S.B. No. 1017 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 rainfall from developed areas. 1-13 (b) 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 (commission) for the constituents resulting 2-4 from average annual runoff, until such data collected at the site 2-5 are 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 1 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 (1) modify water quality plans developed under this 3-4 section for future phases of development in the water quality 3-5 protection zone to the extent reasonably feasible and practical; 3-6 and 3-7 (2) modify operational and maintenance practices in 3-8 existing phases of the water quality protection zone to the extent 3-9 reasonably feasible and practical. 3-10 Water quality monitoring shall not be required in areas using 3-11 the methodology described by Subsection (a)(2). 3-12 (c) This section applies only to those areas within the 3-13 extraterritorial jurisdiction, outside the corporate limits of a 3-14 municipality with a population greater than 5,000, and in which the 3-15 municipality either: 3-16 (1) has enacted or attempted to enforce three or more 3-17 ordinances or amendments thereto attempting to regulate water 3-18 quality or control or abate water pollution in the area within the 3-19 five years preceding the effective date of this Act, whether or not 3-20 such ordinances or amendments were legally effective upon the area; 3-21 or 3-22 (2) enacts or attempts to enforce three or more 3-23 ordinances or amendments thereto attempting to regulate water 3-24 quality or control or abate water pollution in the area in any 3-25 five-year period, whether or not such ordinances or amendments are 4-1 legally effective upon the area. 4-2 (d) The owner or owners of a contiguous tract of land in 4-3 excess of 1,000 acres that is located within an area subject to 4-4 this section may designate the tract as a "water quality protection 4-5 zone." Upon prior approval of the commission, the owner of a 4-6 contiguous tract of land containing less than 1,000 acres, but not 4-7 less than 500 acres, that is located within an area subject to this 4-8 section may also designate the tract as a "water quality protection 4-9 zone." The tract shall be deemed contiguous if all of its parts 4-10 are physically adjacent, without regard to easements, 4-11 rights-of-way, roads, streambeds, and public or quasi-public land, 4-12 or it is part of an integrated development under common ownership 4-13 or control. The purpose of a water quality protection zone is to 4-14 provide the flexibility necessary to facilitate the development of 4-15 the land within the zone, but which also is intended to result in 4-16 the protection of the quality of water within the zone. 4-17 (e) A water quality protection zone designated under this 4-18 section shall be described by metes and bounds. The designation 4-19 shall include a general description of the proposed land uses 4-20 within the zone, a water quality plan for the zone, and a general 4-21 description of the water quality facilities and infrastructure to 4-22 be constructed for water quality protection in the zone. 4-23 (f) Creation of a water quality protection zone shall become 4-24 immediately effective upon recordation of the designation in the 4-25 deed records of the county in which the land is located. The 5-1 designation shall be signed by the owner or owners of the land, and 5-2 notice of such filing shall be given to the city clerk of the 5-3 municipality within whose extraterritorial jurisdiction the zone is 5-4 located and the clerk of the county in which the property is 5-5 located. 5-6 (g) The water quality plan for a zone, including the 5-7 determination of background levels of water quality, shall be 5-8 signed and sealed by a registered professional engineer 5-9 acknowledging that the plan is designed to achieve the water 5-10 quality protection standard defined in this section. On 5-11 recordation in the deed records, the water quality plan shall be 5-12 submitted to and accepted by the commission for approval, and the 5-13 commission shall accept and approve the plan unless the commission 5-14 finds that implementation of the plan will not reasonably attain 5-15 the water quality protection as defined in this section. A water 5-16 quality plan may be amended from time to time on filing with the 5-17 commission, and all such amendments shall be accepted by the 5-18 commission unless there is a finding that the amendment will impair 5-19 the attainment of water quality protection as defined in this 5-20 section. The commission shall adopt and assess reasonable and 5-21 necessary fees adequate to recover the costs of the commission in 5-22 administering this section. The commission's review and approval 5-23 of a water quality plan shall be performed by the commission staff 5-24 that is responsible for reviewing pollution abatement plans in the 5-25 county where the zone is located. The review and approval of the 6-1 plan shall be completed within 120 days of the date it is filed 6-2 with the commission. A public hearing on the plan shall not be 6-3 required, and acceptance, review, and approval of the water quality 6-4 plan or water quality protection zone shall not be delayed pending 6-5 the adoption of rules. The commission shall have the burden of 6-6 proof for the denial of a plan or amendments to a plan, and any 6-7 such denial shall be appealable to a court of competent 6-8 jurisdiction. The water quality plan, or any amendment thereto, 6-9 shall be effective upon recordation of the plan or the amendment in 6-10 the deed records and shall apply during the period of review and 6-11 approval by the commission or appeal of the denial of the plan or 6-12 any amendment. 6-13 (h) The water quality plan for a zone shall be a covenant 6-14 running with the land. 6-15 (i) A municipality may not enforce in a zone any of its 6-16 ordinances, land use ordinances, rules, or requirements including, 6-17 but not limited to, the abatement of nuisances, pollution control 6-18 and abatement programs or regulations, water quality ordinances, 6-19 subdivision requirements, other than technical review and 6-20 inspections for utilities connecting to a municipally owned water 6-21 or wastewater system, or any environmental regulations which are 6-22 inconsistent with the land use plan and the water quality plan or 6-23 which in any way limit, modify, or impair the ability to implement 6-24 and operate the water quality plan and the land use plan within the 6-25 zone as filed; nor shall a municipality collect fees or assessments 7-1 or exercise powers of eminent domain within a zone until the zone 7-2 has been annexed for the municipality. A water quality protection 7-3 zone may be annexed by a municipality only after the installation 7-4 and completion of 90 percent of all facilities and infrastructure 7-5 described in the water quality plan for the entire zone as being 7-6 necessary to carry out such plan or the expiration of 20 years from 7-7 the date of designation of the zone, whichever occurs first. 7-8 (j) Subdivision plats within a water quality protection zone 7-9 shall be approved by the municipality in whose extraterritorial 7-10 jurisdiction the zone is located and the commissioners court of the 7-11 county in which the zone is located if: 7-12 (1) the plat complies with the subdivision design 7-13 regulations of the county; and 7-14 (2) the plat is acknowledged by a registered 7-15 professional engineer stating that the plat is in compliance with 7-16 the water quality plan within the water quality protection zone. 7-17 (k) A water quality protection zone implementing a water 7-18 quality plan which meets the requirements of this section shall be 7-19 presumed to satisfy all other state and local requirements for the 7-20 protection of water quality; provided, however, that: 7-21 (1) development in the zone shall comply with all 7-22 state laws and commission rules regulating water quality which are 7-23 in effect on the date the zoning is designated; and 7-24 (2) nothing in this section shall supersede or 7-25 interfere with the applicability of water quality measures or 8-1 regulations adopted by a conservation and reclamation district 8-2 comprising more than two counties and which apply to the watershed 8-3 area of a surface lake or surface reservoir that impounds at least 8-4 4,000 acre-feet of water. 8-5 (l)(1) One or more of the provisions of this section may be 8-6 waived by the owner or owners of property that is or becomes 8-7 subject to an agreement entered into after the effective date of 8-8 this Act between the owner or owners of land within the zone and 8-9 the municipality. The agreement shall be in writing, and the 8-10 parties may agree: 8-11 (A) to guarantee continuation of the 8-12 extraterritorial status of the zone and its immunity from 8-13 annexation by the municipality for a period not to exceed 15 years 8-14 after the effective date of the agreement; 8-15 (B) to authorize certain land uses and 8-16 development within the zone; 8-17 (C) to authorize enforcement by the municipality 8-18 of certain municipal land use and development regulations within 8-19 the zone, in the same manner such regulations are enforced within 8-20 the municipality's boundaries, as may be agreed by the landowner 8-21 and the municipality; 8-22 (D) to vary any watershed protection 8-23 regulations; 8-24 (E) to authorize or restrict the creation of 8-25 political subdivisions within the zone; and 9-1 (F) to such other terms and considerations the 9-2 parties consider appropriate, including, but not limited to, the 9-3 continuation of land uses and zoning after annexation of the zone, 9-4 the provision of water and wastewater service to the property 9-5 within the zone, and the waiver or conditional waiver of provisions 9-6 of this section. 9-7 (2) An agreement under this section shall meet the 9-8 requirements of and have the same force and effect as an agreement 9-9 entered into pursuant to Section 42.046, Local Government Code. 9-10 (m) In addition to the requirements of Subsections (a)(1) 9-11 and (a)(2), the commission may require and enforce additional water 9-12 quality protection measures to comply with mandatory federal water 9-13 quality requirements, standards, permit provisions, or regulations. 9-14 (n) This section does not apply to an area within the 9-15 extraterritorial jurisdiction of a municipality with a population 9-16 greater than 900,000 that has extended to the extraterritorial 9-17 jurisdiction of the municipality an ordinance whose purpose is to 9-18 prevent the pollution of an aquifer which is the sole or principal 9-19 drinking water source for the municipality. 9-20 SECTION 2. Subsection (b), Section 26.177, Water Code, is 9-21 amended to read as follows: 9-22 (b) The water pollution control and abatement program of a 9-23 city shall encompass the entire city and, subject to Section 26.179 9-24 of this code, may include areas within its extraterritorial 9-25 jurisdiction which in the judgment of the city should be included 10-1 to enable the city to achieve the objectives of the city for the 10-2 area within its territorial jurisdiction. The city shall include 10-3 in the program the services and functions which, in the judgment of 10-4 the city or as may be reasonably required by the commission, will 10-5 provide effective water pollution control and abatement for the 10-6 city, including the following services and functions: 10-7 (1) the development and maintenance of an inventory of 10-8 all significant waste discharges into or adjacent to the water 10-9 within the city and, where the city so elects, within the 10-10 extraterritorial jurisdiction of the city, without regard to 10-11 whether or not the discharges are authorized by the commission; 10-12 (2) the regular monitoring of all significant waste 10-13 discharges included in the inventory prepared pursuant to 10-14 Subdivision (1) of this subsection; 10-15 (3) the collecting of samples and the conducting of 10-16 periodic inspections and tests of the waste discharges being 10-17 monitored to determine whether the discharges are being conducted 10-18 in compliance with this chapter and any applicable permits, orders, 10-19 or rules of the commission, and whether they should be covered by a 10-20 permit from the commission; 10-21 (4) in cooperation with the commission, a procedure 10-22 for obtaining compliance by the waste dischargers being monitored, 10-23 including where necessary the use of legal enforcement proceedings; 10-24 (5) the development and execution of reasonable and 10-25 realistic plans for controlling and abating pollution or potential 11-1 pollution resulting from generalized discharges of waste which are 11-2 not traceable to a specific source, such as storm sewer discharges 11-3 and urban runoff from rainwater; and 11-4 (6) any additional services, functions, or other 11-5 requirements as may be prescribed by commission rule. 11-6 SECTION 3. The importance of this legislation and the 11-7 crowded condition of the calendars in both houses create an 11-8 emergency and an imperative public necessity that the 11-9 constitutional rule requiring bills to be read on three several 11-10 days in each house be suspended, and this rule is hereby suspended, 11-11 and that this Act take effect and be in force from and after its 11-12 passage, and it is so enacted.