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.