The State Office of Administrative Hearings submitted four certified questions to the Texas Commission on Environmental Quality regarding the Brazos River Authority request for additional water rights.
"The Administrative Law Judges seek the Commission's answers to the following certified questions," the request read.
Basically, the questions concerned SB 3 which addresses flow standard deadlines established by the Environmental Flows Advisory Committee. Those questions concerned whether the deadlines are mandatory and can those deadlines be addressed at a later time under a reopened provision in the law if the BRA request is approved.
"Texas Water Code Section 11.147(e-3) requires that newly adopted environmental flow standards be applied immediately," TCEQ commissioners responded.
In a brief to commissioners from the office of Zak Cover, TCEQ executive director, the recommendation to TCEQ commissioners was that the provisions of SB 3 were binding. The brief also noted that the "reopen" provision was applicable to previously approved permits that could be adjusted to the provisions of SB 3, not a means to approve a pending request.
According to the brief, BRA officials had also proposed a transition clause to allow the application to move forward. Without the transition clause, BRA officials asserted that some 20 months of work and many thousands of dollars would be wasted.
"For any water right permit application that is pending before the Commission on the effective date of this subchapter, or on the effective date of any amendment to this subchapter and for which a draft permit has been prepared and noticed in accordance with the Commission rules, that pending draft permit may be issued in accordance with preexisting environmental flow requirements, without additional immediate review under this subchapter, so long as the permit requires the permittee, within three (3) years after the permit is effective and non-appealable, to prepare and submit to the executive director a report assessing the permit's consistency with the provisions of this subchapter, and if necessary, to submit an application to ensure consistency with this subchapter."
The executive director's response to BRA's suggested rule change was that it would "likely only apply to BRA, and other applicants for pending permits have been told they must comply with the SB 3 rules."