SRC-BWC C.S.S.B. 1175 77(R) BILL ANALYSIS
Senate Research CenterC.S.S.B. 1175
77R5733 JMG-DBy: Wentworth
Natural Resources
4-12-2001
Committee Report (Substituted)
DIGEST AND PURPOSE
Texas has a lengthy history of efforts to lessen the impact of periodic,
severe droughts through the use of cloud-seeding technologies. Numerous
"rain-making" endeavors sprouted during the epic drought of the 1950s,
eventually prompting the Texas Legislature to enact a law governing the use
of weathermodification technology. Weather-modification technology
involves injecting suitable ("seedable") clouds with agents such as silver
iodide by an airplane. Currently, there are nine rain enhancement projects
in operation in Texas. These projects, covering some 44 million acres from
the caprock in the Texas High Plains to the coastal prairies south of San
Antonio and the lower Rio Grande basin, are designed to be integral parts
of a long-term, water management strategy by water conservation districts
and other water management authorities to replenish fresh-water supplies in
aquifers and reservoirs as well as to help meet the water needs of
agriculture, industry, and municipalities. C.S.S.B. 1175 transfers the
weather modification program from the Texas Natural Resource Conservation
Commission to the Texas Department of Licensing and Regulation(department).
C.S.S.B. 1175 also authorizes the department to receive and administer
grants to political subdivisions for weather modification and control
activities since the weather modification program mostly affects farmers,
ranchers, and others involved in the agriculture industry. Funding for the
weather modification program will be solicited by TDA. C.S.S.B 1175
authorizes the department to solicit and accept gifts, grants, and other
donations from any source in order to procure appropriate amounts of
funding.
RULEMAKING AUTHORITY
Rulemaking authority is expressly granted to the Texas Department of
Licensing and Regulation in SECTIONS 1.11, 1.32, 1.41, 1.64, and SECTION
3.07 and to the Texas Department of Agriculture in SECTION 2.01 (Section
20.004, Agriculture Code) in this bill..
SECTION BY SECTION ANALYSIS
ARTICLE 1
SUBCHAPTER A. GENERAL PROVISIONS
SECTION 1.01. DEFINITIONS. Defines "commissioner," "department,"
"operation," "research and development," "weather modification and
control," "weather modification and control program," and "weather
modification and control grant program."
SUBCHAPTER B. POWERS AND DUTIES OF DEPARTMENT
SECTION 1.11. RULES. Authorizes the Texas Department of Licensing and
Regulation (department) to adopt rules necessary to: exercise the powers
and perform the duties under this article; establish procedures and
conditions for the issuance of licenses and permits under this article; and
establish standards and instructions to govern the carrying out of research
or projects in weather modification and control that the department
considers necessary or desirable to minimize danger to health or property.
SECTION 1.12. STUDIES; INVESTIGATIONS; HEARINGS. Authorizes the
department to make any studies or investigations, obtain any information,
and hold any hearings necessary or proper to administer or enforce this
chapter or any rules or orders issued under this article.
SECTION 1.13. ADVISORY COMMITTEES. Authorizes the department to establish
advisory committees to advise and make recommendations to the department
concerning legislation, policies, administration, research, and other
matters related to the department's duties, powers, or functions under this
article.
SECTION 1.14. PERSONNEL. Authorizes the commissioner of licensing and
regulation (commissioner), as provided by the General Appropriations Act,
to appoint and fix the compensation of any personnel, including specialists
and consultants, necessary to perform duties and functions under this
article.
SECTION 1.15. MATERIALS AND EQUIPMENT. Authorizes the department to
acquire in the manner provided by law any materials, equipment, and
facilities necessary to the performance of its duties and functions under
this article.
SECTION 1.16. INTERSTATE COMPACTS. Authorizes the commissioner to
represent the state in matters pertaining to plans, procedures, or
negotiations for interstate compacts relating to weather modification and
control.
SECTION 1.17. CONTRACTS, COOPERATIVE AGREEMENTS, ETC. (a) Authorizes the
department to cooperate with public or private agencies to promote the
purposes of this article.
(b) Authorizes the department to enter into cooperative agreements with
the United States or any of its agencies, with counties and municipalities
of this state, or with any private or public agencies for conducting
weather modification or cloud-seeding operations.
(c) Authorizes the department to represent the state, counties,
municipalities, and public and private agencies in contracting with private
concerns for the performance of weather modification or cloud-seeding
operations.
SECTION 1.18. PROMOTION OF RESEARCH AND DEVELOPMENT. Requires the
department, in order to assist in expanding the theoretical and practical
knowledge of weather modification and control, to promote certain research
and development. Authorizes the department with approval of the
commissioner to conduct and contract for research and development
activities relating to the purposes of this section.
SECTION 1.19. GRANTS, GIFTS, ETC. Authorizes the department, subject to
any limitations imposed by law, to accept federal grants, private gifts,
and donations from any other source. Authorizes the department, unless the
use of the money is restricted or subject to any limitations provided by
law, to spend the money for the administration of this article.
SECTION 1.20. DISPOSITION OF LICENSE AND PERMIT FEES. Requires the
department to deposit all license and permit fees in the state treasury.
SUBCHAPTER C. LICENSES AND PERMITS
SECTION 1.31. LICENSE AND PERMIT REQUIRED. Prohibits a person, except as
provided by rule of the department under Section 1.32, from engaging in
activities for weather modification and control without a weather
modification license and weather modification permit issued by the
department or in violation of any term or condition of the license or
permit.
SECTION 1.32. EXEMPTIONS. Requires the department by rule, to the extent
it considers exemptions practical, to provide for exempting certain
activities from the license and permit requirements of this article.
Authorizes the department by rule to modify or revoke an exemption.
SECTION 1.33. ISSUANCE OF LICENSE. Requires the department, in accordance
with the rules adopted under this chapter, to issue a weather modification
license to certain applicants. Provides that if the applicant is an
organization, the competence is required to be demonstrated by the
individual or individuals who are to be in control and in charge of the
operation for the applicant.
SECTION 1.34. LICENSE FEE. Provides that the fee for an original or
renewal license is $150.
SECTION 1.35. EXPIRATION DATE. Provides that each original or renewal
license expires at the end of the state fiscal year for which it was
issued.
SECTION 1.36. RENEWAL LICENSE. Requires the department, at the expiration
of the license period, to issue a renewal license to each applicant who
pays the license fee and who has the qualifications necessary for issuance
of an original license.
SECTION 1.37. ISSUANCE OF PERMIT. Authorizes the department to issue a
weather modification permit to certain applicants, in accordance with the
rules adopted under this chapter and on a finding that the weather
modification and control operation as proposed in the permit application
will not significantly dissipate the clouds and prevent their natural
course of developing rain in the area where the operation is to be
conducted to the material detriment of persons or property in that area,
and after approval at an election if covered by Section 20.041. Requires
the department to hold a public hearing on the permit, if requested to do
so by at least 25 persons.
SECTION 1.38. PERMIT FEE. Provides that the fee for each permit is $75.
SECTION 1.39. SCOPE OF PERMIT. Provides that a separate permit is
required for each operation. Provides that if an operation is to be
conducted under contract, a permit is required for each separate contract.
Prohibits the department from issuing a permit for a contracted operation
unless it covers a continuous period not to exceed four years.
SECTION 1.40. APPLICATION AND NOTICE OF INTENTION. Requires a license
holder, before undertaking any operation, to file an application for a
permit and have a notice of intention published as required by this
chapter.
SECTION 1.41. ELECTION FOR APPROVAL OF A PERMIT THAT INCLUDES
AUTHORIZATION FOR HAIL SUPPRESSION. (a) Defines "target area" and
"operational area."
(b) Provides that no part of an operational area may be more than eight
miles from the limits of the target area. Requires the operational area to
be described by metes and bounds or other specific bounded description and
set out in the application for a permit. Authorizes the department, if the
application for a permit does not describe the operational area, to
designate an area located inside and up to eight miles from the limits of
the target area described in the application as the operational area of the
permit for the purposes of this chapter.
(c) Prohibits a permit from being issued by the department before the end
of the 30-day period immediately following the first publication of notice
and then only in certain counties.
(d) Requires persons eligible to vote in elections held under this section
to include qualified voters in counties or parts of counties included in
the target area or operational area. Authorizes an election, if the target
area or operational area includes only part of a county, to be held only in
the election precincts that are included entirely within or are partially
included in those areas. Provides that all qualified voters in those
precincts are entitled to vote in these elections.
(e) Requires the county clerk of each county within the target area or
operational area, on written request of at least 25 qualified voters
residing in the target area or operational area mentioned in the notice
requesting an election accompanied by unsigned petitions, to certify and
mark for identification petitions for circulation. Requires an application
for a petition seeking an election to disapprove the issuance of a permit
to contain a certain heading and contain certain information. Requires an
application for a petition seeking an election to approve the issuance of a
permit to contain a certain heading and contain certain information.
Requires the commissioners court of each county, on the return to the
county clerks of petitions signed by at least 10 percent of the qualified
voters residing in each county within the target area or operational area
in the notice requesting an election, to call and hold an election.
Provides that notice under Chapter 111 (County Budget), Local Government
Code, of the commissioners court meeting to call and hold the election is
not required. Requires the date of the election to be determined by the
commissioners court in accordance with this section, notwithstanding
Sections 41.004 (Special Election Within Particular Period) and 41.0041
(Election on Measure After Particular Period), Election Code. Requires the
petition to be filed with the clerk of each county within 30 days
immediately following the first publication of notice. Requires the
election to be held within 45 days after the date the petition is received
to determine whether or not the qualified voters in the target area or
operational area approve the issuance of the permit. Requires the clerk of
each county within the target area or operation area, immediately on
calling the election, to notify the commissioner of the date of the
election. Requires elections to be held in accordance with the Election
Code, except as otherwise provided in this chapter.
(f) Requires the petition for the election to be written in a certain
manner. Requires each qualified voter signing the petition to give the
voter's full name and address and voter registration number. Requires the
commissioners court, within five days after the date of receiving a
petition under this section, to have the county clerk of the county check
the names on the petition against the voter registration lists of the
county and certify to the commissioners court the number of qualified
voters signing the petition as reflected by checking the county's voter
registration lists. Requires the county clerk, if only a part of a county
is included in the target area or operational area, to also certify that
those signing the petition reside in an election precinct in the county
totally or partially included in the target area or operational area.
Requires the petition, on certification by the county clerk, to be filed
with the official records of the county and be made available for public
inspection.
(g) Requires a person filing a petition with the county clerk to deposit
with the county clerk an amount of money estimated by the county clerk to
be sufficient to cover the costs of the election, to be held by the county
clerk until the result of the election to approve or disapprove the
issuance of the permit is officially announced. Requires the county clerk,
if the result of the election favors the party petitioning for the
election, to return the deposit to the person filing the petition or to the
person's agent or attorney, but requires the county clerk, if the result of
the election does not favor the party petitioning for the election, to pay
the cost and expenses of the election from the deposit and return the
balance of the deposit to the person filing the petition or to the person's
agent or attorney.
(h) Requires the ballots for an election under this section to be printed
in a certain manner.
(i) Requires the order calling the election to provide for the time and
place or places for holding the election, the form of the ballots, and the
presiding judge for each voting place.
(j) Requires the commissioners court to publish a copy of the election
order in a newspaper of general circulation in the county or in the part of
the county within the target area or operational area at least 30 days
preceding the day of the election.
(k) Requires the presiding judge of each voting place to supervise the
counting of all votes cast and to certify the results to the commissioners
court within five days after the date of the election. Provides that a
copy of the results is to be filed with the county clerk and is a public
record.
(l) Requires the commissioners court to declare the results within five
days after the results are filed.
(m) Requires the commissioners court of each county holding an election to
send certified copies of the results of the election to the commissioner
within 24 hours after the results are declared under Subsection (k).
(n) Prohibits a permit from being issued if a majority of the qualified
voters voting in the election precincts any part of which are located in
the target area vote against issuance of the permit. Authorizes the
department, if a majority of the qualified voters voting in the election
precincts any part of which are located within the target area vote in
favor of issuance of the permit, to issue the permit as provided in this
subchapter, except that if a majority of the qualified voters voting in
either of the following areas vote against issuance of the permit, those
areas are required to be excluded from the coverage of the permit: any
election precinct, any part of which is located in the operational area; or
any election precinct located wholly within the target area and contiguous
with its outer boundary.
(o) Authorizes a permit, if the department finds that a weather
modification and control operation is still feasible, to be issued covering
areas in which no election is requested or areas in which the voters give
their approval as provided in this section.
(p) Prohibits an application for a permit covering all or part of the same
target area or operational area that was denied from being considered and
prohibits a permit under that application for a period of two years
following the date of the election from being issued by the department and
prohibits an election from being held under this chapter, if a permit is
denied under Subsection (n).
(q) Provides that if a permit including authorization for hail suppression
is to cover only a part of a county, only those qualified voters residing
in an election precinct or precincts of the county included in the target
area or operational area are eligible to sign a petition and to vote at an
election under this section. Provides that in computing the vote, only a
majority of qualified voters residing in those areas and voting in the
election is necessary to carry the proposition in that county.
(r) Prohibits a permit being issued that provides for or allows the
seeding of clouds for hail suppression outside the target area or within
those counties or parts of counties located in the operational or target
areas that were excluded from the coverage of the permit by an election
under Subsection (n). Authorizes seeding to be done in those counties or
parts of counties located in the operational or target area which were not
excluded from the coverage of the permit by virtue of an election under
Subsection (n), provided the seeding is reasonably calculated to take
effect only within the target area. Provides that this subsection does not
prohibit the observation of cloud and cloud formations.
(s) Authorizes the department to monitor any program under conditions the
department determines advisable.
(t) Requires the commissioners court of any county outside but adjacent to
a county included in the operational area of an existing or proposed
permit, on petition as provided in this section, to call and hold an
election on the proposition of whether or not the qualified voters of the
county approve of the issuance of any permit authorizing hail suppression
in the county. Prohibits the department, if the county voters voting in
the election disapprove the issuance of permits authorizing hail
suppression, from issuing a permit covering the county until the
proposition has been approved at a subsequent election.
(u) Prohibits any county or part of a county, if that county or part of a
county has disapproved the issuance of a permit at the previous election
held under this section, from being included in any permit issued by the
department until the voters of that county or part of a county have
participated in a subsequent election at which a permit is approved.
Provides that the applicant for a permit that includes that county or part
of a county has the burden of petitioning for an election and depositing
costs in the manner provided by this section for the original election to
approve or disapprove a permit.
(v) Requires the department by rule to define hail suppression as used in
this section, using the most current scientifically accepted technological
concepts.
SECTION 1.42. CONTENT OF NOTICE. Requires the applicant, in the notice of
intention, to include certain information.
SECTION 1.43. PUBLICATION OF NOTICE. Requires the notice of intention
required under Section 1.40 to be published at least once a week for three
consecutive weeks in a newspaper of general circulation published in each
county in which the operation is to be conducted.
SECTION 1.44. PROOF OF PUBLICATION; AFFIDAVIT. Requires the applicant to
file proof of the publication, together with the publishers' affidavits,
with the department during the 15-day period immediately following the date
of the last publication.
SECTION 1.45. PROOF OF FINANCIAL RESPONSIBILITY. Provides that proof of
financial responsibility is made by showing to the satisfaction of the
department that the license holder has the ability to respond in damages
for liability that might reasonably result from the operation for which the
permit is sought.
SECTION 1.46. MODIFICATION OF PERMIT. Authorizes the department to modify
the terms and conditions of a permit under certain circumstances.
SECTION 1.47. SCOPE OF ACTIVITY. Requires the license holder, once a
permit is issued, to confine the license holder's activities substantially
within the limits of time and area specified in the notice of intention,
except to the extent that the limits are modified by the department.
Requires the license holder to comply with any terms and conditions of the
permit as originally issued or as subsequently modified by the department.
SECTION 1.48. RECORDS AND REPORTS. (a) Requires a license holder to keep
a record of each operation conducted under a permit, showing certain
information.
(b) Requires the department to require written reports covering each
operation, whether the operation is exempt or conducted under a permit.
Requires a license holder to submit a written report at the time and in the
manner required by the department.
(c) Requires all information on an operation to be submitted to the
department before it is released to the public.
(d) Requires the reports and records in the custody of the department to
be kept open for public inspection.
SUBCHAPTER D. SANCTIONS
SECTION 1.51. Provides that a person who violates this article is subject
to Subchapters F and G, Chapter 51 (Texas Department of Licensing and
Regulation), Occupations Code, in the same manner as a person regulated by
the Texas Department of Licensing and Regulation under other law is subject
to those subchapters.
SECTION 1.52. ACT OF GOD. Provides that if a person can establish that an
event that would otherwise be a violation of this article or a rule adopted
or order or permit issued under this article was caused solely by an act of
God, war, strike, riot, or other catastrophe, the event is not a violation
of this article or a rule, order, or permit issued under this article.
SECTION 1.53. DEFENSE EXCLUDED. Provides that unless otherwise provided
by this article, the fact that a person holds a permit issued by the
department does not relieve that person from liability for the violation of
this article or a rule adopted or order or permit issued under this
article.
SUBCHAPTER E. REVOCATION AND SUSPENSION
SECTION 1.61. DEFINITIONS. Defines "permit holder."
SECTION 1.62. GROUNDS FOR REVOCATION OR SUSPENSION OF PERMIT. Authorizes
the department, after notice and hearing, to revoke or suspend a permit
issued under this article on certain grounds.
SECTION 1.63. GROUNDS FOR REVOCATION OR SUSPENSION OF LICENSE. Provides
that this section applies to a license issued or a rule adopted under this
article. Authorizes the department, after notice and hearing, to suspend
or revoke a license issued under this article, place on probation a person
whose license has been suspended, reprimand the holder of a license, or
refuse to renew or reissue a license on certain grounds.
SECTION 1.64. PROCEDURES. Requires the department by rule to establish
procedures for public notice and any public hearing under this subchapter.
SECTION 1.65. HEARINGS. Requires a hearing under this subchapter to be
conducted in accordance with the hearing rules adopted by the department
and the applicable provisions of Chapter 2001, Government Code.
SECTION 1.66. CONSENT. Authorizes the commissioner, if a permit holder or
license holder requests or consents to the revocation or suspension of the
permit or license, to revoke or suspend the permit or license without a
hearing.
SECTION 1.67. OTHER RELIEF. Provides that a proceeding brought by the
department under this subchapter does not affect the department's authority
to bring suit for injunctive relief or a penalty, or both, under this
article.
SECTION 1.68. PROBATION REQUIREMENTS. Authorizes the department, if a
license suspension is probated, to require the license holder to perform
certain tasks.
SUBCHAPTER F. IMMUNITY; LEGAL RELATIONSHIPS
SECTION 1.71. IMMUNITY OF STATE. Provides that the state and its officers
and employees are immune from liability for all weather modification and
control activities conducted by private persons or groups.
SECTION 1.72. PRIVATE LEGAL RELATIONSHIPS. Provides that this article
does not affect private legal relationships, except that an operation
conducted under the license and permit requirements of this article is not
an ultrahazardous activity which makes the participants subject to
liability without fault. Provides that the fact that a person holds a
license or permit under this article or that the person has complied with
this chapter or the regulations issued under this article is not admissible
as evidence in any legal proceeding brought against the person.
ARTICLE 2
SECTION 2.01. Amends Title 2, Agriculture Code, by adding Chapter 20, as
follows:
CHAPTER 20. WEATHER MODIFICATION AND CONTROL GRANT PROGRAM
Sec. 20.001. FINDINGS. Provides that the legislature finds that the
weather modification and control activities may have a significant impact
on Texas agriculture. Provides that the legislature further finds that the
Department of Agriculture (department) is the proper state agency to
administer grants to political subdivisions for weather modification and
control activities.
Sec. 20.002. DEFINITION. Defines "weather modification and control."
Sec. 20.003. WEATHER MODIFICATION AND CONTROL GRANT PROGRAM. Requires the
department to develop and administer a program awarding matching grants to
political subdivisions of this state for weather modification and control.
Sec. 20.004. RULES. Authorizes the department to adopt rules necessary to
administer this chapter.
Sec. 20.005. CONTRACTS. Authorizes the department to enter into contracts
with public or private entities to assist the department in the
administration or evaluation of the weather modification and control grant
program or to conduct research relating to the effectiveness of weather
modification and control activities.
Sec. 20.006. FUNDING. Authorizes the department to accept appropriations
and solicit and accept gifts, grants, and other donations from any source
to administer the weather modification and control grant program.
ARTICLE 3
SECTION 3.01. Amends Section 5.013(a), Water Code, by deleting text
regarding the "state's weather modification program" from the general
jurisdiction of the Texas Natural Resource Conservation Commission.
SECTION 3.02. Amends Section 7.052(a), Water Code, by removing Chapter 18
of this code from the list of chapters that contain violation provisions.
SECTION 3.03. Amends Section 7.102, Water Code, to make a conforming
change.
SECTION 3.04. Amends Section 7.302, Water Code, by deleting text regarding
"a permit issued under Chapter 18." Makes a conforming change.
SECTION 3.05. Amends Section 7.303, Water Code, by deleting text regarding
"a permit issued under Chapter 18."
SECTION 3.06. Repealer: Chapter 18 (Weather Modification) and Section
7.144 (Violation Relating to Weather Modification), Water Code.
SECTION 3.07. (a) Provides that on the effective date of this Act, all
powers, duties, obligations, rights, records, employees, and property of
the Texas Natural Resource Conservation Commission (commission) that are
used by that agency on the effective date this Act to administer the
weather modification program are transferred to the Texas Department of
Licensing and Regulation.
(b) Provides that on the effective date of this Act, and as provided by
the General Appropriations Act, all powers, duties, obligations, rights,
contracts, records, property, and unspent and unobligated appropriations
and other funds of the commission that are used by that agency on the
effective date of this Act to administer the weather modification grant
program are transferred to the Texas Department of Agriculture.
(c) Provides that all rules, policies, procedures, and decisions that
affect the weather modification program are continued in effect until
superseded by a rule or other appropriate action of the Texas Department of
Licensing and Regulation.
(d) Provides that any action or proceeding before the commission relating
to the weather modification program is transferred without change in status
to the Texas Department of Licensing and Regulation, and the Texas
Department of Licensing and Regulation assumes, without change in status,
the position of the commission in any action or proceeding relating to the
weather modification program to which the commission is a party.
(e) Provides that the weather modification program established under
Chapter 18, Water Code, is abolished on the effective date of this Act.
Prohibits the commission from awarding a grant under that program on or
after that date.
(f) Requires the Texas Department of Licensing and Regulation to adopt
rules to implement Article I of this Act not later than December 31, 2001.
ARTICLE 4
SECTION 4.01. Effective date: September 1, 2001.
SUMMARY OF COMMITTEE CHANGES
Differs from As Filed version by transferring proposed language into
Articles.
ARTICLE 1. Differs from As Filed version by adding additional definitions
and making nonsubstantive changes to conform to legislative writing style.
ARTICLE 2. Differs from As Filed version by adding Chapter 20 to Title 2,
Agriculture Code, regarding the weather modification and control grant
program.
ARTICLE 3. Differs from As Filed version by adding new language to
clarify provisions regarding the transfer of the weather modification
program from the Texas Natural Resource Conservation Commission to the
Texas Department of Licensing and Regulation, rather than to the Department
of Agriculture as in the original.
ARTICLE 4. No change regarding the effective date.