HBA-NMO C.S.S.C.R. 56 76(R) BILL ANALYSIS Office of House Bill AnalysisC.S.S.C.R. 56 By: Lindsay Natural Resources 5/5/1999 Committee Report (Substituted) BACKGROUND AND PURPOSE Currently, the United States Army Corps of Engineers has primary authority over the operation of the national permit program, under the federal Clean Water Act, for the placement of dredged and fill materials into waters of the U.S., including wetlands. Section 401 of the Clean Water Act authorizes states to certify whether the issuance of certain federal permits complies with state water quality standards. The Texas Natural Resource Conservation Commission (TNRCC) provides this certification. However, because the U.S. Army Corps of Engineers, prior to granting a permit, receives comments from a variety of state and federal resource agencies, including the U.S. Fish and Wildlife Department, the Texas Parks and Wildlife Department, and TNRCC, Section 401 certification by TNRCC may unnecessarily duplicate U.S. Army Corps of Engineers analysis. C.S.S.C.R. 56 provides that it is the intent of the legislature that TNRCC should attempt to eliminate duplication between its Section 401 water quality certification program and the review conducted by the U.S. Army Corps of Engineers, and sets forth related intentions of the legislature. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency or institution. ANALYSIS C.S.S.C.R. 56 provides that it is the intent of the legislature that the Texas Natural Resource Conservation Commission (TNRCC) should attempt to eliminate duplication between its Section 401 water quality certification program and the review conducted by the United States Army Corps of Engineers. Provides that it is the intent of the legislature that TNRCC should amend its rules to require TNRCC, except where necessary to maintain delegation or approval of a federally delegated or approved program, to waive Section 401 certification, in accordance with the authority of the federal Clean Water Act, for those projects for which the U.S. Army Corps of Engineers has conducted a review under Section 404(b) of that Act. Provides that it is the intent of the legislature to require TNRCC, if some review is required to maintain delegation or approval of a federally delegated or approved program, to develop a review process in compliance with approved water quality standards that is no more stringent than specifically required by federal law and that implements, to the maximum extent practicable, acreage thresholds, geographic limitations, expedited review processes, waivers of project types, and similar provisions necessary to eliminate duplication of federal activities and assist compliance by permit applicants. Provides that it is the intent of the legislature to require that savings that can be realized from eliminating duplication of the U.S. Army Corps of Engineers Section 404 permit evaluations be utilized by TNRCC to meet the demands of the water quality protection program. COMPARISON OF ORIGINAL TO SUBSTITUTE The substitute differs from the original in the preamble by deleting language that states that wetlands are waters of the state that are particularly valuable in functioning to help maintain and improve the quality of neighboring waters and in providing habitat for aquatic and aquatic-dependent life; and that the preservation of wetlands and their functions is a priority goal of this state. The substitute differs from the original in the third resolution by removing language that would have provided that it is the intent of the legislature to require the Texas Natural Resource Conservation Commission, if some review is required to maintain delegation or approval of a federally delegated or approved program, to develop provisions necessary to maintain the state's water quality standards. The substitute differs from the original in the fourth resolution by providing that it is the intent of the legislature to require that savings that can be realized from eliminating duplication of the U.S. Army Corps of Engineers Section 404 permit evaluations be utilized by TNRCC to meet the demands of the water quality protection program, rather than to implement water quality protections and to take the appropriate action to ensure that the state's water quality standards will be attained and maintained in all state waters without unnecessary duplication with federal actions.