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 * * * * *