1-1 By: Wentworth S.B. No. 1165
1-2 (In the Senate - Filed March 10, 1999; March 11, 1999, read
1-3 first time and referred to Committee on Natural Resources;
1-4 March 25, 1999, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 6, Nays 0; March 25, 1999,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 1165 By: Brown
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the designation of water quality protection zones.
1-11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12 SECTION 1. Section 26.179, Water Code, is amended by
1-13 amending Subsections (c) and (d), adding a new Subsection (g),
1-14 amending and redesignating existing Subsection (g) as Subsection
1-15 (h), redesignating existing Subsections (h) through (p) as
1-16 Subsections (i) through (q), and amending existing Subsection (p)
1-17 to read as follows:
1-18 (c) This section applies only to those areas within the
1-19 extraterritorial jurisdiction, outside the corporate limits of a
1-20 municipality with a population greater than 10,000 [5,000], and in
1-21 which the municipality either:
1-22 (1) has enacted or attempted to enforce three or more
1-23 ordinances or amendments thereto attempting to regulate water
1-24 quality or control or abate water pollution in the area within the
1-25 five years preceding the effective date of this Act, whether or not
1-26 such ordinances or amendments were legally effective upon the area;
1-27 or
1-28 (2) enacts or attempts to enforce three or more
1-29 ordinances or amendments thereto attempting to regulate water
1-30 quality or control or abate water pollution in the area in any
1-31 five-year period, whether or not such ordinances or amendments are
1-32 legally effective upon the area.
1-33 (d) The owner or owners of a contiguous tract of land in
1-34 excess of 1,000 acres that is located within an area subject to
1-35 this section may designate the tract as a "water quality protection
1-36 zone." Upon prior approval of the commission, the owner of a
1-37 contiguous tract of land containing less than 1,000 acres, but not
1-38 less than 500 acres, that is located within an area subject to this
1-39 section may also designate the tract as a "water quality protection
1-40 zone." The tract shall be deemed contiguous if all of its parts
1-41 are physically adjacent, without regard to easements,
1-42 rights-of-way, roads, streambeds, and public or quasi-public land,
1-43 or it is part of an integrated development under common ownership
1-44 or control. The purpose of a water quality protection zone is to
1-45 provide for the consistent protection of water quality in the zone
1-46 without imposing undue regulatory uncertainty on owners of land in
1-47 [the flexibility necessary to facilitate the development of the
1-48 land within the zone, but which also is intended to result in the
1-49 protection of the quality of water within] the zone.
1-50 (g) A water quality protection zone designation may be
1-51 amended and a designation may specify the party or parties
1-52 authorized to execute amendments to the zone designation and the
1-53 zone's water quality plan. Land may be added to or excluded from a
1-54 zone by amending the zone designation. An amendment to a zone
1-55 designation is effective on its filing in the deed records of the
1-56 county in which the land is located. On application by all owners
1-57 of land in a zone, or by each party authorized by the zone
1-58 designation or an amendment to the zone designation to amend the
1-59 zone designation, the commission may terminate a zone on reasonable
1-60 terms and conditions specified by the commission.
1-61 (h) The water quality plan for a zone, including the
1-62 determination of background levels of water quality, shall be
1-63 signed and sealed by a registered professional engineer
1-64 acknowledging that the plan is designed to achieve the water
2-1 quality protection standard defined in this section. On
2-2 recordation in the deed records, the water quality plan shall be
2-3 submitted to and accepted by the commission for approval, and the
2-4 commission shall accept and approve the plan unless the commission
2-5 finds that implementation of the plan will not reasonably attain
2-6 the water quality protection as defined in this section. A water
2-7 quality plan may be amended from time to time on filing with the
2-8 commission, and all such amendments shall be accepted by the
2-9 commission unless there is a finding that the amendment will impair
2-10 the attainment of water quality protection as defined in this
2-11 section. The commission shall adopt and assess reasonable and
2-12 necessary fees adequate to recover the costs of the commission in
2-13 administering this section. The commission's review and approval
2-14 of a water quality plan shall be performed by the commission staff
2-15 that is responsible for reviewing pollution abatement plans in the
2-16 county where the zone is located. The review and approval of the
2-17 plan or any amendment to the plan shall be completed within 120
2-18 days of the date it is filed with the commission. A public hearing
2-19 on the plan shall not be required, and acceptance, review, and
2-20 approval of the water quality plan or water quality protection zone
2-21 shall not be delayed pending the adoption of rules. The commission
2-22 shall have the burden of proof for the denial of a plan or
2-23 amendments to a plan, and any such denial shall be appealable to a
2-24 court of competent jurisdiction. The water quality plan, or any
2-25 amendment thereto, shall be effective upon recordation of the plan
2-26 or the amendment in the deed records and shall apply during the
2-27 period of review and approval by the commission or appeal of the
2-28 denial of the plan or any amendment. New development under a plan
2-29 may not proceed until the plan or amendment to the plan, as
2-30 appropriate, has been approved by the commission.
2-31 (i) [(h)] The water quality plan for a zone shall be a
2-32 covenant running with the land.
2-33 (j) [(i)] A municipality may not enforce in a zone any of
2-34 its ordinances, land use ordinances, rules, or requirements
2-35 including, but not limited to, the abatement of nuisances,
2-36 pollution control and abatement programs or regulations, water
2-37 quality ordinances, subdivision requirements, other than technical
2-38 review and inspections for utilities connecting to a municipally
2-39 owned water or wastewater system, or any environmental regulations
2-40 which are inconsistent with the land use plan and the water quality
2-41 plan or which in any way limit, modify, or impair the ability to
2-42 implement and operate the water quality plan and the land use plan
2-43 within the zone as filed; nor shall a municipality collect fees or
2-44 assessments or exercise powers of eminent domain within a zone
2-45 until the zone has been annexed for the municipality. A water
2-46 quality protection zone may be annexed by a municipality only after
2-47 the installation and completion of 90 percent of all facilities and
2-48 infrastructure described in the water quality plan for the entire
2-49 zone as being necessary to carry out such plan or the expiration of
2-50 20 years from the date of designation of the zone, whichever occurs
2-51 first.
2-52 (k) [(j)] Subdivision plats within a water quality
2-53 protection zone shall be approved by the municipality in whose
2-54 extraterritorial jurisdiction the zone is located and the
2-55 commissioners court of the county in which the zone is located if:
2-56 (1) the plat complies with the subdivision design
2-57 regulations of the county; and
2-58 (2) the plat is acknowledged by a registered
2-59 professional engineer stating that the plat is in compliance with
2-60 the water quality plan within the water quality protection zone.
2-61 (l) [(k)] A water quality protection zone implementing a
2-62 water quality plan which meets the requirements of this section
2-63 shall be presumed to satisfy all other state and local requirements
2-64 for the protection of water quality; provided, however, that:
2-65 (1) development in the zone shall comply with all
2-66 state laws and commission rules regulating water quality which are
2-67 in effect on the date the zoning is designated; and
2-68 (2) nothing in this section shall supersede or
2-69 interfere with the applicability of water quality measures or
3-1 regulations adopted by a conservation and reclamation district
3-2 comprising more than two counties and which apply to the watershed
3-3 area of a surface lake or surface reservoir that impounds at least
3-4 4,000 acre-feet of water.
3-5 (m) [(l)](1) One or more of the provisions of this section
3-6 may be waived by the owner or owners of property that is or becomes
3-7 subject to an agreement entered into after the effective date of
3-8 this Act between the owner or owners of land within the zone and
3-9 the municipality. The agreement shall be in writing, and the
3-10 parties may agree:
3-11 (A) to guarantee continuation of the
3-12 extraterritorial status of the zone and its immunity from
3-13 annexation by the municipality for a period not to exceed 15 years
3-14 after the effective date of the agreement;
3-15 (B) to authorize certain land uses and
3-16 development within the zone;
3-17 (C) to authorize enforcement by the municipality
3-18 of certain municipal land use and development regulations within
3-19 the zone, in the same manner such regulations are enforced within
3-20 the municipality's boundaries, as may be agreed by the landowner
3-21 and the municipality;
3-22 (D) to vary any watershed protection
3-23 regulations;
3-24 (E) to authorize or restrict the creation of
3-25 political subdivisions within the zone; and
3-26 (F) to such other terms and considerations the
3-27 parties consider appropriate, including, but not limited to, the
3-28 continuation of land uses and zoning after annexation of the zone,
3-29 the provision of water and wastewater service to the property
3-30 within the zone, and the waiver or conditional waiver of provisions
3-31 of this section.
3-32 (2) An agreement under this section shall meet the
3-33 requirements of and have the same force and effect as an agreement
3-34 entered into pursuant to Section 42.046, Local Government Code.
3-35 (n) [(m)] In addition to the requirements of Subsections
3-36 (a)(1) and (a)(2), the commission may require and enforce
3-37 additional water quality protection measures to comply with
3-38 mandatory federal water quality requirements, standards, permit
3-39 provisions, or regulations.
3-40 (o) [(n)] This section does not apply to an area within the
3-41 extraterritorial jurisdiction of a municipality with a population
3-42 greater than 900,000 that has extended to the extraterritorial
3-43 jurisdiction of the municipality an ordinance whose purpose is to
3-44 prevent the pollution of an aquifer which is the sole or principal
3-45 drinking water source for the municipality.
3-46 (p) [(o)] If a municipality's action results in part of a
3-47 zone being located outside the municipality's extraterritorial
3-48 jurisdiction, the entire zone is removed from the municipality's
3-49 extraterritorial jurisdiction. A zone removed from a
3-50 municipality's extraterritorial jurisdiction may not be brought
3-51 into the municipality's extraterritorial jurisdiction before the
3-52 20th anniversary of the date on which the zone was designated.
3-53 (q) [(p)] In addition to the fees authorized under
3-54 Subsection (h) [(g)], the commission shall adopt and assess
3-55 reasonable and necessary fees adequate to recover the commission's
3-56 costs in monitoring water quality associated with water quality
3-57 protection zones.
3-58 SECTION 2. The changes in law made by this Act apply only to
3-59 a water quality plan or an amendment to a water quality plan that
3-60 is submitted to the Texas Natural Resource Conservation Commission
3-61 for review and approval on or after the effective date of this Act.
3-62 * * * * *