By:  Wentworth                                        S.B. No. 1165
                                A BILL TO BE ENTITLED
                                       AN ACT
 1-1     relating to the designation of water quality protection zones.
 1-3           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.