74R11842 T By Wentworth, Brown S.B. No. 1017 Substitute the following for S.B. No. 1017: By Lewis of Orange C.S.S.B. No. 1017 A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to the designation of water quality protection zones in 1-3 certain areas. 1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-5 SECTION 1. Subchapter E, Chapter 26, Water Code, is amended 1-6 by adding Section 26.179 to read as follows: 1-7 Sec. 26.179. DESIGNATION OF WATER QUALITY PROTECTION ZONES 1-8 IN CERTAIN AREAS. (a) In this section, "water quality protection" 1-9 may be achieved by: 1-10 (1) maintaining background levels of water quality in 1-11 waterways; or 1-12 (2) capturing and retaining the first 1.5 inches of 1-13 rainfall from developed areas. 1-14 (b) For the purpose of Subsection (a)(1), "maintaining 1-15 background levels of water quality in waterways" means maintaining 1-16 background levels of water quality in waterways comparable to those 1-17 levels which existed prior to new development as measured by the 1-18 following constituents: total suspended solids, total phosphorus, 1-19 total nitrogen, and chemical and biochemical oxygen demand. 1-20 Background levels shall be established either from sufficient data 1-21 collected from water quality monitoring at one or more sites 1-22 located within the area designated as a water quality protection 1-23 zone or, if such data are unavailable, from calculations performed 1-24 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 upon 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 2-26 maintained during the previous year, the owner or developer of land 2-27 within the water quality protection zone shall: 3-1 (1) modify water quality plans developed under this 3-2 section for future phases of development in the water quality 3-3 protection zone to the extent reasonably feasible and practical; 3-4 and 3-5 (2) modify operational and maintenance practices in 3-6 existing phases of the water quality protection zone to the extent 3-7 reasonably feasible and practical. 3-8 Water quality monitoring shall not be required in areas using 3-9 the methodology described by Subsection (a)(2). 3-10 (c) This section applies only to those areas within the 3-11 extraterritorial jurisdiction, outside the corporate limits of a 3-12 municipality with a population greater than 5,000 that has extended 3-13 a water pollution control and abatement program to its area of 3-14 extraterritorial jurisdiction, and in which the municipality 3-15 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 3-26 legally effective upon the area. 3-27 (d) The owner or owners of a contiguous tract of land in 4-1 excess of 1,000 acres that is located within an area subject to 4-2 this section may designate the tract as a "water quality protection 4-3 zone." Upon prior approval of the commission, the owner of a 4-4 contiguous tract of land containing less than 1,000 acres, but not 4-5 less than 500 acres, that is located within an area subject to this 4-6 section may also designate the tract as a "water quality protection 4-7 zone." The tract shall be deemed contiguous if all of its parts 4-8 are physically adjacent, without regard to easements, 4-9 rights-of-way, roads, streambeds, and public or quasi-public land. 4-10 The purpose of a water quality protection zone is to provide the 4-11 flexibility necessary to facilitate the development of the land 4-12 within the zone, but which also is intended to result in the 4-13 protection of the quality of water within the zone. 4-14 (e) A water quality protection zone designated under this 4-15 section shall be described by metes and bounds. The designation 4-16 shall include a general description of the proposed land uses 4-17 within the zone, a water quality plan for the zone, and a general 4-18 description of the water quality facilities and infrastructure to 4-19 be constructed for water quality protection in the zone. 4-20 (f) Creation of a water quality protection zone shall become 4-21 immediately effective upon recordation of the designation in the 4-22 deed records of the county in which the land is located. The 4-23 designation shall be signed by the owner or owners of the land, and 4-24 notice of such filing shall be given to the city clerk of the 4-25 municipality within whose extraterritorial jurisdiction the zone is 4-26 located and the clerk of the county in which the property is 4-27 located. 5-1 (g) The water quality plan for a zone, including the 5-2 determination of background levels of water quality, shall be 5-3 signed and sealed by a registered professional engineer 5-4 acknowledging that the plan is designed to achieve the water 5-5 quality protection standard defined in this section. Upon 5-6 recordation in the deed records, the water quality plan shall be 5-7 submitted to and accepted by the commission for approval, and the 5-8 commission shall accept and approve the plan unless the commission 5-9 finds that implementation of the plan will not reasonably attain 5-10 the water quality protection as defined in this section. A water 5-11 quality plan may be amended from time to time upon filing with the 5-12 commission, and all such amendments shall be accepted by the 5-13 commission unless there is a finding that the amendment will impair 5-14 the attainment of water quality protection as defined in this 5-15 section. The commission shall adopt and assess reasonable and 5-16 necessary fees adequate to recover the costs of the commission in 5-17 administering this section. The commission's review and approval 5-18 of a water quality plan shall be performed by the commission staff 5-19 that is responsible for reviewing pollution abatement plans in the 5-20 county where the zone is located. The review and approval of the 5-21 plan shall be completed within 120 days of the date it is filed 5-22 with the commission. A public hearing on the plan shall not be 5-23 required, and acceptance, review, and approval of the water quality 5-24 plan or water quality protection zone shall not be delayed pending 5-25 the adoption of rules. The commission shall have the burden of 5-26 proof for the denial of a plan or amendments to a plan, and any 5-27 such denial shall be appealable to a court of competent 6-1 jurisdiction. 6-2 (h) The water quality plan for a zone shall be a covenant 6-3 running with the land. 6-4 (i) A municipality may not enforce in a zone any of its 6-5 ordinances, land use ordinances, rules, or requirements including, 6-6 but not limited to, the abatement of nuisances, pollution control 6-7 and abatement programs or regulations, water quality ordinances, 6-8 subdivision requirements (other than technical review and 6-9 inspections for utilities connecting to a municipally owned water 6-10 or wastewater system), or any environmental regulations which are 6-11 inconsistent with the land use plan and the water quality plan or 6-12 which in any way limit, modify, or impair the ability to implement 6-13 and operate the water quality plan and the land use plan within the 6-14 zone as filed; nor shall a municipality collect fees or assessments 6-15 or exercise powers of eminent domain within a zone until the zone 6-16 has been annexed for the municipality. A water quality protection 6-17 zone may be annexed by a municipality only after the installation 6-18 and completion of 90 percent of all facilities and infrastructure 6-19 described in the water quality plan for the entire zone as being 6-20 necessary to carry out such plan or the expiration of 20 years from 6-21 the date of designation of the zone, whichever occurs first. 6-22 (j) Subdivision plats within a water quality protection zone 6-23 shall be approved by the municipality in whose extraterritorial 6-24 jurisdiction the zone is located and the commissioners court of the 6-25 county in which the zone is located if: 6-26 (1) the plat complies with the subdivision design 6-27 regulations of the county; and 7-1 (2) the plat is acknowledged by a registered 7-2 professional engineer stating that the plat is in compliance with 7-3 the water quality plan within the water quality protection zone. 7-4 (k) A water quality protection zone implementing a water 7-5 quality plan which meets the requirements of this section shall be 7-6 presumed to satisfy all other state and local requirements for the 7-7 protection of water quality; provided, however, that: 7-8 (1) development in the zone shall comply with all 7-9 state laws and commission rules regulating water quality which are 7-10 in effect on the date the zoning is designated; and 7-11 (2) nothing in this section shall supersede or 7-12 interfere with the applicability of water quality measures or 7-13 regulations adopted by a conservation and reclamation district 7-14 comprising more than two counties and which apply to the watershed 7-15 area of a lake or reservoir. 7-16 (l)(1) One or more of the provisions of this section may be 7-17 waived by the owner or owners of property that is or becomes 7-18 subject to an agreement between the owner or owners of land within 7-19 the zone and the municipality. The agreement shall be in writing, 7-20 and the parties may agree: 7-21 (A) to guarantee continuation of the 7-22 extraterritorial status of the zone and its immunity from 7-23 annexation by the municipality for a period not to exceed 15 years 7-24 after the effective date of the agreement; 7-25 (B) to authorize certain land uses and 7-26 development within the zone; 7-27 (C) to authorize enforcement by the municipality 8-1 of certain municipal land use and development regulations within 8-2 the zone, in the same manner such regulations are enforced within 8-3 the municipality's boundaries, as may be agreed by the landowner 8-4 and the municipality; 8-5 (D) to vary any watershed protection 8-6 regulations; 8-7 (E) to authorize or restrict the creation of 8-8 political subdivisions within the zone; and 8-9 (F) to such other terms and considerations the 8-10 parties consider appropriate, including, but not limited to, the 8-11 continuation of land uses and zoning after annexation of the zone, 8-12 the provision of water and wastewater service to the property 8-13 within the zone, and the waiver or conditional waiver of provisions 8-14 of this section. 8-15 (2) An agreement under this section shall meet the 8-16 requirements of and have the same force and effect as an agreement 8-17 entered into pursuant to Section 42.046, Local Government Code. 8-18 (m) In addition to the requirements of Subsections (a)(1) 8-19 and (a)(2), the commission may require and enforce additional water 8-20 quality protection measures to comply with mandatory federal water 8-21 quality requirements, standards, permit provisions or regulations. 8-22 (n) This section does not apply to an area within the 8-23 extraterritorial jurisdiction of a municipality with a population 8-24 greater than 900,000 that has extended to the extraterritorial 8-25 jurisdiction of the municipality an ordinance whose purpose is to 8-26 prevent the pollution of an aquifer which is the sole or principal 8-27 drinking water source for the municipality. 9-1 SECTION 2. Section 26.177(b), Water Code, is amended to read 9-2 as follows: 9-3 (b) The water pollution control and abatement program of a 9-4 city shall encompass the entire city and, subject to Section 26.179 9-5 of this code, may include areas within its extraterritorial 9-6 jurisdiction which in the judgment of the city should be included 9-7 to enable the city to achieve the objectives of the city for the 9-8 area within its territorial jurisdiction. The city shall include 9-9 in the program the services and functions which, in the judgment of 9-10 the city or as may be reasonably required by the commission, will 9-11 provide effective water pollution control and abatement for the 9-12 city, including the following services and functions: 9-13 (1) the development and maintenance of an inventory of 9-14 all significant waste discharges into or adjacent to the water 9-15 within the city and, where the city so elects, within the 9-16 extraterritorial jurisdiction of the city, without regard to 9-17 whether or not the discharges are authorized by the commission; 9-18 (2) the regular monitoring of all significant waste 9-19 discharges included in the inventory prepared pursuant to 9-20 Subdivision (1) of this subsection; 9-21 (3) the collecting of samples and the conducting of 9-22 periodic inspections and tests of the waste discharges being 9-23 monitored to determine whether the discharges are being conducted 9-24 in compliance with this chapter and any applicable permits, orders, 9-25 or rules of the commission, and whether they should be covered by a 9-26 permit from the commission; 9-27 (4) in cooperation with the commission, a procedure 10-1 for obtaining compliance by the waste dischargers being monitored, 10-2 including where necessary the use of legal enforcement proceedings; 10-3 (5) the development and execution of reasonable and 10-4 realistic plans for controlling and abating pollution or potential 10-5 pollution resulting from generalized discharges of waste which are 10-6 not traceable to a specific source, such as storm sewer discharges 10-7 and urban runoff from rainwater; and 10-8 (6) any additional services, functions, or other 10-9 requirements as may be prescribed by commission rule. 10-10 SECTION 3. The importance of this legislation and the 10-11 crowded condition of the calendars in both houses create an 10-12 emergency and an imperative public necessity that the 10-13 constitutional rule requiring bills to be read on three several 10-14 days in each house be suspended, and this rule is hereby suspended, 10-15 and that this Act take effect and be in force from and after its 10-16 passage, and it is so enacted.