By: Brown S.B. No. 1311
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the development and management of the water resources.
1-2 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-3 SECTION 1. Subsection (a), Section 5.504, Water Code, is
1-4 amended to read as follows:
1-5 (a) If the commission, the executive director, or the
1-6 executive director's representative issues an emergency order under
1-7 this subchapter without a hearing, the order shall set a time and
1-8 place for a hearing to affirm, modify, or set aside the emergency
1-9 order to be held before the commission or its designee as soon as
1-10 practicable after the order is issued. If the emergency order is
1-11 issued under Section 5.517 or 5.518, the order shall set a time for
1-12 the hearing not later than the 20th day after the date the
1-13 emergency order is issued.
1-14 SECTION 2. Subchapter L, Chapter 5, Water Code, is amended
1-15 by adding Sections 5.517, 5.518, 5.519, and 5.520 to read as
1-16 follows:
1-17 Sec. 5.517. EMERGENCY PERMIT TO DIVERT AND USE WATER;
1-18 AMENDMENT TO WATER RIGHT. (a) Except as provided by Section 5.506
1-19 and after notification to the governor, the commission by emergency
1-20 order may issue a permit to divert and use water or amend an
1-21 existing permit, certified filing, or certificate of adjudication
1-22 for an initial period not to exceed 120 days if the commission
1-23 finds that:
1-24 (1) emergency conditions exist that present an
2-1 imminent threat to the public health, safety, and welfare or the
2-2 environment and that override the necessity to comply with
2-3 established statutory procedures; and
2-4 (2) there is no feasible practicable alternative to
2-5 the emergency authorization. The emergency authorization may be
2-6 renewed once for a period not to exceed 60 days.
2-7 (b) The executive director may issue an emergency order if
2-8 an imminent threat to the public health, safety, and welfare or the
2-9 environment exists that requires emergency action before the
2-10 commission can take action under Subsection (a) and there is no
2-11 feasible alternative. If the executive director issues an
2-12 emergency order under this subsection, the commission shall hold a
2-13 hearing as provided for in Section 5.504 as soon as practicable but
2-14 not later than 20 days after issuance of the order to affirm,
2-15 modify, or set aside the order.
2-16 (c) The notice requirements of Section 11.132 relating to
2-17 the time for notice, newspaper notice, and method of giving a
2-18 person notice do not apply to a hearing held on an application for
2-19 an emergency order under this section. The commission shall give
2-20 the general notice of the hearing that the commission considers
2-21 practicable under the circumstances.
2-22 (d) The commission may adopt rules and impose fees necessary
2-23 to carry out the provisions of this section.
2-24 (e) An emergency order under this section does not vest in
2-25 the grantee any right to the diversion, impoundment, or use of
2-26 water and expires by its terms.
3-1 Sec. 5.518. EMERGENCY ORDER FOR TEMPORARY TRANSFER OF USE OF
3-2 WATER RIGHT. (a) The commission by emergency order may grant the
3-3 temporary transfer and use of all or part of a surface water right
3-4 for other than domestic or municipal use to a retail or wholesale
3-5 water supplier for public health and safety purposes.
3-6 (b) The commission may direct the applicant to timely pay
3-7 the amounts for which the applicant may be potentially liable under
3-8 this section and to fully indemnify and hold harmless the state,
3-9 the executive director, and the commission from any and all
3-10 liability for the order sought. The commission may order bond or
3-11 other surety in a form acceptable to the commission as a condition
3-12 for an emergency order under this section. The commission may not
3-13 grant an emergency authorization under this section that would
3-14 cause a violation of a federal regulation.
3-15 (c) In transferring the amount of water requested by the
3-16 applicant, the executive director or the commission shall allocate
3-17 the requested amount among two or more permits, certified filings,
3-18 or certificates of adjudication for other than domestic or
3-19 municipal use.
3-20 (d) A person granted an emergency order under this section
3-21 is liable to the owner from whom the use is transferred for the
3-22 fair market value of the water transferred and for any damages
3-23 proximately caused by the transfer of use. If, within 60 days of
3-24 the termination of the order, the parties do not agree on the
3-25 amount due, or if full payment is not made, either party may file a
3-26 complaint with the commission to determine the amount due.
4-1 (e) The commission by rule shall establish a dispute
4-2 resolution procedure for a complaint filed under this section.
4-3 After exhausting all administrative remedies under this section, an
4-4 owner from whom the use is transferred may file suit to recover or
4-5 determine the amount due in a district court in the county where
4-6 the owner resides or has its headquarters. The prevailing party in
4-7 a suit filed under this subsection is entitled to recover court
4-8 costs and reasonable attorney's fees.
4-9 Sec. 5.519. EMERGENCY WORKS SAFETY ORDER. The commission
4-10 may issue a mandatory or prohibitory emergency order directing the
4-11 owner of a dam, levee, or other water-storage or flood-control work
4-12 to repair, modify, maintain, dewater, or remove a work if the
4-13 commission finds that:
4-14 (1) the existing condition of the work is causing or
4-15 will cause extensive or severe property damage or economic loss to
4-16 others or is posing an immediate and serious threat to human life
4-17 or health; and
4-18 (2) other procedures available to the commission to
4-19 remedy or prevent the occurrence will result in unreasonable delay.
4-20 Sec. 5.520. EMERGENCY ORDER FOR OPERATION OF UTILITY THAT
4-21 DISCONTINUES OPERATION OR IS REFERRED FOR APPOINTMENT OF RECEIVER.
4-22 The commission may issue an emergency order appointing a willing
4-23 person to temporarily manage and operate a utility under Section
4-24 7.404. Notice of the action is adequate if the notice is mailed or
4-25 hand delivered to the last known address of the utility's
4-26 headquarters.
5-1 SECTION 3. Section 7.004, Water Code, is amended to read as
5-2 follows:
5-3 Sec. 7.004. REMEDIES CUMULATIVE. The remedies under this
5-4 chapter are cumulative of all other remedies. Nothing in this
5-5 chapter affects the right of a private corporation, [or]
5-6 individual, or political subdivision that has a justiciable
5-7 interest to pursue any available common law remedy to enforce a
5-8 right, to abate a condition of pollution or other nuisance, to
5-9 recover damages to enforce a right, or to prevent or seek redress
5-10 or compensation for the violation of a right or otherwise redress
5-11 an injury.
5-12 SECTION 4. Subchapter B, Chapter 7, Water Code, is amended
5-13 by adding Section 7.034 to read as follows:
5-14 Sec. 7.034. ATTORNEY'S FEES; COSTS. A district court may
5-15 award the costs of litigation, including reasonable attorney's fees
5-16 and expert costs, to any political subdivision of the state,
5-17 private corporation, or individual that is a water right holder and
5-18 that prevails in a suit for injunctive relief to redress an
5-19 unauthorized diversion, impoundment, or use of surface water in
5-20 violation of Chapter 11 or a rule adopted under Chapter 11.
5-21 SECTION 5. Subsection (b), Section 7.051, Water Code, is
5-22 amended to read as follows:
5-23 (b) Except as provided by this subsection, this [This]
5-24 subchapter does not apply to violations of Chapter [11,] 12 or[,
5-25 13,] 16[, or 36 of this code, or Chapter 341, Health and Safety
5-26 Code]. This subchapter does apply to Section 16.236.
6-1 SECTION 6. Section 7.052, Water Code, is amended to read as
6-2 follows:
6-3 Sec. 7.052. MAXIMUM PENALTY. (a) The amount of the penalty
6-4 for a violation of Chapter 18, 32, 33, or 34 of this code or
6-5 Chapter 366, 371, or 372, Health and Safety Code, may not exceed
6-6 $2,500 a day for each violation.
6-7 (b) The amount of the penalty for a violation of Chapter 11
6-8 or a rule or order adopted under or a permit, certified filing, or
6-9 certificate of adjudication issued under Chapter 11 may not exceed
6-10 $5,000 a day for each violation.
6-11 (c) The penalty for a violation of a rule or order adopted
6-12 under Section 16.236 may not exceed $1,000 a day for each
6-13 violation.
6-14 (d) The amount of the penalty for a violation under Chapter
6-15 341, Health and Safety Code, may not be less than $50 or more than
6-16 $1,000 for each violation.
6-17 (e) The amount of the penalty for all other violations
6-18 within the jurisdiction of the commission to enforce may not exceed
6-19 $10,000 a day for each violation.
6-20 (f) [(c)] Each day that a continuing violation occurs may be
6-21 considered a separate violation. The commission may authorize an
6-22 installment payment schedule for an administrative penalty assessed
6-23 under this subchapter, except for an administrative penalty
6-24 assessed under Section 7.057 or assessed after a hearing under
6-25 Section 7.058.
6-26 SECTION 7. Section 7.054, Water Code, is amended to read as
7-1 follows:
7-2 Sec. 7.054. REPORT OF VIOLATION. (a) If, after examination
7-3 of a possible violation and the facts surrounding that possible
7-4 violation, the executive director concludes that a violation has
7-5 occurred, the executive director may issue a preliminary report in
7-6 accordance with commission rules that includes recommendations
7-7 regarding any penalty or corrective action.
7-8 (b) A report regarding a possible violation under Chapter 11
7-9 must state the facts on which the conclusion was based and
7-10 recommend the amount of any penalty. The executive director shall
7-11 base the recommended amount of the proposed penalty on the factors
7-12 provided by Section 7.053 and shall analyze each factor for the
7-13 benefit of the commission.
7-14 SECTION 8. Section 7.069, Water Code, is amended to read as
7-15 follows:
7-16 Sec. 7.069. DISPOSITION OF PENALTY. (a) Except as provided
7-17 by Subsection (b), a [A] penalty collected under this subchapter
7-18 shall be deposited to the credit of the general revenue fund.
7-19 (b) A penalty collected under this subchapter from a public
7-20 utility shall be paid to the commission and deposited in the water
7-21 utility improvement account as provided by Section 341.0485, Health
7-22 and Safety Code.
7-23 SECTION 9. Section 7.102, Water Code, is amended to read as
7-24 follows:
7-25 Sec. 7.102. MAXIMUM PENALTY. (a) A person who causes,
7-26 suffers, allows, or permits a violation of a statute, rule, order,
8-1 or permit relating to Chapter 11, 18, 32, 33, or 34 of this code or
8-2 Chapter 366, 371, or 372, Health and Safety Code, shall be assessed
8-3 for each violation a civil penalty not less than $50 nor greater
8-4 than $5,000 for each day of each violation as the court or jury
8-5 considers proper.
8-6 (b) The amount of a penalty for a violation of a rule or
8-7 order issued by the commission under Section 12.052 may not exceed
8-8 $5,000.
8-9 (c) A person who causes, suffers, allows, or permits a
8-10 violation of a statute, rule, order, or permit relating to Chapter
8-11 13 shall be assessed for each violation a civil penalty not less
8-12 than $100 nor greater than $5,000 for each day of each violation as
8-13 the court or jury considers proper.
8-14 (d) A person who causes, suffers, allows, or permits a
8-15 violation of a statute, rule, order, or permit relating to any
8-16 other matter within the commission's jurisdiction to enforce, other
8-17 than violations of Chapter [11,]12 or[, 13,] 16[, or 36] of this
8-18 code, or Chapter 341, Health and Safety Code, shall be assessed for
8-19 each violation of a civil penalty not less than $50 nor greater
8-20 than $25,000 for each day of each violation as the court or jury
8-21 considers proper.
8-22 (e) Each day of a continuing violation is a separate
8-23 violation.
8-24 SECTION 10. Subsections (a) and (c), Section 7.105, Water
8-25 Code, are amended to read as follows:
8-26 (a) On the request of the executive director or the
9-1 commission, the attorney general shall institute a suit in the name
9-2 of the state for injunctive relief under Section 7.032, to recover
9-3 a civil penalty, or for both injunctive relief and a civil penalty.
9-4 The attorney general may initiate a suit for recovery of a penalty
9-5 under this section for a violation under Section 13.414.
9-6 (c) Except as provided by this subsection, the [The] suit
9-7 may be brought in Travis County, in the county in which the
9-8 defendant resides, or in the county in which the violation or
9-9 threat of violation occurs. A suit to recover a penalty for a
9-10 violation of a rule or order issued by the commission under Section
9-11 12.052 may be brought in Travis County.
9-12 SECTION 11. Subchapter D, Chapter 7, Water Code, is amended
9-13 by adding Section 7.1075 to read as follows:
9-14 Sec. 7.1075. DISPOSITION OF PENALTY COLLECTED FROM PUBLIC
9-15 UTILITY. A penalty collected under this subchapter from a public
9-16 utility shall be paid to the commission and deposited in the water
9-17 utility improvement account as provided by Section 341.0485, Health
9-18 and Safety Code.
9-19 SECTION 12. Subchapter D, Chapter 7, Water Code, is amended
9-20 by adding Section 7.112 to read as follows:
9-21 Sec. 7.112. LIMITATION ON SUIT FOR VIOLATION OF SECTION
9-22 11.081. An action to collect the penalty provided by Section 7.102
9-23 for a violation of Section 11.081 must be brought within two years
9-24 from the date of the alleged violation.
9-25 SECTION 13. Section 7.351, Water Code, is amended to read as
9-26 follows:
10-1 Sec. 7.351. CIVIL SUITS. If it appears that a violation or
10-2 threat of violation of Chapter 16, 26, 28, or 34 of this code or
10-3 Chapter 341, 361, 371, 372, or 382, Health and Safety Code, or a
10-4 provision of Chapter 401, Health and Safety Code, under the
10-5 commission's jurisdiction or a rule adopted or an order or a permit
10-6 issued under those chapters or provisions has occurred or is
10-7 occurring in the jurisdiction of a local government, the local
10-8 government or, in the case of a violation of Chapter 401, Health
10-9 and Safety Code, a person affected as defined in that chapter, may
10-10 institute a civil suit under Subchapter D in the same manner as the
10-11 commission in a district court by its own attorney for the
10-12 injunctive relief or civil penalty, or both, as authorized by this
10-13 chapter against the person who committed, is committing, or is
10-14 threatening to commit the violation.
10-15 SECTION 14. Section 11.0843, Water Code, is amended to read
10-16 as follows:
10-17 Sec. 11.0843. FIELD CITATION. [(a)] Upon witnessing a
10-18 violation of this chapter or a rule or order or a water right
10-19 issued under this chapter, a watermaster or the watermaster's
10-20 deputy, as defined by commission rule, may issue the alleged
10-21 violator a field citation alleging that a violation has occurred
10-22 [and providing the alleged violator the option of either:]
10-23 [(1) without admitting to or denying the alleged
10-24 violation, paying an administrative penalty in accordance with the
10-25 predetermined penalty amount established under Subsection (b) of
10-26 this section and taking remedial action as provided in the
11-1 citation; or]
11-2 [(2) requesting a hearing on the alleged violation in
11-3 accordance with Section 11.0842 of this code.]
11-4 [(b) By rule the commission shall establish penalty amounts
11-5 corresponding to types of violations of this chapter or rules or
11-6 orders adopted or water rights issued under this chapter.]
11-7 [(c) A penalty collected under this section shall be
11-8 deposited in the state treasury to the credit of the general
11-9 revenue fund].
11-10 SECTION 15. Section 11.085, Water Code, is amended by adding
11-11 Subsection (w) to read as follows:
11-12 (w) The requirements of this section apply to the transfer
11-13 of water from one river basin to another regardless of whether all
11-14 or any part of the water right, permit, certified filing, or
11-15 certificate of adjudication under which the water is authorized to
11-16 be used is also transferred.
11-17 SECTION 16. Subsection (a), Section 11.138, Water Code, is
11-18 amended to read as follows:
11-19 (a) The commission may issue temporary permits for
11-20 beneficial purposes to the extent that they do not interfere with
11-21 or adversely affect prior appropriations or vested rights on the
11-22 stream from which water is to be diverted under such temporary
11-23 permit. The commission may, by appropriate order, authorize any
11-24 member of the commission to approve and issue temporary permits
11-25 without notice and hearing if it appears to such issuing party that
11-26 sufficient water is available at the proposed point of diversion to
12-1 satisfy the requirements of the temporary permit as well as all
12-2 existing rights. No temporary permit issued without notice and
12-3 hearing shall authorize more than 10 acre-feet of water, nor may it
12-4 be for a term in excess of one year. The commission by rule may
12-5 authorize the beneficial use, without a permit, of not more than 25
12-6 acre-feet of water, for a term not to exceed one year, if the
12-7 diversion of water will not affect existing water right holders and
12-8 the user of the water registers the use with the commission in the
12-9 manner required by the commission.
12-10 SECTION 17. Section 11.139, Water Code, is amended to read
12-11 as follows:
12-12 Sec. 11.139. Emergency Authorizations. [(a)] Except as
12-13 provided by Section 5.506 [11.148] of this code, the commission may
12-14 grant an emergency permit, order, or amendment to an existing
12-15 permit, certified filing, or certificate of adjudication under
12-16 Subchapter L, Chapter 5 [after notice to the governor for an
12-17 initial period of not more than 120 days if the commission finds
12-18 that emergency conditions exist which present an imminent threat to
12-19 the public health and safety and which override the necessity to
12-20 comply with established statutory procedures and there are no
12-21 feasible practicable alternatives to the emergency authorization.
12-22 Such emergency action may be renewed once for not longer than 60
12-23 days].
12-24 [(b) A person desiring to obtain an emergency authorization
12-25 under this section shall submit to the commission a sworn
12-26 application containing the following information:]
13-1 [(1) a description of the condition of emergency
13-2 justifying the granting of the emergency authorization;]
13-3 [(2) a statement setting forth facts which support the
13-4 findings required under this section;]
13-5 [(3) an estimate of the dates on which the proposed
13-6 authorization should begin and end;]
13-7 [(4) a description of the action sought and the
13-8 activity proposed to be allowed, mandated, or prohibited; and]
13-9 [(5) any other statements or information required by
13-10 the commission.]
13-11 [(c) If the commission finds the applicant's statement made
13-12 under Subsection (b) of this section to be correct, the commission
13-13 may grant emergency authorizations under this section without
13-14 notice and hearing or with such notice and hearing as the
13-15 commission considers practicable under the circumstances.]
13-16 [(d) If the commission grants an emergency authorization
13-17 under this section without a hearing, the authorization shall fix a
13-18 time and place for a hearing to be held before the commission. The
13-19 hearing shall be held as soon after the emergency authorization is
13-20 granted as is practicable but not later than 20 days after the
13-21 emergency authorization is granted.]
13-22 [(e) At the hearing, the commission shall affirm, modify, or
13-23 set aside the emergency authorization. Any hearing on an emergency
13-24 authorization shall be conducted in accordance with Chapter 2001,
13-25 Government Code, and rules of the commission.]
13-26 [(f) If an imminent threat to the public health and safety
14-1 exists which requires emergency action before the commission can
14-2 take action as provided by Subsections (a) through (c) of this
14-3 section and there are no feasible alternatives, the executive
14-4 director may grant an emergency authorization after notice to the
14-5 governor. If the executive director issues an emergency
14-6 authorization under this subsection, the commission shall hold a
14-7 hearing as provided for in Subsections (d) and (e) of this section.
14-8 The requirements of Subsection (b) of this section shall be
14-9 satisfied by the applicant before action is taken by the executive
14-10 director on the request for emergency authorization.]
14-11 [(g) The requirements of Section 11.132 of this code
14-12 relating to the time for notice, newspaper notice, and method of
14-13 giving a person notice do not apply to a hearing held on an
14-14 application for an emergency authorization under this section, but
14-15 such general notice of the hearing shall be given as the
14-16 commission, under Subsections (c) and (e) of this section,
14-17 considers practicable under the circumstances.]
14-18 [(h) The commission may grant an emergency authorization
14-19 under this section for the temporary transfer and use of all or
14-20 part of a permit, certified filing, or certificate of adjudication
14-21 for other than domestic or municipal use to a retail or wholesale
14-22 water supplier for public health and safety purposes. In addition
14-23 to the requirements contained in Subsection (b) of this section,
14-24 the commission may direct that the applicant will timely pay the
14-25 amounts for which the applicant may be potentially liable under
14-26 Subsection (j) of this section and to the extent authorized by law
15-1 will fully indemnify and hold harmless the state, the executive
15-2 director, and the commission from any and all liability for the
15-3 authorization sought. The commission may order bond or other
15-4 surety in a form acceptable to the commission as a condition for
15-5 such emergency authorization. The commission may not grant an
15-6 emergency authorization under this section which would cause a
15-7 violation of a federal regulation.]
15-8 [(i) In transferring the amount of water requested by the
15-9 applicant, the executive director or the commission shall allocate
15-10 the requested amount among two or more permits, certified filings,
15-11 or certificates of adjudication for other than domestic or
15-12 municipal use.]
15-13 [(j) The person granted an emergency authorization under
15-14 Subsection (h) of this section is liable to the owner and the
15-15 owner's agent or lessee from whom the use is transferred for the
15-16 fair market value of the water transferred as well as for any
15-17 damages caused by the transfer of use. If, within 60 days of the
15-18 termination of the authorization, the parties do not agree on the
15-19 amount due, or if full payment is not made, either party may file a
15-20 complaint with the commission to determine the amount due. The
15-21 commission may use dispute resolution procedures for a complaint
15-22 filed under this subsection. After exhausting all administrative
15-23 remedies under this subsection, an owner from whom the use is
15-24 transferred may file suit to recover or determine the amount due in
15-25 a district court in the county where the owner resides or has its
15-26 headquarters. The prevailing party in a suit filed under this
16-1 subsection is entitled to recover court costs and reasonable
16-2 attorney's fees.]
16-3 [(k) The commission may prescribe rules and adopt fees which
16-4 are necessary to carry out the provisions of this section.]
16-5 [(l) An emergency authorization does not vest in the grantee
16-6 any right to the diversion, impoundment, or use of water and shall
16-7 expire and be cancelled in accordance with its terms.]
16-8 SECTION 18. Subsection (a), Section 11.142, Water Code, is
16-9 amended to read as follows:
16-10 (a) Without obtaining a permit, a person may construct on
16-11 his own property a dam or reservoir with normal storage of not more
16-12 than 200 acre-feet of water for domestic and livestock purposes.
16-13 Normal storage may involve the temporary storage of greater than
16-14 200 acre-feet if the owner of the structure maintains records which
16-15 can demonstrate that throughout a 12-month period an average of not
16-16 more than 200 acre-feet of water is impounded in such a structure.
16-17 SECTION 19. Subsection (b), Section 11.173, Water Code, is
16-18 amended to read as follows:
16-19 (b) A permit, certified filing, or certificate of
16-20 adjudication or a portion of a permit, certified filing, or
16-21 certificate of adjudication is exempt from cancellation under
16-22 Subsection (a) of this section:
16-23 (1) to the extent of the owner's participation in the
16-24 Conservation Reserve Program authorized by the Food Security Act,
16-25 Pub.L. No. 99-198, Secs. 1231-1236, 99 Stat. 1354, 1509-1514 (1985)
16-26 or a similar governmental program; [or]
17-1 (2) if any portion of the water authorized to be used
17-2 pursuant to a permit, certified filing, or certificate of
17-3 adjudication has been used in accordance with a regional water plan
17-4 approved pursuant to Section 16.053 of this code;
17-5 (3) if the permit, certified filing, or certificate of
17-6 adjudication was obtained to meet demonstrated long-term public
17-7 water supply or electric generation needs as evidenced by a water
17-8 management plan developed by the holder and consistent with
17-9 projections of future water needs contained in the state water
17-10 plan; or
17-11 (4) if the permit, certified filing, or certificate of
17-12 adjudication was obtained as the result of the construction of a
17-13 reservoir funded, in whole or in part, by the holder of the permit,
17-14 certified filing, or certificate of adjudication as part of the
17-15 holder's long-term water planning.
17-16 SECTION 20. Subsection (b), Section 11.177, Water Code, is
17-17 amended to read as follows:
17-18 (b) In determining what constitutes reasonable diligence or
17-19 a justified nonuse as used in Subsection (a)(2) of this section,
17-20 the commission shall give consideration to:
17-21 (1) whether sufficient water is available in the
17-22 source of supply to meet all or part of the appropriation during
17-23 the 10-year period of nonuse;
17-24 (2) whether the nonuse is justified by the holder's
17-25 participation in the federal Conservation Reserve Program or a
17-26 similar governmental program as provided by Section 11.173(b)(1) of
18-1 this code;
18-2 (3) [whether the permit, certified filing, or
18-3 certificate of adjudication was obtained to meet demonstrated
18-4 long-term public water supply or electric generation needs as
18-5 evidenced by a water management plan developed by the holder and
18-6 consistent with projections of future water needs contained in the
18-7 state water plan;]
18-8 [(4) whether the permit, certified filing, or
18-9 certificate of adjudication was obtained as the result of the
18-10 construction of a reservoir funded, in whole or in part, by the
18-11 holder of the permit, certified filing, or certificate of
18-12 adjudication as part of the holder's long-term water planning;]
18-13 [(5)] whether the existing or proposed authorized
18-14 purpose and place of use are consistent with an approved regional
18-15 water plan as provided by Section 16.053 of this code;
18-16 (4) [(6)] whether the permit, certified filing, or
18-17 certificate of adjudication has been deposited into the Texas Water
18-18 Bank as provided by Sections 15.7031 and 15.704 of this code or
18-19 whether it can be shown that the water right or water available
18-20 under the right is currently being made available for purchase
18-21 through private marketing efforts; or
18-22 (5) [(7)] whether the permit, certified filing, or
18-23 certificate of adjudication has been reserved to provide for
18-24 instream flows or bay and estuary inflows.
18-25 SECTION 21. Subsections (c), (d), (e), and (f), Section
18-26 12.052, Water Code, are amended to read as follows:
19-1 (c) The [If the] owner of a dam that is required to be
19-2 constructed, reconstructed, repaired, or removed in order to comply
19-3 with the rules and orders promulgated under Subsection (a) of this
19-4 section may not wilfully fail [fails] or refuse [refuses] to comply
19-5 within the 30-day period following the date of the commission's
19-6 final, nonappealable order to do so and may not [or if a person]
19-7 wilfully fail [fails] to comply with any rule or other order issued
19-8 by the commission under this section within the 30-day period
19-9 following the effective date of the order[, he is liable to a
19-10 penalty of not more than $5,000 a day for each day he continues to
19-11 violate this section. The state may recover the penalty by suit
19-12 brought for that purpose in the district court of Travis County].
19-13 (d) The commission may issue an emergency works safety order
19-14 under Section 5.519. [If the commission determines that the
19-15 existing condition of the dam is creating or will cause extensive
19-16 or severe property damage or economic loss to others or is posing
19-17 an immediate and serious threat to human life or health and that
19-18 other procedures available to the commission to remedy or prevent
19-19 the occurrence of the situation will result in unreasonable delay,
19-20 the commission may issue an emergency order, either mandatory or
19-21 prohibitory in nature, directing the owner of a dam to repair,
19-22 modify, maintain, dewater, or remove the dam which the commission
19-23 determines is unsafe. The emergency order may be issued without
19-24 notice to the dam owner or with notice the commission considers
19-25 practicable under the circumstances. The notice does not have to
19-26 comply with Chapter 2001, Government Code.]
20-1 (e) [If the commission issues an emergency order under
20-2 authority of this section without notice to the dam owner, the
20-3 commission shall fix a time and place for a hearing which shall be
20-4 held as soon as practicable to affirm, modify, or set aside the
20-5 emergency order. The notice does not have to comply with Chapter
20-6 2001, Government Code. If the nature of the commission's action
20-7 requires further proceedings, those proceedings shall be conducted
20-8 as appropriate under the Administrative Procedure and Texas
20-9 Register Act, as amended (Article 6252-13a, Vernon's Texas Civil
20-10 Statutes).]
20-11 [(f)] Nothing in this section or in rules or orders made by
20-12 the commission shall be construed to relieve an owner or operator
20-13 of a dam or reservoir of the legal duties, obligations, or
20-14 liabilities incident to ownership or operation.
20-15 SECTION 22. Chapter 7, Water Code, is amended by adding
20-16 Subchapter I, and Sections 13.412, 13.4131, and 13.4132, Water
20-17 Code, are transferred to Subchapter I, Chapter 7, Water Code,
20-18 redesignated as Sections 7.402, 7.403, and 7.404, and amended to
20-19 read as follows:
20-20 SUBCHAPTER I. RECEIVERSHIP; SUPERVISION OF CERTAIN UTILITIES
20-21 Sec. 7.401. DEFINITIONS. In this subchapter, "affiliated
20-22 interest" and "affiliate" have the meanings assigned by Section
20-23 13.002.
20-24 Sec. 7.402 [13.412]. Receivership. (a) At the request of
20-25 the commission, the attorney general shall bring suit for the
20-26 appointment of a receiver to collect the assets and carry on the
21-1 business of a water or sewer utility that:
21-2 (1) has abandoned operation of its facilities;
21-3 (2) informs the commission that the owner is
21-4 abandoning the system;
21-5 (3) violates a final order of the commission; or
21-6 (4) allows any property owned or controlled by it to
21-7 be used in violation of a final order of the commission.
21-8 (b) The court shall appoint a receiver if an appointment is
21-9 necessary:
21-10 (1) to guarantee the collection of assessments, fees,
21-11 penalties, or interest;
21-12 (2) to guarantee continuous and adequate service to
21-13 the customers of the utility; or
21-14 (3) to prevent continued or repeated violation of the
21-15 final order.
21-16 (c) The receiver shall execute a bond to assure the proper
21-17 performance of the receiver's duties in an amount to be set by the
21-18 court.
21-19 (d) After appointment and execution of bond, the receiver
21-20 shall take possession of the assets of the utility specified by the
21-21 court. Until discharged by the court, the receiver shall perform
21-22 the duties that the court directs to preserve the assets and carry
21-23 on the business of the utility and shall strictly observe the final
21-24 order involved.
21-25 (e) On a showing of good cause by the utility, the court may
21-26 dissolve the receivership and order the assets and control of the
22-1 business returned to the utility.
22-2 (f) For purposes of this section and Section 7.404
22-3 [13.4132], abandonment may include but is not limited to:
22-4 (1) failure to pay a bill or obligation owed to a
22-5 retail public utility or to an electric or gas utility with the
22-6 result that the utility service provider has issued a notice of
22-7 discontinuance of necessary services;
22-8 (2) failure to provide appropriate water or wastewater
22-9 treatment so that a potential health hazard results;
22-10 (3) failure to adequately maintain facilities,
22-11 resulting in potential health hazards, extended outages, or
22-12 repeated service interruptions;
22-13 (4) failure to provide customers adequate notice of a
22-14 health hazard or potential health hazard;
22-15 (5) failure to secure an alternative available water
22-16 supply during an outage;
22-17 (6) displaying a pattern of hostility toward or
22-18 repeatedly failing to respond to the commission or the utility's
22-19 customers; and
22-20 (7) failure to provide the commission with adequate
22-21 information on how to contact the utility for normal business and
22-22 emergency purposes.
22-23 (g) Notwithstanding Section 64.021, Civil Practice and
22-24 Remedies Code, a receiver appointed under this section may seek
22-25 commission approval to acquire the water or sewer utility's
22-26 facilities and transfer the utility's certificate of convenience
23-1 and necessity. The receiver must apply in accordance with
23-2 Subchapter H, Chapter 13.
23-3 Sec. 7.403 [13.4131]. Supervision of Certain Utilities.
23-4 (a) The commission, after providing to the utility notice and an
23-5 opportunity for a hearing, may place a utility under supervision
23-6 for gross or continuing mismanagement, gross or continuing
23-7 noncompliance with Chapter 13 [this chapter] or commission rules,
23-8 or noncompliance with commission orders.
23-9 (b) While supervising a utility, the commission may require
23-10 the utility to:
23-11 (1) meet [abide by] conditions and requirements
23-12 prescribed by the commission, including:
23-13 (A) [(1)] management requirements;
23-14 (B) [(2)] additional reporting requirements;
23-15 (C) [(3)] restrictions on hiring, salary or
23-16 benefit increases, capital investment, borrowing, stock issuance or
23-17 dividend declarations, and liquidation of assets; and
23-18 (D) [(4)] a requirement that the utility place
23-19 the utility's funds into an account in a financial institution
23-20 approved by the commission and use of those funds shall be
23-21 restricted to reasonable and necessary utility expenses; and[.]
23-22 (2) [(c) While supervising a utility, the commission
23-23 may require that the utility] obtain commission approval before
23-24 taking an [any] action [that may be] restricted under Subdivision
23-25 (1) [Subsection (b)] of this section.
23-26 (c) An [Any] action or transaction for which commission
24-1 approval is required by this section that [which] occurs without
24-2 commission approval may be voided by the commission.
24-3 Sec. 7.404 [13.4132]. Operation of Utility That Discontinues
24-4 Operation or is Referred for Appointment of Receiver. (a) The
24-5 commission, after providing to the utility notice and an
24-6 opportunity to be heard by the commissioners at a commission
24-7 meeting, may authorize a willing person to temporarily manage and
24-8 operate a utility if the utility:
24-9 (1) has discontinued or abandoned operations or the
24-10 provision of services; or
24-11 (2) has been or is being referred to the attorney
24-12 general for the appointment of a receiver under Section 7.402
24-13 [13.412].
24-14 (b) The commission may appoint a person under this section
24-15 by emergency order under Section 5.507 and may authorize an
24-16 emergency rate increase by emergency order under Section 5.508[,
24-17 and notice of the action is adequate if the notice is mailed or
24-18 hand-delivered to the last known address of the utility's
24-19 headquarters].
24-20 (c) A person appointed under this section has the powers and
24-21 duties necessary to ensure the continued operation of the utility
24-22 and the provision of continuous and adequate services to customers,
24-23 including the power and duty to:
24-24 (1) read meters;
24-25 (2) bill for utility services;
24-26 (3) collect revenues;
25-1 (4) disburse funds;
25-2 (5) access all system components; and
25-3 (6) request rate increases.
25-4 (d) This section does not affect the authority of the
25-5 commission to pursue an enforcement claim against a utility or an
25-6 affiliated interest.
25-7 SECTION 23. Section 13.414, Water Code, is amended to read
25-8 as follows:
25-9 Sec. 13.414. VIOLATION BY [PENALTY AGAINST] RETAIL PUBLIC
25-10 UTILITY OR AFFILIATED INTEREST. A [(a) Any] retail public utility
25-11 or affiliated interest may not violate [that violates] this
25-12 chapter, fail [fails] to perform a duty imposed on it, or fail,
25-13 neglect, [fails, neglects,] or refuse [refuses] to obey an order,
25-14 rule, direction, or requirement of the commission or decree or
25-15 judgment of a court [is subject to a civil penalty of not less than
25-16 $100 nor more than $5,000 for each violation].
25-17 [(b) A retail public utility or affiliated interest commits
25-18 a separate violation each day it continues to violate Subsection
25-19 (a) of this section.]
25-20 [(c) The attorney general shall institute suit on his own
25-21 initiative or at the request of, in the name of, and on behalf of
25-22 the commission in a court of competent jurisdiction to recover the
25-23 penalty under this section.]
25-24 SECTION 24. Subsections (b), (c), and (d), Section 35.008,
25-25 Water Code, are amended to read as follows:
25-26 (b) The commission shall call a public comment [an
26-1 evidentiary] hearing to consider:
26-2 (1) the designation of a priority groundwater
26-3 management area;
26-4 (2) whether a district should be created over all or
26-5 part of a priority groundwater management area; or
26-6 (3) whether all or part of the land in the priority
26-7 groundwater management area should be added to an existing
26-8 district.
26-9 (c) Public comment [Evidentiary] hearings shall be held at a
26-10 location in one of the counties in which the priority groundwater
26-11 management area is located, or proposed to be located, or in the
26-12 nearest convenient location if adequate facilities are not
26-13 available in those counties.
26-14 (d) At the public comment hearing, the commission shall hear
26-15 testimony and receive evidence from affected persons. The
26-16 commission shall consider the executive director's report and
26-17 supporting information and the testimony and evidence received at
26-18 the public comment hearing. If the commission considers further
26-19 information necessary, the commission may request such information
26-20 from any source.
26-21 SECTION 25. Section 35.009, Water Code, is amended to read
26-22 as follows:
26-23 Sec. 35.009. NOTICE AND PUBLIC COMMENT HEARING. (a) The
26-24 commission shall have notice of the public comment hearing
26-25 published in at least one newspaper with general circulation in the
26-26 county or counties in which the area proposed for designation as a
27-1 priority groundwater management area or the area within a priority
27-2 groundwater management area being considered for district creation
27-3 or for addition to an existing district is located. Notice must be
27-4 published not later than the 30th day before the date set for the
27-5 commission to consider the designation of the priority groundwater
27-6 management area, the creation of a district in a priority
27-7 groundwater management area, or the addition of land in a priority
27-8 groundwater management area to an existing district.
27-9 (b) The notice must include:
27-10 (1) if applicable, a statement of the general purpose
27-11 and effect of designating the proposed priority groundwater
27-12 management area;
27-13 (2) if applicable, a statement of the general purpose
27-14 and effect of creating a district in the priority groundwater
27-15 management area;
27-16 (3) if applicable, a statement of the general purpose
27-17 and effect of adding all or part of the land in the priority
27-18 groundwater management area to an existing district;
27-19 (4) a map generally outlining the boundaries of the
27-20 area being considered for priority groundwater management area
27-21 designation or the priority groundwater management area being
27-22 considered for district creation or for addition to an existing
27-23 district, or notice of the location at which a copy of the map may
27-24 be examined or obtained;
27-25 (5) a statement that the executive director's report
27-26 concerning the priority groundwater management area or proposed
28-1 area is available at the commission's main office in Austin, Texas,
28-2 and at regional offices of the commission for regions which include
28-3 territory within the priority groundwater management area or
28-4 proposed priority groundwater management area and that the report
28-5 is available for inspection during regular business hours;
28-6 (6) a description or the name of the locations in the
28-7 affected area at which the commission has provided copies of the
28-8 executive director's report to be made available for public
28-9 inspection;
28-10 (7) the name and address of each public library, each
28-11 county clerk's office, and each district to which the commission
28-12 has provided copies of the executive director's report; and
28-13 (8) the date, time, and place of the public comment
28-14 hearing.
28-15 (c) The commission shall also give written notice of the
28-16 date, time, place, and purpose of the public comment hearing to the
28-17 governing body of each county, regional water planning group,
28-18 adjacent groundwater district, municipality, river authority, water
28-19 district, or other entity which supplies public drinking water,
28-20 including each holder of a certificate of convenience and necessity
28-21 issued by the commission, and of each irrigation district, located
28-22 either in whole or in part in the priority groundwater management
28-23 area or proposed priority groundwater management area. The notice
28-24 must be given before the 30th day preceding the date set for the
28-25 public comment hearing.
28-26 SECTION 26. Subsection (a), Section 35.012, Water Code, is
29-1 amended to read as follows:
29-2 (a) At the conclusion of its public comment hearing and
29-3 considerations, the commission shall issue an order stating its
29-4 findings and conclusions.
29-5 SECTION 27. Chapter 35, Water Code, is amended by adding
29-6 Section 35.010 to read as follows:
29-7 Sec. 35.010. CREATION OF DISTRICTS ON PETITION AFTER
29-8 DESIGNATION OF PRIORITY GROUNDWATER MANAGEMENT AREA. The
29-9 commission may not consider the creation of a groundwater
29-10 conservation district in a designated priority groundwater
29-11 management area before the conclusion of the next regular session
29-12 of the Texas Legislature following the designation unless the local
29-13 landowners have initiated a petition process under Chapter 36 for
29-14 the creation of a groundwater conservation district with a priority
29-15 groundwater management area.
29-16 SECTION 28. Section 35.012, Water Code, is amended by adding
29-17 new Subsections (c) and (d), relettering existing Subsections (c),
29-18 (d), (e), and (f) as Subsections (e), (f), (g), and (h), and
29-19 amending existing Subsection (d) to read as follows:
29-20 (c) Not later than the 10th day after the date on which the
29-21 commission order designating a priority groundwater management area
29-22 is issued, the commission shall send written notice of the
29-23 commission's actions to each landowner in the designated priority
29-24 groundwater management area at the landowner's most recent known
29-25 address as shown in the tax rolls of the county in which the land
29-26 is located. The notice must include the commission's findings and
30-1 conclusions from the data and information considered in designating
30-2 the priority groundwater management area and the commission's
30-3 recommendation regarding the need for a groundwater conservation
30-4 district in the priority groundwater management area.
30-5 (d) As soon as possible after a commission order designating
30-6 a priority groundwater management area, the Texas Agricultural
30-7 Extension Service shall begin an educational program within the
30-8 area with the assistance and cooperation of the Texas Water
30-9 Development Board, the commission, the Department of Agriculture,
30-10 other state agencies, and existing districts to inform the
30-11 residents of the status of the area's water resources and
30-12 management options including possible formation of a district.
30-13 (e) Following the issuance of a commission order under
30-14 Subsection (b), the landowners in the priority groundwater
30-15 management area may:
30-16 (1) create one or more districts under Subchapter B,
30-17 Chapter 36;
30-18 (2) have the area annexed to a district that adjoins
30-19 the area; or
30-20 (3) create one or more districts through the
30-21 legislative process.
30-22 (f) [(d)] The commission shall identify the areas subject to
30-23 the order of the commission issued under Subsection (b) that have
30-24 not been incorporated into a district and shall delineate proposed
30-25 boundaries of a district to include those areas. [If the
30-26 commission proposes the creation of one or more districts, the
31-1 Texas Agricultural Extension Service shall begin an educational
31-2 program within such areas with the assistance and cooperation of
31-3 the Texas Water Development Board, the commission, other state
31-4 agencies, and existing districts to inform the residents of the
31-5 status of the area's water resources and management options
31-6 including possible formation of a district, before beginning the
31-7 procedures for creation of a district provided in Subchapter B,
31-8 Chapter 36.]
31-9 (g) [(e)] If the commission fails to find that the district
31-10 would be a benefit to the land and other property within the
31-11 priority groundwater management area, that there is a public need
31-12 for the district, or that creation of the district will further the
31-13 public welfare, the commission shall issue an order stating that a
31-14 district should not be created within the boundaries of the
31-15 priority groundwater management area.
31-16 (h) [(f)] An order of the commission issued under this
31-17 section may not be appealed.
31-18 SECTION 29. Section 36.014, Water Code, is amended to read
31-19 as follows:
31-20 Sec. 36.014. NOTICE AND HEARING ON DISTRICT CREATION.
31-21 [(a)] If a petition is filed under Section 36.013 or the
31-22 commission proposes that a district be created under Section
31-23 35.012(b), the commission shall give notice of the [an] application
31-24 or proposal as required by Section 49.011(a) and may conduct a
31-25 hearing on the application or proposal if the commission determines
31-26 that a hearing is necessary under Section 49.011.
32-1 [(b) If the petition contains a request to create a
32-2 management area in all or part of the proposed district, the notice
32-3 must also be given in accordance with the requirements in Section
32-4 35.006 for the designation of management areas.]
32-5 SECTION 30. Section 36.015, Water Code, is amended to read
32-6 as follows:
32-7 Sec. 36.015. FINDINGS. (a) If the commission finds that a
32-8 district requested by petition or proposed by the commission is
32-9 feasible and practicable, [that it] would be a benefit to the land
32-10 in the district, and [that it] would be a public benefit or
32-11 utility, the commission shall issue an order containing these
32-12 findings granting the petition or adopting the proposal, as
32-13 appropriate.
32-14 (b) If the commission finds that a district is not feasible
32-15 and practicable, that it would not be a benefit to the land in the
32-16 district, that it would not be a public benefit or utility, or that
32-17 it is not needed, the commission by order shall deny the petition
32-18 or reject the proposal, as appropriate.
32-19 (c) The commission may adjust the boundaries of the proposed
32-20 district to exclude any land that would not be benefited by
32-21 inclusion in the district and is not necessary to the district for
32-22 proper regulation of the groundwater reservoir.
32-23 (d) If the commission grants the petition or adopts the
32-24 proposal to create the district, it shall direct in its order
32-25 creating the district that an election be called by the temporary
32-26 directors to confirm the creation of the district and to elect
33-1 permanent directors.
33-2 (e) [The refusal to grant a petition to create a district
33-3 does not invalidate or affect the designation of any management
33-4 area requested in the same petition.]
33-5 [(f)] The commission shall act on the petition or its
33-6 proposal within a reasonable amount of time.
33-7 SECTION 31. Subchapter D, Chapter 36, Water Code, is amended
33-8 by adding Section 36.1074 to read as follows:
33-9 Sec. 36.1074. EXTENSION OF DISTRICT AUTHORITY TO ADDITIONAL
33-10 AQUIFERS WITHIN DISTRICT'S GEOGRAPHIC BOUNDARIES. (a) The
33-11 commission by rule shall establish a procedure by which a district
33-12 created by special law may petition to extend the district's
33-13 authority to include management of any aquifer within the
33-14 geographic boundaries of the district the management of which is
33-15 not provided for by the special law creating any district.
33-16 (b) Rules adopted by the commission under this section shall
33-17 establish grounds for a petition described by Subsection (a),
33-18 including:
33-19 (1) a change in pumping conditions;
33-20 (2) a change in water quality conditions;
33-21 (3) a finding that another aquifer is affecting water
33-22 levels in the primary managed aquifer; and
33-23 (4) other grounds the commission may specify.
33-24 (c) A petition under this section may be granted only by
33-25 order of the commission.
33-26 SECTION 32. Section 36.0151, Water Code, is amended to read
34-1 as follows:
34-2 Sec. 36.0151. NOTICE OF CREATION BY COMMISSION OF DISTRICT
34-3 FOR PRIORITY GROUNDWATER MANAGEMENT AREA. [(a) If the commission
34-4 proposes that a district be created under Section 35.012(d), it
34-5 shall in its order creating the district provide that temporary
34-6 directors be appointed under Section 36.016 and that an election be
34-7 called by the temporary directors to confirm the creation of the
34-8 district and to elect permanent directors.]
34-9 [(b)] The commission shall notify the county commissioners
34-10 court of each county with territory in the district of the
34-11 district's creation as soon as practicable after issuing the order
34-12 under Section 36.015(a) creating a [the] district proposed by the
34-13 commission under Section 35.012(b).
34-14 SECTION 33. Section 36.108, Water Code, is amended to read
34-15 as follows:
34-16 Sec. 36.108. Joint Planning in Management Area OR PRIORITY
34-17 GROUNDWATER MANAGEMENT AREA. (a) If two or more districts are
34-18 located within the boundaries of the same management area or
34-19 priority groundwater management area, each district shall prepare a
34-20 comprehensive management plan as required by Section 36.1071
34-21 covering that district's respective territory. On completion of
34-22 the plan, each district shall forward a copy of the new revised
34-23 management plan to the other districts in the management area or
34-24 priority groundwater management area.
34-25 (b) The board of directors of each district in the
34-26 management area or priority groundwater management area may, by
35-1 resolution, call a joint meeting with the boards of directors of
35-2 the other districts in the management area or priority groundwater
35-3 management area to review the management plans and accomplishments
35-4 for the management area or priority groundwater management area.
35-5 The boards shall meet to consider the plans individually and shall
35-6 compare them to other management plans then in force in the
35-7 management area. In reviewing the management plans, the boards
35-8 shall consider:
35-9 (1) the goals of each management plan and its impact
35-10 on planning throughout the management area or priority groundwater
35-11 management area;
35-12 (2) the effectiveness of the measures established by
35-13 each management plan for conserving and protecting groundwater and
35-14 preventing waste, and the effectiveness of these measures in the
35-15 management area or priority groundwater management area generally;
35-16 and
35-17 (3) any other matters that the boards consider
35-18 relevant to the protection and conservation of groundwater and the
35-19 prevention of waste in the management area or priority groundwater
35-20 management area.
35-21 (c) A joint meeting of the boards of directors must be held
35-22 in accordance with the Open Meetings Act, Chapter 551, Government
35-23 Code. Notice of the meeting shall be given in accordance with the
35-24 requirements for notice of district board of directors meetings
35-25 under that Act. In addition, notice of the meeting shall be
35-26 published not later than the 30th day before the date of the
36-1 scheduled meeting in a newspaper with general circulation in each
36-2 county in the management area or priority groundwater management
36-3 area.
36-4 (d) A district in the management area or priority
36-5 groundwater management area may file a petition with the commission
36-6 requesting an inquiry if the petitioner district believes that:
36-7 (1) another district in the management area or
36-8 priority groundwater management area has failed to adopt rules;
36-9 (2) the groundwater in the management area or priority
36-10 groundwater management area is not adequately protected by the
36-11 rules adopted by another district; or
36-12 (3) the groundwater in the management area or priority
36-13 groundwater management area is not adequately protected due to the
36-14 failure of another district to enforce substantial compliance with
36-15 its rules.
36-16 (e) Not later than the 90th day after the date the petition
36-17 is filed, the commission shall review the petition and either:
36-18 (1) dismiss it if it finds that the evidence is not
36-19 adequate to show that any of the conditions alleged in the petition
36-20 exist; or
36-21 (2) select a review panel as provided in Subsection
36-22 (f).
36-23 (f) The commission may appoint a review panel consisting of
36-24 a chairman and four other members. A director or general manager
36-25 of a district located outside the management area or priority
36-26 groundwater management area that is the subject of the petition may
37-1 be appointed to the review panel. The commission may not appoint
37-2 more than two members of the review panel from any one district.
37-3 The commission also shall appoint a disinterested person to serve
37-4 as a nonvoting recording secretary for the review panel. The
37-5 recording secretary may be an employee of the commission. The
37-6 recording secretary shall record and document the proceedings of
37-7 the panel.
37-8 (g) Not later than the 120th day after appointment, the
37-9 review panel shall review the petition and any evidence relevant to
37-10 the petition and, in a public meeting, prepare a report to the
37-11 commission. The commission may direct the review panel to conduct
37-12 public hearings at a location in the management area or priority
37-13 groundwater management area to take evidence on the petition. The
37-14 review panel may attempt to negotiate a settlement or resolve the
37-15 dispute by any lawful means.
37-16 (h) In its report, the review panel shall include:
37-17 (1) a summary of all evidence taken in any hearing on
37-18 the petition;
37-19 (2) a list of findings and recommended actions
37-20 appropriate for the commission to take and the reasons it finds
37-21 those actions appropriate; and
37-22 (3) any other information the panel considers
37-23 appropriate.
37-24 SECTION 34. Section 341.047, Health and Safety Code, is
37-25 transferred to Subchapter E, Chapter 7, Water Code, redesignated as
37-26 Section 7.1605, Water Code, and amended to read as follows:
38-1 Sec. 7.1605 [341.047]. VIOLATIONS RELATING TO PUBLIC
38-2 DRINKING WATER [CRIMINAL PENALTY]. (a) A person commits an
38-3 offense if the person:
38-4 (1) violates a provision of Section 341.031, Health
38-5 and Safety Code;
38-6 (2) violates a provision of Section 341.032(a) or (b),
38-7 Health and Safety Code;
38-8 (3) violates a provision of Section 341.033(a)-(f),
38-9 Health and Safety Code;
38-10 (4) constructs a drinking water supply system without
38-11 submitting completed plans and specifications as required by
38-12 Section 341.035(c), Health and Safety Code;
38-13 (5) begins construction of a drinking water supply
38-14 system without the commission's approval as required by Section
38-15 341.035(a), Health and Safety Code;
38-16 (6) violates a provision of Section 341.0351 or
38-17 341.0352, Health and Safety Code;
38-18 (7) fails to remove a sign as required by Section
38-19 341.0354, Health and Safety Code; or
38-20 (8) violates a provision of Section 341.036, Health
38-21 and Safety Code.
38-22 (b) An offense under Subsection (a) is a Class C
38-23 misdemeanor.
38-24 (c) If it is shown on a trial of the defendant that the
38-25 defendant has been convicted of an offense under Subsection (a)
38-26 within a year before the date on which the offense being tried
39-1 occurred, the subsequent offense under Subsection (a) is a Class B
39-2 misdemeanor.
39-3 (d) Each day of a continuing violation is a separate
39-4 offense.
39-5 SECTION 35. Section 341.048, Health and Safety Code, is
39-6 amended to read as follows:
39-7 Sec. 341.048. VIOLATION [CIVIL ENFORCEMENT]. [(a)] A
39-8 person may not cause, suffer, allow, or permit a violation of this
39-9 subchapter or a rule or order adopted under this subchapter.
39-10 [(b) A person who causes, suffers, allows, or permits a
39-11 violation under this subchapter shall be assessed a civil penalty
39-12 of not less than $50 nor more than $1,000 for each violation. Each
39-13 day of a continuing violation is a separate violation.]
39-14 [(c) If it appears that a person has violated, is violating,
39-15 or threatens to violate a provision under this subchapter, the
39-16 commission, a county, or a municipality may institute a civil suit
39-17 in a district court for:]
39-18 [(1) injunctive relief to restrain the person from
39-19 continuing the violation or threat of violation;]
39-20 [(2) the assessment and recovery of a civil penalty;
39-21 or]
39-22 [(3) both injunctive relief and a civil penalty.]
39-23 [(d) The commission is a necessary and indispensable party
39-24 in a suit brought by a county or municipality under this section.]
39-25 [(e) On the commission's request, the attorney general shall
39-26 institute a suit in the name of the state for injunctive relief, to
40-1 recover a civil penalty, or for both injunctive relief and civil
40-2 penalty.]
40-3 [(f) The suit may be brought in:]
40-4 [(1) Travis County;]
40-5 [(2) the county in which the defendant resides; or]
40-6 [(3) the county in which the violation or threat of
40-7 violation occurs.]
40-8 [(g) In a suit under this section to enjoin a violation or
40-9 threat of violation of this subchapter, the court shall grant the
40-10 state, county, or municipality, without bond or other undertaking,
40-11 any injunction that the facts may warrant including temporary
40-12 restraining orders, temporary injunctions after notice and hearing,
40-13 and permanent injunctions.]
40-14 [(h) Civil penalties recovered in a suit brought under this
40-15 section by a county or municipality shall be equally divided
40-16 between:]
40-17 [(1) the state; and]
40-18 [(2) the county or municipality that first brought the
40-19 suit.]
40-20 SECTION 36. Section 5.507, Water Code, is amended to read as
40-21 follows:
40-22 Sec. 5.507. Emergency Order for Operation of Utility That
40-23 Discontinues Operation or is Referred for Appointment of Receiver.
40-24 The commission may issue an emergency order appointing a willing
40-25 person to temporarily manage and operate a utility under Section
40-26 7.404 [13.4132]. Notice of the action is adequate if the notice is
41-1 mailed or hand delivered to the last known address of the utility's
41-2 headquarters.
41-3 SECTION 37. Subsection (a), Section 5.508, Water Code, is
41-4 amended to read as follows:
41-5 (a) Notwithstanding the requirements of Section 13.187, the
41-6 commission may authorize an emergency rate increase for a utility
41-7 for which a person has been appointed under Section 5.507 or 7.404
41-8 [13.412] or for which a receiver has been appointed under Section
41-9 7.402 [13.4132] if the increase is necessary to ensure the
41-10 provision of continuous and adequate services to the utility's
41-11 customers.
41-12 SECTION 38. Subsection (c), Section 341.0485, Health and
41-13 Safety Code, is amended to read as follows:
41-14 (c) The comptroller shall manage the account for the benefit
41-15 of the commission and shall invest the money and deposit interest
41-16 and other investment proceeds in the account. The comptroller
41-17 shall release money from the account in the manner provided by the
41-18 commission. Money in the account may be used only for:
41-19 (1) capital improvements to the water or sewer system
41-20 of a utility that has paid fines or penalties under this chapter or
41-21 under Chapter 13, Water Code, that have been deposited in the
41-22 account; or
41-23 (2) capital improvements and operating and maintenance
41-24 expenses for a utility placed in receivership or under a temporary
41-25 manager under Section 7.404 [13.4132], Water Code.
41-26 SECTION 39. (a) The following sections of the Water Code
42-1 are repealed:
42-2 (1) Section 11.082;
42-3 (2) Sections 11.0841 and 11.0842;
42-4 (3) Section 11.148;
42-5 (4) Section 13.411;
42-6 (5) Section 13.4133;
42-7 (6) Sections 13.4151 and 13.416;
42-8 (7) Sections 13.417 and 13.418; and
42-9 (8) Sections 35.004, 35.005, and 35.006.
42-10 (b) Sections 341.049 and 341.050, Health and Safety Code,
42-11 are repealed.
42-12 SECTION 40. This Act takes effect September 1, 1999.
42-13 SECTION 41. (a) The changes in law made by this Act apply
42-14 only to an offense committed or a violation or threat of violation
42-15 that occurs on or after September 1, 1999. For purposes of this
42-16 section an offense is committed and a violation or threat of
42-17 violation occurs before September 1, 1999, if any element of the
42-18 offense, violation, or threat of violation occurs before that date.
42-19 (b) An offense committed or a violation or threat of
42-20 violation that occurred before September 1, 1999, is covered by the
42-21 law in effect when the offense was committed or the violation or
42-22 threat of violation occurred, and the former law is continued in
42-23 effect for that purpose.
42-24 SECTION 42. The importance of this legislation and the
42-25 crowded condition of the calendars in both houses create an
42-26 emergency and an imperative public necessity that the
43-1 constitutional rule requiring bills to be read on three several
43-2 days in each house be suspended, and this rule is hereby suspended.