1-1 By: Brown S.B. No. 1311
1-2 (In the Senate - Filed March 11, 1999; March 15, 1999, read
1-3 first time and referred to Committee on Natural Resources;
1-4 April 6, 1999, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 6, Nays 0; April 6, 1999,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 1311 By: Brown
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the development and management of the water resources.
1-11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12 SECTION 1. Subsection (a), Section 5.504, Water Code, is
1-13 amended to read as follows:
1-14 (a) If the commission, the executive director, or the
1-15 executive director's representative issues an emergency order under
1-16 this subchapter without a hearing, the order shall set a time and
1-17 place for a hearing to affirm, modify, or set aside the emergency
1-18 order to be held before the commission or its designee as soon as
1-19 practicable after the order is issued. If the emergency order is
1-20 issued under Section 5.517 or 5.518, the order shall set a time for
1-21 the hearing not later than the 20th day after the date the
1-22 emergency order is issued.
1-23 SECTION 2. Subchapter L, Chapter 5, Water Code, is amended
1-24 by adding Sections 5.517, 5.518, 5.519, and 5.520 to read as
1-25 follows:
1-26 Sec. 5.517. EMERGENCY PERMIT TO DIVERT AND USE WATER;
1-27 AMENDMENT TO WATER RIGHT. (a) Except as provided by Section 5.506
1-28 and after notification to the governor, the commission by emergency
1-29 order may issue a permit to divert and use water or amend an
1-30 existing permit, certified filing, or certificate of adjudication
1-31 for an initial period not to exceed 120 days if the commission
1-32 finds that:
1-33 (1) emergency conditions exist that present an
1-34 imminent threat to the public health, safety, and welfare or the
1-35 environment and that override the necessity to comply with
1-36 established statutory procedures; and
1-37 (2) there is no feasible practicable alternative to
1-38 the emergency authorization. The emergency authorization may be
1-39 renewed once for a period not to exceed 60 days.
1-40 (b) The executive director may issue an emergency order if
1-41 an imminent threat to the public health, safety, and welfare or the
1-42 environment exists that requires emergency action before the
1-43 commission can take action under Subsection (a) and there is no
1-44 feasible alternative. If the executive director issues an
1-45 emergency order under this subsection, the commission shall hold a
1-46 hearing as provided for in Section 5.504 as soon as practicable but
1-47 not later than 20 days after issuance of the order to affirm,
1-48 modify, or set aside the order.
1-49 (c) The notice requirements of Section 11.132 relating to
1-50 the time for notice, newspaper notice, and method of giving a
1-51 person notice do not apply to a hearing held on an application for
1-52 an emergency order under this section. The commission shall give
1-53 the general notice of the hearing that the commission considers
1-54 practicable under the circumstances.
1-55 (d) The commission may adopt rules and impose fees necessary
1-56 to carry out the provisions of this section.
1-57 (e) An emergency order under this section does not vest in
1-58 the grantee any right to the diversion, impoundment, or use of
1-59 water and expires by its terms.
1-60 Sec. 5.518. EMERGENCY ORDER FOR TEMPORARY TRANSFER OF USE OF
1-61 WATER RIGHT. (a) The commission by emergency order may grant the
1-62 temporary transfer and use of all or part of a surface water right
1-63 for other than domestic or municipal use to a retail or wholesale
1-64 water supplier for public health and safety purposes.
2-1 (b) The commission may direct the applicant to timely pay
2-2 the amounts for which the applicant may be potentially liable under
2-3 this section and to fully indemnify and hold harmless the state,
2-4 the executive director, and the commission from any and all
2-5 liability for the order sought. The commission may order bond or
2-6 other surety in a form acceptable to the commission as a condition
2-7 for an emergency order under this section. The commission may not
2-8 grant an emergency authorization under this section that would
2-9 cause a violation of a federal regulation.
2-10 (c) In transferring the amount of water requested by the
2-11 applicant, the executive director or the commission shall allocate
2-12 the requested amount among two or more permits, certified filings,
2-13 or certificates of adjudication for other than domestic or
2-14 municipal use.
2-15 (d) A person granted an emergency order under this section
2-16 is liable to the owner from whom the use is transferred for the
2-17 fair market value of the water transferred and for any damages
2-18 proximately caused by the transfer of use. If, within 60 days of
2-19 the termination of the order, the parties do not agree on the
2-20 amount due, or if full payment is not made, either party may file a
2-21 complaint with the commission to determine the amount due.
2-22 (e) The commission by rule shall establish a dispute
2-23 resolution procedure for a complaint filed under this section.
2-24 After exhausting all administrative remedies under this section, an
2-25 owner from whom the use is transferred may file suit to recover or
2-26 determine the amount due in a district court in the county where
2-27 the owner resides or has its headquarters. The prevailing party in
2-28 a suit filed under this subsection is entitled to recover court
2-29 costs and reasonable attorney's fees.
2-30 Sec. 5.519. EMERGENCY WORKS SAFETY ORDER. The commission
2-31 may issue a mandatory or prohibitory emergency order directing the
2-32 owner of a dam, levee, or other water-storage or flood-control work
2-33 to repair, modify, maintain, dewater, or remove a work if the
2-34 commission finds that:
2-35 (1) the existing condition of the work is causing or
2-36 will cause extensive or severe property damage or economic loss to
2-37 others or is posing an immediate and serious threat to human life
2-38 or health; and
2-39 (2) other procedures available to the commission to
2-40 remedy or prevent the occurrence will result in unreasonable delay.
2-41 Sec. 5.520. EMERGENCY ORDER FOR OPERATION OF UTILITY THAT
2-42 DISCONTINUES OPERATION OR IS REFERRED FOR APPOINTMENT OF RECEIVER.
2-43 The commission may issue an emergency order appointing a willing
2-44 person to temporarily manage and operate a utility under Section
2-45 7.404. Notice of the action is adequate if the notice is mailed or
2-46 hand delivered to the last known address of the utility's
2-47 headquarters.
2-48 SECTION 3. Section 7.004, Water Code, is amended to read as
2-49 follows:
2-50 Sec. 7.004. REMEDIES CUMULATIVE. The remedies under this
2-51 chapter are cumulative of all other remedies. Nothing in this
2-52 chapter affects the right of a private corporation, [or]
2-53 individual, or political subdivision that has a justiciable
2-54 interest to pursue any available common law remedy to enforce a
2-55 right, to abate a condition of pollution or other nuisance, to
2-56 recover damages to enforce a right, or to prevent or seek redress
2-57 or compensation for the violation of a right or otherwise redress
2-58 an injury.
2-59 SECTION 4. Subchapter B, Chapter 7, Water Code, is amended
2-60 by adding Section 7.034 to read as follows:
2-61 Sec. 7.034. ATTORNEY'S FEES; COSTS. A district court may
2-62 award the costs of litigation, including reasonable attorney's fees
2-63 and expert costs, to any political subdivision of the state,
2-64 private corporation, or individual that is a water right holder and
2-65 that prevails in a suit for injunctive relief to redress an
2-66 unauthorized diversion, impoundment, or use of surface water in
2-67 violation of Chapter 11 or a rule adopted under Chapter 11.
2-68 SECTION 5. Subsection (b), Section 7.051, Water Code, is
2-69 amended to read as follows:
3-1 (b) Except as provided by this subsection, this [This]
3-2 subchapter does not apply to violations of Chapter [11,] 12 or[,
3-3 13,] 16[, or 36 of this code, or Chapter 341, Health and Safety
3-4 Code]. This subchapter does apply to Section 16.236.
3-5 SECTION 6. Section 7.052, Water Code, is amended to read as
3-6 follows:
3-7 Sec. 7.052. MAXIMUM PENALTY. (a) The amount of the penalty
3-8 for a violation of Chapter 18, 32, 33, or 34 of this code or
3-9 Chapter 366, 371, or 372, Health and Safety Code, may not exceed
3-10 $2,500 a day for each violation.
3-11 (b) The amount of the penalty for a violation of Chapter 11
3-12 or a rule or order adopted under or a permit, certified filing, or
3-13 certificate of adjudication issued under Chapter 11 may not exceed
3-14 $5,000 a day for each violation.
3-15 (c) The penalty for a violation of a rule or order adopted
3-16 under Section 16.236 may not exceed $1,000 a day for each
3-17 violation.
3-18 (d) The amount of the penalty for a violation under Chapter
3-19 341, Health and Safety Code, may not be less than $50 or more than
3-20 $1,000 for each violation.
3-21 (e) The amount of the penalty for all other violations
3-22 within the jurisdiction of the commission to enforce may not exceed
3-23 $10,000 a day for each violation.
3-24 (f) [(c)] Each day that a continuing violation occurs may be
3-25 considered a separate violation. The commission may authorize an
3-26 installment payment schedule for an administrative penalty assessed
3-27 under this subchapter, except for an administrative penalty
3-28 assessed under Section 7.057 or assessed after a hearing under
3-29 Section 7.058.
3-30 SECTION 7. Section 7.054, Water Code, is amended to read as
3-31 follows:
3-32 Sec. 7.054. REPORT OF VIOLATION. (a) If, after examination
3-33 of a possible violation and the facts surrounding that possible
3-34 violation, the executive director concludes that a violation has
3-35 occurred, the executive director may issue a preliminary report in
3-36 accordance with commission rules that includes recommendations
3-37 regarding any penalty or corrective action.
3-38 (b) A report regarding a possible violation under Chapter 11
3-39 must state the facts on which the conclusion was based and
3-40 recommend the amount of any penalty. The executive director shall
3-41 base the recommended amount of the proposed penalty on the factors
3-42 provided by Section 7.053 and shall analyze each factor for the
3-43 benefit of the commission.
3-44 SECTION 8. Section 7.069, Water Code, is amended to read as
3-45 follows:
3-46 Sec. 7.069. DISPOSITION OF PENALTY. (a) Except as provided
3-47 by Subsection (b), a [A] penalty collected under this subchapter
3-48 shall be deposited to the credit of the general revenue fund.
3-49 (b) A penalty collected under this subchapter from a public
3-50 utility shall be paid to the commission and deposited in the water
3-51 utility improvement account as provided by Section 341.0485, Health
3-52 and Safety Code.
3-53 SECTION 9. Section 7.102, Water Code, is amended to read as
3-54 follows:
3-55 Sec. 7.102. MAXIMUM PENALTY. (a) A person who causes,
3-56 suffers, allows, or permits a violation of a statute, rule, order,
3-57 or permit relating to Chapter 11, 18, 32, 33, or 34 of this code or
3-58 Chapter 366, 371, or 372, Health and Safety Code, shall be assessed
3-59 for each violation a civil penalty not less than $50 nor greater
3-60 than $5,000 for each day of each violation as the court or jury
3-61 considers proper.
3-62 (b) The amount of a penalty for a violation of a rule or
3-63 order issued by the commission under Section 12.052 may not exceed
3-64 $5,000.
3-65 (c) A person who causes, suffers, allows, or permits a
3-66 violation of a statute, rule, order, or permit relating to Chapter
3-67 13 shall be assessed for each violation a civil penalty not less
3-68 than $100 nor greater than $5,000 for each day of each violation as
3-69 the court or jury considers proper.
4-1 (d) A person who causes, suffers, allows, or permits a
4-2 violation of a statute, rule, order, or permit relating to any
4-3 other matter within the commission's jurisdiction to enforce, other
4-4 than violations of Chapter [11,]12 or[, 13,] 16[, or 36] of this
4-5 code, or Chapter 341, Health and Safety Code, shall be assessed for
4-6 each violation of a civil penalty not less than $50 nor greater
4-7 than $25,000 for each day of each violation as the court or jury
4-8 considers proper.
4-9 (e) Each day of a continuing violation is a separate
4-10 violation.
4-11 SECTION 10. Subsections (a) and (c), Section 7.105, Water
4-12 Code, are amended to read as follows:
4-13 (a) On the request of the executive director or the
4-14 commission, the attorney general shall institute a suit in the name
4-15 of the state for injunctive relief under Section 7.032, to recover
4-16 a civil penalty, or for both injunctive relief and a civil penalty.
4-17 The attorney general may initiate a suit for recovery of a penalty
4-18 under this section for a violation under Section 13.414.
4-19 (c) Except as provided by this subsection, the [The] suit
4-20 may be brought in Travis County, in the county in which the
4-21 defendant resides, or in the county in which the violation or
4-22 threat of violation occurs. A suit to recover a penalty for a
4-23 violation of a rule or order issued by the commission under Section
4-24 12.052 may be brought in Travis County.
4-25 SECTION 11. Subchapter D, Chapter 7, Water Code, is amended
4-26 by adding Section 7.1075 to read as follows:
4-27 Sec. 7.1075. DISPOSITION OF PENALTY COLLECTED FROM PUBLIC
4-28 UTILITY. A penalty collected under this subchapter from a public
4-29 utility shall be paid to the commission and deposited in the water
4-30 utility improvement account as provided by Section 341.0485, Health
4-31 and Safety Code.
4-32 SECTION 12. Subchapter D, Chapter 7, Water Code, is amended
4-33 by adding Section 7.112 to read as follows:
4-34 Sec. 7.112. LIMITATION ON SUIT FOR VIOLATION OF SECTION
4-35 11.081. An action to collect the penalty provided by Section 7.102
4-36 for a violation of Section 11.081 must be brought within two years
4-37 from the date of the alleged violation.
4-38 SECTION 13. Section 7.351, Water Code, is amended to read as
4-39 follows:
4-40 Sec. 7.351. CIVIL SUITS. If it appears that a violation or
4-41 threat of violation of Chapter 16, 26, 28, or 34 of this code or
4-42 Chapter 341, 361, 371, 372, or 382, Health and Safety Code, or a
4-43 provision of Chapter 401, Health and Safety Code, under the
4-44 commission's jurisdiction or a rule adopted or an order or a permit
4-45 issued under those chapters or provisions has occurred or is
4-46 occurring in the jurisdiction of a local government, the local
4-47 government or, in the case of a violation of Chapter 401, Health
4-48 and Safety Code, a person affected as defined in that chapter, may
4-49 institute a civil suit under Subchapter D in the same manner as the
4-50 commission in a district court by its own attorney for the
4-51 injunctive relief or civil penalty, or both, as authorized by this
4-52 chapter against the person who committed, is committing, or is
4-53 threatening to commit the violation.
4-54 SECTION 14. Section 11.0843, Water Code, is amended to read
4-55 as follows:
4-56 Sec. 11.0843. FIELD CITATION. [(a)] Upon witnessing a
4-57 violation of this chapter or a rule or order or a water right
4-58 issued under this chapter, a watermaster or the watermaster's
4-59 deputy, as defined by commission rule, may issue the alleged
4-60 violator a field citation alleging that a violation has occurred
4-61 [and providing the alleged violator the option of either:]
4-62 [(1) without admitting to or denying the alleged
4-63 violation, paying an administrative penalty in accordance with the
4-64 predetermined penalty amount established under Subsection (b) of
4-65 this section and taking remedial action as provided in the
4-66 citation; or]
4-67 [(2) requesting a hearing on the alleged violation in
4-68 accordance with Section 11.0842 of this code.]
4-69 [(b) By rule the commission shall establish penalty amounts
5-1 corresponding to types of violations of this chapter or rules or
5-2 orders adopted or water rights issued under this chapter.]
5-3 [(c) A penalty collected under this section shall be
5-4 deposited in the state treasury to the credit of the general
5-5 revenue fund].
5-6 SECTION 15. Section 11.085, Water Code, is amended by adding
5-7 Subsection (w) to read as follows:
5-8 (w) The requirements of this section apply to the transfer
5-9 of water from one river basin to another regardless of whether all
5-10 or any part of the water right, permit, certified filing, or
5-11 certificate of adjudication under which the water is authorized to
5-12 be used is also transferred.
5-13 SECTION 16. Subsection (a), Section 11.138, Water Code, is
5-14 amended to read as follows:
5-15 (a) The commission may issue temporary permits for
5-16 beneficial purposes to the extent that they do not interfere with
5-17 or adversely affect prior appropriations or vested rights on the
5-18 stream from which water is to be diverted under such temporary
5-19 permit. The commission may, by appropriate order, authorize any
5-20 member of the commission to approve and issue temporary permits
5-21 without notice and hearing if it appears to such issuing party that
5-22 sufficient water is available at the proposed point of diversion to
5-23 satisfy the requirements of the temporary permit as well as all
5-24 existing rights. No temporary permit issued without notice and
5-25 hearing shall authorize more than 10 acre-feet of water, nor may it
5-26 be for a term in excess of one year. The commission by rule may
5-27 authorize the beneficial use, without a permit, of not more than 25
5-28 acre-feet of water, for a term not to exceed one year, if the
5-29 diversion of water will not affect existing water right holders and
5-30 the user of the water registers the use with the commission in the
5-31 manner required by the commission.
5-32 SECTION 17. Section 11.139, Water Code, is amended to read
5-33 as follows:
5-34 Sec. 11.139. Emergency Authorizations. [(a)] Except as
5-35 provided by Section 5.506 [11.148] of this code, the commission may
5-36 grant an emergency permit, order, or amendment to an existing
5-37 permit, certified filing, or certificate of adjudication under
5-38 Subchapter L, Chapter 5 [after notice to the governor for an
5-39 initial period of not more than 120 days if the commission finds
5-40 that emergency conditions exist which present an imminent threat to
5-41 the public health and safety and which override the necessity to
5-42 comply with established statutory procedures and there are no
5-43 feasible practicable alternatives to the emergency authorization.
5-44 Such emergency action may be renewed once for not longer than 60
5-45 days].
5-46 [(b) A person desiring to obtain an emergency authorization
5-47 under this section shall submit to the commission a sworn
5-48 application containing the following information:]
5-49 [(1) a description of the condition of emergency
5-50 justifying the granting of the emergency authorization;]
5-51 [(2) a statement setting forth facts which support the
5-52 findings required under this section;]
5-53 [(3) an estimate of the dates on which the proposed
5-54 authorization should begin and end;]
5-55 [(4) a description of the action sought and the
5-56 activity proposed to be allowed, mandated, or prohibited; and]
5-57 [(5) any other statements or information required by
5-58 the commission.]
5-59 [(c) If the commission finds the applicant's statement made
5-60 under Subsection (b) of this section to be correct, the commission
5-61 may grant emergency authorizations under this section without
5-62 notice and hearing or with such notice and hearing as the
5-63 commission considers practicable under the circumstances.]
5-64 [(d) If the commission grants an emergency authorization
5-65 under this section without a hearing, the authorization shall fix a
5-66 time and place for a hearing to be held before the commission. The
5-67 hearing shall be held as soon after the emergency authorization is
5-68 granted as is practicable but not later than 20 days after the
5-69 emergency authorization is granted.]
6-1 [(e) At the hearing, the commission shall affirm, modify, or
6-2 set aside the emergency authorization. Any hearing on an emergency
6-3 authorization shall be conducted in accordance with Chapter 2001,
6-4 Government Code, and rules of the commission.]
6-5 [(f) If an imminent threat to the public health and safety
6-6 exists which requires emergency action before the commission can
6-7 take action as provided by Subsections (a) through (c) of this
6-8 section and there are no feasible alternatives, the executive
6-9 director may grant an emergency authorization after notice to the
6-10 governor. If the executive director issues an emergency
6-11 authorization under this subsection, the commission shall hold a
6-12 hearing as provided for in Subsections (d) and (e) of this section.
6-13 The requirements of Subsection (b) of this section shall be
6-14 satisfied by the applicant before action is taken by the executive
6-15 director on the request for emergency authorization.]
6-16 [(g) The requirements of Section 11.132 of this code
6-17 relating to the time for notice, newspaper notice, and method of
6-18 giving a person notice do not apply to a hearing held on an
6-19 application for an emergency authorization under this section, but
6-20 such general notice of the hearing shall be given as the
6-21 commission, under Subsections (c) and (e) of this section,
6-22 considers practicable under the circumstances.]
6-23 [(h) The commission may grant an emergency authorization
6-24 under this section for the temporary transfer and use of all or
6-25 part of a permit, certified filing, or certificate of adjudication
6-26 for other than domestic or municipal use to a retail or wholesale
6-27 water supplier for public health and safety purposes. In addition
6-28 to the requirements contained in Subsection (b) of this section,
6-29 the commission may direct that the applicant will timely pay the
6-30 amounts for which the applicant may be potentially liable under
6-31 Subsection (j) of this section and to the extent authorized by law
6-32 will fully indemnify and hold harmless the state, the executive
6-33 director, and the commission from any and all liability for the
6-34 authorization sought. The commission may order bond or other
6-35 surety in a form acceptable to the commission as a condition for
6-36 such emergency authorization. The commission may not grant an
6-37 emergency authorization under this section which would cause a
6-38 violation of a federal regulation.]
6-39 [(i) In transferring the amount of water requested by the
6-40 applicant, the executive director or the commission shall allocate
6-41 the requested amount among two or more permits, certified filings,
6-42 or certificates of adjudication for other than domestic or
6-43 municipal use.]
6-44 [(j) The person granted an emergency authorization under
6-45 Subsection (h) of this section is liable to the owner and the
6-46 owner's agent or lessee from whom the use is transferred for the
6-47 fair market value of the water transferred as well as for any
6-48 damages caused by the transfer of use. If, within 60 days of the
6-49 termination of the authorization, the parties do not agree on the
6-50 amount due, or if full payment is not made, either party may file a
6-51 complaint with the commission to determine the amount due. The
6-52 commission may use dispute resolution procedures for a complaint
6-53 filed under this subsection. After exhausting all administrative
6-54 remedies under this subsection, an owner from whom the use is
6-55 transferred may file suit to recover or determine the amount due in
6-56 a district court in the county where the owner resides or has its
6-57 headquarters. The prevailing party in a suit filed under this
6-58 subsection is entitled to recover court costs and reasonable
6-59 attorney's fees.]
6-60 [(k) The commission may prescribe rules and adopt fees which
6-61 are necessary to carry out the provisions of this section.]
6-62 [(l) An emergency authorization does not vest in the grantee
6-63 any right to the diversion, impoundment, or use of water and shall
6-64 expire and be cancelled in accordance with its terms.]
6-65 SECTION 18. Subsection (a), Section 11.142, Water Code, is
6-66 amended to read as follows:
6-67 (a) Without obtaining a permit, a person may construct on
6-68 his own property a dam or reservoir with normal storage of not more
6-69 than 200 acre-feet of water for domestic and livestock purposes.
7-1 Normal storage may involve the temporary storage of greater than
7-2 200 acre-feet if the owner of the structure maintains records which
7-3 can demonstrate that throughout a 12-month period an average of not
7-4 more than 200 acre-feet of water is impounded in such a structure.
7-5 SECTION 19. Subsection (b), Section 11.173, Water Code, is
7-6 amended to read as follows:
7-7 (b) A permit, certified filing, or certificate of
7-8 adjudication or a portion of a permit, certified filing, or
7-9 certificate of adjudication is exempt from cancellation under
7-10 Subsection (a) of this section:
7-11 (1) to the extent of the owner's participation in the
7-12 Conservation Reserve Program authorized by the Food Security Act,
7-13 Pub.L. No. 99-198, Secs. 1231-1236, 99 Stat. 1354, 1509-1514 (1985)
7-14 or a similar governmental program; [or]
7-15 (2) if any portion of the water authorized to be used
7-16 pursuant to a permit, certified filing, or certificate of
7-17 adjudication has been used in accordance with a regional water plan
7-18 approved pursuant to Section 16.053 of this code;
7-19 (3) if the permit, certified filing, or certificate of
7-20 adjudication was obtained to meet demonstrated long-term public
7-21 water supply or electric generation needs as evidenced by a water
7-22 management plan developed by the holder and consistent with
7-23 projections of future water needs contained in the state water
7-24 plan; or
7-25 (4) if the permit, certified filing, or certificate of
7-26 adjudication was obtained as the result of the construction of a
7-27 reservoir funded, in whole or in part, by the holder of the permit,
7-28 certified filing, or certificate of adjudication as part of the
7-29 holder's long-term water planning.
7-30 SECTION 20. Subsection (b), Section 11.177, Water Code, is
7-31 amended to read as follows:
7-32 (b) In determining what constitutes reasonable diligence or
7-33 a justified nonuse as used in Subsection (a)(2) of this section,
7-34 the commission shall give consideration to:
7-35 (1) whether sufficient water is available in the
7-36 source of supply to meet all or part of the appropriation during
7-37 the 10-year period of nonuse;
7-38 (2) whether the nonuse is justified by the holder's
7-39 participation in the federal Conservation Reserve Program or a
7-40 similar governmental program as provided by Section 11.173(b)(1) of
7-41 this code;
7-42 (3) [whether the permit, certified filing, or
7-43 certificate of adjudication was obtained to meet demonstrated
7-44 long-term public water supply or electric generation needs as
7-45 evidenced by a water management plan developed by the holder and
7-46 consistent with projections of future water needs contained in the
7-47 state water plan;]
7-48 [(4) whether the permit, certified filing, or
7-49 certificate of adjudication was obtained as the result of the
7-50 construction of a reservoir funded, in whole or in part, by the
7-51 holder of the permit, certified filing, or certificate of
7-52 adjudication as part of the holder's long-term water planning;]
7-53 [(5)] whether the existing or proposed authorized
7-54 purpose and place of use are consistent with an approved regional
7-55 water plan as provided by Section 16.053 of this code;
7-56 (4) [(6)] whether the permit, certified filing, or
7-57 certificate of adjudication has been deposited into the Texas Water
7-58 Bank as provided by Sections 15.7031 and 15.704 of this code or
7-59 whether it can be shown that the water right or water available
7-60 under the right is currently being made available for purchase
7-61 through private marketing efforts; or
7-62 (5) [(7)] whether the permit, certified filing, or
7-63 certificate of adjudication has been reserved to provide for
7-64 instream flows or bay and estuary inflows.
7-65 SECTION 21. Subsections (c), (d), (e), and (f), Section
7-66 12.052, Water Code, are amended to read as follows:
7-67 (c) The [If the] owner of a dam that is required to be
7-68 constructed, reconstructed, repaired, or removed in order to comply
7-69 with the rules and orders promulgated under Subsection (a) of this
8-1 section may not wilfully fail [fails] or refuse [refuses] to comply
8-2 within the 30-day period following the date of the commission's
8-3 final, nonappealable order to do so and may not [or if a person]
8-4 wilfully fail [fails] to comply with any rule or other order issued
8-5 by the commission under this section within the 30-day period
8-6 following the effective date of the order[, he is liable to a
8-7 penalty of not more than $5,000 a day for each day he continues to
8-8 violate this section. The state may recover the penalty by suit
8-9 brought for that purpose in the district court of Travis County].
8-10 (d) The commission may issue an emergency works safety order
8-11 under Section 5.519. [If the commission determines that the
8-12 existing condition of the dam is creating or will cause extensive
8-13 or severe property damage or economic loss to others or is posing
8-14 an immediate and serious threat to human life or health and that
8-15 other procedures available to the commission to remedy or prevent
8-16 the occurrence of the situation will result in unreasonable delay,
8-17 the commission may issue an emergency order, either mandatory or
8-18 prohibitory in nature, directing the owner of a dam to repair,
8-19 modify, maintain, dewater, or remove the dam which the commission
8-20 determines is unsafe. The emergency order may be issued without
8-21 notice to the dam owner or with notice the commission considers
8-22 practicable under the circumstances. The notice does not have to
8-23 comply with Chapter 2001, Government Code.]
8-24 (e) [If the commission issues an emergency order under
8-25 authority of this section without notice to the dam owner, the
8-26 commission shall fix a time and place for a hearing which shall be
8-27 held as soon as practicable to affirm, modify, or set aside the
8-28 emergency order. The notice does not have to comply with Chapter
8-29 2001, Government Code. If the nature of the commission's action
8-30 requires further proceedings, those proceedings shall be conducted
8-31 as appropriate under the Administrative Procedure and Texas
8-32 Register Act, as amended (Article 6252-13a, Vernon's Texas Civil
8-33 Statutes).]
8-34 [(f)] Nothing in this section or in rules or orders made by
8-35 the commission shall be construed to relieve an owner or operator
8-36 of a dam or reservoir of the legal duties, obligations, or
8-37 liabilities incident to ownership or operation.
8-38 SECTION 22. Chapter 7, Water Code, is amended by adding
8-39 Subchapter I, and Sections 13.412, 13.4131, and 13.4132, Water
8-40 Code, are transferred to Subchapter I, Chapter 7, Water Code,
8-41 redesignated as Sections 7.402, 7.403, and 7.404, and amended to
8-42 read as follows:
8-43 SUBCHAPTER I. RECEIVERSHIP; SUPERVISION OF CERTAIN UTILITIES
8-44 Sec. 7.401. DEFINITIONS. In this subchapter, "affiliated
8-45 interest" and "affiliate" have the meanings assigned by Section
8-46 13.002.
8-47 Sec. 7.402 [13.412]. Receivership. (a) At the request of
8-48 the commission, the attorney general shall bring suit for the
8-49 appointment of a receiver to collect the assets and carry on the
8-50 business of a water or sewer utility that:
8-51 (1) has abandoned operation of its facilities;
8-52 (2) informs the commission that the owner is
8-53 abandoning the system;
8-54 (3) violates a final order of the commission; or
8-55 (4) allows any property owned or controlled by it to
8-56 be used in violation of a final order of the commission.
8-57 (b) The court shall appoint a receiver if an appointment is
8-58 necessary:
8-59 (1) to guarantee the collection of assessments, fees,
8-60 penalties, or interest;
8-61 (2) to guarantee continuous and adequate service to
8-62 the customers of the utility; or
8-63 (3) to prevent continued or repeated violation of the
8-64 final order.
8-65 (c) The receiver shall execute a bond to assure the proper
8-66 performance of the receiver's duties in an amount to be set by the
8-67 court.
8-68 (d) After appointment and execution of bond, the receiver
8-69 shall take possession of the assets of the utility specified by the
9-1 court. Until discharged by the court, the receiver shall perform
9-2 the duties that the court directs to preserve the assets and carry
9-3 on the business of the utility and shall strictly observe the final
9-4 order involved.
9-5 (e) On a showing of good cause by the utility, the court may
9-6 dissolve the receivership and order the assets and control of the
9-7 business returned to the utility.
9-8 (f) For purposes of this section and Section 7.404
9-9 [13.4132], abandonment may include but is not limited to:
9-10 (1) failure to pay a bill or obligation owed to a
9-11 retail public utility or to an electric or gas utility with the
9-12 result that the utility service provider has issued a notice of
9-13 discontinuance of necessary services;
9-14 (2) failure to provide appropriate water or wastewater
9-15 treatment so that a potential health hazard results;
9-16 (3) failure to adequately maintain facilities,
9-17 resulting in potential health hazards, extended outages, or
9-18 repeated service interruptions;
9-19 (4) failure to provide customers adequate notice of a
9-20 health hazard or potential health hazard;
9-21 (5) failure to secure an alternative available water
9-22 supply during an outage;
9-23 (6) displaying a pattern of hostility toward or
9-24 repeatedly failing to respond to the commission or the utility's
9-25 customers; and
9-26 (7) failure to provide the commission with adequate
9-27 information on how to contact the utility for normal business and
9-28 emergency purposes.
9-29 (g) Notwithstanding Section 64.021, Civil Practice and
9-30 Remedies Code, a receiver appointed under this section may seek
9-31 commission approval to acquire the water or sewer utility's
9-32 facilities and transfer the utility's certificate of convenience
9-33 and necessity. The receiver must apply in accordance with
9-34 Subchapter H, Chapter 13.
9-35 Sec. 7.403 [13.4131]. Supervision of Certain Utilities.
9-36 (a) The commission, after providing to the utility notice and an
9-37 opportunity for a hearing, may place a utility under supervision
9-38 for gross or continuing mismanagement, gross or continuing
9-39 noncompliance with Chapter 13 [this chapter] or commission rules,
9-40 or noncompliance with commission orders.
9-41 (b) While supervising a utility, the commission may require
9-42 the utility to:
9-43 (1) meet [abide by] conditions and requirements
9-44 prescribed by the commission, including:
9-45 (A) [(1)] management requirements;
9-46 (B) [(2)] additional reporting requirements;
9-47 (C) [(3)] restrictions on hiring, salary or
9-48 benefit increases, capital investment, borrowing, stock issuance or
9-49 dividend declarations, and liquidation of assets; and
9-50 (D) [(4)] a requirement that the utility place
9-51 the utility's funds into an account in a financial institution
9-52 approved by the commission and use of those funds shall be
9-53 restricted to reasonable and necessary utility expenses; and[.]
9-54 (2) [(c) While supervising a utility, the commission
9-55 may require that the utility] obtain commission approval before
9-56 taking an [any] action [that may be] restricted under Subdivision
9-57 (1) [Subsection (b)] of this section.
9-58 (c) An [Any] action or transaction for which commission
9-59 approval is required by this section that [which] occurs without
9-60 commission approval may be voided by the commission.
9-61 Sec. 7.404 [13.4132]. Operation of Utility That Discontinues
9-62 Operation or is Referred for Appointment of Receiver. (a) The
9-63 commission, after providing to the utility notice and an
9-64 opportunity to be heard by the commissioners at a commission
9-65 meeting, may authorize a willing person to temporarily manage and
9-66 operate a utility if the utility:
9-67 (1) has discontinued or abandoned operations or the
9-68 provision of services; or
9-69 (2) has been or is being referred to the attorney
10-1 general for the appointment of a receiver under Section 7.402
10-2 [13.412].
10-3 (b) The commission may appoint a person under this section
10-4 by emergency order under Section 5.507 and may authorize an
10-5 emergency rate increase by emergency order under Section 5.508[,
10-6 and notice of the action is adequate if the notice is mailed or
10-7 hand-delivered to the last known address of the utility's
10-8 headquarters].
10-9 (c) A person appointed under this section has the powers and
10-10 duties necessary to ensure the continued operation of the utility
10-11 and the provision of continuous and adequate services to customers,
10-12 including the power and duty to:
10-13 (1) read meters;
10-14 (2) bill for utility services;
10-15 (3) collect revenues;
10-16 (4) disburse funds;
10-17 (5) access all system components; and
10-18 (6) request rate increases.
10-19 (d) This section does not affect the authority of the
10-20 commission to pursue an enforcement claim against a utility or an
10-21 affiliated interest.
10-22 SECTION 23. Section 13.414, Water Code, is amended to read
10-23 as follows:
10-24 Sec. 13.414. VIOLATION BY [PENALTY AGAINST] RETAIL PUBLIC
10-25 UTILITY OR AFFILIATED INTEREST. A [(a) Any] retail public utility
10-26 or affiliated interest may not violate [that violates] this
10-27 chapter, fail [fails] to perform a duty imposed on it, or fail,
10-28 neglect, [fails, neglects,] or refuse [refuses] to obey an order,
10-29 rule, direction, or requirement of the commission or decree or
10-30 judgment of a court [is subject to a civil penalty of not less than
10-31 $100 nor more than $5,000 for each violation].
10-32 [(b) A retail public utility or affiliated interest commits
10-33 a separate violation each day it continues to violate Subsection
10-34 (a) of this section.]
10-35 [(c) The attorney general shall institute suit on his own
10-36 initiative or at the request of, in the name of, and on behalf of
10-37 the commission in a court of competent jurisdiction to recover the
10-38 penalty under this section.]
10-39 SECTION 24. Subsections (b), (c), and (d), Section 35.008,
10-40 Water Code, are amended to read as follows:
10-41 (b) The commission shall call a public comment [an
10-42 evidentiary] hearing to consider:
10-43 (1) the designation of a priority groundwater
10-44 management area;
10-45 (2) whether a district should be created over all or
10-46 part of a priority groundwater management area; or
10-47 (3) whether all or part of the land in the priority
10-48 groundwater management area should be added to an existing
10-49 district.
10-50 (c) Public comment [Evidentiary] hearings shall be held at a
10-51 location in one of the counties in which the priority groundwater
10-52 management area is located, or proposed to be located, or in the
10-53 nearest convenient location if adequate facilities are not
10-54 available in those counties.
10-55 (d) At the public comment hearing, the commission shall hear
10-56 testimony and receive evidence from affected persons. The
10-57 commission shall consider the executive director's report and
10-58 supporting information and the testimony and evidence received at
10-59 the public comment hearing. If the commission considers further
10-60 information necessary, the commission may request such information
10-61 from any source.
10-62 SECTION 25. Section 35.009, Water Code, is amended to read
10-63 as follows:
10-64 Sec. 35.009. NOTICE AND PUBLIC COMMENT HEARING. (a) The
10-65 commission shall have notice of the public comment hearing
10-66 published in at least one newspaper with general circulation in the
10-67 county or counties in which the area proposed for designation as a
10-68 priority groundwater management area or the area within a priority
10-69 groundwater management area being considered for district creation
11-1 or for addition to an existing district is located. Notice must be
11-2 published not later than the 30th day before the date set for the
11-3 commission to consider the designation of the priority groundwater
11-4 management area, the creation of a district in a priority
11-5 groundwater management area, or the addition of land in a priority
11-6 groundwater management area to an existing district.
11-7 (b) The notice must include:
11-8 (1) if applicable, a statement of the general purpose
11-9 and effect of designating the proposed priority groundwater
11-10 management area;
11-11 (2) if applicable, a statement of the general purpose
11-12 and effect of creating a district in the priority groundwater
11-13 management area;
11-14 (3) if applicable, a statement of the general purpose
11-15 and effect of adding all or part of the land in the priority
11-16 groundwater management area to an existing district;
11-17 (4) a map generally outlining the boundaries of the
11-18 area being considered for priority groundwater management area
11-19 designation or the priority groundwater management area being
11-20 considered for district creation or for addition to an existing
11-21 district, or notice of the location at which a copy of the map may
11-22 be examined or obtained;
11-23 (5) a statement that the executive director's report
11-24 concerning the priority groundwater management area or proposed
11-25 area is available at the commission's main office in Austin, Texas,
11-26 and at regional offices of the commission for regions which include
11-27 territory within the priority groundwater management area or
11-28 proposed priority groundwater management area and that the report
11-29 is available for inspection during regular business hours;
11-30 (6) a description or the name of the locations in the
11-31 affected area at which the commission has provided copies of the
11-32 executive director's report to be made available for public
11-33 inspection;
11-34 (7) the name and address of each public library, each
11-35 county clerk's office, and each district to which the commission
11-36 has provided copies of the executive director's report; and
11-37 (8) the date, time, and place of the public comment
11-38 hearing.
11-39 (c) The commission shall also give written notice of the
11-40 date, time, place, and purpose of the public comment hearing to the
11-41 governing body of each county, regional water planning group,
11-42 adjacent groundwater district, municipality, river authority, water
11-43 district, or other entity which supplies public drinking water,
11-44 including each holder of a certificate of convenience and necessity
11-45 issued by the commission, and of each irrigation district, located
11-46 either in whole or in part in the priority groundwater management
11-47 area or proposed priority groundwater management area. The notice
11-48 must be given before the 30th day preceding the date set for the
11-49 public comment hearing.
11-50 SECTION 26. Subsection (a), Section 35.012, Water Code, is
11-51 amended to read as follows:
11-52 (a) At the conclusion of its public comment hearing and
11-53 considerations, the commission shall issue an order stating its
11-54 findings and conclusions.
11-55 SECTION 27. Chapter 35, Water Code, is amended by adding
11-56 Section 35.010 to read as follows:
11-57 Sec. 35.010. CREATION OF DISTRICTS ON PETITION AFTER
11-58 DESIGNATION OF PRIORITY GROUNDWATER MANAGEMENT AREA. The
11-59 commission may not consider the creation of a groundwater
11-60 conservation district in a designated priority groundwater
11-61 management area before the conclusion of the next regular session
11-62 of the Texas Legislature following the designation unless the local
11-63 landowners have initiated a petition process under Chapter 36 for
11-64 the creation of a groundwater conservation district with a priority
11-65 groundwater management area.
11-66 SECTION 28. Section 35.012, Water Code, is amended by adding
11-67 new Subsections (c) and (d), relettering existing Subsections (c),
11-68 (d), (e), and (f) as Subsections (e), (f), (g), and (h), and
11-69 amending existing Subsection (d) to read as follows:
12-1 (c) Not later than the 10th day after the date on which the
12-2 commission order designating a priority groundwater management area
12-3 is issued, the commission shall send written notice of the
12-4 commission's actions to each landowner in the designated priority
12-5 groundwater management area at the landowner's most recent known
12-6 address as shown in the tax rolls of the county in which the land
12-7 is located. The notice must include the commission's findings and
12-8 conclusions from the data and information considered in designating
12-9 the priority groundwater management area and the commission's
12-10 recommendation regarding the need for a groundwater conservation
12-11 district in the priority groundwater management area.
12-12 (d) As soon as possible after a commission order designating
12-13 a priority groundwater management area, the Texas Agricultural
12-14 Extension Service shall begin an educational program within the
12-15 area with the assistance and cooperation of the Texas Water
12-16 Development Board, the commission, the Department of Agriculture,
12-17 other state agencies, and existing districts to inform the
12-18 residents of the status of the area's water resources and
12-19 management options including possible formation of a district.
12-20 (e) Following the issuance of a commission order under
12-21 Subsection (b), the landowners in the priority groundwater
12-22 management area may:
12-23 (1) create one or more districts under Subchapter B,
12-24 Chapter 36;
12-25 (2) have the area annexed to a district that adjoins
12-26 the area; or
12-27 (3) create one or more districts through the
12-28 legislative process.
12-29 (f) [(d)] The commission shall identify the areas subject to
12-30 the order of the commission issued under Subsection (b) that have
12-31 not been incorporated into a district and shall delineate proposed
12-32 boundaries of a district to include those areas. [If the
12-33 commission proposes the creation of one or more districts, the
12-34 Texas Agricultural Extension Service shall begin an educational
12-35 program within such areas with the assistance and cooperation of
12-36 the Texas Water Development Board, the commission, other state
12-37 agencies, and existing districts to inform the residents of the
12-38 status of the area's water resources and management options
12-39 including possible formation of a district, before beginning the
12-40 procedures for creation of a district provided in Subchapter B,
12-41 Chapter 36.]
12-42 (g) [(e)] If the commission fails to find that the district
12-43 would be a benefit to the land and other property within the
12-44 priority groundwater management area, that there is a public need
12-45 for the district, or that creation of the district will further the
12-46 public welfare, the commission shall issue an order stating that a
12-47 district should not be created within the boundaries of the
12-48 priority groundwater management area.
12-49 (h) [(f)] An order of the commission issued under this
12-50 section may not be appealed.
12-51 SECTION 29. Section 36.014, Water Code, is amended to read
12-52 as follows:
12-53 Sec. 36.014. NOTICE AND HEARING ON DISTRICT CREATION.
12-54 [(a)] If a petition is filed under Section 36.013 or the
12-55 commission proposes that a district be created under Section
12-56 35.012(b), the commission shall give notice of the [an] application
12-57 or proposal as required by Section 49.011(a) and may conduct a
12-58 hearing on the application or proposal if the commission determines
12-59 that a hearing is necessary under Section 49.011.
12-60 [(b) If the petition contains a request to create a
12-61 management area in all or part of the proposed district, the notice
12-62 must also be given in accordance with the requirements in Section
12-63 35.006 for the designation of management areas.]
12-64 SECTION 30. Section 36.015, Water Code, is amended to read
12-65 as follows:
12-66 Sec. 36.015. FINDINGS. (a) If the commission finds that a
12-67 district requested by petition or proposed by the commission is
12-68 feasible and practicable, [that it] would be a benefit to the land
12-69 in the district, and [that it] would be a public benefit or
13-1 utility, the commission shall issue an order containing these
13-2 findings granting the petition or adopting the proposal, as
13-3 appropriate.
13-4 (b) If the commission finds that a district is not feasible
13-5 and practicable, that it would not be a benefit to the land in the
13-6 district, that it would not be a public benefit or utility, or that
13-7 it is not needed, the commission by order shall deny the petition
13-8 or reject the proposal, as appropriate.
13-9 (c) The commission may adjust the boundaries of the proposed
13-10 district to exclude any land that would not be benefited by
13-11 inclusion in the district and is not necessary to the district for
13-12 proper regulation of the groundwater reservoir.
13-13 (d) If the commission grants the petition or adopts the
13-14 proposal to create the district, it shall direct in its order
13-15 creating the district that an election be called by the temporary
13-16 directors to confirm the creation of the district and to elect
13-17 permanent directors.
13-18 (e) [The refusal to grant a petition to create a district
13-19 does not invalidate or affect the designation of any management
13-20 area requested in the same petition.]
13-21 [(f)] The commission shall act on the petition or its
13-22 proposal within a reasonable amount of time.
13-23 SECTION 31. Subchapter D, Chapter 36, Water Code, is amended
13-24 by adding Section 36.1074 to read as follows:
13-25 Sec. 36.1074. EXTENSION OF DISTRICT AUTHORITY TO ADDITIONAL
13-26 AQUIFERS WITHIN DISTRICT'S GEOGRAPHIC BOUNDARIES. (a) The
13-27 commission by rule shall establish a procedure by which a district
13-28 created by special law may petition to extend the district's
13-29 authority to include management of any aquifer within the
13-30 geographic boundaries of the district the management of which is
13-31 not provided for by the special law creating any district.
13-32 (b) Rules adopted by the commission under this section shall
13-33 establish grounds for a petition described by Subsection (a),
13-34 including:
13-35 (1) a change in pumping conditions;
13-36 (2) a change in water quality conditions;
13-37 (3) a finding that another aquifer is affecting water
13-38 levels in the primary managed aquifer; and
13-39 (4) other grounds the commission may specify.
13-40 (c) A petition under this section may be granted only by
13-41 order of the commission.
13-42 SECTION 32. Section 36.0151, Water Code, is amended to read
13-43 as follows:
13-44 Sec. 36.0151. NOTICE OF CREATION BY COMMISSION OF DISTRICT
13-45 FOR PRIORITY GROUNDWATER MANAGEMENT AREA. [(a) If the commission
13-46 proposes that a district be created under Section 35.012(d), it
13-47 shall in its order creating the district provide that temporary
13-48 directors be appointed under Section 36.016 and that an election be
13-49 called by the temporary directors to confirm the creation of the
13-50 district and to elect permanent directors.]
13-51 [(b)] The commission shall notify the county commissioners
13-52 court of each county with territory in the district of the
13-53 district's creation as soon as practicable after issuing the order
13-54 under Section 36.015(a) creating a [the] district proposed by the
13-55 commission under Section 35.012(b).
13-56 SECTION 33. Section 36.108, Water Code, is amended to read
13-57 as follows:
13-58 Sec. 36.108. Joint Planning in Management Area OR PRIORITY
13-59 GROUNDWATER MANAGEMENT AREA. (a) If two or more districts are
13-60 located within the boundaries of the same management area or
13-61 priority groundwater management area, each district shall prepare a
13-62 comprehensive management plan as required by Section 36.1071
13-63 covering that district's respective territory. On completion of
13-64 the plan, each district shall forward a copy of the new revised
13-65 management plan to the other districts in the management area or
13-66 priority groundwater management area.
13-67 (b) The board of directors of each district in the
13-68 management area or priority groundwater management area may, by
13-69 resolution, call a joint meeting with the boards of directors of
14-1 the other districts in the management area or priority groundwater
14-2 management area to review the management plans and accomplishments
14-3 for the management area or priority groundwater management area.
14-4 The boards shall meet to consider the plans individually and shall
14-5 compare them to other management plans then in force in the
14-6 management area. In reviewing the management plans, the boards
14-7 shall consider:
14-8 (1) the goals of each management plan and its impact
14-9 on planning throughout the management area or priority groundwater
14-10 management area;
14-11 (2) the effectiveness of the measures established by
14-12 each management plan for conserving and protecting groundwater and
14-13 preventing waste, and the effectiveness of these measures in the
14-14 management area or priority groundwater management area generally;
14-15 and
14-16 (3) any other matters that the boards consider
14-17 relevant to the protection and conservation of groundwater and the
14-18 prevention of waste in the management area or priority groundwater
14-19 management area.
14-20 (c) A joint meeting of the boards of directors must be held
14-21 in accordance with the Open Meetings Act, Chapter 551, Government
14-22 Code. Notice of the meeting shall be given in accordance with the
14-23 requirements for notice of district board of directors meetings
14-24 under that Act. In addition, notice of the meeting shall be
14-25 published not later than the 30th day before the date of the
14-26 scheduled meeting in a newspaper with general circulation in each
14-27 county in the management area or priority groundwater management
14-28 area.
14-29 (d) A district in the management area or priority
14-30 groundwater management area may file a petition with the commission
14-31 requesting an inquiry if the petitioner district believes that:
14-32 (1) another district in the management area or
14-33 priority groundwater management area has failed to adopt rules;
14-34 (2) the groundwater in the management area or priority
14-35 groundwater management area is not adequately protected by the
14-36 rules adopted by another district; or
14-37 (3) the groundwater in the management area or priority
14-38 groundwater management area is not adequately protected due to the
14-39 failure of another district to enforce substantial compliance with
14-40 its rules.
14-41 (e) Not later than the 90th day after the date the petition
14-42 is filed, the commission shall review the petition and either:
14-43 (1) dismiss it if it finds that the evidence is not
14-44 adequate to show that any of the conditions alleged in the petition
14-45 exist; or
14-46 (2) select a review panel as provided in Subsection
14-47 (f).
14-48 (f) The commission may appoint a review panel consisting of
14-49 a chairman and four other members. A director or general manager
14-50 of a district located outside the management area or priority
14-51 groundwater management area that is the subject of the petition may
14-52 be appointed to the review panel. The commission may not appoint
14-53 more than two members of the review panel from any one district.
14-54 The commission also shall appoint a disinterested person to serve
14-55 as a nonvoting recording secretary for the review panel. The
14-56 recording secretary may be an employee of the commission. The
14-57 recording secretary shall record and document the proceedings of
14-58 the panel.
14-59 (g) Not later than the 120th day after appointment, the
14-60 review panel shall review the petition and any evidence relevant to
14-61 the petition and, in a public meeting, prepare a report to the
14-62 commission. The commission may direct the review panel to conduct
14-63 public hearings at a location in the management area or priority
14-64 groundwater management area to take evidence on the petition. The
14-65 review panel may attempt to negotiate a settlement or resolve the
14-66 dispute by any lawful means.
14-67 (h) In its report, the review panel shall include:
14-68 (1) a summary of all evidence taken in any hearing on
14-69 the petition;
15-1 (2) a list of findings and recommended actions
15-2 appropriate for the commission to take and the reasons it finds
15-3 those actions appropriate; and
15-4 (3) any other information the panel considers
15-5 appropriate.
15-6 SECTION 34. Section 341.047, Health and Safety Code, is
15-7 transferred to Subchapter E, Chapter 7, Water Code, redesignated as
15-8 Section 7.1605, Water Code, and amended to read as follows:
15-9 Sec. 7.1605 [341.047]. VIOLATIONS RELATING TO PUBLIC
15-10 DRINKING WATER [CRIMINAL PENALTY]. (a) A person commits an
15-11 offense if the person:
15-12 (1) violates a provision of Section 341.031, Health
15-13 and Safety Code;
15-14 (2) violates a provision of Section 341.032(a) or (b),
15-15 Health and Safety Code;
15-16 (3) violates a provision of Section 341.033(a)-(f),
15-17 Health and Safety Code;
15-18 (4) constructs a drinking water supply system without
15-19 submitting completed plans and specifications as required by
15-20 Section 341.035(c), Health and Safety Code;
15-21 (5) begins construction of a drinking water supply
15-22 system without the commission's approval as required by Section
15-23 341.035(a), Health and Safety Code;
15-24 (6) violates a provision of Section 341.0351 or
15-25 341.0352, Health and Safety Code;
15-26 (7) fails to remove a sign as required by Section
15-27 341.0354, Health and Safety Code; or
15-28 (8) violates a provision of Section 341.036, Health
15-29 and Safety Code.
15-30 (b) An offense under Subsection (a) is a Class C
15-31 misdemeanor.
15-32 (c) If it is shown on a trial of the defendant that the
15-33 defendant has been convicted of an offense under Subsection (a)
15-34 within a year before the date on which the offense being tried
15-35 occurred, the subsequent offense under Subsection (a) is a Class B
15-36 misdemeanor.
15-37 (d) Each day of a continuing violation is a separate
15-38 offense.
15-39 SECTION 35. Section 341.048, Health and Safety Code, is
15-40 amended to read as follows:
15-41 Sec. 341.048. VIOLATION [CIVIL ENFORCEMENT]. [(a)] A
15-42 person may not cause, suffer, allow, or permit a violation of this
15-43 subchapter or a rule or order adopted under this subchapter.
15-44 [(b) A person who causes, suffers, allows, or permits a
15-45 violation under this subchapter shall be assessed a civil penalty
15-46 of not less than $50 nor more than $1,000 for each violation. Each
15-47 day of a continuing violation is a separate violation.]
15-48 [(c) If it appears that a person has violated, is violating,
15-49 or threatens to violate a provision under this subchapter, the
15-50 commission, a county, or a municipality may institute a civil suit
15-51 in a district court for:]
15-52 [(1) injunctive relief to restrain the person from
15-53 continuing the violation or threat of violation;]
15-54 [(2) the assessment and recovery of a civil penalty;
15-55 or]
15-56 [(3) both injunctive relief and a civil penalty.]
15-57 [(d) The commission is a necessary and indispensable party
15-58 in a suit brought by a county or municipality under this section.]
15-59 [(e) On the commission's request, the attorney general shall
15-60 institute a suit in the name of the state for injunctive relief, to
15-61 recover a civil penalty, or for both injunctive relief and civil
15-62 penalty.]
15-63 [(f) The suit may be brought in:]
15-64 [(1) Travis County;]
15-65 [(2) the county in which the defendant resides; or]
15-66 [(3) the county in which the violation or threat of
15-67 violation occurs.]
15-68 [(g) In a suit under this section to enjoin a violation or
15-69 threat of violation of this subchapter, the court shall grant the
16-1 state, county, or municipality, without bond or other undertaking,
16-2 any injunction that the facts may warrant including temporary
16-3 restraining orders, temporary injunctions after notice and hearing,
16-4 and permanent injunctions.]
16-5 [(h) Civil penalties recovered in a suit brought under this
16-6 section by a county or municipality shall be equally divided
16-7 between:]
16-8 [(1) the state; and]
16-9 [(2) the county or municipality that first brought the
16-10 suit.]
16-11 SECTION 36. Section 5.507, Water Code, is amended to read as
16-12 follows:
16-13 Sec. 5.507. Emergency Order for Operation of Utility That
16-14 Discontinues Operation or is Referred for Appointment of Receiver.
16-15 The commission may issue an emergency order appointing a willing
16-16 person to temporarily manage and operate a utility under Section
16-17 7.404 [13.4132]. Notice of the action is adequate if the notice is
16-18 mailed or hand delivered to the last known address of the utility's
16-19 headquarters.
16-20 SECTION 37. Subsection (a), Section 5.508, Water Code, is
16-21 amended to read as follows:
16-22 (a) Notwithstanding the requirements of Section 13.187, the
16-23 commission may authorize an emergency rate increase for a utility
16-24 for which a person has been appointed under Section 5.507 or 7.404
16-25 [13.412] or for which a receiver has been appointed under Section
16-26 7.402 [13.4132] if the increase is necessary to ensure the
16-27 provision of continuous and adequate services to the utility's
16-28 customers.
16-29 SECTION 38. Subsection (c), Section 341.0485, Health and
16-30 Safety Code, is amended to read as follows:
16-31 (c) The comptroller shall manage the account for the benefit
16-32 of the commission and shall invest the money and deposit interest
16-33 and other investment proceeds in the account. The comptroller
16-34 shall release money from the account in the manner provided by the
16-35 commission. Money in the account may be used only for:
16-36 (1) capital improvements to the water or sewer system
16-37 of a utility that has paid fines or penalties under this chapter or
16-38 under Chapter 13, Water Code, that have been deposited in the
16-39 account; or
16-40 (2) capital improvements and operating and maintenance
16-41 expenses for a utility placed in receivership or under a temporary
16-42 manager under Section 7.404 [13.4132], Water Code.
16-43 SECTION 39. (a) The following sections of the Water Code
16-44 are repealed:
16-45 (1) Section 11.082;
16-46 (2) Sections 11.0841 and 11.0842;
16-47 (3) Section 11.148;
16-48 (4) Section 13.411;
16-49 (5) Section 13.4133;
16-50 (6) Sections 13.4151 and 13.416;
16-51 (7) Sections 13.417 and 13.418; and
16-52 (8) Sections 35.004, 35.005, and 35.006.
16-53 (b) Sections 341.049 and 341.050, Health and Safety Code,
16-54 are repealed.
16-55 SECTION 40. This Act takes effect September 1, 1999.
16-56 SECTION 41. (a) The changes in law made by this Act apply
16-57 only to an offense committed or a violation or threat of violation
16-58 that occurs on or after September 1, 1999. For purposes of this
16-59 section an offense is committed and a violation or threat of
16-60 violation occurs before September 1, 1999, if any element of the
16-61 offense, violation, or threat of violation occurs before that date.
16-62 (b) An offense committed or a violation or threat of
16-63 violation that occurred before September 1, 1999, is covered by the
16-64 law in effect when the offense was committed or the violation or
16-65 threat of violation occurred, and the former law is continued in
16-66 effect for that purpose.
16-67 SECTION 42. The importance of this legislation and the
16-68 crowded condition of the calendars in both houses create an
16-69 emergency and an imperative public necessity that the
17-1 constitutional rule requiring bills to be read on three several
17-2 days in each house be suspended, and this rule is hereby suspended.
17-3 * * * * *