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.