C.S.H.B. 1379 78(R)    BILL ANALYSIS


C.S.H.B. 1379
By: Cook, Robby
Natural Resources
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

Chapter 36, Water Code, authorizes a groundwater conservation district to
adopt rules and issue permits related to the regulation and management of
groundwater resources located within its boundaries.  Although Chapter 36
sets forth a requirement that rules be adopted only after notice and
hearing, as well as makes a reference to a hearings process for permit
applications, the statute is silent on most aspects of the exact nature of
the notice and hearings process that districts should utilize in
rulemaking and permit consideration.  Because groundwater conservation
districts are not subject to the Administrative Procedures Act, it is
necessary to clarify and prescribe the notice and hearings process to be
utilized by the districts.  It is also necessary to clarify that, where
appropriate, groundwater conservation districts may utilize alternative
dispute resolution (ADR) procedures in the permitting process in order to
facilitate resolution of conflicts and minimize costs for both the
district and parties to a permit hearing.  This bill sets forth uniform
procedures to be utilized by groundwater conservation districts regarding
the notice and hearings process for both rulemaking hearings and permit
application hearings and clarifies that districts may utilize ADR
procedures. 

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any
additional rulemaking authority to a state officer, department, agency, or
institution. 

ANALYSIS

SECTION 1. C.S.H.B. 1379 amends 36.101(b), Water Code, and adds
Subsections (d), (e), and (f) to provide specific notice and hearing
requirements for districts engaged in a rulemaking process. 

SECTION 2. C.S.H.B. 1379 amends 36.113, Water Code, to authorize a
district to provide approval of permit amendments and to require permit
amendments to undergo the application process established for permits. The
bill provides a district shall consider specific factors before taking
action to grant or deny a permit amendment. The bill provides a district
may impose more restrictive permit conditions on permit amendments to
increase use by historic users if the limitations meet specific
requirements.  The bill provides permit amendments may be subject to rules
of a district and subject to terms and provisions that include the
operation of, or production of groundwater from, wells and many other
responsibilities of a district. 
C.S.H.B. 1379 amends 36.114 to authorize a district to establish a
rulemaking process to regulate permit and permit amendments. The bill
provides that a district by rule shall determine the activities for which
a permit or permit amendment is required and whether a hearing on permits
or permit amendments is required. The bill provides a time line for
district action for applications that do not receive a hearing and the
actions that can be taken by applicants. The bill provides a time line for
district action for applications that receive a hearing or hearings.  
SECTION 3. C.S.H.B. 1379 amends Chapter 36, Water Code, by adding Section
36.3705 to define "applicant." 
SECTION 4. C.S.H.B. 1379 amends Chapter 36, Water Code, by adding
Subchapter M as follows: 
SUBCHAPTER M. PERMIT AND PERMIT AMENDMENT APPLICATIONS; NOTICE AND HEARING
PROCESS 
Sec. 36.401. DEFINITIONS. C.S.H.B. 1379 defines "applicant."
Sec. 36.402. APPLICABILITY. C.S.H.B. 1379 provides that this subchapter
applies to the  notice and hearing process used by a district for permit
and permit amendment applications. 
Sec. 36.403. SCHEDULING OF HEARING. The bill provides that the general
manager or board of a district shall schedule a hearing on permit or
permit amendment applications as necessary as provided by Section 36.114
and provides the requirements and options that a district has when
scheduling and conducting a hearing.  
Sec. 36.404. NOTICE. The bill provides that notice of each permit or
permit amendment hearing shall be given. The bill provides the content
requirements for notice and time and location requirements for notice to
be given. 
Sec. 36.405. HEARING REGISTRATION. The bill provides that a district may
require submission of a hearing registration form and the requirements for
the hearing registration form. 
Sec. 36.406. HEARING PROCEDURES. The bill provides that a hearing must be
conducted according to procedures that specify the participants and the
roles and duties of the participants in a hearing. Provides the guidelines
by which evidence and testimony may be presented or limited at a hearing
and the means to supplement testimony. Provides that a presiding officer,
if stated in district rules, may refer parties to a contested application
hearing to an alternative dispute resolution procedure and may determine
how costs are apportioned among the parties for the procedure.  
Sec. 36.407. EVIDENCE. The bill provides the presiding officer of a
hearing shall admit relevant evidence and may exclude irrelevant,
immaterial or unduly repetitious evidence. 
Sec. 36.408. RECORDING. The bill provides the presiding officer is
required to prepare and keep a record of each hearing and assess costs
associated with producing the transcript to one or more parties. 
Sec. 36.409. CONTINUANCE. The bill provides the process that a presiding
officer must follow to continue a hearing. 
Sec. 36.410. REPORT. The bill provides the procedure the presiding officer
must follow to submit a report on the hearing to the board and the
contents required for the report. The bill provides the presiding officer
or general manager shall mail a report to each person who requested the
report under subsection (c). 
Sec. 36.411. BOARD ACTION. The bill provides the time line for board
action on the permit or permit amendment application. 
Sec. 36.412. REQUEST FOR REHEARING. The bill provides the procedure for a
rehearing and the actions of an applicant necessary to appeal a decision
and request a rehearing on the board's decision. The bill provides a time
line of board action on an appeal and a request for rehearing. 
Sec. 36.413. DECISION; WHEN FINAL. The bill provides the scenarios when a
decision by the board in a permit or permit amendment application hearing
is final. 
Sec. 36.414. ADDITIONAL PROCEDURES. The bill provides that a district may
adopt additional rules to implement this subchapter. The bill provides
that a district may adopt notice and hearing procedures in addition to
this subchapter. 
Sec. 36.415. HEARINGS CONDUCTED BY STATE OFFICE OF ADMINISTRATIVE
HEARINGS. The bill provides that this subchapter does not apply to
hearings conducted by the State Office of Administrative Hearings. The
bill provides that if a district contracts with the State Office of
Administrative Hearings then the district shall use the State Office of
Administrative Hearing's rules. 
Sec. 36.416. ALTERNATIVE DISPUTE RESOLUTION. The bill provides that a
district may, by rule, develop and use alternative dispute resolution
procedures in the manner provided under Chapter 2009, Government Code.  

Sec. 36.417. NONAPPLICABILITY OF CHAPTER 2001, GOVERNMENT CODE.   The bill
provides that a district that uses Administrative Procedures is not
subject to notice and hearing requirements under this chapter.   
SECTION 5. Amends Chapter 36, Water Code by repealing Section 36.001(17). 
 SECTION 6. The bill provides that the change in law made by this Act
applies only to a permit or permit amendment application hearing or a
rulemaking hearing held by a groundwater conservation district on or after
the effective date of this Act. The bill provides that a permit or permit
amendment application hearing or a rulemaking hearing held by a
groundwater conservation district before the effective date of this Act is
governed by the law in effect at the time the hearing is held. The bill
provides the former law is continued in effect for that purpose.  
SECTION 7. The effective date of the bill is September 1, 2003. 

EFFECTIVE DATE

September 1, 2003


COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.H.B. 1379  modifies the original by clarifying that, for applications
that do not require a hearing, the board is required to act at a meeting
or that the general manager has the authority to act  if the board has
delegated that authority.  It further clarifies that for applications
requiring a hearing the district is required to act 60 days after the date
of the final hearing on the application at its conclusion instead of 60
days after the last date of the hearing.  Also, C.S.H.B. 1379 deletes the
requirement that, if another location besides the district office or
regular meeting place is used for a hearing, it be in the district.  It
also changes a notice on each permit or permit amendment hearing to a
notice of each hearing on an application for a permit or permit amendment.
It adds that the board or general manager, at least 10 days prior to a
hearing shall post certain notices.  It makes two technical changes by
deleting a redundant "by rule" and changing "in" to "on."   

The committee substitute also changes "the presiding officer may admit
relevant evidence" to "the presiding officer shall admit relevant
evidence."  The provision that districts adopt rules when they contract
with the State Office of Administrative Hearings (SOAH) is deleted to
require districts to use SOAH rules if they contract with SOAH.   Finally,
a nonapplicability provision was added for districts that use the
Administrative Procedures Act. (Chapter 2001, Government Code)