By: Brown S.B. No. 1
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A BILL TO BE ENTITLED
AN ACT
1-1 relating to the development and management of the water resources
1-2 of the state; providing penalties.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 ARTICLE 1. DROUGHT RESPONSE MANAGEMENT
1-5 SECTION 1.01. Subchapter C, Chapter 16, Water Code, is
1-6 amended by adding Section 16.060 to read as follows:
1-7 Sec. 16.060. STATE DROUGHT PLANNING. (a) The executive
1-8 administrator shall prepare, coordinate, and oversee the
1-9 development and implementation of a comprehensive state drought
1-10 plan. The board is the state agency primarily responsible for
1-11 ongoing drought and water supply monitoring, technical and
1-12 financial assistance for drought planning, and administrative
1-13 support of committee functions.
1-14 (b) The state drought plan shall provide for the initial
1-15 development and updating of effective regional and local drought
1-16 response plans.
1-17 (c) The board may provide cost-sharing financial assistance
1-18 from the research and planning fund to assist local governments in
1-19 the development of regional and local drought response plans.
1-20 (d) The drought planning and monitoring committee is
1-21 created. The committee is composed of one representative from each
1-22 of the following entities, appointed by the administrative head of
1-23 that entity:
2-1 (1) the board;
2-2 (2) the commission;
2-3 (3) the Parks and Wildlife Department;
2-4 (4) the division of emergency management in the office
2-5 of the governor;
2-6 (5) the Department of Agriculture; and
2-7 (6) any other entity designated by the governor.
2-8 (e) The representative of the board shall serve as chair of
2-9 the committee.
2-10 (f) The committee shall be responsible for:
2-11 (1) the assessment and public reporting of drought
2-12 monitoring and water supply information;
2-13 (2) advising the office of the governor on significant
2-14 drought concerns;
2-15 (3) recommending specific provisions for a defined
2-16 state response to drought-related disasters for inclusion in the
2-17 state emergency management plan;
2-18 (4) recommending specific provisions for water
2-19 management strategies to be used during droughts and included in
2-20 approved regional water management plans under Section 16.059;
2-21 (5) advising the board on preparation of the state
2-22 drought plan;
2-23 (6) ensuring effective coordination among state,
2-24 local, and federal agencies in drought-response planning; and
2-25 (7) establishing guidelines for the development of
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3-1 effective regional and local drought response plans, taking into
3-2 account the provisions of water conservation plans developed under
3-3 Section 11.1271 and drought contingency plans developed under
3-4 Section 11.1272.
3-5 (g) In performing its duties under this section, the drought
3-6 planning and monitoring committee shall consider the following
3-7 factors when determining whether a drought exists for the purposes
3-8 of this section:
3-9 (1) meteorological conditions and forecasts;
3-10 (2) hydrological conditions and forecasts;
3-11 (3) water use and demand forecasts;
3-12 (4) water supply conditions and forecasts;
3-13 (5) the potential impacts of the water shortage on the
3-14 public health, safety, and welfare and on economic and
3-15 environmental resources; and
3-16 (6) other factors deemed appropriate by the committee.
3-17 SECTION 1.02. Subchapter D, Chapter 11, Water Code, is
3-18 amended by amending Section 11.1271 and adding Section 11.1272 to
3-19 read as follows:
3-20 Sec. 11.1271. ADDITIONAL REQUIREMENTS: WATER CONSERVATION
3-21 PLANS. (a) The commission may require the formulation and
3-22 submission of a water conservation plan and the adoption of
3-23 reasonable water conservation measures, as defined by Subdivision
3-24 (8)(B), Section 11.002, of this code.
3-25 (b) The commission may require the holder of an existing
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4-1 permit, certified filing, or certificate of adjudication for the
4-2 appropriation of surface water in the amount of 200 acre-feet a
4-3 year or more to develop and implement a water conservation plan
4-4 that adopts reasonable water conservation measures, as defined by
4-5 Subdivision (8)(B), Section 11.002, of this code.
4-6 Sec. 11.1272. ADDITIONAL REQUIREMENTS: DROUGHT CONTINGENCY
4-7 PLANS FOR CERTAIN APPLICANTS AND WATER RIGHT HOLDERS. The
4-8 commission shall by rule require wholesale and retail public water
4-9 suppliers to develop drought contingency plans to be implemented
4-10 during periods of water shortages caused by drought.
4-11 SECTION 1.03. Subchapter C, Chapter 11, Water Code, is
4-12 amended by adding Sections 11.0841, 11.0842, and 11.0843 to read as
4-13 follows:
4-14 Sec. 11.0841. PRIVATE CIVIL REMEDY. Nothing in this chapter
4-15 affects the right of any private corporation or individual to
4-16 pursue any available common-law remedy to enforce a right or to
4-17 prevent or seek redress or compensation for the violation of a
4-18 right or otherwise redress an injury.
4-19 Sec. 11.0842. ADMINISTRATIVE PENALTY. (a) If a person
4-20 violates this chapter or a rule or order adopted or a water right
4-21 issued under this chapter, the commission may assess an
4-22 administrative penalty against that person as provided by this
4-23 section.
4-24 (b) The penalty may be in an amount not to exceed $10,000
4-25 for each day the person is in violation of this chapter or the
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5-1 rule, order, or water right. Each day a violation continues may be
5-2 considered a separate violation for purposes of penalty assessment.
5-3 (c) In determining the amount of the penalty, the commission
5-4 shall consider:
5-5 (1) the nature, circumstances, extent, duration, and
5-6 gravity of the prohibited acts, with special emphasis on the
5-7 impairment of existing water rights or the hazard or potential
5-8 hazard created to the health, safety, or welfare of the public;
5-9 (2) the impact of the violation on the instream uses,
5-10 water quality, aquatic and wildlife habitat, or beneficial
5-11 freshwater inflows to bays and estuaries;
5-12 (3) with respect to the alleged violator:
5-13 (A) the history and extent of previous
5-14 violations;
5-15 (B) the degree of culpability, including whether
5-16 the violation was attributable to mechanical or electrical failures
5-17 and whether the violation could have been reasonably anticipated
5-18 and avoided;
5-19 (C) demonstrated good faith, including actions
5-20 taken by the alleged violator to rectify the cause of the violation
5-21 and to compensate affected persons;
5-22 (D) any economic benefit gained through the
5-23 violation; and
5-24 (E) the amount necessary to deter future
5-25 violations; and
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6-1 (4) any other matters that justice may require.
6-2 (d) If, after examination of a possible violation and the
6-3 facts surrounding that possible violation, the executive director
6-4 concludes that a violation has occurred, the executive director may
6-5 issue a preliminary report stating the facts on which that
6-6 conclusion was based, recommending that an administrative penalty
6-7 under this section be imposed on the person charged, and
6-8 recommending the amount of the penalty. The executive director
6-9 shall base the recommended amount of the proposed penalty on the
6-10 factors provided by Subsection (c) of this section and shall
6-11 analyze each factor for the benefit of the commission.
6-12 (e) Not later than the 10th day after the date on which the
6-13 report is issued, the executive director shall give written notice
6-14 of the report to the person charged with the violation. The notice
6-15 shall include a brief summary of the charges, a statement of the
6-16 amount of the penalty recommended, and a statement of the right of
6-17 the person charged to a hearing on the occurrence of the violation,
6-18 the amount of the penalty, or both the occurrence of the violation
6-19 and the amount of the penalty.
6-20 (f) Not later than the 20th day after the date on which
6-21 notice is received, the person charged may either give to the
6-22 commission written consent to the executive director's report,
6-23 including the recommended penalty, or make a written request for a
6-24 hearing.
6-25 (g) If the person charged with the violation consents to the
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7-1 penalty recommended by the executive director or fails to timely
7-2 respond to the notice, the commission by order shall either assess
7-3 the penalty or order a hearing to be held on the findings and
7-4 recommendations in the executive director's report. If the
7-5 commission assesses the penalty recommended by the report, the
7-6 commission shall give written notice of its decision to the person
7-7 charged.
7-8 (h) If the person charged requests or the commission orders
7-9 a hearing, the commission shall call a hearing and give notice of
7-10 the hearing. As a result of the hearing, the commission by order
7-11 either may find that a violation has occurred and may assess a
7-12 penalty, may find that a violation has occurred but that no penalty
7-13 should be assessed, or may find that no violation has occurred.
7-14 All proceedings under this subsection are subject to Chapter 2001,
7-15 Government Code. In making any penalty decision, the commission
7-16 shall analyze each of the factors provided by Subsection (c) of
7-17 this section.
7-18 (i) The commission shall give notice of its decision to the
7-19 person charged, and if the commission finds that a violation has
7-20 occurred and assesses an administrative penalty, the commission
7-21 shall give written notice to the person charged of its findings, of
7-22 the amount of the penalty, and of the person's right to judicial
7-23 review of the commission's order. If the commission is required to
7-24 give notice of a penalty under this subsection or Subsection (g) of
7-25 this section, the commission shall file notice of its decision in
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8-1 the Texas Register not later than the 10th day after the date on
8-2 which the decision is adopted.
8-3 (j) Within the 30-day period immediately following the day
8-4 on which the commission's order is final, as provided by Subchapter
8-5 F, Chapter 2001, Government Code, the person charged with the
8-6 penalty shall:
8-7 (1) pay the penalty in full; or
8-8 (2) pay the amount of the penalty and file a petition
8-9 for judicial review contesting the occurrence of the violation, the
8-10 amount of the penalty, or both the occurrence of the violation and
8-11 the amount of the penalty; or
8-12 (3) without paying the amount of the penalty, file a
8-13 petition for judicial review contesting the occurrence of the
8-14 violation, the amount of the penalty, or both the occurrence of the
8-15 violation and the amount of the penalty.
8-16 (k) Within the 30-day period, a person who acts under
8-17 Subsection (j)(3) of this section may:
8-18 (1) stay enforcement of the penalty by:
8-19 (A) paying the amount of the penalty to the
8-20 court for placement in an escrow account; or
8-21 (B) giving to the court a supersedeas bond that
8-22 is approved by the court for the amount of the penalty and that is
8-23 effective until all judicial review of the commission's order is
8-24 final; or
8-25 (2) request the court to stay enforcement of the
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9-1 penalty by:
9-2 (A) filing with the court a sworn affidavit of
9-3 the person stating that the person is financially unable to pay the
9-4 amount of the penalty and is financially unable to give the
9-5 supersedeas bond; and
9-6 (B) giving a copy of the affidavit to the
9-7 commission by certified mail.
9-8 (l) If the commission receives a copy of an affidavit under
9-9 Subsection (k)(2) of this section, it may file with the court
9-10 within five days after the date the copy is received a contest to
9-11 the affidavit. The court shall hold a hearing on the facts alleged
9-12 in the affidavit as soon as practicable and shall stay the
9-13 enforcement of the penalty on finding that the alleged facts are
9-14 true. The person who files an affidavit has the burden of proving
9-15 that the person is financially unable to pay the amount of the
9-16 penalty and to give a supersedeas bond.
9-17 (m) If the person does not pay the amount of the penalty and
9-18 the enforcement of the penalty is not stayed, the commission may
9-19 refer the matter to the attorney general for collection of the
9-20 amount of the penalty.
9-21 (n) Judicial review of the order or decision of the
9-22 commission assessing the penalty shall be under the substantial
9-23 evidence rule and shall be instituted by filing a petition with a
9-24 district court in Travis County, as provided by Subchapter G,
9-25 Chapter 2001, Government Code.
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10-1 (o) A penalty collected under this section shall be
10-2 deposited in the state treasury to the credit of the general
10-3 revenue fund.
10-4 (p) Notwithstanding any other provision to the contrary, the
10-5 commission may compromise, modify, or remit, with or without
10-6 condition, any penalty imposed under this section.
10-7 (q) Payment of an administrative penalty under this section
10-8 shall be full and complete satisfaction of the violation for which
10-9 the administrative penalty is assessed and shall preclude any other
10-10 civil or criminal penalty for the same violation.
10-11 Sec. 11.0843. FIELD CITATION. (a) Upon witnessing or
10-12 receiving competent evidence of a violation of this chapter or a
10-13 rule or order adopted or a water right issued under this chapter,
10-14 the executive director or a watermaster may issue the alleged
10-15 violator a field citation alleging that a violation has occurred
10-16 and providing the alleged violator the option of either:
10-17 (1) without admitting to or denying the alleged
10-18 violation, paying an administrative penalty in accordance with a
10-19 predetermined penalty amount corresponding to the type of violation
10-20 and taking remedial action as provided in the citation; or
10-21 (2) requesting a hearing on the alleged violation in
10-22 accordance with Section 11.0842 of this code.
10-23 (b) A penalty collected by a watermaster under this section
10-24 shall be remitted to the commission to pay the necessary expenses
10-25 and compensation of the watermaster who issued the citation. At
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11-1 the end of the fiscal year any unspent money remitted to the
11-2 commission by a watermaster under this subsection shall be
11-3 deposited in the state treasury to the credit of the general
11-4 revenue fund. A penalty collected by the executive director under
11-5 this section shall be deposited in the state treasury to the credit
11-6 of the general revenue fund.
11-7 SECTION 1.04. Section 11.139, Water Code, is amended to read
11-8 as follows:
11-9 Sec. 11.139. EMERGENCY AUTHORIZATIONS [PERMITS].
11-10 (a) Except as provided by Section 11.148 of this code, the [The]
11-11 commission may grant an emergency permit, order, or amendment to an
11-12 existing water right [for the diversion and use of water] for an
11-13 initial [a] period of not more than 120 [30] days if it finds that
11-14 emergency conditions exist which present an imminent threat to
11-15 [threaten] the public health, safety, and welfare or the
11-16 environment and which override the necessity to comply with
11-17 established statutory procedures and there are no feasible
11-18 practicable alternatives to the emergency authorization. Such
11-19 emergency action may be renewed once for not longer than 60 days.
11-20 (b) A person desiring to obtain an emergency authorization
11-21 under this section shall submit to the commission a sworn
11-22 application containing the following information:
11-23 (1) a description of the condition of emergency
11-24 justifying the granting of the emergency authorization;
11-25 (2) a statement setting forth facts which support the
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12-1 findings required under this section;
12-2 (3) an estimate of the dates on which the proposed
12-3 authorization should begin and end;
12-4 (4) a description of the action sought and the
12-5 activity proposed to be allowed, mandated, or prohibited; and
12-6 (5) any other statements or information required by
12-7 the commission.
12-8 (c) If the commission finds the applicant's statement made
12-9 under Subsection (b) of this section to be correct, the commission
12-10 may grant emergency authorizations under this section without
12-11 notice and hearing or with such notice and hearing as the
12-12 commission considers practicable under the circumstances.
12-13 (d) If the commission grants an emergency authorization
12-14 under this section without a hearing, the authorization shall fix a
12-15 time and place for a hearing to be held before the commission. The
12-16 hearing shall be held as soon after the emergency authorization is
12-17 granted as is practicable.
12-18 (e) At the hearing, the commission shall affirm, modify, or
12-19 set aside the emergency authorization. Any hearing on an emergency
12-20 authorization shall be conducted in accordance with Chapter 2001,
12-21 Government Code, and rules of the commission. Any set of
12-22 commission rules concerning a hearing or an emergency authorization
12-23 must include provisions for the presentation of evidence by the
12-24 applicant under oath, the presentation of rebuttal evidence, and
12-25 the cross-examination of witnesses.
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13-1 (f) If an imminent threat to the public health, safety, and
13-2 welfare or the environment exists which requires emergency action
13-3 before the commission can take action as provided by Subsections
13-4 (a) through (c) of this section and there are no feasible
13-5 alternatives, the executive director may grant an emergency
13-6 authorization. If the executive director issues an emergency
13-7 authorization under this subsection, the commission shall hold a
13-8 hearing as provided for in Subsection (d) of this section as soon
13-9 as practicable but in no event later than 10 days after issuance of
13-10 the authorization to affirm, modify, or set aside the
13-11 authorization. The requirements of Subsection (b) of this section
13-12 shall be satisfied by the applicant on or before such hearing date.
13-13 (g) The requirements of Section 11.132 of this code relating
13-14 to the time for notice, newspaper notice, and method of giving a
13-15 person notice do not apply to a hearing held on an application for
13-16 an emergency authorization under this section, but such general
13-17 notice of the hearing shall be given as the commission, under
13-18 Subsections (c) and (e) of this section, considers practicable
13-19 under the circumstances.
13-20 (h) The commission may grant an emergency authorization
13-21 under this section for the temporary transfer and use of all or
13-22 part of a surface water right for other than domestic or municipal
13-23 use to a retail or wholesale water supplier for domestic or
13-24 municipal use. In addition to the requirements contained in
13-25 Subsection (b) of this section, the commission may direct that the
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14-1 applicant will timely pay the amounts for which the applicant may
14-2 be potentially liable under this subsection and will fully
14-3 indemnify and hold harmless the state, the executive director, and
14-4 the commission from any and all liability for the authorization
14-5 sought. The commission may order bond or other surety in a form
14-6 acceptable to the commission as a condition for such emergency
14-7 authorization.
14-8 (i) The person granted an emergency authorization under
14-9 Subsection (h) of this section is liable to the owner from whom the
14-10 use is transferred for the fair market value of the water
14-11 transferred as well as for any damages proximately caused by the
14-12 transfer of use. If, within 60 days of the termination of the
14-13 authorization, the parties do not agree on the amount due, or if
14-14 full payment is not made, either party may file a complaint with
14-15 the commission to determine the amount due. The commission shall
14-16 adopt rules establishing a dispute resolution procedure for a
14-17 complaint filed under this subsection. After exhausting all
14-18 administrative remedies under this subsection, an aggrieved party
14-19 may file suit to recover or determine the amount due in a district
14-20 court in the county where the diversion point or points of the
14-21 surface water right which use is being transferred is located. The
14-22 prevailing party in a suit filed under this subsection is entitled
14-23 to recover court costs and reasonable attorney's fees.
14-24 (j) [An emergency permit may be granted for a period of not
14-25 more than 30 days, and no extension or additional emergency permit
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15-1 may be granted at the expiration of the original permit.]
15-2 [(c) An emergency permit may be granted under this section
15-3 without the necessity to comply with statutory and other procedures
15-4 required for granting other permits issued by the commission.]
15-5 [(d)] The commission may prescribe rules and adopt fees
15-6 which are necessary to carry out the provisions of this section.
15-7 (k) [(e)] An emergency authorization [permit] does not vest
15-8 in the grantee [permittee] any right to the diversion, impoundment,
15-9 or [and] use of water and shall expire and be cancelled in
15-10 accordance with its terms.
15-11 SECTION 1.05. Subsection (c), Section 12.052, Water Code, is
15-12 amended to read as follows:
15-13 (c) If the owner of a dam that is required to be
15-14 constructed, reconstructed, repaired, or removed in order to comply
15-15 with the rules and orders promulgated under Subsection (a) of this
15-16 section wilfully fails or refuses to comply within the 30-day
15-17 period following the date of the commission's order to do so or if
15-18 a person wilfully fails to comply with any rule or other order
15-19 issued by the commission under this section within the 30-day
15-20 period following the effective date of the order, he is liable to a
15-21 penalty of not more than $25,000 [$1,000] a day for each day he
15-22 continues to violate this section. The state may recover the
15-23 penalty by suit brought for that purpose in the district court of
15-24 Travis County.
15-25 SECTION 1.06. Subchapter C, Chapter 12, Water Code, is
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16-1 amended by adding Sections 12.053 and 12.054 to read as follows:
16-2 Sec. 12.053. ADMINISTRATIVE PENALTY. (a) If a person
16-3 violates a rule or order adopted under Section 12.052 of this code,
16-4 the commission may assess an administrative penalty against that
16-5 person as provided by this section.
16-6 (b) The penalty may be in an amount not to exceed $25,000
16-7 for each day the person is in violation of the rule or order. Each
16-8 day a violation continues may be considered a separate violation
16-9 for purposes of penalty assessment.
16-10 (c) In determining the amount of the penalty, the commission
16-11 shall consider:
16-12 (1) the nature, circumstances, extent, duration, and
16-13 gravity of the prohibited acts, with special emphasis on the hazard
16-14 or potential hazard created to the health, safety, or welfare of
16-15 the public;
16-16 (2) with respect to the alleged violator:
16-17 (A) the history and extent of previous
16-18 violations;
16-19 (B) the degree of culpability, including whether
16-20 the violation was attributable to mechanical or electrical failures
16-21 and whether the violation could have been reasonably anticipated
16-22 and avoided;
16-23 (C) demonstrated good faith, including actions
16-24 taken by the alleged violator to rectify the cause of the violation
16-25 and to compensate affected persons;
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17-1 (D) any economic benefit gained through the
17-2 violation; and
17-3 (E) the amount necessary to deter future
17-4 violations; and
17-5 (3) any other matters that justice may require.
17-6 (d) If, after examination of a possible violation and the
17-7 facts surrounding that possible violation, the executive director
17-8 concludes that a violation has occurred, the executive director may
17-9 issue a preliminary report stating the facts on which that
17-10 conclusion was based, recommending that an administrative penalty
17-11 under this section be imposed on the person charged, and
17-12 recommending the amount of the penalty. The executive director
17-13 shall base the recommended amount of the proposed penalty on the
17-14 factors provided by Subsection (c) of this section and shall
17-15 analyze each factor for the benefit of the commission.
17-16 (e) Not later than the 10th day after the date on which the
17-17 report is issued, the executive director shall give written notice
17-18 of the report to the person charged with the violation. The notice
17-19 shall include a brief summary of the charges, a statement of the
17-20 amount of the penalty recommended, and a statement of the right of
17-21 the person charged to a hearing on the occurrence of the violation,
17-22 the amount of the penalty, or both the occurrence of the violation
17-23 and the amount of the penalty.
17-24 (f) Not later than the 20th day after the date on which
17-25 notice is received, the person charged may either give to the
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18-1 commission written consent to the executive director's report,
18-2 including the recommended penalty, or make a written request for a
18-3 hearing.
18-4 (g) If the person charged with the violation consents to the
18-5 penalty recommended by the executive director or fails to timely
18-6 respond to the notice, the commission by order shall either assess
18-7 the penalty or order a hearing to be held on the findings and
18-8 recommendations in the executive director's report. If the
18-9 commission assesses the penalty recommended by the report, the
18-10 commission shall give written notice of its decision to the person
18-11 charged.
18-12 (h) If the person charged requests or the commission orders
18-13 a hearing, the commission shall call a hearing and give notice of
18-14 the hearing. As a result of the hearing, the commission by order
18-15 either may find that a violation has occurred and may assess a
18-16 penalty, may find that a violation has occurred but that no penalty
18-17 should be assessed, or may find that no violation has occurred.
18-18 All proceedings under this subsection are subject to Chapter 2001,
18-19 Government Code. In making any penalty decision, the commission
18-20 shall analyze each of the factors provided by Subsection (c) of
18-21 this section.
18-22 (i) The commission shall give notice of its decision to the
18-23 person charged, and if the commission finds that a violation has
18-24 occurred and assesses a penalty, the commission shall give written
18-25 notice to the person charged of its findings, of the amount of the
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19-1 penalty, and of the person's right to judicial review of the
19-2 commission's order. If the commission is required to give notice
19-3 of a penalty under this subsection or Subsection (g) of this
19-4 section, the commission shall file notice of its decision in the
19-5 Texas Register not later than the 10th day after the date on which
19-6 the decision is adopted.
19-7 (j) Within the 30-day period immediately following the day
19-8 on which the commission's order is final, as provided by Subchapter
19-9 F, Chapter 2001, Government Code, the person charged with the
19-10 penalty shall:
19-11 (1) pay the penalty in full; or
19-12 (2) pay the amount of the penalty and file a petition
19-13 for judicial review contesting the occurrence of the violation, the
19-14 amount of the penalty, or both the occurrence of the violation and
19-15 the amount of the penalty; or
19-16 (3) without paying the amount of the penalty, file a
19-17 petition for judicial review contesting the occurrence of the
19-18 violation, the amount of the penalty, or both the occurrence of the
19-19 violation and the amount of the penalty.
19-20 (k) Within the 30-day period, a person who acts under
19-21 Subsection (j)(3) of this section may:
19-22 (1) stay enforcement of the penalty by:
19-23 (A) paying the amount of the penalty to the
19-24 court for placement in an escrow account; or
19-25 (B) giving to the court a supersedeas bond that
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20-1 is approved by the court for the amount of the penalty and that is
20-2 effective until all judicial review of the commission's order is
20-3 final; or
20-4 (2) request the court to stay enforcement of the
20-5 penalty by:
20-6 (A) filing with the court a sworn affidavit of
20-7 the person stating that the person is financially unable to pay the
20-8 amount of the penalty and is financially unable to give the
20-9 supersedeas bond; and
20-10 (B) giving a copy of the affidavit to the
20-11 commission by certified mail.
20-12 (l) If the commission receives a copy of an affidavit under
20-13 Subsection (k)(2) of this section, it may file with the court
20-14 within five days after the date the copy is received a contest to
20-15 the affidavit. The court shall hold a hearing on the facts alleged
20-16 in the affidavit as soon as practicable and shall stay the
20-17 enforcement of the penalty on finding that the alleged facts are
20-18 true. The person who files an affidavit has the burden of proving
20-19 that the person is financially unable to pay the amount of the
20-20 penalty and to give a supersedeas bond.
20-21 (m) If the person does not pay the amount of the penalty and
20-22 the enforcement of the penalty is not stayed, the commission may
20-23 refer the matter to the attorney general for collection of the
20-24 amount of the penalty.
20-25 (n) Judicial review of the order or decision of the
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21-1 commission assessing the penalty shall be under the substantial
21-2 evidence rule and shall be instituted by filing a petition with a
21-3 district court in Travis County, as provided by Subchapter G,
21-4 Chapter 2001, Government Code.
21-5 (o) A penalty collected under this section shall be
21-6 deposited in the state treasury to the credit of the general
21-7 revenue fund.
21-8 (p) Notwithstanding any other provision to the contrary, the
21-9 commission may compromise, modify, or remit, with or without
21-10 condition, any penalty imposed under this section.
21-11 (q) Payment of an administrative penalty under this section
21-12 shall be full and complete satisfaction of the violation for which
21-13 the administrative penalty is assessed and shall preclude any other
21-14 civil or criminal penalty for the same violation.
21-15 Sec. 12.054. PRIVATE CIVIL REMEDY. Nothing in this chapter
21-16 affects the right of any private corporation or individual to
21-17 pursue any available common-law remedy to enforce a right or to
21-18 prevent or seek redress or compensation for the violation of a
21-19 right or otherwise redress an injury.
21-20 SECTION 1.07. Section 16.236, Water Code, is amended to read
21-21 as follows:
21-22 Sec. 16.236. CONSTRUCTION OF LEVEE WITHOUT APPROVAL OF
21-23 PLANS; LEVEE SAFETY. (a) No person may construct, attempt to
21-24 construct, cause to be constructed, maintain, or cause to be
21-25 maintained any levee or other such improvement on, along, or near
97S0149/2
22-1 any stream of this state that is subject to floods, freshets, or
22-2 overflows so as to control, regulate, or otherwise change the
22-3 floodwater of the stream without first obtaining approval of the
22-4 plans by the commission.
22-5 (b) The commission shall make and enforce rules and orders
22-6 and shall perform all other acts necessary to provide for the safe
22-7 construction, maintenance, repair, and removal of levees located in
22-8 this state.
22-9 (c) Rules and orders of the commission shall be adopted or
22-10 issued only after proper notice and hearing as provided in the
22-11 rules of the commission.
22-12 (d) If the owner of a levee that is required to be
22-13 constructed, reconstructed, repaired, or removed to comply with the
22-14 rules and orders promulgated under this section wilfully fails or
22-15 refuses to comply within the 30-day period following the date of an
22-16 order of the commission requiring such action or compliance or if a
22-17 person wilfully fails to comply with any rule or order issued by
22-18 the commission under this section within the 30-day period
22-19 following the effective date of the order, the person is liable for
22-20 a penalty of not more than $25,000 a day for each day the person
22-21 continues to violate this section. The state may recover the
22-22 penalty by suit brought for that purpose in a district court of
22-23 Travis County.
22-24 (e) If the commission determines that the existing condition
22-25 of a levee is creating or will cause extensive or severe property
97S0149/2
23-1 damage or economic loss to others or is posing an immediate and
23-2 serious threat to human life or health and that other procedures
23-3 available to the commission to remedy or prevent such property
23-4 damage or economic loss will result in unreasonable delay, the
23-5 commission may issue an emergency order, either mandatory or
23-6 prohibitory in nature, directing the owner of the levee to repair,
23-7 modify, maintain, dewater, or remove the levee which the commission
23-8 determines is unsafe. The emergency order may be issued without
23-9 notice to the levee owner or with notice the commission considers
23-10 practicable under the circumstances. The notice does not have to
23-11 comply with Chapter 2001, Government Code.
23-12 (f) If the commission issues an emergency order under
23-13 authority of this section without notice to the levee owner, the
23-14 commission shall fix a time and place for a hearing, to be held as
23-15 soon as practicable, to affirm, modify, or set aside the emergency
23-16 order. The notice does not have to comply with Chapter 2001,
23-17 Government Code. If the nature of the commission's action requires
23-18 further proceedings, those proceedings shall be conducted, as
23-19 appropriate, under Chapter 2001, Government Code.
23-20 (g) Nothing in this section or in rules or orders adopted by
23-21 the commission shall be construed to relieve an owner or operator
23-22 of a levee of the legal duties, obligations, or liabilities
23-23 incident to ownership or operation.
23-24 (h) Any person who violates any provision of Subsection (a)
23-25 of this section is guilty of a Class C misdemeanor [and upon
97S0149/2
24-1 conviction is punishable by a fine of not more than $100]. A
24-2 separate offense is committed each day a structure constructed in
24-3 violation of this section is maintained.
24-4 (i) Subsection (a) of this [(c) At the request of the
24-5 executive director, the attorney general shall file suit in a
24-6 district court of Travis County to enjoin any violation or
24-7 threatened violation of this section. In the suit, the attorney
24-8 general may seek to have the illegal levee or other improvement
24-9 removed and the preexisting conditions restored and may also
24-10 collect civil penalties of up to $100 a day for each day a
24-11 violation occurs.]
24-12 [(d) This] section does not apply to:
24-13 (1) dams permitted by the commission or recognized as
24-14 valid by final decree in any proceeding begun under Subchapter G,
24-15 Chapter 11, of this code;
24-16 (2) dams authorized by Section 11.142 of this code;
24-17 (3) a levee or other improvement within the corporate
24-18 limits of a city or town provided: (a) plans for the construction
24-19 or maintenance or both must be approved by the city or town as a
24-20 condition precedent to starting the project and (b) the city or
24-21 town requires that such plans be in substantial compliance with
24-22 rules and standards adopted by the commission; or
24-23 (4) a levee or other improvement within the boundaries
24-24 of any political subdivision which has qualified for the National
24-25 Flood Insurance Program as authorized by the National Flood
97S0149/2
25-1 Insurance Act of 1968 (Title 42, U.S.C., Sections 4001-4127)
25-2 provided: (a) plans for the construction or maintenance or both
25-3 must be approved by the political subdivision which is
25-4 participating in the national flood insurance program as a
25-5 condition precedent to starting the project and (b) the political
25-6 subdivision requires that such plans be in substantial compliance
25-7 with rules and standards adopted by the commission;
25-8 (5) projects implementing soil and water conservation
25-9 practices set forth in a conservation plan with a landowner or
25-10 operator and approved by the governing board of a soil and water
25-11 conservation district organized under the State Soil Conservation
25-12 Law, as amended (Article 165a-4, Vernon's Texas Civil Statutes),
25-13 provided that the governing board finds the practices do not
25-14 significantly affect stream flooding conditions on, along, or near
25-15 a state stream.
25-16 (j) [(e)] On projects located within the corporate limits of
25-17 a city or town or within the boundaries of any political
25-18 subdivision which are exempt from the provisions of Subsection (a)
25-19 of this section by Subdivision (3) or (4) of Subsection (i) of this
25-20 section [(d) above], any person whose property is located outside
25-21 of the corporate limits of such city or town or of the boundaries
25-22 of such a political subdivision and whose property is affected or
25-23 potentially affected by the effect of the project on the
25-24 floodwaters of the stream may appeal the decision of such political
25-25 subdivision. The appeal shall be in writing and shall specify the
97S0149/2
26-1 grounds therefor and a copy shall be sent by certified mail to the
26-2 project applicant and to the city or town or such political
26-3 subdivision. The timely filing of such an appeal with the
26-4 executive director suspends the decision of the city or town or
26-5 political subdivision until a final decision is rendered by the
26-6 commission. The executive director shall review the complaint and
26-7 investigate the facts surrounding the nature of the complaint. If
26-8 the executive director finds that the complaint is frivolous or
26-9 nonmeritorious or made solely for purposes of harassment or delay,
26-10 then he shall dismiss the appeal. Otherwise, the executive
26-11 director shall refer the appeal to the commission which shall after
26-12 due notice hold a hearing to determine whether the project should
26-13 be approved using the standards established by the commission and
26-14 shall hear such appeal de novo under the procedural rules
26-15 established by the commission for other reclamation projects.
26-16 SECTION 1.08. Subchapter G, Chapter 16, Water Code, is
26-17 amended by adding Sections 16.237 and 16.238 to read as follows:
26-18 Sec. 16.237. ADMINISTRATIVE PENALTY. (a) If a person
26-19 violates a commission rule or order adopted under Section 16.236 of
26-20 this code, the commission may assess an administrative penalty
26-21 against that person as provided by this section.
26-22 (b) The penalty may be in an amount not to exceed $25,000
26-23 for each day the person is in violation of the rule or order. Each
26-24 day a violation continues may be considered a separate violation
26-25 for purposes of penalty assessment.
97S0149/2
27-1 (c) In determining the amount of the penalty, the commission
27-2 shall consider:
27-3 (1) the nature, circumstances, extent, duration, and
27-4 gravity of the prohibited acts, with special emphasis on the hazard
27-5 or potential hazard created to the health, safety, or welfare of
27-6 the public;
27-7 (2) with respect to the alleged violator:
27-8 (A) the history and extent of previous
27-9 violations;
27-10 (B) the degree of culpability, including whether
27-11 the violation was attributable to mechanical or electrical failures
27-12 and whether the violation could have been reasonably anticipated
27-13 and avoided;
27-14 (C) demonstrated good faith, including actions
27-15 taken by the alleged violator to rectify the cause of the violation
27-16 and to compensate affected persons;
27-17 (D) any economic benefit gained through the
27-18 violation; and
27-19 (E) the amount necessary to deter future
27-20 violations; and
27-21 (3) any other matters that justice may require.
27-22 (d) If, after examination of a possible violation and the
27-23 facts surrounding that possible violation, the executive director
27-24 concludes that a violation has occurred, the executive director may
27-25 issue a preliminary report stating the facts on which that
97S0149/2
28-1 conclusion was based, recommending that an administrative penalty
28-2 under this section be imposed on the person charged, and
28-3 recommending the amount of the penalty. The executive director
28-4 shall base the recommended amount of the proposed penalty on the
28-5 factors provided by Subsection (c) of this section and shall
28-6 analyze each factor for the benefit of the commission.
28-7 (e) Not later than the 10th day after the date on which the
28-8 report is issued, the executive director shall give written notice
28-9 of the report to the person charged with the violation. The notice
28-10 shall include a brief summary of the charges, a statement of the
28-11 amount of the penalty recommended, and a statement of the right of
28-12 the person charged to a hearing on the occurrence of the violation,
28-13 the amount of the penalty, or both the occurrence of the violation
28-14 and the amount of the penalty.
28-15 (f) Not later than the 20th day after the date on which
28-16 notice is received, the person charged may either give to the
28-17 commission written consent to the executive director's report,
28-18 including the recommended penalty, or make a written request for a
28-19 hearing.
28-20 (g) If the person charged with the violation consents to the
28-21 penalty recommended by the executive director or fails to timely
28-22 respond to the notice, the commission by order shall either assess
28-23 that penalty or order a hearing to be held on the findings and
28-24 recommendations in the executive director's report. If the
28-25 commission assesses the penalty recommended by the report, the
97S0149/2
29-1 commission shall give written notice of its decision to the person
29-2 charged.
29-3 (h) If the person charged requests or the commission orders
29-4 a hearing, the commission shall call a hearing and give notice of
29-5 the hearing. As a result of the hearing, the commission by order
29-6 either may find that a violation has occurred and may assess a
29-7 penalty, may find that a violation has occurred but that no penalty
29-8 should be assessed, or may find that no violation has occurred.
29-9 All proceedings under this subsection are subject to Chapter 2001,
29-10 Government Code. In making any penalty decision, the commission
29-11 shall analyze each of the factors provided by Subsection (c) of
29-12 this section.
29-13 (i) The commission shall give notice of its decision to the
29-14 person charged, and if the commission finds that a violation has
29-15 occurred and assesses an administrative penalty, the commission
29-16 shall give written notice to the person charged of its findings, of
29-17 the amount of the penalty, and of the person's right to judicial
29-18 review of the commission's order. If the commission is required to
29-19 give notice of a penalty under this subsection or Subsection (g) of
29-20 this section, the commission shall file notice of its decision in
29-21 the Texas Register not later than the 10th day after the date on
29-22 which the decision is adopted.
29-23 (j) Within the 30-day period immediately following the day
29-24 on which the commission's order is final, as provided by Subchapter
29-25 F, Chapter 2001, Government Code, the person charged with the
97S0149/2
30-1 penalty shall:
30-2 (1) pay the penalty in full; or
30-3 (2) pay the amount of the penalty and file a petition
30-4 for judicial review contesting the occurrence of the violation, the
30-5 amount of the penalty, or both the occurrence of the violation and
30-6 the amount of the penalty; or
30-7 (3) without paying the amount of the penalty, file a
30-8 petition for judicial review contesting the occurrence of the
30-9 violation, the amount of the penalty, or both the occurrence of the
30-10 violation and the amount of the penalty.
30-11 (k) Within the 30-day period, a person who acts under
30-12 Subsection (j)(3) of this section may:
30-13 (1) stay enforcement of the penalty by:
30-14 (A) paying the amount of the penalty to the
30-15 court for placement in an escrow account; or
30-16 (B) giving to the court a supersedeas bond that
30-17 is approved by the court for the amount of the penalty and that is
30-18 effective until all judicial review of the commission's order is
30-19 final; or
30-20 (2) request the court to stay enforcement of the
30-21 penalty by:
30-22 (A) filing with the court a sworn affidavit of
30-23 the person stating that the person is financially unable to pay the
30-24 amount of the penalty and is financially unable to give the
30-25 supersedeas bond; and
97S0149/2
31-1 (B) giving a copy of the affidavit to the
31-2 commission by certified mail.
31-3 (l) If the commission receives a copy of an affidavit under
31-4 Subsection (k)(2) of this section, it may file with the court
31-5 within five days after the date the copy is received a contest to
31-6 the affidavit. The court shall hold a hearing on the facts alleged
31-7 in the affidavit as soon as practicable and shall stay the
31-8 enforcement of the penalty on finding that the alleged facts are
31-9 true. The person who files an affidavit has the burden of proving
31-10 that the person is financially unable to pay the amount of the
31-11 penalty and to give a supersedeas bond.
31-12 (m) If the person does not pay the amount of the penalty and
31-13 the enforcement of the penalty is not stayed, the commission may
31-14 refer the matter to the attorney general for collection of the
31-15 amount of the penalty.
31-16 (n) Judicial review of the order or decision of the
31-17 commission assessing the penalty shall be under the substantial
31-18 evidence rule and shall be instituted by filing a petition with a
31-19 district court in Travis County, as provided by Subchapter G,
31-20 Chapter 2001, Government Code.
31-21 (o) A penalty collected under this section shall be
31-22 deposited in the state treasury to the credit of the general
31-23 revenue fund.
31-24 (p) Notwithstanding any other provision to the contrary, the
31-25 commission may compromise, modify, or remit, with or without
97S0149/2
32-1 condition, any penalty imposed under this section.
32-2 (q) Payment of an administrative penalty under this section
32-3 shall be full and complete satisfaction of the violation for which
32-4 the administrative penalty is assessed and shall preclude any other
32-5 civil or criminal penalty for the same violation.
32-6 Sec. 16.238. PRIVATE CIVIL REMEDY. Nothing in this chapter
32-7 affects the right of any private corporation or individual to
32-8 pursue any available common-law remedy to enforce a right or to
32-9 prevent or seek redress or compensation for the violation of a
32-10 right or otherwise redress an injury.
32-11 ARTICLE 2. WATER MANAGEMENT, MARKETING, AND TRANSFERS
32-12 SECTION 2.01. Section 791.026, Government Code, is amended
32-13 to read as follows:
32-14 Sec. 791.026. CONTRACTS FOR WATER SUPPLY AND WASTEWATER
32-15 TREATMENT FACILITIES. (a) A municipality, district, or river
32-16 authority of this state may contract with another municipality,
32-17 district, or river authority of this state to obtain or provide
32-18 part or all of:
32-19 (1) water supply or wastewater treatment facilities;
32-20 or
32-21 (2) a lease or operation of water supply facilities or
32-22 wastewater treatment facilities.
32-23 (b) The contract may provide that the municipality,
32-24 district, or river authority obtaining one of the services may not
32-25 obtain those services from a source other than a contracting party,
97S0149/2
33-1 except as provided by the contract.
33-2 (c) If a contract includes a term described by Subsection
33-3 (b), payments made under the contract are the paying party's
33-4 operating expenses for its water supply system, wastewater
33-5 treatment facilities, or both.
33-6 (d) The contract may:
33-7 (1) contain terms and extend for any period on which
33-8 the parties agree; [and]
33-9 (2) require the purchaser to develop alternative or
33-10 replacement supplies prior to the expiration date of the contract
33-11 and may provide for enforcement of such terms by court order; and
33-12 (3) provide that it will continue in effect until
33-13 bonds specified by the contract and any refunding bonds issued to
33-14 pay those bonds are paid.
33-15 (e) Where a contract sets forth explicit expiration
33-16 provisions, no continuation of the service obligation will be
33-17 implied.
33-18 (f) Tax revenue may not be pledged to the payment of amounts
33-19 agreed to be paid under the contract.
33-20 (g) [(f)] The powers granted by this section prevail over a
33-21 limitation contained in another law.
33-22 SECTION 2.02. Section 11.002, Water Code, is amended by
33-23 adding Subdivisions (9) and (10) to read as follows:
33-24 (9) "Developed water" means:
33-25 (A) groundwater that is in a watercourse or
97S0149/2
34-1 stream, that would not be in the watercourse or stream but for the
34-2 efforts of the developer, and that is intended for subsequent
34-3 diversion and use by the developer; and
34-4 (B) surface water obtained through an approved
34-5 interbasin transfer of water that is in a watercourse or stream,
34-6 that would not be in the watercourse or stream but for the efforts
34-7 of the developer, and that is intended for subsequent diversion and
34-8 use by the developer.
34-9 (10) "Surplus water" means water in excess of the
34-10 initial or continued beneficial use of the appropriator and not
34-11 consumed or used beneficially for the purpose authorized by law.
34-12 SECTION 2.03. Subsection (e), Section 11.023, Water Code, is
34-13 amended to read as follows:
34-14 (e) The amount of water appropriated for each purpose
34-15 mentioned in this section shall be specifically appropriated for
34-16 that purpose, subject to the preferences prescribed in Section
34-17 11.024 of this code. The commission may authorize appropriation of
34-18 a single amount or volume of water for more than one purpose of
34-19 use. In the event that a single amount or volume of water is
34-20 appropriated for more than one purpose of use, the total amount of
34-21 water actually diverted for all of the authorized purposes may not
34-22 exceed the total amount of water appropriated.
34-23 SECTION 2.04. Section 11.036, Water Code, is amended to read
34-24 as follows:
34-25 Sec. 11.036. CONSERVED OR STORED WATER: SUPPLY CONTRACT.
97S0149/2
35-1 (a) A person, association of persons, corporation, or water
35-2 improvement or irrigation district having in possession and control
35-3 any storm water, floodwater, or rainwater that is conserved or
35-4 stored as authorized by this chapter may contract to supply the
35-5 water to any person, association of persons, corporation, or water
35-6 improvement or irrigation district having the right to acquire use
35-7 of the water.
35-8 (b) The price and terms of the contract shall be just and
35-9 reasonable and without discrimination, and the contract is subject
35-10 to the same revision and control as provided in this code for other
35-11 water rates and charges. If the contract sets forth explicit
35-12 expiration provisions, no continuation of the service obligation
35-13 will be implied.
35-14 (c) The terms of a contract may expressly provide that the
35-15 person using the stored or conserved water is required to develop
35-16 alternative or replacement supplies prior to the expiration of the
35-17 contract and may further provide for enforcement of such terms by
35-18 court order.
35-19 (d) If any person uses the stored or conserved water without
35-20 first entering into a contract with the party that conserved or
35-21 stored it, the user shall pay for the use at a rate determined by
35-22 the commission to be just and reasonable, subject to court review
35-23 as in other cases.
35-24 SECTION 2.05. Subsection (a), Section 11.041, Water Code, is
35-25 amended to read as follows:
97S0149/2
36-1 (a) Any person entitled to receive or use water from any
36-2 canal, ditch, flume, lateral, dam, reservoir, or lake or from any
36-3 conserved or stored supply may present to the commission a written
36-4 petition showing:
36-5 (1) that he is entitled to receive or use the water;
36-6 (2) that he is willing to comply with all reasonable
36-7 contractual provisions;
36-8 (3) that he is willing and able to pay a just and
36-9 reasonable price for the water;
36-10 (4) [(3)] that the party owning or controlling the
36-11 water supply has water not contracted to others and available for
36-12 the petitioner's use; and
36-13 (5) [(4)] that the party owning or controlling the
36-14 water supply fails or refuses to supply the available water to the
36-15 petitioner, or that the price or rental demanded for the available
36-16 water is not reasonable and just or is discriminatory.
36-17 SECTION 2.06. Section 11.042, Water Code, is amended to read
36-18 as follows:
36-19 Sec. 11.042. DELIVERING WATER DOWN BANKS AND BEDS.
36-20 (a) Under rules prescribed by the commission, a person,
36-21 association of persons, corporation, or water improvement or
36-22 irrigation district supplying stored or conserved water under
36-23 contract as provided in this chapter may use the bank and bed of
36-24 any flowing natural stream in the state to convey the water from
36-25 the place of storage to the place of use or to the diversion plant
97S0149/2
37-1 of the appropriator. The commission shall prescribe rules for this
37-2 purpose.
37-3 (b) A person who wishes to convey developed water in a
37-4 watercourse or stream must obtain the prior approval of the
37-5 commission through a bed and banks authorization. Such
37-6 authorization shall ensure that an unlawful appropriation of water
37-7 does not occur by allowing only the amount of developed water put
37-8 into the watercourse or stream to be diverted, less carriage
37-9 losses. Developed water discharged into a watercourse or stream
37-10 must also meet all applicable water quality standards, and the
37-11 water and its discharge and conveyance including diversion rates
37-12 and location point may not otherwise cause adverse environmental
37-13 impacts. Authorizations under this section and water quality
37-14 authorizations may be approved in a consolidated permit proceeding.
37-15 (c) A person who has discharged groundwater into a
37-16 watercourse or stream and who subsequently wishes to divert and use
37-17 such water must first obtain authorization for the diversion and
37-18 use from the commission subject to special conditions as necessary
37-19 to protect existing water rights, instream uses, and freshwater
37-20 inflows to bays and estuaries.
37-21 SECTION 2.07. Section 11.046, Water Code, is amended to read
37-22 as follows:
37-23 Sec. 11.046. RETURN UNUSED WATER. (a) A person who takes
37-24 or diverts water from a watercourse or [running] stream for the
37-25 purposes authorized by this code shall conduct surplus water back
97S0149/2
38-1 to the watercourse or stream from which it was taken if the water
38-2 can be returned by gravity flow or mechanical means and it is
38-3 reasonably practicable to do so.
38-4 (b) In granting an application for a water right, the
38-5 commission may include conditions in the water right providing for
38-6 the return of surplus water, in a specific amount or percentage of
38-7 water diverted, and the return point on the watercourse or stream
38-8 as necessary to protect senior downstream water rights or provide
38-9 flows for instream uses or bays and estuaries.
38-10 (c) Except as specifically provided otherwise in the water
38-11 right, water appropriated under a water right may, prior to its
38-12 release into a watercourse or stream, be beneficially used and
38-13 reused by the water right holder for the purposes and locations of
38-14 use provided in the water right. Once water has been diverted
38-15 under a water right and then returned to a watercourse or stream,
38-16 however, it is considered surplus water and therefore subject to
38-17 appropriation by others unless expressly provided otherwise in the
38-18 water right.
38-19 SECTION 2.08. Section 11.085, Water Code, is amended to read
38-20 as follows:
38-21 Sec. 11.085. INTERBASIN [INTERWATERSHED] TRANSFERS. (a) No
38-22 person may take or divert any state [of the] water from a river
38-23 basin [of the ordinary flow, underflow, or storm flow of any
38-24 stream, watercourse, or watershed] in this state and transfer such
38-25 water to [into] any other river basin [natural stream, watercourse,
97S0149/2
39-1 or watershed to the prejudice of any person or property situated
39-2 within the watershed from which the water is proposed to be taken
39-3 or diverted.]
39-4 [(b) No person may transfer water from one watershed to
39-5 another] without first applying for and receiving a water right or
39-6 an amendment to a water right [permit] from the commission [to do
39-7 so. Before issuing such a permit, the commission shall hold a
39-8 hearing to determine the rights that might be affected by the
39-9 transfer. The commission shall give notice and hold the hearing in
39-10 the manner prescribed by its procedural rules].
39-11 (b) Prior to taking action on an application for an
39-12 interbasin transfer, at least one public meeting to receive
39-13 comments shall be held in both the basin of origin of the water
39-14 proposed for transfer and the basin receiving water from the
39-15 proposed transfer. Any person may present relevant information and
39-16 data at the meeting on the criteria which the commission is to
39-17 consider related to the interbasin transfer.
39-18 (c) In addition to the public meetings required by
39-19 Subsection (b) of this section, the commission shall hold an
39-20 evidentiary hearing, in accordance with commission rules and
39-21 applicable state law, if the application is contested and an
39-22 evidentiary hearing is required. The commission shall give notice
39-23 and hold the evidentiary hearing in the manner prescribed by its
39-24 procedural rules.
39-25 (d) Notice of an application for an interbasin transfer
97S0149/2
40-1 shall be mailed to the following:
40-2 (1) all water right holders in the basin of origin;
40-3 (2) each county judge of a county located in whole or
40-4 in part in the basin of origin; and
40-5 (3) each mayor of a city with a population of 1,000 or
40-6 more located in whole or in part in the basin of origin.
40-7 (e) The applicant shall cause the notice of application for
40-8 an interbasin transfer to be published once a week for two
40-9 consecutive weeks in one or more newspapers having general
40-10 circulation in each county located in whole or in part in the basin
40-11 of origin. The published notice may not be smaller than 96.8
40-12 square centimeters or 15 square inches with the shortest dimension
40-13 at least 7.6 centimeters or three inches. The notice of
40-14 application and public meetings shall be combined in the mailed and
40-15 published notices.
40-16 (f) The applicant shall pay the cost of notice required to
40-17 be provided under this section. The commission by rule may
40-18 establish procedures for payment of those costs.
40-19 (g) In addition to other requirements of this code relating
40-20 to the review of and action on an application for a new or amended
40-21 water right, the commission shall weigh the effects of the proposed
40-22 transfer on the basin of origin and the receiving basin by
40-23 considering:
40-24 (1) the need for the water in the basin of origin and
40-25 in the proposed receiving basin based on the period for which the
97S0149/2
41-1 water supply is requested, but not more than 50 years, and
41-2 identified in a needs assessment or a regional water management
41-3 plan which addresses the following for each basin:
41-4 (A) the availability of feasible and practicable
41-5 alternative supplies to the water proposed for transfer and their
41-6 related economic and environmental impacts as compared to the
41-7 potential economic and environmental impacts of the transfer;
41-8 (B) the amount and purposes of use for which
41-9 water is needed;
41-10 (C) evidence that reasonable diligence is and
41-11 will be used to avoid waste, achieve water conservation, and
41-12 implement drought contingency measures;
41-13 (D) evidence of reasonable diligence to put the
41-14 water proposed for transfer to beneficial use; and
41-15 (E) the projected economic impact that is
41-16 reasonably expected to occur if the water proposed for transfer is
41-17 used in each basin;
41-18 (2) the intended use by both basins of the water
41-19 proposed for transfer against the preferences for use set forth in
41-20 Section 11.024 of this code;
41-21 (3) the actual impacts of the proposed transfer on
41-22 existing instream uses, water quality, aquatic and riparian
41-23 habitat, and bays and estuaries that must be assessed under
41-24 Sections 11.147, 11.150, and 11.152 of this code in the basin of
41-25 origin and the receiving basin, and if the water sought to be
97S0149/2
42-1 transferred is currently authorized to be used under an existing
42-2 water right, such impacts shall only be considered in relation to
42-3 that portion of the water right proposed for transfer and shall be
42-4 based on historical uses of the water right for which amendment is
42-5 sought;
42-6 (4) proposed mitigation or compensation, if any, to
42-7 the basin of origin by the applicant;
42-8 (5) the applicant's or intended water user's diligence
42-9 in pursuing feasible and practicable alternative water supplies
42-10 within the receiving basin and the sufficiency of the applicant's
42-11 or intended water user's water conservation efforts; and
42-12 (6) for an amendment to an existing water right, the
42-13 continued need to use the water for the original purposes that were
42-14 identified as requiring such water under the application for the
42-15 original water right.
42-16 (h) The commission may grant, in whole or in part, an
42-17 application for an interbasin transfer only to the extent that the
42-18 detriments to the basin of origin during the proposed transfer
42-19 period are less than the benefits to the receiving basin during the
42-20 proposed transfer period. The commission may grant new or amended
42-21 water rights under this section with or without specific terms or
42-22 periods of use and with specific conditions under which a transfer
42-23 of water may occur.
42-24 (i) This section does not apply to:
42-25 (1) a proposed transfer or cumulative transfers of
97S0149/2
43-1 less than 5,000 acre-feet of water per annum from the same water
43-2 right; or
43-3 (2) a request for an emergency transfer of water; or
43-4 (3) a proposed transfer from a basin to its adjoining
43-5 coastal basin.
43-6 (j) If the transfer of water is based on a contractual sale
43-7 of water, the new or amended water right authorizing the transfer
43-8 shall contain a condition for a term or period not greater than the
43-9 contract term.
43-10 (k) The parties to a contract for an interbasin transfer may
43-11 include provisions for compensation and mitigation.
43-12 (l) For the purposes of this section, a basin is delineated
43-13 as provided in the state water plan in accordance with Section
43-14 16.051 of this code.
43-15 (m) [(c)] A person who takes or diverts water in violation
43-16 of this section is guilty of a misdemeanor and upon conviction is
43-17 punishable by a fine of not [less than $100 nor] more than $10,000
43-18 [$500] or by confinement in the county jail for not more than six
43-19 months.
43-20 (n) [(d)] A person commits a separate offense each day he
43-21 continues to take or divert water in violation of this section.
43-22 SECTION 2.09. Subsection (a), Section 11.124, Water Code, is
43-23 amended to read as follows:
43-24 (a) An application to appropriate unappropriated state water
43-25 must:
97S0149/2
44-1 (1) be in writing and sworn to;
44-2 (2) contain the name and post-office address of the
44-3 applicant;
44-4 (3) identify the source of water supply;
44-5 (4) state the nature and purposes of the proposed use
44-6 or uses and the amount of water to be used for each purpose;
44-7 (5) state the location and describe the proposed
44-8 facilities;
44-9 (6) state the time within which the proposed
44-10 construction is to begin; and
44-11 (7) state the time required for the application of
44-12 water to the proposed use or uses.
44-13 SECTION 2.10. Subsection (b), Section 11.135, Water Code, is
44-14 amended to read as follows:
44-15 (b) The permit shall be in writing and attested by the seal
44-16 of the commission, and it shall contain substantially the following
44-17 information:
44-18 (1) the name of the person to whom the permit is
44-19 issued;
44-20 (2) the date the permit is issued;
44-21 (3) the date the original application was filed;
44-22 (4) the use or purpose for which the appropriation is
44-23 to be made;
44-24 (5) the amount or volume of water authorized to be
44-25 appropriated for each purpose; if use of the appropriated water is
97S0149/2
45-1 authorized for multiple purposes, the permit shall contain a
45-2 special condition limiting the total amount of water that may
45-3 actually be diverted for all of the purposes to the amount of water
45-4 appropriated;
45-5 (6) a general description of the source of supply from
45-6 which the appropriation is proposed to be made;
45-7 (7) the time within which construction or work must
45-8 begin and the time within which it must be completed; and
45-9 (8) any other information the commission prescribes.
45-10 SECTION 2.11. Sections 11.176 and 11.177, Water Code, are
45-11 amended to read as follows:
45-12 Sec. 11.176. HEARING. (a) Except as provided by Subsection
45-13 (b) of this section, the [The] commission shall hold a hearing and
45-14 shall give the holder of the permit, certified filing, or
45-15 certificate of adjudication and other interested persons an
45-16 opportunity to be heard and to present evidence on any matter
45-17 pertinent to the questions at issue.
45-18 (b) A hearing on the cancellation of a water right as
45-19 provided by this chapter is unnecessary if the right to such
45-20 hearing is expressly waived by the affected water right holder.
45-21 (c) A water right for a term does not vest in the water
45-22 right holder any right to the diversion, impoundment, or use of
45-23 water for longer than the term of the water right and shall expire
45-24 and be cancelled in accordance with its terms without further need
45-25 for notice or hearing.
97S0149/2
46-1 Sec. 11.177. COMMISSION FINDING; ACTION. (a) At the
46-2 conclusion of the hearing, the commission shall cancel the permit,
46-3 certified filing, or certificate of adjudication in whole or in
46-4 part to the extent that it finds that:
46-5 (1) the water or any portion of the water appropriated
46-6 under the permit, certified filing, or certificate of adjudication
46-7 has not been put to an authorized beneficial use during the 10-year
46-8 period; and
46-9 (2) the holder has not used reasonable diligence in
46-10 applying the water or the unused portion of the water to an
46-11 authorized beneficial use or is otherwise unjustified in the
46-12 nonuse[; and]
46-13 [(3) the holder has not been justified in the nonuse
46-14 or does not then have a bona fide intention of putting the water or
46-15 the unused portion of the water to an authorized beneficial use
46-16 within a reasonable time after the hearing].
46-17 (b) In determining what constitutes reasonable diligence or
46-18 a justified nonuse [and a reasonable time] as used in Subsection
46-19 (a)(2) [(a)(3)] of this section, the commission shall give
46-20 consideration to:
46-21 (1) whether sufficient water is available in the
46-22 source of supply to meet all or part of the appropriation during
46-23 the 10-year period of nonuse;
46-24 (2) whether the nonuse is justified by the holder's
46-25 participation in the federal Conservation Reserve Program or a
97S0149/2
47-1 similar governmental program as provided by Section 11.173(b)(1) of
47-2 this code;
47-3 (3) whether the water right was obtained to meet
47-4 demonstrated long-term public water supply needs as evidenced by a
47-5 water management plan developed by the holder or consistent with
47-6 projections of future water needs contained in the state water
47-7 plan;
47-8 (4) whether the holder has complied with an approved
47-9 water management plan as provided by Section 11.173(b)(2) of this
47-10 code; or
47-11 (5) whether the water right has been deposited into
47-12 the Texas Water Bank as provided by Section 15.704 of this code
47-13 [the expenditures made or obligations incurred by the holder in
47-14 connection with the permit, certified filing, or certificate of
47-15 adjudication;]
47-16 [(2) the purpose to which the water is to be applied;]
47-17 [(3) the priority of the purpose;]
47-18 [(4) the amount of time usually necessary to put water
47-19 to a beneficial use for the same purpose when diligently developed;
47-20 and]
47-21 [(5) whether at all times during the 10-year period
47-22 there was rainfall adequate to enable the use of all or part of the
47-23 water authorized to be appropriated under the permit, certified
47-24 filing, or certificate of adjudication].
47-25 SECTION 2.12. Subsection (a), Section 15.704, Water Code, is
97S0149/2
48-1 amended to read as follows:
48-2 (a) A [Up to 50 percent of a] water right may be deposited
48-3 in the water bank for an initial term of up to 10 years, during
48-4 which time the water right is exempt from cancellation by the
48-5 commission under the terms of Subchapter E of Chapter 11 of this
48-6 code. A water right is exempt from cancellation under this
48-7 subsection only once even if it has been transferred or
48-8 redeposited.
48-9 SECTION 2.13. All permits approved by the Texas Natural
48-10 Resource Conservation Commission before the effective date of this
48-11 Act that allow the multiple use of the appropriation of a specific
48-12 amount of water and which are no longer subject to appeal are
48-13 validated in all respects as if they originally had been legally
48-14 authorized or accomplished.
48-15 ARTICLE 3. SURFACE WATER AND GROUNDWATER SUPPLIES
48-16 SECTION 3.01. Subsection (b), Section 11.134, Water Code, is
48-17 amended to read as follows:
48-18 (b) The commission shall grant the application only if:
48-19 (1) the application conforms to the requirements
48-20 prescribed by this chapter and is accompanied by the prescribed
48-21 fee;
48-22 (2) unappropriated water is available in the source of
48-23 supply;
48-24 (3) the proposed appropriation:
48-25 (A) contemplates the application of water to any
97S0149/2
49-1 beneficial use;
49-2 (B) does not impair existing water rights or
49-3 vested riparian rights; [and]
49-4 (C) is not detrimental to the public welfare;
49-5 and
49-6 (D) addresses a water supply need in a manner
49-7 that is consistent with the state water plan or an approved
49-8 regional water management plan for the area in which the proposed
49-9 appropriation is located, unless the commission determines that
49-10 conditions warrant waiver of this requirement; and
49-11 (4) the applicant has provided evidence that
49-12 reasonable diligence will be used to avoid waste and achieve water
49-13 conservation as defined by Subdivision (8)(B), Section 11.002, of
49-14 this code.
49-15 SECTION 3.02. Subchapter D, Chapter 11, Water Code, is
49-16 amended by adding Section 11.151 to read as follows:
49-17 Sec. 11.151. EFFECTS OF PERMITS ON GROUNDWATER. In
49-18 considering an application for a permit to store, take, or divert
49-19 surface water, the commission may assess the effects, if any, on
49-20 groundwater.
49-21 SECTION 3.03. Section 11.153, Water Code, is amended by
49-22 amending the section heading and Subsection (d) to read as follows:
49-23 Sec. 11.153. [PILOT] PROJECTS FOR STORAGE OF APPROPRIATED
49-24 WATER IN AQUIFERS.
49-25 (d) The commission shall only issue a [A] final order
97S0149/2
50-1 granting a permit or amendment to a permit authorizing the storage
50-2 of appropriated water in aquifers for subsequent beneficial use
50-3 where completed pilot projects or historically demonstrated
50-4 projects have been shown to be feasible under the criteria provided
50-5 in Section 11.154(c) and (d)[, other than for the pilot projects
50-6 authorized by this section, may not be issued before June 1, 1999].
50-7 SECTION 3.04. Subsections (a), (b), (c), and (e), Section
50-8 11.154, Water Code, are amended to read as follows:
50-9 (a) An application filed with the commission to undertake a
50-10 [pilot] project under Section 11.153 must include:
50-11 (1) the information required for an application for a
50-12 permit or permit amendment to appropriate state water;
50-13 (2) all information required for an application for a
50-14 permit for a Class V injection well without requiring a separate
50-15 hearing or notice; and
50-16 (3) a map or plat showing the injection facility and
50-17 the aquifer in which the water will be stored.
50-18 (b) If the application is for a permit or permit amendment
50-19 to store appropriated water in a groundwater [an underground water]
50-20 reservoir or a subdivision of a groundwater [an underground water]
50-21 reservoir, as defined by Chapter 36 [52], that is under the
50-22 jurisdiction of a groundwater [an underground water] conservation
50-23 district:
50-24 (1) the applicant shall:
50-25 (A) provide a copy of the application to each
97S0149/2
51-1 groundwater [underground water] conservation district that has
51-2 jurisdiction over the reservoir or subdivision;
51-3 (B) cooperate with each district [the districts]
51-4 that has [have] jurisdiction over the reservoir or subdivision to
51-5 ensure compliance with the rules of each district;
51-6 (C) cooperate with each district that has
51-7 jurisdiction over the reservoir or subdivision to develop rules
51-8 regarding the injection, storage, and withdrawal of appropriated
51-9 water stored in the aquifer; and
51-10 (D) comply with the rules governing the
51-11 injection, storage, and [or] withdrawal of appropriated water
51-12 stored in the reservoir or subdivision that are adopted by each [a]
51-13 district that has jurisdiction over the reservoir or subdivision;
51-14 and
51-15 (2) the commission shall require that any agreement
51-16 the applicant reaches with a district that has jurisdiction over
51-17 the reservoir or subdivision regarding the terms for the injection,
51-18 storage, and withdrawal of appropriated water be included as a
51-19 condition of the permit or permit amendment.
51-20 (c) On [completion of a pilot project and] receipt of an
51-21 appropriate application for a permit or an amendment to an existing
51-22 permit from an applicant with a completed pilot or historically
51-23 demonstrated project, the commission shall evaluate the success of
51-24 the pilot or historically demonstrated project for purposes of
51-25 issuing a final order granting a permit or permit amendment
97S0149/2
52-1 authorizing the storage of appropriated water incident to a
52-2 beneficial use. The commission shall consider whether:
52-3 (1) the introduction of water into the aquifer will
52-4 alter the physical, chemical, or biological quality of native
52-5 groundwater to a degree that the introduction would:
52-6 (A) render groundwater produced from the aquifer
52-7 harmful or detrimental to people, animals, vegetation, or property;
52-8 or
52-9 (B) require treatment of the groundwater to a
52-10 greater extent than the native groundwater requires before being
52-11 applied to that beneficial use;
52-12 (2) the water stored in the receiving aquifer can be
52-13 successfully harvested from the aquifer for beneficial use; and
52-14 (3) the permit holder has provided evidence that
52-15 reasonable diligence will be used to protect the water stored in
52-16 the receiving aquifer from unauthorized withdrawals to the extent
52-17 necessary to maximize the permit holder's ability to retrieve and
52-18 beneficially use the stored water without experiencing unreasonable
52-19 loss of appropriated water.
52-20 (e) A permit to store appropriated water in a groundwater
52-21 [an underground water] reservoir or subdivision, as defined by
52-22 Chapter 36 [52], shall provide as a condition to the permit that
52-23 the permit holder shall:
52-24 (1) register the permit holder's injection and
52-25 recovery wells with a groundwater [an underground water]
97S0149/2
53-1 conservation district that has jurisdiction over the reservoir or
53-2 subdivision, if any; and
53-3 (2) each calendar month, provide the district, if any,
53-4 with a written report showing for the previous calendar month:
53-5 (A) the amount of water injected for storage;
53-6 and
53-7 (B) the amount of water recaptured for use.
53-8 SECTION 3.05. Subsection (b), Section 11.155, Water Code, is
53-9 amended to read as follows:
53-10 (b) The board shall make other studies, investigations, and
53-11 surveys of the aquifers in the state as it considers necessary to
53-12 determine the occurrence, quantity, quality, and availability of
53-13 other aquifers in which water may be stored and subsequently
53-14 retrieved for beneficial use. The board shall undertake the
53-15 studies, investigations, and surveys in the following order of
53-16 priority:
53-17 (1) the aquifers identified in Section 11.153(a);
53-18 (2) areas designated by the commission as "priority
53-19 groundwater management [critical] areas" under Section 35.008
53-20 [52.053]; and
53-21 (3) other areas of the state in a priority to be
53-22 determined by the board's ranking of where the greatest need
53-23 exists.
53-24 SECTION 3.06. Subsection (b), Section 11.173, Water Code, is
53-25 amended to read as follows:
97S0149/2
54-1 (b) A permit, certified filing, or certificate of
54-2 adjudication or a portion of a permit, certified filing, or
54-3 certificate of adjudication is exempt from cancellation under
54-4 Subsection (a) of this section:
54-5 (1) to the extent of the owner's participation in the
54-6 Conservation Reserve Program authorized by the Food Security Act,
54-7 Pub.L. No. 99-198, Secs. 1231-1236, 99 Stat. 1354, 1509-1514 (1985)
54-8 or a similar governmental program; or
54-9 (2) if any portion of the water authorized to be used
54-10 pursuant to a permit, certified filing, or certificate of
54-11 adjudication has been used in accordance with a water management
54-12 plan approved by the commission or a regional water management plan
54-13 approved pursuant to Section 16.059 of this code.
54-14 SECTION 3.07. Subdivision (6), Section 15.001, Water Code,
54-15 is amended to read as follows:
54-16 (6) "Project" means:
54-17 (A) any undertaking or work to conserve, convey,
54-18 and develop surface or subsurface water resources in the state, to
54-19 provide for the maintenance and enhancement of the quality of the
54-20 water of the state, to provide nonstructural and structural flood
54-21 control, drainage, subsidence control, recharge, chloride control,
54-22 and desalinization, and to carry out other purposes defined by
54-23 board rules; [or]
54-24 (B) any undertaking or work outside the state to
54-25 provide for the maintenance and enhancement of the quality of water
97S0149/2
55-1 by eliminating saline inflow through well pumping and deep well
55-2 injection of brine; or
55-3 (C) any undertaking or work by Texas political
55-4 subdivisions to conserve, convey, and develop surface or subsurface
55-5 water resources in areas outside Texas or to provide for the
55-6 maintenance and enhancement of the quality of the water in areas
55-7 adjoining Texas, if such undertaking or work will result in water
55-8 being available for use in or for the benefit of Texas or will
55-9 maintain and enhance the quality of water in Texas.
55-10 SECTION 3.08. Subsection (b), Section 15.002, Water Code, is
55-11 amended to read as follows:
55-12 (b) The legislature finds that the conventional means of
55-13 financing projects are inadequate to meet current and anticipated
55-14 needs of the state. Therefore, it is the further intent of the
55-15 legislature to provide a means of coordinating the development of
55-16 projects [throughout the state] through the board and to provide
55-17 political subdivisions the maximum opportunity to finance projects
55-18 through programs provided by this chapter. Projects may be in the
55-19 state or outside the state, provided that out-of-state projects
55-20 must be funded through a Texas political subdivision and must
55-21 result in water being available for use in or for the benefit of
55-22 Texas or maintain and enhance the quality of water in Texas.
55-23 SECTION 3.09. Section 15.401, Water Code, is amended to read
55-24 as follows:
55-25 Sec. 15.401. PROGRAM CREATION. The research and planning
97S0149/2
56-1 program is created to provide money for research into and planning
56-2 of the proper conservation and development of the state's water
56-3 resources, for regional planning by political subdivisions, for
56-4 facility engineering in economically distressed areas, and for
56-5 flood control planning by political subdivisions. The program may
56-6 also provide money for research and planning by Texas political
56-7 subdivisions related to the proper conservation and development of
56-8 water resources of areas outside Texas if such research or planning
56-9 will result in water being available for use in or for the benefit
56-10 of Texas or will maintain and enhance the quality of water in
56-11 Texas.
56-12 SECTION 3.10. Subsection (a), Section 15.404, Water Code, is
56-13 amended to read as follows:
56-14 (a) The board may enter into a contract with any person for
56-15 research into any matter relating to the conservation and
56-16 development of the state's water resources or for research by Texas
56-17 political subdivisions related to the proper conservation and
56-18 development of water resources of areas outside Texas if such
56-19 research will result in water being available for use in or for the
56-20 benefit of Texas or will help maintain and enhance the quality of
56-21 water in Texas.
56-22 SECTION 3.11. Subsection (f), Section 15.406, Water Code, is
56-23 amended to read as follows:
56-24 (f) The board shall adopt rules establishing criteria of
56-25 eligibility for regional facility planning money that considers:
97S0149/2
57-1 (1) the relative need of the political subdivision for
57-2 the money;
57-3 (2) the legal authority of the political subdivision
57-4 to plan, develop, and operate regional facilities; [and]
57-5 (3) the effect of regional facility planning by the
57-6 political subdivision on overall regional facility planning,
57-7 development, and operation in the state and within the area in
57-8 which the political subdivision is located; and
57-9 (4) the degree to which the regional facility planning
57-10 by the political subdivision is consistent with an approved
57-11 regional water management plan for the area in which the political
57-12 subdivision is located.
57-13 SECTION 3.12. Subchapter F, Chapter 15, Water Code, is
57-14 amended by adding a new Section 15.407 and renumbering existing
57-15 Section 15.407 as Section 15.408 to read as follows:
57-16 Sec. 15.407. REGIONAL WATER MANAGEMENT PLANNING. (a) The
57-17 board may enter into contracts with political subdivisions to pay
57-18 from the research and planning fund all or part of the cost of
57-19 developing or revising comprehensive regional water management
57-20 plans as defined in Section 16.059 of this code.
57-21 (b) A political subdivision or political subdivisions that
57-22 desire money from the research and planning fund for regional water
57-23 management planning shall submit a written application to the board
57-24 in the manner and form required by board rules.
57-25 (c) The application shall include:
97S0149/2
58-1 (1) the name of the political subdivision or political
58-2 subdivisions;
58-3 (2) a citation to the laws under which the political
58-4 subdivision was created and is operating, including specific
58-5 citation of all laws providing authority to develop and implement a
58-6 regional water management plan;
58-7 (3) the amount requested from the board for regional
58-8 water management planning; and
58-9 (4) any other relevant information required by the
58-10 board in its rules or specifically requested by the board.
58-11 (d) After notice and hearing, the board may award the
58-12 applicant all or part of the requested funds that the board
58-13 considers necessary for the political subdivision to carry out
58-14 regional water management planning.
58-15 (e) If the board grants an application under this section
58-16 and awards funds for regional water management planning, the board
58-17 shall enter into a contract with the political subdivision or
58-18 political subdivisions that includes:
58-19 (1) a detailed statement of the purpose for which the
58-20 money is to be used;
58-21 (2) the total amount of money to be paid by the board
58-22 from the research and planning fund under the contract; and
58-23 (3) any other terms and conditions required by the
58-24 board's rules or agreed to by the contracting parties.
58-25 (f) The board shall adopt rules establishing criteria for
97S0149/2
59-1 eligibility for regional water management planning money that
59-2 include:
59-3 (1) the relative need of the political subdivision for
59-4 the money;
59-5 (2) the legal authority of the political subdivision
59-6 to develop and implement a regional water management plan; and
59-7 (3) the degree to which regional water management
59-8 planning by the political subdivision or political subdivisions
59-9 will address the water supply needs of all communities and public
59-10 water systems in the designated planning area.
59-11 (g) The board shall require that regional water management
59-12 plans developed or revised under contracts entered into under this
59-13 section be made available to the commission.
59-14 Sec. 15.408. FACILITY ENGINEERING IN ECONOMICALLY DISTRESSED
59-15 AREAS. (a) In this section, "economically distressed area" and
59-16 "political subdivision" have the meanings assigned by Section
59-17 16.341 of this code.
59-18 (b) The board may enter into contracts with a political
59-19 subdivision to pay from the research and planning fund all or part
59-20 of the cost of facility engineering in economically distressed
59-21 areas, including preparation of plans and specifications.
59-22 (c) A political subdivision that desires money from the
59-23 research and planning fund for facility engineering in an
59-24 economically distressed area shall submit a written application to
59-25 the board in the manner and form required by board rules.
97S0149/2
60-1 (d) The application shall include:
60-2 (1) the name of the political subdivision;
60-3 (2) a citation to the laws under which the political
60-4 subdivision was created and is operating;
60-5 (3) the amount requested from the board for facility
60-6 engineering in an economically distressed area; and
60-7 (4) any other information required by the board in its
60-8 rules or specifically requested by the board.
60-9 (e) After notice and hearing, the board may award the
60-10 applicant all or part of the requested funds that are considered
60-11 necessary by the board for the political subdivision to carry out
60-12 adequate facility engineering in an economically distressed area.
60-13 (f) If the board grants an application under this section
60-14 and awards funds for facility engineering in an economically
60-15 distressed area, the board shall enter into a contract with the
60-16 political subdivision that includes:
60-17 (1) a detailed statement of the purpose for which the
60-18 money is to be used;
60-19 (2) the total amount of money to be paid from the
60-20 research and planning fund under the contract; and
60-21 (3) any other terms and conditions required by board
60-22 rules or agreed to by the contracting parties.
60-23 (g) If, after submission of an application under this
60-24 section, a county has an increase in average per capita income or a
60-25 decrease in unemployment rate average so that the county no longer
97S0149/2
61-1 meets the definition of an affected county in Section 16.341, the
61-2 political subdivision that submits the application continues to be
61-3 eligible for the funds under this section, and the board shall
61-4 process the application for facility engineering and, if the
61-5 application is approved, shall provide funds for the facility
61-6 engineering plan to the political subdivision.
61-7 SECTION 3.13. Subchapter C, Chapter 16, Water Code, is
61-8 amended by adding Section 16.059 to read as follows:
61-9 Sec. 16.059. REGIONAL WATER MANAGEMENT PLANS. (a) The
61-10 executive administrator shall encourage the development and
61-11 periodic revision, as necessary, of regional water management plans
61-12 and may provide technical assistance with the development or
61-13 revision of such plans.
61-14 (b) Regional water management plans shall be prepared by
61-15 political subdivisions under this section to assure an adequate,
61-16 reliable, and affordable long-term water supply for all of the
61-17 communities and public water supply systems within a designated
61-18 regional water management planning area. Regional water management
61-19 plans shall be developed and revised with the substantive
61-20 participation of all communities, public water systems, and water
61-21 suppliers within a designated regional planning area and shall
61-22 include but are not limited to:
61-23 (1) consideration and inclusion, as appropriate, of
61-24 all potentially feasible water management strategies including, but
61-25 not limited to, improved management of existing water supplies,
97S0149/2
62-1 improved water use efficiency, water reuse and recycling, water
62-2 supply and water demand management during water shortage,
62-3 conjunctive use of surface water and groundwater supplies,
62-4 acquisition of available existing water supplies, and development
62-5 of new water supplies;
62-6 (2) consideration and inclusion, as appropriate, of
62-7 water management strategy provisions contained in regional or local
62-8 drought response plans;
62-9 (3) consideration of opportunities for and the
62-10 benefits of developing regional water supply facilities or
62-11 providing regional management of water supply facilities; and
62-12 (4) consideration of and appropriate provision for
62-13 environmental water needs, including adequate water to maintain
62-14 instream uses and freshwater inflows to the state's bays and
62-15 estuaries.
62-16 (c) The board shall, in coordination with the Parks and
62-17 Wildlife Department and the commission, develop guidance consistent
62-18 with the state water plan for the development and revision of
62-19 regional water management plans.
62-20 (d) The executive administrator shall designate the areas
62-21 for which regional water management plans shall be developed,
62-22 taking into consideration such factors as river basin and aquifer
62-23 delineations, water utility development patterns, socioeconomic
62-24 characteristics, and other factors the executive administrator
62-25 deems relevant. The executive administrator may also designate a
97S0149/2
63-1 political subdivision or group of political subdivisions within
63-2 each designated regional water management planning area to serve as
63-3 the coordinating body for planning. The board shall adopt rules to
63-4 provide for the procedures for approval of regional water
63-5 management plans and to govern the procedures to be followed by the
63-6 executive administrator in carrying out the responsibilities of
63-7 this subsection.
63-8 (e) In preparing, developing, and formulating the state
63-9 water plan, the executive administrator shall give consideration to
63-10 and incorporate, as appropriate, regional water management plans
63-11 approved by the board.
63-12 (f) The board may provide financial assistance to political
63-13 subdivisions under Subchapters E and F of this chapter and
63-14 Subchapters C, D, E, F, and J, Chapter 15, and Subchapters D, I, K,
63-15 and L, Chapter 17 of this code for water projects only if the board
63-16 determines that the needs to be addressed by the project will be
63-17 addressed in a manner consistent with an approved regional water
63-18 management plan for the area in which the facility is to be
63-19 located, unless the board determines that conditions warrant waiver
63-20 of this requirement.
63-21 SECTION 3.14. Subdivision (3), Section 16.341, Water Code,
63-22 is amended to read as follows:
63-23 (3) "Political subdivision" means an affected county,
63-24 a municipality located in an affected county, a district or
63-25 authority created under Article III, Section 52, or Article XVI,
97S0149/2
64-1 Section 59, of the Texas Constitution, located in an affected
64-2 county, or a nonprofit water supply corporation created and
64-3 operating under Chapter 76, Acts of the 43rd Legislature, 1st
64-4 Called Session, 1933 (Article 1434a, Vernon's Texas Civil
64-5 Statutes), located in an affected county, that receives funds for
64-6 facility engineering under Section 15.408 [15.407] of this code or
64-7 financial assistance under Subchapter K, Chapter 17, of this code
64-8 or an economically distressed area in an affected county for which
64-9 financial assistance is received under Subchapter C, Chapter 15, of
64-10 this code.
64-11 SECTION 3.15. Subsection (g), Section 16.343, Water Code, is
64-12 amended to read as follows:
64-13 (g) Before filing an application for funds for facility
64-14 engineering under Section 15.408 [15.407] of this code or financial
64-15 assistance under Subchapter K, Chapter 17, of this code, a
64-16 political subdivision must adopt the model rules pursuant to this
64-17 section or, in the case of a district or nonprofit water supply
64-18 corporation, must be located in a city or county that has adopted
64-19 such rules. An affected county may not receive funds under either
64-20 Section 15.408 [15.407] of this code or Subchapter K, Chapter 17,
64-21 of this code unless the county adopts and enforces the model rules.
64-22 SECTION 3.16. Subsection (a), Section 16.345, Water Code, is
64-23 amended to read as follows:
64-24 (a) A political subdivision may exercise any authority
64-25 necessary to participate in a program under Section 15.408 [15.407]
97S0149/2
65-1 of this code or Subchapter K, Chapter 17, of this code and carry
65-2 out the terms and conditions under which the funds or the financial
65-3 assistance is provided.
65-4 SECTION 3.17. Subsections (a) and (d), Section 16.350, Water
65-5 Code, are amended to read as follows:
65-6 (a) A county or municipality that applies for or receives
65-7 funds or financial assistance under Section 15.408 [15.407] of this
65-8 code or Subchapter K, Chapter 17, of this code must adopt and
65-9 enforce the model rules developed under Section 16.343 of this code
65-10 to be eligible to participate in this program. The county or
65-11 municipality by order or ordinance shall adopt and enter the model
65-12 rules in the minutes of a meeting of its governing body and shall
65-13 publish notice of that action in a newspaper with general
65-14 circulation in the county or municipality. A municipality is
65-15 eligible to participate in this program only if the county in which
65-16 the project is located adopts and enforces the model rules.
65-17 (d) A county or municipality that receives funds or
65-18 financial assistance under Section 15.408 [15.407] of this code or
65-19 Subchapter K, Chapter 17, of this code may grant an exemption for a
65-20 subdivision from the requirements of the model rules only if the
65-21 county or municipality supplies the subdivision with water supply
65-22 and sewer services that meet the standards of the model rules.
65-23 SECTION 3.18. Section 17.895, Water Code, is amended by
65-24 adding Subsection (c) to read as follows:
65-25 (c) The board may make conservation loans to borrower
97S0149/2
66-1 districts for the cost of purchasing and installing devices, on
66-2 public or private property, designed to indicate the amount of
66-3 water withdrawn for irrigation purposes.
66-4 SECTION 3.19. Section 17.926, Water Code, is amended to read
66-5 as follows:
66-6 Sec. 17.926. APPLICANTS' CONTINUED ELIGIBILITY. If, after
66-7 submission of a financial assistance application under this
66-8 subchapter or an application for funds under Section 15.408
66-9 [15.407], a county has an increase in average per capita income or
66-10 decrease in unemployment rate average so that the county no longer
66-11 meets the criteria in this subchapter, the political subdivision
66-12 that submits the application continues to be eligible for the
66-13 financial assistance under this subchapter, and the board shall
66-14 process the application and, if the application is approved, shall
66-15 provide financial assistance to the political subdivision to
66-16 complete the project.
66-17 SECTION 3.20. Section 27.0511, Water Code, is amended by
66-18 adding Subsection (h) to read as follows:
66-19 (h) If the railroad commission receives an application for
66-20 an injection well using fresh water for enhanced recovery purposes
66-21 and the well is to be located in a groundwater conservation
66-22 district, the railroad commission shall give notice to the district
66-23 in which the well is to be located that the application has been
66-24 received and is being considered. The railroad commission shall
66-25 determine whether the permit application is consistent with the
97S0149/2
67-1 district's management plan.
67-2 SECTION 3.21. Subdivision (12), Section 35.002, Water Code,
67-3 is amended to read as follows:
67-4 (12) "Priority groundwater management [Critical] area"
67-5 means an area designated and delineated by the commission as an
67-6 area that is experiencing or is expected to experience critical
67-7 groundwater problems.
67-8 SECTION 3.22. Section 35.007, Water Code, is amended to read
67-9 as follows:
67-10 Sec. 35.007. IDENTIFYING, DESIGNATING, AND DELINEATING
67-11 PRIORITY GROUNDWATER MANAGEMENT [CRITICAL] AREAS. (a) The
67-12 executive director and the executive administrator shall meet at
67-13 least once a year to identify, based on information available to
67-14 the commission and the Texas Water Development Board, those areas
67-15 of the state that are experiencing or that are expected to
67-16 experience, [based on information available to the commission and
67-17 the Texas Water Development Board,] within the immediately
67-18 following 50-year [20-year] period, critical groundwater problems,
67-19 including shortages of surface water or groundwater, land
67-20 subsidence resulting from groundwater withdrawal, and contamination
67-21 of groundwater supplies.
67-22 (b) If the executive director concludes that an area of the
67-23 state should be considered for designation as a priority
67-24 groundwater management [critical] area, the executive director
67-25 shall prepare a report to the commission.
97S0149/2
68-1 (c) The executive director shall begin preparation of a
68-2 priority groundwater management [critical] area report by
68-3 requesting a study from the executive administrator. The study
68-4 must:
68-5 (1) include an appraisal of the hydrogeology of the
68-6 area and matters within the Texas Water Development Board's
68-7 planning expertise relevant to the area;
68-8 (2) assess the area's immediate, short-term, and
68-9 long-term water supply and needs; and
68-10 (3) [. The study must] be completed and delivered to
68-11 the executive director on or before the 180th [90th] day following
68-12 the date of the request. If the study is not delivered within this
68-13 180-day [90-day] period, the executive director may proceed with
68-14 the preparation of the report.
68-15 (d) The executive director shall request a study from the
68-16 executive director of the Parks and Wildlife Department for the
68-17 purpose of preparing the report required by this section. The
68-18 study must:
68-19 (1) evaluate the potential effects of the designation
68-20 of a priority groundwater management area on an area's fish and
68-21 wildlife resources; and
68-22 (2) be completed and delivered to the executive
68-23 director on or before the 180th day following the date of the
68-24 request. If the study is not delivered within this 180-day period,
68-25 the executive director may proceed with the preparation of the
97S0149/2
69-1 report.
69-2 (e) The report shall include:
69-3 (1) the recommended delineation of the boundaries of
69-4 any proposed priority groundwater management [critical] area in the
69-5 form of an order [a rule] to be considered for adoption by the
69-6 commission;
69-7 (2) the reasons and supporting information for or
69-8 against designating the area as a priority groundwater management
69-9 [critical] area;
69-10 (3) a recommendation regarding whether a district
69-11 should be created in the priority groundwater management [critical]
69-12 area or whether the priority groundwater management [critical] area
69-13 should be added to an existing district;
69-14 (4) a recommendation as to actions that should be
69-15 considered to conserve fish and wildlife resources; and
69-16 (5) any other information that the executive director
69-17 considers helpful to the commission.
69-18 (f) [(e)] The executive director must complete the report
69-19 and file it with the commission on or before the 240th [210th] day
69-20 following the date on which the executive administrator was
69-21 requested to produce a study. The executive director shall make
69-22 the report available for public inspection by providing a copy of
69-23 the report to at least one library in each county in which the
69-24 proposed priority groundwater management [critical] area is
69-25 located.
97S0149/2
70-1 (g) [(f)] To carry out this section, the executive director
70-2 may make necessary studies, hold hearings, solicit and collect
70-3 information, and use information already prepared by the executive
70-4 director or the executive administrator for other purposes.
70-5 SECTION 3.23. Section 35.008, Water Code, is amended to read
70-6 as follows:
70-7 Sec. 35.008. PROCEDURES FOR DESIGNATION OF PRIORITY
70-8 GROUNDWATER MANAGEMENT AREA; CONSIDERATION OF CREATION OF DISTRICT
70-9 OR ADDITION OF LAND IN PRIORITY GROUNDWATER MANAGEMENT AREA TO
70-10 EXISTING DISTRICT [CRITICAL AREAS]. (a) The commission shall
70-11 designate priority groundwater management [critical] areas using
70-12 the procedures provided by this chapter in lieu of those provided
70-13 by [applicable to rulemaking under the Administrative Procedure
70-14 Act,] Subchapter B, Chapter 2001, Government Code[, but if
70-15 procedures required by this chapter are in conflict with that Act,
70-16 this chapter controls].
70-17 (b) The commission shall call an evidentiary hearing to
70-18 consider:
70-19 (1) the designation of a priority groundwater
70-20 management area;
70-21 (2) whether a district should be created over all or
70-22 part of a priority groundwater management area; or
70-23 (3) whether all or part of the land in the priority
70-24 groundwater management area should be added to an existing
70-25 district.
97S0149/2
71-1 (c) Evidentiary hearings shall be held at a location in one
71-2 of the counties in which the priority groundwater management area
71-3 is located, or proposed to be located, or in the nearest convenient
71-4 location if adequate facilities are not available in those
71-5 counties.
71-6 (d) At the hearing, the commission shall hear testimony and
71-7 receive evidence from affected persons. The commission shall
71-8 consider the executive director's report and supporting information
71-9 and the testimony and evidence received at the hearing. If the
71-10 commission considers further information necessary, the commission
71-11 may request such information from any source.
71-12 (e) The designation of a priority groundwater management
71-13 [critical] area may not be appealed nor may it be challenged under
71-14 the Administrative Procedure Act, Section 2001.038, Government
71-15 Code.
71-16 SECTION 3.24. Section 35.009, Water Code, is amended to read
71-17 as follows:
71-18 Sec. 35.009. NOTICE AND HEARING. (a) The [In addition to
71-19 the notice required for rulemaking under the Administrative
71-20 Procedure Act, Section 2001.023, Government Code, the] commission
71-21 shall have notice of the hearing published in at least one
71-22 newspaper with general circulation in the county or counties in
71-23 which the area being designated a proposed priority groundwater
71-24 management [critical] area or the area within a priority
71-25 groundwater management area being considered for district creation
97S0149/2
72-1 or for addition to an existing district is [to be] located. Notice
72-2 must be published not later than the 30th day before the date set
72-3 for the commission to consider the designation of the priority
72-4 groundwater management [critical] area, the creation of a district
72-5 in a priority groundwater management area, or the addition of land
72-6 in a priority groundwater management area to an existing district.
72-7 (b) The notice must include:
72-8 (1) if applicable, a statement of the general purpose
72-9 and effect of designating the proposed priority groundwater
72-10 management area [critical areas];
72-11 (2) if applicable, a statement of the general purpose
72-12 and effect of creating a district in the priority groundwater
72-13 management area;
72-14 (3) if applicable, a statement that all or part of the
72-15 land in the priority groundwater management area could be added to
72-16 an existing district;
72-17 (4) a map generally outlining the boundaries of the
72-18 area being considered for priority groundwater management [proposed
72-19 critical] area designation or the priority groundwater management
72-20 area being considered for district creation or for addition to an
72-21 existing district, or notice of the location at which a copy of the
72-22 map may be examined or obtained;
72-23 (5) a statement that the full executive director's
72-24 report concerning the priority groundwater management area or
72-25 proposed area is available at the commission's main office in
97S0149/2
73-1 Austin, Texas, and at regional offices of the commission for
73-2 regions which include territory within the priority groundwater
73-3 management area or proposed priority groundwater management area
73-4 and that the report is available for inspection during regular
73-5 business hours;
73-6 (6) [(3)] a description or the name of the locations
73-7 in the affected area at which the commission has provided copies of
73-8 the executive director's report to be made available for public
73-9 inspection;
73-10 (7) the name and address of each library in the
73-11 proposed priority groundwater management area to which the
73-12 commission has provided copies of the executive director's report;
73-13 and
73-14 (8) [(4)] the date, time, and place of the hearing [at
73-15 which the commission will consider the designation of the critical
73-16 areas].
73-17 (c) The commission shall also give written notice of the
73-18 date, time, place, and purpose of the hearing to the governing body
73-19 of each county, municipality, river authority, water district, or
73-20 other entity which supplies public drinking water located either
73-21 partially or entirely in the priority groundwater management area
73-22 or proposed priority groundwater management area. The notice must
73-23 be given before the 30th day preceding the date set for the
73-24 hearing.
73-25 SECTION 3.25. Subsections (b), (c), (d), and (e), Section
97S0149/2
74-1 35.012, Water Code, are amended to read as follows:
74-2 (b) If the commission finds that the land and other property
74-3 in the priority groundwater management [critical] area would
74-4 benefit from the creation of one or more districts, that there is a
74-5 public need for one or more districts, and that the creation of one
74-6 or more districts would further the public welfare, the commission
74-7 shall issue an order stating that the creation of one or more
74-8 districts is needed.
74-9 (c) Following [During the period between] the [date of]
74-10 issuance of a commission order under Subsection (b) [and one year
74-11 after the close of the next regular session of the legislature
74-12 following the issuance of the order], the landowners in the
74-13 priority groundwater management [critical] area may:
74-14 (1) create one or more districts under Subchapter B,
74-15 Chapter 36;
74-16 (2) have the area annexed to a district that adjoins
74-17 the area; or
74-18 (3) create one or more districts through the
74-19 legislative process.
74-20 (d) The commission shall identify the areas subject to the
74-21 order of the commission issued under Subsection (b) that have not[,
74-22 in the period provided by Subsection (c),] been incorporated into a
74-23 district[,] and shall delineate proposed boundaries of a district
74-24 to include those areas. If the commission proposes the creation of
74-25 one or more districts, the commission shall begin the procedures
97S0149/2
75-1 for creation of a district provided in Subchapter B, Chapter 36.
75-2 (e) If the commission fails to find that the district would
75-3 be a benefit to the land and other property within the priority
75-4 groundwater management [critical] area, that there is a public need
75-5 for the district, or that creation of the district will further the
75-6 public welfare, the commission shall issue an order stating that a
75-7 district should not be created within the boundaries of the
75-8 priority groundwater management [critical] area.
75-9 SECTION 3.26. Section 35.013, Water Code, is amended to read
75-10 as follows:
75-11 Sec. 35.013. ADDING PRIORITY GROUNDWATER MANAGEMENT
75-12 [CRITICAL] AREA TO EXISTING DISTRICT. (a) If land in a priority
75-13 groundwater management [critical] area is located adjacent to one
75-14 or more existing districts, the commission, instead of issuing an
75-15 order under Section 35.012, may issue an order recommending that
75-16 the priority groundwater management [critical] area be added to the
75-17 existing district designated by the commission. In its order, the
75-18 commission must find that the land and other property in the
75-19 priority groundwater management [critical] area and the land in the
75-20 existing district will benefit from the addition of the area, that
75-21 there is a public need to add the priority groundwater management
75-22 [critical] area to the existing district, and that the addition of
75-23 the land to the existing district would further the public welfare.
75-24 (b) If the executive director recommends that the priority
75-25 groundwater management [critical] area be added to an existing
97S0149/2
76-1 district or if the commission considers it possible to add the
76-2 priority groundwater management [critical] area to an adjacent
76-3 existing district, the commission shall give notice to the board of
76-4 the existing district recommended by the executive director or
76-5 considered by the commission to possibly serve the area and to any
76-6 other existing districts adjacent to the priority groundwater
76-7 management [critical] area.
76-8 (c) The commission shall submit a copy of the order to the
76-9 board of the district to which it is recommending the priority
76-10 groundwater management [critical] area be added. The board shall
76-11 vote on the addition of the priority groundwater management
76-12 [critical] area to the district and shall advise the commission of
76-13 the outcome.
76-14 (d) If the board votes to accept the addition of the
76-15 priority groundwater management [critical] area to the district,
76-16 the board shall call an election within the priority groundwater
76-17 management [critical] area as delineated by the commission to
76-18 determine if the priority groundwater management [critical] area
76-19 will be added to the district. In the order calling the election,
76-20 the board shall designate election precincts and polling places for
76-21 the elections.
76-22 (e) The board shall give notice of the election and the
76-23 proposition to be voted on. The board shall publish notice of the
76-24 election at least one time in one or more newspapers with general
76-25 circulation within the boundaries of the priority groundwater
97S0149/2
77-1 management [critical] area. The notice must be published before
77-2 the 30th day preceding the date set for the election.
77-3 (f) The ballots for the election shall be printed to provide
77-4 for voting for or against the proposition: "The inclusion of
77-5 __________ (briefly describe priority groundwater management
77-6 [critical] area) in the __________ District." If the district has
77-7 issued bonds, the proposition shall include the following language:
77-8 "and assumption by the described area of a proportional share of
77-9 the outstanding indebtedness of the district."
77-10 (g) Immediately after the election, the presiding judge of
77-11 each polling place shall deliver the returns of the election to the
77-12 board, and the board shall canvass the returns for the election
77-13 within the priority groundwater management [critical] area and
77-14 declare the results. If a majority of the voters in the priority
77-15 groundwater management [critical] area voting on the proposition
77-16 vote in favor of the proposition, the board shall declare that the
77-17 priority groundwater management [critical] area is added to the
77-18 district. If a majority of the voters in the priority groundwater
77-19 management [critical] area voting on the proposition vote against
77-20 adding the priority groundwater management [critical] area to the
77-21 district, the board shall declare that the priority groundwater
77-22 management [critical] area is not added to the district. The board
77-23 shall file a copy of the election results with the commission.
77-24 (h) If the voters approve adding the priority groundwater
77-25 management [critical] area to the district, the board of the
97S0149/2
78-1 district to which the priority groundwater management [critical]
78-2 area is added shall provide reasonable representation on that board
78-3 compatible with the district's existing scheme of representation.
78-4 (i) If the proposition is defeated, another election to add
78-5 the priority groundwater management [critical] area to an existing
78-6 district may not be called before the first anniversary of the date
78-7 on which the election on the proposition was held.
78-8 SECTION 3.27. Subsections (b) and (c), Section 35.014, Water
78-9 Code, are amended to read as follows:
78-10 (b) The costs of an election to add a priority groundwater
78-11 management [critical] area to an existing district at which the
78-12 voters approve adding the priority groundwater management
78-13 [critical] area to the district shall be paid by the existing
78-14 district.
78-15 (c) The costs of an election to create a district or add a
78-16 priority groundwater management [critical] area to an existing
78-17 district at which the proposition fails shall be paid by the
78-18 commission.
78-19 SECTION 3.28. Section 35.015, Water Code, is amended to read
78-20 as follows:
78-21 Sec. 35.015. STATE ASSISTANCE. [(a) A political
78-22 subdivision located in or that has within its boundaries an area or
78-23 part of an area delineated as a critical area, and in which the
78-24 qualified voters fail to approve the creation of a district or to
78-25 join an existing district, shall not be eligible to receive any
97S0149/2
79-1 financial assistance from the state under Chapter 15, 16, or 17 for
79-2 use within that portion of the critical area not covered by a
79-3 district.]
79-4 [(b)] A political subdivision located in an area delineated
79-5 as a priority groundwater management [critical] area, and in which
79-6 qualified voters approve the creation of a district or annexation
79-7 into an existing district, shall be given consideration to receive
79-8 financial assistance from the state under Chapter 17 for funds to
79-9 be used in addressing issues identified in the priority groundwater
79-10 management [critical] area report in the manner provided by
79-11 Sections 17.124 and 17.125[, except that the board is not required
79-12 to make the finding set out in Section 17.125(a)(2)].
79-13 SECTION 3.29. Subsection (b), Section 35.016, Water Code, is
79-14 amended to read as follows:
79-15 (b) A district is considered active unless the commission
79-16 has determined under Section 36.302 that the district is not
79-17 operational [if it meets the requirements in Section 36.301(c)].
79-18 SECTION 3.30. Section 35.017, Water Code, is amended to read
79-19 as follows:
79-20 Sec. 35.017. STATE-OWNED LAND. If state-owned land or a
79-21 portion of state-owned land is located in a priority groundwater
79-22 management [critical] area, the state agency that has management
79-23 and control over that land under the constitution or by statute may
79-24 elect by written agreement with the commission and the district to
79-25 include the state-owned land in the district. The agreement shall
97S0149/2
80-1 be entered into as provided by the Texas Intergovernmental
80-2 Cooperation Act, Chapter 741, Government Code, and may include
80-3 provisions for the payment by the state agency of reasonable fees
80-4 to the district. If the state does not elect to enter into the
80-5 agreement to include the state-owned land in the district, the
80-6 state agency must establish a groundwater management plan that will
80-7 conserve, protect, and prevent the waste of groundwater on that
80-8 state-owned land.
80-9 SECTION 3.31. Chapter 35, Water Code, is amended by adding
80-10 Section 35.018 to read as follows:
80-11 Sec. 35.018. REPORTS. (a) Not later than January 31 of
80-12 each odd-numbered year, the commission in conjunction with the
80-13 Texas Water Development Board shall prepare and deliver to the
80-14 governor, the lieutenant governor, and the speaker of the house of
80-15 representatives a comprehensive report concerning activities during
80-16 the preceding two years relating to the designation of priority
80-17 groundwater management areas by the commission, the creation of
80-18 districts, and the operation of districts.
80-19 (b) The report must include:
80-20 (1) the names and locations of all priority
80-21 groundwater management areas and districts created or attempted to
80-22 be created on or after November 5, 1985, the effective date of
80-23 Chapter 133 (H.B. No. 2), Acts of the 69th Legislature, Regular
80-24 Session, 1985;
80-25 (2) the authority under which each priority
97S0149/2
81-1 groundwater management area and district was proposed for creation;
81-2 (3) a detailed analysis of each election held to
81-3 confirm the creation of a district, including analysis of election
81-4 results, possible reasons for the success or failure to confirm the
81-5 creation of a district, and the possibility for future voter
81-6 approval of districts in areas in which attempts to create
81-7 districts failed;
81-8 (4) a detailed analysis of the activities of each
81-9 district created, including those districts which are implementing
81-10 management plans approved under Section 36.1072;
81-11 (5) a report on audits performed on districts under
81-12 Section 36.302 and remedial actions taken under Section 36.303;
81-13 (6) recommendations for changes in this chapter and
81-14 Chapter 36 that will facilitate the creation of priority
81-15 groundwater management areas and the creation and operation of
81-16 districts; and
81-17 (7) any other information and recommendations that the
81-18 commission considers relevant.
81-19 SECTION 3.32. Section 36.001, Water Code, is amended by
81-20 amending Subdivision (14) and adding Subdivisions (16) and (17) to
81-21 read as follows:
81-22 (14) "Priority groundwater management [Critical] area"
81-23 means an area designated and delineated by the commission under
81-24 Chapter 35 as an area experiencing or expected to experience
81-25 critical groundwater problems.
97S0149/2
82-1 (16) "Loan fund" means the groundwater district loan
82-2 assistance fund created under Section 36.371.
82-3 (17) "Applicant" means a newly confirmed district
82-4 applying for a loan from the loan fund.
82-5 SECTION 3.33. Subsection (c), Section 36.012, Water Code, is
82-6 amended to read as follows:
82-7 (c) The boundaries of a district must be coterminous with or
82-8 inside the boundaries of a management area or a priority
82-9 groundwater management [critical] area.
82-10 SECTION 3.34. Subsection (d), Section 36.013, Water Code, is
82-11 amended to read as follows:
82-12 (d) If a part of the proposed district is not included
82-13 within either a management area or a priority groundwater
82-14 management [critical] area, the petition to create a district may
82-15 also contain a request to create a management area. A request to
82-16 create a management area must comply with the requirements for a
82-17 petition in Section 35.005, and may be acted on by the commission
82-18 separately from the petition to create the district.
82-19 SECTION 3.35. Subchapter B, Chapter 36, Water Code, is
82-20 amended by adding Section 36.0151 to read as follows:
82-21 Sec. 36.0151. CREATION OF DISTRICT FOR PRIORITY GROUNDWATER
82-22 MANAGEMENT AREA. (a) If the commission proposes that a district
82-23 be created under Section 35.012(d), it shall in its order creating
82-24 the district provide that temporary directors be appointed under
82-25 Section 36.016 and that an election be called by the temporary
97S0149/2
83-1 directors to confirm the creation of the district and to elect
83-2 permanent directors.
83-3 (b) The commission shall notify the county commissioners
83-4 court of each county with territory in the district of the
83-5 district's creation as soon as practicable after issuing the order
83-6 creating the district.
83-7 SECTION 3.36. Section 36.016, Water Code, is amended to read
83-8 as follows:
83-9 Sec. 36.016. APPOINTMENT OF TEMPORARY DIRECTORS. (a) If
83-10 the commission grants a petition to create a district under Section
83-11 36.015 or after the commission dissolves a district's board under
83-12 Section 36.303, it shall appoint five temporary directors.
83-13 (b) If the commission creates a district under Section
83-14 36.0151, the county commissioners court or courts of the county or
83-15 counties that contain the area of the district shall, within 90
83-16 days after receiving notification by the commission under Section
83-17 36.0151(b), appoint five temporary directors, or more if the
83-18 district contains the territory of more than five counties, for the
83-19 district's board using the method provided by Section 36.0161. A
83-20 county commissioners court shall not make any appointments after
83-21 the expiration of the 90-day period. If fewer than five temporary
83-22 directors have been appointed at the expiration of the period, the
83-23 commission shall appoint additional directors so that the board has
83-24 at least five members.
83-25 (c) Temporary directors appointed under this section [who]
97S0149/2
84-1 shall serve until the initial directors are elected and have
84-2 qualified for office or until the voters fail to approve the
84-3 creation of the district.
84-4 (d) [(b)] If an appointee of the commission or of a county
84-5 commissioners court or county commissioners courts fails to qualify
84-6 or if a vacancy occurs in the office of temporary director, the
84-7 commission or the county commissioners court or courts, as
84-8 appropriate, shall appoint an individual to fill the vacancy.
84-9 (e) [(c)] As soon as all temporary directors have qualified,
84-10 the directors shall meet, take the oath of office, and elect a
84-11 chairman and vice chairman from among their membership. The
84-12 chairman shall preside at all meetings of the board and, in the
84-13 chairman's absence, the vice chairman shall preside.
84-14 SECTION 3.37. Subchapter B, Chapter 36, Water Code, is
84-15 amended by adding Section 36.0161 to read as follows:
84-16 Sec. 36.0161. METHOD FOR APPOINTING TEMPORARY DIRECTORS FOR
84-17 DISTRICT IN PRIORITY GROUNDWATER MANAGEMENT AREA. (a) If a
84-18 district in a priority groundwater management area is:
84-19 (1) contained within one county, the county
84-20 commissioners court of that county shall appoint five temporary
84-21 directors for the district;
84-22 (2) contained within two counties, the county
84-23 commissioners court of each county shall appoint at least one
84-24 temporary director, with the appointments of the three remaining
84-25 directors to be apportioned as provided by Subsection (b);
97S0149/2
85-1 (3) contained within three counties, the county
85-2 commissioners court of each county shall appoint at least one
85-3 temporary director, with the appointments of the two remaining
85-4 directors to be apportioned as provided by Subsection (b);
85-5 (4) contained within four counties, the county
85-6 commissioners court of each county shall appoint at least one
85-7 temporary director, with the appointment of the remaining director
85-8 to be apportioned as provided by Subsection (b); or
85-9 (5) contained within five or more counties, the county
85-10 commissioners court of each county shall appoint one temporary
85-11 director.
85-12 (b)(1) In this subsection, "estimated groundwater use" means
85-13 the estimate of groundwater use in acre-feet developed by the
85-14 commission under Subsection (c) for the area of a county that is
85-15 within the district.
85-16 (2) The apportionment of appointments under Subsection
85-17 (a) shall be made by the commission so as to reflect, as closely as
85-18 possible, the proportion each county's estimated groundwater use
85-19 bears to the sum of the estimated groundwater use for the district
85-20 as determined under Subsection (c). The commission shall by rule
85-21 determine the method it will use to implement this subdivision.
85-22 (c) If a district is contained within two, three, or four
85-23 counties, the commission shall develop an estimate of annual
85-24 groundwater use in acre-feet for each county area within the
85-25 district.
97S0149/2
86-1 SECTION 3.38. Section 36.102, Water Code, is amended to read
86-2 as follows:
86-3 Sec. 36.102. ENFORCEMENT OF RULES. (a) A district may
86-4 enforce this chapter and its rules by injunction, mandatory
86-5 injunction, or other appropriate remedy in a court of competent
86-6 jurisdiction.
86-7 (b) [The board may set reasonable civil penalties for breach
86-8 of any rule of the district that shall not exceed the jurisdiction
86-9 of a justice court as provided by Section 27.031, Government Code.]
86-10 [(c) A penalty under this section is in addition to any
86-11 other penalty provided by the law of this state and may be enforced
86-12 by complaints filed in the appropriate court of jurisdiction in the
86-13 county in which the district's principal office or meeting place is
86-14 located.]
86-15 [(d)] If the district prevails in any suit to enforce its
86-16 rules, it may, in the same action, recover reasonable fees for
86-17 attorneys, expert witnesses, and other costs incurred by the
86-18 district before the court. The amount of the attorney's fees shall
86-19 be fixed by the court.
86-20 (c) The district may issue orders in accordance with Chapter
86-21 2001, Government Code, to enforce the terms and conditions of
86-22 permits, orders, or rules issued or adopted under this chapter.
86-23 SECTION 3.39. Subchapter D, Chapter 36, Water Code, is
86-24 amended by adding Section 36.1021 to read as follows:
86-25 Sec. 36.1021. ADMINISTRATIVE PENALTY. (a) A district may
97S0149/2
87-1 assess an administrative penalty against a person who violates this
87-2 chapter or a rule adopted or order issued under this chapter in an
87-3 amount not to exceed $10,000 a day for each violation and for each
87-4 day of a continuing violation.
87-5 (b) In determining the amount of the penalty, the district
87-6 shall consider:
87-7 (1) the nature, circumstances, extent, duration, and
87-8 gravity of the prohibited acts, with special emphasis on the
87-9 impairment of existing water rights or the hazard or potential
87-10 hazard created to the health, safety, or welfare of the public;
87-11 (2) the impact of the violation on the instream uses,
87-12 water quality, aquatic and wildlife habitat, or beneficial
87-13 freshwater inflows to bays and estuaries;
87-14 (3) with respect to the alleged violator:
87-15 (A) the history and extent of previous
87-16 violations;
87-17 (B) the degree of culpability, including whether
87-18 the violation was attributable to mechanical or electrical failures
87-19 and whether the violation could have been reasonably anticipated
87-20 and avoided;
87-21 (C) demonstrated good faith, including actions
87-22 taken by the alleged violator to rectify the cause of the violation
87-23 and to compensate affected persons;
87-24 (D) any economic benefit gained through the
87-25 violation; and
97S0149/2
88-1 (E) the amount necessary to deter future
88-2 violations; and
88-3 (4) any other matters that justice may require.
88-4 (c) If after an examination of the facts the district
88-5 concludes that the person did commit a violation, the district may
88-6 issue a preliminary report stating the facts on which it based its
88-7 conclusion, recommending that an administrative penalty under this
88-8 section be imposed, and recommending the amount of the proposed
88-9 penalty.
88-10 (d) The district shall give written notice of the report to
88-11 the person charged with committing the violation. The notice must
88-12 include a brief summary of the facts, a statement of the amount of
88-13 the recommended penalty, and a statement of the person's right to
88-14 an informal review of the occurrence of the violation, the amount
88-15 of the penalty, or both the occurrence of the violation and the
88-16 amount of the penalty.
88-17 (e) Not later than the 10th day after the date on which the
88-18 person charged with committing the violation receives the notice,
88-19 the person may either give the district written consent to the
88-20 report, including the recommended penalty, or make a written
88-21 request for an informal review or a formal hearing by the district.
88-22 (f) If the person charged with committing the violation
88-23 consents to the penalty recommended by the district or fails timely
88-24 to request an informal review or a formal hearing, the district
88-25 shall assess the penalty. The district shall give the person
97S0149/2
89-1 written notice of its action. The person shall pay the penalty not
89-2 later than the 30th day after the date on which the person receives
89-3 the notice.
89-4 (g) If the person charged with committing a violation
89-5 requests an informal review as provided by Subsection (e), the
89-6 district shall conduct the review. The district shall give the
89-7 person written notice of the results of the review not later than
89-8 60 days from the date of the request.
89-9 (h) Not later than the 10th day after the date on which the
89-10 person charged with committing the violation receives the notice
89-11 prescribed by Subsection (g), the person may make to the district a
89-12 written request for a formal hearing.
89-13 (i) If, after informal review, a person who has been ordered
89-14 to pay a penalty fails to request a formal hearing in a timely
89-15 manner, the district shall assess the penalty. The district shall
89-16 give the person written notice of its action. The person shall pay
89-17 the penalty not later than the 30th day after the date on which the
89-18 person receives the notice.
89-19 (j) Within 30 days after the date the district's order
89-20 becomes final as provided by Section 2001.144, Government Code, the
89-21 person shall:
89-22 (1) pay the amount of the penalty;
89-23 (2) pay the amount of the penalty and file a petition
89-24 for judicial review contesting the occurrence of the violation, the
89-25 amount of the penalty, or both the occurrence of the violation and
97S0149/2
90-1 the amount of the penalty; or
90-2 (3) without paying the amount of the penalty, file a
90-3 petition for judicial review contesting the occurrence of the
90-4 violation, the amount of the penalty, or both the occurrence of the
90-5 violation and the amount of the penalty.
90-6 (k) Within the 30-day period, a person who acts under
90-7 Subsection (j)(3) of this section may:
90-8 (1) stay enforcement of the penalty by:
90-9 (A) paying the amount of the penalty to the
90-10 court for placement in an escrow account; or
90-11 (B) giving to the court a supersedeas bond that
90-12 is approved by the court for the amount of the penalty and that is
90-13 effective until all judicial review of the district's order is
90-14 final; or
90-15 (2) request the court to stay enforcement of the
90-16 penalty by:
90-17 (A) filing with the court a sworn affidavit of
90-18 the person stating that the person is financially unable to pay the
90-19 amount of the penalty and is financially unable to give the
90-20 supersedeas bond; and
90-21 (B) giving a copy of the affidavit to the
90-22 district by certified mail.
90-23 (l) If the district receives a copy of an affidavit under
90-24 Subsection (k)(2), it may file with the court within five days
90-25 after the date the copy is received a contest to the affidavit.
97S0149/2
91-1 The court shall hold a hearing on the facts alleged in the
91-2 affidavit as soon as practicable and shall stay the enforcement of
91-3 the penalty on finding that the alleged facts are true. The person
91-4 who files an affidavit has the burden of proving that the person is
91-5 financially unable to pay the amount of the penalty and to give a
91-6 supersedeas bond.
91-7 (m) If the person does not pay the amount of the penalty and
91-8 the enforcement of the penalty is not stayed, the district may
91-9 refer the matter to the attorney general for collection of the
91-10 amount of the penalty.
91-11 (n) Judicial review of the order of the district:
91-12 (1) is instituted by filing a petition as provided by
91-13 Subchapter G, Chapter 2001, Government Code; and
91-14 (2) is under the substantial evidence rule.
91-15 (o) If the court sustains the occurrence of the violation,
91-16 the court may uphold or reduce the amount of the penalty and order
91-17 the person to pay the full or reduced amount of the penalty. If
91-18 the court does not sustain the occurrence of the violation, the
91-19 court shall order that no penalty is owed.
91-20 (p) When the judgment of the court becomes final, the court
91-21 shall proceed under this subsection. If the person paid the amount
91-22 of the penalty and if that amount is reduced or is not upheld by
91-23 the court, the court shall order that the appropriate amount plus
91-24 accrued interest be remitted to the person. The rate of interest
91-25 is the rate charged on loans to depository institutions by the New
97S0149/2
92-1 York Federal Reserve Bank, and the interest shall be paid for the
92-2 period beginning on the date the penalty was paid and ending on the
92-3 date the penalty is remitted. If the person gave a supersedeas
92-4 bond and if the amount of the penalty is not upheld by the court,
92-5 the court shall order the release of the bond. If the person gave
92-6 a supersedeas bond and if the amount of the penalty is reduced, the
92-7 court shall order the release of the bond after the person pays the
92-8 reduced amount.
92-9 (q) A penalty collected under this section shall be remitted
92-10 to the district.
92-11 (r) All proceedings under this section are subject to
92-12 Chapter 2001, Government Code.
92-13 SECTION 3.40. Section 36.104, Water Code, is amended to read
92-14 as follows:
92-15 Sec. 36.104. PURCHASE, SALE, TRANSPORTATION, AND
92-16 DISTRIBUTION OF WATER. (a) A district may purchase, sell,
92-17 transport, and distribute surface water or groundwater for any
92-18 purpose.
92-19 (b) An export of groundwater may be limited if there is an
92-20 existing and foreseeable need for the water that is identified in
92-21 the district's management plan and there is no alternative within
92-22 the district.
92-23 SECTION 3.41. Subchapter D, Chapter 36, Water Code, is
92-24 amended by amending Section 36.107 and adding Sections 36.1071,
92-25 36.1072, and 36.1073 to read as follows:
97S0149/2
93-1 Sec. 36.107. RESEARCH [AND PLANNING]. [(a)] A district may
93-2 carry out any research projects deemed necessary by the board.
93-3 Sec. 36.1071. MANAGEMENT PLAN. (a)[(b)] Following notice
93-4 and hearing, the district shall, in coordination with surface water
93-5 management entities on a regional basis, develop a comprehensive
93-6 management plan which addresses the following management goals:
93-7 (1) providing the most efficient use of groundwater;
93-8 (2) controlling and preventing waste of groundwater;
93-9 (3) controlling and preventing subsidence;
93-10 (4) addressing conjunctive surface water management
93-11 issues; and
93-12 (5) addressing fish and wildlife resource issues,
93-13 especially those associated with springs.
93-14 (b) In the management plan described under Subsection (a),
93-15 the district shall:
93-16 (1) identify the performance standards and management
93-17 objectives under which the district will operate to achieve the
93-18 management goals identified under Subsection (a);
93-19 (2) specify, in as much detail as possible, the
93-20 actions, procedures, performance, and avoidance that are or may be
93-21 necessary to effect the plan, including specifications, proposed
93-22 rules, and exemptions from permit requirements the district will
93-23 allow under Sections 36.117 and 36.121;
93-24 (3) identify the time periods and corresponding
93-25 timelines by which the district will seek to provide an amount of
97S0149/2
94-1 water sufficient to meet the existing and future water needs within
94-2 the district from existing groundwater resources;
94-3 (4) include calculations of the following:
94-4 (A) the existing total usable amount of
94-5 groundwater in the district;
94-6 (B) the amount of groundwater being used within
94-7 the district on an annual basis;
94-8 (C) the estimated annual amount of recharge, if
94-9 any, to the groundwater resources within the district; and
94-10 (D) the projected future water supply and demand
94-11 for water within the district; and
94-12 (5) address water supply needs in a manner that is
94-13 consistent with the state water plan [for the most efficient use of
94-14 the groundwater, for controlling and preventing waste of
94-15 groundwater, and for controlling and preventing subsidence. The
94-16 plan may be reviewed annually but must be reviewed by the board at
94-17 least once every five years].
94-18 (c) [The district shall specify in the management plan, in
94-19 as much detail as possible, the acts, procedures, performance, and
94-20 avoidance that are or may be necessary to effect the plan,
94-21 including specifications and proposed rules.] The district shall
94-22 adopt rules necessary to implement the management plan.
94-23 (d) The board shall adopt amendments to the management plan
94-24 as necessary. Amendments to the management plan shall be adopted
94-25 after notice and hearing and shall otherwise comply with the
97S0149/2
95-1 requirements of this section.
95-2 Sec. 36.1072. COMMISSION REVIEW AND APPROVAL OF MANAGEMENT
95-3 PLAN. (a) The district shall, not later than one year after the
95-4 creation of the district or, if the district required confirmation,
95-5 after the election confirming the district's creation, submit [file
95-6 a copy of] the management plan required under Section 36.1071 to
95-7 [and the rules with] the commission for review and approval.
95-8 (b) If a management plan complies with the requirements of
95-9 Section 36.1071, the commission, in consultation with the Texas
95-10 Water Development Board, shall grant approval of the plan. The
95-11 commission may determine that conditions justify waiver of the
95-12 requirements under Section 36.1071(b)(5). A management plan
95-13 developed under Section 36.1071 takes effect on approval by the
95-14 commission.
95-15 (c) The board may review the plan annually and must review
95-16 and readopt the plan with or without revisions at least once every
95-17 five years.
95-18 (d) If the commission does not approve the management plan
95-19 after notice and hearing, the commission shall provide to the
95-20 district, in writing, the reasons for its action. Not later than
95-21 the 180th day after the date a district receives notice that its
95-22 management plan has not been approved, the district may submit a
95-23 revised management plan for review and approval. The commission
95-24 shall not take enforcement action against a district under
95-25 Subchapter I until the later of the expiration of the 180-day
97S0149/2
96-1 period or the date the commission has taken final action
96-2 disapproving a revised management plan.
96-3 Sec. 36.1073. AMENDMENT TO MANAGEMENT PLAN. Any amendment
96-4 to the management plan shall be submitted to the commission within
96-5 60 days following adoption of the amendment by the board. The
96-6 commission shall review and approve any amendment which
96-7 substantially affects the management plan in accordance with the
96-8 procedures established under Section 36.1072.
96-9 SECTION 3.42. Subsection (a), Section 36.108, Water Code, is
96-10 amended to read as follows:
96-11 (a) If two or more districts are located within the
96-12 boundaries of the same management area, each district shall prepare
96-13 a comprehensive management plan as required by Section 36.1071
96-14 [36.107] covering that district's respective territory. On
96-15 completion of the plan, each district shall forward a copy of the
96-16 new revised management plan to the other districts in the
96-17 management area.
96-18 SECTION 3.43. Section 36.113, Water Code, is amended to read
96-19 as follows:
96-20 Sec. 36.113. PERMITS FOR WELLS. (a) A district shall
96-21 require permits for the drilling, equipping, or completing of
96-22 wells[,] or for substantially altering the size of wells or well
96-23 pumps.
96-24 (b) A district shall require that an application for a
96-25 permit be in writing and sworn to.
97S0149/2
97-1 (c) A district may require that the following be included in
97-2 the permit application:
97-3 (1) the name and mailing address of the applicant and
97-4 the owner of the land on which the well will be located;
97-5 (2) if the applicant is other than the owner of the
97-6 property, documentation establishing the applicable authority to
97-7 construct and operate a well for the proposed use;
97-8 (3) a statement of the nature and purpose of the
97-9 proposed use and the amount of water to be used for each purpose;
97-10 (4) a water conservation plan or a declaration that
97-11 the applicant will comply with the district's conservation plan;
97-12 (5) the location of each well and the estimated rate
97-13 at which water will be withdrawn; and
97-14 (6) if the proposed use is irrigation:
97-15 (A) a description of the land to be irrigated;
97-16 (B) a description of the crops for which
97-17 irrigation is proposed; and
97-18 (C) an estimate of the total land to be
97-19 irrigated on an annual basis.
97-20 (d) In granting a permit, the district shall consider
97-21 whether:
97-22 (1) the application conforms to the requirements
97-23 prescribed by this chapter and is accompanied by the prescribed
97-24 fees;
97-25 (2) the proposed use of water unreasonably affects
97S0149/2
98-1 existing groundwater and surface water resources;
98-2 (3) the proposed use of water contemplates the
98-3 dedication of water to any beneficial use;
98-4 (4) the proposed use of water is consistent with the
98-5 district's approved water management plan; and
98-6 (5) the applicant has provided evidence that
98-7 reasonable diligence will be used to avoid waste and achieve water
98-8 conservation.
98-9 (e) Permits may be issued subject to the rules promulgated
98-10 by the district and subject to terms and provisions with reference
98-11 to the drilling, equipping, completion, or alteration of wells or
98-12 pumps that may be necessary to [conserve the groundwater,] prevent
98-13 waste and achieve water conservation, minimize as far as
98-14 practicable the drawdown of the water table or the reduction of
98-15 artesian pressure, lessen interference between wells, or control
98-16 and prevent subsidence.
98-17 (f) A district may require that changes in the withdrawal
98-18 and use of groundwater under a permit may not be made without the
98-19 prior approval of a permit amendment issued by the district.
98-20 SECTION 3.44. Subchapter D, Chapter 36, Water Code, is
98-21 amended by adding Section 36.1131 to read as follows:
98-22 Sec. 36.1131. REQUIRED ELEMENTS OF PERMIT. (a) A permit
98-23 issued by the district to the applicant under Section 36.113 shall
98-24 state the terms and provisions prescribed by the district.
98-25 (b) The permit may include:
97S0149/2
99-1 (1) the name and address of the person to whom the
99-2 permit is issued;
99-3 (2) the location of the well;
99-4 (3) the date the permit is to expire if no well is
99-5 drilled;
99-6 (4) a statement of the purpose for which the well is
99-7 to be used;
99-8 (5) a requirement that the water withdrawn under the
99-9 permit be put to beneficial use at all times;
99-10 (6) the location of the use of the water from the
99-11 well;
99-12 (7) the conditions and restrictions, if any, placed on
99-13 the rate and amount of withdrawal;
99-14 (8) any conservation-oriented methods of drilling and
99-15 operating prescribed by the district;
99-16 (9) a drought contingency plan prescribed by the
99-17 district; and
99-18 (10) other terms and conditions as provided by Section
99-19 36.113.
99-20 SECTION 3.45. Subsections (a), (c), (d), and (e), Section
99-21 36.117, Water Code, are amended to read as follows:
99-22 (a) Unless otherwise specified in a district's management
99-23 plan, a [A] district may not require a permit for:
99-24 (1) drilling or producing from a well either drilled,
99-25 completed, or equipped so that it is incapable of producing more
97S0149/2
100-1 than 25,000 gallons of groundwater a day;
100-2 (2) the drilling or alteration of the size of a well
100-3 or to restrict the production of a well if the water produced or to
100-4 be produced from the well is used or to be used to supply the
100-5 domestic needs of 10 or fewer households and a person who is a
100-6 member of each household is either the owner of the well, a person
100-7 related to the owner or a member of the owner's household within
100-8 the second degree by consanguinity, or an employee of the owner;
100-9 (3) the drilling or alteration of the size of a well
100-10 or to restrict the production from the well if the water produced
100-11 or to be produced from the well is used or to be used to provide
100-12 water for feeding livestock and poultry connected with farming,
100-13 ranching, or dairy enterprises;
100-14 (4) water wells to supply water for hydrocarbon
100-15 production activities, regardless of whether those wells are
100-16 producing, that are associated with any well permitted by the
100-17 Railroad Commission of Texas drilled before September 1, 1985; or
100-18 (5) jet wells used for domestic needs.
100-19 (c) Unless otherwise specified in a district's management
100-20 plan, a [The] district shall not deny the owner of a tract of land,
100-21 or his lessee, who has no well equipped to produce more than 25,000
100-22 gallons a day on the tract, either a permit to drill a well on his
100-23 land or the privilege to produce groundwater from his land, subject
100-24 to the rules of the district.
100-25 (d) Unless otherwise specified in a district's management
97S0149/2
101-1 plan, a [A] district may not restrict the production of any well
101-2 equipped to produce 25,000 gallons or less a day.
101-3 (e) Nothing in this chapter applies to wells drilled for
101-4 oil, gas, sulphur, uranium, or brine, or for core tests, or for
101-5 injection of gas, saltwater, or other fluid, except fresh water, or
101-6 for any other purpose, under permits issued by the Railroad
101-7 Commission of Texas. Permits issued by the Railroad Commission of
101-8 Texas for an injection well using fresh water for enhanced recovery
101-9 purposes shall comply with the district's management plan. Unless
101-10 otherwise specified in a district's management plan, a [A] district
101-11 may not require a permit to drill a well to supply water for
101-12 drilling any of these wells permitted by the Railroad Commission of
101-13 Texas. Any well that ceases to be used for these purposes and is
101-14 then used as an ordinary water well is subject to the rules of the
101-15 district.
101-16 SECTION 3.46. Section 36.121, Water Code, is amended to read
101-17 as follows:
101-18 Sec. 36.121. LIMITATION ON RULEMAKING POWER OF DISTRICTS
101-19 OVER WELLS IN CERTAIN COUNTIES. Except as provided by Section
101-20 36.117, unless otherwise specified in a district's management plan,
101-21 a district that is created under this chapter on or after September
101-22 1, 1991, shall exempt from regulation under this chapter a well and
101-23 any water produced or to be produced by a well that is located in a
101-24 county that has a population of 14,000 or less if the water is to
101-25 be used solely to supply a municipality that has a population of
97S0149/2
102-1 115,000 or less and the rights to the water produced from the well
102-2 are owned by a political subdivision that is not a municipality, or
102-3 by a municipality that has a population of 93,000 or less, and that
102-4 purchased, owned, or held rights to the water before the date on
102-5 which the district was created, regardless of the date the well is
102-6 drilled or the water is produced. The district may not prohibit
102-7 the political subdivision or municipality from transporting
102-8 produced water inside or outside the district's boundaries unless
102-9 otherwise specified in the district's management plan.
102-10 SECTION 3.47. Subchapter D, Chapter 36, Water Code, is
102-11 amended by adding Sections 36.122 and 36.123 to read as follows:
102-12 Sec. 36.122. PREFERENCE IN USE OF WATER. For new wells, a
102-13 district may by rule establish and apply a preference-of-use
102-14 listing for the district's groundwater, provided that domestic and
102-15 livestock uses and, among municipal uses, public health and safety
102-16 uses receive the highest priority.
102-17 Sec. 36.123. TECHNICAL ASSISTANCE. The commission is
102-18 authorized to provide technical assistance to districts during
102-19 their initial operational phase. Such assistance may include but
102-20 is not limited to demonstrations of how to adopt rules, how to set
102-21 up permitting programs, and how to initiate enforcement actions.
102-22 SECTION 3.48. Subchapter E, Chapter 36, Water Code, is
102-23 amended by adding Sections 36.159, 36.160, and 36.161 to read as
102-24 follows:
102-25 Sec. 36.159. MANAGEMENT PLAN FUNDS. The Texas Water
97S0149/2
103-1 Development Board may allocate funds from the research and planning
103-2 fund created under Subchapter F, Chapter 15, to a district to
103-3 conduct initial data collections under this chapter, to develop and
103-4 implement a long-term management plan under Section 36.1071, and to
103-5 participate in regional plans that provide for the conjunctive
103-6 management of surface water and groundwater.
103-7 Sec. 36.160. FUNDS. The Texas Water Development Board, the
103-8 commission, and the Parks and Wildlife Department may allocate
103-9 funds to carry out the objectives of this chapter and Chapter 35,
103-10 which include but are not limited to:
103-11 (1) conducting initial and subsequent studies and
103-12 surveys under Sections 36.106, 36.107, and 36.109;
103-13 (2) providing appropriate education in affected areas
103-14 identified in Section 35.007 relating to the problems and issues
103-15 concerning water management that may arise;
103-16 (3) processing priority groundwater management area
103-17 evaluations under this chapter and Chapter 35;
103-18 (4) providing technical and administrative assistance
103-19 to newly created districts under this chapter and Chapter 35;
103-20 (5) covering the costs of newspaper notices required
103-21 under Sections 35.009 and 36.014 and failed elections in accordance
103-22 with Sections 35.014(c), 36.017(h), and 36.019; and
103-23 (6) providing for assistance from the Parks and
103-24 Wildlife Department to the Texas Water Development Board or a
103-25 district for the purpose of assessing fish and wildlife resource
97S0149/2
104-1 habitat that would be affected by a springflow reduction.
104-2 Sec. 36.161. ELIGIBILITY FOR FUNDING. (a) Only those
104-3 districts in substantial compliance with the requirements of this
104-4 chapter shall be eligible for state funds authorized by Sections
104-5 36.159 and 36.160 and Subchapter L and for funds available from the
104-6 Texas Water Development Board under Chapters 15, 16, and 17.
104-7 (b) The Texas Water Development Board may, after notice and
104-8 hearing, discontinue funding described in Subsection (a) if the
104-9 district is found not to be in substantial compliance with the
104-10 provisions of this chapter.
104-11 (c) The Texas Water Development Board, when considering a
104-12 discontinuance under Subsection (b), shall give written notice of
104-13 the hearing to the district at least 20 days before the date set
104-14 for the hearing. The hearing shall be conducted in accordance with
104-15 Chapter 2001, Government Code, or the rules of the respective
104-16 agency. General notice of the hearing shall be given in accordance
104-17 with the rules of the agency.
104-18 SECTION 3.49. Subchapter G, Chapter 36, Water Code, is
104-19 amended by adding Section 36.206 to read as follows:
104-20 Sec. 36.206. DISTRICT FEES. (a) A board may annually set
104-21 user and standby fees. Such fees shall be set as necessary to
104-22 cover the maintenance and operating expenses of the district and
104-23 the principal of and interest on bonds issued by the district,
104-24 provided that funds received from the collection of penalties under
104-25 Section 36.1021 shall be taken into account.
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105-1 (b) The rate of fees set for agricultural uses shall be no
105-2 more than 20 percent of the rate applied to municipal uses.
105-3 (c) A temporary board may set user fees to pay for the
105-4 creation and initial operation of a district.
105-5 SECTION 3.50. Subchapter I, Chapter 36, Water Code, is
105-6 amended to read as follows:
105-7 SUBCHAPTER I. PERFORMANCE REVIEW AND DISSOLUTION [OF DISTRICT]
105-8 Sec. 36.301. FAILURE TO SUBMIT A MANAGEMENT PLAN. If a
105-9 board fails to submit a management plan or to receive approval of
105-10 its management plan under Section 36.1072 or fails to submit or
105-11 receive approval of an amendment to the management plan under
105-12 Section 36.1073, the commission shall take appropriate action under
105-13 Section 36.303.
105-14 Sec. 36.302. DETERMINATION OF WHETHER DISTRICT IS
105-15 OPERATIONAL. (a) The commission shall make a determination of
105-16 whether a district is actively engaged in achieving the objectives
105-17 of the district's management plan based on an audit of the
105-18 district's performance under the plan. The commission shall
105-19 conduct such audits following the first anniversary of the initial
105-20 approval of the plan by the commission under Section 36.1072. The
105-21 commission by rule shall establish a schedule for the audit of
105-22 districts under this section.
105-23 (b) If the commission finds under Subsection (a) that the
105-24 district is not operational, the commission shall take appropriate
105-25 action under Section 36.303.
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106-1 Sec. 36.303. ACTION BY COMMISSION. (a) After notice and
106-2 hearing, the commission may take any action the commission deems
106-3 appropriate to enforce compliance with any rule or order of the
106-4 commission or any provisions of this chapter, including:
106-5 (1) issuing an order requiring the district to take
106-6 certain actions or to refrain from taking certain actions;
106-7 (2) dissolving the board in accordance with Sections
106-8 36.305 and 36.307;
106-9 (3) removing the district's taxing authority; or
106-10 (4) dissolving the district in accordance with
106-11 Sections 36.304, 36.305, and 36.308.
106-12 (b) In addition to actions identified under Subsection (a),
106-13 the commission may recommend to the legislature actions the
106-14 commission deems necessary to accomplish comprehensive management
106-15 in the district.
106-16 Sec. 36.304 [36.301]. DISSOLUTION OF DISTRICT. (a) The
106-17 [After notice and hearing, the] commission may dissolve a district
106-18 that:
106-19 (1) is not operational, as determined under Section
106-20 36.302 [has been inactive for a period of three consecutive years];
106-21 and
106-22 (2) has no outstanding bonded indebtedness.
106-23 (b) A district composed of territory entirely within one
106-24 county may be dissolved even if the district [it] has outstanding
106-25 indebtedness that matures after the year in which the district is
97S0149/2
107-1 dissolved, whereupon the commissioners court shall levy and collect
107-2 taxes on all taxable property in the district in an amount
107-3 sufficient to pay the principal of and interest on the indebtedness
107-4 when due. The taxes shall be levied and collected in the same
107-5 manner as county taxes.
107-6 [(c) A district is considered active if:]
107-7 [(1) the district has a board as required by
107-8 Subchapter D;]
107-9 [(2) the board holds regularly scheduled meetings and
107-10 has on file minutes of its meetings;]
107-11 [(3) the district has developed and filed with the
107-12 commission a management plan for the district;]
107-13 [(4) the district has copies of drillers' logs on
107-14 file;]
107-15 [(5) the district has on file well permits issued by
107-16 the district; and]
107-17 [(6) the district has on file annual district audits.]
107-18 Sec. 36.305 [36.302]. NOTICE OF HEARING FOR DISSOLUTION OF
107-19 BOARD OR DISTRICT. (a) The commission shall give notice of the
107-20 [dissolution] hearing for dissolution of a district or of a board
107-21 which briefly describes the reasons for the proceeding.
107-22 (b) The notice shall be published once each week for two
107-23 consecutive weeks before the day of hearing in a [some] newspaper
107-24 having general circulation in the county or counties in which the
107-25 district is located. The first publication shall be 30 days before
97S0149/2
108-1 the day of the hearing.
108-2 (c) The commission shall give notice of the hearing by first
108-3 class mail addressed to the directors of the district according to
108-4 the last record on file with the executive director.
108-5 Sec. 36.306 [36.303]. INVESTIGATION. The executive director
108-6 shall investigate the facts and circumstances of any violations of
108-7 any rule or order of the commission or any provisions of this
108-8 chapter and shall prepare and file a written report with the
108-9 commission and district and include any actions the executive
108-10 director believes the commission should take under Section 36.303.
108-11 Sec. 36.307. ORDER OF DISSOLUTION OF BOARD. If the
108-12 commission enters an order to dissolve the board, the commission
108-13 shall notify the county commissioners court of each county which
108-14 contains territory in the district and the commission shall provide
108-15 that temporary directors be appointed under Section 36.016 to serve
108-16 until an election for a new board can be held under Section 36.017,
108-17 provided, however, that district confirmation shall not be required
108-18 for continued existence of the district and shall not be an issue
108-19 in the election [the district to be dissolved and the result of
108-20 the investigation shall be included in a written report].
108-21 [Sec. 36.304. ORDER OF DISSOLUTION. The commission may
108-22 enter an order dissolving the district at the conclusion of the
108-23 hearing if it finds that the district has performed none of the
108-24 functions for which it was created for a period of three
108-25 consecutive years before the day of the proceeding and that the
97S0149/2
109-1 district has no outstanding bonded indebtedness.]
109-2 Sec. 36.308 [36.305]. CERTIFIED COPY OF ORDER. The
109-3 commission shall file a certified copy of the order of dissolution
109-4 of the district in the deed records of the county or counties in
109-5 which the district is located. If the district was created by a
109-6 special Act of the legislature, the commission shall file a
109-7 certified copy of the order of dissolution with the secretary of
109-8 state.
109-9 Sec. 36.309 [36.306]. APPEALS. [(a)] Appeals from any [a]
109-10 commission order [dissolving a district] shall be filed and heard
109-11 in the district court of Travis County in accordance with Chapter
109-12 2001, Government Code [any of the counties in which the land is
109-13 located].
109-14 [(b) The trial on appeal shall be de novo and the
109-15 substantial evidence rule shall not apply.]
109-16 Sec. 36.310 [36.307]. ASSETS ESCHEAT TO STATE. Upon the
109-17 dissolution of a district by the commission, all assets of the
109-18 district shall escheat to the State of Texas. The assets shall be
109-19 administered by the comptroller [state treasurer] and shall be
109-20 disposed of in the manner provided by Chapter 72, Property Code.
109-21 SECTION 3.51. Subsection (b), Section 36.325, Water Code, is
109-22 amended to read as follows:
109-23 (b) The petition must be signed by:
109-24 (1) a majority of the landowners in the territory;
109-25 (2) at least 50 landowners if the number of landowners
97S0149/2
110-1 is more than 50; or
110-2 (3) the commissioners court of the county in which the
110-3 area is located if the area is identified as a priority groundwater
110-4 management [critical] area or includes the entire county. The
110-5 petition must describe the land by legal description or by metes
110-6 and bounds or by lot and block number if there is a recorded plat
110-7 of the area to be included in the district.
110-8 SECTION 3.52. Section 36.331, Water Code, is amended to read
110-9 as follows:
110-10 Sec. 36.331. ANNEXATION OF NONCONTIGUOUS TERRITORY. Land
110-11 not contiguous to the existing boundaries of a district may not be
110-12 added to or annexed to a district unless the land is located either
110-13 within the same management area, priority groundwater management
110-14 [critical] area, or a groundwater subdivision designated by the
110-15 commission or its predecessors.
110-16 SECTION 3.53. Chapter 36, Water Code, is amended by adding
110-17 Subchapter L to read as follows:
110-18 SUBCHAPTER L. GROUNDWATER DISTRICT LOAN ASSISTANCE FUND
110-19 Sec. 36.371. GROUNDWATER DISTRICT LOAN ASSISTANCE FUND.
110-20 (a) The groundwater district loan assistance fund is created, to
110-21 be funded by direct appropriation and by the Texas Water
110-22 Development Board, at its discretion, from the water assistance
110-23 fund.
110-24 (b) Repayments of loans shall be deposited in the water
110-25 assistance fund.
97S0149/2
111-1 Sec. 36.372. FINANCIAL ASSISTANCE. (a) The loan fund may
111-2 be used by the Texas Water Development Board to provide loans to
111-3 newly confirmed districts to pay for their creation and initial
111-4 operations.
111-5 (b) The Texas Water Development Board shall establish rules
111-6 for the use and administration of the loan fund.
111-7 Sec. 36.373. APPLICATION FOR ASSISTANCE. (a) In an
111-8 application to the Texas Water Development Board for financial
111-9 assistance from the loan fund, the applicant shall include:
111-10 (1) the name of the district and its board members;
111-11 (2) a citation of the law under which the district
111-12 operates and was created;
111-13 (3) a description of the initial operations;
111-14 (4) the total start-up cost of the initial operations;
111-15 (5) the amount of state financial assistance
111-16 requested;
111-17 (6) the plan for repaying the total cost of the loan;
111-18 and
111-19 (7) any other information the Texas Water Development
111-20 Board may require to perform its duties and protect the public
111-21 interest.
111-22 (b) The Texas Water Development Board may not accept an
111-23 application for a loan from the loan fund unless it is submitted in
111-24 affidavit form by the applicant's board. The Texas Water
111-25 Development Board shall prescribe the affidavit form in its rules.
97S0149/2
112-1 (c) The rules shall not restrict or prohibit the Texas Water
112-2 Development Board from requiring additional factual material from
112-3 an applicant.
112-4 Sec. 36.374. APPROVAL OF APPLICATION. The Texas Water
112-5 Development Board, by resolution, may approve an application if it
112-6 finds that:
112-7 (1) granting financial assistance to the applicant
112-8 will serve the public interest; and
112-9 (2) the revenue pledged by the applicant from district
112-10 taxes and fees and other sources will be sufficient to meet all the
112-11 obligations assumed by the applicant.
112-12 SECTION 3.54. Subsection (g), Section 151.318, Tax Code, is
112-13 amended to read as follows:
112-14 (g) Each person engaged in manufacturing, processing,
112-15 fabricating, or repairing tangible personal property for ultimate
112-16 sale is entitled to a refund or a reduction in the amount of tax
112-17 imposed by this chapter as provided by Subsection (h) for the
112-18 purchase of machinery, equipment, and replacement parts or
112-19 accessories with a useful life in excess of six months if the
112-20 equipment is:
112-21 (1) used or consumed in or during the actual
112-22 manufacturing, processing, fabrication, or repair of tangible
112-23 personal property for ultimate sale, and the use or consumption of
112-24 the property is necessary or essential to the manufacturing,
112-25 processing, fabrication, or repair operation, or to a pollution
97S0149/2
113-1 control process; or
113-2 (2) specifically installed to:
113-3 (A) reduce water use and wastewater flow volumes
113-4 from the manufacturing, processing, fabrication, or repair
113-5 operation;
113-6 (B) reuse and recycle wastewater streams
113-7 generated within the manufacturing, processing, fabrication, or
113-8 repair operation; or
113-9 (C) treat wastewater from another industrial or
113-10 municipal source for the purpose of replacing existing freshwater
113-11 sources in the manufacturing, processing, fabrication, or repair
113-12 operation.
113-13 SECTION 3.55. (a) Sections 35.010 and 35.011, Water Code,
113-14 are repealed.
113-15 (b) Section 5.02, Chapter 133, Acts of the 69th Legislature,
113-16 Regular Session, 1985, is repealed.
113-17 SECTION 3.56. (a) In this section, "district" means a
113-18 groundwater conservation district created under Section 52, Article
113-19 III, or Section 59, Article XVI, Texas Constitution, that has the
113-20 authority to regulate the spacing of water wells, the production
113-21 from water wells, or both.
113-22 (b) Notwithstanding the time limitation under Subsection
113-23 (a), Section 36.1072, Water Code, as added by this Act, and
113-24 notwithstanding any provision to the contrary in prior law, a
113-25 district which was created or, if the district required a
97S0149/2
114-1 confirmation election, a district whose creation was confirmed
114-2 before the effective date of this Act shall submit a management
114-3 plan for approval under Section 36.1072, Water Code, as added by
114-4 this Act, to the Texas Natural Resource Conservation Commission not
114-5 later than one year after the effective date of this Act.
114-6 SECTION 3.57. An area designated as a critical area under
114-7 Chapter 35, Water Code, as it existed before the effective date of
114-8 this Act, or under other prior law, shall be known and referred to
114-9 as a priority groundwater management area on or after the effective
114-10 date of this Act.
114-11 SECTION 3.58. Not later than September 1, 1998, the Texas
114-12 Natural Resource Conservation Commission must, under Chapter 35,
114-13 Water Code, as amended by this Act, make all designations of
114-14 priority groundwater management areas for which critical area
114-15 reports were required to have been completed before the effective
114-16 date of this Act under Section 35.007, Water Code, as that section
114-17 existed immediately before the effective date of this Act.
114-18 ARTICLE 4. FINANCIAL ASSISTANCE TO LOCAL GOVERNMENTS
114-19 SECTION 4.01. Section 15.431, Water Code, is amended by
114-20 amending Subsection (d) and adding Subsection (g) to read as
114-21 follows:
114-22 (d) Money appropriated by the legislature to be maintained
114-23 as principal in the fund, $10 million of the money transferred to
114-24 that fund by H.B. No. 2, Acts of the 69th Legislature, Regular
114-25 Session, 1985, and half of the money earned as interest on the
97S0149/2
115-1 money held as principal in the agricultural trust fund shall be
115-2 maintained as principal. Money maintained as principal in the
115-3 agricultural trust fund may [not] be used by the board to make
115-4 conservation loans to borrower districts and loans to lender
115-5 districts for the purposes listed in Section 17.895 of this code.
115-6 Loans and conservation loans made under this subchapter are subject
115-7 to the provisions of Sections 17.896 through 17.903 of this code.
115-8 Repayments of principal and interest on loans and conservation
115-9 loans made under this subchapter shall be deposited in the
115-10 agricultural trust fund [spent for any purpose].
115-11 (g) In this section, "borrower district," "conservation
115-12 loan," "individual borrower," "lender district," and "loan" have
115-13 the meanings assigned those terms by Section 17.871 of this code.
115-14 SECTION 4.02. Section 16.189, Water Code, is amended to read
115-15 as follows:
115-16 Sec. 16.189. LEASE PAYMENTS. In leasing a state facility
115-17 for a term of years, the board shall require [annual] payments that
115-18 will recover over the lease period not less than the total of:
115-19 (1) all [the annual] principal and interest
115-20 requirements applicable to the debt incurred by the state in
115-21 acquiring the facility; and
115-22 (2) the state's [annual] cost for operation,
115-23 maintenance, and rehabilitation of the facility.
115-24 SECTION 4.03. Chapter 17, Water Code, is amended by adding
115-25 Subchapter L to read as follows:
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116-1 SUBCHAPTER L. WATER FINANCIAL ASSISTANCE BOND PROGRAM
116-2 Sec. 17.951. DEFINITIONS. In this subchapter:
116-3 (1) "Fund" means the Texas Water Development Fund II.
116-4 (2) "Resolution" means any resolution or order
116-5 approved by the board authorizing the issuance of water financial
116-6 assistance bonds.
116-7 Sec. 17.952. ISSUANCE OF WATER FINANCIAL ASSISTANCE BONDS.
116-8 The board by resolution may provide for the issuance of water
116-9 financial assistance bonds, which shall be general obligation bonds
116-10 of the state, in an aggregate principal amount not to exceed the
116-11 principal amount authorized to be issued by Section 49-d-8, Article
116-12 III, Texas Constitution.
116-13 Sec. 17.953. CONDITIONS FOR ISSUANCE OF WATER FINANCIAL
116-14 ASSISTANCE BONDS. (a) Water financial assistance bonds may be
116-15 issued as various series and issues.
116-16 (b) Water financial assistance bonds may mature, serially or
116-17 otherwise, not later than 50 years after the date on which they are
116-18 issued.
116-19 (c) Water financial assistance bonds may be issued as bonds,
116-20 notes, or other obligations as permitted by law and may be in the
116-21 form and denominations and be issued in the manner and under the
116-22 terms, conditions, and details as provided by resolution.
116-23 (d) Water financial assistance bonds may be sold at public
116-24 or private sale at a price or prices and on terms determined by the
116-25 board.
97S0149/2
117-1 (e) Water financial assistance bonds shall be signed and
117-2 executed as provided by resolution.
117-3 (f) Water financial assistance bonds may bear no interest or
117-4 bear interest at a rate or rates determined in accordance with law.
117-5 (g) Rates of interest on water financial assistance bonds
117-6 may be fixed, variable, floating, adjustable, or otherwise, as
117-7 determined by the board or determined pursuant to any contractual
117-8 arrangements approved by the board. The resolution may provide for
117-9 the payment of interest at any time or the periodic determination
117-10 of interest rates or interest rate periods.
117-11 Sec. 17.954. BOND ENHANCEMENT AGREEMENTS; PAYMENT OF
117-12 EXPENSES. (a) The board at any time and from time to time may
117-13 enter into one or more bond enhancement agreements that the board
117-14 determines to be necessary or appropriate to place the obligation
117-15 of the board, as represented by the water financial assistance
117-16 bonds, in whole or in part, on the interest rate, currency, cash
117-17 flow, or other basis desired by the board. A bond enhancement
117-18 agreement is an agreement for professional services and shall
117-19 contain the terms and conditions and be for the period that the
117-20 board approves.
117-21 (b) The fees and expenses of the board in connection with
117-22 the issuance of water financial assistance bonds and the providing
117-23 of financial assistance to political subdivisions may be paid from
117-24 money in the fund, provided that any payments due from the board
117-25 under a bond enhancement agreement, other than fees and expenses,
97S0149/2
118-1 that relate to the payment of debt service on water financial
118-2 assistance bonds constitute payments of principal of and interest
118-3 on the water financial assistance bonds.
118-4 (c) Bond enhancement agreements may include, on terms and
118-5 conditions approved by the board, interest rate swap agreements;
118-6 currency swap agreements; forward payment conversion agreements;
118-7 agreements providing for payments based on levels of or changes in
118-8 interest rates or currency exchange rates; agreements to exchange
118-9 cash flows or a series of payments; agreements, including options,
118-10 puts, or calls, to hedge payment, currency, rate, spread, or other
118-11 exposure; or any other agreement that the board determines to be
118-12 necessary to further enhance the marketability, security, or
118-13 creditworthiness of water financial assistance bonds.
118-14 Sec. 17.955. PERSONS DESIGNATED TO ACT AS AGENTS OF BOARD.
118-15 (a) In the resolution the board may delegate authority to one or
118-16 more officers, employees, or agents designated by the board to act
118-17 on behalf of the board during the time any series of water
118-18 financial assistance bonds are outstanding to:
118-19 (1) fix dates, prices, interest rates, amortization
118-20 schedules, redemption features, and interest payment periods;
118-21 (2) perform any duties and obligations of the board
118-22 under a bond enhancement agreement; and
118-23 (3) perform other procedures specified in the
118-24 resolution.
118-25 (b) The person designated by the board may adjust the
97S0149/2
119-1 interest on water financial assistance bonds and perform all duties
119-2 described in a bond enhancement agreement as necessary to permit
119-3 the water financial assistance bonds to be sold or resold at par in
119-4 conjunction with secondary market transactions.
119-5 Sec. 17.956. TEXAS WATER DEVELOPMENT FUND II. The fund is a
119-6 special fund in the state treasury, and all water financial
119-7 assistance bond proceeds shall be deposited in the state treasury
119-8 to the credit of the fund. The fund shall contain a "state
119-9 participation account," an "economically distressed areas program
119-10 account," and a "financial assistance account," and proceeds from
119-11 the sale of water financial assistance bonds issued for the purpose
119-12 of providing financial assistance to political subdivisions shall
119-13 be credited to such accounts as provided by resolution by the
119-14 board. By resolution, the board may create additional accounts
119-15 within the fund as the board determines are necessary or convenient
119-16 for the administration of the fund.
119-17 Sec. 17.957. STATE PARTICIPATION ACCOUNT. (a) The Texas
119-18 Water Development Fund II state participation account, referred to
119-19 as the "state participation account," is an account established
119-20 within the fund in the state treasury. Transfers shall be made
119-21 from this account as provided by this subchapter.
119-22 (b) The state participation account is composed of:
119-23 (1) money and assets attributable to water financial
119-24 assistance bonds designated by the board as issued for projects
119-25 described in Section 16.131;
97S0149/2
120-1 (2) money from the sale, transfer, or lease of a
120-2 project described in Subdivision (1) that was acquired,
120-3 constructed, reconstructed, developed, or enlarged with money from
120-4 the state participation account;
120-5 (3) payments received under a bond enhancement
120-6 agreement with respect to water financial assistance bonds
120-7 designated by the board as issued for projects described in Section
120-8 16.131;
120-9 (4) investment income earned on money on deposit in
120-10 the state participation account; and
120-11 (5) any other funds, regardless of their source, that
120-12 the board directs be deposited to the credit of the state
120-13 participation account.
120-14 (c) Money on deposit in the state participation account may
120-15 be used by the board for projects described in Section 16.131 in
120-16 the manner that the board determines necessary or convenient for
120-17 the administration of the fund.
120-18 Sec. 17.958. ECONOMICALLY DISTRESSED AREAS PROGRAM ACCOUNT.
120-19 (a) The Texas Water Development Fund II economically distressed
120-20 areas program account, referred to as the "economically distressed
120-21 areas program account," is an account established within the fund
120-22 in the state treasury. Transfers shall be made from this account
120-23 as provided by this subchapter.
120-24 (b) The economically distressed areas program account is
120-25 composed of:
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121-1 (1) money and assets attributable to water financial
121-2 assistance bonds designated by the board as issued for projects
121-3 described in Subchapter K;
121-4 (2) money provided by the federal government, the
121-5 state, political subdivisions, and private entities for the purpose
121-6 of paying debt service on water financial assistance bonds issued
121-7 for purposes provided by Subchapter K;
121-8 (3) payments received under a bond enhancement
121-9 agreement with respect to water financial assistance bonds
121-10 designated by the board as issued for purposes provided by
121-11 Subchapter K;
121-12 (4) investment income earned on money on deposit in
121-13 the economically distressed areas program account; and
121-14 (5) any other funds, regardless of their source, that
121-15 the board directs be deposited to the credit of the economically
121-16 distressed areas program account.
121-17 (c) Money on deposit in the economically distressed areas
121-18 program account may be used by the board for purposes provided by
121-19 Subchapter K in the manner that the board determines necessary or
121-20 convenient for the administration of the fund.
121-21 Sec. 17.959. FINANCIAL ASSISTANCE ACCOUNT. (a) The Texas
121-22 Water Development Fund II water financial assistance account,
121-23 referred to as the "financial assistance account," is an account
121-24 established within the fund in the state treasury. Transfers shall
121-25 be made from this account as provided by this subchapter.
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122-1 (b) The financial assistance account is composed of:
122-2 (1) money and assets attributable to water financial
122-3 assistance bonds designated by the board as issued for purposes
122-4 described in Section 49-d-8, Article III, Texas Constitution, other
122-5 than for purposes described in Sections 17.957 and 17.958;
122-6 (2) payments received under a bond enhancement
122-7 agreement with respect to water financial assistance bonds
122-8 designated by the board as issued for purposes described in Section
122-9 49-d-8, Article III, Texas Constitution, other than for purposes
122-10 described in Sections 17.957 and 17.958;
122-11 (3) investment income earned on money on deposit in
122-12 the financial assistance account; and
122-13 (4) any other funds, regardless of their source, that
122-14 the board directs be deposited to the credit of the financial
122-15 assistance account.
122-16 (c) Money on deposit in the financial assistance account may
122-17 be used by the board for any one or more of the purposes described
122-18 in Section 49-d-8, Article III, Texas Constitution, other than for
122-19 purposes described in Sections 17.957 and 17.958, in the manner
122-20 that the board determines necessary or convenient for the
122-21 administration of the fund.
122-22 Sec. 17.960. BOND RESOLUTIONS. (a) In the resolution, the
122-23 board may make additional covenants with respect to water financial
122-24 assistance bonds and may provide for:
122-25 (1) the flow of funds;
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123-1 (2) the establishment of accounts and subaccounts
123-2 within the fund that the board determines are necessary or
123-3 convenient for the administration of the fund;
123-4 (3) at the discretion of the board, the payment of
123-5 fees and expenses of the board in connection with providing
123-6 financial assistance to political subdivisions as the board
123-7 determines are necessary or convenient for the administration of
123-8 the fund;
123-9 (4) the maintenance, investment, and management of
123-10 money within the fund and any accounts established by resolution by
123-11 the board; and
123-12 (5) any other provisions and covenants that the board
123-13 determines are necessary or convenient for the administration of
123-14 the fund.
123-15 (b) The board may invest and reinvest money in the fund and
123-16 any account therein in any obligations or securities as provided by
123-17 the resolution or by rule adopted by the board.
123-18 (c) The board may adopt and have executed any other
123-19 proceedings, agreements, or trust agreements or instruments
123-20 necessary and convenient in the issuance of water financial
123-21 assistance bonds, including, without limitation, bond enhancement
123-22 agreements.
123-23 Sec. 17.961. TRANSFERS TO REVOLVING FUNDS. (a) In order to
123-24 implement and administer a revolving loan program established under
123-25 Title VI of the Federal Water Pollution Control Act (33 U.S.C.
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124-1 Section 1381 et seq.), the board may direct the comptroller to
124-2 transfer amounts from the financial assistance account to the state
124-3 water pollution control revolving fund created by Section 15.601 to
124-4 provide financial assistance pursuant to this subchapter.
124-5 (b) In order to implement and administer a revolving loan
124-6 program established by any other federal legislation, including,
124-7 without limitation, Title XIV of the federal Public Health Service
124-8 Act, or any federal agency program under which an additional state
124-9 revolving fund, as defined in Section 15.602, has been established,
124-10 the board may direct the comptroller to transfer amounts from the
124-11 financial assistance account to such additional state revolving
124-12 fund to provide financial assistance pursuant to this subchapter.
124-13 (c) The board shall use the state water pollution control
124-14 revolving fund in accordance with Section 15.604(a)(4) and Section
124-15 603(d)(4), Federal Water Pollution Control Act (33 U.S.C. Section
124-16 1383), as a source of revenue to be deposited in accordance with
124-17 this subchapter for the payment of principal and interest on water
124-18 financial assistance bonds issued by the board, the proceeds of
124-19 which are deposited into the state water pollution control
124-20 revolving fund, and to make payments under a bond enhancement
124-21 agreement with respect to principal or interest on the water
124-22 financial assistance bonds.
124-23 (d) In the event amounts are transferred to any additional
124-24 state revolving fund, as defined in Section 15.602, pursuant to
124-25 Subsection (b), the board shall, to the extent permitted by the
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125-1 federal legislation or federal agency program under which such
125-2 additional state revolving fund was established, use the additional
125-3 state revolving fund as a source of revenue to be deposited in
125-4 accordance with this subchapter for the payment of principal and
125-5 interest on water financial assistance bonds issued by the board,
125-6 the proceeds of which are deposited into the additional state
125-7 revolving fund, and to make payments under a bond enhancement
125-8 agreement with respect to principal or interest on the water
125-9 financial assistance bonds.
125-10 Sec. 17.962. STATE APPROVALS. (a) Water financial
125-11 assistance bonds may not be issued under this subchapter unless
125-12 such issuance has been reviewed and approved by the bond review
125-13 board.
125-14 (b) The proceedings relating to the water financial
125-15 assistance bonds issued under this subchapter are subject to review
125-16 and approval by the attorney general in the same manner and with
125-17 the same effect as provided by Chapter 656, Acts of the 68th
125-18 Legislature, Regular Session, 1983 (Article 717q, Vernon's Texas
125-19 Civil Statutes).
125-20 (c) After approval by the attorney general of the
125-21 proceedings relating to water financial assistance bonds issued
125-22 under this subchapter, registration of the proceedings by the
125-23 comptroller, and delivery of the water financial assistance bonds
125-24 to the purchasers, the water financial assistance bonds are
125-25 incontestable and constitute general obligations of the state.
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126-1 Sec. 17.963. PAYMENT OF BOARD OBLIGATIONS. (a) The board
126-2 shall cooperate with the comptroller to develop procedures for the
126-3 payment of principal and interest on water financial assistance
126-4 bonds and any obligation under a bond enhancement agreement, as the
126-5 same become due and owing.
126-6 (b) If there is not enough money in any account of the fund
126-7 available to pay the principal and interest on water financial
126-8 assistance bonds issued for such account, including money to make
126-9 payments by the board under a bond enhancement agreement with
126-10 respect to principal or interest on such water financial assistance
126-11 bonds, the board shall notify the comptroller of such occurrence,
126-12 and the comptroller shall transfer out of the first money coming
126-13 into the state treasury not otherwise appropriated by the
126-14 constitution the amount required to pay the obligations of the
126-15 board that are due and owing. The comptroller shall make the
126-16 transfers required by Section 49-d-8, Article III, Texas
126-17 Constitution, and this subchapter in the manner specified in the
126-18 resolution.
126-19 Sec. 17.964. ELIGIBLE SECURITY. Water financial assistance
126-20 bonds are eligible to secure deposits of public funds of the state
126-21 and political subdivisions of the state. Water financial
126-22 assistance bonds are lawful and sufficient security for deposits to
126-23 the extent of their face value.
126-24 Sec. 17.965. LEGAL INVESTMENTS. Water financial assistance
126-25 bonds are legal and authorized investments for:
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127-1 (1) banks;
127-2 (2) savings banks;
127-3 (3) trust companies;
127-4 (4) savings and loan associations;
127-5 (5) insurance companies;
127-6 (6) fiduciaries;
127-7 (7) trustees;
127-8 (8) guardians; and
127-9 (9) sinking funds and other public funds of the state
127-10 and its agencies and of political subdivisions of the state.
127-11 Sec. 17.966. MUTILATED, LOST, OR DESTROYED BONDS. The board
127-12 may provide for the replacement of mutilated, lost, or destroyed
127-13 water financial assistance bonds.
127-14 Sec. 17.967. REFUNDING BONDS. (a) The board by resolution
127-15 may provide for the issuance of water financial assistance bonds to
127-16 refund outstanding bonds and water financial assistance bonds
127-17 issued under this chapter and federal contractual obligations
127-18 incurred under Section 49-d, Article III, Texas Constitution.
127-19 (b) The board may sell the refunding water financial
127-20 assistance bonds and use the proceeds to retire any of the
127-21 outstanding obligations described in Subsection (a), exchange the
127-22 refunding water financial assistance bonds for the outstanding
127-23 bonds or water financial assistance bonds, or refund any of the
127-24 outstanding obligations described in Subsection (a) in the manner
127-25 provided by any other applicable statute, including Chapter 503,
97S0149/2
128-1 Acts of the 54th Legislature, 1955 (Article 717k, Vernon's Texas
128-2 Civil Statutes), and Chapter 784, Acts of the 61st Legislature,
128-3 Regular Session, 1969 (Article 717k-3, Vernon's Texas Civil
128-4 Statutes).
128-5 Sec. 17.968. SALE OF POLITICAL SUBDIVISION BONDS BY THE
128-6 BOARD; USE OF PROCEEDS. (a) The board may sell or dispose of
128-7 political subdivision bonds purchased with money in the fund to any
128-8 person, including, without limitation, the Texas Water Resources
128-9 Finance Authority, and the board, in such manner as it shall
128-10 determine, may apply the proceeds of the sale of political
128-11 subdivision bonds held by the board to:
128-12 (1) pay debt service on water financial assistance
128-13 bonds issued under this subchapter; or
128-14 (2) provide financial assistance to political
128-15 subdivisions for any one or more of the purposes authorized by
128-16 Section 49-d-8, Article III, Texas Constitution.
128-17 (b) The board shall sell the political subdivision bonds at
128-18 the price and under the terms that it determines to be reasonable.
128-19 Sec. 17.969. TAX EXEMPT BONDS. Since the board is
128-20 performing an essential governmental function in the exercise of
128-21 the powers conferred on it by this chapter, water financial
128-22 assistance bonds issued under this subchapter and the interest and
128-23 income from the water financial assistance bonds, including any
128-24 profit made on the sale of water financial assistance bonds, and
128-25 all fees, charges, gifts, grants, revenues, receipts, and other
97S0149/2
129-1 money received or pledged to pay or secure the payment of water
129-2 financial assistance bonds are free from taxation and assessments
129-3 of every kind by this state and any city, county, district,
129-4 authority, or other political subdivision of this state.
129-5 Sec. 17.970. ENFORCEMENT BY MANDAMUS. Payment of water
129-6 financial assistance bonds and obligations incurred under bond
129-7 enhancement agreements and performance of official duties
129-8 prescribed by Section 49-d-8, Article III, Texas Constitution, and
129-9 this subchapter may be enforced in a court of competent
129-10 jurisdiction by mandamus or other appropriate proceedings.
129-11 Sec. 17.971. SUBCHAPTER CUMULATIVE OF OTHER LAWS. (a) This
129-12 subchapter is cumulative of other laws on the subject, and the
129-13 board may use provisions of other applicable laws in the issuance
129-14 of water financial assistance bonds and the execution of bond
129-15 enhancement agreements, but this subchapter is wholly sufficient
129-16 authority for the issuance of water financial assistance bonds, the
129-17 execution of bond enhancement agreements, and the performance of
129-18 all other acts and procedures authorized by this subchapter.
129-19 (b) In addition to other authority granted by this
129-20 subchapter, the board may exercise the authority granted to the
129-21 governing body of an issuer with regard to the issuance of
129-22 obligations under Chapter 656, Acts of the 68th Legislature,
129-23 Regular Session, 1983 (Article 717q, Vernon's Texas Civil
129-24 Statutes).
129-25 (c) In exercising the powers granted to the board under this
97S0149/2
130-1 subchapter, the board may exercise any powers granted to it under
130-2 this chapter and Chapter 16 including, without limitation, the
130-3 powers described in Subchapters D, E, F, G, and K, notwithstanding
130-4 any provision in this chapter or Chapter 16 that may be
130-5 inconsistent with or in conflict with the provisions of this
130-6 subchapter as a result of the establishment of the fund as a fund
130-7 separate and distinct from the existing Texas Water Development
130-8 Fund, it being the intent of the legislature that the financial
130-9 assistance made available to political subdivisions under this
130-10 subchapter, in pursuance of the authority granted by Section
130-11 49-d-8, Article III, Texas Constitution, be provided by the board
130-12 in the manner the board deems necessary and convenient to achieve
130-13 the purposes of Section 49-d-8, Article III, Texas Constitution,
130-14 and notwithstanding any other existing provisions in this chapter
130-15 or Chapter 16, the provisions of this chapter and Chapter 16 shall
130-16 be inclusive of the provisions of this subchapter and Section
130-17 49-d-8, Article III, Texas Constitution.
130-18 SECTION 4.04. Subdivision (7), Section 17.001, Water Code,
130-19 is amended to read as follows:
130-20 (7) "Water supply project" means:
130-21 (A) any engineering undertaking or work to
130-22 conserve and develop surface or subsurface water resources of the
130-23 state, including the control, storage, and preservation of its
130-24 storm water and floodwater and the water of its rivers and streams
130-25 for all useful and lawful purposes by the acquisition, improvement,
97S0149/2
131-1 extension, or construction of dams, reservoirs, and other water
131-2 storage projects, which may include flood storage, including
131-3 underground storage projects, filtration and water treatment
131-4 plants, including any system necessary to transport water from
131-5 storage to points of distribution or from storage to filtration and
131-6 treatment plants, including facilities for transporting water
131-7 therefrom to wholesale purchasers or to retail purchasers as
131-8 authorized by Section 17.072(c) of this code, by the acquisition,
131-9 by purchase of rights in [underground] water, by the drilling of
131-10 wells, or for any one or more of these purposes or methods; [or]
131-11 (B) any engineering undertaking or work outside
131-12 the state to provide for the maintenance and enhancement of the
131-13 quality of water by eliminating saline inflow through well pumping
131-14 and deep well injection of brine; or
131-15 (C) any undertaking or work by Texas political
131-16 subdivisions to conserve, convey, or develop surface or subsurface
131-17 water resources in areas outside Texas if such undertaking or work
131-18 results in water being available for use in or for the benefit of
131-19 Texas.
131-20 SECTION 4.05. Section 17.001, Water Code, is amended by
131-21 amending Subdivision (17) and adding Subdivision (25) to read as
131-22 follows:
131-23 (17) "Financial assistance" means any loan of funds
131-24 from the water supply account, the water quality enhancement
131-25 account, or the flood control account to a political subdivision
97S0149/2
132-1 for construction of a water supply project, treatment works, or
132-2 flood control measures through the purchase of bonds or other
132-3 obligations of the political subdivision, and any loan of funds the
132-4 source of which is the proceeds from water financial assistance
132-5 bonds.
132-6 (25) "Water financial assistance bonds" means the
132-7 Texas Water Development Bonds authorized to be issued by Section
132-8 49-d-8, Article III, Texas Constitution, and dedicated to use for
132-9 the purposes described in that section.
132-10 SECTION 4.06. Section 17.011, Water Code, is amended by
132-11 adding Subsection (c) to read as follows:
132-12 (c) Notwithstanding any other provision of this section, the
132-13 board by resolution may issue water financial assistance bonds for
132-14 any one or more of the purposes described in Section 49-d-8,
132-15 Article III, Texas Constitution, in an aggregate principal amount
132-16 not to exceed the amount of bonds authorized by Section 49-d-8,
132-17 Article III, Texas Constitution, in accordance with the provisions
132-18 of Subchapter L.
132-19 SECTION 4.07. Section 17.0111, Water Code, is amended to
132-20 read as follows:
132-21 Sec. 17.0111. DEDICATION OF CERTAIN BONDS. No more than
132-22 $250,000,000 in principal [Fifty percent of the] amount of bonds
132-23 authorized by Article III, Section 49-d-7, of the Texas
132-24 Constitution, and issued under either that section or Article III,
132-25 Section 49-d-8, of the Texas Constitution, may be [is] dedicated to
97S0149/2
133-1 the purposes provided by Subchapter K [of this chapter].
133-2 SECTION 4.08. Section 17.182, Water Code, is amended to read
133-3 as follows:
133-4 Sec. 17.182. PROCEEDS FROM SALE. Unless used to pay debt
133-5 service on bonds issued under this chapter, the proceeds from the
133-6 sale of political subdivision bonds held by the board either shall
133-7 be credited to the account from which financial assistance was made
133-8 to the political subdivision, except that accrued interest shall be
133-9 credited to the interest and sinking fund, or shall be deposited to
133-10 the credit of the Texas Water Development Fund II, established
133-11 within the state treasury pursuant to Section 49-d-8, Article III,
133-12 Texas Constitution. However, no such proceeds shall be deposited
133-13 to the credit of the Texas Water Development Fund II unless the
133-14 executive administrator certifies to the board that the transfer of
133-15 such proceeds into the Texas Water Development Fund II will not
133-16 cause the board, in the fiscal year the transfer is made, to direct
133-17 the comptroller to transfer out of the first money coming into the
133-18 state treasury during that fiscal year funds sufficient for the
133-19 payment of principal of or interest on water development bonds,
133-20 other than water development bonds issued for the purposes
133-21 described in Subsection (e), Section 49-d-7, Article III, Texas
133-22 Constitution, coming due in that fiscal year.
133-23 SECTION 4.09. Section 17.278, Water Code, is amended to read
133-24 as follows:
133-25 Sec. 17.278. FINDINGS REGARDING PERMITS. If an application
97S0149/2
134-1 includes a proposal for a wastewater treatment plant, the board may
134-2 not deliver funds for the wastewater treatment plant until the
134-3 applicant has obtained a permit for the construction and operation
134-4 of the plant and approval of the plans and specifications for the
134-5 plant from the commission. If an application includes a proposal
134-6 for a wastewater treatment plant that is located outside the
134-7 jurisdiction of this state and that is not subject to the
134-8 permitting authority of the commission, the board may not deliver
134-9 funds for the wastewater treatment plant until after the board
134-10 reviews the plans and specifications in coordination with the
134-11 commission and finds that the wastewater treatment plant is capable
134-12 of producing effluent that will meet federal and Texas-approved
134-13 water quality standards.
134-14 ARTICLE 5. SMALL COMMUNITIES ASSISTANCE
134-15 SECTION 5.01. Section 5.311, Water Code, is amended to read
134-16 as follows:
134-17 Sec. 5.311. DELEGATION OF RESPONSIBILITY. (a) The
134-18 commission may delegate to an administrative law judge of the State
134-19 Office of Administrative Hearings the responsibility to hear any
134-20 matter before the commission and the authority to issue orders
134-21 related to interim rates under Chapter 13.
134-22 (b) Except for a hearing related to interim rates as
134-23 provided in Subsection (a), the [The] administrative law judge
134-24 shall report to the commission on a [the] hearing in the manner
134-25 provided by law.
97S0149/2
135-1 SECTION 5.02. Subdivisions (11), (21), and (24), Section
135-2 13.002, Water Code, are amended to read as follows:
135-3 (11) "Member" means a person who holds a membership in
135-4 a water supply or sewer service corporation and [who either
135-5 receives water or sewer utility service from the corporation or] is
135-6 a record owner of a fee simple title to property in an area served
135-7 by a water supply or sewer service corporation or a person who is
135-8 granted a membership and who either currently receives or will be
135-9 eligible to receive water or sewer utility service from the
135-10 corporation. In determining member control of a water supply or
135-11 sewer service corporation, a person is entitled to only one vote
135-12 regardless of the number of memberships the person owns.
135-13 (21) "Service" means any act [done, rendered, or]
135-14 performed, anything furnished or supplied, and any facilities or
135-15 lines dedicated or [facility] used[, furnished, or supplied] by a
135-16 retail public utility in the performance of its duties under this
135-17 chapter to its patrons, its employees, other retail public
135-18 utilities, and the public, as well as the interchange of facilities
135-19 between two or more retail public utilities.
135-20 (24) "Water supply or sewer service corporation" means
135-21 a nonprofit[, member-owned, member-controlled] corporation
135-22 organized and operating under Chapter 76, Acts of the 43rd
135-23 Legislature, 1st Called Session, 1933 (Article 1434a, Vernon's
135-24 Texas Civil Statutes) that provides potable water service or sewer
135-25 service for compensation and that has adopted and is operating in
97S0149/2
136-1 accordance with bylaws or articles of incorporation which ensure
136-2 that it is member-owned and member-controlled. The term does not
136-3 include a corporation that provides retail water or sewer service
136-4 to a person who is not a member, except that the corporation may
136-5 provide retail water or sewer service to a person who is not a
136-6 member if the person only builds on or develops property to sell to
136-7 another and the service is provided on an interim basis before the
136-8 property is sold.
136-9 SECTION 5.03. Section 13.181, Water Code, is amended to read
136-10 as follows:
136-11 Sec. 13.181. POWER TO ENSURE COMPLIANCE; RATE REGULATION.
136-12 (a) Except for the provisions of Section 13.192, this subchapter
136-13 shall apply only to a utility and shall not be applied to
136-14 municipalities, counties, districts, or water supply or sewer
136-15 service corporations.
136-16 (b) Subject to this chapter, the commission has all
136-17 authority and power of the state to ensure compliance with the
136-18 obligations of utilities under this chapter. For this purpose the
136-19 regulatory authority may fix and regulate rates of utilities,
136-20 including rules and regulations for determining the classification
136-21 of customers and services and for determining the applicability of
136-22 rates. A rule or order of the regulatory authority may not
136-23 conflict with the rulings of any federal regulatory body. [Except
136-24 Section 13.192, this subchapter shall apply only to a utility and
136-25 shall not be applied to municipalities, counties, districts, or
97S0149/2
137-1 water supply or sewer service corporations.] The commission may
137-2 adopt rules which authorize a utility which is permitted under
137-3 Section 13.242(c) to provide service without a certificate of
137-4 public convenience and necessity to request or implement a rate
137-5 increase and operate according to rules, regulations, and standards
137-6 of service other than those otherwise required under this chapter
137-7 provided that rates are just and reasonable for customers and the
137-8 utility and that service is safe, adequate, efficient, and
137-9 reasonable.
137-10 SECTION 5.04. Section 13.183, Water Code, is amended by
137-11 adding Subsection (c) to read as follows:
137-12 (c) To ensure that retail customers receive a higher quality
137-13 or more reliable water or sewer service, to encourage
137-14 regionalization, or to maintain financially stable and technically
137-15 sound utilities, the regulatory authority may develop methodologies
137-16 for water or wastewater rates based on factors other than rate of
137-17 return and those specified in Section 13.185. Overall revenues
137-18 determined pursuant to a methodology developed under this section
137-19 must provide revenues to the utility that satisfy the requirements
137-20 of Subsection (a) but must also be reasonable for the customers in
137-21 consideration of the enhanced quality or reliability of the
137-22 services provided.
137-23 SECTION 5.05. Subsection (a), Section 13.184, Water Code, is
137-24 amended to read as follows:
137-25 (a) Unless the regulatory authority adopts rules to further
97S0149/2
138-1 the purposes stated in Section 13.183(c), the [The] regulatory
138-2 authority may not prescribe any rate that will yield more than a
138-3 fair return on the invested capital used and useful in rendering
138-4 service to the public.
138-5 SECTION 5.06. Subsection (a), Section 13.185, Water Code, is
138-6 amended to read as follows:
138-7 (a) Except as provided in Sections 13.183(c) and 13.184(a),
138-8 the [The] components of invested capital and net income shall be
138-9 determined according to the rules stated in this section.
138-10 SECTION 5.07. Subchapter G, Chapter 13, Water Code, is
138-11 amended by adding Section 13.241 to read as follows:
138-12 Sec. 13.241. GRANTING OR AMENDING CERTIFICATES. In
138-13 determining whether to grant or amend a certificate of public
138-14 convenience and necessity, the commission shall ensure that the
138-15 groundwater and surface water resources in Texas are adequately
138-16 protected and efficiently used and shall consider regionalization
138-17 or consolidation of systems whenever it is economically feasible or
138-18 otherwise in the public interest. A retail public utility
138-19 requesting a certificate of public convenience and necessity to
138-20 provide water or sewer service must satisfy the commission that a
138-21 safe, continuous, and adequate supply of drinking water meeting the
138-22 requirements of Chapter 341, Health and Safety Code, or this code
138-23 or continuous and adequate sewer service meeting permit, water
138-24 quality, and other requirements of this code will be provided to
138-25 the public and that the retail public utility will maintain the
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139-1 necessary financial resources and managerial expertise to provide
139-2 continuous and adequate service to the public.
139-3 SECTION 5.08. Section 13.246, Water Code, is amended by
139-4 amending Subsection (c) and adding Subsections (d) and (e) to read
139-5 as follows:
139-6 (c) Certificates of convenience and necessity shall be
139-7 granted or amended on a nondiscriminatory basis after
139-8 consideration by the commission of the adequacy of service
139-9 currently provided to the requested area, the need for additional
139-10 service in the requested area, the effect of the granting of a
139-11 certificate on the recipient of the certificate and on any retail
139-12 public utility of the same kind already serving the proximate area,
139-13 the ability of the applicant to provide adequate service, the
139-14 efforts of the applicant to extend service to any economically
139-15 distressed areas located within the service areas certificated to
139-16 the applicant, the feasibility of obtaining service from an
139-17 adjacent retail public utility, the financial stability of the
139-18 applicant, including, if applicable, the adequacy of the
139-19 applicant's debt-equity ratio, environmental integrity, and the
139-20 probable improvement of service or lowering of cost to consumers in
139-21 that area resulting from the granting of the certificate. In this
139-22 subsection, "economically distressed areas" are those areas as
139-23 defined in Chapter 15.
139-24 (d) The commission may require that an applicant submit a
139-25 business plan demonstrating adequate financial, managerial, and
97S0149/2
140-1 technical capability for providing continuous and adequate service
140-2 to the requested area and any areas currently certificated to the
140-3 applicant. The commission may include conditions in the
140-4 certificate of public convenience and necessity to ensure that the
140-5 certificate holder complies with the business plan.
140-6 (e) The commission may require an applicant to provide
140-7 financial assurance in a form acceptable to the commission to
140-8 ensure that continuous and adequate service is provided.
140-9 SECTION 5.09. Section 13.253, Water Code, is amended to read
140-10 as follows:
140-11 Sec. 13.253. IMPROVEMENTS IN SERVICE; INTERCONNECTING
140-12 SERVICE. After notice and hearing, the commission may:
140-13 (1) order any retail public utility that possesses or
140-14 is required by law to possess a certificate of public convenience
140-15 and necessity to provide specified improvements in its service in a
140-16 defined area if service in that area is inadequate or is
140-17 substantially inferior to service in a comparable area and it is
140-18 reasonable to require the retail public utility to provide the
140-19 improved service;
140-20 (2) order two or more retail public utilities that
140-21 hold or are required by this code to hold a certificate of public
140-22 convenience and necessity [or water supply or sewer service
140-23 corporations] to establish specified facilities for the
140-24 interconnecting service; or
140-25 (3) issue an emergency order, with or without a
97S0149/2
141-1 hearing, under Section 13.041 of this code.
141-2 SECTION 5.10. Section 13.254, Water Code, is amended to read
141-3 as follows:
141-4 Sec. 13.254. REVOCATION OR AMENDMENT OF CERTIFICATE.
141-5 (a) The commission at any time after notice and hearing may revoke
141-6 or amend any certificate of public convenience and necessity with
141-7 the written consent of the certificate holder or if it finds that:
141-8 (1) the certificate holder has never provided, is no
141-9 longer providing, or has failed to provide continuous and adequate
141-10 service in the area, or part of the area, covered by the
141-11 certificate including economically distressed areas as defined in
141-12 Chapter 15;
141-13 (2) the cost of providing service makes the service
141-14 offered by the certificate holder so prohibitively expensive as to
141-15 constitute denial of service, or for commercial developments or
141-16 residential developments with lot sizes of less than two acres, the
141-17 cost of obtaining service from the currently certificated retail
141-18 public utility makes the development economically infeasible but
141-19 not necessarily prohibitively expensive;
141-20 (3) the certificate holder has agreed to allow another
141-21 retail public utility to provide service within its service area
141-22 without amending its certificate; or
141-23 (4) the certificate holder has failed to file a cease
141-24 and desist action pursuant to Section 13.252 within 90 days of the
141-25 date that it became aware that another retail public utility was
97S0149/2
142-1 providing service within the certificate holder's service area,
142-2 unless the certificate holder is able to demonstrate good cause for
142-3 its failure to file such action within the 90-day period.
142-4 (b) Upon written request from the certificate holder, the
142-5 executive director may cancel the certificate of a utility or water
142-6 supply corporation authorized by rule to operate without a
142-7 certificate of public convenience and necessity under Section
142-8 13.242(c).
142-9 (c) If the certificate of any retail public utility is
142-10 revoked or amended, the commission may require one or more retail
142-11 public utilities, with their consent, or one or more public
142-12 utilities to provide service in the area in question.
142-13 (d) A retail public utility may not in any way render retail
142-14 water or sewer service directly or indirectly to the public in an
142-15 area which has been decertified under this section without the
142-16 consent of the retail public utility which previously held the
142-17 certificate of public convenience and necessity unless it has first
142-18 obtained from the commission a certificate of public convenience
142-19 and necessity. If the commission decertifies a retail public
142-20 utility without its consent under this section, the commission
142-21 shall determine the extent to which any utility facilities
142-22 currently used and useful for providing service or utility
142-23 facilities constructed for the purpose of serving the area being
142-24 decertified will be rendered useless as a result of this commission
142-25 action. The commission shall also determine the impact on the
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143-1 retail public utility's ability to repay any debts owed for
143-2 facilities or services dedicated to serve the area being
143-3 decertified. As a condition of granting a certificate of public
143-4 convenience and necessity to another retail public utility to serve
143-5 the area, the commission shall require the new utility service
143-6 provider to compensate the decertified retail public utility. In
143-7 determining the amount of compensation, the commission shall
143-8 consider:
143-9 (1) any revenues which would have been generated by
143-10 existing or potential customers in the area decertified to the
143-11 extent that those revenues would have been used to repay debts owed
143-12 to the state or federal government for facilities constructed for
143-13 the purpose of providing service to the area decertified;
143-14 (2) any revenues which would have been generated by
143-15 existing or potential customers in the area decertified to the
143-16 extent that those revenues would have been used to repay debts to
143-17 persons other than affiliated interests for the construction of
143-18 facilities to provide service to the area decertified; and
143-19 (3) the retail public utility's actual unrecovered
143-20 investment in any facilities no longer useful or expected to be
143-21 needed by the retail public utility for serving its remaining
143-22 service area within a future time period that would allow recovery
143-23 of the retail public utility's actual unrecovered investment,
143-24 unless the commission's action is for a reason other than the
143-25 certificated retail public utility's failure to extend service to
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144-1 qualified applicants in the area within a reasonable time period or
144-2 because service to qualified service applicants is deemed
144-3 prohibitively expensive.
144-4 (e) The commission may require payment of the compensation
144-5 to a decertified retail public utility in a lump sum or may allow
144-6 payment to be made by the newly certificated retail public utility
144-7 on a per-customer basis as new customers are added in the
144-8 decertified area, after considering the financial impact on the
144-9 decertified retail public utility.
144-10 SECTION 5.11. Subsection (a), Section 13.301, Water Code, is
144-11 amended to read as follows:
144-12 (a) A utility or a water supply or sewer service corporation
144-13 shall notify the commission by filing a written application and
144-14 shall give public notice unless public notice is waived by the
144-15 executive director for good cause shown at least 120 days before
144-16 the effective date of any sale, acquisition, lease, or rental of
144-17 any water or sewer system required by law to possess a certificate
144-18 of public convenience and necessity or of any merger or
144-19 consolidation with such a utility or water supply or sewer service
144-20 corporation. The application shall include a business plan
144-21 demonstrating adequate financial, managerial, and technical
144-22 capability of the person purchasing or acquiring the water or sewer
144-23 system for providing continuous and adequate service to the
144-24 requested area and any areas currently certificated to the person
144-25 purchasing or acquiring the water or sewer system.
97S0149/2
145-1 SECTION 5.12. Subsection (a), Section 13.302, Water Code, is
145-2 amended to read as follows:
145-3 (a) A utility may not purchase voting stock in another
145-4 utility doing business in this state and a person may not acquire a
145-5 controlling interest in a utility doing business in this state
145-6 unless the person or utility notifies the commission by filing a
145-7 written application of the proposed purchase or acquisition not
145-8 later than the 61st day before the date on which the transaction is
145-9 to occur. If a person is acquiring a controlling interest, the
145-10 application must also include a business plan demonstrating
145-11 adequate financial, managerial, and technical capability of the
145-12 person acquiring controlling interest in the utility for providing
145-13 continuous and adequate service.
145-14 SECTION 5.13. Section 13.412, Water Code, is amended by
145-15 adding Subsections (f) and (g) to read as follows:
145-16 (f) Notwithstanding Section 64.021, Civil Practice and
145-17 Remedies Code, a receiver appointed under this section may seek
145-18 commission approval to acquire the water or sewer utility
145-19 facilities and transfer the certificate of public convenience and
145-20 necessity of the system in receivership. Application shall be in
145-21 accordance with Subchapter H.
145-22 (g) For purposes of this section and Section 13.4132 of this
145-23 code, abandonment may include but is not limited to:
145-24 (1) failure to pay bills or other obligations to
145-25 electric or gas utilities or other retail public utilities
97S0149/2
146-1 resulting in notices of discontinuance of necessary services;
146-2 (2) failure to provide appropriate water or wastewater
146-3 treatment resulting in potential health hazards;
146-4 (3) failure to adequately maintain facilities
146-5 resulting in potential health hazards, extended outages, or
146-6 repeated service interruptions;
146-7 (4) failure to provide adequate notice to customers of
146-8 existing or potential health hazards;
146-9 (5) failure to secure an alternative water supply when
146-10 available during outages;
146-11 (6) displaying a pattern of hostility or repeated
146-12 failure to respond to customers or the commission;
146-13 (7) notification by the utility owner to the
146-14 commission that the owner is abandoning the system; or
146-15 (8) inability of the commission to contact the utility
146-16 because the utility has failed to keep the commission informed on
146-17 how to contact the utility for normal business purposes or
146-18 emergencies.
146-19 SECTION 5.14. Subsections (a) and (c), Section 13.4132,
146-20 Water Code, are amended to read as follows:
146-21 (a) The commission, after providing to the utility notice
146-22 and an opportunity to be heard at a commission meeting as an item
146-23 on its agenda [for a hearing], may authorize a willing person to
146-24 temporarily manage and operate a utility that has discontinued or
146-25 abandoned operations or the provision of services or is being or
97S0149/2
147-1 has been referred to the attorney general for the appointment of a
147-2 receiver under Section 13.412 of this code.
147-3 (c) A person appointed under this section has the powers and
147-4 duties necessary to ensure the continued operation of the utility
147-5 and the provision of continuous and adequate services to customers,
147-6 including the power and duty to:
147-7 (1) read meters;
147-8 (2) bill for utility services;
147-9 (3) collect revenues;
147-10 (4) disburse funds; [and]
147-11 (5) access all system components; and
147-12 (6) request rate increases.
147-13 SECTION 5.15. Section 15.602, Water Code, is amended to read
147-14 as follows:
147-15 Sec. 15.602. DEFINITIONS. In this subchapter:
147-16 (1) "Additional state revolving fund" means any state
147-17 revolving fund hereafter established by the board to provide
147-18 financial assistance to political subdivisions for public works in
147-19 accordance with a capitalization grant program hereafter
147-20 established by a federal agency or otherwise authorized by federal
147-21 law.
147-22 (2) "Authorized investments" means any authorized
147-23 investments described in Section 404.024, Government Code.
147-24 (3) "Community water system" means a public water
147-25 system that:
97S0149/2
148-1 (A) serves at least 15 service connections used
148-2 by year-round residents of the area served by the system; or
148-3 (B) regularly serves at least 25 year-round
148-4 residents.
148-5 (4) "Construction" shall have the meaning assigned by
148-6 the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.).
148-7 (5) "Disadvantaged community" means an area meeting
148-8 criteria established by board rule, which criteria shall be based
148-9 on measures that may include single-family residential property
148-10 valuation, income levels of residents of the area, or other
148-11 similarly appropriate measures.
148-12 (6) [(4)] "Federal Act" means the Federal Water
148-13 Pollution Control Act, as amended (33 U.S.C. 1251 et seq.).
148-14 (7) "Nonprofit noncommunity water system" means a
148-15 public water system that is not operated for profit and that:
148-16 (A) is owned by a political subdivision or
148-17 nonprofit entity; and
148-18 (B) is not a community water system.
148-19 (8) [(5)] "Political subdivision" means a
148-20 municipality, intermunicipal, interstate, or state agency, [or] any
148-21 other public entity eligible for assistance under this subchapter,
148-22 or a nonprofit water supply corporation created and operating under
148-23 Chapter 76, Acts of the 43rd Legislature, 1st Called Session, 1933
148-24 (Article 1434a, Vernon's Texas Civil Statutes), if such entity is
148-25 eligible for financial assistance under federal law establishing
97S0149/2
149-1 the state revolving fund or an additional state revolving fund.
149-2 (9) "Public water system" means a system that is owned
149-3 by any person and that meets the definition of public water system
149-4 in the Safe Drinking Water Act.
149-5 (10) [(6)] "Public works" means any project to
149-6 acquire, construct, improve, repair, or otherwise provide any
149-7 buildings, structures, facilities, equipment, or other real or
149-8 personal property or improvements designed for public use,
149-9 protection, or enjoyment undertaken by a political subdivision and
149-10 paid for, in whole or in part, out of public funds.
149-11 (11) [(7)] "Revolving fund" means the state water
149-12 pollution control revolving fund.
149-13 (12) "Safe Drinking Water Act" means Title XIV of the
149-14 federal Public Health Service Act, commonly known as the Safe
149-15 Drinking Water Act, as amended (42 U.S.C. Section 300f et seq.).
149-16 (13) "Safe drinking water revolving fund" means the
149-17 fund established by the board as an additional state revolving fund
149-18 to provide financial assistance in accordance with the federal
149-19 program established pursuant to the provisions of the Safe Drinking
149-20 Water Act.
149-21 (14) [(8)] "Treatment works" has the meaning
149-22 established by the federal act and the eligible components of the
149-23 management programs established by Sections 319 and 320 of the
149-24 federal act.
149-25 SECTION 5.16. Subchapter J, Chapter 15, Water Code, is
97S0149/2
150-1 amended by adding Section 15.6041 to read as follows:
150-2 Sec. 15.6041. FINANCIAL ASSISTANCE UNDER THE SAFE DRINKING
150-3 WATER REVOLVING FUND. (a) The safe drinking water revolving fund
150-4 shall be administered by the board under this subchapter and rules
150-5 adopted by the board. The safe drinking water revolving fund shall
150-6 be held and administered by the board in the same manner as
150-7 provided by Section 15.603, except that the safe drinking water
150-8 revolving fund shall be held and administered in accordance with
150-9 the Safe Drinking Water Act and shall be used to provide financial
150-10 assistance in accordance with that act and in the manner provided
150-11 by rules adopted by the board:
150-12 (1) to political subdivisions for community water
150-13 systems;
150-14 (2) to persons other than political subdivisions for
150-15 community water systems or nonprofit noncommunity water systems
150-16 from the account established by Subsection (b)(1);
150-17 (3) to persons, including political subdivisions, for
150-18 service to disadvantaged communities from the account established
150-19 by Subsection (b)(2); and
150-20 (4) for other purposes authorized by the Safe Drinking
150-21 Water Act.
150-22 (b) In addition to other accounts the board may establish in
150-23 the safe drinking water revolving fund, the board shall establish
150-24 the following separate accounts:
150-25 (1) the community/noncommmunity water system financial
97S0149/2
151-1 assistance account, to be used solely for providing financial
151-2 assistance to persons, other than political subdivisions, providing
151-3 services through a community water system or a nonprofit
151-4 noncommunity water system, which account shall be composed solely
151-5 of funds appropriated by the legislature, funds provided as gifts
151-6 or grants by the United States government, interest earnings on
151-7 amounts credited to the account, and repayments of loans made from
151-8 the account; and
151-9 (2) the disadvantaged community account, to be used
151-10 solely for providing financial assistance under the terms of
151-11 Subsections (c) and (d), which account shall be composed solely of
151-12 funds appropriated by the legislature, funds provided as gifts or
151-13 grants by the United States government, interest earnings on
151-14 amounts credited to the account, and repayments of loans made from
151-15 the account.
151-16 (c) The board may provide financial assistance from the
151-17 disadvantaged community account to:
151-18 (1) a political subdivision:
151-19 (A) that is a disadvantaged community; or
151-20 (B) for a project serving an area that:
151-21 (i) is located outside the boundaries of
151-22 the political subdivision; and
151-23 (ii) meets the definition of a
151-24 disadvantaged community; or
151-25 (2) an owner of a community water system that is
97S0149/2
152-1 ordered by the commission to provide service to a disadvantaged
152-2 community, provided that the financial assistance is for the sole
152-3 purpose of providing service to a disadvantaged community.
152-4 (d) In providing financial assistance from the disadvantaged
152-5 community account, the board shall determine the amount of a loan
152-6 which the political subdivision cannot repay based on affordability
152-7 criteria established by the board by rule. The board shall forgive
152-8 repayment of that portion of the principal of the loan which the
152-9 board determines the political subdivision cannot repay. Financial
152-10 assistance from the disadvantaged community account may not exceed
152-11 the allowable percentage of the amount of the capitalization grant
152-12 received by the state pursuant to the Safe Drinking Water Act.
152-13 SECTION 5.17. Subsections (c) and (g), Section 15.603, Water
152-14 Code, are amended to read as follows:
152-15 (c) The revolving fund consists of money derived from
152-16 federal grants, direct appropriations, investment earnings on
152-17 amounts credited to the revolving fund, and, at the board's
152-18 discretion, from any and all sources available [to provide the
152-19 required state match for the purposes of this subchapter].
152-20 (g) The revolving fund and any accounts established in the
152-21 revolving fund shall be kept and maintained by or at the direction
152-22 of the board and do not constitute and are not a part of the State
152-23 Treasury. However, at the direction of the board, the revolving
152-24 fund or accounts in the revolving fund may be kept and held in
152-25 escrow and in trust by the comptroller [State Treasurer] for and on
97S0149/2
153-1 behalf of the board, shall be used only as provided by this
153-2 subchapter, and pending such use shall be invested in authorized
153-3 investments as provided by any order, resolution, or rule of the
153-4 board. Legal title to money and investments in the revolving fund
153-5 is in the board unless or until paid out as provided by this
153-6 subchapter, the federal act, and the rules of the board. The
153-7 comptroller [State Treasurer], as custodian, shall administer the
153-8 funds strictly and solely as provided by this subchapter and in the
153-9 orders, resolutions, and rules, and the state shall take no action
153-10 with respect to the revolving fund other than that specified in
153-11 this subchapter, the federal act, and the rules of the board.
153-12 SECTION 5.18. Section 341.031, Health and Safety Code, is
153-13 amended to read as follows:
153-14 Sec. 341.031. PUBLIC DRINKING WATER. (a) In order to
153-15 preserve the health, safety, and welfare of the citizens of the
153-16 state, the commission shall ensure that public drinking water
153-17 supply systems:
153-18 (1) provide a continuous, adequate, and safe supply of
153-19 drinking water; and
153-20 (2) are financially stable and technically sound.
153-21 (b) The commission shall encourage and promote the
153-22 development and use of regional and area-wide drinking water supply
153-23 systems.
153-24 (c) Public drinking water must be free from deleterious
153-25 matter and must comply with the standards established by the
97S0149/2
154-1 commission[, the United States Public Health Service,] or the
154-2 United States Environmental Protection Agency. The commission may
154-3 adopt and enforce rules to implement the federal Safe Drinking
154-4 Water Act (42 U.S.C. Section 300f et seq.).
154-5 (d) [(b)] In a public place or an establishment catering to
154-6 the public, a common drinking cup may not be used.
154-7 (e) [(c)] Drinking water may not be served except in
154-8 sanitary containers or through other sanitary mediums.
154-9 (f) [(d)] In this section, "common drinking cup" means a
154-10 water or other beverage receptacle used for serving more than one
154-11 person. The term does not include a water or other beverage
154-12 receptacle that is properly washed and sterilized after each use.
154-13 SECTION 5.19. Section 341.035, Health and Safety Code, is
154-14 amended to read as follows:
154-15 Sec. 341.035. APPROVED PLANS REQUIRED FOR PUBLIC WATER
154-16 SUPPLIES. (a) Unless a person is a political subdivision or has
154-17 executed an agreement with a political subdivision to transfer the
154-18 ownership and operation of the water supply system to the political
154-19 subdivision, a [A] person [contemplating] establishing a drinking
154-20 water supply system for public use must submit a business plan to
154-21 the commission for review and approval prior to beginning
154-22 construction demonstrating adequate financial, managerial, and
154-23 technical capability of the system management and ownership. The
154-24 commission may require an applicant to provide financial assurance
154-25 in a form acceptable to the commission to ensure a continuous and
97S0149/2
155-1 safe supply of drinking water.
155-2 (b) After the business plan is approved, if one is required,
155-3 but in any case before construction begins, completed plans and
155-4 specifications must be submitted to the commission for review and
155-5 approval in accordance with standards established by the commission
155-6 [before construction of the system]. [The commission shall
155-7 approve plans that conform to the state's water safety laws.] The
155-8 water supply system may be constructed [established] only after
155-9 [on] the commission's approval is received.
155-10 (c) [(b)] Any agency, including a municipality, supplying a
155-11 drinking water service to the public that intends to make a
155-12 material or major change in a water supply system that may affect
155-13 the sanitary features of that utility must give written notice of
155-14 that intention to the commission before making the change.
155-15 (d) [(c)] A water supply system owner, manager, or operator
155-16 or an agent of a water supply system owner, manager, or operator
155-17 may not advertise or announce a water supply as being of a quality
155-18 other than the quality that is disclosed by the commission's latest
155-19 rating.
155-20 (e) [(d)] The commission shall assemble and tabulate all
155-21 necessary data relating to public drinking water supplies at least
155-22 once each year and as often during the year as conditions demand or
155-23 justify. The data forms the basis of an official comparative
155-24 rating of public drinking water supply systems.
155-25 (f) [(e)] A water supply system that attains an approved
97S0149/2
156-1 rating is entitled to erect signs of a design approved by the
156-2 commission on highways approaching the municipality in which the
156-3 water supply system is located. The signs shall be immediately
156-4 removed on notice from the commission if the water supply system
156-5 does not continue to meet the specified standards.
156-6 SECTION 5.20. Subchapter C, Chapter 341, Health and Safety
156-7 Code, is amended by adding Section 341.0351 to read as follows:
156-8 Sec. 341.0351. CONTINUOUS AND SAFE DRINKING WATER SUPPLY
156-9 REQUIREMENTS. (a) All drinking water supply systems for public
156-10 use must provide a continuous and safe supply of drinking water
156-11 which meets the requirements of Section 341.031(c).
156-12 (b) If a public drinking water supply system has a history
156-13 of noncompliance or has been subject to enforcement action by the
156-14 commission, the owner or manager of the system may be required to
156-15 demonstrate that financial and technical resources are available to
156-16 ensure future operation of the system in compliance with all
156-17 applicable laws and rules. The commission may require submission
156-18 of a business plan demonstrating the financial, managerial, and
156-19 technical capability of the system management and ownership. The
156-20 commission may require the owner of the system to provide financial
156-21 assurance in a form acceptable to the commission to ensure a
156-22 continuous and safe supply of drinking water.
156-23 (c) A public water supply system which has been constructed
156-24 without approval as required under Section 341.035 or which the
156-25 executive director of the commission determines presents an
97S0149/2
157-1 imminent health hazard may be required to temporarily cease
157-2 operations on receipt by either mail or hand delivery of a letter
157-3 from the commission or the executive director ordering cessation of
157-4 operations. Operations may not resume until authorized by the
157-5 commission or the executive director. A public water system
157-6 ordered to cease operations under this subsection is entitled to an
157-7 expedited hearing before the commission on written request.
157-8 SECTION 5.21. Subsections (a) and (b), Section 341.047,
157-9 Health and Safety Code, are amended to read as follows:
157-10 (a) A person commits an offense if the person:
157-11 (1) violates a provision of Section 341.031;
157-12 (2) violates a provision of Section 341.032(a) or (b);
157-13 (3) violates a provision of Section 341.033(a)-(f);
157-14 (4) constructs a drinking water supply system without
157-15 submitting completed plans and specifications as required by
157-16 Section 341.035(b) [341.035(a)];
157-17 (5) establishes a drinking water supply system without
157-18 the commission's approval as required by Section 341.035(a) or (b);
157-19 (6) violates a provision of Section 341.035(c)
157-20 [341.035(b)] or (d) [(c)];
157-21 (7) fails to remove a sign as required by Section
157-22 341.035(f) [341.035(e)]; or
157-23 (8) violates a provision of Section 341.036.
157-24 (b) An offense under Subsection (a) is a Class C misdemeanor
157-25 [punishable by a fine of not less than $100].
97S0149/2
158-1 SECTION 5.22. Section 341.048, Health and Safety Code, is
158-2 amended to read as follows:
158-3 Sec. 341.048. CIVIL ENFORCEMENT. (a) A person may not
158-4 cause, suffer, allow, or permit a violation of this subchapter or a
158-5 rule or order adopted under this subchapter.
158-6 (b) A person who causes, suffers, allows, or permits a
158-7 violation under this subchapter shall be assessed a civil penalty
158-8 of not less than $50 nor more than $10,000 [$500] for each
158-9 violation. Each day of a continuing violation is a separate
158-10 violation.
158-11 (c) [If it is shown on a trial of the defendant that the
158-12 defendant has previously been assessed a civil penalty under this
158-13 section within a year before the date on which the violation being
158-14 tried occurred, the defendant shall be assessed a civil penalty of
158-15 not less than $50 nor more than $1,000 for each subsequent
158-16 violation under this subchapter. Each day of a continuing
158-17 violation is a separate violation.]
158-18 [(d)] If it appears that a person has violated, is
158-19 violating, or threatens to violate a provision under this
158-20 subchapter, the commission, a county, or a municipality may
158-21 institute a civil suit in a district court for:
158-22 (1) injunctive relief to restrain the person from
158-23 continuing the violation or threat of violation;
158-24 (2) the assessment and recovery of a civil penalty; or
158-25 (3) both injunctive relief and a civil penalty.
97S0149/2
159-1 (d) [(e)] The commission is a necessary and indispensable
159-2 party in a suit brought by a county or municipality under this
159-3 section.
159-4 (e) [(f)] On the commission's request, the attorney general
159-5 shall institute a suit in the name of the state for injunctive
159-6 relief, to recover a civil penalty, or for both injunctive relief
159-7 and civil penalty.
159-8 (f) [(g)] The suit may be brought in Travis County, in the
159-9 county in which the defendant resides, or in the county in which
159-10 the violation or threat of violation occurs.
159-11 (g) [(h)] In a suit under this section to enjoin a violation
159-12 or threat of violation of this subchapter, the court shall grant
159-13 the state, county, or municipality, without bond or other
159-14 undertaking, any injunction that the facts may warrant including
159-15 temporary restraining orders, temporary injunctions after notice
159-16 and hearing, and permanent injunctions.
159-17 (h) [(i)] Civil penalties recovered in a suit brought under
159-18 this section by a county or municipality shall be equally divided
159-19 between:
159-20 (1) the state; and
159-21 (2) the county or municipality that first brought the
159-22 suit.
159-23 SECTION 5.23. Subsection (a), Section 341.049, Health and
159-24 Safety Code, is amended to read as follows:
159-25 (a) If a person causes, suffers, allows, or permits a
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160-1 violation of this subchapter or a rule or order adopted under this
160-2 subchapter, the commission may assess a penalty against that person
160-3 as provided by this section. The penalty shall not be less than
160-4 $50 nor more than $10,000 [$500] for each violation. Each day of a
160-5 continuing violation may be considered a separate violation.
160-6 ARTICLE 6. WATER DATA COLLECTION AND DISSEMINATION
160-7 SECTION 6.01. Section 16.012, Water Code, is amended to read
160-8 as follows:
160-9 Sec. 16.012. STUDIES, INVESTIGATIONS, SURVEYS. (a) The
160-10 executive administrator shall make studies, investigations, and
160-11 surveys of the occurrence, quantity, quality, and availability of
160-12 the surface water and groundwater of this state and shall, in
160-13 cooperation with other entities of the state, guide the development
160-14 of a statewide water resource data collection and dissemination
160-15 network. For these purposes the staff shall collect, receive,
160-16 analyze, [and] process, and facilitate access to basic data and
160-17 summary information concerning [the] water resources of the state
160-18 and provide guidance regarding data formats and descriptions
160-19 required to access and understand Texas water resource data.
160-20 (b) The executive administrator shall:
160-21 (1) determine suitable locations for future water
160-22 facilities, including reservoir sites;
160-23 (2) locate land best suited for irrigation;
160-24 (3) make estimates of the cost of proposed irrigation
160-25 works and the improvement of reservoir sites;
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161-1 (4) examine and survey reservoir sites; [and]
161-2 (5) investigate the effects of fresh water inflows
161-3 upon the bays and estuaries of Texas;
161-4 (6) investigate instream flows including groundwater
161-5 resources hydrologically connected to ecologically sensitive areas;
161-6 (7) lead a statewide effort, in coordination with
161-7 federal, state, and local governments and other interested parties,
161-8 to develop a network for collecting and disseminating water
161-9 resource-related information that is sufficient to support
161-10 assessment of ambient water conditions statewide;
161-11 (8) make recommendations for optimizing the efficiency
161-12 and effectiveness of water resource data collection and
161-13 dissemination as necessary to ensure that basic water resource data
161-14 are maintained and available for Texas; and
161-15 (9) make basic data and summary information developed
161-16 under this subsection accessible to state agencies and other
161-17 interested persons.
161-18 (c) All entities of the state that collect or use water data
161-19 or information shall cooperate with the board in the development of
161-20 a coordinated, efficient, and effective statewide water resource
161-21 data collection and dissemination network.
161-22 (d) The executive administrator shall keep full and proper
161-23 records of his work, observations, data, and calculations, all of
161-24 which are the property of the state.
161-25 (e) [(d)] In performing his duties under this section, the
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162-1 executive administrator shall assist the commission in carrying out
162-2 the purposes and policies stated in Section 12.014 of this code.
162-3 SECTION 6.02. Section 16.021, Water Code, is amended to read
162-4 as follows:
162-5 Sec. 16.021. TEXAS NATURAL RESOURCES INFORMATION SYSTEM.
162-6 (a) The executive administrator shall establish the Texas Natural
162-7 Resources Information System (TNRIS) to serve Texas agencies and
162-8 citizens as a centralized clearinghouse and referral center for
162-9 natural resource, census, and other socioeconomic data [as a
162-10 centralized information system incorporating all Texas natural
162-11 resource data, socioeconomic data related to natural resources, or
162-12 indexes related to that data that is collected by state agencies or
162-13 other entities].
162-14 (b) The Texas Geographic Information Council (TGIC) [Natural
162-15 Resources Information System Task Force] is created to provide
162-16 strategic planning and coordination in the acquisition and use of
162-17 geo-spatial data and related technologies in the State of Texas.
162-18 The executive administrator and the executive director of the
162-19 Department of Information Resources shall designate entities to be
162-20 members of the TGIC. The chief administrative officer of each
162-21 member entity shall select one representative to serve on the TGIC.
162-22 The duties of the TGIC shall include providing guidance to the
162-23 executive administrator in carrying out his duties under this
162-24 section and guidance to the Department of Information Resources for
162-25 development of rules related to statewide geo-spatial data and
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163-1 technology standards. [The task force is composed of one
163-2 representative from each state agency designated by the executive
163-3 administrator. The executive administrator shall designate a state
163-4 agency as a participant in the task force if the agency collects or
163-5 uses natural resource and related socioeconomic data.
163-6 Representatives of each designated agency shall be selected by the
163-7 chief administrative officer of that agency.]
163-8 (c) Under the guidance of the TGIC [Texas Natural Resources
163-9 Information System Task Force], the executive administrator shall:
163-10 (1) further develop [and implement] the Texas Natural
163-11 Resources Information System by promoting and providing for
163-12 effective acquisition, archiving, documentation, indexing, and
163-13 dissemination of natural resource and related digital and
163-14 nondigital data and information;
163-15 (2) obtain information in response to disagreements
163-16 regarding names and name spellings for natural and cultural
163-17 features in the state and provide this information to the Board on
163-18 Geographic Names of the United States Department of the Interior;
163-19 (3) make recommendations to the Board on Geographic
163-20 Names of the United States Department of the Interior for naming
163-21 any natural or cultural feature subject to the limitations provided
163-22 by Subsection (d) of this section;
163-23 (4) make recommendations to the Department of
163-24 Information Resources to adopt and promote standards that
163-25 facilitate sharing of digital natural resource data and related
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164-1 socioeconomic data among federal, state, and local governments and
164-2 other interested parties;
164-3 (5) acquire and disseminate natural resource and
164-4 related socioeconomic data describing the Texas-Mexico border
164-5 region; and
164-6 (6) coordinate, conduct, and facilitate the
164-7 development, maintenance, and use of mutually compatible statewide
164-8 digital base maps depicting natural resources and man-made
164-9 features.
164-10 (d) A recommendation may not be made under Subdivision (3)
164-11 of Subsection (c) of this section for:
164-12 (1) a feature previously named under statutory
164-13 authority or recognized by an agency of the federal government, the
164-14 state, or a political subdivision of the state;
164-15 (2) a feature located on private property for which
164-16 consent of the property owner cannot be obtained; or
164-17 (3) naming a natural or cultural feature for a living
164-18 person.
164-19 SECTION 6.03. On September 1, 1997, the Texas Natural
164-20 Resources Information System Task Force and the Texas Geographic
164-21 Information Systems Planning Council are merged into the Texas
164-22 Geographic Information Council. All designated member agencies of
164-23 both predecessor entities shall continue to serve as member
164-24 agencies of the Texas Geographic Information Council.
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165-1 ARTICLE 7. EFFECTIVE DATE; EMERGENCY
165-2 SECTION 7.01. (a) Except as provided by Subsections (b)
165-3 through (e) of this section, this Act takes effect September 1,
165-4 1997.
165-5 (b) This section and Sections 1.04, 2.03, 2.09, 2.10, and
165-6 2.13 of this Act take effect immediately.
165-7 (c) Section 3.54 of this Act takes effect on the first day
165-8 of the first calendar quarter beginning on or after the date that
165-9 it may take effect under Section 39, Article III, Texas
165-10 Constitution.
165-11 (d) The change in law made by Section 3.54 of this Act to
165-12 Section 151.318, Tax Code, does not affect taxes imposed before the
165-13 effective date of Section 3.54 of this Act, and the law in effect
165-14 before the effective date of that section is continued in effect
165-15 for purposes of liability for and collection of those taxes.
165-16 (e) Sections 4.03 and 4.05 through 4.08 of this Act take
165-17 effect on the date on which the constitutional amendment proposed
165-18 by _.J.R. No. ___, 75th Legislature, Regular Session, 1997, takes
165-19 effect. If that amendment is not approved by the voters, those
165-20 sections have no effect.
165-21 SECTION 7.02. The importance of this legislation and the
165-22 crowded condition of the calendars in both houses create an
165-23 emergency and an imperative public necessity that the
165-24 constitutional rule requiring bills to be read on three several
165-25 days in each house be suspended, and this rule is hereby suspended,
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166-1 and that this Act take effect and be in force according to its
166-2 terms, and it is so enacted.
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