By: Wentworth S.B. No. 1165
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the designation of water quality protection zones.
1-2 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-3 SECTION 1. Section 26.179, Water Code, is amended by
1-4 amending Subsections (c) and (d), adding a new Subsection (g),
1-5 amending and redesignating existing Subsection (g) as Subsection
1-6 (h), redesignating existing Subsections (h) through (p) as
1-7 Subsections (i) through (q), and amending existing Subsection (p)
1-8 to read as follows:
1-9 (c) This section applies only to those areas within the
1-10 extraterritorial jurisdiction, outside the corporate limits of a
1-11 municipality with a population greater than 10,000 [5,000], and in
1-12 which the municipality either:
1-13 (1) has enacted or attempted to enforce three or more
1-14 ordinances or amendments thereto attempting to regulate water
1-15 quality or control or abate water pollution in the area within the
1-16 five years preceding the effective date of this Act, whether or not
1-17 such ordinances or amendments were legally effective upon the area;
1-18 or
1-19 (2) enacts or attempts to enforce three or more
1-20 ordinances or amendments thereto attempting to regulate water
1-21 quality or control or abate water pollution in the area in any
1-22 five-year period, whether or not such ordinances or amendments are
1-23 legally effective upon the area.
1-24 (d) The owner or owners of a contiguous tract of land in
2-1 excess of 1,000 acres that is located within an area subject to
2-2 this section may designate the tract as a "water quality protection
2-3 zone." Upon prior approval of the commission, the owner of a
2-4 contiguous tract of land containing less than 1,000 acres, but not
2-5 less than 500 acres, that is located within an area subject to this
2-6 section may also designate the tract as a "water quality protection
2-7 zone." The tract shall be deemed contiguous if all of its parts
2-8 are physically adjacent, without regard to easements,
2-9 rights-of-way, roads, streambeds, and public or quasi-public land,
2-10 or it is part of an integrated development under common ownership
2-11 or control. The purpose of a water quality protection zone is to
2-12 provide for the consistent protection of water quality in the zone
2-13 without imposing undue regulatory uncertainty on owners of land in
2-14 [the flexibility necessary to facilitate the development of the
2-15 land within the zone, but which also is intended to result in the
2-16 protection of the quality of water within] the zone.
2-17 (g) A water quality protection zone designation may be
2-18 amended and a designation may specify the party or parties
2-19 authorized to execute amendments to the zone designation and the
2-20 zone's water quality plan. Land may be added to or excluded from a
2-21 zone by amending the zone designation. An amendment to a zone
2-22 designation is effective on its filing in the deed records of the
2-23 county in which the land is located. On application by all owners
2-24 of land in a zone, or by each party authorized by the zone
2-25 designation or an amendment to the zone designation to amend the
2-26 zone designation, the commission may terminate a zone on reasonable
3-1 terms and conditions specified by the commission.
3-2 (h) The water quality plan for a zone, including the
3-3 determination of background levels of water quality, shall be
3-4 signed and sealed by a registered professional engineer
3-5 acknowledging that the plan is designed to achieve the water
3-6 quality protection standard defined in this section. On
3-7 recordation in the deed records, the water quality plan shall be
3-8 submitted to and accepted by the commission for approval, and the
3-9 commission shall accept and approve the plan unless the commission
3-10 finds that implementation of the plan will not reasonably attain
3-11 the water quality protection as defined in this section. A water
3-12 quality plan may be amended from time to time on filing with the
3-13 commission, and all such amendments shall be accepted by the
3-14 commission unless there is a finding that the amendment will impair
3-15 the attainment of water quality protection as defined in this
3-16 section. The commission shall adopt and assess reasonable and
3-17 necessary fees adequate to recover the costs of the commission in
3-18 administering this section. The commission's review and approval
3-19 of a water quality plan shall be performed by the commission staff
3-20 that is responsible for reviewing pollution abatement plans in the
3-21 county where the zone is located. The review and approval of the
3-22 plan or any amendment to the plan shall be completed within 120
3-23 days of the date it is filed with the commission. A public hearing
3-24 on the plan shall not be required, and acceptance, review, and
3-25 approval of the water quality plan or water quality protection zone
3-26 shall not be delayed pending the adoption of rules. The commission
4-1 shall have the burden of proof for the denial of a plan or
4-2 amendments to a plan, and any such denial shall be appealable to a
4-3 court of competent jurisdiction. The water quality plan, or any
4-4 amendment thereto, shall be effective upon recordation of the plan
4-5 or the amendment in the deed records and shall apply during the
4-6 period of review and approval by the commission or appeal of the
4-7 denial of the plan or any amendment. New development under a plan
4-8 may not proceed until the plan or amendment to the plan, as
4-9 appropriate, has been approved by the commission.
4-10 (i) [(h)] The water quality plan for a zone shall be a
4-11 covenant running with the land.
4-12 (j) [(i)] A municipality may not enforce in a zone any of
4-13 its ordinances, land use ordinances, rules, or requirements
4-14 including, but not limited to, the abatement of nuisances,
4-15 pollution control and abatement programs or regulations, water
4-16 quality ordinances, subdivision requirements, other than technical
4-17 review and inspections for utilities connecting to a municipally
4-18 owned water or wastewater system, or any environmental regulations
4-19 which are inconsistent with the land use plan and the water quality
4-20 plan or which in any way limit, modify, or impair the ability to
4-21 implement and operate the water quality plan and the land use plan
4-22 within the zone as filed; nor shall a municipality collect fees or
4-23 assessments or exercise powers of eminent domain within a zone
4-24 until the zone has been annexed for the municipality. A water
4-25 quality protection zone may be annexed by a municipality only after
4-26 the installation and completion of 90 percent of all facilities and
5-1 infrastructure described in the water quality plan for the entire
5-2 zone as being necessary to carry out such plan or the expiration of
5-3 20 years from the date of designation of the zone, whichever occurs
5-4 first.
5-5 (k) [(j)] Subdivision plats within a water quality
5-6 protection zone shall be approved by the municipality in whose
5-7 extraterritorial jurisdiction the zone is located and the
5-8 commissioners court of the county in which the zone is located if:
5-9 (1) the plat complies with the subdivision design
5-10 regulations of the county; and
5-11 (2) the plat is acknowledged by a registered
5-12 professional engineer stating that the plat is in compliance with
5-13 the water quality plan within the water quality protection zone.
5-14 (l) [(k)] A water quality protection zone implementing a
5-15 water quality plan which meets the requirements of this section
5-16 shall be presumed to satisfy all other state and local requirements
5-17 for the protection of water quality; provided, however, that:
5-18 (1) development in the zone shall comply with all
5-19 state laws and commission rules regulating water quality which are
5-20 in effect on the date the zoning is designated; and
5-21 (2) nothing in this section shall supersede or
5-22 interfere with the applicability of water quality measures or
5-23 regulations adopted by a conservation and reclamation district
5-24 comprising more than two counties and which apply to the watershed
5-25 area of a surface lake or surface reservoir that impounds at least
5-26 4,000 acre-feet of water.
6-1 (m) [(l)](1) One or more of the provisions of this section
6-2 may be waived by the owner or owners of property that is or becomes
6-3 subject to an agreement entered into after the effective date of
6-4 this Act between the owner or owners of land within the zone and
6-5 the municipality. The agreement shall be in writing, and the
6-6 parties may agree:
6-7 (A) to guarantee continuation of the
6-8 extraterritorial status of the zone and its immunity from
6-9 annexation by the municipality for a period not to exceed 15 years
6-10 after the effective date of the agreement;
6-11 (B) to authorize certain land uses and
6-12 development within the zone;
6-13 (C) to authorize enforcement by the municipality
6-14 of certain municipal land use and development regulations within
6-15 the zone, in the same manner such regulations are enforced within
6-16 the municipality's boundaries, as may be agreed by the landowner
6-17 and the municipality;
6-18 (D) to vary any watershed protection
6-19 regulations;
6-20 (E) to authorize or restrict the creation of
6-21 political subdivisions within the zone; and
6-22 (F) to such other terms and considerations the
6-23 parties consider appropriate, including, but not limited to, the
6-24 continuation of land uses and zoning after annexation of the zone,
6-25 the provision of water and wastewater service to the property
6-26 within the zone, and the waiver or conditional waiver of provisions
7-1 of this section.
7-2 (2) An agreement under this section shall meet the
7-3 requirements of and have the same force and effect as an agreement
7-4 entered into pursuant to Section 42.046, Local Government Code.
7-5 (n) [(m)] In addition to the requirements of Subsections
7-6 (a)(1) and (a)(2), the commission may require and enforce
7-7 additional water quality protection measures to comply with
7-8 mandatory federal water quality requirements, standards, permit
7-9 provisions, or regulations.
7-10 (o) [(n)] This section does not apply to an area within the
7-11 extraterritorial jurisdiction of a municipality with a population
7-12 greater than 900,000 that has extended to the extraterritorial
7-13 jurisdiction of the municipality an ordinance whose purpose is to
7-14 prevent the pollution of an aquifer which is the sole or principal
7-15 drinking water source for the municipality.
7-16 (p) [(o)] If a municipality's action results in part of a
7-17 zone being located outside the municipality's extraterritorial
7-18 jurisdiction, the entire zone is removed from the municipality's
7-19 extraterritorial jurisdiction. A zone removed from a
7-20 municipality's extraterritorial jurisdiction may not be brought
7-21 into the municipality's extraterritorial jurisdiction before the
7-22 20th anniversary of the date on which the zone was designated.
7-23 (q) [(p)] In addition to the fees authorized under
7-24 Subsection (h) [(g)], the commission shall adopt and assess
7-25 reasonable and necessary fees adequate to recover the commission's
7-26 costs in monitoring water quality associated with water quality
8-1 protection zones.
8-2 SECTION 2. The changes in law made by this Act apply only to
8-3 a water quality plan or an amendment to a water quality plan that
8-4 is submitted to the Texas Natural Resource Conservation Commission
8-5 for review and approval on or after the effective date of this Act.