76R15770 E
By Brown S.B. No. 1311
Substitute the following for S.B. No. 1311:
By Lewis of Orange C.S.S.B. No. 1311
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the development and management of water resources and
1-3 the powers of the Texas Natural Resource Conservation Commission.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 5.102(a), Water Code, is amended to read
1-6 as follows:
1-7 (a) The commission has the powers to perform any acts
1-8 whether specifically authorized by this code or other law or
1-9 necessarily implied by this code or other law, in order [necessary
1-10 and convenient] to [the] exercise [of] its jurisdiction and powers
1-11 as provided by this code and other laws.
1-12 SECTION 2. Section 5.103, Water Code, is amended by adding
1-13 Subsection (d) to read as follows:
1-14 (d) In adopting a rule, the commission shall cite the
1-15 statute granting the specific regulatory authority to be exercised
1-16 under the proposed rule. Citation to this section or Section 5.013
1-17 does not fulfill the commission's obligation under this section.
1-18 SECTION 3. Section 5.504(a), Water Code, is amended to read
1-19 as follows:
1-20 (a) If the commission, the executive director, or the
1-21 executive director's representative issues an emergency order under
1-22 this subchapter without a hearing, the order shall set a time and
1-23 place for a hearing to affirm, modify, or set aside the emergency
2-1 order to be held before the commission or its designee as soon as
2-2 practicable after the order is issued. If the emergency order is
2-3 issued under Section 5.517 or 5.518, the order shall set a time for
2-4 the hearing not later than the 20th day after the date the
2-5 emergency order is issued.
2-6 SECTION 4. Section 5.507, Water Code, is amended to read as
2-7 follows:
2-8 Sec. 5.507. EMERGENCY ORDER FOR OPERATION OF UTILITY THAT
2-9 DISCONTINUES OPERATION OR IS REFERRED FOR APPOINTMENT OF RECEIVER.
2-10 The commission may issue an emergency order appointing a willing
2-11 person to temporarily manage and operate a utility under Section
2-12 7.404 [13.4132]. Notice of the action is adequate if the notice is
2-13 mailed or hand delivered to the last known address of the utility's
2-14 headquarters.
2-15 SECTION 5. Section 5.508(a), Water Code, is amended to read
2-16 as follows:
2-17 (a) Notwithstanding the requirements of Section 13.187, the
2-18 commission may authorize an emergency rate increase for a utility
2-19 for which a person has been appointed under Section 5.507 or 7.404
2-20 [13.412] or for which a receiver has been appointed under Section
2-21 7.402 [13.4132] if the increase is necessary to ensure the
2-22 provision of continuous and adequate services to the utility's
2-23 customers.
2-24 SECTION 6. Subchapter L, Chapter 5, Water Code, is amended
2-25 by adding Sections 5.517, 5.518, 5.519, and 5.520 to read as
2-26 follows:
2-27 Sec. 5.517. EMERGENCY PERMIT TO DIVERT AND USE WATER;
3-1 AMENDMENT TO WATER RIGHT. (a) Except as provided by Section 5.506
3-2 and after notification to the governor, the commission by emergency
3-3 order may issue a permit to divert and use water or amend an
3-4 existing permit, certified filing, or certificate of adjudication
3-5 for an initial period not to exceed 120 days if the commission
3-6 finds that:
3-7 (1) emergency conditions exist that present an
3-8 imminent threat to the public health and safety and that override
3-9 the necessity to comply with established statutory procedures; and
3-10 (2) there is no feasible practicable alternative to
3-11 the emergency authorization. The emergency authorization may be
3-12 renewed once for a period not to exceed 60 days.
3-13 (b) The executive director may issue an emergency order if
3-14 an imminent threat to the public health and safety exists that
3-15 requires emergency action before the commission can take action
3-16 under Subsection (a) and there is no feasible alternative. If the
3-17 executive director issues an emergency order under this subsection,
3-18 the commission shall hold a hearing as provided for in Section
3-19 5.504 as soon as practicable but not later than 20 days after
3-20 issuance of the order to affirm, modify, or set aside the order.
3-21 (c) The notice requirements of Section 11.132 relating to
3-22 the time for notice, newspaper notice, and method of giving a
3-23 person notice do not apply to a hearing held on an application for
3-24 an emergency order under this section. The commission shall give
3-25 the general notice of the hearing that the commission considers
3-26 practicable under the circumstances.
3-27 (d) The commission may adopt rules and impose fees necessary
4-1 to carry out the provisions of this section.
4-2 (e) An emergency order under this section does not vest in
4-3 the grantee any right to the diversion, impoundment, or use of
4-4 water and expires by its terms.
4-5 Sec. 5.518. EMERGENCY ORDER FOR TEMPORARY TRANSFER OF USE OF
4-6 WATER RIGHT. (a) The commission by emergency order may grant the
4-7 temporary transfer and use of all or part of a surface water right
4-8 for a use other than domestic or municipal to a retail or wholesale
4-9 water supplier for public health and safety purposes.
4-10 (b) The commission may direct the applicant to timely pay
4-11 the amounts for which the applicant may be potentially liable under
4-12 this section and to fully indemnify and hold harmless the state,
4-13 the executive director, and the commission from any and all
4-14 liability for the order sought. The commission may order bond or
4-15 other surety in a form acceptable to the commission as a condition
4-16 for an emergency order under this section. The commission may not
4-17 grant an emergency authorization under this section that would
4-18 cause a violation of a federal regulation.
4-19 (c) In transferring the amount of water requested by the
4-20 applicant, the executive director or the commission shall allocate
4-21 the requested amount among two or more permits, certified filings,
4-22 or certificates of adjudication for a use other than domestic,
4-23 municipal, or electric generation.
4-24 (d) A person granted an emergency order under this section
4-25 is liable to the owner from whom the use is transferred for the
4-26 fair market value of the water transferred and for any damages
4-27 proximately caused by the transfer of use. If, within 60 days of
5-1 the termination of the order, the parties do not agree on the
5-2 amount due, or if full payment is not made, either party may file a
5-3 complaint with the commission to determine the amount due.
5-4 (e) The commission by rule shall establish a dispute
5-5 resolution procedure for a complaint filed under this section.
5-6 After exhausting all administrative remedies under this section, an
5-7 owner from whom the use is transferred may file suit to recover or
5-8 determine the amount due in a district court in the county where
5-9 the owner resides or has its headquarters. The prevailing party in
5-10 a suit filed under this subsection is entitled to recover court
5-11 costs and reasonable attorney's fees.
5-12 Sec. 5.519. EMERGENCY WORKS SAFETY ORDER. The commission
5-13 may issue a mandatory or prohibitory emergency order directing the
5-14 owner of a dam, levee, or other water-storage or flood-control work
5-15 to repair, modify, maintain, dewater, or remove a work if the
5-16 commission finds that:
5-17 (1) the existing condition of the work is causing or
5-18 will cause extensive or severe property damage or economic loss to
5-19 others or is posing an immediate and serious threat to human life
5-20 or health; and
5-21 (2) other procedures available to the commission to
5-22 remedy or prevent the occurrence will result in unreasonable delay.
5-23 Sec. 5.520. EMERGENCY ORDER FOR OPERATION OF UTILITY THAT
5-24 DISCONTINUES OPERATION OR IS REFERRED FOR APPOINTMENT OF RECEIVER.
5-25 The commission may issue an emergency order appointing a willing
5-26 person to temporarily manage and operate a utility under Section
5-27 7.404. Notice of the action is adequate if the notice is mailed or
6-1 hand delivered to the last known address of the utility's
6-2 headquarters.
6-3 SECTION 7. Section 7.004, Water Code, is amended to read as
6-4 follows:
6-5 Sec. 7.004. REMEDIES CUMULATIVE. The remedies under this
6-6 chapter are cumulative of all other remedies. Nothing in this
6-7 chapter affects the right of a private corporation, [or]
6-8 individual, or political subdivision that has a justiciable
6-9 interest to pursue any available common law remedy to enforce a
6-10 right, to abate a condition of pollution or other nuisance, to
6-11 recover damages to enforce a right, or to prevent or seek redress
6-12 or compensation for the violation of a right or otherwise redress
6-13 an injury.
6-14 SECTION 8. Subchapter B, Chapter 7, Water Code, is amended
6-15 by adding Section 7.034 to read as follows:
6-16 Sec. 7.034. ATTORNEY'S FEES; COSTS. A district court may
6-17 award the costs of litigation, including reasonable attorney's fees
6-18 and expert costs, to any political subdivision of the state,
6-19 private corporation, or individual that is a water right holder and
6-20 that prevails in a suit for injunctive relief to redress an
6-21 unauthorized diversion, impoundment, or use of surface water in
6-22 violation of Chapter 11 or a rule adopted under Chapter 11.
6-23 SECTION 9. Section 7.051(b), Water Code, is amended to read
6-24 as follows:
6-25 (b) Except as provided by this subsection, this [This]
6-26 subchapter does not apply to violations of Chapter [11,] 12 or[,
6-27 13,] 16[, or 36 of this code, or Chapter 341, Health and Safety
7-1 Code]. This subchapter does apply to Section 16.236.
7-2 SECTION 10. Section 7.052, Water Code, is amended to read as
7-3 follows:
7-4 Sec. 7.052. MAXIMUM PENALTY. (a) The amount of the
7-5 penalty for a violation of Chapter 18, 32, 33, or 34 of this code
7-6 or Chapter 366, 371, or 372, Health and Safety Code, may not exceed
7-7 $2,500 a day for each violation.
7-8 (b) The amount of the penalty for a violation of Chapter 11,
7-9 a rule or order adopted under that chapter, or a permit, certified
7-10 filing, or certificate of adjudication issued under that chapter
7-11 may not exceed $5,000 a day for each violation.
7-12 (c) The penalty for a violation of a rule or order adopted
7-13 under Section 16.236 may not exceed $1,000 a day for each
7-14 violation.
7-15 (d) The amount of the penalty for a violation under Chapter
7-16 341, Health and Safety Code, may not be less than $50 or more than
7-17 $1,000 for each violation.
7-18 (e) The amount of the penalty for all other violations
7-19 within the jurisdiction of the commission to enforce may not exceed
7-20 $10,000 a day for each violation.
7-21 (f) [(c)] Each day that a continuing violation occurs may be
7-22 considered a separate violation. The commission may authorize an
7-23 installment payment schedule for an administrative penalty
7-24 assessed under this subchapter, except for an administrative
7-25 penalty assessed under Section 7.057 or assessed after a hearing
7-26 under Section 7.058.
7-27 SECTION 11. Section 7.054, Water Code, is amended to read as
8-1 follows:
8-2 Sec. 7.054. REPORT OF VIOLATION. (a) If, after examination
8-3 of a possible violation and the facts surrounding that possible
8-4 violation, the executive director concludes that a violation has
8-5 occurred, the executive director may issue a preliminary report in
8-6 accordance with commission rules that includes recommendations
8-7 regarding any penalty or corrective action.
8-8 (b) A report regarding a possible violation under Chapter 11
8-9 must state the facts on which the conclusion was based and
8-10 recommend the amount of any penalty. The executive director shall
8-11 base the recommended amount of the proposed penalty on the factors
8-12 provided by Section 7.053 and shall analyze each factor for the
8-13 benefit of the commission.
8-14 SECTION 12. Section 7.069, Water Code, is amended to read as
8-15 follows:
8-16 Sec. 7.069. DISPOSITION OF PENALTY. (a) Except as provided
8-17 by Subsection (b), a [A] penalty collected under this subchapter
8-18 shall be deposited to the credit of the general revenue fund.
8-19 (b) A penalty collected under this subchapter from a public
8-20 utility shall be paid to the commission and deposited in the water
8-21 utility improvement account as provided by Section 341.0485, Health
8-22 and Safety Code.
8-23 SECTION 13. Subchapter C, Chapter 7, Water Code, is amended
8-24 by adding Section 7.076 to read as follows:
8-25 Sec. 7.076. COMPROMISE, MODIFICATION, OR REMISSION OF
8-26 CERTAIN PENALTIES. Notwithstanding any other provision to the
8-27 contrary, the commission may compromise, modify, or remit, with or
9-1 without condition, any penalty imposed under this subchapter for a
9-2 violation under Chapter 11.
9-3 SECTION 14. Section 7.102, Water Code, is amended to read as
9-4 follows:
9-5 Sec. 7.102. MAXIMUM PENALTY. (a) A person who causes,
9-6 suffers, allows, or permits a violation of a statute, rule, order,
9-7 or permit relating to Chapter 11, 18, 32, 33, or 34 of this code or
9-8 Chapter 366, 371, or 372, Health and Safety Code, shall be assessed
9-9 for each violation a civil penalty not less than $50 nor greater
9-10 than $5,000 for each day of each violation as the court or jury
9-11 considers proper.
9-12 (b) The amount of a penalty for a violation of a rule or
9-13 order issued by the commission under Section 12.052 may not exceed
9-14 $5,000.
9-15 (c) A person who causes, suffers, allows, or permits a
9-16 violation of a statute, rule, order, or permit relating to Chapter
9-17 13 shall be assessed for each violation a civil penalty not less
9-18 than $100 nor greater than $5,000 for each day of each violation as
9-19 the court or jury considers proper.
9-20 (d) A person who causes, suffers, allows, or permits a
9-21 violation of a statute, rule, order, or permit relating to any
9-22 other matter within the commission's jurisdiction to enforce,
9-23 other than violations of Chapter [11,] 12 or[, 13,] 16[, or 36] of
9-24 this code, or Chapter 341, Health and Safety Code, shall be
9-25 assessed for each violation a civil penalty not less than $50 nor
9-26 greater than $25,000 for each day of each violation as the court or
9-27 jury considers proper.
10-1 (e) Each day of a continuing violation is a separate
10-2 violation.
10-3 SECTION 15. Sections 7.105(a) and (c), Water Code, are
10-4 amended to read as follows:
10-5 (a) On the request of the executive director or the
10-6 commission, the attorney general shall institute a suit in the name
10-7 of the state for injunctive relief under Section 7.032, to recover
10-8 a civil penalty, or for both injunctive relief and a civil penalty.
10-9 The attorney general may initiate a suit for recovery of a penalty
10-10 under this section for a violation under Section 13.414.
10-11 (c) Except as provided by this subsection, the [The] suit
10-12 may be brought in Travis County, in the county in which the
10-13 defendant resides, or in the county in which the violation or
10-14 threat of violation occurs. A suit to recover a penalty for a
10-15 violation of a rule or order issued by the commission under Section
10-16 12.052 may be brought in Travis County.
10-17 SECTION 16. Subchapter D, Chapter 7, Water Code, is amended
10-18 by adding Section 7.1075 to read as follows:
10-19 Sec. 7.1075. DISPOSITION OF PENALTY COLLECTED FROM PUBLIC
10-20 UTILITY. A penalty collected under this subchapter from a public
10-21 utility shall be paid to the commission and deposited in the water
10-22 utility improvement account as provided by Section 341.0485, Health
10-23 and Safety Code.
10-24 SECTION 17. Subchapter D, Chapter 7, Water Code, is amended
10-25 by adding Section 7.112 to read as follows:
10-26 Sec. 7.112. LIMITATION ON SUIT FOR VIOLATION OF SECTION
10-27 11.081. An action to collect the penalty provided by Section 7.102
11-1 for a violation of Section 11.081 must be brought within two years
11-2 from the date of the alleged violation.
11-3 SECTION 18. Section 7.351, Water Code, is amended to read as
11-4 follows:
11-5 Sec. 7.351. CIVIL SUITS. If it appears that a violation or
11-6 threat of violation of Chapter 16, 26, 28, or 34 of this code or
11-7 Chapter 341, 361, 371, 372, or 382, Health and Safety Code, or a
11-8 provision of Chapter 401, Health and Safety Code, under the
11-9 commission's jurisdiction or a rule adopted or an order or a permit
11-10 issued under those chapters or provisions has occurred or is
11-11 occurring in the jurisdiction of a local government, the local
11-12 government or, in the case of a violation of Chapter 401, Health
11-13 and Safety Code, a person affected as defined in that chapter, may
11-14 institute a civil suit under Subchapter D in the same manner as the
11-15 commission in a district court by its own attorney for the
11-16 injunctive relief or civil penalty, or both, as authorized by this
11-17 chapter against the person who committed, is committing, or is
11-18 threatening to commit the violation.
11-19 SECTION 19. Section 11.0843(a), Water Code, is amended to
11-20 read as follows:
11-21 (a) Upon witnessing a violation of this chapter or a rule or
11-22 order or a water right issued under this chapter, a watermaster or
11-23 the watermaster's deputy, as defined by commission rule, may issue
11-24 the alleged violator a field citation alleging that a violation has
11-25 occurred and providing the alleged violator the option of either:
11-26 (1) without admitting to or denying the alleged
11-27 violation, paying an administrative penalty in accordance with the
12-1 predetermined penalty amount established under Subsection (b) [of
12-2 this section] and taking remedial action as provided in the
12-3 citation; or
12-4 (2) requesting a hearing on the alleged violation in
12-5 accordance with Section 7.058 [11.0842 of this code].
12-6 SECTION 20. Section 11.085, Water Code, is amended by adding
12-7 Subsection (w) to read as follows:
12-8 (w) The requirements of this section apply to the transfer
12-9 of water from one river basin to another regardless of whether all
12-10 or any part of the water right, permit, certified filing, or
12-11 certificate of adjudication under which the water is authorized to
12-12 be used is also transferred.
12-13 SECTION 21. Section 11.134(c), Water Code, is amended to
12-14 read as follows:
12-15 (c) Beginning January 5, 2002 [September 1, 2001], the
12-16 commission may not issue a water right for municipal purposes in a
12-17 region that does not have an approved regional water plan in
12-18 accordance with Section 16.053(i) [of this code] unless the
12-19 commission determines that conditions warrant waiver of this
12-20 requirement.
12-21 SECTION 22. Section 11.138(a), Water Code, is amended to
12-22 read as follows:
12-23 (a) The commission may issue temporary permits for
12-24 beneficial purposes to the extent that they do not interfere with
12-25 or adversely affect prior appropriations or vested rights on the
12-26 stream from which water is to be diverted under such temporary
12-27 permit. The commission may, by appropriate order, authorize any
13-1 member of the commission to approve and issue temporary permits
13-2 without notice and hearing if it appears to such issuing party that
13-3 sufficient water is available at the proposed point of diversion to
13-4 satisfy the requirements of the temporary permit as well as all
13-5 existing rights. No temporary permit issued without notice and
13-6 hearing shall authorize more than 10 acre-feet of water, nor may it
13-7 be for a term in excess of one year. The commission by rule may
13-8 authorize the beneficial use, without a permit, of not more than 25
13-9 acre-feet of water, for a term not to exceed one year, if the
13-10 diversion of water will not affect existing water right holders and
13-11 the user of the water registers the use with the commission in the
13-12 manner required by the commission.
13-13 SECTION 23. Section 11.139, Water Code, is amended to read
13-14 as follows:
13-15 Sec. 11.139. EMERGENCY AUTHORIZATIONS. [(a)] Except as
13-16 provided by Section 5.506 [11.148 of this code], the commission may
13-17 grant an emergency permit, order, or amendment to an existing
13-18 permit, certified filing, or certificate of adjudication under
13-19 Subchapter L, Chapter 5 [after notice to the governor for an
13-20 initial period of not more than 120 days if the commission finds
13-21 that emergency conditions exist which present an imminent threat to
13-22 the public health and safety and which override the necessity to
13-23 comply with established statutory procedures and there are no
13-24 feasible practicable alternatives to the emergency authorization.
13-25 Such emergency action may be renewed once for not longer than 60
13-26 days].
13-27 [(b) A person desiring to obtain an emergency authorization
14-1 under this section shall submit to the commission a sworn
14-2 application containing the following information:]
14-3 [(1) a description of the condition of emergency
14-4 justifying the granting of the emergency authorization;]
14-5 [(2) a statement setting forth facts which support the
14-6 findings required under this section;]
14-7 [(3) an estimate of the dates on which the proposed
14-8 authorization should begin and end;]
14-9 [(4) a description of the action sought and the
14-10 activity proposed to be allowed, mandated, or prohibited; and]
14-11 [(5) any other statements or information required by
14-12 the commission.]
14-13 [(c) If the commission finds the applicant's statement made
14-14 under Subsection (b) of this section to be correct, the commission
14-15 may grant emergency authorizations under this section without
14-16 notice and hearing or with such notice and hearing as the
14-17 commission considers practicable under the circumstances.]
14-18 [(d) If the commission grants an emergency authorization
14-19 under this section without a hearing, the authorization shall fix a
14-20 time and place for a hearing to be held before the commission. The
14-21 hearing shall be held as soon after the emergency authorization is
14-22 granted as is practicable but not later than 20 days after the
14-23 emergency authorization is granted.]
14-24 [(e) At the hearing, the commission shall affirm, modify, or
14-25 set aside the emergency authorization. Any hearing on an emergency
14-26 authorization shall be conducted in accordance with Chapter 2001,
14-27 Government Code, and rules of the commission.]
15-1 [(f) If an imminent threat to the public health and safety
15-2 exists which requires emergency action before the commission can
15-3 take action as provided by Subsections (a) through (c) of this
15-4 section and there are no feasible alternatives, the executive
15-5 director may grant an emergency authorization after notice to the
15-6 governor. If the executive director issues an emergency
15-7 authorization under this subsection, the commission shall hold a
15-8 hearing as provided for in Subsections (d) and (e) of this section.
15-9 The requirements of Subsection (b) of this section shall be
15-10 satisfied by the applicant before action is taken by the executive
15-11 director on the request for emergency authorization.]
15-12 [(g) The requirements of Section 11.132 of this code
15-13 relating to the time for notice, newspaper notice, and method of
15-14 giving a person notice do not apply to a hearing held on an
15-15 application for an emergency authorization under this section, but
15-16 such general notice of the hearing shall be given as the
15-17 commission, under Subsections (c) and (e) of this section,
15-18 considers practicable under the circumstances.]
15-19 [(h) The commission may grant an emergency authorization
15-20 under this section for the temporary transfer and use of all or
15-21 part of a permit, certified filing, or certificate of adjudication
15-22 for other than domestic or municipal use to a retail or wholesale
15-23 water supplier for public health and safety purposes. In addition
15-24 to the requirements contained in Subsection (b) of this section,
15-25 the commission may direct that the applicant will timely pay the
15-26 amounts for which the applicant may be potentially liable under
15-27 Subsection (j) of this section and to the extent authorized by law
16-1 will fully indemnify and hold harmless the state, the executive
16-2 director, and the commission from any and all liability for the
16-3 authorization sought. The commission may order bond or other
16-4 surety in a form acceptable to the commission as a condition for
16-5 such emergency authorization. The commission may not grant an
16-6 emergency authorization under this section which would cause a
16-7 violation of a federal regulation.]
16-8 [(i) In transferring the amount of water requested by the
16-9 applicant, the executive director or the commission shall allocate
16-10 the requested amount among two or more permits, certified filings,
16-11 or certificates of adjudication for other than domestic or
16-12 municipal use.]
16-13 [(j) The person granted an emergency authorization under
16-14 Subsection (h) of this section is liable to the owner and the
16-15 owner's agent or lessee from whom the use is transferred for the
16-16 fair market value of the water transferred as well as for any
16-17 damages caused by the transfer of use. If, within 60 days of the
16-18 termination of the authorization, the parties do not agree on the
16-19 amount due, or if full payment is not made, either party may file a
16-20 complaint with the commission to determine the amount due. The
16-21 commission may use dispute resolution procedures for a complaint
16-22 filed under this subsection. After exhausting all administrative
16-23 remedies under this subsection, an owner from whom the use is
16-24 transferred may file suit to recover or determine the amount due in
16-25 a district court in the county where the owner resides or has its
16-26 headquarters. The prevailing party in a suit filed under this
16-27 subsection is entitled to recover court costs and reasonable
17-1 attorney's fees.]
17-2 [(k) The commission may prescribe rules and adopt fees which
17-3 are necessary to carry out the provisions of this section.]
17-4 [(l) An emergency authorization does not vest in the grantee
17-5 any right to the diversion, impoundment, or use of water and shall
17-6 expire and be cancelled in accordance with its terms.]
17-7 SECTION 24. Section 11.142(a), Water Code, is amended to
17-8 read as follows:
17-9 (a) Without obtaining a permit, a person may construct on
17-10 the person's [his] own property a dam or reservoir with normal
17-11 storage of not more than 200 acre-feet of water for domestic and
17-12 livestock purposes. A person who temporarily stores more than 200
17-13 acre-feet of water in a dam or reservoir described by this
17-14 subsection is not required to obtain a permit for the dam or
17-15 reservoir if the person can demonstrate that the person has not
17-16 stored in the dam or reservoir more than 200 acre-feet of water on
17-17 average in any 12-month period.
17-18 SECTION 25. Section 11.146, Water Code, is amended by adding
17-19 Subsection (g) to read as follows:
17-20 (g) This section does not apply to a permit that
17-21 contemplates construction of a reservoir designed for the storage
17-22 of more than 75,000 acre-feet of water.
17-23 SECTION 26. Section 11.173(b), Water Code, is amended to
17-24 read as follows:
17-25 (b) A permit, certified filing, or certificate of
17-26 adjudication or a portion of a permit, certified filing, or
17-27 certificate of adjudication is exempt from cancellation under
18-1 Subsection (a) of this section:
18-2 (1) to the extent of the owner's participation in the
18-3 Conservation Reserve Program authorized by the Food Security Act,
18-4 Pub.L. No. 99-198, Secs. 1231-1236, 99 Stat. 1354, 1509-1514 (1985)
18-5 or a similar governmental program; [or]
18-6 (2) if any portion of the water authorized to be used
18-7 pursuant to a permit, certified filing, or certificate of
18-8 adjudication has been used in accordance with a regional water plan
18-9 approved pursuant to Section 16.053 of this code;
18-10 (3) if the permit, certified filing, or certificate of
18-11 adjudication was obtained to meet demonstrated long-term public
18-12 water supply or electric generation needs as evidenced by a water
18-13 management plan developed by the holder and consistent with
18-14 projections of future water needs contained in the state water
18-15 plan; or
18-16 (4) if the permit, certified filing, or certificate of
18-17 adjudication was obtained as the result of the construction of a
18-18 reservoir funded, in whole or in part, by the holder of the
18-19 permit, certified filing, or certificate of adjudication as part of
18-20 the holder's long-term water planning.
18-21 SECTION 27. Section 11.177(b), Water Code, is amended to
18-22 read as follows:
18-23 (b) In determining what constitutes reasonable diligence or
18-24 a justified nonuse as used in Subsection (a)(2) of this section,
18-25 the commission shall give consideration to:
18-26 (1) whether sufficient water is available in the
18-27 source of supply to meet all or part of the appropriation during
19-1 the 10-year period of nonuse;
19-2 (2) whether the nonuse is justified by the holder's
19-3 participation in the federal Conservation Reserve Program or a
19-4 similar governmental program as provided by Section 11.173(b)(1) of
19-5 this code;
19-6 (3) [whether the permit, certified filing, or
19-7 certificate of adjudication was obtained to meet demonstrated
19-8 long-term public water supply or electric generation needs as
19-9 evidenced by a water management plan developed by the holder and
19-10 consistent with projections of future water needs contained in the
19-11 state water plan;]
19-12 [(4) whether the permit, certified filing, or
19-13 certificate of adjudication was obtained as the result of the
19-14 construction of a reservoir funded, in whole or in part, by the
19-15 holder of the permit, certified filing, or certificate of
19-16 adjudication as part of the holder's long-term water planning;]
19-17 [(5)] whether the existing or proposed authorized
19-18 purpose and place of use are consistent with an approved regional
19-19 water plan as provided by Section 16.053 of this code;
19-20 (4) [(6)] whether the permit, certified filing, or
19-21 certificate of adjudication has been deposited into the Texas Water
19-22 Bank as provided by Sections 15.7031 and 15.704 of this code or
19-23 whether it can be shown that the water right or water available
19-24 under the right is currently being made available for purchase
19-25 through private marketing efforts; or
19-26 (5) [(7)] whether the permit, certified filing, or
19-27 certificate of adjudication has been reserved to provide for
20-1 instream flows or bay and estuary inflows.
20-2 SECTION 28. Sections 12.052(c), (d), (e), and (f), Water
20-3 Code, are amended to read as follows:
20-4 (c) The [If the] owner of a dam that is required to be
20-5 constructed, reconstructed, repaired, or removed in order to comply
20-6 with the rules and orders promulgated under Subsection (a) of this
20-7 section may not wilfully fail [fails] or refuse [refuses] to comply
20-8 within the 30-day period following the date of the commission's
20-9 final, nonappealable order to do so and may not [or if a person]
20-10 wilfully fail [fails] to comply with any rule or other order issued
20-11 by the commission under this section within the 30-day period
20-12 following the effective date of the order[, he is liable to a
20-13 penalty of not more than $5,000 a day for each day he continues to
20-14 violate this section. The state may recover the penalty by suit
20-15 brought for that purpose in the district court of Travis County].
20-16 (d) The commission may issue an emergency works safety order
20-17 under Section 5.519 [If the commission determines that the existing
20-18 condition of the dam is creating or will cause extensive or severe
20-19 property damage or economic loss to others or is posing an
20-20 immediate and serious threat to human life or health and that other
20-21 procedures available to the commission to remedy or prevent the
20-22 occurrence of the situation will result in unreasonable delay, the
20-23 commission may issue an emergency order, either mandatory or
20-24 prohibitory in nature, directing the owner of a dam to repair,
20-25 modify, maintain, dewater, or remove the dam which the commission
20-26 determines is unsafe. The emergency order may be issued without
20-27 notice to the dam owner or with notice the commission considers
21-1 practicable under the circumstances. The notice does not have to
21-2 comply with Chapter 2001, Government Code].
21-3 (e) [If the commission issues an emergency order under
21-4 authority of this section without notice to the dam owner, the
21-5 commission shall fix a time and place for a hearing which shall be
21-6 held as soon as practicable to affirm, modify, or set aside the
21-7 emergency order. The notice does not have to comply with Chapter
21-8 2001, Government Code. If the nature of the commission's action
21-9 requires further proceedings, those proceedings shall be conducted
21-10 as appropriate under the Administrative Procedure and Texas
21-11 Register Act, as amended (Article 6252-13a, Vernon's Texas Civil
21-12 Statutes).]
21-13 [(f)] Nothing in this section or in rules or orders made by
21-14 the commission shall be construed to relieve an owner or operator
21-15 of a dam or reservoir of the legal duties, obligations, or
21-16 liabilities incident to ownership or operation.
21-17 SECTION 29. Section 13.242(b), Water Code, is amended to
21-18 read as follows:
21-19 (b) A person that is not a retail public utility or a
21-20 utility or water supply corporation that is operating under
21-21 provisions pursuant to Subsection (c) may not construct facilities
21-22 to provide water or sewer service to more than one service
21-23 connection not on the property owned by the person and that are
21-24 within the certificated area of a retail public utility without
21-25 first obtaining written consent from the retail public utility. A
21-26 person that violates this section or the reasonable and legal terms
21-27 and conditions of any written consent is subject to the
22-1 administrative penalties described by Subchapter C, Chapter 7
22-2 [Section 13.4151 of this code].
22-3 SECTION 30. Chapter 7, Water Code, is amended by adding
22-4 Subchapter I, and Sections 13.412, 13.4131, and 13.4132, Water
22-5 Code, are transferred to Subchapter I, Chapter 7, Water Code,
22-6 redesignated as Sections 7.402, 7.403, and 7.404, and amended to
22-7 read as follows:
22-8 SUBCHAPTER I. RECEIVERSHIP; SUPERVISION OF CERTAIN UTILITIES
22-9 Sec. 7.401. DEFINITION. In this subchapter, "affiliated
22-10 interest" and "affiliate" have the meanings assigned by Section
22-11 13.002.
22-12 Sec. 7.402 [13.412]. RECEIVERSHIP. (a) At the request of
22-13 the commission, the attorney general shall bring suit for the
22-14 appointment of a receiver to collect the assets and carry on the
22-15 business of a water or sewer utility that:
22-16 (1) has abandoned operation of its facilities;
22-17 (2) informs the commission that the owner is
22-18 abandoning the system;
22-19 (3) violates a final order of the commission; or
22-20 (4) allows any property owned or controlled by it to
22-21 be used in violation of a final order of the commission.
22-22 (b) The court shall appoint a receiver if an appointment is
22-23 necessary:
22-24 (1) to guarantee the collection of assessments, fees,
22-25 penalties, or interest;
22-26 (2) to guarantee continuous and adequate service to
22-27 the customers of the utility; or
23-1 (3) to prevent continued or repeated violation of the
23-2 final order.
23-3 (c) The receiver shall execute a bond to assure the proper
23-4 performance of the receiver's duties in an amount to be set by the
23-5 court.
23-6 (d) After appointment and execution of bond, the receiver
23-7 shall take possession of the assets of the utility specified by the
23-8 court. Until discharged by the court, the receiver shall perform
23-9 the duties that the court directs to preserve the assets and carry
23-10 on the business of the utility and shall strictly observe the final
23-11 order involved.
23-12 (e) On a showing of good cause by the utility, the court may
23-13 dissolve the receivership and order the assets and control of the
23-14 business returned to the utility.
23-15 (f) For purposes of this section and Section 7.404
23-16 [13.4132], abandonment may include but is not limited to:
23-17 (1) failure to pay a bill or obligation owed to a
23-18 retail public utility or to an electric or gas utility with the
23-19 result that the utility service provider has issued a notice of
23-20 discontinuance of necessary services;
23-21 (2) failure to provide appropriate water or wastewater
23-22 treatment so that a potential health hazard results;
23-23 (3) failure to adequately maintain facilities,
23-24 resulting in potential health hazards, extended outages, or
23-25 repeated service interruptions;
23-26 (4) failure to provide customers adequate notice of a
23-27 health hazard or potential health hazard;
24-1 (5) failure to secure an alternative available water
24-2 supply during an outage;
24-3 (6) displaying a pattern of hostility toward or
24-4 repeatedly failing to respond to the commission or the utility's
24-5 customers; and
24-6 (7) failure to provide the commission with adequate
24-7 information on how to contact the utility for normal business and
24-8 emergency purposes.
24-9 (g) Notwithstanding Section 64.021, Civil Practice and
24-10 Remedies Code, a receiver appointed under this section may seek
24-11 commission approval to acquire the water or sewer utility's
24-12 facilities and transfer the utility's certificate of convenience
24-13 and necessity. The receiver must apply in accordance with
24-14 Subchapter H, Chapter 13.
24-15 Sec. 7.403 [13.4131]. SUPERVISION OF CERTAIN UTILITIES. (a)
24-16 The commission, after providing to the utility notice and an
24-17 opportunity for a hearing, may place a utility under supervision
24-18 for gross or continuing mismanagement, gross or continuing
24-19 noncompliance with Chapter 13 [this chapter] or commission rules,
24-20 or noncompliance with commission orders.
24-21 (b) While supervising a utility, the commission may require
24-22 the utility to:
24-23 (1) meet [abide by] conditions and requirements
24-24 prescribed by the commission, including:
24-25 (A) [(1)] management requirements;
24-26 (B) [(2)] additional reporting requirements;
24-27 (C) [(3)] restrictions on hiring, salary or
25-1 benefit increases, capital investment, borrowing, stock issuance or
25-2 dividend declarations, and liquidation of assets; and
25-3 (D) [(4)] a requirement that the utility place
25-4 the utility's funds into an account in a financial institution
25-5 approved by the commission and use of those funds shall be
25-6 restricted to reasonable and necessary utility expenses; and
25-7 (2) [. (c) While supervising a utility, the
25-8 commission may require that the utility] obtain commission approval
25-9 before taking an [any] action [that may be] restricted under
25-10 Subdivision (1) [Subsection (b)] of this subsection [section].
25-11 (c) An [Any] action or transaction for which commission
25-12 approval is required by this section that [which] occurs without
25-13 commission approval may be voided by the commission.
25-14 Sec. 7.404 [13.4132]. OPERATION OF UTILITY THAT DISCONTINUES
25-15 OPERATION OR IS REFERRED FOR APPOINTMENT OF RECEIVER. (a) The
25-16 commission, after providing to the utility notice and an
25-17 opportunity to be heard by the commissioners at a commission
25-18 meeting, may authorize a willing person to temporarily manage and
25-19 operate a utility if the utility:
25-20 (1) has discontinued or abandoned operations or the
25-21 provision of services; or
25-22 (2) has been or is being referred to the attorney
25-23 general for the appointment of a receiver under Section 7.402
25-24 [13.412].
25-25 (b) The commission may appoint a person under this section
25-26 by emergency order under Section 5.507 and may authorize an
25-27 emergency rate increase by emergency order under Section 5.508[,
26-1 and notice of the action is adequate if the notice is mailed or
26-2 hand-delivered to the last known address of the utility's
26-3 headquarters].
26-4 (c) A person appointed under this section has the powers and
26-5 duties necessary to ensure the continued operation of the utility
26-6 and the provision of continuous and adequate services to customers,
26-7 including the power and duty to:
26-8 (1) read meters;
26-9 (2) bill for utility services;
26-10 (3) collect revenues;
26-11 (4) disburse funds;
26-12 (5) access all system components; and
26-13 (6) request rate increases.
26-14 (d) This section does not affect the authority of the
26-15 commission to pursue an enforcement claim against a utility or an
26-16 affiliated interest.
26-17 SECTION 31. Section 13.414, Water Code, is amended to read
26-18 as follows:
26-19 Sec. 13.414. VIOLATION BY [PENALTY AGAINST] RETAIL PUBLIC
26-20 UTILITY OR AFFILIATED INTEREST. A [(a) Any] retail public utility
26-21 or affiliated interest may not violate [that violates] this
26-22 chapter, fail [fails] to perform a duty imposed on it, or fail,
26-23 neglect, [fails, neglects,] or refuse [refuses] to obey an order,
26-24 rule, direction, or requirement of the commission or decree or
26-25 judgment of a court [is subject to a civil penalty of not less than
26-26 $100 nor more than $5,000 for each violation].
26-27 [(b) A retail public utility or affiliated interest commits
27-1 a separate violation each day it continues to violate Subsection
27-2 (a) of this section.]
27-3 [(c) The attorney general shall institute suit on his own
27-4 initiative or at the request of, in the name of, and on behalf of
27-5 the commission in a court of competent jurisdiction to recover the
27-6 penalty under this section.]
27-7 SECTION 32. Section 15.102(b), Water Code, is amended to
27-8 read as follows:
27-9 (b) The board may use the loan fund [may also be used by the
27-10 board] to provide grants for:
27-11 (1) projects that include the provision of [supplying]
27-12 water and wastewater services in economically distressed areas,
27-13 including projects involving retail distribution of those services;
27-14 and
27-15 (2) one or more of the following projects, if the
27-16 legislature appropriates money specifically for that purpose:
27-17 (A) agricultural water conservation;
27-18 (B) weather modification;
27-19 (C) brush control; or
27-20 (D) production of water in connection with an
27-21 oil or gas operation.
27-22 SECTION 33. Section 15.4061(h), Water Code, is amended to
27-23 read as follows:
27-24 (h) The board shall require that regional water plans
27-25 developed or revised under contracts entered into under this
27-26 section be made available to the commission, the Department of
27-27 Agriculture, and the Parks and Wildlife Department.
28-1 SECTION 34. Section 15.7031(c), Water Code, is amended to
28-2 read as follows:
28-3 (c) The dedication of any water rights placed in trust must
28-4 be reviewed and approved by the commission, in consultation with
28-5 the board and the Parks and Wildlife Department. In addition, the
28-6 Department of Agriculture may provide input to the commission, as
28-7 appropriate, during the review and approval process for dedication
28-8 of water rights.
28-9 SECTION 35. Sections 16.012(c), (h), and (j), Water Code,
28-10 are amended to read as follows:
28-11 (c) In performing the duties required under Subdivisions
28-12 (1), (4), (5), (6), and (7) of Subsection (b), the executive
28-13 administrator shall consider advice from the Parks and Wildlife
28-14 Department. In addition, the Department of Agriculture may provide
28-15 advice to the executive administrator, where appropriate, regarding
28-16 any of the duties to be performed under Subsection (b).
28-17 (h) Within 90 days of completing a water availability model
28-18 for a river basin, the commission shall provide to all holders of
28-19 existing permits, certified filings, and certificates of
28-20 adjudication in that river basin the projected amount of water that
28-21 would be available[:] during a drought of record[; when flows are
28-22 at 75 percent of normal; and when flows are at 50 percent of
28-23 normal].
28-24 (j) Within 90 days of completing a water availability model
28-25 for a river basin, the commission, in coordination with the Parks
28-26 and Wildlife Department and with input from the Department of
28-27 Agriculture, where appropriate, shall determine the potential
29-1 impact of reusing municipal and industrial effluent on existing
29-2 water rights, instream uses, and freshwater inflows to bays and
29-3 estuaries. Within 30 days of making this determination, the
29-4 commission shall provide the projections to the board and each
29-5 regional water planning group created under Section 16.053 of this
29-6 code in that river basin.
29-7 SECTION 36. Sections 16.051(a) and (d), Water Code, are
29-8 amended to read as follows:
29-9 (a) No later than January 5, 2002 [September 1, 2001], and
29-10 every five years thereafter, the board shall adopt a comprehensive
29-11 state water plan that incorporates the regional water plans
29-12 approved under Section 16.053 [of this code]. The state water plan
29-13 shall provide for the orderly development, management, and
29-14 conservation of water resources and preparation for and response to
29-15 drought conditions, in order that sufficient water will be
29-16 available at a reasonable cost to ensure public health, safety, and
29-17 welfare; further economic development; and protect the agricultural
29-18 and natural resources of the entire state.
29-19 (d) The board, in coordination with the commission, the
29-20 Department of Agriculture, and the Parks and Wildlife Department,
29-21 shall adopt by rule guidance principles for the state water plan
29-22 which reflect the public interest of the entire state. When
29-23 adopting guidance principles, due consideration shall be given to
29-24 the construction and improvement of surface water resources and the
29-25 application of principles that result in voluntary redistribution
29-26 of water resources. The board shall review and update the guidance
29-27 principles, with input from the commission, the Department of
30-1 Agriculture, and the Parks and Wildlife Department, as necessary
30-2 but at least every five years to coincide with the five-year cycle
30-3 for adoption of a new water plan as described in Subsection (a).
30-4 SECTION 37. Section 16.053, Water Code, is amended by
30-5 amending Subsections (c), (e), (i), and (j) and adding Subsections
30-6 (l) through (o) to read as follows:
30-7 (c) No later than 60 days after the designation of the
30-8 regions under Subsection (b) [of this section], the board shall
30-9 designate representatives within each regional water planning area
30-10 to serve as the initial coordinating body for planning. The
30-11 initial coordinating body may [shall] then designate additional
30-12 representatives to serve on the regional water planning group. The
30-13 initial coordinating body shall designate additional
30-14 representatives if necessary to ensure[, ensuring] adequate
30-15 representation from the interests comprising that region, including
30-16 [but not limited to] the public, counties, municipalities,
30-17 industries, agricultural interests, environmental interests, small
30-18 businesses, electric generating utilities, river authorities, water
30-19 districts, and water utilities. The regional water planning group
30-20 shall maintain adequate representation from those interests. In
30-21 addition, representatives of the board, the Parks and Wildlife
30-22 Department, and the Department of Agriculture shall serve as ex
30-23 officio members of each regional water planning group.
30-24 (e) Each regional water planning group shall submit to the
30-25 board a regional water plan that:
30-26 (1) is consistent with the guidance principles for the
30-27 state water plan adopted by the board under Section 16.051(d) [of
31-1 this code];
31-2 (2) provides information based on data provided or
31-3 approved by the board in a format consistent with the guidelines
31-4 provided by the board under Subsection (d) [of this section];
31-5 (3) identifies:
31-6 (A) each source of water supply in the regional
31-7 water planning area in accordance with the guidelines provided by
31-8 the board under Subsections (d) and (f);
31-9 (B) factors specific to each source of water
31-10 supply to be considered in determining whether to initiate a
31-11 drought response; and
31-12 (C) actions to be taken as part of the response;
31-13 (4) has specific provisions for water management
31-14 strategies to be used[:]
31-15 [(A)] during a drought of record[;]
31-16 [(B) when flows are at 75 percent of normal; and]
31-17 [(C) when flows are at 50 percent of normal];
31-18 (5) [(4)] includes but is not limited to consideration
31-19 of the following:
31-20 (A) any existing water or drought planning
31-21 efforts addressing all or a portion of the region;
31-22 (B) certified groundwater conservation district
31-23 management plans and other plans submitted under Section 16.054 [of
31-24 this code];
31-25 (C) all potentially feasible water management
31-26 strategies, including but not limited to improved conservation,
31-27 reuse, and management of existing water supplies, acquisition of
32-1 available existing water supplies, and development of new water
32-2 supplies;
32-3 (D) protection of existing water rights in the
32-4 region;
32-5 (E) opportunities for and the benefits of
32-6 developing regional water supply facilities or providing regional
32-7 management of water supply facilities;
32-8 (F) appropriate provision for environmental
32-9 water needs and for the effect of upstream development on the bays,
32-10 estuaries, and arms of the Gulf of Mexico and the effect of plans
32-11 on navigation;
32-12 (G) provisions in Section 11.085(k)(1) [of this
32-13 code] if interbasin transfers are contemplated;
32-14 (H) voluntary transfer of water within the
32-15 region using, but not limited to, regional water banks, sales,
32-16 leases, options, subordination agreements, and financing
32-17 agreements; and
32-18 (I) emergency transfer of water under Section
32-19 11.139 [of this code], including information on the part of each
32-20 permit, certified filing, or certificate of adjudication for
32-21 nonmunicipal use in the region that may be transferred without
32-22 causing unreasonable damage to the property of the nonmunicipal
32-23 water rights holder; and
32-24 (6) [(5)] identifies river and stream segments of
32-25 unique ecological value and sites of unique value for the
32-26 construction of reservoirs that the regional water planning group
32-27 recommends for protection under Section 16.051 [of this code].
33-1 (i) The regional water planning groups shall submit their
33-2 adopted regional water plans to the board by January 5, 2001
33-3 [September 1, 2000], for approval and inclusion in the state water
33-4 plan. In conjunction with the submission of regional water plans,
33-5 each planning group should make legislative recommendations, if
33-6 any, to facilitate more voluntary water transfers in the region.
33-7 Subsequent regional water plans shall be submitted at least every
33-8 five years thereafter. Public participation for revised regional
33-9 plans shall follow the procedures under Subsection (h) [of this
33-10 section].
33-11 (j) The board may provide financial assistance to political
33-12 subdivisions under Subchapters E and F of this chapter, [and]
33-13 Subchapters C, D, E, F, and J, Chapter 15, and Subchapters D, I, K,
33-14 and L, Chapter 17, [of this code] for water supply projects only
33-15 if:
33-16 (1) the board determines that the needs to be
33-17 addressed by the project will be addressed in a manner that is
33-18 consistent with the state water plan; and
33-19 (2) beginning January 5, 2002 [September 1, 2001], the
33-20 board:
33-21 (A) has approved a regional water plan as
33-22 provided by Subsection (i) [of this section], and any required
33-23 updates of the plan, for the region of the state that includes the
33-24 area benefiting from the proposed project; and
33-25 (B) determines that the needs to be addressed by
33-26 the project will be addressed in a manner that is consistent with
33-27 that regional water plan.
34-1 (l) A political subdivision may contract with a regional
34-2 water planning group to assist the regional water planning group in
34-3 developing or revising a regional water plan.
34-4 (m) A cause of action does not accrue against a regional
34-5 water planning group, a representative who serves on the regional
34-6 water planning group, or an employee of a political subdivision
34-7 that contracts with the regional water planning group under
34-8 Subsection (l) for an act or omission in the course and scope of
34-9 the person's work relating to the regional water planning group.
34-10 (n) A regional water planning group, a representative who
34-11 serves on the regional water planning group, or an employee of a
34-12 political subdivision that contracts with the regional water
34-13 planning group under Subsection (l) is not liable for damages that
34-14 may arise from an act or omission in the course and scope of the
34-15 person's work relating to the regional water planning group.
34-16 (o) The attorney general, on request, shall represent a
34-17 regional water planning group, a representative who serves on the
34-18 regional water planning group, or an employee of a political
34-19 subdivision that contracts with the regional water planning group
34-20 under Subsection (l) in a suit arising from an act or omission
34-21 relating to the regional water planning group.
34-22 SECTION 38. Section 16.054(a), Water Code, is amended to
34-23 read as follows:
34-24 (a) It is the policy of the state that water resource
34-25 management, water conservation, and drought planning should occur
34-26 on an ongoing basis. The board, commission, and Parks and Wildlife
34-27 Department shall make available where appropriate technical and
35-1 financial assistance for such planning. In addition, the
35-2 Department of Agriculture may provide input and assistance, as
35-3 appropriate, for such planning.
35-4 SECTION 39. Section 16.237(a), Water Code, is amended to
35-5 read as follows:
35-6 (a) If a person violates a commission rule or order adopted
35-7 under Section 16.236 [of this code], the commission may assess an
35-8 administrative penalty against that person as provided by
35-9 Subchapter C, Chapter 7 [Section 11.0842 of this code].
35-10 SECTION 40. Sections 17.871(2) and (6), Water Code, are
35-11 amended to read as follows:
35-12 (2) "Borrower district" means a political subdivision,
35-13 including a district or authority created under Article III,
35-14 Sections 52(b)(1) and (2), or Article XVI, Section 59, of the Texas
35-15 Constitution, that receives or is eligible to receive a
35-16 conservation loan from the board for a purpose described by Section
35-17 17.895 or 17.8955 [improvement to district facilities].
35-18 (6) "Lender district" means a political subdivision,
35-19 including a soil and water conservation district under Chapter 201,
35-20 Agriculture Code, an underground water conservation district
35-21 created under Article XVI, Section 59, of the Texas Constitution,
35-22 or a district or authority created under Article III, Section
35-23 52(b)(1), or Article XVI, Section 59, of the Texas Constitution
35-24 authorized to supply water for irrigation purposes, that is
35-25 eligible to receive or that receives a loan from the board for the
35-26 purpose of making conservation loans to individual borrowers.
35-27 SECTION 41. Subchapter J, Chapter 17, Water Code, is amended
36-1 by amending Section 17.895 and adding Section 17.8955 to read as
36-2 follows:
36-3 Sec. 17.895. CONSERVATION LOANS. (a) This section applies
36-4 only to a conservation loan:
36-5 (1) from a lender district that is:
36-6 (A) a soil and water conservation district under
36-7 Chapter 201, Agriculture Code;
36-8 (B) an underground water conservation district
36-9 created under Section 59, Article XVI, Texas Constitution; or
36-10 (C) a district or authority created under
36-11 Section 52(b)(1), Article III, or Section 59, Article XVI, Texas
36-12 Constitution, authorized to supply water for irrigation purposes;
36-13 or
36-14 (2) to a borrower district that is a district or
36-15 authority created under Sections 52(b)(1) and (2), Article III, or
36-16 Section 59, Article XVI, Texas Constitution.
36-17 (b) The board or a lender district [districts] may make
36-18 conservation loans for capital equipment or materials, labor,
36-19 preparation costs, and installation costs:
36-20 (1) to improve water use efficiency of water delivery
36-21 and application on existing irrigation systems;
36-22 (2) for preparing irrigated land to be converted to
36-23 dryland conditions; and
36-24 (3) for preparing dryland for more efficient use of
36-25 natural precipitation[;]
36-26 [(4) for preparing and maintaining land to be used for
36-27 brush control activities, including but not limited to activities
37-1 conducted pursuant to Chapter 203, Agriculture Code; or]
37-2 [(5) for implementing precipitation enhancement
37-3 activities in areas of the state where such activities would be, in
37-4 the board's judgment, most effective].
37-5 (c) [(b)] Conservation loans for the purposes listed in
37-6 Subsection (b) [(a)] may be made by lender districts to individual
37-7 borrowers for use on private property or by the board to borrower
37-8 districts [for use on district facilities].
37-9 (d) [(c)] The board may make conservation loans to borrower
37-10 districts for the cost of purchasing and installing devices, on
37-11 public or private property, designed to indicate the amount of
37-12 water withdrawn for irrigation purposes.
37-13 (e) For purposes of this subchapter, the board or lender
37-14 districts may seek the advice of the Department of Agriculture
37-15 regarding the feasibility of a project for which a conservation
37-16 loan is sought.
37-17 Sec. 17.8955. CONSERVATION LOANS FOR BRUSH CONTROL AND
37-18 PRECIPITATION ENHANCEMENT. (a) The board or a lender district may
37-19 make a conservation loan for capital equipment or materials, labor,
37-20 preparation costs, and installation costs for:
37-21 (1) preparing and maintaining land to be used for
37-22 brush control activities, including activities conducted under
37-23 Chapter 203, Agriculture Code; or
37-24 (2) implementing precipitation enhancement activities
37-25 in areas of the state where those activities would be, in the
37-26 board's judgment, most effective.
37-27 (b) A conservation loan for a purpose listed in Subsection
38-1 (a) may be made by a lender district to an individual borrower for
38-2 use on private property or by the board to a borrower district.
38-3 SECTION 42. Section 26.0135(h), Water Code, is amended to
38-4 read as follows:
38-5 (h) The commission shall apportion, assess, and recover the
38-6 reasonable costs of administering the water quality management
38-7 programs under this section from users of water and wastewater
38-8 permit holders in the watershed according to the records of the
38-9 commission generally in proportion to their right, through permit
38-10 or contract, to use water from and discharge wastewater in the
38-11 watershed. Irrigation water rights and hydroelectric rights of
38-12 facilities of less than five megawatts will not be subject to this
38-13 assessment. The cost to river authorities and others to conduct
38-14 water quality monitoring and assessment shall be subject to prior
38-15 review and approval by the commission as to methods of allocation
38-16 and total amount to be recovered. The commission shall adopt rules
38-17 to supervise and implement the water quality monitoring,
38-18 assessment, and associated costs. The rules shall ensure that
38-19 water users and wastewater dischargers do not pay excessive
38-20 amounts, that program funds are equitably apportioned among basins,
38-21 that a river authority may recover no more than the actual costs of
38-22 administering the water quality management programs called for in
38-23 this section, and that no municipality shall be assessed cost for
38-24 any efforts that duplicate water quality management activities
38-25 described in Section 26.177 of this chapter. The rules concerning
38-26 the apportionment and assessment of reasonable costs shall provide
38-27 for a recovery of not more than $5,000,000 annually. Costs
39-1 recovered by the commission are to be deposited to the credit of
39-2 the water resource management account and may be used only to
39-3 accomplish the purposes of this section. The commission may apply
39-4 not more than 10 percent of the costs recovered annually toward the
39-5 commission's overhead costs for the administration of this section
39-6 and the implementation of regional water quality assessments. The
39-7 commission, with the assistance and input of each river authority,
39-8 shall file a written report accounting for the costs recovered
39-9 under this section with the governor, the lieutenant governor, and
39-10 the speaker of the house of representatives on or before December 1
39-11 of each even-numbered year.
39-12 SECTION 43. Section 26.121(a), Water Code, is amended to
39-13 read as follows:
39-14 (a) Except as authorized by the commission, no person may:
39-15 (1) discharge sewage, municipal waste, recreational
39-16 waste, agricultural waste, or industrial waste into or adjacent to
39-17 any water in the state;
39-18 (2) discharge other waste into or adjacent to any
39-19 water in the state which in itself or in conjunction with any other
39-20 discharge or activity causes, continues to cause, or will cause
39-21 pollution of any of the water in the state, unless the discharge
39-22 complies with a person's:
39-23 (A) certified water quality management plan
39-24 approved by the State Soil and Water Conservation Board as provided
39-25 by Section 201.026, Agriculture Code; or
39-26 (B) water pollution and abatement plan approved
39-27 by the commission; or
40-1 (3) commit any other act or engage in any other
40-2 activity which in itself or in conjunction with any other discharge
40-3 or activity causes, continues to cause, or will cause pollution of
40-4 any of the water in the state, unless the activity is under the
40-5 jurisdiction of the Parks and Wildlife Department, the General Land
40-6 Office, the Department of Agriculture, or the Railroad Commission
40-7 of Texas, in which case this subdivision does not apply.
40-8 SECTION 44. Section 26.127, Water Code, is amended to read
40-9 as follows:
40-10 Sec. 26.127. Commission as Principal Authority. (a) The
40-11 commission is the principal authority in the state on matters
40-12 relating to the quality of the water in the state. The executive
40-13 director has the responsibility for establishing a water quality
40-14 sampling and monitoring program for the state. All other state
40-15 agencies engaged in water quality or water pollution control
40-16 activities shall coordinate those activities with the commission.
40-17 (b) The executive director may, on behalf of and with the
40-18 consent of the commission, enter into contracts or other agreements
40-19 with the Department of Agriculture for purposes of obtaining
40-20 laboratory services for water quality testing.
40-21 SECTION 45. Section 35.007(e), Water Code, is amended to
40-22 read as follows:
40-23 (e) The executive director shall request a study from the
40-24 executive director of the Parks and Wildlife Department for the
40-25 purpose of preparing the report required by this section. The
40-26 Department of Agriculture may also provide input to the executive
40-27 director for purposes of the report. The study must:
41-1 (1) evaluate the potential effects of the designation
41-2 of a priority groundwater management area on an area's natural
41-3 resources; and
41-4 (2) be completed and delivered to the executive
41-5 director on or before the 180th day following the date of the
41-6 request. If the study is not delivered within this 180-day period,
41-7 the executive director may proceed with the preparation of the
41-8 report.
41-9 SECTION 46. Chapter 35, Water Code, is amended by adding
41-10 Section 35.010 to read as follows:
41-11 Sec. 35.010. CREATION OF DISTRICTS ON PETITION AFTER
41-12 DESIGNATION OF PRIORITY GROUNDWATER MANAGEMENT AREA. The
41-13 commission may not consider the creation of a groundwater
41-14 conservation district in a designated priority groundwater
41-15 management area before the conclusion of the next regular session
41-16 of the Texas Legislature following the designation unless the local
41-17 landowners have initiated a petition process under Chapter 36 for
41-18 the creation of a groundwater conservation district with a priority
41-19 groundwater management area.
41-20 SECTION 47. Section 35.012, Water Code, is amended by adding
41-21 new Subsections (c) and (d), relettering existing Subsections (c),
41-22 (d), (e), and (f) as Subsections (e), (f), (g), and (h), and
41-23 amending existing Subsection (d) to read as follows:
41-24 (c) Not later than the 10th day after the date on which the
41-25 commission order designating a priority groundwater management area
41-26 is issued, the commission shall send written notice of the
41-27 commission's actions to each entity entitled to written notice
42-1 under Section 35.009(c). The notice must include the commission's
42-2 findings and conclusions from the data and information considered
42-3 in designating the priority groundwater management area and the
42-4 commission's recommendation regarding the need for a groundwater
42-5 conservation district in the priority groundwater management area.
42-6 (d) As soon as possible after a commission order designating
42-7 a priority groundwater management area, the Texas Agricultural
42-8 Extension Service shall begin an educational program within the
42-9 area with the assistance and cooperation of the Texas Water
42-10 Development Board, the commission, the Department of Agriculture,
42-11 other state agencies, and existing districts to inform the
42-12 residents of the status of the area's water resources and
42-13 management options including possible formation of a district.
42-14 (e) [(c)] Following the issuance of a commission order under
42-15 Subsection (b), the landowners in the priority groundwater
42-16 management area may:
42-17 (1) create one or more districts under Subchapter B,
42-18 Chapter 36;
42-19 (2) have the area annexed to a district that adjoins
42-20 the area; or
42-21 (3) create one or more districts through the
42-22 legislative process.
42-23 (f) [(d)] The commission shall identify the areas subject to
42-24 the order of the commission issued under Subsection (b) that have
42-25 not been incorporated into a district and shall delineate proposed
42-26 boundaries of a district to include those areas. [If the
42-27 commission proposes the creation of one or more districts, the
43-1 Texas Agricultural Extension Service shall begin an educational
43-2 program within such areas with the assistance and cooperation of
43-3 the Texas Water Development Board, the commission, other state
43-4 agencies, and existing districts to inform the residents of the
43-5 status of the area's water resources and management options
43-6 including possible formation of a district, before beginning the
43-7 procedures for creation of a district provided in Subchapter B,
43-8 Chapter 36.]
43-9 (g) [(e)] If the commission fails to find that the district
43-10 would be a benefit to the land and other property within the
43-11 priority groundwater management area, that there is a public need
43-12 for the district, or that creation of the district will further the
43-13 public welfare, the commission shall issue an order stating that a
43-14 district should not be created within the boundaries of the
43-15 priority groundwater management area.
43-16 (h) [(f)] An order of the commission issued under this
43-17 section may not be appealed.
43-18 SECTION 48. Section 35.013(d), Water Code, is amended to
43-19 read as follows:
43-20 (d) If the board votes to accept the addition of the
43-21 priority groundwater management area to the district, the board:
43-22 (1) may request the Texas Agricultural Extension
43-23 Service, the commission, and the Texas Water Development Board,
43-24 with the cooperation and assistance of the Department of
43-25 Agriculture and other state agencies, to administer an educational
43-26 program to inform the residents of the status of the area's water
43-27 resources and management options including possible annexation into
44-1 a district;
44-2 (2) shall call an election within the priority
44-3 groundwater management area as delineated by the commission to
44-4 determine if the priority groundwater management area will be added
44-5 to the district; and
44-6 (3) shall designate election precincts and polling
44-7 places for the elections in the order calling an election under
44-8 this subsection.
44-9 SECTION 49. Section 36.014, Water Code, is amended to read
44-10 as follows:
44-11 Sec. 36.014. NOTICE AND HEARING ON DISTRICT CREATION. [(a)]
44-12 If a petition is filed under Section 36.013 or the commission
44-13 proposes that a district be created under Section 35.012(b), the
44-14 commission shall give notice of the [an] application or proposal as
44-15 required by Section 49.011(a) and may conduct a hearing on the
44-16 application or proposal if the commission determines that a hearing
44-17 is necessary under Section 49.011.
44-18 [(b) If the petition contains a request to create a
44-19 management area in all or part of the proposed district, the notice
44-20 must also be given in accordance with the requirements in Section
44-21 35.006 for the designation of management areas.]
44-22 SECTION 50. Section 36.015, Water Code, is amended to read
44-23 as follows:
44-24 Sec. 36.015. FINDINGS. (a) If the commission finds that a
44-25 district requested by petition or proposed by the commission is
44-26 feasible and practicable, [that it] would be a benefit to the land
44-27 in the district, and [that it] would be a public benefit or
45-1 utility, the commission shall issue an order containing these
45-2 findings granting the petition or adopting the proposal, as
45-3 appropriate.
45-4 (b) If the commission finds that a district is not feasible
45-5 and practicable, that it would not be a benefit to the land in the
45-6 district, that it would not be a public benefit or utility, or that
45-7 it is not needed, the commission by order shall deny the petition
45-8 or reject the proposal, as appropriate.
45-9 (c) The commission may adjust the boundaries of the proposed
45-10 district to exclude any land that would not be benefited by
45-11 inclusion in the district and is not necessary to the district for
45-12 proper regulation of the groundwater reservoir.
45-13 (d) If the commission grants the petition or adopts the
45-14 proposal to create the district, it shall direct in its order
45-15 creating the district that an election be called by the temporary
45-16 directors to confirm the creation of the district and to elect
45-17 permanent directors.
45-18 (e) [The refusal to grant a petition to create a district
45-19 does not invalidate or affect the designation of any management
45-20 area requested in the same petition.]
45-21 [(f)] The commission shall act on the petition or its
45-22 proposal within a reasonable amount of time.
45-23 SECTION 51. Section 36.0151, Water Code, is amended to read
45-24 as follows:
45-25 Sec. 36.0151. NOTICE OF CREATION BY COMMISSION OF DISTRICT
45-26 FOR PRIORITY GROUNDWATER MANAGEMENT AREA. [(a) If the commission
45-27 proposes that a district be created under Section 35.012(d), it
46-1 shall in its order creating the district provide that temporary
46-2 directors be appointed under Section 36.016 and that an election be
46-3 called by the temporary directors to confirm the creation of the
46-4 district and to elect permanent directors.]
46-5 [(b)] The commission shall notify the county commissioners
46-6 court of each county with territory in the district of the
46-7 district's creation as soon as practicable after issuing the order
46-8 under Section 36.015(a) creating a [the] district proposed by the
46-9 commission under Section 35.012(b).
46-10 SECTION 52. Section 36.051, Water Code, is amended by
46-11 amending Subsections (b) and (c) and adding Subsection (d) to read
46-12 as follows:
46-13 (b) To be qualified to be elected as a director, a person
46-14 must be a registered voter in the precinct that the person
46-15 represents.
46-16 (c) A member of a governing body of another political
46-17 subdivision is ineligible for appointment or election as a
46-18 director. A director is disqualified and vacates the office of
46-19 director if the director is appointed or elected as a member of the
46-20 governing body of another political subdivision. This subsection
46-21 does not apply to any district with a population less than 50,000.
46-22 (d) [(c)] Vacancies in the office of director shall be
46-23 filled by appointment of the board. If the vacant office is not
46-24 scheduled for election for longer than two years at the time of the
46-25 appointment, the board shall order an election for the unexpired
46-26 term to be held as part of the next regularly scheduled director's
46-27 election. The appointed director's term shall end on qualification
47-1 of the director elected at that election.
47-2 SECTION 53. Section 36.059(b), Water Code, is amended to
47-3 read as follows:
47-4 (b) The directors of the district shall be elected according
47-5 to the precinct method as defined by Chapter 12, page 1105, Special
47-6 Laws, Acts of the 46th Legislature, Regular Session, 1939. [To be
47-7 qualified to be elected as a director, a person must be a
47-8 registered voter in the precinct that the person represents.] If
47-9 any part of a municipal corporation is a part of one precinct, then
47-10 no part of the municipal corporation shall be included in another
47-11 precinct, except that a municipal corporation having a population
47-12 of more than 200,000 may be divided between two or more precincts.
47-13 In a multicounty district, not more than two of the five precincts
47-14 may include the same municipal corporation or part of the same
47-15 municipal corporation.
47-16 SECTION 54. Section 36.108, Water Code, is amended to read
47-17 as follows:
47-18 Sec. 36.108. JOINT PLANNING IN MANAGEMENT AREA OR PRIORITY
47-19 GROUNDWATER MANAGEMENT AREA. (a) If two or more districts are
47-20 located within the boundaries of the same management area or
47-21 priority groundwater management area, each district shall prepare a
47-22 comprehensive management plan as required by Section 36.1071
47-23 covering that district's respective territory. On completion of
47-24 the plan, each district shall forward a copy of the new revised
47-25 management plan to the other districts in the management area or
47-26 priority groundwater management area.
47-27 (b) The board of directors of each district in the
48-1 management area or priority groundwater management area may, by
48-2 resolution, call a joint meeting with the boards of directors of
48-3 the other districts in the management area or priority groundwater
48-4 management area to review the management plans and accomplishments
48-5 for the management area or priority groundwater management area.
48-6 The boards shall meet to consider the plans individually and shall
48-7 compare them to other management plans then in force in the
48-8 management area. In reviewing the management plans, the boards
48-9 shall consider:
48-10 (1) the goals of each management plan and its impact
48-11 on planning throughout the management area or priority groundwater
48-12 management area;
48-13 (2) the effectiveness of the measures established by
48-14 each management plan for conserving and protecting groundwater and
48-15 preventing waste, and the effectiveness of these measures in the
48-16 management area or priority groundwater management area generally;
48-17 and
48-18 (3) any other matters that the boards consider
48-19 relevant to the protection and conservation of groundwater and the
48-20 prevention of waste in the management area or priority groundwater
48-21 management area.
48-22 (c) A joint meeting of the boards of directors must be held
48-23 in accordance with the Open Meetings Act, Chapter 551, Government
48-24 Code. Notice of the meeting shall be given in accordance with the
48-25 requirements for notice of district board of directors meetings
48-26 under that Act. In addition, notice of the meeting shall be
48-27 published not later than the 30th day before the date of the
49-1 scheduled meeting in a newspaper with general circulation in each
49-2 county in the management area or priority groundwater management
49-3 area.
49-4 (d) A district in the management area or priority
49-5 groundwater management area may file a petition with the commission
49-6 requesting an inquiry if the petitioner district believes that:
49-7 (1) another district in the management area or
49-8 priority groundwater management area has failed to adopt rules;
49-9 (2) the groundwater in the management area or priority
49-10 groundwater management area is not adequately protected by the
49-11 rules adopted by another district; or
49-12 (3) the groundwater in the management area or priority
49-13 groundwater management area is not adequately protected due to the
49-14 failure of another district to enforce substantial compliance with
49-15 its rules.
49-16 (e) Not later than the 90th day after the date the petition
49-17 is filed, the commission shall review the petition and either:
49-18 (1) dismiss it if it finds that the evidence is not
49-19 adequate to show that any of the conditions alleged in the petition
49-20 exist; or
49-21 (2) select a review panel as provided in Subsection
49-22 (f).
49-23 (f) The commission may appoint a review panel consisting of
49-24 a chairman and four other members. A director or general manager
49-25 of a district located outside the management area or priority
49-26 groundwater management area that is the subject of the petition may
49-27 be appointed to the review panel. The commission may not appoint
50-1 more than two members of the review panel from any one district.
50-2 The commission also shall appoint a disinterested person to serve
50-3 as a nonvoting recording secretary for the review panel. The
50-4 recording secretary may be an employee of the commission. The
50-5 recording secretary shall record and document the proceedings of
50-6 the panel.
50-7 (g) Not later than the 120th day after appointment, the
50-8 review panel shall review the petition and any evidence relevant to
50-9 the petition and, in a public meeting, prepare a report to the
50-10 commission. The commission may direct the review panel to conduct
50-11 public hearings at a location in the management area or priority
50-12 groundwater management area to take evidence on the petition. The
50-13 review panel may attempt to negotiate a settlement or resolve the
50-14 dispute by any lawful means.
50-15 (h) In its report, the review panel shall include:
50-16 (1) a summary of all evidence taken in any hearing on
50-17 the petition;
50-18 (2) a list of findings and recommended actions
50-19 appropriate for the commission to take and the reasons it finds
50-20 those actions appropriate; and
50-21 (3) any other information the panel considers
50-22 appropriate.
50-23 SECTION 55. Section 341.047, Health and Safety Code, is
50-24 transferred to Subchapter E, Chapter 7, Water Code, redesignated as
50-25 Section 7.1605, Water Code, and amended to read as follows:
50-26 Sec. 7.1605 [341.047]. VIOLATIONS RELATING TO PUBLIC
50-27 DRINKING WATER [CRIMINAL PENALTY]. (a) A person commits an
51-1 offense if the person:
51-2 (1) violates a provision of Section 341.031, Health
51-3 and Safety Code;
51-4 (2) violates a provision of Section 341.032(a) or (b),
51-5 Health and Safety Code;
51-6 (3) violates a provision of Section 341.033(a)-(f),
51-7 Health and Safety Code;
51-8 (4) constructs a drinking water supply system without
51-9 submitting completed plans and specifications as required by
51-10 Section 341.035(c), Health and Safety Code;
51-11 (5) begins construction of a drinking water supply
51-12 system without the commission's approval as required by Section
51-13 341.035(a), Health and Safety Code;
51-14 (6) violates a provision of Section 341.0351 or
51-15 341.0352, Health and Safety Code;
51-16 (7) fails to remove a sign as required by Section
51-17 341.0354, Health and Safety Code; or
51-18 (8) violates a provision of Section 341.036, Health
51-19 and Safety Code.
51-20 (b) An offense under Subsection (a) is a Class C
51-21 misdemeanor.
51-22 (c) If it is shown on a trial of the defendant that the
51-23 defendant has been convicted of an offense under Subsection (a)
51-24 within a year before the date on which the offense being tried
51-25 occurred, the subsequent offense under Subsection (a) is a Class B
51-26 misdemeanor.
51-27 (d) Each day of a continuing violation is a separate
52-1 offense.
52-2 SECTION 56. Section 341.048, Health and Safety Code, is
52-3 amended to read as follows:
52-4 Sec. 341.048. VIOLATION [CIVIL ENFORCEMENT]. [(a)] A person
52-5 may not cause, suffer, allow, or permit a violation of this
52-6 subchapter or a rule or order adopted under this subchapter.
52-7 [(b) A person who causes, suffers, allows, or permits a
52-8 violation under this subchapter shall be assessed a civil penalty
52-9 of not less than $50 nor more than $1,000 for each violation. Each
52-10 day of a continuing violation is a separate violation.]
52-11 [(c) If it appears that a person has violated, is violating,
52-12 or threatens to violate a provision under this subchapter, the
52-13 commission, a county, or a municipality may institute a civil suit
52-14 in a district court for:]
52-15 [(1) injunctive relief to restrain the person from
52-16 continuing the violation or threat of violation;]
52-17 [(2) the assessment and recovery of a civil penalty;
52-18 or]
52-19 [(3) both injunctive relief and a civil penalty.]
52-20 [(d) The commission is a necessary and indispensable party
52-21 in a suit brought by a county or municipality under this section.]
52-22 [(e) On the commission's request, the attorney general shall
52-23 institute a suit in the name of the state for injunctive relief, to
52-24 recover a civil penalty, or for both injunctive relief and civil
52-25 penalty.]
52-26 [(f) The suit may be brought in:]
52-27 [(1) Travis County;]
53-1 [(2) the county in which the defendant resides; or]
53-2 [(3) the county in which the violation or threat of
53-3 violation occurs.]
53-4 [(g) In a suit under this section to enjoin a violation or
53-5 threat of violation of this subchapter, the court shall grant the
53-6 state, county, or municipality, without bond or other undertaking,
53-7 any injunction that the facts may warrant including temporary
53-8 restraining orders, temporary injunctions after notice and hearing,
53-9 and permanent injunctions.]
53-10 [(h) Civil penalties recovered in a suit brought under this
53-11 section by a county or municipality shall be equally divided
53-12 between:]
53-13 [(1) the state; and]
53-14 [(2) the county or municipality that first brought the
53-15 suit.]
53-16 SECTION 57. Section 341.0485(c), Health and Safety Code, is
53-17 amended to read as follows:
53-18 (c) The comptroller shall manage the account for the benefit
53-19 of the commission and shall invest the money and deposit interest
53-20 and other investment proceeds in the account. The comptroller
53-21 shall release money from the account in the manner provided by the
53-22 commission. Money in the account may be used only for:
53-23 (1) capital improvements to the water or sewer system
53-24 of a utility that has paid fines or penalties under this chapter or
53-25 under Chapter 13, Water Code, that have been deposited in the
53-26 account; or
53-27 (2) capital improvements and operating and maintenance
54-1 expenses for a utility placed in receivership or under a temporary
54-2 manager under Section 7.404 [13.4132], Water Code.
54-3 SECTION 58. The heading to Section 44.901, Education Code,
54-4 is amended to read as follows:
54-5 Sec. 44.901. ENERGY OR WATER CONSERVATION MEASURES
54-6 SECTION 59. Sections 44.901(a)-(f), Education Code, are
54-7 amended to read as follows:
54-8 (a) The board of trustees of a school district may enter
54-9 into a contract for energy or water conservation measures to reduce
54-10 energy or water consumption or operating costs of school facilities
54-11 in accordance with this section.
54-12 (b) A contract to which this section applies includes a
54-13 contract for the installation of:
54-14 (1) insulation of the building structures and systems
54-15 within the building;
54-16 (2) storm windows or doors, caulking or
54-17 weatherstripping, multiglazed windows or doors, heat absorbing or
54-18 heat reflective glazed and coated window or door systems, or other
54-19 window or door system modifications that reduce energy consumption;
54-20 (3) automatic energy control systems, including
54-21 computer software and technical data licenses;
54-22 (4) heating, ventilating, or air-conditioning system
54-23 modifications or replacements that reduce energy or water
54-24 consumption;
54-25 (5) lighting fixtures that increase energy efficiency;
54-26 (6) energy recovery systems;
54-27 (7) electric systems improvements; [or]
55-1 (8) water-conserving landscape irrigation equipment;
55-2 (9) water-saving plumbing fixtures, appliances, or
55-3 equipment;
55-4 (10) water reuse, rainwater harvesting, or other
55-5 alternative water source technologies for landscape irrigation,
55-6 toilet and urinal flushing, or other purposes;
55-7 (11) substitution of non-water-using fixtures,
55-8 appliances, equipment, or practices for water-using fixtures,
55-9 appliances, equipment, or practices, if feasible; or
55-10 (12) other energy or water conservation-related
55-11 improvements or equipment (including improvements or equipment
55-12 relating to renewable energy).
55-13 (c) All energy or water conservation measures must comply
55-14 with current local, state, and federal construction and
55-15 environmental codes and regulations. Notwithstanding anything to
55-16 the contrary in Subsection (b), a contract for energy or water
55-17 conservation measures shall not include improvements or equipment
55-18 that allow or cause water from any condensing, cooling, or
55-19 industrial process or any system of nonpotable usage over which the
55-20 public water supply system officials do not have sanitary
55-21 control[,] to be returned to the potable water supply.
55-22 (d) The person with whom the board contracts must be
55-23 experienced in the design, implementation, and installation of the
55-24 energy or water conservation measures addressed by the contract.
55-25 Section 19, The Texas Engineering Practice Act (Article 3271a,
55-26 Vernon's Texas Civil Statutes), applies to work performed under the
55-27 contract.
56-1 (e) Before entering into a contract for energy or water
56-2 conservation measures, the board shall require the provider of the
56-3 energy or water conservation measures to file with the board a
56-4 payment and performance bond relating to the installation of energy
56-5 or water conservation measures that is in an amount the board finds
56-6 reasonable and necessary to protect the interests of the school
56-7 district and that may also cover the value of the guaranteed
56-8 savings on the contract and is conditioned on the faithful
56-9 execution of the terms of the contract.
56-10 (f) A contract for energy or water conservation measures,
56-11 with respect to existing buildings or facilities, may be a
56-12 lease/purchase contract, with a term not to exceed 10 years, that
56-13 meets federal tax requirements for tax-free municipal leasing or
56-14 long-term financing. The contract shall contain provisions
56-15 pursuant to which the provider of the energy or water conservation
56-16 measures guarantees the amount of the savings to be realized by the
56-17 school district under the contract. If the term of a contract for
56-18 energy or water conservation measures exceeds one year, the school
56-19 district's contractual obligations in any one year during the term
56-20 of the contract may not exceed the total energy or water and
56-21 operating cost savings, including but not limited to electrical,
56-22 gas, water, or other utility cost savings and operating cost
56-23 savings resulting from automatic monitoring and control as
56-24 determined by the school district in this subsection, divided by
56-25 the number of years in the contract term.
56-26 SECTION 60. Section 51.927, Education Code, as amended by
56-27 Chapters 627 and 1142, Acts of the 75th Legislature, Regular
57-1 Session, 1997, is reenacted and amended to read as follows:
57-2 Sec. 51.927. ENERGY OR WATER CONSERVATION MEASURES. (a)
57-3 The governing board of an institution of higher education may enter
57-4 into a contract for energy or water conservation measures to reduce
57-5 energy or water consumption or operating costs of institutional
57-6 facilities in accordance with this section.
57-7 (b) A contract to which this section applies includes a
57-8 contract for the installation of:
57-9 (1) insulation of a building structure and systems
57-10 within a building;
57-11 (2) storm windows of doors, caulking or weather
57-12 stripping, multiglazed windows or doors, heat-absorbing or
57-13 heat-reflective glazed and coated window or door systems, or other
57-14 window or door system modifications that reduce energy consumption;
57-15 (3) automatic energy control systems, including
57-16 computer software and technical data licenses;
57-17 (4) heating, ventilating, or air conditioning system
57-18 modifications or replacements that reduce energy or water
57-19 consumption;
57-20 (5) lighting fixtures that increase energy efficiency;
57-21 (6) energy recovery systems;
57-22 (7) electric systems improvements; [or]
57-23 (8) water-conserving landscape irrigation equipment;
57-24 (9) water-saving plumbing fixtures, appliances, or
57-25 equipment;
57-26 (10) water reuse, rainwater harvesting, or other
57-27 alternative water source technologies for landscape irrigation,
58-1 toilet and urinal flushing, or other purposes;
58-2 (11) substitution of non-water-using fixtures,
58-3 appliances, equipment, or practices for water-using fixtures,
58-4 appliances, equipment, or practices, if feasible; or
58-5 (12) other energy or water conservation-related
58-6 improvements or equipment (including improvements or equipment
58-7 related to renewable energy).
58-8 (c) All energy or water conservation measures must comply
58-9 with current local, state, and federal construction and
58-10 environmental codes and regulations. Notwithstanding anything to
58-11 the contrary in Subsection (b), a contract for energy or water
58-12 conservation measures shall not include improvements or equipment
58-13 that allow or cause water from any condensing, cooling, or
58-14 industrial process or any system of nonpotable usage over which the
58-15 public water supply system officials do not have sanitary
58-16 control[,] to be returned to the potable water supply.
58-17 (d) The entity with whom the board contracts must be
58-18 experienced in the design, implementation, and installation of the
58-19 energy or water conservation measures addressed by the contract.
58-20 Section 19, The Texas Engineering Practice Act (Article 3271a,
58-21 Vernon's Texas Civil Statutes), applies to work performed under the
58-22 contract.
58-23 (e) Before entering into a contract for energy or water
58-24 conservation measures, the board shall require the provider of the
58-25 energy or water conservation measures to file with the board a
58-26 payment and performance bond that is in an amount the board finds
58-27 reasonable and necessary to protect the interests of the
59-1 institution and is conditioned on the faithful execution of the
59-2 terms of the contract.
59-3 (f) The board may enter into a contract for a period of more
59-4 than one year for energy or water conservation measures with an
59-5 entity if the board finds that the amount the institution would
59-6 spend on the energy or water conservation measures will not exceed
59-7 the amount to be saved in energy or water and operating costs over
59-8 10 years from the date of installation. If the term of a contract
59-9 for energy or water conservation measures exceeds one year, the
59-10 board's contractual obligation in any year during the term of the
59-11 contract beginning after the final date of installation may not
59-12 exceed the total energy or water and operating cost savings,
59-13 including but not limited to electrical, gas, water, or other
59-14 utility cost savings and operating cost savings resulting from
59-15 automatic monitoring and control, as determined by the board in
59-16 this subsection, divided by the number of years in the contract
59-17 term beginning after the final date of installation. The board
59-18 shall consider all costs of the energy or water conservation
59-19 measures, including costs of design, engineering, installation,
59-20 maintenance, repairs, and debt service.
59-21 (g) A contract for energy or water conservation measures may
59-22 be a lease/purchase contract, with a term not to exceed 10 years
59-23 after the final date of installation, that meets federal tax
59-24 requirements for tax-free municipal leasing or long-term financing.
59-25 The contract shall contain provisions pursuant to which the
59-26 provider of the energy or water conservation measures guarantees
59-27 the amount of the savings to be realized by the institution of
60-1 higher education under the contract. The Master Equipment Lease
60-2 Purchase Program operated by the Texas Public Finance Authority may
60-3 be utilized by an institution to fund a contract for energy or
60-4 water conservation measures so long as the costs of the energy or
60-5 water conservation measures, including costs of design,
60-6 engineering, installation, maintenance, repairs, and anticipated
60-7 debt service requirements of the Master Equipment Lease Purchase
60-8 Program, do not exceed the total energy or water and operating cost
60-9 savings, as described in Subsection (f) [(e)], beginning after the
60-10 final date of installation.
60-11 (h) A contract under this section may be let under
60-12 competitive sealed proposal procedures. Notice of the request for
60-13 proposals shall be given in the manner provided for in Chapter
60-14 2156, Government Code. The Texas Higher Education Coordinating
60-15 Board, in consultation with the State Energy Conservation Office
60-16 and the Texas Energy Coordination Council with regard to energy
60-17 conservation measures and the Texas Water Development Board with
60-18 regard to water conservation measures, shall establish guidelines
60-19 and an approval process for contracts awarded under this section.
60-20 The guidelines must require that the cost savings projected by
60-21 offerors be reviewed by a licensed professional engineer selected
60-22 by the board who is not an officer or employee of an offeror or
60-23 otherwise associated with a proposed contract. A contract is not
60-24 required to be reviewed or approved by the [The] State Energy
60-25 Conservation Office, [and] the Texas Energy Coordination Council,
60-26 or the Texas Water Development Board [shall review the selected
60-27 proposal before a contract is awarded. The State Energy
61-1 Conservation Office may provide a cost-benefit analysis of the
61-2 proposals and an analysis of the guaranteed savings projected by
61-3 offerors and may charge a fee for this service]. The contract
61-4 shall be awarded to the responsible offeror whose proposal,
61-5 following negotiations, is determined by the institution to be the
61-6 most advantageous to the institution considering the guaranteed
61-7 savings and other evaluation factors set forth in the request for
61-8 proposals, except that if the institution finds that no offer is
61-9 acceptable, it shall refuse all offers.
61-10 (i) In accordance with regulations adopted by the
61-11 institution, the institution may conduct discussions with offerors
61-12 who submit proposals and who are determined to be reasonably
61-13 qualified for the award of the contract. Offerors shall be treated
61-14 fairly and equally with respect to any opportunity for discussion
61-15 and revision of proposals. To obtain the best final offers, the
61-16 institution may allow proposal revisions after submissions and
61-17 before the award of the contract.
61-18 (j) If provided in a request for proposals under Subsection
61-19 (h) [(g) of this section], proposals shall be opened in a manner
61-20 that avoids disclosure of the contents to competing offerors and
61-21 keeps the proposals secret during negotiations. All proposals are
61-22 open for public inspection after a contract is awarded unless the
61-23 information is excepted from disclosure under Chapter 552,
61-24 Government Code.
61-25 (k) The legislature shall base an institution's
61-26 appropriation for energy or water costs during a fiscal year on the
61-27 sum of:
62-1 (1) the institution's estimated energy or water costs
62-2 for that fiscal year; and
62-3 (2) if a contract under this section is in effect, the
62-4 institution's estimated net savings resulting from the contract
62-5 during the contract term, divided by the number of years in the
62-6 contract term.
62-7 SECTION 61. The heading to Section 2166.406, Government
62-8 Code, is amended to read as follows:
62-9 Sec. 2166.406. ENERGY OR WATER CONSERVATION MEASURES
62-10 SECTION 62. Sections 2166.406(a)-(h), (k), and (l),
62-11 Government Code, are amended to read as follows:
62-12 (a) Notwithstanding any other provisions of this chapter,
62-13 the governing body of a state agency, without the consent of the
62-14 commission, may enter into a contract for energy or water
62-15 conservation measures to reduce energy or water consumption or
62-16 operating costs of governmental facilities in accordance with this
62-17 section.
62-18 (b) A contract authorized under this chapter includes a
62-19 contract for the installation of:
62-20 (1) insulation of the building structure and systems
62-21 within the building;
62-22 (2) storm windows or doors, caulking or weather
62-23 stripping, multiglazed windows or doors, heat absorbing or heat
62-24 reflective glazed and coated window or door systems, or other
62-25 window or door system modifications that reduce energy consumption;
62-26 (3) automatic energy control systems, including
62-27 computer software and technical data licenses;
63-1 (4) heating, ventilating, or air-conditioning system
63-2 modifications or replacements that reduce energy or water
63-3 consumption;
63-4 (5) lighting fixtures that increase energy efficiency;
63-5 (6) energy recovery systems;
63-6 (7) electric systems improvements; [or]
63-7 (8) water-conserving landscape irrigation equipment;
63-8 (9) water-saving plumbing fixtures, appliances, or
63-9 equipment;
63-10 (10) water reuse, rainwater harvesting, or other
63-11 alternative water source technologies for landscape irrigation,
63-12 toilet and urinal flushing, or other purposes;
63-13 (11) substitution of non-water-using fixtures,
63-14 appliances, equipment, or practices for water-using fixtures,
63-15 appliances, equipment, or practices, if feasible; or
63-16 (12) other energy or water conservation-related
63-17 improvements or equipment (including improvements or equipment
63-18 related to renewable energy).
63-19 (c) All energy or water conservation measures must comply
63-20 with current local, state, and federal construction and
63-21 environmental codes and regulations. Notwithstanding anything to
63-22 the contrary in Subsection (b), a contract for energy or water
63-23 conservation measures shall not include improvements or equipment
63-24 that allow or cause water from any condensing, cooling, or
63-25 industrial process or any system of nonpotable usage over which the
63-26 public water supply system officials do not have sanitary control
63-27 to be returned to the potable water supply.
64-1 (d) The entity with whom the board contracts must be
64-2 experienced in the design, implementation, and installation of the
64-3 energy or water conservation measures addressed by the contract.
64-4 Section 19, The Texas Engineering Practice Act (Article 3271a,
64-5 Vernon's Texas Civil Statutes), applies to work performed under the
64-6 contract.
64-7 (e) Before entering into a contract for energy or water
64-8 conservation measures, the governing body of the state agency shall
64-9 require the provider of the energy or water conservation measures
64-10 to file with the governing body a payment and performance bond that
64-11 is in an amount the governing body finds reasonable and necessary
64-12 to protect the interests of the state agency and that is
64-13 conditioned on the faithful execution of the terms of the contract.
64-14 (f) The state agency may enter into a contract for a period
64-15 of more than one year for energy or water conservation measures
64-16 with an entity if the state agency finds that the amount the state
64-17 agency would spend on the energy or water conservation measures
64-18 will not exceed the amount to be saved in energy or water and
64-19 operating costs over 10 years from the date of installation.
64-20 (g) A contract for energy or water conservation measures,
64-21 with respect to existing buildings or facilities, may be a
64-22 lease/purchase contract with a term not to exceed 10 years, that
64-23 meets federal tax requirements for tax-free municipal leasing or
64-24 long-term financing. The contract shall contain provisions
64-25 pursuant to which the provider of the energy or water conservation
64-26 measures guarantees the amount of the savings to be realized by the
64-27 state agency under the contract. If the term of a contract for
65-1 energy or water conservation measures exceeds one year, the
65-2 agency's contractual obligation in any year during the term of the
65-3 contract may not exceed the total energy or water and operating
65-4 cost savings, including but not limited to electrical, gas, water,
65-5 or other utility cost savings and operating cost savings resulting
65-6 from automatic monitoring and control, as determined by the state
65-7 agency in this subsection, divided by the number of years in the
65-8 contract term.
65-9 (h) A contract under this chapter may be let under
65-10 competitive sealed proposal procedures. Notice of the request for
65-11 proposals shall be given in the manner provided for in Chapter
65-12 2156, Government Code. A contract must comply with the guidelines
65-13 established under Section 51.927(h), Education Code. The cost
65-14 savings projected by offerors must be reviewed by a licensed
65-15 professional engineer selected by the governing body of the state
65-16 agency having charge and control of the building and facility who
65-17 is not an officer or employee of an offeror or otherwise associated
65-18 with a proposed contract. A contract is not required to be
65-19 reviewed or approved by the State Energy Conservation Office, the
65-20 Texas Energy Coordination Council, or the Texas Water Development
65-21 Board [Before awarding the contract, the state agency shall submit
65-22 the selected proposal to the State Energy Conservation Office and
65-23 the Texas Energy Coordination Council for review and comment before
65-24 awarding the contract. The State Energy Conservation Office and
65-25 the Texas Energy Coordination Council will provide a cost-benefit
65-26 analysis of the proposals and an analysis of the guaranteed savings
65-27 projected by offerors and may charge a fee for this service]. The
66-1 contract shall be awarded to the responsible offeror whose
66-2 proposal, following negotiations, is determined to be the most
66-3 advantageous to the state agency considering the savings and other
66-4 evaluation factors set forth in the request for proposals except
66-5 that if the state agency finds that no offer is acceptable, it
66-6 shall refuse all offers.
66-7 (k) To obtain the best final offers, the state agency may
66-8 allow proposal revisions after submissions and before the award of
66-9 the contract. Final review and approval of a [the] contract for
66-10 energy conservation measures will be provided by the State Energy
66-11 Conservation Office.
66-12 (l) The legislature shall base an agency's appropriation for
66-13 energy or water costs during a fiscal year on the sum of:
66-14 (1) the agency's estimated energy or water costs for
66-15 that fiscal year; and
66-16 (2) if a contract under this section is in effect, the
66-17 agency's estimated net savings resulting from the contract during
66-18 the contract term, divided by the number of years in the contract
66-19 term.
66-20 SECTION 63. (a) Sections 11.082, 11.0841, 11.0842, 11.148,
66-21 13.411, 13.4133, 13.4151, 13.416, 13.417, and 13.418, Water Code,
66-22 are repealed.
66-23 (b) Sections 341.049 and 341.050, Health and Safety Code,
66-24 are repealed.
66-25 SECTION 64. This Act takes effect September 1, 1999.
66-26 SECTION 65. (a) The changes in law made by this Act apply
66-27 only to an offense committed or a violation or threat of violation
67-1 that occurs on or after September 1, 1999. For purposes of this
67-2 section an offense is committed and a violation or threat of
67-3 violation occurs before September 1, 1999, if any element of the
67-4 offense, violation, or threat of violation occurs before that date.
67-5 (b) An offense committed or a violation or threat of
67-6 violation that occurred before September 1, 1999, is covered by the
67-7 law in effect when the offense was committed or the violation or
67-8 threat of violation occurred, and the former law is continued in
67-9 effect for that purpose.
67-10 (c) The change in law made by Section 15.102(b), Water Code,
67-11 as amended by this Act, applies only to an application for a grant
67-12 from the water loan assistance fund that is filed on or after the
67-13 effective date of this Act. A grant application that is filed
67-14 before the effective date of this Act is governed by the law in
67-15 effect immediately before the effective date of this Act, and that
67-16 law is continued in effect for that purpose.
67-17 (d) The changes in law made by Sections 16.053(m)-(o), Water
67-18 Code, as added by this Act, apply only to a cause of action that
67-19 accrues on or after the effective date of this Act. A cause of
67-20 action that accrued before the effective date of this Act is
67-21 governed by the law in effect on the date the cause of action
67-22 accrued, and that law is continued in effect for that purpose.
67-23 (e) The changes in law made by Sections 17.871 and 17.895,
67-24 Water Code, as amended by this Act, and Section 17.8955, Water
67-25 Code, as added by this Act, apply only to a conservation loan for
67-26 which an application is filed on or after the effective date of
67-27 this Act. A conservation loan for which an application was filed
68-1 before the effective date of this Act is governed by the law in
68-2 effect immediately before the effective date of this Act, and that
68-3 law is continued in effect for that purpose.
68-4 SECTION 66. The importance of this legislation and the
68-5 crowded condition of the calendars in both houses create an
68-6 emergency and an imperative public necessity that the
68-7 constitutional rule requiring bills to be read on three several
68-8 days in each house be suspended, and this rule is hereby suspended.