BILL ANALYSIS
C.S.S.B. 1017
By: Wentworth/Brown (R. Lewis)
4-28-95
Committee Report (Substituted)
BACKGROUND
Under current law, cities over 5,000 population are authorized to
extend water quality regulations to their extraterritorial
jurisdiction in order to enable cities to prevent the pollution of
their water supply. Abuse of this authority has led to regulatory
chaos, suffocation of land development outside the city, slashes in
county and school district tax rolls, rising housing costs due to
stalled subdivision projects, loss of construction jobs and other
economic benefits.
PURPOSE
To designate water quality protection zones within the
extraterritorial jurisdiction of certain municipalities in order to
provide the flexibility necessary to develop the land while
ensuring the non-degradation of water quality within the area.
RULEMAKING AUTHORITY
It is the committee's opinion that this bill does not expressly
grant any additional rulemaking authority to a state officer,
department, agency or institution.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Subchapter E, Chapter 26, Water Code, by adding
Section 26.179, as follows:
(a) Authorizes "water quality protection" to be achieved by
maintaining background levels of water quality in waterways or
capturing and retaining the first 1.5 inches of rainfall from
developed areas.
(b) Defines "maintaining background levels of water quality in
waterways" for the purpose of Subsection (a)(1) and requires
monitoring of water quality to verify performance of water
quality plan.
(c) Provides that this section applies only to those areas
within the extraterritorial jurisdiction, outside the
corporate limits of a municipality with a population greater
than 5,000 that has extended a water pollution control and
abatement program to its area of extraterritorial
jurisdiction, in which the municipality has either (1)enacted
or attempted to enforce three or more ordinances or amendments
thereto attempting to regulate water quality within the five
years preceding the effective date of this Act; or (2) enacts
or attempts to enforce three or more ordinances or amendments
thereto to regulate water quality in any five year period.
(d) Authorizes the owner of a contiguous tract of land, over
1,000 acres, located within an area subject to this section,
to designate the tract as a "water quality protection zone"
(protection zone). Authorizes the owner of a tract of land
less than 1,000 acres, but not less than 500 acres, to
designate a water quality protection zone with TNRCC approval.
Requires that the tract to be deemed contiguous if all its
parts are physically adjacent. Provides that the purpose of
a protection zone is to provide the flexibility necessary to
develop the land within the zone, but which also is intended
to result in the protection of the quality of water within the
zone.
(e) Requires a protection zone designated under this section
to be described by metes and bounds. Requires the designation
to include a general description of the proposed land uses, a
water quality plan, and a general description of the water
quality facilities and infrastructures to be constructed for
water quality protection in the zone.
(f) Requires the creation of a protection zone to become
effective immediately upon recordation of the designation in
the deed records of the county where the land is located and
that notice be given to the municipality in whose
extraterritorial jurisdiction the zone is located and the
county where it is located.
(g) Requires the water quality plan for a zone to be signed
and sealed by a registered professional engineer acknowledging
the ability of the plan to achieve the water quality
protection standard defined in this section. Requires the
plan to be submitted to and accepted by the TNRCC for
approval, and requires the TNRCC to accept and approve the
plan unless the TNRCC finds that implementation of the plan
will not reasonably attain the water quality protection as
defined in this section. Sets forth provisions for amendment
to the plan, assessment of fees, and TNRCC review and
enforcement of the plan.
(h) Requires the water quality plan for a zone to be a
covenant running with the land.
(i) Prohibits a municipality from enforcing any of its
ordinances, land use ordinances, rules, or requirements and
from collecting fees or assessments, or exercising powers of
eminent domain within a zone which is inconsistent with or
impairs or limits the water quality plan or land use plan
until annexation of the zone. Allows for annexation of the
zone either after 90 percent of the water quality facilities
are constructed or the expiration of 20 years, whichever
occurs first.
(j) Requires subdivision plats within a protection zone to be
approved by the municipality and commissioners court of the
county, if the plat complies with the county's subdivision
design regulations and if a registered professional engineer
acknowledges that the plat complies with the water quality
plan currently in effect in the protection zone.
(k) States that a protection zone implementing a water quality
plan which meets the requirements of this section satisfies
all other state and local requirements for the protection of
water quality and expressly states that development in the
zone will comply with all state and TNRCC regulations relating
to water quality along with any water quality regulations
adopted by a conservation and reclamation district in the
zone.
(l) Allows for the waiver of one or more of the provisions of
this section by the owner if an agreement is entered into
between the owner and the municipality. Designates what may
be included in such agreement.
(m) Expressly allows the TNRCC to require and enforce
additional water quality protection measures to comply with
mandatory federal water quality requirements.
(n) Clarifies that this section does not apply to an area
within the extraterritorial jurisdiction of a municipality
with a population greater than 900,000 that has extended to
the extraterritorial jurisdiction of the municipality an
ordinance whose purpose is to prevent the pollution of an
aquifer which is the sole or principal drinking water source
for the municipality.
SECTION 2. Amends Section 26.1777(b), Chapter 26E, Water Code, to
subject the water pollution control and abatement program of a city
to Section 26.179, Chapter 26E, Water Code.
SECTION 3. Emergency clause. Effective date upon passage.
COMPARISON OF ORIGINAL TO SUBSTITUTE
The committee substitute is different from the engrossed version of
the S.B. 1017 as follows: changes "runoff" to "rainfall" in
subsection (a); provides that this section is applicable to areas
of extraterritorial jurisdiction of municipalities which have
changed their ordinances in the affected area three times in the
five years prior to this Act or which change the water quality
ordinance three times in any five year period in subsection (c);
allows designation of water quality protection zones of less than
1,000 acres, but not less than 500 acres, with TNRCC approval in
subsection (d); Deletes subsection (e) which lists techniques which
may be used to achieve water quality protection and renumbers
subsequent sections accordingly; requires notice to be given to the
county and municipality in whose extraterritorial jurisdiction the
zone is located as opposed to "filing" in subsection (f); requires
submittal to the TNRCC upon recordation of the zone in the deed
records in subsection (g); specifies that a municipality may not
enforce ordinances which are inconsistent with or that would impair
the ability of the zone to implement the water quality protection
zone in subsection (i); allows for annexation of the zone by a
municipality after completion of 90 percent of water quality
facilities or the expiration of 20 years, whichever occurs first in
subsection (l); requires approval of subdivision plats by the
county and municipality if the plat complies with county
regulations and the water quality plan in subsection (j); clarifies
that all development in a water quality protection zone shall
comply with all state laws and regulations of conservation and
reclamation districts in which it is located in subsection (k);
adds subsection (m) to state that the TNRCC may require and enforce
additional water quality protection measures to comply with federal
requirements; adds subsection (n) to clarifys that this section
does not apply to an area within the extraterritorial jurisdiction
of a municipality with a population greater than 900,000 that has
extended to the extraterritorial jurisdiction of the municipality
an ordinance whose purpose is to prevent the pollution of an
aquifer which is the sole or principal drinking water source for
the municipality.
SUMMARY OF COMMITTEE ACTION
S.B.1017 was considered by the committee in a formal meeting on
April 28, 1995.
No testimony was received.
The committee considered a complete substitute for the bill. The
substitute was adopted without objection.
The bill was reported favorably as substituted, with the
recommendation that it do pass and be printed, by a record vote of
8 ayes, 0 nays, 0 pnv, 1 absent.