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.