SRC-ARR C.S.S.B. 1311 76(R)BILL ANALYSIS


Senate Research CenterC.S.S.B. 1311
76R3732 MI-DBy: Brown
Natural Resources
4/1/1999
Committee Report (Substituted)


DIGEST 

The 75th Texas Legislature established a comprehensive framework for
planning the development and management of the state's water resources in
Senate Bill 1. The consolidation of such authority relating to water rights
and water utilities was intentionally avoided so as not to interfere with
changes to those provisions in S.B. 1. The Interim Committee on Water
Resource Development and Management, through its monitoring of the
implementation of S.B. 1 also developed recommendations pertaining to the
related activities of the Texas Natural Resource Conservation Commission
(commission) under S.B.1, including the process for creating priority
groundwater management areas and groundwater conservation districts.
C.S.S.B. 1311 consolidates the emergency order and enforcement authorities
of the commission related to water rights and water utilities.  

PURPOSE

As proposed, C.S.S.B. 1311 regulates development and management of water
resources. 

RULEMAKING AUTHORITY

Rulemaking authority is granted to the Texas Natural Resource Conservation
Commission in SECTION 2 (Sections 5.517(d) and Section 5.518(d), Water
Code), SECTION 17 (Section 11.138(a), Water Code), and SECTION 31 (Section
36.1074(a), Water Code) of this bill. 

SECTION BY SECTION ANALYSIS

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

SECTION 2. Amends Chapter 5L, 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. Authorizes the Texas Natural Resource Conservation Commission
(commission) by emergency order to issue 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 the commission
finds that certain actions have taken place, except as provided by Section
5.506 and after notification to the governor. Authorizes the 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 the commission can take action under Subsection (a)
and there is no feasible alternative. Requires the commission to hold
hearing as provided  for in Section 5.504 as soon as practicable but not
later than 20, rather than 10, days after issuance of the order to affirm,
modify, or set aside the order, the executive director issues an emergency
order under this subsection. Provides that the notice requirements of
Section 11.132  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 the
commission to give the general notice of the hearing that the commission
considers practicable under the circumstances. Authorizes the commission 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.
Authorizes the commission 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. Authorizes the commission 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 the commission from any and all
liability for the order sought. Authorizes the commission to order bond or
other surety in a form acceptable to the commission as a condition for an
emergency order under this section. Prohibits the commission from granting
an emergency authorization under this section that would cause a violation
of a federal regulation. Requires the executive director or the commission
to allocate the requested amount among two or more permits, certified
filings, or certificates of adjudication for other than domestic or
municipal use. Provides that a person granted an emergency authorization
under this section is liable to the owner from whom use is transferred and
for any damages proximately caused  by the transfer of use. Authorizes
either party to file a complaint with the commission 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. Requires
the commission, 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. Provides that the prevailing party in a suit filed under this
subsection is entitled to recover court cost and reasonable attorney's
fees.  

Sec. 5.519. EMERGENCY WORKS SAFETY ORDER. Authorizes the commission 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 the commission finds certain
conditions exist. 

Sec. 5.520. EMERGENCY ORDER FOR OPERATION OF UTILITY THAT DISCONTINUES
OPERATION OR IS REFERRED FOR APPOINTMENT OF RECEIVER. Authorizes the
commission 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 private corporation, individual, or
political subdivision that has a justiciable interest to pursue any
available common law remedy to enforce a right, 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 Chapter 7B, 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 or a rule adopted under Chapter
11. 

SECTION 5. Amends Section 7.051(b), Water Code, to provide that except as
provided by this subsection, this subchapter does not apply to violations
of Chapter 12, 13, 16, or 36. Provides that this chapter does apply to
Section 16.236. Deletes text regarding Chapter 11 and Chapter 341, Health
and Safety Code. Makes a conforming change. 

SECTION  6. Amends Section 7.052, Water Code, to set forth certain
penalties for violations including prohibiting the amount of the penalty
for a violation of a rule or order adopted or permit,  certified filing, or
certificate of adjudication issued under Chapter 11 from exceeding a
certain amount. 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 the commission. 

SECTION 8. Amends Section 7.069, Water Code, to require a penalty collected
under this subchapter to be deposited to the credit of the general revenue
fund, except as provided by Subsection (b). Requires a penalty collected
under this subchapter from a public utility to be paid to the commission
and deposited in the water utility improvement account as provided by
Section 341.0485, Health and Safety Code. 

SECTION 9. Amends Section 7.102, Water Code, to prohibit the amount of a
penalty for a violation of a rule under Section 12.052 from exceeding
$5000.  Requires a person who causes, suffers, allows, or permits a
violation of a statute, rule, order, or permit relating to Chapter 11, to
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. Make conforming changes. 

SECTION 10. 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. Authorizes the suit to be
brought in Travis County, in the county in which the defendant resides, or
in the county in which the violation or threat of violation occurs, except
as provided by this subsection. Authorizes a suit to recover a penalty for
a violation of a rule or order issued by the commission under Section
12.052 to be brought in Travis County. 

SECTION 11. Amends Chapter 7D, Water Code, by adding Section 7.1075, as
follows:  

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

SECTION 12. Amends Chapter 7D, Water Code, by adding Section 7.112, as
follows: 

Sec. 7.112. LIMITATION ON SUIT FOR VIOLATION OF SECTION 11.081. Requires an
action to collect the penalty provided by Section 7.102 for a violation of
Section 11.081 to be brought within two years from the date of the alleged
violation.  

SECTION 13. Amends Section 7.351, Water Code, to make a conforming change.

SECTION 14. Amends Section 11.0843, Water Code, 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 15. Amends Section 11.085, Water Code, by adding Subsection (w), to
provide that the requirements of this section apply to the transfer of
water from one river basin to another regardless of whether all or any part
of the water right, permit, certified filing, or certificate of
adjudication under which the water is authorized to be used is also
transferred.  

SECTION 16. Amends Section 11.138(a), Water Code, to authorize the
commission, 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 the commission in the manner
required by the commission. 

SECTION 17. Amends Section 11.139, Water Code, to authorize the commission
to grant an emergency permit, order, or amendment to an existing permit,
certified filing, or certificate of  adjudication under Subchapter L,
Chapter 5. Deletes text regarding emergency authorizations.  

SECTION 18. Amends Section 11.142(a), Water Code, to provide that normal
storage may involve the temporary storage of greater than 200 acre-feet if
the owner of the structure maintains records which can demonstrate that
throughout a 12 month period an average of not more than 200 acre-feet of
water is impounded in such a structure. 

SECTION 19. 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) 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 the holder of the permit, certified filing, or
certificate of adjudication as part of the holder's long-term planning. 

SECTION 20. Amends Section 11.177(b), Water Code, to make  conforming
changes.  

SECTION 21. Amends Sections 12.052(c), (d), (e) and (f), Water Code, to
prohibit the owner of a dam that is required to be constructed,
reconstructed, repaired, or removed in order to comply with the rules  and
orders promulgated under Subsection (a) of this section from wilfully
failing or refusing to comply within the 30-day period following the date
of the commission's final, nonappealable order to do so and from wilfully
failing to comply with any rule or other order issued by the commission
under this section within the 30-day period following the effective date of
the order. Authorizes the commission to issue an emergency works safety
order under Section 5.519. Deletes text regarding existing conditions of a
dam. Makes conforming changes.  

SECTION 22. Amends Chapter 7, Water Code, by adding Subchapter I, and
Sections 13.412, 13.4131, and 13.4132, Water Code, transferred to Chapter
7I, Water Code, redesignated as Section 7.401, 7.402, 7.403, and 7.404 as
follows: 

SUBCHAPTER I. RECEIVERSHIP; SUPERVISION OF CERTAIN UTILITIES

 Sec. 7.401. DEFINITIONS. Defines "affiliated interests" and "affiliate."

 Sec. 7.402. RECEIVERSHIP. Makes a conforming change. 

Sec. 7.403. SUPERVISION OF CERTAIN UTILITIES. Authorizes the commission to
require the utility to meet, rather than abide by, conditions and
requirements prescribed by the commission 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 the commission. Deletes text regarding the
commission's supervision of a utility. Makes conforming and nonsubstantive
changes. 

Sec. 7.404. OPERATION OF UTILITY THAT DISCONTINUES OPERATION OR IS REFERRED
FOR APPOINTMENT OF RECEIVER. Authorizes the commission to appoint a person
under this section by emergency order under Section 5.507 and to authorize
an emergency rate increase by emergency order under Section 5.508, rather
than 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 23. Amends Section 13.414, Water Code, as follows: 

Sec. 13.414. New heading: VIOLATION BY RETAIL PUBLIC UTILITY OR AFFILIATE
INTEREST. Prohibits a retail public utility or affiliated interest from
violating this chapter, failing to perform a duty imposed on it, or
failing, neglect, or refusing to obey an order, rule, direction, or
requirement of the commission or decree or judgment of a court. Deletes
text regarding civil penalty. Makes conforming changes. 
 
SECTION 24. Amends Sections 35.008(b), (c), and (d), Water Code, to require
the commission to call a public comment, rather than evidentiary hearing,
to consider certain actions. Provides that any testimony, evidence, report,
comment, or other information received by the commission at a public
comment hearing becomes part of the record of the contested case hearing on
designation of the priority groundwater management area, creation of a
district over all or part of the priority groundwater management area, or
addition of any part of the land in the priority groundwater management
area to an existing district. 

SECTION 25. Amends Section 35.009, Water Code, as follows:

Sec. 35.009. New heading: NOTICE AND PUBLIC COMMENT HEARING. Makes
conforming changes. 

SECTION 26. Amends Section 35.012(a), Water Code, to make a conforming
change. 

SECTION 27. 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 the commission 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 28. Amends Section 35.012, Water Code, by adding new Subsections
(c) and (d), reletering existing Subsections (c)-(f) as Subsections
(e)-(h), and amending existing Subsection (d), to require the commission
not later than a certain date on which the commission order designating a
priority groundwater management area is issued, to send a written notice of
the commission'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. Requires
the notice to include the commission's findings and conclusions from the
data and information considered in designating the priority groundwater
management area and the commission's recommendation regarding the need for
a groundwater conservation district in the priority groundwater management
area. Requires the Texas Agricultural Extension Service to begin an
educational program within the area with the assistance and cooperation of
the Texas Water Development Board, the commission, 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. Makes conforming changes.  

SECTION 29. Amends Section 36.014, Water Code, to require the commission to
give notice of the application or proposal as required by Section 49.011(a)
and may conduct a hearing on the application or proposal if the commission
determines that a hearing is necessary under Section 49.011. Deletes text
regarding management areas. 

SECTION 30. Amends Section 36.015, Water Code, to require the commission to
issue an order containing findings granting the petition or adopting the
proposal, as appropriate, if the commission finds that a district requested
by petition or proposed by the commission is feasible and practicable, a
benefit to the land in the district, and would be a public benefit or
utility. Requires the commission by order to deny the petition or reject
the proposal, as appropriate. Requires the commission to direct in its
orders creating the district that an election be called by the temporary
directors to confirm the creation of the district and to elect permanent
directors, if the commission grants the petition or adopts the proposal.
Requires the commission to act on the petition or its proposal within a
reasonable amount of time. Deletes text regarding the refusal to grant a
petition. 

SECTION 31. Amends Chapter 36D, Water Code, by adding Section 36.1074, as
follows: 

Sec. 36.1074. EXTENSION OF DISTRICT AUTHORITY TO ADDITIONAL AQUIFERS WITHIN
DISTRICT'S GEOGRAPHIC BOUNDARIES. Requires the commission, by rule,  to
establish a procedure by which a district created by special law may
petition to extend the district's authority to include management of any
aquifer within the geographic boundaries of the district the management of
which is not provided for by the special law creating any district.
Requires the rules adopted by the commission under this section to
establish grounds for a petition described by Subsection (a) including
certain conditions. Authorizes a petition under this section to be granted
only by order of the commission. 

SECTION 32. Amends Section 36.0151, Water Code, as follows:

Sec. 36.0151. New heading: NOTICE OF CREATION BY COMMISSION OF DISTRICT FOR
PRIORITY GROUNDWATER MANAGEMENT AREA. Requires the commission to notify the
county commissioners court of each county with territory in the district of
the district's creation as soon as practicable after issuing the order
under Section 36.015(a) creating a district proposed by the commission
under Section 35.012(b). 

SECTION 33. Amends Section 36.108, Water Code, as follows:

Sec. 36.108. New heading: JOINT PLANNING IN MANAGEMENT AREA OR PRIORITY
GROUNDWATER MANAGEMENT AREA. Requires each district to prepare a
comprehensive management plan as required by Section 36.1071 covering that
district's respective territory, if two or more districts are located
within the boundaries of the same management area or priority groundwater
management area. Making conforming changes. 

SECTION 34. Amends Section 341.047, Health and Safety Code, by transferring
it to Chapter 7E, Water Code, redesignating it as Section 7.1605, Water
Code, as follows:  

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

SECTION 35. Amends Section 341.048, Health and Safety Code, as follows:

 Sec. 341.048. New heading: VIOLATION. Deletes text regarding certain
violations. 

SECTION 36. Amends Section 5.07, Water Code, to make a conforming change.

SECTION 37. Amends Section 5.08(a), Water Code, to make a conforming change.

SECTION 38. Amends Section 341.0485, Water Code, to make conforming change

SECTION 39. Repealer: (1) Section 11.082, Water Code (Unlawful Use: Civil
Penalty). 

(2) Section 11.0841, Water Code (Civil Remedy) and Section 11.0842, Water
Code (Administrative Penalty). 

(3) Section 11.148, Water Code, (Emergency Suspension of Permit
Conditions).  

(4) Section 13.411, Water Code, (Action to Enjoin or Require Compliance). 

 (5) Section 13.4133, Water Code, (Emergency Rate Increase in Certain
Circumstances). 

(6) Section 13.4151, Water Code, (Administrative Penalty) and Section
13.416, Water Code (Penalties Cumulative).  

(7) Section 13.417, Water Code, (Contemp Proceedings) and Section 13.418,
Water Code, (Disposition of Fines and Penalties; Water Utility Improvement
Account).  

(8) Section 35.004, Water Code, (Designation of Management Areas), Section
35.005, Water Code, (Petition to Designate a Groundwater Management Area),
and Section 35.006, Water Code (Notice for Designation of Management Area). 
 
(b) Repealer: Section 341.049 Health and Safety Code (Administrative
Penalty) and Section 341.050, Health and Safety Code (Penalties
Cumulative).  

SECTION 40. Effective date: September 1, 1999.

SECTION 41. Makes application of this Act prospective.

SECTION 42. Emergency clause.

SUMMARY OF COMMITTEE CHANGES

SECTION 2.

Amends Section 5.17(b), Water Code,  to require the commission to hold a
hearing as provided  for in Section 5.504 as soon as practicable but, not
later than 20,  rather than 10, days after issuance of the a certain order.
Deletes text regarding emergency action.  

Amends Section 5.518, Water Code,  to require the executive director or the
commission to allocate certain requested amounts of water. 

SECTION 6. 

Amends Section 7.052, Water Code, sets forth certain penalties for
violations including the amount of the penalty for a violation of a rule or
order adopted under a certain permit. 

SECTION 9. 

Deletes proposed SECTION 9 and redesignates SECTIONS 10-17.

SECTION 18.

Amends Section 11.142(a), Water Code, to provide that normal storage may
involve the temporary storage of certain amounts of water. 

SECTION 22. 

Amends Chapter 7, Water Code, to define "affiliated interests," and
"affiliate." Deletes proposed Section 7.325, Water Code, regarding action
to enjoin or require compliance: retail public utilities. Makes conforming
changes. 

SECTION 24.

Deletes proposed Section 13.417, Water Code, regarding contempt proceedings
in utility actions. 

SECTION 25. 

Amends Section, 35.009 Water Code, to add a new heading and makes
conforming changes. 

SECTION 26. 

 Amends Section 35.012(a), Water Code, to make a conforming change.

SECTION 36. 

 Amends Section 5.07, Water Code, to make a conforming change.

SECTION 37. 
 
 Amends Section 5.08(a), Water Code, to make a conforming change.

SECTION 38. 

 Amends Section 341.0485, Water Code, to make conforming change

SECTION 39. 
 
Deletes certain sections of the Water Code.