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RULE §213.21Applicability and Person or Entity Required to Apply

(a) This subchapter applies only to the contributing zone as defined in §213.22 of this title (relating to Definitions) of the Edwards Aquifer. This subchapter is not intended to be applied to any other contributing zones for any other aquifers in the State of Texas.

(b) This subchapter applies only to regulated activities disturbing at least five acres, or regulated activities disturbing less than five acres which are part of a larger common plan of development or sale with the potential to disturb cumulatively five or more acres.

(c) Areas identified as contributing zone within the transition zone described by §213.22 of this title and delineated on the official recharge and transition zone maps of the agency as provided by §213.3 of this title (relating to Definitions), are subject to both the requirements of this subchapter governing the contributing zone and to the provisions of the recharge zone in §213.5(a)(3) and (4), (c)(3)(K), and (d) - (f) of this title (relating to Required Edwards Aquifer Protection Plans, Notification, and Exemptions); §213.6(a) and (b) of this title (relating to Wastewater Treatment and Disposal Systems); §213.7 of this title (relating to Plugging of Abandoned Wells and Borings); and to the transition zone provisions of §213.8(b) of this title (relating to Prohibited Activities).

(d) Unless otherwise provided under this subchapter, executive director approval of a contributing zone plan must be obtained prior to beginning construction of a new or additional regulated activity.

(e) Regulated activities are allowed to be conducted under this subchapter only by applicants who have a letter of contributing zone plan approval issued by the executive director. This letter is issued under §213.23 of this title (relating to Plan Processing and Approval).

(f) Applicable regulation for projects in progress when contributing zone or contributing zone within the transition zone designations are revised.

  (1) For areas designated as contributing zone or contributing zone within the transition zone on official maps prior to the effective date of this subsection, and for which this designation did not change on the effective date of this subsection, all plans submitted to the executive director, on or after the effective date of this section, will be reviewed under all the provisions of this subchapter in effect on the date the plan is submitted.

  (2) For areas that were newly designated as contributing zone or contributing zone within the transition zone on official maps on the effective date of this subsection, regulated activities will be considered to have commenced construction and will be regulated under the provisions of this chapter that were in effect at the time the plan was approved by the executive director if, on the effective date, all federal, state, and local approvals or permits required to begin physical construction have been obtained, and if either on-site construction directly related to the development has begun or construction commences within six months of the effective date of this section.

  (3) The effective date of this subsection is September 1, 2005.

(g) Assumption of program by local government.

  (1) A local governmental entity may assume the rights, duties, and responsibilities to review and either approve or deny contributing zone protection plan applications within its boundaries and monitor and enforce compliance with plans if the local government obtains certification from the executive director.

  (2) In order to obtain certification, the local government must demonstrate:

    (A) it has a water quality protection program equal to or more stringent than the rules contained in this subchapter, including, but not limited to, a program that:

      (i) regulates activities covered under this chapter; and

      (ii) has performance standards equal to or more protective of water quality;

    (B) it has adopted ordinances or has other enforceable means sufficient to enforce the program throughout the local governmental entities jurisdiction; and

    (C) it has adequate resources to implement and enforce the program.

  (3) Upon approval of a request for certification under this subsection, the executive director shall enter into an agreement with the local governmental entity to provide for the terms and conditions of program assumption, including executive director oversight. Nothing in a certification or agreement shall affect the commission's ability to enforce its water quality protection rules or applicable state law.

  (4) An agreement under paragraph (3) of this subsection shall not provide for the payment of fees required by this chapter to the local entity, and shall not provide for partial assumption of the program unless expressly authorized by the commission. Fees shall be paid to the commission.

  (5) Certification must be for a term not to exceed five years, subject to renewal.

  (6) Upon written notice, certification may be revoked or suspended by the executive director if the local entity does not meet the terms and conditions of the agreement provided under paragraph (4) of this subsection or fails to meet the criteria for certification provided under paragraph (2) of this subsection.

  (7) A decision by the executive director under this subsection is not subject to appeal to the commission.

Source Note: The provisions of this §213.21 adopted to be effective June 1, 1999, 23 TexReg 10489; amended to be effective September 1, 2005, 30 TexReg 4984

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