| (a) Need for agreement.
(1) The Texas Commission on Environmental Quality (TCEQ)
and Texas Parks and Wildlife Department (TPWD) seek to ensure that
regulation of aquaculture is conducted in a manner that is both collaborative
and responsible.
(2) The TCEQ and TPWD are concerned about issues relating
to the raising of non-native aquatic species and their potential for
escape into natural ecosystems, including the introduction of disease
into natural ecosystems.
(3) The TCEQ and TPWD are concerned about the quality
of wastewater discharges from aquaculture facilities and their effects
on receiving waters in reservoirs, streams, bays, and estuaries.
(4) The TCEQ and TPWD seek to implement an interagency
review procedure for applications requesting authorization to discharge
wastewater from aquaculture facilities.
(5) The TCEQ and TPWD seek to implement an effective
system by which coordination and collaboration can be achieved to
expedite enforcement actions in response to discharges from aquaculture
facilities that are found to contain contagious disease that may impact
state waters.
(6) Texas Water Code, §5.104, authorizes the TCEQ
to enter into an MOU with any other state agency.
(7) Texas Agriculture Code, §134.031, directs
the TCEQ and TPWD to enter into an MOU for the regulation of matters
relating to aquaculture.
(8) It is the intention of this MOU to provide a formal
mechanism by which the TPWD may review and provide feedback on aquaculture
issues that are subject to regulation by the TCEQ and that have the
potential to affect natural resources and the regulation of aquaculture
within the jurisdiction of the TPWD. This exchange of information
would assist the TCEQ in making environmentally sound decisions and
would improve coordination between the TCEQ and TPWD.
(b) Definitions. The following words and terms, when
used in this section, shall have the following meanings.
(1) Aquaculture--The business of producing or rearing
aquatic species (fish, crustaceans, mollusks, or any other organisms,
excluding aquatic plants and algae, living in either fresh or marine
waters) utilizing ponds, lakes, cages, fabricated tanks and raceways,
or other similar structures.
(2) Application--A request submitted by an aquaculture
facility to the TCEQ for authorization to discharge under an individual
permit or a Notice of Intent (NOI) to seek authorization under a general
permit.
(c) Responsibilities.
(1) The responsibilities of the TCEQ relate primarily
to its role as the natural resource agency with primary responsibility
over conservation of natural resources and the protection of the environment,
under Texas Water Code, §5.012.
(A) The TCEQ has general jurisdiction over the state's
water quality program including issuance of wastewater discharge permits,
water quality planning, and enforcement of water quality rules, standards,
orders, and permits, under Texas Water Code, §5.013.
(B) The TCEQ seeks to maintain the quality of water
in the state consistent with public health and enjoyment, the propagation
and protection of terrestrial and aquatic life, the operation of existing
industries, and the economic development of the state, and to require
the use of all reasonable methods to implement this policy.
(C) The TCEQ is responsible for review of wastewater
applications and issuance of wastewater discharge permits.
(2) The responsibilities of the TPWD relate primarily
to its functions as a natural resource agency, including its resource
protection functions, as designated by the Texas Parks and Wildlife
Code, §12.001 and §12.0011.
(A) The TPWD is the state agency with primary responsibility
for protecting the state's fish and wildlife resources.
(B) The TPWD provides recommendations that will protect
fish and wildlife resources to local, state, and federal agencies
that approve, permit, license, or construct developmental projects.
(C) The TPWD provides information on fish and wildlife
resources to any local, state, and federal agencies or private organizations
that make decisions affecting those resources.
(D) The TPWD regulates the taking, possession, and
conservation of all kinds of marine life and other aquatic life.
(E) The TPWD regulates the introduction of fish, shellfish,
and aquatic plants into public water, under Texas Parks and Wildlife
Code, §66.015(b).
(F) The TPWD regulates the importation, possession,
and placing into state water of harmful or potentially harmful exotic
species of fish, shellfish, or aquatic plants, under Texas Parks and
Wildlife Code, §66.007(a), and is responsible for review of applications
and subsequent issuance of permits relating to these activities
(d) Coordination procedures for wastewater discharge
applications and permits.
(1) Coordination procedures for the Aquaculture General
Permit Number TXG130000 and associated NOIs.
(A) During renewal or amendment of the Aquaculture
General Permit, the TCEQ will provide the initial draft permit to
the TPWD for review and comment prior to submitting the draft to EPA
for review and approval.
(i) Within 45 days of the date of receipt of the initial
draft permit, the TPWD will complete its initial assessment, and by
letter shall provide the TCEQ with formal written recommendations
designed to protect fish and wildlife resources or indicate that it
has no comments.
(ii) If the TCEQ does not receive formal written comments
from the TPWD within 45 days of the date of receipt of the initial
draft permit, the TCEQ will conclude that there are no comments and
continue processing of the general permit renewal or amendment.
(iii) Formal written comments received from the TPWD
will be considered by the TCEQ in developing the final draft permit.
The TPWD's comments will be evaluated in conjunction with all other
applicable factors and will be incorporated by the TCEQ whenever it
is consistent with the TCEQ's responsibilities. In accordance with
the responsibilities of the TCEQ as described in subsection (c)(1)
of this section, the TCEQ reserves the right to determine the requirements
of the final draft permit. Concurrent with submission of the final
draft permit to EPA, the TCEQ will provide a copy of the final draft
permit to the TPWD.
(B) The TCEQ will provide copies of all NOIs to the
TPWD within 14 days of the date of receipt.
(i) Within 45 days of the date of receipt of the NOI
by the TPWD, the TPWD will complete its initial assessment, and by
letter shall provide the TCEQ with formal written recommendations
designed to protect fish and wildlife resources; indicate that it
has no comments; or notify the TCEQ that it has requested additional
information from the applicant. If TPWD requires additional information
to make its evaluation, then the TPWD may request such additional
information from the applicant within 45 days of the date of receipt
of the NOI.
(ii) Except as provided by paragraph (3)(B) of this
subsection, if the TCEQ does not receive a response from the TPWD
within 45 days of TPWD receipt of the NOI, the TCEQ will conclude
that there are no comments and continue processing of the application.
(iii) Formal written comments received from the TPWD
will be considered by the TCEQ in determining whether to grant authorization
under the general permit or require the applicant to seek authorization
under an individual permit. The TPWD's comments will be evaluated
in conjunction with all other applicable factors consistent with the
TCEQ's responsibilities. In accordance with the responsibilities of
the TCEQ as described in subsection (c)(1) of this section, the TCEQ
reserves the right to determine the final disposition of the NOI.
(2) Coordination procedures for individual permit applications.
(A) The TCEQ will provide to the TPWD a copy of each
individual permit application file received which requests authorization
to discharge wastewater from aquaculture facilities within 14 days
of the TCEQ administrative review completion. The application file
shall include a copy of the application and any comments, memoranda,
letters, or other information incorporated in the application file
following date of application receipt so that the TPWD may complete
an initial assessment of the proposed operation.
(B) Within 45 days of the date of receipt of the permit
application file, the TPWD will complete its initial assessment, and
by letter shall provide the TCEQ with formal written recommendations
designed to protect fish and wildlife resources; indicate that it
has no comments; or notify the TCEQ that it has requested additional
information from the applicant. If TPWD requires additional information
to make its evaluation, then the TPWD may request such additional
information from the applicant within 45 days of the date of receipt
of the permit application file.
(C) Except as provided by paragraph (3)(B) of this
subsection, if the TCEQ does not receive a response from the TPWD
within 45 days of the TPWD receipt of the permit application file,
the TCEQ will conclude that there are no comments and continue processing
of the application.
(D) Formal written comments received from the TPWD
will be considered by the TCEQ in developing the final draft permit.
The TPWD's comments will be evaluated in conjunction with all other
applicable factors and will be incorporated by the TCEQ whenever it
is consistent with the TCEQ's responsibilities. In accordance with
the responsibilities of the TCEQ as described in subsection (c)(1)
of this section, the TCEQ reserves the right to determine the requirements
of the final draft permit. Upon making a preliminary recommendation
regarding an application, the TCEQ will provide a response to the
TPWD that contains a copy of the final draft permit and documentation
providing an explanation on why any of the TPWD's comments were not
incorporated.
(3) Coordination procedures applicable to all applications.
(A) The scope of review by the TPWD may include, but
is not limited to: consideration of especially sensitive receiving
water conditions (aquatic habitat); impacts of the discharge on substrate
(scouring, sedimentation) and water transparency; alteration of receiving
water flow characteristics; existing or attainable biological and
recreational uses; discharge rate and volume; and the likelihood of
disease transmission. Comments may be addressed directly to the applicant
by the TPWD.
(B) If the TPWD requests additional information from
the applicant, the TPWD will request that the applicant provide a
copy of the information to the TCEQ. If the applicant does not provide
the additional information to the TPWD within 30 days of a request,
the TCEQ will determine whether it is appropriate to either suspend
processing the application or return it to the applicant. Upon receipt
of additional information from the applicant, the TPWD will have 30
days to complete its review and either make final recommendations
to the TCEQ or indicate that it has no comments. If formal written
comments are not received from the TPWD within 30 days of receipt
of the additional information, the TCEQ will conclude that there are
no comments and continue processing of the application.
(C) The TCEQ will consider guidelines developed by
the TPWD with input from the TCEQ and stakeholders identifying sensitive
aquatic habitat within the coastal zone when reviewing wastewater
discharge applications for new aquaculture facilities or expansion
of existing facilities in the coastal zone.
(D) The TCEQ and TPWD will strive to provide each other
notification of public meetings and contested case hearings that relate
to aquaculture applications.
(e) Other coordination activities.
(1) The TPWD shall, within 120 days of the date of
adoption of this MOU, review the wastewater discharge application
forms and provide proposed changes that are necessary to obtain relevant
information for the TPWD's review. The TCEQ will solicit feedback
from the TPWD each time the TCEQ revises the forms related to aquaculture
facilities.
(2) A new exotic species permit will not be issued
by the TPWD to any aquaculture facility that proposes to discharge
wastewater until a TCEQ wastewater discharge permit or other authorization
has been issued or it is determined that the facility is exempted
from such requirements.
(3) An interagency work group will be formed, whose
function will be to coordinate on matters related to aquaculture to
aid in ensuring that proposed wastewater discharges will not adversely
affect bays, estuaries, or other water in the state. This work group
will meet at least annually to address aquaculture issues relating
to water quality, fish and wildlife resources, and receiving stream
habitat and uses. This work group will serve to strengthen coordination
between the TCEQ and TPWD related to the aquaculture industry and
provide a conduit for shared information. The work group shall be
composed of members of each agency and staffed at levels which are
mutually agreeable as adequate to accomplish the stated goals. Each
agency shall designate a primary contact person for this group and
notify the other agency of any changes to the primary contact person.
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