Commission Agenda Item No. 5
Presenter: Tom Heger

Action
Sand and Gravel Program Rules
Implementation of Legislation Passed During the 86th Texas Legislature
Relating to House Bill 2805
Recommended Adoption of Proposed Changes
August 22, 2019

I.      Executive Summary: The Texas Parks and Wildlife Department (TPWD) staff is seeking adoption of proposed changes to §§69.101, 69.102, 69.105, 69.108, 69.110, 69.111, 69.114, and 69.117-69.120, concerning issuance of marl, sand, and gravel permits.

II.     Discussion: The 86th Legislature (2019) enacted House Bill (H.B.) 2805, amending Texas Parks and Wildlife Code chapter 86. The proposed changes are necessitated by changes to application requirements as specified in the bill for the issuance of sand and gravel permits. Additional nonsubstantive changes are also proposed to improve grammatical sense and comport the rule with current nomenclature.

H.B. 2805 requires the Texas Parks and Wildlife Commission (Commission) to prescribe one application form for individual and general permits. The bill changes newspaper publication requirements of the notice of hearing and opportunity for public comment on permit applications in the county or counties affected by the issuance of the permit and in the community closest to the proposed area of disturbance. The bill also requires an applicant for a permit to provide proof to TPWD that the notice of application was sent by certified mail to alongshore property owners at least one river mile upstream and downstream of the proposed area of disturbance, submit a sedimentation impact assessment approved by TPWD, and in the case of application for permit renewal, any amendments to the permit. Additional provisions of H.B. 2805 limit the term of a general permit to one year, require a person holding a permit to deliver a report to TPWD specifying the volume of sedimentary material removed during the term of the permit, require the Commission to adopt rules regarding delivery and format of the report, and create a new exemption for non-commercial removal of sediment deposits from certain on-channel impoundments.

The proposed amendments would implement the regulatory changes necessitated by H.B. 2805.

III.   Recommendation: The staff is seeking adoption of the proposed changes to §§69.101, 69.102, 69.105, 69.108, 69.110, 69.111, 69.114, and 69.117-69.120, concerning the issuance of marl, sand, and gravel permits. The staff recommends that the Texas Parks and Wildlife Commission adopt the following motion:

“The Texas Parks and Wildlife Commission adopts the proposed changes to §§69.101, 69.102, 69.105, 69.108, 69.110, 69.111, 69.114, and 69.117-69.120, concerning issuance of marl, sand, and gravel permits as published in the July 19, 2019 issue of the Texas Register (44 TexReg 3620-3623).”

Attachments – 1

  1. Exhibit A – Sand and Gravel Permit Rules

Commission Agenda Item No. 5
Exhibit A

RULES REQUIRED OR AUTHORIZED BY STATUTE
HOUSE BILL 2805
SAND AND GRAVEL PERMIT RULES
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes amendments to §§69.101, 69.102, 69.105, 69.108, 69.110, 69.111, 69.114, and 69.117-69.120, concerning Issuance of Marl, Sand, and Gravel Permits. The amendments are necessitated by the enactment of House Bill 2805 by the most recent session of the Texas Legislature. Additional nonsubstantive changes are also proposed to improve grammatical sense and comport the rule with current nomenclature.

        House Bill 2805 requires the commission to prescribe one application form for individual and general permits and specifies that the form must require publication of notice of the application in the daily or weekly newspaper with the largest circulation in the county or counties affected by the issuance of the permit for three consecutive days, if daily, and in one newspaper published in the community closest to the proposed area of disturbance. The bill also requires an applicant for a permit to provide proof to the department that the notice was sent by certified mail to alongshore property owners at least one river mile upstream and downstream of the proposed area of disturbance, submit a sedimentation impact assessment approved by the department, and, in the case of application for permit renewal, any amendments to the permit.  Additionally, the provisions of H.B. 2805 limit the term of a general permit to one year and require a person holding a permit to deliver a report to the department specifying the volume of sedimentary material removed during the term of the permit, and require the commission to adopt rules regarding delivery and format of the report.

        The proposed amendments would implement the regulatory changes necessitated by House Bill 2805.

2. Fiscal Note.

        Tom Heger, Sand and Gravel Permit Program Administrator, has determined that for each of the first five years that the rules as proposed are in effect, fiscal implications to the department, if any, will be positive. There will be no fiscal implications for other units of state or local government.

3. Public Benefit/Cost Note.

            Mr. Heger also has determined that for each of the first five years the rules as proposed are in effect:

        (A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be rules that execute the directives of the legislature.

        (B) There will be no an adverse economic effect on persons required to comply with the rule as proposed.

        (C) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses, micro-businesses, and rural communities. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact “to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

 The department has determined that the rules will not result in adverse economic impacts to small businesses, micro-businesses, or rural communities.

        (C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.

        (D) The department has determined that because the rules as proposed does not impose a cost on regulated persons, it is not necessary to repeal or amend any existing rule.

        (E) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The rules as proposed, if adopted, will:

                 (1) neither create nor eliminate a government program;

                 (2) not result in an increase or decrease in the number of full-time equivalent employee needs;

                 (3) not result in a need for additional General Revenue funding;

                 (4) not affect the amount of any fee;

                 (5) will not create a new regulation;

                 (6) will not expand, limit, or repeal an existing regulation;

                 (7) neither increase nor decrease the number of individuals subject to regulation; and

                 (8) not positively or adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposed rules may be submitted to Tom Heger, Texas Parks and Wildlife Department 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4583 (email: tom.heger@tpwd.texas.gov).

5. Statutory Authority.

        The amendments are proposed under authority of Parks and Wildlife Code, Chapter 86, which authorizes the commission to adopt rules to govern consideration of applications; setting and collection of application fees; permit conditions; issuance of permits by rule; pricing of and terms for payment for substrate materials; and any other matter necessary for the administration of the chapter.

        The proposed amendments affect Parks and Wildlife Code, Chapter 86.

6. Text.

        §69.101. Management and Protection.

                 (a) – (c) (No change.)

                 (c) Prior to issuing a permit under this section for the disturbance of marl sand and gravel within the Coastal Management Program Boundary as defined in §503.1 of this title (relating to Coastal Management Program Boundary) the department shall comply with the requirements of §69.91 and §69.93 of this title (relating to Consistency; Threshold for Referral) and §505.30 of this title (relating to Agency Consistency Determination). Grant or denial of an application for a permit under this section is not a final agency action appealable for purposes of judicial review under the Texas Administrative Procedure Act, Texas Government Code, Title 10, Subtitle A, §2001.171, until the jurisdiction of the Coastal Coordination Council has lapsed.

        §69.102. Definitions. The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise.

                 (1) – (4) (No change.)

                 (5) General permit — An authorization to disturb or remove sedimentary materials from the public waters of the state under conditions that meet the criteria set forth in §69.115 of this chapter (relating to General Permits[qualify such activity as insignificant].

                 (6) – (10) No change).

        §69.105. Application Procedures[: Individual Permit].

                 (a) The application for a[an individual] permit (either individual or general) shall set forth the proposed location, quantities, kinds of materials to be removed, equipment to be used, period of time, names of alongshore property owners on both sides of the waterway for one[one-half] mile both upstream and downstream of the proposed operation, and other information as may be required.

                 (b) All applications shall include:

                         (1) a completed sand and gravel permit application on a form provided by the department;

                         (2) a completed publisher’s affidavit for notice approved by the department published in:

                                  (A) the daily or weekly newspaper with the greatest circulation in the county or counties affected by the issuance of the permit for three consecutive days, if daily, and if weekly, in three consecutive weeks; and

                                  (B) one newspaper published for the community closest to the proposed area of disturbance, if any;

                         (3) proof that notice approved by the department was sent by certified mail to all alongshore property owners within one river mile upstream and downstream of the proposed area of disturbance described in the application;

                         (4) a sedimentation impact assessment approved by the department; and

                         (5) any requested amendments to the permit, if the application is for the renewal of a permit.

                 (c) The public notice shall set forth a time and place for a public comment hearing to receive public comment on the application.

                 (d)[(b)] Within 30 days of receipt of an administratively complete application, the department shall:

                         [(1) set a time and place for a public comment hearing to receive public comment on the application;]

                         (1)[(2)] publish notice of the public comment hearing in the Texas Register at least 20 days prior to the hearing date; and

                         (2)[(3)] mail a copy of the notice to [all alongshore property owners as listed in the application and to] any person who has made a written request for forwarding of this information, and shall notify the applicant;

                         [(4) send a copy of the notice to the daily newspaper of greatest circulation in the county or counties to be affected by the issuance of the permit, with a request that the notice be published for three consecutive days; and]

                         [(5) send a copy of the notice to the daily or weekly local newspaper, where available, in the community nearest the proposed location, with a request that the notice be published for one day.]

                 (e)[(c)] The public notice shall set forth in full any trade or corporate name used by the applicant. The applicant shall be responsible for prompt and full payment for all newspaper notice required.

                 (f)[(d)] A completed publisher’s affidavit for all required newspaper notice shall be required prior to commencement of a contested case hearing.

                 (g)[(e)] The department shall set a 30-day public comment period to begin on the date of publication in the Texas Register or the newspaper(s), whichever is later. All relevant public comment shall be presented to the executive director or the commission at the time the permit application is presented for decision.

        §69.108. Criteria.

                 (a) – (b) (No change.)

                 [(c) No permit for a site previously unpermitted for the past five years may be issued for the disturbance or removal of 1,000 cubic yards or more of sedimentary materials from any state-owned streambed unless a commission approved study evaluating sediment budget, erosion rates of the river segment to be mined, and the effect on coastal and receiving waters has been completed within the immediately preceding five year period.]

        §69.110. Period of Validity.

                 (a) No individual permit shall be granted for a period longer than three years.

                 (b) No general permit shall be granted for a period longer than one year.

        §69.111. Requirements.

                 (a) (No change.)

                 (b) For individual permits the[The] director shall require the permittee to make a good and sufficient bond payable to the department, and conditioned upon the prompt payment of charges for sedimentary materials and any damage done to property under the ownership or trusteeship of the state.

                 (c) The director shall require the permittee to:

                         (1) for individual permits, make a monthly sworn report no later than the tenth of each month on all materials removed from public waters during the preceding month at the approved location or locations;

                         (2) – (4) (No change.)

                 (d) All permittees shall submit a report no later than the 30th day after the permit expiration date stating the total volume of marl, sand, gravel, shell, or mudshell removed during the term of the permit.  The report shall:

                         (1) be made by certified mail to: Texas Parks and Wildlife Department, Sand and Gravel Program, 4200 Smith School Rd., Austin, TX 78744;

                         (2) contain a sworn, notarized verification that the contents of the report are true and correct;

                         (3) be mailed no later than 30 days from the date of permit expiration; and

                         (4) state the total volume of marl, sand, gravel, shell, or mudshell removed during the term of the permit. 

                 (e)[(d)] The director shall require the permittee to remit to the department the established price on sedimentary materials removed during the month for which each monthly report is made (as required by subsection (c) of this section). These prices are subject to change by the commission with the approval of the Governor of the State of Texas.

                 (f)[(e)] The director shall require that the permittee not interfere with state or federal improvements, navigation, fish life, or riparian rights of landowners in or along any navigable stream or public body of water.

                 (g) Additional requirements. For general permits, the department may, at its discretion, require a permittee to furnish reports during and after any activity authorized under the provisions of this section.

        §69.114. Individual[Sedimentary Material] Permit Application Fees.

                 (a) (No change.)

                 (b) Applications seeking authorization under an individual permit to take or disturb sedimentary material from more than one location shall be subject to an additional nonrefundable fee of $100 for each additional location after the first.

                 (c) (No change.)

        §69.117. Emergency Situations[Notification and Reporting for General Permits].

                 [(a) Notification to the department.]

                         [(1) At least 30 days prior to the commencement of the proposed activity, the applicant shall notify the department at its headquarters address of 4200 Smith School Road, Austin, Texas 78744, of the proposed activity by certified mail, return receipt requested. The letter shall, at a minimum, include:]

                                  [(A) the name, address, and telephone number of the applicant;]

                                  [(B) a description of the proposed activity or a plan of the proposed project;]

                                  [(C) the size of the pipeline or cable, the width of the proposed trench, and the width of the right-of-way to be disturbed;]

                                  [(D) a vicinity map showing the location of the proposed activity;]                                 

                                  [(E) the estimated amount of sedimentary material to be disturbed or removed and a description of its intended final disposal area; and]

                                  [(F) the date that the proposed activity will begin;]

                                  [(G) a statement disclosing whether or not any species listed as state or federal threatened or endangered species might be affected by, or found in the vicinity of, the proposed project; and]

                                  [(H) maps, drawings and/or photographs depicting property of adjacent landowners and other resources including trees, wetlands, aquatic habitats such as channels or shallows.]

                           [(2) An activity is authorized if there is no response from the department within 30 days from the date of notification. A written confirmation of authorization may be obtained from the department, if requested.]

                 [(b) Public notice. Simultaneous with the notification to the department required by subsection (a) of this section, the applicant must give public notice by publication for one day in the daily newspaper of greatest circulation in the county or counties to affected by the issuance of the permit, and a copy of the notice shall be posted at the county courthouse(s) in the affected county or counties. Such notice shall describe the proposed activity, specify the location of the proposed activity, specify the date that operations are to begin, and contain language informing the public that written comments may be sent to the executive director at 4200 Smith School Road, Austin, Texas 78744 or by calling 1-800-792-1112.]

                 (a)[(c)] In the event[Waiver of notice requirement. The notification requirements of subsection (b) of this section shall not apply in the case] of an emergency that requires immediate action to prevent a threat to human health and safety or the environment, a person who seeks to remove or disturb less than 1,000 cubic yards of sedimentary material[. In such instances the applicant] shall promptly notify the department that an emergency exists. The department shall respond to this notification within 72 hours with a determination that the action is approved, not approved, or approved with conditions.

                 (b) Within[, and within] ten days of completing an approved emergency activity, a permittee shall submit a written report to the department. Such report shall include:

                         (1) – (5) (No change.)

                 (c)[(d)] Additional requirements. The department may, at its discretion, require a permittee to furnish reports during and after any activity authorized under the provisions of this subchapter[undesignated head].

        §69.118. Best Management Practices.

                 (a) In issuing a [general] permit, the department relies in part on the information provided by the permittee with the application[notification]. If such information proves to be false, incomplete, or inaccurate, a permit may be modified, suspended, or revoked, in whole or in part following the administrative proceedings required by law.

                 (b) Structures and activities authorized under a general permit shall be in compliance with all applicable terms and conditions of §69.115 of this title (relating to General Permits)[, §69.117 of this title (relating to Notification and Reporting for General Permits),] and this section. Failure to abide by such conditions invalidates the permit[authorization] and may constitute operation without a permit.

                 (c) – (e) (No change.)

                 (f) Permittee shall allow authorized department representatives access to the project site as needed for periodic inspections to ensure that the activity being performed under the permit[this authorization] is consistent with the terms and conditions herein.

                 (g) – (n) (No change)

        §69.119. Fees. The department shall charge a nonrefundable [processing] fee of $250 for  general permit applications[permits authorized under this undesignated head, payable at the time of the notification required by §69.117 of this title (relating to Notification and Reporting for General Permits)]. If the department determines that a general permit is not authorized for an activity, the application[processing] fee shall be applied to the application fee for an individual permit.

        §69.120. Exemptions. The commission finds that the state will not be deprived of significant revenue and there will be no significant adverse effects on navigation, the coastal sediment budget, riverine hydrology, erosion, or fish and wildlife resources or their habitat, and the following activities are therefore exempt from any permit requirement of the department or payment to the department for sedimentary material removed from the public waters of this state:

                         (1) projects to restore or maintain the storage capacity of existing public water supplies;

                         (2) maintenance projects carried out by public utilities for noncommercial purposes; [and]

                         (3) public road projects of the Texas Department of Transportation; and

                         (4) projects resulting in insignificant takings or disturbances of marl, sand, grave, shell or mudshell as defined in Parks and Wildlife Code, §86.021(b-1).