HBA-NMO H.B. 2808 76(R)    BILL ANALYSIS


Office of House Bill AnalysisH.B. 2808
By: Lewis, Ron
Natural Resources
4/19/1999
Introduced


BACKGROUND AND PURPOSE 

The 75th Texas Legislature enacted legislation establishing a comprehensive
framework for the development and management of the state's water
resources.   Follow-up legislation may be needed to consolidate the
emergency and enforcement provisions of the Texas Natural Resource
Conservation Commission,  provide for coordinated management planning
districts within the same priority groundwater management area, streamline
the issuance of temporary water rights permits, and distinguish the
issuance of an emergency water right from an emergency transfer of water.
H.B. 2808 amends the Water Code and the Health and Safety Code to address
these issues. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to  the Texas Natural Resource
Conservation Commission in SECTION 2 (Sections 5.517 and 5.518, Water Code)
and SECTION 16 (Section 11.138, Water Code), of this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Section 5.504(a), Water Code, to require that an
emergency order issued under Section 5.517 or 5.518 set a time for the
hearing not later than the 20th day after the date the emergency order is
issued. 

SECTION 2. Amends Subchapter L, Chapter 5, Water Code, by adding Sections
5.517, 5.518, 5.519, and 5.520, as follows:  

Sec. 5.517.  EMERGENCY PERMIT TO DIVERT AND USE WATER; AMENDMENT TO WATER
RIGHT.  (a) Authorizes the Texas Natural Resource Conservation Commission
(TNRCC), except as provided by Section 5.506 (Emergency Suspension of
Permit Condition Relating to Beneficial Inflows to Affected Bays and
Estuaries and Instream Uses) and after notification to the governor, to
issue by emergency order a permit to divert and use water or amend  an
existing permit, certified filing, or certificate of adjudication for an
initial period not to exceed 120 days if TNRCC finds that emergency
conditions exist that override the necessity to comply with established
statutory procedures and there is no feasible alternative to the emergency
authorization.  Authorizes the renewal of an emergency authorization once
for a period not to exceed 60 days. 

(b) Authorizes the executive director of TNRCC (executive director) to
issue an emergency order if an imminent threat to the public health,
safety, and welfare or the environment exists that requires emergency
action before TNRCC can take action under Subsection (a) and there is no
feasible alternative. Requires TNRCC, if the executive director issues an
emergency order under this subsection, to hold hearing as provided  for in
Section 5.504 (Hearing to Affirm, Modify, or Set Aside Order) as soon as
practicable but not later than 10 days after issuance of the order to
affirm, modify, or set aside the order.  Provides that the person desiring
the emergency order must comply with Section 5.502 (Application for
Emergency or Temporary Order) before the executive director is authorized
to act on the request for emergency action.   

(c) Provides that the notice requirements of Section 11.132 (Notice)
relating to the time for notice, newspaper notice, and method of giving a
person notice do not apply to a  hearing held on an application for an
emergency order under this section.  Requires TNRCC to give the general
notice of the hearing that it considers practicable under the
circumstances.  

(d) Authorizes TNRCC to adopt rules and impose fees necessary to carry out
the provisions of this section. Provides that an emergency order under this
section does not vest in the grantee of any right to the diversion,
impoundment, or use of water and expires by its terms. 

Sec. 5.518. EMERGENCY ORDER FOR TEMPORARY TRANSFER OF USE OF WATER RIGHT.
(a) Authorizes TNRCC by emergency order to grant the temporary transfer and
use of all or part of a surface water right for other than domestic or
municipal use to a retail or wholesale water supplier for public health and
safety purposes.  

(b) Authorizes TNRCC to direct the applicant to timely pay the amounts for
which the applicant may be potentially liable under this section and to
fully indemnify and hold harmless the state, executive director, and TNRCC
from any and all liability for the order sought.  Authorizes TNRCC to order
bond or other surety in a form acceptable to TNRCC as a condition for an
emergency order under this section.  Prohibits TNRCC from granting an
emergency authorization under this section that would cause a violation of
a federal regulation.  

(c) Provides that a person granted an emergency authorization under this
section is liable to the owner from whom the use is transferred and for any
damages proximately caused by the transfer of use. Authorizes either party
to file a complaint with TNRCC to determine the amount due, if, within 60
days of the termination of the order, the parties do not agree on the
amount due, or if full payment is not made.   

(d) Requires TNRCC, by rule, to establish a dispute resolution procedure
for a complaint filed under this section.  Authorizes an owner from whom
the use is transferred to file suit to recover or determine the amount due
in a district court in the county where the owner resides or has its
headquarters.  Entitles the prevailing party in a suit filed under this
subsection to recover court cost and reasonable attorney's fees.  

Sec. 5.519. EMERGENCY WORKS SAFETY ORDER. Authorizes TNRCC to issue a
mandatory or prohibitory emergency order directing the owner of a dam,
levee, or other water-storage or flood-control work to repair, modify,
maintain, dewater, or remove a work if TNRCC finds certain conditions
exist. 

Sec. 5.520. EMERGENCY ORDER FOR OPERATION OF UTILITY THAT DISCONTINUES
OPERATION OR IS REFERRED FOR APPOINTMENT OF RECEIVER. Authorizes TNRCC to
issue an emergency order appointing a willing person to temporarily manage
and operate a utility under Section 7.403.  Provides that notice of the
action is adequate if the notice is mailed or hand delivered to the last
known address of the utility's headquarters. 

SECTION 3. Amends Section 7.004, Water Code, to provide that nothing in
this chapter affects the right of a political subdivision that has a
justiciable interest, in addition to a private corporation or individual to
pursue any available common law remedy to enforce a right, in addition to
abate a condition of pollution or other nuisance, to recover damages to
enforce a right, or to prevent or seek redress or compensation for
violation of a right or otherwise redress an injury. 

SECTION 4. Amends Subchapter B, Chapter 7, Water Code, by adding Section
7.034, as follows: 

Sec. 7.034. ATTORNEY'S FEES; COSTS.  Authorizes a district court to award
the cost of litigation, including reasonable attorney's fees and expert
costs, to any political subdivision of the state, private corporation, or
individual that is a water right holder and that prevails in a suit for
injunctive relief to redress an unauthorized diversion, impoundment, or use
of surface water in violation of Chapter 11 (Water Rights) or a rule
adopted under Chapter 11. 
 
SECTION 5.  Amends Section 7.051(b), Water Code, to provide that this
subchapter (Administrative Penalties) does apply to Section 16.236
(Construction of Levee Without Approval of Plans; Levee Safety).  Deletes
language that provides that this subchapter does not apply to Chapter 11,
Water Code,  or Chapter 341 (Minimum Standards of Sanitation and Health
Protection Measures), Health and Safety Code.  Makes a conforming change. 

SECTION  6. Amends Section 7.052, Water Code, to prohibit the amount of the
penalty for a violation under Chapter 11 from exceeding $5,000 a day for
each violation.  Prohibits the penalty for a violation of a rule or order
adopted under Section 16.236 from exceeding $1,000 a day for each
violation.  Prohibits the amount of a penalty for a violation under Chapter
341, Health and Safety Code, from being less than $50 or more than $1,000
for each violation.  Makes conforming changes. 

SECTION 7. Amend Section 7.054, Water Code, to require a report regarding a
possible violation under Chapter 11 to state the facts on which the
conclusion was based and recommend the amount of any penalty. Requires the
executive director to base the recommended amount of the proposed penalty
on the factors provided by Section 7.053 and to analyze each factor for the
benefit of TNRCC. 

SECTION 8. Amends Section 7.069, Water Code, to require a penalty collected
under this subchapter from a public utility to be paid to TNRCC and
deposited in the water utility improvement account as provided by Section
341.0485 (Water Utility Improvement Account), Health and Safety Code.
Makes conforming changes. 

SECTION 9. Amends Subchapter B, Chapter 7, Water Code, by adding Section
7.076, as follows: 

Sec. 7.076. COMPROMISE, MODIFICATION, OR REMISSION OF CERTAIN PENALTIES.
Authorizes TNRCC to compromise, modify, or remit, with or without
condition, any penalty imposed under this subchapter for a violation under
Chapter 11. 

SECTION 10. Amends Section 7.102, Water Code, to prohibit the amount of a
penalty for a violation of a rule under Section 12.052 (Dam Safety) from
exceeding $5,000.  Requires that a person who causes, suffers, allows, or
permits a violation of a statute, rule, order, or permit relating to
Chapter 13 (Water Rates and Services), be assessed for each violation a
civil penalty not less than $100 nor greater than $5,000 for each day of
each violation as the court or jury considers proper. Makes conforming
changes. 

SECTION 11. Amends  Sections 7.105(a) and (c), Water Code, to authorize the
attorney general to initiate a suit for recovery of a penalty under this
section for a violation under Section 13.414 (Penalty Against Retail Public
Utility or Affiliated Interest).  Authorizes a suit to recover a penalty
for a violation of a rule or order issued by TNRCC under Section 12.052 to
be brought in Travis County.  Makes conforming changes. 

SECTION 12. Amends Subchapter D, Chapter 7, Water Code, by adding Section
7.1075, as follows:  

Sec. 7.1075. DISPOSITION OF PENALTY COLLECTED FROM PUBLIC UTILITY. Requires
that a penalty collected under this subchapter from a public utility be
paid to TNRCC and deposited in the water utility improvement account as
provided by Section 341.0485, Health and Safety Code.  

SECTION 13. Amends Subchapter D, Chapter 7, Water Code, by adding Section
7.112, as follows: 

Sec. 7.112. LIMITATION ON SUIT FOR VIOLATION OF SECTION 11.081.  Provides
that an action to collect the penalty provided by Section 7.102 for a
violation of Section 11.081 (Unlawful Use of State Water) must be brought
within two years from the date of the alleged violation.  

SECTION 14. Amends Section 7.351, Water Code, to make a conforming change.

 SECTION 15.  Transfers Section 11.0843, Water Code, to Subchapter C,
Chapter 7, Water Code, renumbers it as Section 7.077, and amends it, to
delete text requiring a penalty collected under this section to be
deposited in the state treasury to the credit of the general revenue fund.
Makes conforming changes. 

SECTION 16. Amends Section 11.138(a), Water Code, to authorize TNRCC, by
rule, to authorize the beneficial use, without a permit, of not more than
25 acre-feet of water, for a term not to exceed one year, if the diversion
of water will not affect existing water right holders and the user of the
water registers the use with TNRCC in the manner required by TNRCC. 

SECTION 17. Amends Section 11.139, Water Code, to authorize TNRCC to grant
an emergency permit, order, or amendment to an existing permit, certified
filing, or certificate of adjudication under Subchapter L (Emergency and
Temporary Orders), Chapter 5 (Texas Natural Resource Conservation
Commission). Deletes existing text regarding emergency authorizations.  

SECTION 18. Amends Section 11.173(b), Water Code, to provide that a permit,
certified filing, or certificate of adjudication or a portion of a permit,
certified filing, or certificate or adjudication is exempt from
cancellation under Subsection (a) of this section (Cancellation in Whole or
in Part) if it was obtained to meet demonstrated long-term public water
supply or electric generation needs as evidenced by a water management plan
developed by the holder and consistent with projections of future water
needs contained in the state water plan, or if it was obtained as the
result of the construction of a reservoir funded, in whole or in part, by
its holder as part of the holder's long-term planning. 

SECTION 19. Amends Section 11.177(b), Water Code, to make  conforming
changes.  

SECTION 20. Amends Sections 12.052(c), (d), (e) and (f), Water Code, to
make conforming changes.  

SECTION 21.  Transfers Section 13.411, Water Code, to Subchapter B, Chapter
7, Water Code, renumbers it as Section 7.0325, and amends it as follows: 

Sec. 7.0325. New title: ACTION TO ENJOIN OR REQUIRE COMPLIANCE: RETAIL
PUBLIC UTILITIES. Makes conforming changes.  

SECTION 22. Amends Chapter 7, Water Code, by adding Subchapter I, and
transfers Sections 13.412, 13.4131, and 13.4132, Water Code, to Subchapter
I, Chapter 7, Water Code, redesignated as Section 7.401, 7.402, and 7.403,
as follows: 

SUBCHAPTER I. RECEIVERSHIP; SUPERVISION 
OF CERTAIN UTILITIES

Sec. 7.401. RECEIVERSHIP. Makes a conforming change.

Sec. 7.402. SUPERVISION OF CERTAIN UTILITIES.  Authorizes TNRCC to require
the utility to meet, rather than abide by, conditions and requirements
prescribed by TNRCC and to obtain commission approval before taking an
action under Subdivision (1), rather than Subsection (b), of this section.
Authorizes an action or transaction for which commission approval is
required by this section that occurs without commission approval to be void
by TNRCC.  Deletes text regarding TNRCC's supervision of a utility.  Makes
conforming and nonsubstantive changes. 

Sec. 7.403. OPERATION OF UTILITY THAT DISCONTINUES OPERATION OR IS REFERRED
FOR APPOINTMENT OF RECEIVER.  Makes conforming changes. 

SECTION 23. Amends Section 13.414, Water Code, as follows: 

Sec. 13.414.  New title: VIOLATION BY RETAIL PUBLIC UTILITY OR AFFILIATED
INTEREST. Makes conforming changes. 
 
SECTION 24.  Transfers Section 13.417, Water Code, to Subchapter B, Chapter
7, Water Code, renumbers it as Section 7.034, Water Code, and amends it, as
follows: 

Sec. 7.034. New title: CONTEMPT PROCEEDINGS IN UTILITY ACTION. Makes
conforming changes.  

SECTION 25.  Amends Chapter 35, Water Code, by adding Section 35.010, as
follows: 

Sec. 35.010. CREATION OF DISTRICTS ON PETITION AFTER DESIGNATION OF
PRIORITY GROUNDWATER MANAGEMENT AREA. Prohibits TNRCC from considering the
creation of a groundwater conservation district in a designated priority
groundwater management area before the conclusion of the next regular
session of the Texas Legislature following the designation unless the local
landowners have initiated a petition process under Chapter 36 for the
creation of a groundwater conservation district with a priority ground
water management area. 

SECTION 26. Amends Section 35.012, Water Code, by adding new Subsections
(c) and (d), redesignating existing Subsections (c)-(f) as Subsections
(e)-(h), and amending existing Subsection (d), as follows: 

(c) Requires TNRCC, not later than the 10th day after the date on which the
TNRCC order designating a priority groundwater management area is issued,
to send a written notice of TNRCC's actions to each landowner in the
designation priority groundwater management area at the landowner's most
recent known address as shown in the tax rolls of the county in which the
land is located.  Provides that the notice must include TNRCC's findings
and conclusions from the data and information considered in designating the
priority groundwater management area and TNRCC's recommendation regarding
the need for a groundwater conservation district in the priority
groundwater management area.  

(d) Requires the Texas Agricultural Extension Service, as soon as possible
after a TNRCC order designating a priority groundwater management area, to
begin an educational program within the area with the assistance and
cooperation of the Texas Water Development Board, TNRCC, other state
agencies, and existing districts to inform the residents of the status of
the area's water resources and management options including possible
formation of a district.   

(f) Redesignated from existing Subsection (d).  Deletes existing language
to make a conforming change.  

SECTION 27.  Amends Section 36.014, Water Code, to make conforming changes.

SECTION 28.  Amends Section 36.015, Water Code, to make conforming changes.

SECTION 29.  Amends Section 36.0151, Water Code, as follows:

Sec. 36.0151. New title: NOTICE OF CREATION BY COMMISSION OF DISTRICT FOR
PRIORITY GROUNDWATER MANAGEMENT AREA.  Makes conforming changes. 

SECTION 30. Amends Section 36.108, Water Code, as follows:

Sec. 36.108.  New title: JOINT PLANNING IN MANAGEMENT AREA OR PRIORITY
GROUNDWATER MANAGEMENT AREA.  Makes conforming changes. 

SECTION 31.  Transfers Section 341.047, Health and Safety Code, to
Subchapter E, Chapter 7, Water Code, redesignates it as Section 7.1605,
Water Code, and amends it, as follows:  

Sec. 7.1605. New title: VIOLATIONS RELATING TO PUBLIC DRINKING WATER.
Makes conforming changes. 

SECTION 32.  Amends Section 341.048, Health and Safety Code, as follows:

Sec. 341.048. New title: VIOLATION.  Deletes "civil enforcement" from the
title.  Deletes text to make conforming changes. 

SECTION 33.  (a) Repealer:  Sections 11.082 (Unlawful Use: Civil Penalty),
11.0841 (Civil Remedy), 11.0842 (Administrative Penalty), 13.4151
(Administrative Penalty), 13.416  (Penalties Cumulative), and 13.418
(Disposition of Fines and Penalties; Water Utility Improvement Account),
Water Code. 

(b) Repealer:  Sections 341.049 (Administrative Penalty) and 341.050
(Penalties Cumulative), Health and Safety Code.  

SECTION 34.  Effective date: September 1, 1999.

SECTION 35.  Makes application of this Act prospective.

SECTION 36.  Emergency clause.