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.