JBM C.S.H.B. 2665 75(R)BILL ANALYSIS NATURAL RESOURCES C.S.H.B. 2665 By: Hawley 4-25-97 Committee Report (Substituted) BACKGROUND Texas has been a leader in the development of shrimp farming in the United States. There are at least nine commercial shrimp farms along the Texas coast and new ones are being proposed. Initially, these operations were supported by local governments, fishing organizations and the public. Unexpected problems with production have, however, raised serious concerns about the impacts of the farms on native shrimp and local environments. One of the concerns is the inadvertent release of the exotic or non-native shrimp into bays and estuaries. Release of such exotic species could adversely affect native shrimp populations. Specifically, the new viruses found in some exotic shrimp raise concern. Finally, additional concerns have been raised because shrimp farms draw water from and discharge wastewater into bays and estuaries. PURPOSE To amend the Water Code and the Parks and Wildlife Code to give the Texas Natural Resource Conservation Commission (TNRCC) and the Texas Parks and Wildlife Department (TPWD) the authority to protect bays, native shrimp, marine habitats and local economies. RULEMAKING AUTHORITY It is the committee's opinion that this bill does expressly grant additional rulemaking authority to the TNRCC in Section 1 of the bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Subchapter B, Chapter 26, Water Code, by adding Sections 26.0286 and 26.0287 to provide as follows: Section 26.0286. (a) Provides that the commission by rule shall require commercial mariculture facilities designed for commercial production of shrimp to obtain a sitespecific discharge permit if the facility: (1) is located in a county bordering the Gulf of Mexico or the tidewater limits of the gulf; (2) is designed for the commercial production of shrimp; and (3) will discharge wastewater or other substances. (b) Provides that a mariculture facility described by Subsection (a) must obtain a permit in accordance with this section and Section 26.0287 before the facility is constructed, or for a facility constructed before the effective date of this section, before the facility is expanded. (c) Provides that a mariculture facility described by Subsection (a) that does not discharge wastewater or other substances must obtain a permit before the facility is converted to a facility that discharges wastewater or other substances. (d) Provides that an application for a permit for a facility under this section must include: (1) certification that an application has been filed with: (A) TPWD, and (B) the commissioners court of each county in which the facility is located or is proposed to be located; (2) copy of a resolution from each of the following governmental bodies indicating the position the governmental body takes on whether the facility should be permitted: (A) the commissioners court of each county in which the facility is located or is proposed to be located; and (B) the governing body of each municipality within the boundaries or extraterritorial jurisdiction of which the facility is located or is proposed to be located; (3) copy of any permit required by Section 404, Federal Water Pollution Control Act (33 U.S.C. Section 1344); (4) an environmental report which describes in detail: (A) the design and operating plans for the facility, including: (i) wastewater management, (ii) prevention of nuisance conditions, (iii) removal of settled solids to the degree necessary to protect water quality, to prevent adverse responses in aquatic organisms, to prevent changes in flow patterns of receiving waters, and to prevent the untimely filling of bays, (B) the environmental conditions of the site at the time the application is filed including: (i) aquatic habitats, (ii) conditions in state water from which a diversion of water for use in the facility is proposed to be made or into which a discharge of wastewater or other substances is proposed to be made; and, (C) any potential adverse effects on sensitive aquatic habitats caused by: (i) discharges of wastewater or other substances from the facility, (ii) significant facility construction and operation activity, (iii) attenuation of light due to suspended solids in discharges; (5) a description of the best management practices to minimize potential adverse effects to the environment that could result from facilities practices, including: (A) water intake or entrainment, (B) pond management for sediments, (C) routine water exchange, (D) management of water during harvest, (E) feeding regimes to minimize waste, (F) density of stock. (e) Provides for an alternative method of submitting a statement concerning the county or municipality's governing body if an applicant is not able to obtain a resolution from the governing body for inclusion in the application. (f) Provides that the commission may waive an element of the report required by Subsection (d)(4), if the commission makes certain findings, for an application filed after January 1, 2002. (g) States that, in this section, "mariculture" has the meaning assigned by Section 11.1421. Section 26.0287. (a) Provides that the commission may issue a site-specific discharge permit under Section 26.0286 only if the commission finds that: (1) the facility's discharge will not violate a water quality standard or other requirement of this chapter; and (2) the facility's operator will: (A) apply appropriate best management practices, and (B) make reasonable efforts to minimize the adverse effects to the environment and sensitive aquatic habitats that may be caused by the facility or its discharges. (b) States that a permit issued under this section must prohibit the facility from discharging wastewater or other substances at any time if: (1) a disease caused by an infectious exotic pathogen is suspected by the operator or confirmed to be present in shrimp raised in the facility; or (2) the executive director or the executive director of the TPWD has official good cause to suspect the presence of an infectious exotic pathogen and notifies the operator in writing of the official good cause. (c) Provides that, as provided by applicable rules of a state agency with jurisdiction over disease in a mariculture facility, a facility that is prohibited from discharging for a reason provided by Subsection (b) may not discharge wastewater or other substances until the executive director of that agency: (1) issues a written order permitting discharges; or (2) identifies the cause of any disease discovered at the facility to be other than an infectious exotic pathogen; (d) States that a permit issued under this section must: (1) require the facility's operator, notwithstanding Section 481.143, Government Code, to comply with practice of the best management practices identified by commission rule as applicable to facilities permitted under this section regardless of the date the permit is applied for or issued, (2) require the facility to implement a disease monitoring and response plan which complies with the rules adopted by the agency with jurisdiction over disease in mariculture facilities regarding: (A) a periodic disease monitoring program, (B) a procedure for the immediate reporting of any indication or detection of an infectious exotic pathogen in the facility, (C) measures to minimize the opportunity for a diseased organism to be removed from a facility by a bird or other animal, (D) immediate quarantine procedures for any area of the facility in which disease caused by an infectious exotic pathogen is suspended or confirmed to ensure that a release of water or animals in a discharge does not occur until the executive director of the agency with jurisdiction over mariculture diseases authorizes a release. (e) States that in this section, "mariculture" has the meaning assigned by Section 11.1421. SECTION 2. Amends Subchapter A, Chapter 66, Parks and Wildlife Code by adding Section 66.0071 to provide as follows: Section 66.0071. Prohibits TPWD from issuing or renewing a license or other authorization for a person to possess or place into water of this state an exotic shrimp species for commercial production in a county that borders the Gulf of Mexico or the tidewater limits of the gulf unless the applicant provides a letter to the TPWD from the TNRCC that states that the facility to be used for the commercial production: (1) has all required discharge permits or other required authorization; (2) is not required to obtain a discharge permit because the facility is adequately designed to operate without discharging wastewater or other substances; or (3) was in operation on or before January 1, 1997, and the operator of the facility has diligently pursued an application for an appropriate permit or other authorization filed with the TNRCC before September 1, 1997. SECTION 3. Requires that the TNRCC report to the speaker of the house of representatives, the lieutenant governor, and the chairman of the house and senate committees that have jurisdiction over the quality of state water and maricultural activities by December 31, 1998, its recommendation on the need to issue site-specific discharge permits imposed by Section 26.0286, Water Code, as added by this Act. SECTION 4. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE The primary difference between the original and the substitute is that the original was not a legislative council draft and the substitute is. Therefore, many of the sections in the substitute have been reorganized, but the substance of the sections remains the same. However, some substantive changes have been made to the following sections: CAPTION: In the original caption, the bill stated that it permitted commercial mariculture facilities for shrimp in coastal counties and granted rulemaking authority. The caption of the substitute has deleted the words "shrimp" and "granting rulemaking authority." SECTION 1. The original does not reference Subchapter B of the Water Code and the substitute does. Also, the original only added Section 26.0286 of Subchapter B, Chapter 26, of the Water Code, and, in the substitute, Sections 26.0286 and 26.0287 of Subchapter B, Chapter 26, of the Water Code, are added. In the substitute, proposed Section 26.0286(a), Water Code, the type of permit has been changed from "individual permit" in the original to "site-specific discharge permit" in the substitute. Finally, the substitute makes conforming changes in this section, including changes involving references to the new Section 26.0287. In the substitute, proposed Section 26.0286(d)(3), Water Code, now requires that an application for a permit for a facility required to obtain a permit under this section must include a copy of any permit required by Section 404, Federal Water Pollution Control Act (33 U.S.C. Section 1344). This provision was not included in the original. In the substitute, proposed Section 26.0286(d)(4), Water Code, now requires that the environmental report in the application for permit also include an operating plan for the removal of settled solids to the degree necessary to protect water quality, to prevent producing adverse responses in aquatic organisms, to prevent changes in flow patterns of receiving waters, and to prevent untimely filling of bays. This provision of the environmental report was not included in the original. In the substitute, proposed Section 26.0286(d)(4)(C)(iii), Water Code, adds that the environmental report must also contain any potential adverse effects on sensitive aquatic habitats caused by attenuation of light due to suspended solids in discharges. This specific provision was not in the original. In the original, proposed Section 26.0286(c)(3), Water Code, stated that the commission could grant a discharge permit to a facility only if it met certain conditions. One of those conditions required that the operator post bond or provide other appropriate financial assurance to the benefit of the commission. This provision also stated that the amount of the financial assurance should be sufficient to provide the resources needed by the commission to quarantine the facility, disinfect the facility of any viruses, and dispose of any wastes in case of abandonment of the facility by the operator. In the substitute, this condition was deleted. In the original, proposed Section 26.0286(c)(4)(A), Water Code, stated that the commission may grant a permit only if the permit provides that a prohibition must remain in effect until the executive director of the TPWD issues a written order that discharges can begin. In the substitute, in proposed Section 26.0287, Water Code, the executive director may issue such a written order, or identify the cause of any disease discovered at the facility to be other than an infectious exotic pathogen. SECTION 2. Proposed Section 66.0071(3), Parks and Wildlife Code, of the substitute was not included in the original. SECTION 3 of the substitute was not included in the original.