Commission Meeting Agenda Item No. 6
Presenter: Monica McGarrity

Action
Memorandum of Understanding (MOU) with the Texas Commission on Environmental Quality (TCEQ) Regarding the Regulation of Aquaculture
Recommended Adoption of the TCEQ MOU
August 25, 2022

I.      Executive Summary: Staff is seeking adoption of amendments to rules governing exotic harmful or potentially harmful fish, shellfish, and aquatic plants as published in the Texas Register. The proposed amendments adopt by reference the provisions of 30 Texas Administrative Code (TAC) §7.103, relating to a Memorandum of Understanding (MOU) between the Texas Parks and Wildlife Department (TPWD) and the Texas Commission on Environmental Quality (TCEQ) Regarding the Regulation of Aquaculture that became effective on May 19, 2022, which outlines interagency coordination procedures for regulation of aquaculture. 

II.     Discussion: TPWD proposes an amendment to 31 TAC §57.127, concerning an MOU between TPWD, TCEQ, and the Texas Department of Agriculture (TDA). The proposed amendment would adopt by reference a revised MOU between TCEQ and TPWD that was adopted by TCEQ and published in the May 13, 2022, issue of the Texas Register (47 TexReg 2864). This MOU reflects the statutory removal of TDA’s regulatory licensure role with respect to aquaculture and delineates TPWD’s and TCEQ’s responsibilities. The revised MOU outlines coordination procedures for the review of revisions of the TCEQ Aquaculture General Permit, individual wastewater discharge permit applications, and notices of intent to be covered under the TCEQ General Permit, and it establishes operating procedures and scope.  The proposed amendment also retitles the section to reflect the fact that TDA is no longer involved in aquaculture facility licensure. The rule is proposed under Texas Agriculture Code, section 134.031, which requires TCEQ and TPWD to enter into an MOU for the regulation of matters related to aquaculture, and section 134.005, which requires TDA and the Texas Parks and Wildlife Commission (Commission) to adopt rules to carry out their respective duties under the chapter.

         The proposed amendment is the final step necessary to implement applicable provisions of Senate Bill (S.B.) 703, 87th Legislature, Regular Session, which eliminated TDA’s primary role and responsibilities related to regulation of aquaculture (i.e., facility licensure). Prior to the enactment of S.B. 703, regulation of aquaculture in Texas was coordinated by the terms of an MOU between TPWD, TCEQ, and TDA, as required by statute.

A summary of public comment on the proposed rules will be provided at the meeting.

III.   Recommendation:  The staff recommends that the Commission adopt the proposed motion:

“The Texas Parks and Wildlife Commission adopts amendments to 31 TAC §57.127, concerning adoption by reference of 30 TAC §7.103, Memorandum of Understanding between the Texas Parks and Wildlife Department and the Texas Commission on Environmental Quality Regarding the Regulation of Aquaculture, as listed in Exhibit A, with changes as necessary to the proposed text as published in the July 22, 2022 issue of the Texas Register (47 TexReg 4275).”

Commission Agenda Item No. 6
Exhibit A

AQUACULTURE MOU

PROPOSAL PREAMBLE

1. Introduction

        The Texas Parks and Wildlife Department (TPWD) proposes an amendment to §57.127, concerning a Memorandum of Understanding (MOU) between TPWD, the Texas Commission on Environmental Quality (TCEQ), and the Texas Department of Agriculture (TDA). The proposed amendment would adopt by reference a revised MOU adopted by the TCEQ and published in the May 13, 2022, issue of the Texas Register (47 TexReg 2864). The proposed amendment also retitles the section to reflect the fact that TDA is no longer involved in aquaculture facility licensure.

        The proposed amendment is necessary to implement applicable provisions of Senate Bill (S.B.) 703, 87th Legislature, Regular Session, which eliminated TDA’s primary role and responsibilities related to regulation of aquaculture (i.e., facility licensure). Prior to the enactment of S.B. 703, regulation of aquaculture in Texas was coordinated by the terms of an MOU between the department, TCEQ, and TDA, as required by statute. The proposed amendment would adopt by reference a revised MOU that reflects the removal of TDA’s regulatory licensure role with respect to aquaculture and delineates each agency’s responsibilities. The revised MOU outlines coordination procedures for the review of revisions of the TCEQ Aquaculture General Permit and individual wastewater discharge permit applications and notices of intent to be covered under the TCEQ general permit and establishes operating procedures and scope.

2. Fiscal Note.

        Robert Macdonald, regulations coordinator, has determined that for each of the first five years that the rule as proposed is in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the rule.

        There will be no fiscal implications for persons required to comply with the rule as proposed.

3. Public Benefit — Cost Note.

        Mr. Macdonald also has determined that for each of the first five years the rule as proposed is in effect:

        (A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be the required coordination of regulatory responsibilities concerning aquaculture.

        (B) Under 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 and micro-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 proposed rule will not result in any direct economic costs to any small businesses, micro-businesses, or rural communities; therefore, the department has a determined that neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

                 (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 rule as proposed will not impact local economies.

                 (D) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.

                 (E) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rule.

                 (F) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The rule 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) not create a new regulation;

                         (6) not 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 Comments.

        Comments on the proposed rule may be submitted to Monica McGarrity, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 552-3465; email: monica.mcgarrity@tpwd.texas.gov or via the department website at www.tpwd.texas.gov.

5. Statutory Authority.

        The rule is proposed under Agriculture Code, §134.031, which requires the Texas Commission on Environmental Quality and the Texas Parks and Wildlife Department to enter into a memorandum of understanding for the regulation of matters related to aquaculture, and §134.005, which requires the Commission to adopt rules to carry out duties under the chapter.

        The proposed rules affect Agriculture Code, Chapter 134.

6. Rule Text.

        §57.127. Memorandum of Understanding between the Texas Parks and Wildlife Department and[,] the Texas Commission on Environmental Quality Regarding the Regulation of Aquaculture[, and the Texas Department of Agriculture]. The provisions of 30 TAC §7.103 (relating to Memorandum of Understanding (MOU) between the Texas Commission on Environmental Quality and[(Commission,)] the Texas Parks and Wildlife Department Regarding the Regulation of Aquaculture) in effect on May 19, 2022 [(TPWD) and the Texas Department of Agriculture (TDA), which were adopted by the Commission to take effect January 9, 2001]are adopted by reference.

        This agency hereby certifies that this proposal has been reviewed by legal counsel and found to be within the agency’s legal authority to adopt.

        Issued in Austin, Texas, on