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.