By: Brown, Wentworth S.B. No. 1017 A BILL TO BE ENTITLED AN ACT 1-1 relating to the designation of water quality protection zones in 1-2 certain areas. 1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-4 SECTION 1. Subchapter E, Chapter 26, Water Code, is amended 1-5 by adding Section 26.179 to read as follows: 1-6 Sec. 26.179. DESIGNATION OF WATER QUALITY PROTECTION ZONES 1-7 IN CERTAIN AREAS. (a) In this section, "water quality protection" 1-8 may be achieved by: 1-9 (1) maintaining background levels of water quality in 1-10 waterways; or 1-11 (2) capturing and retaining the first 1.5 inches of 1-12 runoff from developed areas. 1-13 (b)(1) For the purpose of Subsection (a)(1) "maintaining 1-14 background levels of water quality in waterways" means maintaining 1-15 background levels of water quality in waterways comparable to those 1-16 levels which existed prior to new development as measured by the 1-17 following constituents: total suspended solids, total phosphorus, 1-18 total nitrogen, and chemical and biochemical oxygen demand. 1-19 Background levels shall be established either from sufficient data 1-20 collected from water quality monitoring at one or more sites 1-21 located within the area designated as a water quality protection 1-22 zone or, if such data are unavailable, from calculations performed 1-23 and certified by a registered professional engineer utilizing the 2-1 concepts and data from the National Urban Runoff Program (NURP) 2-2 Study, or other studies approved by the Texas Natural Resource 2-3 Conservation Commission, for the constituents resulting from 2-4 average annual runoff, until such data collected at the site are 2-5 available. Background levels for undeveloped sites shall be 2-6 verified based on monitoring results from other areas of property 2-7 within the zone prior to its development. The monitoring shall 2-8 consist of a minimum of one stage (flow) composite sample for at 2-9 least four storm events of one-half inch or more of rainfall that 2-10 occur at least one month apart. Monitoring of the four 2-11 constituents shall be determined by monitoring at four or more 2-12 locations where runoff occurs. A minimum of four sample events per 2-13 year for each location for rainfall events greater than one-half 2-14 inch shall be taken. Monitoring shall occur for three consecutive 2-15 years after each phase of development occurs within the water 2-16 quality protection zone. Each new phase of development, including 2-17 associated best management practices, will require monitoring for a 2-18 three-year period. The results of the monitoring and a description 2-19 of the best management practices being used throughout the zone 2-20 shall be summarized in a technical report and submitted to the 2-21 commission no later than April 1st of each calendar year during 2-22 development of the property, although the commission may determine 2-23 that monitoring is no longer required. The commission shall review 2-24 the technical report. If the performance monitoring and best 2-25 management practices indicate that background levels were not 3-1 maintained during the previous year, the owner or developer of land 3-2 within the water quality protection zone shall: 3-3 (A) modify water quality plans developed under 3-4 this section for future phases of development in the water quality 3-5 zone to the extent reasonably feasible and practical; and 3-6 (B) modify operational and maintenance practices 3-7 in existing phases of the water quality protection zone to the 3-8 extent reasonably feasible and practical. 3-9 (2) Water quality monitoring shall not be required in 3-10 areas using the methodology described in Subsection (a)(2). 3-11 (c) This section applies only to those areas within the 3-12 extraterritorial jurisdiction, outside the corporate limits of a 3-13 municipality with a population greater than 5,000 that has extended 3-14 a water pollution plan to its area of extraterritorial 3-15 jurisdiction, in which the municipality has enacted or attempted to 3-16 enforce three or more ordinances or amendments thereto attempting 3-17 to regulate water quality within the five years preceding the 3-18 effective date of this Act, whether or not such ordinances or 3-19 amendments were legally effective on the area. 3-20 (d) The owner or owners of a contiguous tract of land in 3-21 excess of 1,000 acres that is located within an area subject to 3-22 this section may designate the tract as a "water quality protection 3-23 zone." The tract shall be deemed contiguous if all of its parts 3-24 are physically adjacent, without regard to easements, 3-25 rights-of-way, roads, streambeds, and public or quasi-public land. 4-1 The purpose of a water quality protection zone is to provide the 4-2 flexibility necessary to facilitate the development of the land 4-3 within the zone but also is intended to result in the protection of 4-4 the quality of water within the zone. 4-5 (e) Water quality protection techniques within a zone may 4-6 include one or more of the following: state-of-the-art best 4-7 management practices, land planning practices, routine monitoring 4-8 and maintenance, and public education. 4-9 (f) A water quality protection zone designated under this 4-10 section shall be described by metes and bounds. The designation 4-11 shall include a general description of the proposed land uses 4-12 within the zone, a water quality plan for the zone, and a general 4-13 description of the water quality facilities and infrastructure to 4-14 be constructed for water quality protection in the zone. 4-15 (g) Creation of a water quality protection zone shall become 4-16 immediately effective on recordation of the designation in the deed 4-17 records of the county in which the land is located. The 4-18 designation shall be signed by the owner or owners of the land and 4-19 filed with the city clerk of the municipality within whose 4-20 extraterritorial jurisdiction the zone is located and the clerk of 4-21 the county in which the property is located. 4-22 (h) The water quality plan for a zone, including the 4-23 determination of background levels of water quality, shall be 4-24 signed and sealed by a registered professional engineer 4-25 acknowledging that the plan is designed to achieve the water 5-1 quality protection standard defined in this section. The water 5-2 quality plan shall be submitted to and accepted by the commission 5-3 for approval, and the commission shall accept and approve the plan 5-4 unless the commission finds that implementation of the plan will 5-5 not reasonably attain the water quality protection as defined in 5-6 this section. A water quality plan may be amended from time to 5-7 time on filing with the commission, and all such amendments shall 5-8 be accepted by the commission unless there is a finding that the 5-9 amendment will impair the attainment of water quality protection as 5-10 defined in this section. The commission shall adopt and assess 5-11 reasonable and necessary fees adequate to recover the costs of the 5-12 commission in administering this section. The commission's review 5-13 and approval of a water quality plan shall be performed by the 5-14 commission staff that is responsible for reviewing pollution 5-15 abatement plans in the county where the zone is located. The 5-16 review and approval of the plan shall be completed within 120 days 5-17 of the date it is filed with the commission. A public hearing on 5-18 the plan shall not be required and acceptance, review, and approval 5-19 of the water quality plan or water quality protection zone shall 5-20 not be delayed pending the adoption of rules. The commission shall 5-21 have the burden of proof for the denial of a plan or amendments to 5-22 a plan, and any such denial shall be appealable to a court of 5-23 competent jurisdiction. 5-24 (i) The water quality plan for a zone shall be a covenant 5-25 running with the land. 6-1 (j) A municipality may not enforce in a zone any of its 6-2 ordinances, land use ordinances, rules, or requirements including 6-3 but not limited to nuisance ordinances, pollution abatement 6-4 regulations or plans, water quality ordinances, or subdivision 6-5 requirements, other than technical review and inspections for 6-6 utilities connecting to a municipally owned water or wastewater 6-7 system; nor shall a municipality collect fees or assessments or 6-8 exercise powers of eminent domain within a zone until the zone has 6-9 been annexed. 6-10 (k) Subdivision plats within a water quality protection zone 6-11 shall be approved by the commissioners court of the county in which 6-12 the zone is located if (1) the plat complies with the subdivision 6-13 design regulations of the county, and (2) the plat is acknowledged 6-14 by a registered professional engineer stating that the plat is in 6-15 compliance with the water quality plan within the water quality 6-16 protection zone. 6-17 (l) A water quality protection zone implementing a water 6-18 quality plan which meets the requirements of this section shall be 6-19 presumed to satisfy all other state and local requirements for the 6-20 protection of water quality. 6-21 (m)(1) One or more of the provisions of this section may be 6-22 waived by the owner or owners of property that is or becomes 6-23 subject to an agreement between the owner or owners of land within 6-24 the zone and the municipality. The agreement shall be in writing, 6-25 and the parties may agree: 7-1 (A) to guarantee continuation of the 7-2 extraterritorial status of the zone and its immunity from 7-3 annexation by the municipality for a period not to exceed 15 years 7-4 after the effective date of the agreement; 7-5 (B) to authorize certain land uses and 7-6 development within the zone; 7-7 (C) to authorize enforcement by the municipality 7-8 of certain municipal land use and development regulations within 7-9 the zone, in the same manner such regulations are enforced within 7-10 the municipality's boundaries, as may be agreed by the landowner 7-11 and the municipality; 7-12 (D) to vary any watershed protection 7-13 regulations; 7-14 (E) to authorize or restrict the creation of 7-15 political subdivisions within the zone; and 7-16 (F) to such other terms and considerations the 7-17 parties consider appropriate including, but not limited to, the 7-18 continuation of land uses and zoning after annexation of the zone, 7-19 the provision of water and wastewater service to the property 7-20 within the zone, and the waiver or conditional waiver of provisions 7-21 of this section. 7-22 (2) An agreement under this section shall meet the 7-23 requirements of and have the same force and effect as an agreement 7-24 entered into pursuant to Section 42.046, Local Government Code. 7-25 SECTION 2. Subsection (b), Section 26.177, Water Code, is 8-1 amended to read as follows: 8-2 (b) The water pollution control and abatement program of a 8-3 city shall encompass the entire city and, subject to Section 8-4 26.179, may include areas within its extraterritorial jurisdiction 8-5 which in the judgment of the city should be included to enable the 8-6 city to achieve the objectives of the city for the area within its 8-7 territorial jurisdiction. The city shall include in the program 8-8 the services and functions which, in the judgment of the city or as 8-9 may be reasonably required by the commission, will provide 8-10 effective water pollution control and abatement for the city, 8-11 including the following services and functions: 8-12 (1) the development and maintenance of an inventory of 8-13 all significant waste discharges into or adjacent to the water 8-14 within the city and, where the city so elects, within the 8-15 extraterritorial jurisdiction of the city, without regard to 8-16 whether or not the discharges are authorized by the commission; 8-17 (2) the regular monitoring of all significant waste 8-18 discharges included in the inventory prepared pursuant to 8-19 Subdivision (1) of this subsection; 8-20 (3) the collecting of samples and the conducting of 8-21 periodic inspections and tests of the waste discharges being 8-22 monitored to determine whether the discharges are being conducted 8-23 in compliance with this chapter and any applicable permits, orders, 8-24 or rules of the commission, and whether they should be covered by a 8-25 permit from the commission; 9-1 (4) in cooperation with the commission, a procedure 9-2 for obtaining compliance by the waste dischargers being monitored, 9-3 including where necessary the use of legal enforcement proceedings; 9-4 (5) the development and execution of reasonable and 9-5 realistic plans for controlling and abating pollution or potential 9-6 pollution resulting from generalized discharges of waste which are 9-7 not traceable to a specific source, such as storm sewer discharges 9-8 and urban runoff from rainwater; and 9-9 (6) any additional services, functions, or other 9-10 requirements as may be prescribed by commission rule. 9-11 SECTION 3. The importance of this legislation and the 9-12 crowded condition of the calendars in both houses create an 9-13 emergency and an imperative public necessity that the 9-14 constitutional rule requiring bills to be read on three several 9-15 days in each house be suspended, and this rule is hereby suspended, 9-16 and that this Act take effect and be in force from and after its 9-17 passage, and it is so enacted.