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.
1-12           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                                  * * * * *