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.