(a) This memorandum of agreement (MOA) between the Texas Water Development Board (TWDB) and Texas Commission on Environmental Quality (TCEQ) which sets forth the coordination of program responsibilities related to groundwater conservation district management, planning, approval, review, and oversight. This MOA is intended to clarify and outline the necessary coordination required for the agencies to document their respective duties, responsibilities, and functions as provided under Chapter 36 of the Texas Water Code.     
      (b) Definitions.      
        (1) Approval. The approval of a groundwater conservation district's adopted management plan as administratively complete by the Executive Administrator of the TWDB as required under §36.1072 of the Texas Water Code.       
        (2) Enforcement actions. Formal commission actions to achieve groundwater management by a groundwater conservation district as identified under §36.303 through §36.308 of the Texas Water Code including:                  (A) issuing an order requiring the district to take certain actions or refrain from taking certain actions;                   (B) dissolving the district's board of directors in accordance with §§36.305 and 36.307 of the Texas Water Code;                   (C) requesting the Attorney General to bring suit for the appointment of a receiver to collect assets and carry on the business of the district; or                   (D) dissolving the district in accordance with §§36.304, 36.305, and 36.308 of the Texas Water Code.         
        (3) Executive Administrator. The Executive Administrator of the TWDB or a designated representative.       
        (4) Executive Director. The Executive Director of the TCEQ or a designated representative.       
        (5) Executive Director's Preliminary Report or EDPR. A pleading filed by the Executive Director which, when issued and served under this title, seeks an enforcement order against a respondent. EDPR is further defined in 30 TAC Chapter 70, Subchapter C (relating to Enforcement Referrals to the State Office of Administrative Hearings).       
        (6) Groundwater conservation district (or district). Any district or authority created under Section 52, Article III, or Section 59, Article XVI, Texas Constitution, that has the authority to regulate the spacing of water wells, the production from water wells, or both.       
        (7) Management Plan. The comprehensive plan developed and adopted by the groundwater conservation district under §36.1071 of the Texas Water Code and subject to approval by the Executive Administrator of the TWDB under §36.1072 of the Texas Water Code that addresses groundwater management goals, performance standards, and objectives which specifies actions, procedures, performance, and avoidance that are or may be necessary to effect the plan.       
      (c) Interrelated Responsibilities and Jurisdictions of the TCEQ and TWDB.      
        (1) The TCEQ. The TCEQ has exclusive jurisdiction over the creation of groundwater conservation districts pursuant to §36.011 of the Texas Water Code, for maintaining records of groundwater conservation district confirmation election results under §36.017(e) of the Texas Water Code, for maintaining records of groundwater conservation district directors registered with the TCEQ pursuant to §36.054(e) of the Texas Water Code, and has a right of supervision over groundwater conservation districts pursuant to §12.081 of the Texas Water Code.                  (A) The TCEQ is responsible for taking certain enforcement action under §36.303 of the Texas Water Code if a groundwater conservation district board of directors fails to submit a management plan, fails to receive approval of its management plan under §36.1072 of the Texas Water Code, or fails to submit or receive approval of an amendment to the management plan under §36.1073 of the Texas Water Code. The TCEQ may not take enforcement action against a district under §36.303 of the Texas Water Code until either:                      (i) the board of directors of a district has failed to submit a management plan or amendment of its plan by the required date;                       (ii) the board of directors of a district has failed to submit a revised management plan (or subsequent amendment of a management plan) within 180 days of receiving notice from the executive administrator that the management plan (or subsequent amendment of a management plan) has not been approved and the district has not appealed the executive administrator's decision to the TWDB;                       (iii) the date the TWDB has taken final action withholding approval of a management plan (or a subsequent amendment of a management plan) if the district has appealed the Executive Administrator's decision to the TWDB; or                       (iv) a district court in Travis County has taken final action withholding approval of a management plan (or a subsequent amendment of a management plan) if the district has appealed the TWDB’s decision to a court.                     (B) The TCEQ is responsible for taking certain enforcement actions under §36.303 of the Texas Water Code if a petition requesting an inquiry related to groundwater conservation district planning or management in a groundwater management area is not dismissed and the TCEQ appointed review panel has prepared and submitted a written report detailing findings and recommended actions.                   (C) The TCEQ is responsible for taking certain enforcement action under §36.303 of the Texas Water Code if it is determined by the SAO under §36.302 of the Texas Water Code that a groundwater conservation district is not actively engaged in achieving the objectives of the district's management plan based on an audit of the district's performance under the plan.                   (D) The TCEQ is responsible for investigation of the facts and circumstances of any violations of any rule or order of the commission, consistent with agency authority under §12.081 of the Texas Water Code. The Executive Director must prepare and file a written report with the commission and the subject district which documents the findings of the investigation and includes any recommended enforcement actions the Executive Director believes the commission should take under §36.303 of the Texas Water Code.                   (E) An enforcement order approved by the commission may require the district to take certain action, refrain the district from taking certain actions, dissolve the district’s board of directors, request the Attorney General to bring suit for the appointment of a receiver to collect assets and carry on the business of the district, or dissolve the district, as identified under §36.303(a) of the Texas Water Code.         
        (2) The TWDB. Under §36.1072(c) of the Texas Water Code, the Executive Administrator of the TWDB is responsible for approving groundwater conservation district management plans within 60 days of receipt if the plans are administratively complete. Under §36.1072(c) of the Texas Water Code, if the Executive Administrator does not approve a management plan, the Executive Administrator must provide to the district, in writing, the reasons for the action. Within 180 days after the date of receipt of notice, the district may submit a revised management plan for review and approval. As identified under §36.1072 of the Texas Water Code, the Executive Administrator's decision may be appealed to the TWDB; the decision of the TWDB may also be appealed to a district court in Travis County. TWDB rules in Chapter 356 of Title 31 of the Texas Administrative Code more fully set out these procedures.       
      (d) Agreed activities of each party to this MOA. For the mutual benefit of the parties to this MOA and to provide for a consistent regulatory framework, the parties agree to cooperate in function and service to the following:      
        (1) The Executive Director of the TCEQ will provide written notice to the Executive Administrator of the TWDB when a new groundwater conservation district is created or confirmed by voter election and the district's temporary board of directors has fulfilled its statutory obligation and made such information available to the TCEQ. Also, notice of the following information will be provided to the TWDB within 15 days of receipt of required notifications from the district:                  (A) the name, location, and enabling action for the newly created district;                   (B) the date of statutory creation or the date of creation confirmation election, if an election is required; and                   (C) the name of all directors, mailing address(es), and term expiration dates for directors of the new district.         
        (2) The Executive Administrator of the TWDB will provide written notice to the Executive Director of the TCEQ within 15 days, when the Executive Administrator:                  (A) has not received a groundwater conservation district management plan by the required deadline for submission from a district;                   (B) receives a groundwater conservation district management plan for administrative completeness review;                   (C) approves a groundwater conservation district management plan as administratively complete;                   (D) denies approval of a submitted groundwater conservation district management plan;                   (E) receives a revised version of a groundwater conservation district management plan within the 180-day response period;                   (F) fails to receive a revised version of a groundwater conservation district management plan at the expiration of the 180-day response period;                   (G) receives documentation that a district has appealed the Executive Administrator's management plan approval decision to the TWDB, or a district has appealed TWDB's final decision to a district court in Travis County; or                   (H) receives notice that final action by the TWDB or a district court in Travis County has been completed.         
        (3) The Executive Director of the TCEQ will provide written notice to the Executive Administrator of the TWDB when non-compliance review and oversight actions are taken against a groundwater conservation district. The Executive Director will provide notice when:                  (A) initial notification-of-violation to a non-compliant district is issued;                   (B) favorable actions are taken by a district and the district has voluntarily come into compliance;                   (C) formal enforcement action has been initiated;                   (D) the Executive Director’s Preliminary Report is filed with the TCEQ’s Chief Clerk;                   (E) final enforcement action has been taken by the commission; and                   (F) required follow-up investigative activities are taken by the TCEQ in accordance with §36.306 of the Texas Water Code.         
        (4) Either party to this MOA can substitute the individual notifications identified in paragraphs (1) - (3) of this subsection with monthly notices to the other parties of all actions taken in the previous thirty (30) days. These notices may be transmitted as up-to-date and accurate reports from a database maintained by the party.       
        (5) Both parties agree to:                  (A) meet as needed to coordinate and maintain an efficient district performance review process;                   (B) allow interagency access and review of applicable files relating to processing of a management plan by the TWDB, processing of an enforcement action by the TCEQ, or related file information pertaining to the responsibilities of the agencies;                   (C) share any groundwater conservation district financial reports that may have been voluntarily submitted to an agency;                   (D) provide full disclosure of related activities in the biennial legislative report required under §35.018 of the Texas Water Code; and                   (E) identify the agency contact person and mailing address for the formal communications specified by this MOA, along with periodic update of the contact information, as necessary.         
      (e) General conditions.      
        (1) Term of MOA. The term of this MOA shall be from the effective date until termination or amendment of this MOA.       
        (2) Effective date. This MOA, and any subsequent amendment, shall become effective immediately after the date on which the TCEQ Executive Director and the TWDB Executive Administrator sign the document, which ever date is later.       
        (3) Amendment of MOA. This MOA may be amended by mutual agreement of the two parties in accordance with applicable law. Any amendment of this MOA will become effective immediately after the date on which the TCEQ Executive Director and the TWDB Executive Administrator sign the amended document, which ever date is later.       
        (4) Termination of MOA. This MOA may be terminated by either party upon thirty days written notice. The termination of this MOA will become effective thirty days after notice is received by the other party.       
        (5) Authority. By signing this MOA, the signatories acknowledge that they are acting upon proper authority from their governing bodies.       
        (6) Notices. Any notices required by this MOA to be in writing shall be addressed to the respective party as follows:                  (A) Executive Director, Texas Commission on Environmental Quality, Attn: Todd Chenoweth, P. O. Box, 13087, Austin, TX 78711-3231;                   (B) Executive Administrator, Texas Water Development Board, Attn: Bill Mullican, P.O. Box 13231, Austin, TX 78711-3231; and                   (C) The identified contact person may be revised as necessary, in accordance with provision (d)(5)(E) of this MOA.         
      (f) Dated September 17, 2007.     
     Source Note:        The provisions of this §354.12 adopted to be effective November 13, 2016, 41 TexReg 8827