HBA-NLM C.S.H.B. 3027 76(R)BILL ANALYSIS


Office of House Bill AnalysisC.S.H.B. 3027
By: Dutton
Land & Resource Management
4/30/1999
Committee Report (Substituted)


BACKGROUND AND PURPOSE 

Current law does not require ordinances, enacted by a city, to apply
uniformly through the municipality or its extraterritorial jurisdiction.
The purpose of this bill is to require cities which enact certain
ordinances relating to the control or abatement of pollution of air or
water to be applied uniformly throughout the municipality or its
extraterritorial jurisdiction.  C.S.H.B. 3027 provides that adopted water
quality ordinances, regulations, or methodologies must have uniform
applications and cover the entire area of all streams, drains, recharge
features, recharge areas, or tributaries that may constitute the source or
recharge of water supply for any municipality and that are located within
the corporate limits of the municipality. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 401.002, Local Government Code, as follows:

Sec. 401.002.  PROTECTION OF STREAMS AND WATERSHEDS BY HOME-RULE
MUNICIPALITY.  (a)  Authorizes a home-rule municipality to police any
portion of a stream, drain, recharge feature, recharge area, or tributary
located in the municipality or its extraterritorial jurisdiction. 

(b)  Provides that water quality ordinances, regulations, or methodologies
adopted under Subsection (a) must have uniform applications and cover the
entire area of all streams, drains, recharge features, recharge areas, or
tributaries that may constitute the source or recharge of water supply for
any municipality and that are located within the corporate limits of the
municipality.  Deletes existing text relating to a home-rule municipality's
authority to provide for the protection of and to police any watersheds. 

(c)   Provides that this section does not apply to a water quality
ordinance, regulation, or methodology to the extent the provisions of such
are specifically required by federal or state law.  Provides that the
municipality must provide that any ordinance, regulation, or methodology
adopted to meet the permit is uniformly applied and enforced in the entire
area of the streams, drains, recharge features, recharge areas, or
tributaries located in the corporate limits of the municipality and its
extraterritorial jurisdiction, if federal or state law requires a permit
for implementing water quality regulations. 

(d) Prohibits a home-rule municipality from regulating water pollution in
the municipality or its extraterritorial jurisdiction, except as provided
by this section and Section 26.177 (Water Pollution Control Duties of
Cities), Water Code.  

SECTION 2.  Amends Chapter 401, Local Government Code, by adding Section
401.004, as follows: 

Sec. 401.004. REGULATION IN EXTRATERRITORIAL JURISDICTION PROHIBITED.
Prohibits a municipality from regulating water quality or water pollution
in the  extraterritorial jurisdiction of the municipality, notwithstanding
any other law to the contrary. 

SECTION 3.  Amends Sections 26.177 (b) and (c), Water Code, as follows:

(b) Requires the water pollution control and abatement program of a city to
encompass the entire area within the corporate limits of the city.  Deletes
text requiring the  water pollution control and abatement program of a city
to encompass the entire city and authorizing the program, subject to
Section 26.179 of this code, to include areas within its extraterritorial
jurisdiction.  Makes a conforming change. 

(c) Provides that the water pollution control and abatement program
otherwise required by this section must cover the entire area of the city
and its extraterritorial jurisdiction.  Provides that a program adopted
under this section must apply identical water quality ordinances or
regulations and use identical methodologies throughout the city and its
extraterritorial jurisdiction.  Provides that the rules must provide that
to be approved a program must meet the requirements of this section and
Section 401.002 (Protection of Streams and Watersheds by Home-Rule
Municipalities), Local Government Code. 

SECTION 4.  Amends Section 26.180(c), Water Code, to prohibit the Texas
Natural Resource Conservation Commission (commission) from approving the
ordinance if the ordinance does not meet the requirements of this section
and Sections 26.177. Deletes text requiring the municipality by ordinance
to adopt a nonprofit source water  pollution control and abatement program
for the municipality's extraterritorial jurisdiction before the
municipality adopts a resolution or ordinance creating an extraterritorial
jurisdiction under Section 42.903, Local Government Code.  Makes a
conforming change. 

SECTION 5.  Repealer: Sections 26.180(e) and (f) (Nonpoint Source Water
Pollution Control Programs of Certain Municipalities), Water Code.  These
subsections relate to nonpoint source water pollution controls of a
municipality that has extraterritorial jurisdiction over certain areas. 

SECTION 6.  (a)  Effective date: September 1, 1999.

(b)  Specifies that a water quality ordinance, regulation, rule, or
methodology that is in effect on the effective date of this Act that does
not comply with the changes in law made by this Act is void.  

SECTION 7.  Emergency clause.

COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.H.B. 3027 modifies the original in the caption, which relates to
standards in the corporate limits of a municipality, rather than a
municipality and its extraterritorial jurisdiction. 

C.S.H.B. 3027 modifies the original in SECTION 1 (proposed Section
401.002(b), Local Government Code) by removing the exception as provided by
Subsection (c). The substitute clarifies that the provisions relate to the
source or recharge of water supply located within the corporate limits of
the municipality, rather than in the municipality or its extraterritorial
jurisdiction.   

C.S.H.B. 3027 modifies the original in SECTION 1 (Section 401.002, Local
Government Code) by removing Subsection (c), which authorized a home-rule
municipality that adopts water quality ordinances, regulations, or
methodologies under this section to use certain procedures as provided by
Section 26.901 (Requirements and Methodologies Relating to Control and
Abatement of Water Pollution Within City or its Extraterritorial
Jurisdiction), Water Code. 

C.S.H.B. 3027 redesignates proposed Sections 401.002(d) and (e) of the
original, to Section 401.002(c) and (d) in the substitute.  The substitute
further modifies Subsection (c) to clarify the provision relating the
enforcement of the entire area of the streams, drains, recharge features,
recharge areas, or tributaries located within the corporate limits of the
municipality, rather than located in the municipality and its
extraterritorial jurisdiction. The substitute further modifies  Subsection
(d) by removing Section 26.901 as an exception to the prohibition on a
home-rule municipality's water regulation, and makes conforming changes. 

C.S.H.B. 3027 adds a new SECTION 2 (Chapter 401, Local Government Code),
adding Section 401.004 (Regulation In Extraterritorial Jurisdiction
Prohibited) to prohibit a municipality from regulating water quality or
water pollution in the extraterritorial jurisdiction of the municipality,
notwithstanding any other law to the contrary. 

C.S.H.B. 3027 redesignates SECTIONS 2 and 3 of the original to SECTIONS 3
and 4 in the substitute.  In Section 4, the substitute further amends
Section 26.180, Water Code,  by removing existing text requiring the
municipality by ordinance to adopt a nonprofit source water  pollution
control and abatement program for the municipality's extraterritorial
jurisdiction before the municipality adopts a resolution or ordinance
creating an extraterritorial jurisdiction under Section 42.903, Local
Government Code.  The substitute removes the prohibition against approval
of an ordinance if the ordinance does not meet the requirements of Section
26.901. 

C.S.H.B. 3027 removes the original SECTION 4 (proposed Subchapter Z,
Chapter 26, Water Code), which proposed the following: 

SUBCHAPTER Z.  MISCELLANEOUS PROVISIONS

Sec. 26.901.  REQUIREMENTS AND METHODOLOGIES RELATING TO CONTROL AND
ABATEMENT OR WATER POLLUTION WITHIN CITY OR ITS EXTRATERRITORIAL
JURISDICTION. (a) Requires certain entities to apply and enforce the
regulation, or use the methodology, uniformly throughout the entire area of
the river basin or groundwater aquifer that is located in the city and its
extraterritorial jurisdiction. 

(b)  Authorizes certain entities to use differing water quality regulations
for residential, commercial, or industrial land use categories, and
differing methodologies that result in achievement of uniform water quality
regulation, as provided. 
 
(c)  Requires certain entities with water pollution control authority to
use differing methodologies to establish and administer a program of
regular monitoring to demonstrate that the methodologies result in
compliance with the water quality regulation for the applicable land use
category of residential, commercial, or industrial.  Provides that the
monitoring program of certain entities must be submitted to and approved by
the commission before the use of differing methodologies, and provides that
monthly monitoring reports from the system must be filed with the
commission.  Authorizes the commission  to order that the differing
methodologies may no longer be used, and requires the governmental entity
using the methodologies to then use only identical methodologies for each
land use category, if the monitoring reports indicate that the differing
methodologies are achieving the applicable water quality regulation for
less than six months during any one calendar year. Provides that the
approval of any monitoring program reviewed by the commission is a
contested case under Chapter 2001(Administrative Procedure), Government
Code.  

(d)  Provides that this section does not apply to  a water quality
regulation or methodology to the extent that it is specifically required by
federal law, or a water quality regulation or methodology of a city to the
extent that it is specifically required by state law.  

(e)  Provides that  if federal or state law requires a permit for
implementing water quality regulations or methodologies, a city must
provide that any ordinance, rule, regulation, order, or methodology adopted
to meet the permit is uniformly applied and enforced throughout the entire
area of the city and its extraterritorial jurisdiction. 

C.S.H.B. 3027 modifies the original by adding a new  SECTION 5. This
section repeals Sections 26.180(e) and (f) (Nonpoint Source Water Pollution
Control Programs of Certain Municipalities), Water Code.  These subsections
relate to nonpoint source water pollution controls of a municipality that
has extraterritorial jurisdiction over certain areas. 
 
C.S.H.B. 3027 redesignates SECTIONS 5 and 6 (effective date, emergency
clause) of the original to SECTIONS 6 and 7 in the substitute.