1-1  By:  Wentworth, Brown                                 S.B. No. 1017
    1-2        (In the Senate - Filed March 8, 1995; March 8, 1995, read
    1-3  first time and referred to Committee on Natural Resources;
    1-4  April 5, 1995, reported adversely, with favorable Committee
    1-5  Substitute by the following vote:  Yeas 8, Nays 2; April 5, 1995,
    1-6  sent to printer.)
    1-7  COMMITTEE SUBSTITUTE FOR S.B. No. 1017                   By:  Brown
    1-8                         A BILL TO BE ENTITLED
    1-9                                AN ACT
   1-10  relating to the designation of water quality protection zones in
   1-11  certain areas.
   1-12        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-13        SECTION 1.  Subchapter E, Chapter 26, Water Code, is amended
   1-14  by adding Section 26.179 to read as follows:
   1-15        Sec. 26.179.  DESIGNATION OF WATER QUALITY PROTECTION ZONES
   1-16  IN CERTAIN AREAS.  (a)  In this section, "water quality protection"
   1-17  may be achieved by:
   1-18              (1)  maintaining background levels of water quality in
   1-19  waterways; or
   1-20              (2)  capturing and retaining the first 1.5 inches of
   1-21  runoff from developed areas.
   1-22        (b)(1)  For the purpose of Subsection (a)(1) "maintaining
   1-23  background levels of water quality in waterways" means maintaining
   1-24  background levels of water quality in waterways comparable to those
   1-25  levels which existed prior to new development as measured by the
   1-26  following constituents:  total suspended solids, total phosphorus,
   1-27  total nitrogen, and chemical and biochemical oxygen demand.
   1-28  Background levels shall be established either from sufficient data
   1-29  collected from water quality monitoring at one or more sites
   1-30  located within the area designated as a water quality protection
   1-31  zone or, if such data are unavailable, from calculations performed
   1-32  and certified by a registered professional engineer utilizing the
   1-33  concepts and data from the National Urban Runoff Program (NURP)
   1-34  Study, or other studies approved by the Texas Natural Resource
   1-35  Conservation Commission, for the constituents resulting from
   1-36  average annual runoff, until such data collected at the site are
   1-37  available.  Background levels for undeveloped sites shall be
   1-38  verified based on monitoring results from other areas of property
   1-39  within the zone prior to its development.  The monitoring shall
   1-40  consist of a minimum of one stage (flow) composite sample for at
   1-41  least four storm events of one-half inch or more of rainfall that
   1-42  occur at least one month apart.  Monitoring of the four
   1-43  constituents shall be determined by monitoring at four or more
   1-44  locations where runoff occurs.  A minimum of four sample events per
   1-45  year for each location for rainfall events greater than one-half
   1-46  inch shall be taken.  Monitoring shall occur for three consecutive
   1-47  years after each phase of development occurs within the water
   1-48  quality protection zone.  Each new phase of development, including
   1-49  associated best management practices, will require monitoring for a
   1-50  three-year period.  The results of the monitoring and a description
   1-51  of the best management practices being used throughout the zone
   1-52  shall be summarized in a technical report and submitted to the
   1-53  commission no later than April 1st of each calendar year during
   1-54  development of the property, although the commission may determine
   1-55  that monitoring is no longer required.  The commission shall review
   1-56  the technical report.  If the performance monitoring and best
   1-57  management practices indicate that background levels were not
   1-58  maintained during the previous year, the owner or developer of land
   1-59  within the water quality protection zone shall:
   1-60                    (A)  modify water quality plans developed under
   1-61  this section for future phases of development in the water quality
   1-62  zone to the extent reasonably feasible and practical; and
   1-63                    (B)  modify operational and maintenance practices
   1-64  in existing phases of the water quality protection zone to the
   1-65  extent reasonably feasible and practical.
   1-66              (2)  Water quality monitoring shall not be required in
   1-67  areas using the methodology described in Subsection (a)(2).
   1-68        (c)  This section applies only to those areas within the
    2-1  extraterritorial jurisdiction, outside the corporate limits of a
    2-2  municipality with a population greater than 5,000 that has extended
    2-3  a water pollution plan to its area of extraterritorial
    2-4  jurisdiction, in which the municipality has enacted or attempted to
    2-5  enforce three or more ordinances or amendments thereto attempting
    2-6  to regulate water quality within the five years preceding the
    2-7  effective date of this Act, whether or not such ordinances or
    2-8  amendments were legally effective on the area.
    2-9        (d)  The owner or owners of a contiguous tract of land in
   2-10  excess of 1,000 acres that is located within an area subject to
   2-11  this section may designate the tract as a "water quality protection
   2-12  zone."  The tract shall be deemed contiguous if all of its parts
   2-13  are physically adjacent, without regard to easements,
   2-14  rights-of-way, roads, streambeds, and public or quasi-public land.
   2-15  The purpose of a water quality protection zone is to provide the
   2-16  flexibility necessary to facilitate the development of the land
   2-17  within the zone but also is intended to result in the protection of
   2-18  the quality of water within the zone.
   2-19        (e)  Water quality protection techniques within a zone may
   2-20  include one or more of the following:  state-of-the-art best
   2-21  management practices, land planning practices, routine monitoring
   2-22  and maintenance, and public education.
   2-23        (f)  A water quality protection zone designated under this
   2-24  section shall be described by metes and bounds.  The designation
   2-25  shall include a general description of the proposed land uses
   2-26  within the zone, a water quality plan for the zone, and a general
   2-27  description of the water quality facilities and infrastructure to
   2-28  be constructed for water quality protection in the zone.
   2-29        (g)  Creation of a water quality protection zone shall become
   2-30  immediately effective on recordation of the designation in the deed
   2-31  records of the county in which the land is located.  The
   2-32  designation shall be signed by the owner or owners of the land and
   2-33  filed with the city clerk of the municipality within whose
   2-34  extraterritorial jurisdiction the zone is located and the clerk of
   2-35  the county in which the property is located.
   2-36        (h)  The water quality plan for a zone, including the
   2-37  determination of background levels of water quality, shall be
   2-38  signed and sealed by a registered professional engineer
   2-39  acknowledging that the plan is designed to achieve the water
   2-40  quality protection standard defined in this section.  The water
   2-41  quality plan shall be submitted to and accepted by the commission
   2-42  for approval, and the commission shall accept and approve the plan
   2-43  unless the commission finds that implementation of the plan will
   2-44  not reasonably attain the water quality protection as defined in
   2-45  this section.  A water quality plan may be amended from time to
   2-46  time on filing with the commission, and all such amendments shall
   2-47  be accepted by the commission unless there is a finding that the
   2-48  amendment will impair the attainment of water quality protection as
   2-49  defined in this section.  The commission shall adopt and assess
   2-50  reasonable and necessary fees adequate to recover the costs of the
   2-51  commission in administering this section.  The commission's review
   2-52  and approval of a water quality plan shall be performed by the
   2-53  commission staff that is responsible for reviewing pollution
   2-54  abatement plans in the county where the zone is located.  The
   2-55  review and approval of the plan shall be completed within 120 days
   2-56  of the date it is filed with the commission.  A public hearing on
   2-57  the plan shall not be required and acceptance, review, and approval
   2-58  of the water quality plan or water quality protection zone shall
   2-59  not be delayed pending the adoption of rules.  The commission shall
   2-60  have the burden of proof for the denial of a plan or amendments to
   2-61  a plan, and any such denial shall be appealable to a court of
   2-62  competent jurisdiction.
   2-63        (i)  The water quality plan for a zone shall be a covenant
   2-64  running with the land.
   2-65        (j)  A municipality may not enforce in a zone any of its
   2-66  ordinances, land use ordinances, rules, or requirements including
   2-67  but not limited to nuisance ordinances, pollution abatement
   2-68  regulations or plans, water quality ordinances, or subdivision
   2-69  requirements, other than technical review and inspections for
   2-70  utilities connecting to a municipally owned water or wastewater
    3-1  system; nor shall a municipality collect fees or assessments or
    3-2  exercise powers of eminent domain within a zone until the zone has
    3-3  been annexed.
    3-4        (k)  Subdivision plats within a water quality protection zone
    3-5  shall be approved by the commissioners court of the county in which
    3-6  the zone is located if (1) the plat complies with the subdivision
    3-7  design regulations of the county, and (2) the plat is acknowledged
    3-8  by a registered professional engineer stating that the plat is in
    3-9  compliance with the water quality plan within the water quality
   3-10  protection zone.
   3-11        (l)  A water quality protection zone implementing a water
   3-12  quality plan which meets the requirements of this section shall be
   3-13  presumed to satisfy all other state and local requirements for the
   3-14  protection of water quality.
   3-15        SECTION 2.  Subsection (b), Section 26.177, Water Code, is
   3-16  amended to read as follows:
   3-17        (b)  The water pollution control and abatement program of a
   3-18  city shall encompass the entire city and, subject to Section
   3-19  26.179, may include areas within its extraterritorial jurisdiction
   3-20  which in the judgment of the city should be included to enable the
   3-21  city to achieve the objectives of the city for the area within its
   3-22  territorial jurisdiction.  The city shall include in the program
   3-23  the services and functions which, in the judgment of the city or as
   3-24  may be reasonably required by the commission, will provide
   3-25  effective water pollution control and abatement for the city,
   3-26  including the following services and functions:
   3-27              (1)  the development and maintenance of an inventory of
   3-28  all significant waste discharges into or adjacent to the water
   3-29  within the city and, where the city so elects, within the
   3-30  extraterritorial jurisdiction of the city, without regard to
   3-31  whether or not the discharges are authorized by the commission;
   3-32              (2)  the regular monitoring of all significant waste
   3-33  discharges included in the inventory prepared pursuant to
   3-34  Subdivision (1) of this subsection;
   3-35              (3)  the collecting of samples and the conducting of
   3-36  periodic inspections and tests of the waste discharges being
   3-37  monitored to determine whether the discharges are being conducted
   3-38  in compliance with this chapter and any applicable permits, orders,
   3-39  or rules of the commission, and whether they should be covered by a
   3-40  permit from the commission;
   3-41              (4)  in cooperation with the commission, a procedure
   3-42  for obtaining compliance by the waste dischargers being monitored,
   3-43  including where necessary the use of legal enforcement proceedings;
   3-44              (5)  the development and execution of reasonable and
   3-45  realistic plans for controlling and abating pollution or potential
   3-46  pollution resulting from generalized discharges of waste which are
   3-47  not traceable to a specific source, such as storm sewer discharges
   3-48  and urban runoff from rainwater; and
   3-49              (6)  any additional services, functions, or other
   3-50  requirements as may be prescribed by commission rule.
   3-51        SECTION 3.  The importance of this legislation and the
   3-52  crowded condition of the calendars in both houses create an
   3-53  emergency and an imperative public necessity that the
   3-54  constitutional rule requiring bills to be read on three several
   3-55  days in each house be suspended, and this rule is hereby suspended,
   3-56  and that this Act take effect and be in force from and after its
   3-57  passage, and it is so enacted.
   3-58                               * * * * *