BILL ANALYSIS

 

 

Senate Research Center

S.B. 638

 

By: Springer

 

Water, Agriculture & Rural Affairs

 

3/30/2023

 

As Filed

 

 

 

AUTHOR'S / SPONSOR'S STATEMENT OF INTENT

 

As the population of Texas continues to grow, we must secure a water supply for the future to support businesses, drinking water, manufacturing, power production, and other beneficial purposes. Efficient and decisive groundwater management are vital to the continued economic development and prosperity of the state.

 

The bill prevents a groundwater conservation district from indefinitely delaying a decision on a permit application that has gone through the contested case hearing process by setting a 180-day decision deadline for the district to approve, reject, or modify an administrative law judge's proposal for decision (after which the decision can be appealed to district court).

 

The bill amends the quorum requirements of groundwater conservation districts (GCDs) to ensure permit applications are taken up without delay due to recusals or absences.

 

The bill does all this while maintaining a balance between property rights, conservation, and development of groundwater as a precious resource for our state.

 

As proposed, S.B. 638 amends current law relating to the governance and decision-making of groundwater conservation districts in contested cases.

 

RULEMAKING AUTHORITY

 

This bill does not expressly grant any additional rulemaking authority to a state officer, institution, or agency.

 

SECTION BY SECTION ANALYSIS

 

SECTION 1. Amends Section 36.0015(b), Water Code, as follows:

 

(b) Provides that groundwater conservation districts created as provided by Chapter 36 (Groundwater Conservation Districts) are the state's preferred method of groundwater management in order to protect property rights, balance the conservation and development of groundwater to meet the needs of this state, and use the best available science in the conservation and development of groundwater through rules and procedures, rather than rules, developed, adopted, and promulgated by a district in accordance with the provisions of this chapter.

 

SECTION 2. Amends Chapter 36, Water Code, by adding Section 36.003, as follows:

 

Sec. 36.003. IMPORTANCE OF GROUNDWATER TO THE STATE'S ECONOMIC GROWTH. Provides that the legislature recognizes that timely decisions regarding production and transport of private groundwater are essential to the state's continued economic development. Provides that delays in such decisions substantially increase uncertainty and expense, and thereby have a detrimental impact on the state's ability to competitively attract businesses. Provides that, accordingly, districts should ensure timely decisions in accordance with the procedures set forth in this chapter.

 

SECTION 3. Amends Section 36.051, Water Code, by adding Subsection (c-1), as follows:

 

(c-1) Requires a director who has been recused from voting on more than one application for a permit or permit amendment or fails to attend meetings two consecutive meetings of the board of directors of a district (board) to be disqualified from further service on the board. Requires that the resulting vacant position be filled as provided by this chapter or as prescribed by the district's enabling legislation.

 

SECTION 4. Amends Section 36.053, Water Code, as follows:

 

Sec. 36.053. QUORUM. (a) Creates this subsection from existing text. Provides that a majority of the membership of the board constitutes a quorum for any meeting, and a concurrence of a majority of the entire membership of the board is sufficient for transacting any business of the district, except as provided by Subsection (b).

 

(b) Prohibits any board member who is recused from voting or fails to attend from counting towards the quorum or majority requirements set forth in Subsection (a) for purposes of reaching a final decision on a permit or permit amendment application.

 

SECTION 5. Amends Section 36.409, Water Code, as follows:

 

Sec. 36.409. CONTINUANCE. Authorizes the presiding officer to continue a hearing from time to time and from place to place without providing notice under Section 36.404 (Notice); however, such continuance is prohibited from exceeding the time limits prescribed for issuance of a final decision as set forth in Section 36.4165 (Final Decision; Contested Case Hearings).

 

SECTION 6. Amends Section 36.412, Water Code, as follows:

 

Sec. 36.412. REQUEST FOR REHEARING OR FINDINGS AND CONCLUSIONS. (a) Requires a party seeking to appeal a decision by the board to request written findings and conclusions not later than the 20th day after the date of the board's decision, except for decisions by the board under Section 36.4165. Makes a nonsubstantive change.

 

(b) Requires the board, on receipt of a timely written request required by Subsection (a), to make written findings and conclusions regarding a decision of the board on a permit or permit amendment application.

 

(c)-(f) Makes nonsubstantive changes to these subsections.

 

SECTION 7. Amends Section 36.413, Water Code, as follows:

 

Sec. 36.413. DECISION; WHEN FINAL. (a) Provides that a decision by the board on a permit or permit amendment application is final under certain circumstances, including as provided by Section 36.4165(e). Makes a nonsubstantive change.�

 

(b) Makes no changes to this subsection.

 

(c) Prohibits an applicant or a party to a contested hearing from filing suit against the district under Section 36.251 (Suit Against District) if a request for rehearing was not filed on time unless no such request is required under Section 36.4165(e).

 

SECTION 8. Amends Section 36.4165, Water Code, by adding Subsections (c), (d), (e), and (f), as follows:

 

(c) Requires that the final decision issued by the district under Section 36.4165 (Final Decision; Contested Case Hearings) be in writing and either adopt the proposed findings of fact and conclusions of law as proposed by the administrative law judge or include revised findings of fact and conclusions of law consistent with Subsection (b) (relating to authorizing the board to change findings made by the administrative law judge in certain circumstances). Provides that no request for findings of fact or conclusions of law from a party is required under this section.

 

(d) Requires a district, notwithstanding any other timelines provided in this chapter, and unless otherwise agreed to by the applicant, to issue its final decision under this section no later than 180 days after receipt of the proposal for decision, including final disposition of all motions for rehearing.

 

(e) Requires the district to be deemed to have adopted the recommendations of the administrative law judge as a final order if the administrative law judge recommends granting one or more permits, and the district fails to issue its final decision as required by Subsection (d) for any reason.

 

(f) Provides that a decision under Subsection (e) is final and appealable immediately and not subject to a motion for rehearing.

 

SECTION 9. STATUTORY INTERPRETATION. Provides that this Act controls if there is a conflict between this Act and the enabling act of a groundwater conservation district or any other deadlines established by Chapter 36.

 

SECTION 10. (a) Makes application of this Act prospective.

 

(b) Requires that any proposal for decision that has been pending before a district for more than 180 days on the effective date and for which the administrative law judge recommends granting one or more permits to be deemed adopted as a final order subject to immediate appeal and not subject to a motion for rehearing.

 

SECTION 11. Effective date: upon passage or September 1, 2023.