 26.027, 26.034, 26.041, and 26.121.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 20, 2019.

TRD-201904969

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: January 9, 2020

Proposal publication date: June 28, 2019

For further information, please call: (512) 239-6812


SUBCHAPTER C. LAND APPLICATION OF SEWAGE EFFLUENT

30 TAC §309.20

Statutory Authority

The amendment is adopted under Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission, while TWC, §5.102, provides the commission with the authority to carry out its duties and general powers under its jurisdictional authority as provided by TWC, §5.103; TWC, §5.103, which requires the commission to adopt any rule necessary to carry out its powers and duties under the TWC and other laws of the state; TWC, §5.105, which authorizes the commission to adopt rules and policies necessary to carry out its responsibilities and duties under the TWC; TWC, §5.120, which requires the commission to administer the law for the maximum conservation and protection of the environment and natural resources of the state; TWC, §26.011, which provides the commission with the authority to establish the level of quality to be maintained in, and to control the quality of, the water in the state; TWC, §26.0135, which provides the commission with the authority to monitor and assess the water quality of each watershed and river basin in the state; TWC, §26.027, which authorizes the commission to issue permits for the discharge of wastewater or pollutants into or adjacent to water in the state; TWC, §26.034, which provides the commission with the authority, on a case-by-case basis, to review and approve plans and specifications for treatment facilities, sewer systems, and disposal systems that transport, treat, or dispose of primarily domestic wastes; TWC, §26.041, which gives the commission the authority to set standards to prevent the disposal of wastewater that is injurious to the public health; and TWC, §26.121, which gives the commission the authority to set standards to prohibit unauthorized discharges into or adjacent to water in the state.

The amendment is also adopted under TWC, §11.1271(e), which requires the commission, in conjunction with the Texas Water Development Board, to develop model water conservation programs for different types of water suppliers that suggest best management practices for achieving the highest practicable levels of water conservation and efficiency achievable for each specific type of water supplier.

The amendment implements TWC, §§5.013, 5.102, 5.103, 5.105, 5.120, 11.1271(e), 26.011, 26.0135, 26.027, 26.034, 26.041, and 26.121.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 20, 2019

TRD-201904970

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: January 9, 2020

Proposal publication date: June 28, 2019

For further information, please call: (512) 239-6812


SUBCHAPTER D. BENEFICIAL REUSE CREDIT

30 TAC §§309.21 - 309.25

Statutory Authority

The new sections are adopted under the Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission, while TWC, §5.102, provides the commission with the authority to carry out its duties and general powers under its jurisdictional authority as provided by TWC, §5.103; TWC, §5.103, which requires the commission to adopt any rule necessary to carry out its powers and duties under the TWC and other laws of the state; TWC, §5.105, which authorizes the commission to adopt rules and policies necessary to carry out its responsibilities and duties under the TWC; TWC, §5.120, which requires the commission to administer the law for the maximum conservation and protection of the environment and natural resources of the state; TWC, §26.011, which provides the commission with the authority to establish the level of quality to be maintained in, and to control the quality of, the water in the state; TWC, §26.0135, which provides the commission with the authority to monitor and assess the water quality of each watershed and river basin in the state; TWC, §26.027, which authorizes the commission to issue permits for the discharge of wastewater or pollutants into or adjacent to water in the state; TWC, §26.034, which provides the commission with the authority, on a case-by-case basis, to review and approve plans and specifications for treatment facilities, sewer systems, and disposal systems that transport, treat, or dispose of primarily domestic wastes; TWC, §26.041, which gives the commission the authority to set standards to prevent the disposal of wastewater that is injurious to the public health; and TWC, §26.121, which gives the commission the authority to set standards to prohibit unauthorized discharges into or adjacent to water in the state.

The new sections are also adopted under TWC, §11.1271(e), which requires the commission, in conjunction with the Texas Water Development Board, to develop model water conservation programs for different types of water suppliers that suggest best management practices for achieving the highest practicable levels of water conservation and efficiency achievable for each specific type of water supplier.

The new sections implement TWC, §§5.013, 5.102, 5.103, 5.105, 5.120, 11.1271(e), 26.011, 26.0135, 26.027, 26.034, 26.041, and 26.121.

§309.23.Demonstrating Firm Reclaimed Water Demand.

(a) The applicant shall submit five years or more of consecutive water use data for each user, if available. If five years of data is not available, the applicant shall submit a minimum of two consecutive years of water use data for each user to demonstrate firm reclaimed water demand. Water use data must be from the period immediately preceding the date the application is received.

(b) The applicant shall submit the total monthly volume of water used by users satisfying subsection (a) of this section for indoor use and outdoor use, respectively.

(c) Water use data can be for reuse conducted by either the applicant or reclaimed water users that have a contract with the applicant to reuse the applicant's reclaimed water. The contract must be for a minimum term of five years.

(d) Water use data must be for the same type of reclaimed water use proposed (for example, a user's landscape irrigation data may not be used to support the user's dust control or toilet flushing use).

(e) For each user, water use data must include:

(1) the amount of water used on a monthly basis;

(2) the type of use of the water at each site; and

(3) the number of acres irrigated at each site, if applicable.

(f) At the discretion of the executive director, a water user's data may not be counted toward the beneficial reuse credit if the executive director determines that the user's water data is unreliable due to the user's noncompliance with state laws, rules, or permit conditions within the five-year period immediately preceding the date the application is received.

(g) At the discretion of the executive director, an applicant may not be eligible for beneficial reuse credit if the applicant has been issued a violation that resulted in an enforcement case within the five-year period immediately preceding the date the application is received.

(h) At the discretion of the executive director, less than two years of water use data may be used to calculate the beneficial reuse credit.

§309.24.Calculating and Using Beneficial Reuse Credit.

(a) For outdoor uses.

(1) For users with less than five years of water use data, the beneficial reuse credit is calculated as 80% of the lowest total monthly volume of water used.

(2) For users with five or more years of water use data, the beneficial reuse credit is calculated as 80% of the average of the three lowest total monthly volumes of water use data submitted for the five years prior to the date the application is submitted. All users must have at least five consecutive years of data when taking the average of the lowest three months.

(b) For indoor uses.

(1) For users with less than five years of water use data, the beneficial reuse credit is calculated as 100% of the lowest total monthly volume of water used.

(2) For users with five or more years of water use data, the beneficial reuse credit is calculated as 100% of the average of the lowest three total monthly volumes of water use data submitted for the five years prior to the date the application is submitted. All users must have at least five consecutive years of data when taking the average of the lowest three months.

(c) When calculating the hydraulic application rate as described in §309.20(b)(3)(A) of this title (relating to Land Application of Sewage Effluent) or §222.83 of this title (relating to Hydraulic Application Rate) for subsurface area drip dispersal systems, the permitted flow may be reduced by the beneficial reuse credit.

(d) The size of the land application site area may not be reduced by more than 50% of the size required when calculating the hydraulic application rate using the permitted flow without the beneficial reuse credit.

(e) When calculating the required effluent storage as described in §309.20(b)(3)(B) of this title or §222.127 of this title (relating to Storage), the permitted flow may not be reduced by the beneficial reuse credit.

(f) For the purpose of recalculating the beneficial reuse credit and for renewing a permit, the executive director may accept water use data from users with less than two years of data on a case-by-case basis.

§309.25.Requirements.

(a) Application Requirements.

(1) The applicant must provide the executive director with a list of users and the type of use(s) for each user. For users that propose to use the reclaimed water for irrigation, the list must include the acreage and crop(s) irrigated for each irrigation area.

(2) The applicant must provide the executive director with a map showing the location of the water use sites at a scale specified by the executive director.

(3) The applicant must submit all water use data used to calculate firm reclaimed water demand.

(4) The executive director may request additional information as may be necessary for an adequate technical review of the application.

(5) For permits issued prior to the effective date of this subchapter, the permittee must apply for a permit amendment under Chapter 305 of this title (relating to Consolidated Permits) for approval of a new or approval of a change to an existing beneficial reuse credit.

(b) General Requirements.

(1) An applicant must receive authorization required by Chapter 210 of this title (relating to Use of Reclaimed Water) before applying for a beneficial reuse credit. The executive director may waive this requirement for a new facility if the executive director finds that the application contains all information required by §309.23 of this title (relating to Demonstrating Firm Reclaimed Water Demand). If a beneficial reuse credit is granted for a new facility, the permit must include:

(A) the requirements and conditions that apply to the regulated activity without considering the beneficial reuse credit, applicable from the date of permit issuance until the permittee receives authorization for reclaimed water use under Chapter 210 of this title; and

(B) the requirements and conditions that apply after the permittee receives authorization for reclaimed water use under Chapter 210 of this title.

(2) A permittee and, to extent applicable, a user must maintain authorization under Chapter 210 of this title during the term of the Texas Land Application Permit.

(3) The term of a permit that includes a beneficial reuse credit may not exceed five years.

(4) A permit that includes a beneficial reuse credit must include limits for both the permitted flow and the land application flow. The land application flow limit must be equal to the permitted flow limit minus the beneficial reuse credit.

(5) A permittee that is granted a beneficial reuse credit shall have a contractual agreement to dispose of unused treated effluent on an emergency basis, using the pump-and-haul method or another method approved by the executive director. The permittee shall use the contracted disposal method if all of the following conditions are met:

(A) a user of reclaimed water no longer needs the reclaimed water;

(B) a new user has not been contracted to accept the reclaimed water;

(C) the permitted facility does not have adequate capacity to store the unused reclaimed water; and

(D) additional application to the permitted land application area would exceed the permitted application rate or is otherwise prohibited by the permit.

(6) A permittee that is granted a beneficial reuse credit must meet a minimum of Type II effluent quality as described in §210.33 of this title (relating to Quality Standards for Using Reclaimed Water).

(c) Reporting Requirements.

(1) If the users or the irrigation areas change, the permittee must provide the executive director with an updated list of users and irrigations areas within 30 days after the change. A change in user or area is not an amendment to the permit.

(2) A permittee that is granted a beneficial reuse credit shall submit the following to the executive director by September 30th of each year for the reporting period of September 1st to August 31st:

(A) monthly data on the amount of reclaimed water used by each user;

(B) the type of water use(s) for each user;

(C) the acreage of each irrigation site, if applicable;

(D) the crop(s) irrigated at each irrigation site, if applicable;

(E) a recalculation of the beneficial reuse credit; and

(F) the total nitrogen concentration of the effluent.

(3) If the recalculated beneficial reuse credit submitted in the annual report is reduced, the executive director may require a permit amendment.

(4) The total nitrogen concentration of the effluent shall be tested quarterly by grab sample for the first year of the permit term, after which the frequency for testing may be reduced to annually upon approval by the executive director.

(5) The permittee shall submit monthly effluent reports to the executive director in accordance with the effluent limitations and monitoring requirements of the permit.

(6) The executive director may require additional limitations or more frequent testing on a case-by-case basis.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 20, 2019.

TRD-201904971

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: January 9, 2020

Proposal publication date: June 28, 2019

For further information, please call: (512) 239-6812