1. (a) The fee calculation is based on the authorized limits contained in wastewater permits and water rights as of September 1 each year, without regard to the actual amount or quality of effluent discharged or the actual amount of water used.

2. (b) Assessment for wastewater permits.

   1. (1) An annual fee is assessed against each person holding a wastewater permit. A separate fee is assessed for each wastewater permit.
   2. (2) The maximum fee which may be assessed any permit is $75,000, except that the maximum for an aquaculture permit is $5,000. The minimum fee for an active permit is $800. The minimum fee for an inactive permit is $400.

   3. (3) In assessing a fee under this chapter, the commission considers the following factors:

      1. (A) flow volume, and type;
      2. (B) traditional pollutants;
      3. (C) toxicity rating;
      4. (D) storm water discharge;
      5. (E) major designation;
      6. (F) active or inactive status;
      7. (G) discharge or retention;
      8. (H) the designated uses and ranking classification of waters affected by waste discharges; and

      9. (I) the costs of administering the following commission programs:

         1. (i) water quality administration, including inspection of waste treatment facilities and enforcement of the provisions of Texas Water Code (TWC), Chapter 26, the rules and orders of the commission, and the provisions of commission permits governing waste discharges and waste treatment facilities;
         2. (ii) the Texas Clean Rivers Program, under TWC, §26.0135, which monitors and assesses water quality conditions that support water quality management decisions necessary to maintain and improve the quality of the state's water resources (as defined in TWC, §26.001(5)).
   4. (4) For the purpose of fee calculation, chemical oxygen demand (COD) and total organic carbon (TOC) are converted to biochemical oxygen demand (BOD) values and the highest value is used for fee calculation. The conversion rate for TOC is three pounds of TOC is equal to one pound of BOD (3:1). The conversion rate for COD is eight pounds of COD is equal to one pound of BOD (8:1).

   5. (5) Fee rate schedule. Except as provided in paragraph (6) of this subsection, the fee shall be determined as the sum of the following factors:

      1. (A) contaminated flow, $700 per mgd;
      2. (B) uncontaminated flow, $10 per mgd;
      3. (C) traditional pollutants, $15 per pound per day;

      4. (D) toxic rating for industrial discharges:

         1. (i) Group I, $200;
         2. (ii) Group II, $700;
         3. (iii) Group III, $1,050;
         4. (iv) Group IV, $1,575;
         5. (v) Group V, $3,150; and
         6. (vi) Group VI, $6,300;
      5. (E) major permit designation, $2,000; and
      6. (F) storm water authorization, $500.

   6. (6) For the types of permits listed in this paragraph, these additional guidelines will apply in determining the fee assessment.

      1. (A) Land application (retention) permits. The fee assessed a land application permit shall be 50% of that calculated under paragraph (5) of this subsection. However, in no event shall the fee for an active land application permit be less than $800 per year.
      2. (B) Inactive permits. The fee assessed an inactive permit shall be 50% of that calculated under paragraph (5) of this subsection. In the event an inactive permit is for a land application operation, the fee assessed shall be 25% of that calculated under paragraph (5) of this subsection. However, in no event shall the fee for an inactive permit be less than $400 per year.
      3. (C) Storm water only permits. The fee for an active permit which authorizes discharge of storm water only, with no other wastewater, is $500.

      4. (D) Aquaculture permits.

         1. (i) In determining the flow volume to be used in fee calculation for an aquaculture production facility under paragraph (5) of this subsection, the flow for the facility shall be the facility's permitted annual average flow, or the facility's projected annual average flow if the permit does not have an annual average flow limitation.
         2. (ii) If the facility's permit does not have an annual average flow limitation, the facility's projected annual average flow for the upcoming period from September 1 to August 31 shall be submitted to the executive director by June 30 preceding the fee year and shall be signed and certified as required by §305.44 of this title (relating to Signatories to Applications), and that amount will be used for fee calculation.
         3. (iii) The annual fee for aquaculture production facilities shall not exceed $5,000.
   7. (7) A multiplier may be applied to adjust the total fee per permit, which would also adjust the total assessment for all permits under the Water Quality Fee Program. At the time of initial implementation, the multiplier is set at 1.0, with no impact on the fees.

3. (c) Assessment for water rights.

   1. (1) An annual fee is assessed against each person holding a water right, except for those exemptions specified in this section. A separate fee is assessed for each water right. These fees do not apply to water uses, including domestic and livestock use, which are exempt from the need for authorization from the commission under TWC, Chapter 11.
   2. (2) This fee will apply to all municipal or industrial water rights, or portions thereof, not directly associated with a facility or operation which is assessed a fee under subsection (b) of this section, and to all other types of water rights except agriculture water rights and certain hydroelectric water rights described in paragraph (6) of this subsection.
   3. (3) The fee for each water right authorizing diversion of more than 250 acre-feet per year for consumptive use shall be $.22 per acre-foot up to 20,000 acre-feet, and $.08 per acre-foot thereafter.
   4. (4) An authorization to impound water will be assessed a fee only when there is no associated consumptive use authorized, and then the fee will be calculated at the nonconsumptive rate described in paragraph (5) of this subsection.
   5. (5) Except for water rights for hydropower purposes, the fee shall be $.021 per acre-foot for water rights for non-consumptive use above 2,500 acre-feet per year, up to 50,000 acre-feet, and $.0007 per acre-foot thereafter.
   6. (6) The fee for water rights for hydropower purposes shall be $.04 per acre-foot per year up to 100,000 acre-feet, and $.004 per acre-foot thereafter. This fee shall not be assessed against a holder of a non-priority hydroelectric right who owns or operates privately-owned facilities which collectively have a capacity of less than two megawatts.
   7. (7) Water which is authorized in a water right for consumptive use, but which is designated by a provision in the water right as unavailable for use, may be exempted from the assessment of a fee under paragraph (3) of this subsection.

Source Note:The provisions of this §21.3 adopted to be effective October 6, 2002, 27 TexReg 9356.