1-1  By:  Alexander (Senate Sponsor - Armbrister)          H.B. No. 2605
    1-2        (In the Senate - Received from the House May 17, 1993;
    1-3  May 19, 1993, read first time and referred to Committee on Natural
    1-4  Resources; May 25, 1993, reported favorably, as amended, by the
    1-5  following vote:  Yeas 6, Nays 0; May 25, 1993, sent to printer.)
    1-6                            COMMITTEE VOTE
    1-7                          Yea     Nay      PNV      Absent 
    1-8        Sims               x                               
    1-9        Truan              x                               
   1-10        Armbrister         x                               
   1-11        Barrientos                                     x   
   1-12        Bivins             x                               
   1-13        Brown                                          x   
   1-14        Carriker                                       x   
   1-15        Lucio              x                               
   1-16        Montford                                       x   
   1-17        Ratliff                                        x   
   1-18        Shelley            x                               
   1-19  COMMITTEE AMENDMENT NO. 1                           By:  Armbrister
   1-20  Amend House Bill 2605 by renumbering Sections 4 through 6 as
   1-21  Sections 12 through 15 and adding new Sections 4 through 11 to read
   1-22  as follows:
   1-23        SECTION 4.  Subsection (h), Section 26.0135, Water Code, is
   1-24  amended to read as follows:
   1-25        (h)  The commission <Texas Water Commission> shall apportion,
   1-26  assess, and recover the reasonable costs of administering water
   1-27  quality management programs under this section from all users of
   1-28  water and wastewater permit holders in the watershed according to
   1-29  the records of the commission generally in proportion to their
   1-30  right, through permit or contract, to use water from and discharge
   1-31  wastewater in the watershed.  The cost to river authorities and
   1-32  others to conduct regional water quality assessment shall be
   1-33  subject to prior review and approval by the commission as to
   1-34  methods of allocation and total amount to be recovered.  The
   1-35  commission shall adopt rules to supervise and implement the water
   1-36  quality assessment and associated costs.  The rules shall ensure
   1-37  that water users and wastewater dischargers do not pay excessive
   1-38  amounts, that a river authority may recover no more than the actual
   1-39  costs of administering the water quality management programs called
   1-40  for in this section, and that no municipality shall be assessed
   1-41  cost for any efforts that duplicate water quality management
   1-42  activities described in Section 26.177 of this chapter.  Costs
   1-43  recovered by the commission are to be deposited to the water
   1-44  quality fund and are appropriated to the commission for the
   1-45  administration of this section and the implementation of regional
   1-46  water quality assessments.
   1-47        SECTION 5.  Subsection (c), Section 26.0291, Water Code, is
   1-48  amended to read as follows:
   1-49        (c)  The fees collected under this section shall be deposited
   1-50  in a special fund in the state treasury to be known as the water
   1-51  quality <waste treatment facility inspection fee> fund.  Money in
   1-52  the fund shall be used as follows:
   1-53              (1)  to supplement any other funds available for paying
   1-54  expenses of the commission in inspecting waste treatment
   1-55  facilities;
   1-56              (2)  to pay for the issuance and renewal of
   1-57  certificates of competency under and to administer Section 26.0301
   1-58  of this code; and
   1-59              (3)  to pay for processing plans or amendments to plans
   1-60  and inspecting the construction of projects under those plans
   1-61  pursuant to Section 26.0461 of this code and rules of the
   1-62  commission adopted under Sections 26.046 and 26.0461 of this code.
   1-63        SECTION 6.  Subsection (e), Section 26.0301, Water Code, is
   1-64  amended to read as follows:
   1-65        (e)  The commission by rule shall set a fee to be paid by
   1-66  each applicant or licensee on the issuance or renewal of a
   1-67  certificate of competency under this section.  The amount of the
   1-68  fee is determined according to the costs of the commission in
    2-1  administering this section, but may not exceed $25 annually for an
    2-2  individual wastewater treatment plant operator and $500 annually
    2-3  for a wastewater treatment facility operations company.  The
    2-4  commission shall deposit any fees collected under this subsection
    2-5  in the state treasury to the credit of the water quality <waste
    2-6  treatment facility inspection> fund.
    2-7        SECTION 7.  Subsection (h), Section 26.0461, Water Code, is
    2-8  amended to read as follows:
    2-9        (h)  A fee collected under this section shall be deposited in
   2-10  the State Treasury to the credit of the water quality <waste
   2-11  treatment facility inspection> fund.
   2-12        SECTION 8.  Sections 370.007-370.008, Health and Safety Code,
   2-13  are amended to read as follows:
   2-14        Sec. 370.007.  Toxic Chemical Release Reporting Funds.
   2-15  <Fund>.  (a)  Toxic <The toxic> chemical release reporting funds
   2-16  <fund> consist of money collected by the commission from:
   2-17              (1)  fees imposed on owners and operators of facilities
   2-18  required to submit a toxic chemical release form; and
   2-19              (2)  penalties imposed under this chapter.
   2-20        (b)  The commission may use the money collected under this
   2-21  chapter <and deposited in the fund> to pay for:
   2-22              (1)  costs incurred by the commission in implementing
   2-23  this chapter; and
   2-24              (2)  other commission activities necessary to implement
   2-25  the Emergency Planning and Community Right-to-Know Act of 1986 (42
   2-26  U.S.C. Section 11001 et seq.).
   2-27        Sec. 370.008.  Disposition of <Toxic Chemical Release Form
   2-28  Reporting> FEES.  (a)  The owner or operator of a facility required
   2-29  to submit a toxic chemical release form under this chapter shall
   2-30  pay, at the time of submission, a fee of $25 for each toxic
   2-31  chemical release form submitted.
   2-32        (b)  The maximum fee for a facility may not exceed $250.
   2-33        (c)  The commission by rule may increase or decrease the
   2-34  toxic chemical release form reporting fee as necessary.
   2-35        (d)  Fees collected under this section shall be deposited in
   2-36  the state treasury to the credit of the hazardous and solid waste
   2-37  fee <toxic chemical release reporting> fund.
   2-38        SECTION 9.  The following funds and accounts, and revenues
   2-39  authorized to be deposited to these funds and accounts, are exempt
   2-40  from the provisions of Subsection (h), Section 403.094, Government
   2-41  Code.  Except as amended by this Act, these funds and accounts are
   2-42  dedicated to the purposes for which they were established under the
   2-43  applicable provisions of law.  The comptroller may, with the
   2-44  concurrence of the treasurer, establish any of the following funds
   2-45  as dedicated accounts in the general revenue fund, provided that
   2-46  such accounts maintain any attributes authorized under provisions
   2-47  of law.
   2-48        (1)  solid waste disposal fee fund authorized under Sections
   2-49  361.013-014, Health and Safety Code;
   2-50        (2)  waste tire recycling fund authorized under Sections
   2-51  361.474-.475, Health and Safety Code;
   2-52        (3)  water well drillers fund authorized under Sections
   2-53  32.014 and 33.012, Water Code;
   2-54        (4)  used oil recycling fund authorized under Section
   2-55  371.061, Health and Safety Code;
   2-56        (5)  clean air fund authorized under Section 382.0622, Health
   2-57  and Safety Code;
   2-58        (6)  water quality fund authorized under Section 5.235(f),
   2-59  Water Code and Sections 26.0291, 26.0301 and 26.0461, Water Code,
   2-60  as amended by this Act;
   2-61        (7)  water rights administration fund authorized under
   2-62  Section 12.113, Water Code;
   2-63        (8)  water utility fund authorized under Section 5.235, Water
   2-64  Code;
   2-65        (9)  spill response fund authorized under Section 26.265,
   2-66  Water Code;
   2-67        (10)  Texas irrigators fund authorized under Section 34.005,
   2-68  Water Code;
   2-69        (11)  hazardous and solid waste fees fund authorized under
   2-70  Sections 361.132 and 370.008, Health and Safety Code, as amended by
    3-1  this Act;
    3-2        (12)  hazardous and solid waste remediation fee fund
    3-3  authorized under Section 361.133, Health and Safety Code;
    3-4        (13)  storage tank fund authorized under Section 26.358,
    3-5  Water Code and Section 8, Article 8900, V.A.C.S.; and
    3-6        (14)  petroleum storage tank remediation fund authorized
    3-7  under Section 26.3573, Water Code.
    3-8        SECTION 10.  The funds and accounts described in Section 9 of
    3-9  this Act are further exempt from any provision of Subsection (b),
   3-10  Section 403.095, Government Code that would authorize the
   3-11  expenditure or transfer of dedicated revenues inconsistent with
   3-12  Section 9 of this Act.  Nothing in this section shall otherwise
   3-13  limit the authority of the legislature to appropriate funds from
   3-14  any fund or account.
   3-15        SECTION 11.  The waste treatment facility inspection fund and
   3-16  the toxic chemical release reporting fund are abolished effective
   3-17  September 1, 1993.
   3-18                         A BILL TO BE ENTITLED
   3-19                                AN ACT
   3-20  relating to collection and use of fees by, and management of the
   3-21  funds of, the water commission.
   3-22        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   3-23        SECTION 1.  Section 5.235, Water Code, is amended to read as
   3-24  follows:
   3-25        Sec. 5.235.  Fees.  (a)  The executive director shall charge
   3-26  and collect the fees prescribed by law <this section>.  The
   3-27  executive director shall make a record of fees prescribed when due
   3-28  and shall render an account to the person charged with the fees.
   3-29  Each fee is a separate charge and is in addition to other fees
   3-30  unless provided otherwise.
   3-31              (1)  Notwithstanding other provisions, the commission
   3-32  by rule may establish due dates, schedules, and procedures for
   3-33  assessment, collection, and remittance of fees due the commission
   3-34  to ensure the cost-effective administration of revenue collection
   3-35  and cash management programs.
   3-36              (2)  Notwithstanding other provisions, the commission
   3-37  by rule shall establish uniform and consistent requirements for the
   3-38  assessment of penalties and interest for late payment of fees owed
   3-39  the state under the commission's jurisdiction.  Penalties and
   3-40  interest established under this section shall not exceed rates
   3-41  established for delinquent taxes under Sections 111.060 and
   3-42  111.061, Tax Code.
   3-43        (b)  Except as specifically provided by this section, the fee
   3-44  for filing an application or petition is $100 plus the cost of any
   3-45  required notice.  The fee for a by-pass permit shall be set by the
   3-46  commission at a reasonable amount to recover costs, but not less
   3-47  than $100.
   3-48        (c)  The fee for filing a water permit application is $100
   3-49  plus the cost of required notice.
   3-50        (d)  The fee for filing an application for fixing or
   3-51  adjusting rates is $100 plus the cost of required notice.
   3-52        (e)  A person who files with the commission a petition for
   3-53  the creation of a water district or addition of sewage and drainage
   3-54  powers or a resolution for a water district conversion must pay a
   3-55  one-time nonrefundable application fee.  The commission by rule may
   3-56  set the application fee in an amount not to exceed the costs of
   3-57  reviewing and processing the application <$700>, plus the cost of
   3-58  required notice.  This fee is the only fee that the commission may
   3-59  charge with regard to the processing of an application for creation
   3-60  of a water district, addition of sewage or drainage powers, or
   3-61  conversion under this code.
   3-62        (f)  A person who files a bond issue application with the
   3-63  commission must pay an application fee set by the commission.  The
   3-64  commission by rule may set the application fee in an amount not to
   3-65  exceed the costs of reviewing and processing the application
   3-66  <$500>, plus the cost of required notice.  If the bonds are
   3-67  approved by the commission, the seller shall pay to the commission
   3-68  a percentage of the bond proceeds not later than the seventh
   3-69  business day after receipt of the bond proceeds.  The commission by
   3-70  rule may set the percentage of the proceeds in an amount not to
    4-1  exceed 0.25 percent of the principal amount of the bonds actually
    4-2  issued.  Revenue from these fees and application fees under
    4-3  Subsection (e) of this section shall be deposited in the state
    4-4  treasury and credited to the water utility <quality> fund.
    4-5  Proceeds of the fees shall be used to supplement any other funds
    4-6  available for paying expenses of the commission in supervising the
    4-7  various bond and construction activities of the districts filing
    4-8  the applications.
    4-9        (g)  The fee for recording an instrument in the office of the
   4-10  commission is $1.25 per page.
   4-11        (h)  The fee for the use of water for irrigation is 50 cents
   4-12  per acre to be irrigated.
   4-13        (i)  The fee for impounding water, except under Section
   4-14  11.142 of this code, is 50 cents per acre-foot of storage, based on
   4-15  the total holding capacity of the reservoir at normal operating
   4-16  level.
   4-17        (j)  The fee for other uses of water not specifically named
   4-18  in this section is $1 per acre-foot, except that no political
   4-19  subdivision may be required to pay fees to use water for recharge
   4-20  of underground freshwater-bearing sands and aquifers or for
   4-21  abatement of natural pollution.
   4-22        (k)  A fee charged under Subsections (h) through (j) of this
   4-23  section for one use of water under a permit from the commission may
   4-24  not exceed $50,000 <$25,000>.  The fee for each additional use of
   4-25  water under a permit for which the maximum fee is paid may not
   4-26  exceed $10,000 <$5,000>.
   4-27        (l)  The fees prescribed by Subsections (h) through (j) of
   4-28  this section are one-time fees, payable when the application for an
   4-29  appropriation is made.  However, if the total fee for a permit
   4-30  exceeds $1,000, the applicant shall pay one-half <one-tenth> of the
   4-31  fee when the application is filed and one-half<, one-tenth> within
   4-32  180 <30> days after notice is mailed to him that the permit is
   4-33  granted<, and the balance before he begins to use water under the
   4-34  permit>.  If the applicant does not pay all of the amount owed
   4-35  before beginning to use water under the permit, the permit is
   4-36  annulled.
   4-37        (m)  If a permit is annulled, the matter reverts to the
   4-38  status of a pending, filed application and, on the payment of use
   4-39  fees as provided by Subsections (h) through (l) of this section
   4-40  <subsection> together with sufficient postage fees for mailing
   4-41  notice of hearing, the commission shall set the application for
   4-42  hearing and proceed as provided by this code.
   4-43        (n)(1)  Each provider of potable water or sewer utility
   4-44  service shall collect a regulatory assessment from each retail
   4-45  customer as follows:
   4-46                    (A)  A public utility as defined in Section
   4-47  13.002 of this code shall collect from each retail customer a
   4-48  regulatory assessment equal to one percent of the charge for retail
   4-49  water or sewer service.
   4-50                    (B)  A water supply or sewer service corporation
   4-51  as defined in Section 13.002 of this code shall collect from each
   4-52  retail customer a regulatory assessment equal to one-half of one
   4-53  percent of the charge for retail water or sewer service.
   4-54                    (C)  A district as defined in Section 50.001 of
   4-55  this code that provides potable water or sewer utility service to
   4-56  retail customers shall collect from each retail customer a
   4-57  regulatory assessment equal to one-half of one percent of the
   4-58  charge for retail water or sewer service.
   4-59              (2)  The regulatory assessment may be listed on the
   4-60  customer's bill as a separate item and shall be collected in
   4-61  addition to other charges for utility services.
   4-62              (3)  The commission shall use the assessments collected
   4-63  under this subsection <from districts> solely to pay costs and
   4-64  expenses incurred by the commission in the regulation of districts,
   4-65  water supply or sewer service corporations, and public utilities
   4-66  under Chapter 13, Water Code.
   4-67              <(4)  The commission shall use the assessments
   4-68  collected from water supply or sewer service corporations solely to
   4-69  pay costs and expenses incurred by the commission in the regulation
   4-70  of water supply or sewer service corporations.>
    5-1              <(5)  The commission shall use the assessments
    5-2  collected from public utilities solely to pay costs and expenses
    5-3  incurred by the commission in the regulation of public utilities.>
    5-4              (4) <(6)>  The commission shall annually use a portion
    5-5  of the assessments to provide on-site technical assistance and
    5-6  training to public utilities, water supply or sewer service
    5-7  corporations, and districts.  The commission shall contract with
    5-8  others to provide the services.
    5-9              (5) <(7)>  The commission by rule may establish due
   5-10  dates, collection procedures, and penalties for late payment
   5-11  related to regulatory assessments under this subsection  <Except as
   5-12  provided by Paragraph (A) of this subdivision, assessments
   5-13  collected from retail customers for the prior 12 months are due on
   5-14  January 15 of each year>.  The executive director shall collect all
   5-15  assessments from the utility service providers, and those funds
   5-16  shall be paid into the state treasury and credited to the water
   5-17  utility fund.
   5-18                    <(A)  A utility service provider may make
   5-19  quarterly payments due on January 15, April 15, July 15, and
   5-20  October 15 of each year.  If payments are made quarterly and
   5-21  received by the commission not later than the 30th day after the
   5-22  due date, the utility service provider may retain an administrative
   5-23  fee equal to 10 percent of the amount due for costs incurred in
   5-24  collecting and remitting the assessment.>
   5-25                    <(B)  The commission shall assess on a utility
   5-26  service provider a penalty equal to 10 percent of the amount due
   5-27  for any payment received after January 31.  Funds delinquent for
   5-28  more than 30 days shall draw interest at the rate of 10 percent a
   5-29  year on the assessment and penalty due.>
   5-30              (6) <(C)>  The commission shall assess a penalty
   5-31  against a municipality with a population of more than 1.5 million
   5-32  that does not provide municipal water and sewer services in an
   5-33  annexed area on or before 4-1/2  years after the annexation takes
   5-34  effect in accordance with Section 43.056, Local Government Code.  A
   5-35  penalty assessed under this paragraph shall be not more than $1,000
   5-36  for each day the services are not provided after 4-1/2  years after
   5-37  the annexation.  A penalty collected under this paragraph shall be
   5-38  deposited into the water utility <a special> fund in the state
   5-39  treasury to be used to provide water and sewer service to residents
   5-40  of the city.
   5-41              (7) <(8)>  The regulatory assessment does not apply to
   5-42  water that has not been treated for the purpose of human
   5-43  consumption.
   5-44        SECTION 2.  Subchapter F, Chapter 5, Water Code, is amended
   5-45  by adding Section 5.237 to read as follows:
   5-46        Sec. 5.237.  OPERATING FUND.  (a)  The Texas Natural Resource
   5-47  Conservation Commission Operating Fund is established in the
   5-48  treasury.  At the request of the commission, the comptroller is
   5-49  authorized to transfer to an account in the operating fund any
   5-50  appropriations made to the commission for the purpose of making
   5-51  expenditures.  After expenditures have been made from the operating
   5-52  fund and proper line-item appropriations identified, the commission
   5-53  shall submit periodic adjustments to the comptroller in summary
   5-54  amounts to record accurate cost allocations to the appropriate
   5-55  funds and accounts.  Periodic adjustments under this section shall
   5-56  be made at least quarterly.
   5-57        (b)  The commission will establish and maintain accounting
   5-58  records adequate to support the periodic reconciliation of
   5-59  operating fund transfers and document expenditures from each fund
   5-60  or account.  All expenditures shall be made consistent with
   5-61  provisions of law relating to the authorized use of each fund or
   5-62  account from which appropriations are made to the commission.
   5-63        SECTION 3.  Section 26.265, Water Code, is amended to read as
   5-64  follows:
   5-65        Sec. 26.265.  Texas Spill Response Fund.  (a)  There is
   5-66  hereby created the Texas Spill Response Fund.  This fund shall not
   5-67  exceed $5 million, exclusive of fines and penalties received under
   5-68  this subchapter.
   5-69        (b)  The fund shall consist of money appropriated to it by
   5-70  the legislature and any fines, civil penalties, or other
    6-1  reimbursement to the fund provided for under this subchapter.
    6-2        (c)  The <executive director with the approval of the>
    6-3  commission may expend money in the fund only for the purposes
    6-4  <purpose> of:
    6-5              (1)  response to and investigation of spills and
    6-6  discharges;
    6-7              (2)  obtaining personnel, equipment, and supplies
    6-8  required in the cleanup of discharges and spills; and<, including>
    6-9              (3)  the assessment of damages to and the restoration
   6-10  of land and aquatic resources held in trust or owned by the state.
   6-11        (d)  In addition to any cause of action under Chapter 40,
   6-12  Natural Resources Code, the state has a cause of action against any
   6-13  responsible person for recovery of:
   6-14              (1)  expenditures out of the fund; and
   6-15              (2)  costs that would have been incurred or paid by the
   6-16  responsible person if the responsible person had fully carried out
   6-17  the duties under Section 26.266 of this code, including:
   6-18                    (A)  reasonable costs of reasonable and necessary
   6-19  scientific studies to determine impacts of the spill on the
   6-20  environment and natural resources and to determine the manner in
   6-21  which to respond to spill impacts;
   6-22                    (B)  costs of attorney services;
   6-23                    (C)  out-of-pocket costs associated with state
   6-24  agency action;
   6-25                    (D)  reasonable costs incurred by the state in
   6-26  cleanup operations, including costs of personnel, equipment, and
   6-27  supplies and restoration of land and aquatic resources held in
   6-28  trust or owned by the state; and
   6-29                    (E)  costs of remediating injuries proximately
   6-30  caused by reasonable cleanup activities.
   6-31        (e)  The state's right to recover under Subsection (d) of
   6-32  this section arises whether or not expenditures have actually been
   6-33  made out of the fund.
   6-34        (f)  It is the intent of the legislature that the state
   6-35  attempt to recover the costs of cleanup according to the following
   6-36  priority:
   6-37              (1)  a responsible person; and
   6-38              (2)  the federal government to the extent that recovery
   6-39  from a responsible person is insufficient to pay the costs of
   6-40  cleanup.
   6-41        (g)  In a suit brought under Subsection (d) of this section,
   6-42  any responsible person who, after reasonable notice has been given
   6-43  by the executive director, has failed, after a reasonable period,
   6-44  to carry out his duties under Section 26.266 of this code is liable
   6-45  to the state for twice the costs incurred by the state under this
   6-46  subchapter in cleaning up the spill or discharge.  Reasonable
   6-47  notice under this subsection must include a statement as to the
   6-48  basis for finding the person to whom notice is sent to be a
   6-49  responsible person.  Any responsible person held liable under this
   6-50  subsection or Subsection (d) of this section has the right to
   6-51  recover indemnity or contribution from any third party who caused,
   6-52  suffered, allowed, or permitted the spill or discharge.  Liability
   6-53  arising under this subsection or Subsection (d) of this section
   6-54  does not affect any rights the responsible person has against a
   6-55  third party whose acts caused or contributed to the spill or
   6-56  discharge.
   6-57        SECTION 4.  The comptroller shall establish the operating
   6-58  fund authorized under Section 2 of this Act effective September 1,
   6-59  1993.
   6-60        SECTION 5.  No assessment created under this Act, or increase
   6-61  in an existing assessment authorized under this Act, will be
   6-62  collected prior to September 1, 1993.
   6-63        SECTION 6.  The importance of this legislation and the
   6-64  crowded condition of the calendars in both houses create an
   6-65  emergency and an imperative public necessity that the
   6-66  constitutional rule requiring bills to be read on three several
   6-67  days in each house be suspended, and this rule is hereby suspended,
   6-68  and that this Act take effect and be in force from and after its
   6-69  passage, and it is so enacted.
   6-70                               * * * * *
    7-1                                                         Austin,
    7-2  Texas
    7-3                                                         May 25, 1993
    7-4  Hon. Bob Bullock
    7-5  President of the Senate
    7-6  Sir:
    7-7  We, your Committee on Natural Resources to which was referred H.B.
    7-8  No. 2605, have had the same under consideration, and I am
    7-9  instructed to report it back to the Senate with the recommendation
   7-10  that it do pass, as amended, and be printed.
   7-11                                                         Sims,
   7-12  Chairman
   7-13                               * * * * *
   7-14                               WITNESSES
   7-15                                                  FOR   AGAINST  ON
   7-16  ___________________________________________________________________
   7-17  Name:  Stephen Minick                                          x
   7-18  Representing:  Tx Water Commission
   7-19  City:  Austin
   7-20  -------------------------------------------------------------------
   7-21  Name:  Scott Royder                              x
   7-22  Representing:  Sierra Club
   7-23  City:  Austin
   7-24  -------------------------------------------------------------------