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A BILL TO BE ENTITLED
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AN ACT
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relating to the continuation and functions of the Texas Commission |
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on Environmental Quality. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 382.05101, Health and Safety Code, is |
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amended to read as follows: |
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Sec. 382.05101. DE MINIMIS AIR CONTAMINANTS. The |
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commission may develop by rule the criteria to establish a de |
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minimis level of air contaminants for facilities or groups of |
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facilities below which the following types of permits are not |
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required: |
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(1) a permit under Section 382.0518 or 382.0519; |
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(2) [,] a standard permit under Section 382.05195, |
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[or] 382.05198, or 382.051985; or |
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(3) [, or] a permit by rule under Section 382.05196 [is |
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not required]. |
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SECTION 2. Section 382.0511(c), Health and Safety Code, is |
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amended to read as follows: |
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(c) The commission may authorize changes in a federal source |
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to proceed before the owner or operator obtains a federal operating |
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permit or revisions to a federal operating permit if: |
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(1) the changes are de minimis under Section |
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382.05101; or |
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(2) the owner or operator: |
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(A) has obtained a preconstruction permit or |
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permit amendment required by Section 382.0518; or |
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(B) is operating under: |
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(i) a standard permit under Section |
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382.05195, [or] 382.05198, or 382.051985; |
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(ii) a permit by rule under Section |
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382.05196; or |
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(iii) an exemption allowed under Section |
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382.057. |
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SECTION 3. Subchapter C, Chapter 382, Health and Safety |
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Code, is amended by adding Section 382.051985 to read as follows: |
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Sec. 382.051985. STANDARD PERMIT FOR CERTAIN TEMPORARY |
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CONCRETE PLANTS FOR PUBLIC WORKS. (a) The commission shall issue a |
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standard permit that meets the requirements of Section 382.05195 |
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for a temporary concrete plant that performs wet batching, dry |
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batching, or central mixing to support a public works project. A |
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plant operating under the permit: |
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(1) may not support a project that is not related to |
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the public works project; and |
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(2) must be located in or contiguous to the |
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right-of-way of the public works project. |
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(b) A plant permitted under this section may occupy a |
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designated site for not more than 180 consecutive days or to supply |
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material for a single project, but not other unrelated projects. |
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SECTION 4. Section 382.056, Health and Safety Code, is |
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amended by adding Subsection (k-2) to read as follows: |
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(k-2) Notwithstanding any other law, if the commission |
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holds a public meeting for a permit application for which |
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consolidated notice was issued under this subchapter, the |
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commission shall hold open the public comment period and the period |
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for which a contested case hearing may be requested for the permit |
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application for at least 36 hours after the end of the meeting. |
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SECTION 5. Section 5.014, Water Code, is amended to read as |
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follows: |
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Sec. 5.014. SUNSET PROVISION. The Texas Commission on |
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Environmental Quality is subject to Chapter 325, Government Code |
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(Texas Sunset Act). Unless continued in existence as provided by |
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that chapter, the commission is abolished [and this chapter |
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expires] September 1, 2035 [2023]. |
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SECTION 6. Section 5.0535, Water Code, is amended by |
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amending Subsection (b) and adding Subsection (d) to read as |
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follows: |
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(b) The training program must provide the person with |
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information regarding: |
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(1) the law governing [legislation that created the] |
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commission operations; |
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(2) the programs, functions, rules, and budget of |
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[operated by] the commission; |
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(3) the scope of and limitations on the rulemaking |
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authority of the commission [the role and functions of the |
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commission]; |
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(4) [the rules of the commission, with an emphasis on |
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the rules that relate to disciplinary and investigatory authority; |
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[(5) the current budget for the commission; |
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[(6)] the results of the most recent formal audit |
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[significant internal and external audits] of the commission; |
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(5) [(7)] the requirements of: |
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(A) laws relating to [the] open meetings, [law, |
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Chapter 551, Government Code; |
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[(B) the] public information, [law, Chapter 552, |
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Government Code; |
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[(C) the] administrative procedure, and |
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disclosing conflicts-of-interest [law, Chapter 2001, Government |
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Code; and |
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[(D) other laws relating to public officials, |
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including conflict-of-interest laws]; and |
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(B) other laws applicable to members of a state |
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policy-making body in performing their duties; and |
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(6) [(8)] any applicable ethics policies adopted by |
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the commission or the Texas Ethics Commission. |
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(d) The executive director shall create a training manual |
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that includes the information required by Subsection (b). The |
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executive director shall distribute a copy of the training manual |
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annually to each member of the commission. Each member of the |
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commission shall sign and submit to the executive director a |
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statement acknowledging that the member received and has reviewed |
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the training manual. |
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SECTION 7. Section 5.113, Water Code, is amended to read as |
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follows: |
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Sec. 5.113. COMMISSION AND STAFF RESPONSIBILITY POLICY. |
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The commission shall develop and implement policies that clearly |
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separate the policy-making [the respective] responsibilities of |
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the commission and the management responsibilities of the executive |
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director and the staff of the commission. |
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SECTION 8. The heading to Section 5.129, Water Code, is |
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amended to read as follows: |
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Sec. 5.129. SUMMARY OF AND INFORMATION PROVIDED BY [FOR] |
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PUBLIC NOTICES. |
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SECTION 9. Section 5.129, Water Code, is amended by |
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amending Subsection (a) and adding Subsection (a-1) to read as |
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follows: |
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(a) The commission by rule shall provide for each public |
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notice issued or published by the commission or by a person under |
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the jurisdiction of the commission as required by law or by |
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commission rule to include: |
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(1) at the beginning of the notice a succinct |
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statement of the subject of the notice; and |
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(2) to the extent applicable, the name of the permit |
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applicant, the type of permit applied for, and the location of each |
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proposed or existing site subject to the proposed permit. |
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(a-1) Rules adopted under this section [The rules] must |
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provide that a summary statement must be designed to inform the |
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reader of the subject matter of the notice without having to read |
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the entire text of the notice. |
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SECTION 10. Subchapter D, Chapter 5, Water Code, is amended |
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by adding Section 5.136 to read as follows: |
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Sec. 5.136. COMMUNITY OUTREACH. The commission shall |
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provide outreach and education to the public on participating in |
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the permitting process under the air, waste, and water programs |
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within the commission's jurisdiction. |
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SECTION 11. Subchapter E, Chapter 5, Water Code, is amended |
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by adding Section 5.1734 to read as follows: |
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Sec. 5.1734. ELECTRONIC POSTING OF PERMIT APPLICATIONS. |
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(a) The commission shall post on its website at the time a permit |
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application becomes administratively complete: |
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(1) the permit application and any associated |
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materials; and |
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(2) for a permit application under Subchapter D, |
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Chapter 11, any map accompanying the permit application. |
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(b) If a permit application is revised or amended after the |
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permit application has become administratively complete, the |
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commission shall post on its website the revised or amended permit |
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application. |
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(c) The commission may exempt any associated materials from |
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being posted on its website under Subsections (a) and (b) if the |
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commission determines that: |
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(1) posting the materials on the website would be |
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unduly burdensome; or |
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(2) the materials are too large to be posted on the |
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website. |
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(d) Notwithstanding any other law, the commission shall |
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require each applicant for a permit, permit amendment, or permit |
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renewal that requires notice be published to include in the notice |
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the address of the website where the public can access information |
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about the permit as described by Subsection (a). |
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(e) In implementing this section, the commission shall |
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consider and accommodate residents of each area affected by a |
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proposed permit, permit amendment, or permit renewal who may need |
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assistance accessing the application and associated materials |
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because of a lack of access to Internet services, particularly when |
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there is a heightened public interest or in response to public |
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comment. |
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SECTION 12. Chapter 5, Water Code, is amended by adding |
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Subchapter M-1 to read as follows: |
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SUBCHAPTER M-1. PERMITTING PROCEDURES GENERALLY |
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Sec. 5.581. DEFINITION. In this subchapter, "permit" means |
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a permit, approval, registration, or other form of authorization |
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required by law for a person to engage in an action. |
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Sec. 5.582. APPLICABILITY. This subchapter applies to |
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programs and permits arising under the air, waste, or water |
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programs within the commission's jurisdiction. |
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Sec. 5.583. ELECTRONIC PUBLICATION OF NOTICE. (a) The |
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commission shall publish notice of a permit application on the |
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commission’s website and may provide additional electronic notice |
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through other means, including direct e-mail. Notice published |
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under this section is in addition to any other notice requirement. |
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(b) The commission shall consider and accommodate residents |
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of each area affected by a proposed permit, permit amendment, or |
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permit renewal who may need assistance accessing notice published |
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by electronic means because of a lack of access to Internet |
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services, particularly when there is a heightened public interest |
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or in response to public comment. |
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Sec. 5.584. VERIFICATION OF NOTICE BY NEWSPAPER. If an |
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applicant for a permit is required to publish notice in a newspaper, |
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the applicant shall provide to the commission a copy of the |
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published notice and an affidavit from the publisher certifying |
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that the notice was published and the publication meets all |
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applicable requirements, including newspaper circulation. |
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Sec. 5.585. SECURITY AT PUBLIC MEETING OR PUBLIC HEARING. |
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The commission may request that an applicant for a permit that is |
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the subject of a public meeting or public hearing provide uniformed |
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security at the meeting or hearing sufficient to provide for the |
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safety of all attendees and orderly conduct at the meeting or |
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hearing. |
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Sec. 5.586. NOTICE TO STATE SENATOR AND STATE |
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REPRESENTATIVE. (a) This section applies only to a permit |
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application for which public notice is required. |
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(b) The commission shall send notice of receipt of the |
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application for a permit to each state senator and state |
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representative who represent the area in which the facility or |
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activity to which the application relates is or will be located. |
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Sec. 5.587. TEMPORARY AND INDEFINITE PERMIT REPORTING. (a) |
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This section does not apply to a person who holds a temporary permit |
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or permit with an indefinite term that has a regular reporting |
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requirement. |
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(b) A person who holds a temporary permit or permit with an |
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indefinite term shall report to the commission annually whether the |
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activity subject to the permit is ongoing. |
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SECTION 13. Section 5.754, Water Code, is amended by |
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amending Subsection (c) and adding Subsection (c-1) to read as |
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follows: |
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(c) In classifying a person's compliance history, the |
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commission shall: |
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(1) determine whether a violation of an applicable |
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legal requirement is of major, moderate, or minor significance; |
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(2) establish criteria for classifying a repeat |
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violator, including: |
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(A) setting the number of major, moderate, and |
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minor violations needed to be classified as a repeat violator; and |
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(B) giving consideration to the size and |
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complexity of the site at which the violations occurred, and |
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limiting consideration to violations of the same nature and the |
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same environmental media that occurred in the preceding five years; |
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and |
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(3) consider: |
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(A) the significance of the violation and whether |
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the person is a repeat violator; |
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(B) the size and complexity of the site, |
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including whether the site is subject to Title V of the federal |
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Clean Air Act (42 U.S.C. Section 7661 et seq.); and |
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(C) the potential for a violation at the site |
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that is attributable to the nature and complexity of the site. |
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(c-1) The executive director may review, suspend, or |
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reclassify a person's compliance history in accordance with |
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commission rules if the executive director determines that exigent |
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circumstances exist. |
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SECTION 14. Section 7.052(c), Water Code, is amended to |
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read as follows: |
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(c) Except as provided by this subsection, the [The] amount |
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of the penalty for all other violations within the jurisdiction of |
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the commission to enforce may not exceed $25,000 a day for each |
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violation. The amount of the penalty for such a violation may not |
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exceed $40,000 a day if: |
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(1) the violation involves: |
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(A) an actual release of pollutants to the air, |
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water, or land that exceeds levels that are protective of human |
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health or environmental receptors; or |
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(B) an actual unauthorized diversion, taking, or |
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storage of state water or an unauthorized change in the flood |
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elevation of a stream that deprives others of water, severely |
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affects aquatic life, or results in a safety hazard, property |
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damage, or economic loss; |
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(2) the person previously committed a violation of the |
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same nature that resulted in the assessment of an administrative |
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penalty; and |
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(3) the commission determines the person could have |
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reasonably anticipated and avoided the violation. |
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SECTION 15. Subchapter C, Chapter 7, Water Code, is amended |
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by adding Section 7.0675 to read as follows: |
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Sec. 7.0675. ENFORCEMENT DIVERSION PROGRAM FOR SMALL |
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BUSINESSES AND LOCAL GOVERNMENTS. (a) In this section, "small |
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business" means a legal entity, including a corporation, |
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partnership, or sole proprietorship, that: |
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(1) is formed for the purpose of making a profit; |
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(2) is independently owned and operated; and |
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(3) has fewer than 100 employees. |
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(b) The commission shall establish an enforcement diversion |
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program for small businesses and local governments. The program |
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must include: |
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(1) resources developed for the small business |
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compliance assistance program under Section 5.135; |
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(2) compliance assistance training; and |
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(3) on-site technical assistance and training |
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performed by commission staff. |
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(c) Before the commission initiates an enforcement action |
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for a violation committed by a small business or local government, |
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the commission may enroll the business or government into the |
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enforcement diversion program. |
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(d) The commission may not enroll a small business or local |
|
government into the enforcement diversion program if an enforcement |
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action against the business or government is required by federal |
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law. |
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(e) The commission may not initiate against a small business |
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or local government an enforcement action for a violation that |
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prompted enrollment in the enforcement diversion program after the |
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business or government has successfully completed the program. |
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(f) A small business or local government is not eligible to |
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enroll in the enforcement diversion program if the business or |
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government: |
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(1) committed a violation that: |
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(A) resulted in an imminent threat to public |
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health; or |
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(B) was a major violation, as classified under |
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Section 5.754; or |
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(2) was enrolled in the program in the two years |
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preceding the date of the violation. |
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SECTION 16. Subchapter B, Chapter 11, Water Code, is |
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amended by adding Section 11.02363 to read as follows: |
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Sec. 11.02363. PERIODIC REVIEW OF ENVIRONMENTAL FLOW |
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STANDARDS; STATEWIDE WORK PLAN. (a) Periodically, the advisory |
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group shall review the environmental flow standards for each river |
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basin and bay system adopted by the commission under Section |
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11.1471. In conducting a review of the environmental flow |
|
standards, the advisory group shall: |
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(1) work with the science advisory committee and the |
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pertinent basin and bay area stakeholder committees and basin and |
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bay expert science teams in a manner similar to that provided by |
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Section 11.02362; |
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(2) take into consideration the work plans developed |
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under Section 11.02362(p); |
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(3) analyze previous environmental flow |
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recommendations and standards; |
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(4) prescribe future monitoring, studies, and |
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activities needed to better understand the environmental flow; and |
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(5) validate or refine: |
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(A) the environmental flow recommendations; |
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(B) the environmental flow standards adopted by |
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the commission; and |
|
(C) strategies to achieve the environmental flow |
|
standards. |
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(b) The advisory group shall develop a biennial statewide |
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work plan to prioritize and schedule the review of environmental |
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flow standards under Subsection (a). The work plan must establish: |
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(1) the methodology used to prioritize the review of |
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the environmental flow standards of each river basin and bay |
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system; and |
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(2) a timeline for the review of the environmental |
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flow standards of each river basin and bay system. |
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(c) The advisory group shall submit to the commission: |
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(1) any review conducted under Subsection (a), |
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including recommendations to the commission for use in adopting |
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rules under Section 11.1471; and |
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(2) the biennial work plan developed under Subsection |
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(b). |
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SECTION 17. Section 11.1471, Water Code, is amended by |
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amending Subsection (f) and adding Subsection (g) to read as |
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follows: |
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(f) An environmental flow standard or environmental flow |
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set-aside adopted under Subsection (a) may be altered by the |
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commission in a rulemaking process undertaken in accordance with a |
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schedule established by the commission. The commission shall |
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consider the review of environmental flow standards by the advisory |
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group under Section 11.02363(a) when altering an environmental flow |
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standard or environmental flow set-aside. In establishing a |
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schedule, the commission shall consider the work plan developed by |
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the advisory group under Section 11.02363(b) and the applicable |
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work plan approved by the advisory group under Section 11.02362(p). |
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The commission's schedule may not provide for the rulemaking |
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process to occur more frequently than once every 10 years unless the |
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work plans provide [plan provides] for a periodic review under |
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Sections 11.02363(a) and [Section] 11.02362(p) to occur more |
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frequently than once every 10 years. In that event, the commission |
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may provide for the rulemaking process to be undertaken in |
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conjunction with the periodic review if the commission determines |
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that schedule to be appropriate. A rulemaking process undertaken |
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under this subsection must provide for the participation of |
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stakeholders having interests in the particular river basin and bay |
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system for which the process is undertaken. |
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(g) The commission shall submit a biennial report to the |
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advisory group on the implementation and effectiveness of |
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environmental flow standards. The report must include: |
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(1) a description of progress made over the previous |
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biennium in implementing environmental flow standards, including |
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the status of any efforts to set aside unappropriated water for |
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environmental flow protection; |
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(2) input provided by the board and the Parks and |
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Wildlife Department on their: |
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(A) activities related to environmental flow |
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standards; and |
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(B) recommendations for the work plan developed |
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under Section 11.02363(b); and |
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(3) recommendations for the work plan developed under |
|
Section 11.02363(b). |
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SECTION 18. Section 49.011(b), Water Code, is amended to |
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read as follows: |
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(b) The commission by rule shall establish a procedure for |
|
public notice and hearing of applications. The rules must require |
|
an applicant to publish the notice issued by the commission under |
|
Subsection (a) once a week for two consecutive weeks in a newspaper |
|
regularly published or circulated in the county where the district |
|
is proposed to be located not later than the 30th day before the |
|
date on which the commission may act on the application. The |
|
commission shall provide the notice to each state representative |
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and state senator who represents an area inside the proposed |
|
district's boundaries. |
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SECTION 19. The following provisions are repealed: |
|
(1) Section 11.0236(m), Water Code; |
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(2) Section 11.02361(g), Water Code; and |
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(3) Section 11.02362(s), Water Code. |
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SECTION 20. (a) Except as provided by Subsection (b) of |
|
this section, Section 5.0535, Water Code, as amended by this Act, |
|
applies to a member of the Texas Commission on Environmental |
|
Quality appointed before, on, or after the effective date of this |
|
Act. |
|
(b) A member of the Texas Commission on Environmental |
|
Quality who, before the effective date of this Act, completed the |
|
training program required by Section 5.0535, Water Code, as that |
|
law existed before the effective date of this Act, is only required |
|
to complete additional training on the subjects added by this Act to |
|
the training program required by Section 5.0535, Water Code. A |
|
member described by this subsection may not vote, deliberate, or be |
|
counted as a member in attendance at a meeting of the commission |
|
held on or after December 1, 2023, until the member completes the |
|
additional training. |
|
SECTION 21. A permit holder subject to Section 5.587, Water |
|
Code, as added by this Act, shall first report to the Texas |
|
Commission on Environmental Quality the status of the permitted |
|
activity not later than December 31, 2024. |
|
SECTION 22. The change in law made by this Act to Section |
|
7.052, Water Code, applies only to a violation that occurs on or |
|
after the effective date of this Act. A violation that occurs |
|
before the effective date of this Act is governed by the law in |
|
effect on the date the violation occurred, and the former law is |
|
continued in effect for that purpose. |
|
SECTION 23. (a) The Texas Commission on Environmental |
|
Quality shall submit to the environmental flows advisory group the |
|
first biennial report on the implementation and effectiveness of |
|
environmental flow standards under Section 11.1471(g), Water Code, |
|
as added by this Act, not later than January 1, 2024. |
|
(b) The environmental flows advisory group shall produce |
|
and deliver to the commission the first biennial statewide work |
|
plan developed under Section 11.02363, Water Code, as added by this |
|
Act, not later than January 1, 2025. |
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SECTION 24. This Act takes effect September 1, 2023. |