| (B) pro forma income, expense, and cash flow statements;
(11) identification of any appropriate financial assurance,
including those being offered to capital providers;
(12) a notarized statement signed by the owner or responsible
person that the business plan has been prepared under his direction
and that he is responsible for the accuracy of the information; and
(13) other information required by the executive director
to determine the adequacy of the business plan or financial assurance.
(g) Business plans not required. A person is not required
to file a business plan if the person:
(1) is a county;
(2) is a retail public utility as defined by TWC, §13.002,
unless that person is a utility as defined by that section;
(3) has executed an agreement with a political subdivision
to transfer the ownership and operation of the water supply system
to the political subdivision; or
(4) is a noncommunity nontransient water system and
the person has demonstrated financial assurance under THSC, Chapter
361 or Chapter 382 or TWC, Chapter 26.
(h) Beginning and completion of work.
(1) No person may begin construction on a new public
water system before receiving written approval of plans and specifications
and, if required, approval of a business plan from the executive director.
No person may begin construction of modifications to a public water
system without providing notification to the executive director and
submitting and receiving approval of plans and specifications if requested
in accordance with subsection (j) of this section.
(2) The executive director shall be notified in writing
by the design engineer or the owner before construction is started.
(3) Upon completion of the water works project, the
engineer or owner shall notify the executive director in writing as
to its completion and attest to the fact that the completed work is
substantially in accordance with the plans and change orders on file
with the commission.
(i) Changes in plans and specifications. Any addenda
or change orders which may involve a health hazard or relocation of
facilities, such as wells, treatment units, and storage tanks, shall
be submitted to the executive director for review and approval.
(j) Changes in existing systems or supplies. Public
water systems shall notify the executive director prior to making
any significant change or addition to the system's production, treatment,
storage, pressure maintenance, or distribution facilities. Public
water systems shall submit plans and specifications for the proposed
changes upon request. Changes to an existing disinfection process
at a treatment plant that treats surface water or groundwater that
is under the direct influence of surface water shall not be instituted
without the prior approval of the executive director. Any long-term
change in water treatment that will impact the corrosivity shall not
be instituted without the prior approval of the executive director.
(1) The following changes are considered to be significant:
(A) proposed changes to existing systems which result
in an increase or decrease in production, treatment, storage, or pressure
(B) proposed changes to the disinfection process used
at plants that treat surface water or groundwater that is under the
direct influence of surface water including changes involving the
disinfectants used, the disinfectant application points, or the disinfectant
(C) proposed changes to the type of disinfectant used
to maintain a disinfectant residual in the distribution system;
(D) proposed changes in existing distribution systems
when the change is greater than 10% of the existing distribution capacity
or 250 connections, whichever is smaller, or results in the water
system's inability to comply with any of the applicable capacity requirements
of §290.45 of this title;
(E) proposed replacement or change of membranes modules;
(F) any other material changes specified by the executive
(G) examples of long-term treatment changes that could
impact the corrosivity of the water include the addition of a new
treatment process or modification of an existing treatment process.
Examples of modifications include switching secondary disinfectants,
switching coagulants, and switching corrosion inhibitor products.
Long-term changes can include dose changes to existing chemicals if
the system is planning long-term changes to its finished water pH
or residual inhibitor concentration. Long-term treatment changes would
not include chemical dose fluctuations associated with daily raw water
(2) The executive director shall determine whether
engineering plans and specifications will be required after reviewing
the initial notification regarding the nature and extent of the modifications.
(A) Upon request of the executive director, the water
system shall submit plans and specifications in accordance with the
requirements of subsection (d) of this section.
(B) Unless plans and specifications are required by
Chapter 293 of this title (relating to Water Districts), the executive
director will not require another state agency or a political subdivision
to submit planning material on distribution line improvements if the
entity has its own internal review staff and complies with all of
the following criteria:
(i) the internal review staff includes one or more
licensed professional engineers that are employed by the political
subdivision and must be separate from, and not subject to the review
or supervision of, the engineering staff or firm charged with the
design of the distribution extension under review;
(ii) a licensed professional engineer on the internal
review staff determines and certifies in writing that the proposed
distribution system changes comply with the requirements of §290.44
of this title (relating to Water Distribution) and will not result
in a violation of any provision of §290.45 of this title;
(iii) the state agency or political subdivision includes
a copy of the written certification described in this subparagraph
with the initial notice that is submitted to the executive director.
(C) Unless plans and specifications are required by
Chapter 293 of this title, the executive director will not require
planning material on distribution line improvements from any public
water system that is required to submit planning material to another
state agency or political subdivision that complies with the requirements
of subparagraph (B) of this paragraph. The notice to the executive
director must include a statement that a state statute or local ordinance
requires the planning materials to be submitted to the other state
agency or political subdivision and a copy of the written certification
that is required in subparagraph (B) of this paragraph.
(3) If a certificate of convenience and necessity (CCN)
is required or must be amended, the CCN application must be included
with the notice to the executive director.
(k) Planning material acceptance. Planning material
for improvements to an existing system which does not meet the requirements
of all sections of this subchapter will not be considered unless the
necessary modifications for correcting the deficiencies are included
in the proposed improvements, or unless the executive director determines
that reasonable progress is being made toward correcting the deficiencies
and no immediate health hazard will be caused by the delay.
(l) Exceptions. Requests for exceptions to one or more
of the requirements in this subchapter shall be considered on an individual
basis. Any water system which requests an exception must demonstrate
to the satisfaction of the executive director that the exception will
not compromise the public health or result in a degradation of service
or water quality.
(1) The exception must be requested in writing and
must be substantiated by carefully documented data. The request for
an exception shall precede the submission of engineering plans and
specifications for a proposed project for which an exception is being
(2) Any exception granted by the commission is subject
(3) Any request for an exception which is not approved
by the commission in writing is denied.
(4) The executive director may establish site specific
design, operation, maintenance, and reporting requirements for systems
that have been issued an exception to the subchapter.
(m) Notification of system startup or reactivation.
The owner or responsible official must provide written notification
to the commission of the startup of a new public water supply system
or reactivation of an existing public water supply system. This notification
must be made immediately upon meeting the definition of a public water
system as defined in §290.38 of this title.
(n) The commission may require the owner or operator
of a public drinking water supply system that was constructed without
the approval required by THSC, §341.035, that has a history of
noncompliance with THSC, Chapter 341, Subchapter C or commission rules,
or that is subject to a commission enforcement action to take the
(1) provide the executive director with a business
plan that demonstrates that the system has available the financial,
managerial, and technical resources adequate to ensure future operation
of the system in accordance with applicable laws and rules. The business
plan must fulfill all the requirements for a business plan as set
forth in subsection (f) of this section;
(2) provide adequate financial assurance of the ability
to operate the system in accordance with applicable laws and rules.
The executive director will set the amount of the financial assurance,
after the business plan has been reviewed and approved by the executive
(A) The amount of the financial assurance will equal
the difference between the amount of projected system revenues and
the projected cash needs for the period of time prescribed by the
(B) The form of the financial assurance will be as
specified in Chapter 37, Subchapter O of this title and will be as
specified by the executive director.
(C) If the executive director relies on rate increases
or customer surcharges as the form of financial assurance, such funds
shall be deposited in an escrow account as specified in Chapter 37,
Subchapter O of this title and released only with the approval of
the executive director.
(o) Emergency Preparedness Plans for Affected Utilities.
(1) Each public water system that is also an affected
utility and that exists as of November 1, 2011 is required to adopt
and submit to the executive director an emergency preparedness plan
in accordance with §290.45 of this title and using the template
in Appendix J of §290.47 of this title or another emergency preparedness
plan that meets the requirements of this subchapter no later than
February 1, 2012. Emergency preparedness plans are required to be
prepared under the direction of a licensed professional engineer when
an affected utility has been granted or is requesting an alternative
capacity requirement in accordance with §290.45(g) of this title,
or is requesting to meet the requirements of TWC, §13.1395, as
an alternative to any rule requiring elevated storage, or as determined
by the executive director on a case by case basis.
(2) Each affected utility that supplies, provides,
or conveys surface water to wholesale customers shall include in its
emergency preparedness plan under this subsection provisions for the
actual installation and maintenance of automatically starting auxiliary
generators or distributive generation facilities for each raw water
intake pump station, water treatment plant, pump station, and pressure
facility necessary to provide water to its wholesale customers.
(3) The executive director shall review an emergency
preparedness plan submitted under this subsection. If the executive
director determines that the plan is not acceptable, the executive
director shall recommend changes to the plan. The executive director
must make its recommendations on or before the 90th day after the
executive director receives the plan. In accordance with the commission
rules, an emergency preparedness plan must include one of the options
listed in §290.45(h)(1)(A) - (H) of this title.
(4) Not later than June 1, 2012, each affected utility
shall implement the emergency preparedness plan approved by the executive
(5) An affected utility may file with the executive
director a written request for an extension not to exceed 90 days,
of the date by which the affected utility is required under this subsection
to submit the affected utility's emergency preparedness plan or of
the date by which the affected utility is required under this subsection
to implement the affected utility's emergency preparedness plan. The
executive director may approve the requested extension for good cause
(6) The executive director may grant a waiver of the
requirements for emergency preparedness plans to an affected utility
if the executive director determines that compliance with this section
will cause a significant financial burden on customers of the affected
utility. The affected utility shall submit financial, managerial,
and technical information as requested by the executive director to
demonstrate the financial burden.
|Source Note: The provisions of this §290.39 adopted to be effective October 1, 1992, 17 TexReg 6455; amended to be effective November 3, 1995, 20 TexReg 8620; amended to be effective February 4, 1999, 24 TexReg 731; amended to be effective September 13, 2000, 25 TexReg 8880; amended to be effective May 16, 2002, 27 TexReg 4127; amended to be effective February 19, 2004, 29 TexReg 1373; amended to be effective January 9, 2008, 33 TexReg 198; amended to be effective December 10, 2009, 34 TexReg 8744; amended to be effective May 15, 2011, 36 TexReg 2860; amended to be effective November 8, 2012, 37 TexReg 8849