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 * * * * *