SRC-TAG S.B. 738 78(R) BILL ANALYSIS
Senate Research Center S.B. 738
78R1799 QS-DBy: Duncan
Natural Resources
4/4/2003
As Filed
DIGEST AND PURPOSE
Currently Chapter 36, Water Code, regarding groundwater conservation
districts, fails to clarify the exact nature of notice and hearings
process that a district should utilize in rulemaking and permit
authorization. There is a necessity to clarify and prescribe the notice
and hearings process to be utilized by the district , since groundwater
conservation district are not subject to the Administrative Procedure Act.
As proposed, S.B. 738 sets forth uniform procedures to be utilized by
groundwater conservation district regarding the notice and hearings
process for both rulemaking hearing and permit application hearings and
clarifies that a district may utilize alternative dispute resolution
procedures.
RULEMAKING AUTHORITY
Rulemaking authority is expressly granted to groundwater conservation
districts in SECTION 2 (Section 36.114, Water Code) and SECTION 4
(Sections 36.406, 36.414, 36.415, and 36.416, Water Code) of this bill.
Rulemaking authority is expressly granted to the board of directors of a
district in SECTION 4
(Section 36.403, Water Code) of this bill.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Section 36.101, Water Code, by amending Subsection (b)
and adding Subsections (d), (e), and (f), as follows:
(b) Deletes text requiring notice in this section to include publication
of the water conservation district board's agenda in one or more
newspapers.
(d) Requires the district's general manager, not later than 10th day
before a rulemaking hearing, to take certain actions, regarding notice.
(e) Requires the notice to provided by Subsection (d) to include the
time, date, and location of the hearing and a brief explanation of the
subject of the hearing.
(f) Requires the presiding officer to conduct a rulemaking hearing in the
fashion the presiding officer deems to be appropriate to obtain
information and testimony regarding the proposed rules as conveniently and
expeditiously as possible without prejudicing the rights of any person at
the hearing.
SECTION 2. Amends Sections 36.113 and 36.114, Water Code, as follows:
Sec. 36.113. New heading: PERMITS FOR WELLS; PERMIT AMENDMENTS. (a)
Authorizes the district to require that a change in the withdrawal or use
of groundwater under a permit issued by the district may not be made
unless the district has first approved a permit amendment authorizing the
change.
(b) Requires a district to require that an application for a permit or
permit amendment be in writing and sworn to.
(c) Makes a conforming change.
(d) Makes a conforming change.
(e) Authorizes the district to impose more restrictive permits conditions
on new permit applications and permit amendment applications to increase
use by historic users if the limitations meet certain standards. Makes
conforming and nonsubstantive changes.
(f) Authorizes the permits and permit amendments to be issued subject to
the rules promulgated by the district and subject to terms and provisions
with reference to drilling, equipping, completion, alternation, or
operation of, or production of groundwater from, wells or pumps that may
be necessary to prevent waste and achieve water conservation, minimize as
far as practicable the drawdown of the water table or the reduction of
artesian pressure, lessen interference between wells, or control and
prevent subsidence.
(g) Deletes this Subsection, which authorizes the district to require
prior approval for changes made in a withdrawal and use groundwater
permit.
Sec. 36.114. New heading: PERMIT; PERMIT AMENDMENT; APPLICATION AND
HEARING. (a) Requires the district by rule to determine each activity
regulated by the district for which a permit or permit amendment is
required.
(b) Requires the district by rule to determine whether a hearing on the
permit or permit amendment application is required, for each activity for
which the district determines a permit or permit amendment is required
under Subsection (a).
(c) Requires the board of directors of the district (board), for all
applications for which a hearing is not required under Subsection (b), to
act on the application at a meeting as defined by Section 551.001(4)
(defining meeting), Government Code.
(d) Requires the district to promptly consider and act on each
administratively complete application for a permit or permit amendment as
provided by Subsection (c) or Subchapter M.
(e) Authorizes the applicant, if, within 60 days, rather than 30 days,
after the date an administratively complete application is submitted, the
application fails to be acted on or set for hearing on specific date, to
petition the district court of the county where the land is located for a
writ of mandamus to compel the district to act on the application or set a
date for a hearing on the application, as appropriate. Makes
nonsubstantive changes.
(f) Requires the initial hearing, for applications requiring a hearing to
be held within 35 days after the setting of the date and requires the
district to act on the application within 60 days, rather than 35 days,
after the last date of the hearing or hearings.
(g) Creates new subsection from existing text.
(h) Creates new subsection from existing text.
SECTION 3. Amends Chapter 36L, Water Code, by adding 36.3705, as follows:
Sec. 36.705. DEFINITION. Defines "applicant."
SECTION 4. 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. DEFINITION. Defines "applicant."
Sec. 36.402. APPLICABILITY. Provides that this subchapter applies to the
notice and hearing process used by a district for permit and permit
amendment applications, except as provided by Section 36.415.
Sec. 36.403. SCHEDULING OF HEARING. (a) Requires the district's
general manager or board to schedule a hearing on permit or permit
applications received by the district as necessary, as provided by
Section 36.114.
(b) Authorizes the general manager or board to schedule more than one
application for consideration at a hearing.
(c) Requires a hearing to be held at the district office or regular
meeting location of the board unless the board by rule provides for
hearings to be held at a different location in the district.
(d) Authorizes the hearing to be held in conjunction with a regularly
scheduled board meeting.
Sec. 36.404. NOTICE. (a) Requires the general manager to give notice of
each permit or permit amendment.
(b) Requires the notice to include certain information.
(c) Requires the general manager, before the 10th day before the date of
a hearing, to take certain actions.
Sec. 36.405. HEARING REGISTRATION. Authorizes the district to require
each person who attends a hearing to submit a hearing registration form
stating certain information.
Sec. 36.406. HEARING PROCEDURES. (a) Requires a hearing to be
conducted in a certain manner.
(b) Requires the board president or the hearings examiner to serve as the
presiding officer at the hearing.
(c) Requires the presiding officer to follow certain procedures.
(d) Authorizes any interested person, including the general manager or a
district employee, to testify or present evidence at the hearing, unless
the district or the presiding officer establishes certain restrictive
measures.
(e) Authorizes the presiding officer to allow testimony to be submitted
in writing and to require that the written testimony be sworn to.
(f) Authorizes the presiding officer to allow a person who testifies at a
hearing to supplement the testimony given at the hearing by filing
additional written materials with the board or hearings examiner by the
10th day after the date of the hearing if no decision has been made by the
board.
(g) Authorizes the presiding officer, at his or her discretion, to issue
an order at any time before the board takes certain actions under Section
36.411, notwithstanding any other provision of this section, if authorized
by rules of the district.
Sec. 36.407. EVIDENCE. (a) Authorizes the presiding officer to admit
evidence if it is relevant to an issue at the hearing.
(b) Authorizes the presiding officer to exclude evidence that is
irrelevant, immaterial, or unduly repetitious.
Sec. 36.408. RECORDING. Requires the presiding officer to prepare and
keep a record of each hearing in the form of minutes, audio or video
recording, court reporter transcription, or report described by Section
36.410. Authorizes the presiding officer, if a hearing is transcribed at
the request of a party to the hearing, to assess the costs associated with
producing the transcript to one or more parties.
Sec. 36.409. CONTINUANCE. Authorizes the presiding officer to continue
a hearing from time to time and from place to place without providing
notice under Section 36.404. Requires the presiding officer to provide
notice of the continued hearing by regular mail to persons who submitted a
hearing registration form under Section 36.405, if the presiding officer
continues a hearing without announcing at the hearing the time, date, and
location of the continued hearing.
Sec. 36.410. REPORT. (a) Requires the presiding officer to submit a
report to the board by the 30th day after the date a hearing is concluded,
unless the hearing was conducted by a quorum of the board. Requires the
presiding officer, if the hearing was conducted by a quorum of the board,
to determine at his or her discretion whether to prepare and submit a
report under this section.
(b) Requires the report to include certain information.
(c) Authorizes a person who participated in the hearing to submit a
written request to review a copy of the report and submit to the board
written exceptions to the report.
(d) Requires the presiding officer or general manager to mail a copy of
the report to each person who requests to review the report under
Subsection (c).
Sec. 36.411. BOARD ACTION. Requires the board to act on a permit or
permit amendment application by the 60th day after the date the hearing on
the application is concluded.
Sec.36.412. REQUEST FOR REHEARING AND APPEAL. (a) Authorizes an
applicant to appeal a decision of the board on a permit or permit
amendment application by requesting a rehearing before the board by the
20th day after the date of the board's decision.
(b) Requires a request for hearing to filed in the district office and to
state the grounds for the request.
(c) Requires the board, if the board grants a request for rehearing, to
schedule the rehearing by the 45th day after the day of the request is
granted.
(d) Provides that the failure of the board to grant or deny a request for
rehearing before the 91st day after the request is submitted constitutes a
denial of the request.
Sec. 36.413. DECISION; WHEN FINAL. Provides that under certain
circumstances, a
decision of the board in a permit or permit amendment application hearing
is final.
Sec. 36.414. ADDITIONAL PROCEDURES. Requires a district by rule to
adopt procedural rules to implement this subchapter and authorizes it to
adopt notice and hearing procedures in addition to those provided by this
subchapter.
Sec. 36.415. HEARINGS CONDUCTED BY STATE OFFICE OF ADMINISTRATIVE
HEARINGS. Provides that this subchapter does not apply to a hearing
conducted by the State Office of Administrative Hearings under Section
2003.021(b)(4) (Office), Government Code. Requires the district to adopt
rules establishing procedures for those hearings consistent with
Subchapters C, D, and F, Chapter 2001, Government Code, if a district
contracts with the State Office of Administrative Hearings.
Sec. 36.416. ALTERNATIVE DISPUTE RESOLUTION. Authorizes a district by
rule to develop and use alternative dispute resolution procedures in the
manner provided for governmental bodies under Chapter 2009 (Alternative
Dispute Resolution for Use by Governmental Bodies), Government Code.
SECTION 5. Repealer: Section 36.001(17), Water Code (defining applicant).
SECTION 6. Makes application of this Act prospective.
SECTION 7. Effective date: September 1, 2003.