By Van de Putte, Corte H.B. No. 3096
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the powers and duties of the Edwards Underground Water
1-3 District; and providing civil and administrative penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. (a) Section 1.41, Chapter 626, Acts of the 73rd
1-6 Legislature, 1993, is repealed.
1-7 (b) Chapter 99, Acts of the 56th Legislature, Regular
1-8 Session, 1959 (Article 8280-219, Vernon's Texas Civil Statutes), is
1-9 not repealed by operation of Section 1.41, Chapter 626, Acts of the
1-10 73rd Legislature, 1993, and remains in effect as if that section
1-11 had not been passed and signed into law.
1-12 SECTION 2. Subsection (a), Section 3, Chapter 99, Acts of
1-13 the 56th Legislature, Regular Session, 1959 (Article 8280-219,
1-14 Vernon's Texas Civil Statutes), is amended by adding Subdivisions
1-15 (17) through (21) to read as follows:
1-16 (17) to require permits for the drilling, equipping, or
1-17 completing of wells, or for all of these operations. The District
1-18 shall promulgate a standard form for a permit application. The
1-19 District shall promptly consider and pass on each application for a
1-20 permit. If, within 30 days after the date it is submitted, an
1-21 application has not been passed on or set for a hearing on a
1-22 specific date, the applicant may petition the district court of the
1-23 county where the land is located for a writ of mandamus to compel
2-1 the district to act on the application or set a date for a hearing
2-2 on the application. A hearing shall be held within 20 days after
2-3 the setting of the date and the district shall act on the
2-4 application within 10 days after the date of the hearing;
2-5 (18) to require advance registration for substantially
2-6 altering the size of wells or well pumps. The District shall
2-7 promulgate a standard advanced registration form for this purpose;
2-8 (19) to apply for and receive gifts, grants, awards,
2-9 and loans from local, state or federal agencies, private
2-10 individuals, companies, or corporations for special projects or
2-11 research or to be used for the operations and maintenance of the
2-12 District;
2-13 (20) to issue or administer grants, loans or other
2-14 financial assistance to water users for water conservation and
2-15 water reuse; and
2-16 (21) to enforce Chapter 26 of the Texas Water Code,
2-17 and commission rules adopted thereunder, within the District's
2-18 boundaries and within a buffer zone that includes all of the area
2-19 within five miles of the northern boundary of the District, and
2-20 carry out the powers and duties granted to the commission
2-21 thereunder. The buffer zone does not include the territory within
2-22 a water management district created under Chapter 654, Acts of the
2-23 71st Legislature, Regular Session, 1989.
2-24 SECTION 3. Subsections (b) - (f), Section 3, Chapter 99,
2-25 Acts of the 56th Legislature, Regular Session, 1959 (Article
3-1 8280-219, Vernon's Texas Civil Statutes), are amended to read as
3-2 follows:
3-3 (b) The Board of Directors may adopt and enforce reasonable
3-4 rules for the purposes of carrying out the powers described in
3-5 <Subdivisions (10) through (16) of> Subsection (a) of this section
3-6 <relating to the development, implementation, and enforcement of
3-7 one or more drought management plans and the registration of water
3-8 wells within the District>.
3-9 (c) If the District adopts rules under <this subsection>
3-10 Subsection (b) of this section, the District shall conduct a public
3-11 hearing within each county in the District to permit members of the
3-12 public to comment on the rules as they may be proposed from time to
3-13 time. Notice of each hearing, along with a brief resume of the
3-14 proposed rules, shall be published once each week for two
3-15 consecutive weeks in one or more newspapers with general
3-16 circulation in the District and the county. The first notice shall
3-17 be published not later than the 14th day before the date the
3-18 hearing is to be held. The hearing shall be conducted by one or
3-19 more officers of the Board of Directors. A rule takes effect not
3-20 earlier than the 14th day after the date of its adoption. The
3-21 District may enforce this section and its rules by injunction,
3-22 mandatory injunction or other appropriate remedy in a court of
3-23 competent jurisdiction as authorized by Section 3(a)(5) of this
3-24 Act.
3-25 <(c)> (d) A person may appeal the reasonableness and
4-1 validity of a rule adopted by the District under this section as
4-2 provided by Subsection <(d)> (e) of this section after first
4-3 appealing to the Texas <Water> Natural Resource Conservation
4-4 Commission under rules adopted by the commission. If the
4-5 commission determines a rule is unreasonable or otherwise invalid,
4-6 it shall, at its discretion, either declare that the rule is null
4-7 and void and direct the Board of Directors of the District to adopt
4-8 a substitute rule or reform the rule so that it is reasonable and
4-9 valid.
4-10 <(d)> (e) A person affected by and dissatisfied with any
4-11 rule made by the District under this section may file suit against
4-12 the District or its Directors to challenge the validity of the
4-13 rule. The suit shall be filed in a court of competent jurisdiction
4-14 in Bexar County.
4-15 <(c)> (f) A person affected by and dissatisfied with any act
4-16 of the Texas <Water> Natural Resource Conservation Commission
4-17 pursuant to this section is entitled to file suit against the Texas
4-18 <Water> Natural Resource Conservation Commission to challenge the
4-19 validity of the act of the commission. The suit shall be filed in
4-20 a court of competent jurisdiction in Travis County. The term
4-21 "person" as used in this section shall have the meaning as stated
4-22 in Section 3A(a) of this Act.
4-23 <(f)> (g) <The Texas Water Commission shall begin
4-24 registration of wells located within the Edwards Underground Water
4-25 District pursuant to rules adopted by the Texas Water Commission in
5-1 accordance with Section 11.201 through 11.207 and Section 28.011,
5-2 Water Code. The registrations shall be completed in a timely
5-3 manner and the information shall be provided to the Edwards
5-4 Underground Water District by March 1, 1988.> On the adoption of
5-5 rules for registration of wells by the Board of Directors in
5-6 accordance with Subsection <(b)> (c) of this section, the District
5-7 shall assume the responsibility for well registration in the
5-8 District.
5-9 SECTION 4. Section 3A, Chapter 99, Acts of the 56th
5-10 Legislature, Regular Session, 1959 (Article 8280-219, Vernon's
5-11 Texas Civil Statutes), is amended by amending Subsections (a) and
5-12 (k) and adding Subsection (r) to read as follows:
5-13 (a) In addition to other powers provided by this Act, the
5-14 District has power to require any person to obtain a permit from
5-15 the District for the transporting of water by pipeline, channel,
5-16 ditch, water-course or other natural or artificial facilities, or
5-17 any combination of such facilities, when such water is produced
5-18 from wells located within the District<, whenever all or any part
5-19 of such water is used or is intended for use outside of the
5-20 boundaries of the District; provided, however, the requirement for
5-21 a permit hereunder shall not apply to (i) any person transporting
5-22 water from such a well located within the District prior to the
5-23 effective date of this section provided an amount of water so
5-24 transported annually shall not exceed by more than ten percent
5-25 (10%) the amount transported in calendar year 1982; (ii) any person
6-1 transporting water on behalf of any incorporated municipality whose
6-2 boundaries lie partly within the District provided such water so
6-3 transported shall be used within the incorporated limits of such
6-4 municipality as such limits are defined as of the effective date of
6-5 this section>. "Person" in this section shall include any
6-6 individual, firm, entity, corporation, municipal corporation,
6-7 governmental or proprietary body, or association of persons.
6-8 (k) Such applications shall not be approved unless the Board
6-9 of Directors finds and determines that the <transporting of water
6-10 for use outside the District> issuance of the permit applied for
6-11 will not substantially affect the quantity and quality of water
6-12 available to any person or property within the District and that
6-13 the proposed use, or any part of the proposed use, will not
6-14 constitute waste as defined under the laws of the State of Texas.
6-15 In considering the application, the District shall consider the
6-16 quantity of water proposed to be transported; the term for which
6-17 the transporting is requested; the safety of the proposed
6-18 transportation facilities with respect to contamination of the
6-19 aquifer; the nature of the proposed use; the effect of the proposed
6-20 use of the water to be transported on District residents in
6-21 proportion to all beneficial use of District residents for
6-22 municipal, agricultural, industrial, recreational, and other
6-23 categories, and such other factors to be consistent with the
6-24 purposes of the District.
6-25 (r) The District may impose a fee on the activities
7-1 described in Subsection (a) of this section.
7-2 SECTION 5. Subsection (a) of Section 3B, Chapter 99, Acts of
7-3 the 56th Legislature, Regular Session, 1959 (Article 8280-219,
7-4 Vernon's Texas Civil Statutes), is amended to read as follows:
7-5 (a) In addition to other powers provided by this Act, the
7-6 District has the power to require any person transporting water
7-7 produced from wells located within the District <for use outside of
7-8 the District>, regardless of the amount of water so transported, to
7-9 register such transporting with the District. Such registration
7-10 shall be made within one hundred eighty (180) days after the
7-11 effective date of this subsection. "Person" in this subsection
7-12 shall include any individual, firm, entity, corporation, municipal
7-13 corporation, governmental or proprietary body or association of
7-14 persons.
7-15 SECTION 6. Chapter 99, Acts of the 56th Legislature, Regular
7-16 Session, 1959 (Article 8280-219, Vernon's Texas Civil Statutes), is
7-17 amended by adding Section 3D to read as follows:
7-18 Sec. 3D. LOANS AND GRANTS. Under the authority granted by
7-19 Section 52-a, Article III, Texas Constitution, the district may
7-20 loan or grant money to any person for:
7-21 (1) water conservation or reuse equipment or
7-22 technology for water conservation or water re-use;
7-23 (2) water conservation, reuse or development projects
7-24 to assist the growth of agriculture or economic development in the
7-25 region; or
8-1 (3) education in the region to promote innovation in
8-2 water conservation or water reuse practices.
8-3 SECTION 7. Chapter 99, Acts of the 56th Legislature, Regular
8-4 Session, 1959 (Article 8280-219, Vernon's Texas Civil Statutes) is
8-5 amended by adding Section 3E to read as follows:
8-6 Sec. 3E. ADMINISTRATIVE PENALTY. (a) If a person violates
8-7 the provisions of this article or a rule, order, license, permit,
8-8 or certificate issued under this article, the person may be
8-9 assessed an administrative penalty by the District. The penalty
8-10 may be in an amount not to exceed $10,000 a day for a person who
8-11 violates this article or a rule, order, license, permit or
8-12 certificate. Each day a violation continues may be considered a
8-13 separate violation for purposes of penalty assessment.
8-14 (b) In determining the amount of the penalty, the District
8-15 shall consider:
8-16 (1) the seriousness of the violation, including but
8-17 not limited to, the nature, circumstances, extent, duration, and
8-18 gravity of the prohibited acts with special emphasis on the hazard
8-19 or potential hazard created to the health or safety of the public;
8-20 (2) the impact of the violation on a receiving stream
8-21 or underground water reservoir, on the property owners along a
8-22 receiving stream or underground water reservoir, and on water users
8-23 of a receiving stream or underground water reservoir;
8-24 (3) the economic damage to property or the environment
8-25 caused by the violation;
9-1 (4) with respect to the alleged violator:
9-2 (A) the history and extent of previous
9-3 violations;
9-4 (B) the degree of culpability, including whether
9-5 the violation was attributable to mechanical or electrical failures
9-6 and whether the violation could have been reasonably anticipated
9-7 and avoided;
9-8 (C) the demonstrated good faith, including
9-9 actions taken by the alleged violator to rectify the cause of the
9-10 violation;
9-11 (D) any economic benefit gained through the
9-12 violation;
9-13 (E) the amount necessary to deter future
9-14 violations; and
9-15 (F) efforts to correct the violation; and
9-16 (5) any other matters that justice may require.
9-17 (c) If, after examination of a possible violation and the
9-18 facts surrounding that possible violation, the general manager of
9-19 the District concludes that a violation has occurred, the general
9-20 manager of the District may issue a preliminary report stating the
9-21 facts on which the general manager based that conclusion,
9-22 recommending that an administrative penalty under this section be
9-23 imposed on the person charged, and recommending the amount of that
9-24 proposed penalty. The general manager of the District shall base
9-25 the recommended amount of the proposed penalty on the factors
10-1 provided by Subsection (b) of this section, and the general manager
10-2 of the District shall analyze each factor for the benefit of the
10-3 District.
10-4 (d) Not later than the 14th day after the date on which the
10-5 report is issued, the general manager of the District shall give
10-6 written notice of the report to the person charged with the
10-7 violation. The notice shall include a brief summary of the
10-8 charges, a statement of the amount of the penalty recommended, and
10-9 a statement of the right of the person charged to a hearing on the
10-10 occurrence of the violation or the amount of the penalty or both,
10-11 the occurrence of the violation and the amount of the penalty.
10-12 (e) Not later than the 20th day after the date on which
10-13 notice is received, the person charged either may give to the
10-14 District written consent to the report of the general manager of
10-15 the District, including the recommended penalty, or may make a
10-16 written request for a hearing.
10-17 (f) If the person charged with the violation consents to the
10-18 penalty recommended by the general manager of the District or fails
10-19 to timely respond to the notice, the District by order shall either
10-20 assess that penalty or order a hearing to be held on the findings
10-21 and recommendations in the report of the general manager of the
10-22 District. If the District assesses the penalty recommended by the
10-23 report, the District shall give written notice to the person
10-24 charged of its decision.
10-25 (g) If the person charged requests, or the District orders,
11-1 a hearing, the District shall call a hearing and give notice of the
11-2 hearing. The hearing shall be held by an administrative law judge
11-3 of the State Office of Administrative Hearings. The administrative
11-4 law judge shall make findings of fact and conclusions of law and
11-5 promptly issue to the District a proposal for a decision about the
11-6 occurrence of the violation and the amount of the proposed penalty.
11-7 Based upon the findings of fact, conclusions of law, and proposal
11-8 for a decision, the District by order either may find that a
11-9 violation has occurred and may assess an administrative penalty,
11-10 may find that a violation has occurred but that no penalty should
11-11 be assessed, or may find that no violation has occurred. All
11-12 proceedings under this subsection are subject to the Administrative
11-13 Procedure Act, Chapter 2001, Government Code. In making any
11-14 penalty decision, the District shall analyze each of the factors
11-15 provided by Subsection (b) of this section.
11-16 (h) The District shall give notice of its decision to the
11-17 person charged, and if the District finds that a violation has
11-18 occurred and has assessed an administrative penalty, the District
11-19 shall give written notice to the person charged of its findings, of
11-20 the amount of the penalty, and of the person's right to judicial
11-21 review of the District's order.
11-22 (i) Within the 30-day period immediately following the day
11-23 on which the District's order is final, as provided by Section
11-24 2001.144, Government Code, the person charged with the penalty
11-25 shall:
12-1 (1) pay the penalty in full; or
12-2 (2) if the person seeks judicial review of either the
12-3 fact of the violation or the amount of the penalty or of both the
12-4 fact of the violation and the amount of the penalty:
12-5 (A) forward the amount of the penalty to the
12-6 District for placement in an escrow account; or
12-7 (B) instead of payment into an escrow account,
12-8 post with the District a supersedeas bond in a form approved by the
12-9 District for the amount of the penalty to be effective until all
12-10 judicial review of the order or decision is final.
12-11 (j) Failure to forward the money to or to post the bond with
12-12 the District within the time provided by Subsection (i) of this
12-13 section results in a waiver of all legal rights to judicial review.
12-14 Also, if the person charged fails to forward the money or post the
12-15 bond as provided by Subsection (i) of this section, the District
12-16 may forward the matter to the attorney general for enforcement.
12-17 (k) Judicial review of the order or decision of the District
12-18 assessing the penalty shall be under the substantial evidence rule
12-19 and shall be instituted by filing a petition in a court of
12-20 competent jurisdiction in the county in which the violation
12-21 occurred or the defendant resides, as provided by Section 2001.176,
12-22 Government Code.
12-23 (l) A penalty collected under this section shall be
12-24 deposited with the District for its own funds.
12-25 (m) Notwithstanding any other provision to the contrary, the
13-1 District may compromise, modify, or remit, with or without
13-2 condition, any administrative penalty imposed under this section.
13-3 (n) Payment of an administrative penalty under this section
13-4 shall be full and complete satisfaction of the violation for which
13-5 the administrative penalty is assessed and shall preclude any other
13-6 civil or criminal penalty for the same violation.
13-7 (o) The fact that a person has a permit issued under this
13-8 article does not relieve the person from any administrative
13-9 liability.
13-10 SECTION 8. Chapter 99, Acts of the 56th Legislature, Regular
13-11 Session, 1959 (Article 8280-219, Vernon's Texas Civil Statutes), is
13-12 amended by adding Section 12A to read as follows:
13-13 Sec. 12A. FEES. (a) In addition to ad valorem taxes
13-14 provided for in Section 10 of this article, the District, acting by
13-15 a two-thirds (2/3) majority vote of the Board of Directors each
13-16 year, is hereby authorized to levy and collect production fees and
13-17 production surcharge fees on each producer of water from the
13-18 underground water-bearing formations within the District. These
13-19 fees are in addition to any other fee that may be imposed under
13-20 this article.
13-21 (b) The District by rule shall adopt a production fee
13-22 schedule and a production surcharge fee schedule for use in
13-23 determining the amount of fees to be charged. The District may
13-24 also adopt a penalty for failure to pay such fees when due, and may
13-25 charge interest at the rate provided by Section 111.60, Tax Code.
14-1 (c) Unless an election is held pursuant to this subsection,
14-2 the District may not adopt a schedule of production fees under
14-3 Subsection (b) of this section which is intended to generate, when
14-4 combined with tax revenues collected pursuant to Section 10 and
14-5 Section 11 of this article, total revenues that exceed the amount
14-6 the District could collect by maximizing its taxing effort under
14-7 Section 10 and Section 11 of this article. The election required
14-8 by this subsection shall be held in accordance with the election
14-9 laws applicable to the voting of taxes for the support of county
14-10 bonds. The schedule of production fees must be approved by a
14-11 majority of those voting in the election. If the schedule of
14-12 production fees is approved it shall remain in effect until another
14-13 schedule is adopted by the District and, if necessary, approved by
14-14 the voters as required by this subsection.
14-15 (d) If a fee imposed by this section is delinquent or if
14-16 interest or a penalty on a delinquent fee has not been paid, the
14-17 District has a prior lien for the fee, penalty, and interest on all
14-18 property and equipment of the producer and on the real property
14-19 where such water is produced. The lien may be enforced by a suit
14-20 filed by the District. Venue of the suit is in the county in which
14-21 the water was produced or the defendant resides.
14-22 SECTION 9. This Act takes effect on September 1, 1995.
14-23 SECTION 10. The importance of this legislation and the
14-24 crowded condition of the calendars in both houses create an
14-25 emergency and an imperative public necessity that the
15-1 constitutional rule requiring bills to be read on three several
15-2 days in each house be suspended, and this rule is hereby suspended,
15-3 and that this Act take effect and be in force from and after its
15-4 passage, and it is so enacted.