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.