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H.B. No. 3152
AN ACT
relating to the potability of and requirements for removing
contaminants from groundwater.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 361, Health and Safety Code, is amended
by adding Subchapter W to read as follows:
SUBCHAPTER W. MUNICIPAL SETTING DESIGNATIONS
Sec. 361.801. DEFINITIONS. In this subchapter:
(1) "Contaminant" includes:
(A) solid waste;
(B) hazardous waste;
(C) a hazardous waste constituent listed in 40
C.F.R. Part 261, Subpart D, or Table 1, 40 C.F.R. Section 261.24;
(D) a pollutant as defined in Section 26.001,
Water Code; and
(E) a hazardous substance:
(i) as defined in Section 361.003; or
(ii) subject to Subchapter G, Chapter 26,
Water Code.
(2) "Potable water" means water that is used for
irrigating crops intended for human consumption, drinking,
showering, bathing, or cooking purposes.
(3) "Response action" means the cleanup or removal
from the environment of a hazardous substance or contaminant,
excluding a waste, pollutant, or substance regulated by or that
results from an activity under the jurisdiction of the Railroad
Commission of Texas under Chapter 91 or 141, Natural Resources
Code, or Chapter 27, Water Code.
Sec. 361.8015. LEGISLATIVE FINDINGS. (a) The legislature
finds that access to and the use of groundwater may need to be
restricted to protect public health and welfare where the quality
of groundwater presents an actual or potential threat to human
health.
(b) The legislature finds that an action by a municipality
to restrict access to or the use of groundwater in support of or to
facilitate a municipal setting designation advances a substantial
and legitimate state interest where the quality of the groundwater
subject to the designation is an actual or potential threat to human
health.
Sec. 361.802. PURPOSE. The purpose of this subchapter is to
provide authorization to the executive director to certify
municipal setting designations for municipal properties in order to
limit the scope of or eliminate the need for investigation of or
response actions addressing contaminant impacts to groundwater
that has been restricted from use as potable water by ordinance or
restrictive covenant.
Sec. 361.803. ELIGIBILITY FOR A MUNICIPAL SETTING
DESIGNATION. A person, including a local government, may submit a
request to the executive director for a municipal setting
designation for property if:
(1) the property is within the corporate limits or
extraterritorial jurisdiction of a municipality authorized by
statute that has a population of at least 20,000; and
(2) a public drinking water supply system exists that
satisfies the requirements of Chapter 341 and that supplies or is
capable of supplying drinking water to:
(A) the property for which designation is sought;
and
(B) property within one-half mile of the property
for which designation is sought.
Sec. 361.804. APPLICATION FOR A MUNICIPAL SETTING
DESIGNATION. (a) A person seeking to obtain a municipal setting
designation under this subchapter must submit an application to the
executive director as prescribed by this section.
(b) An application submitted under this section must:
(1) be on a form provided by the executive director;
(2) contain the following:
(A) the applicant's name and address;
(B) a legal description of the outer boundaries
of the proposed municipal setting designation and a specific
description of the designated groundwater that will be restricted
under the ordinance or restrictive covenant described by Section
361.8065(a)(2);
(C) a statement as to whether the municipalities
or the retail public utilities entitled to notice under Section
361.805 support the proposed designation;
(D) an affidavit that affirmatively states that:
(i) the municipal setting designation
eligibility criteria contained in Section 361.803 are satisfied;
(ii) true and accurate copies of all
documents demonstrating that the municipal setting designation
eligibility criteria provided by Section 361.803 have been
satisfied are included with the application;
(iii) a true and accurate copy of a legal
description of the property for which the municipal setting
designation is sought is included with the application; and
(iv) notice was provided in accordance with
Section 361.805;
(E) a statement regarding the type of known
contamination in the groundwater beneath the property proposed for
a municipal setting designation;
(F) proof of notice, as required by Section
361.805(c); and
(G) if available at the time of the application,
a copy of the ordinance or restrictive covenant and any required
resolutions satisfying the requirements described in Section
361.8065, or a statement that the applicant will provide a copy of
the ordinance or restrictive covenant and any required resolutions
satisfying the requirements described in Section 361.8065 before
the executive director certifies the municipal setting designation
in accordance with Section 361.807; and
(3) be accompanied by an application fee of $1,000.
(c) Not later than 90 days after receiving an application
submitted as provided by Subsection (b), the executive director
shall:
(1) issue a municipal setting designation certificate
in accordance with Section 361.807;
(2) deny the application in accordance with Section
361.806; or
(3) request additional information for the municipal
setting designation application.
(d) Not later than the 45th day after the date the executive
director receives any additional information requested under
Subsection (c)(3), the executive director shall certify or deny the
application.
(e) Fees collected under this section shall be deposited to
the credit of the waste management account.
Sec. 361.805. NOTICE. (a) On or before the date of
submission of an application to the executive director, a person
seeking a municipal setting designation must provide notice to:
(1) each municipality:
(A) in which the property for which the
designation is sought is located;
(B) with a boundary located not more than
one-half mile from the property for which the designation is
sought; or
(C) that owns or operates a groundwater supply
well located not more than five miles from the property for which
the designation is sought;
(2) each owner of a private water well registered with
the commission that is located not more than five miles from a
boundary of the property for which the designation is sought; and
(3) each retail public utility, as defined by Section
13.002, Water Code, that owns or operates a groundwater supply well
located not more than five miles from the property for which the
designation is sought.
(b) The notice must include, at a minimum:
(1) the purpose of the municipal setting designation;
(2) the eligibility criteria for a municipal setting
designation;
(3) the location and description of the property for
which the designation is sought;
(4) a statement that a municipality described by
Subsection (a)(1) or retail public utility described by Subsection
(a)(3) may provide written comments on any information relevant to
the executive director's consideration of the municipal setting
designation;
(5) a statement that the executive director will
certify or deny the application or request additional information
from the applicant not later than 90 days after receiving the
application;
(6) the type of contamination on the property for
which the designation is sought; and
(7) identification of the party responsible for the
contamination of the property, if known.
(c) The applicant must submit copies of the notice letters
delivered in accordance with Subsection (a) and the signed delivery
receipts to the executive director with the application.
(d) For the purpose of this section, notice to a
municipality must be provided to the city secretary for the
municipality and notice to a retail public utility must be to the
registered agent, the owner, or the manager.
(e) A municipality, retail public utility, or private well
owner entitled to notice under this section may file comments with
the executive director not later than the 60th day after the date
the municipality, retail public utility, or private well owner
receives the notice under this section.
Sec. 361.806. DENIAL OF APPLICATION. (a) The executive
director shall deny an application submitted under Section 361.804
if:
(1) any of the eligibility criteria described in
Section 361.803 have not been met for the property for which the
municipal setting designation is sought;
(2) the application is incomplete or inaccurate; or
(3) after the 60-day comment period described by
Section 361.805(e), the executive director determines that the
municipal setting designation would negatively impact the current
and future regional water resource needs or obligations of a
municipality, a retail public utility, or a private well owner
described by Section 361.805(a).
(b) If the executive director determines that an
application is incomplete or inaccurate, the executive director,
not later than the 90th day after receipt of the application, shall
provide the applicant with a list of all information needed to make
the application complete or accurate.
(c) If the executive director denies the application, the
executive director shall:
(1) notify the applicant that the application has been
denied; and
(2) explain the reasons for the denial of the
application.
Sec. 361.8065. PRECERTIFICATION REQUIREMENTS. (a) Before
the executive director may issue a municipal setting designation
certificate under Section 361.807, the applicant must provide
documentation of the following:
(1) that the application is supported by a resolution
adopted by:
(A) the city council of each municipality
described by Section 361.805(a)(1)(B) or (C); and
(B) the governing body of each retail public
utility described by Section 361.805(a)(3); and
(2) that the property for which designation is sought
is:
(A) subject to an ordinance that prohibits the
use of designated groundwater from beneath the property as potable
water and that appropriately restricts other uses of and contact
with that groundwater; or
(B) subject to a restrictive covenant
enforceable by the municipality in which the property for which the
designation is sought is located that prohibits the use of
designated groundwater from beneath the property as potable water
and appropriately restricts other uses of and contact with that
groundwater.
(b) A designation described by Subsection (a)(2)(B) must be
supported by a resolution passed by the city council of the
municipality.
Sec. 361.807. CERTIFICATION. (a) If the executive
director determines that an applicant has complied with Section
361.8065 and submitted a complete application, the executive
director shall issue a copy of the municipal setting designation
certificate to:
(1) the applicant for the municipal setting
designation;
(2) each municipality, retail public utility, and
private well owner described by Section 361.805(a); and
(3) each person who submitted comments on the
application for the municipal setting designation and anyone else
who requested a copy during the review period.
(b) The municipal setting designation certificate shall:
(1) indicate that the municipal setting designation
eligibility criteria described in Section 361.803 are satisfied
and that the executive director has certified the municipal setting
designation;
(2) indicate that any person addressing environmental
impacts for a property located in the certified municipal setting
designation shall complete any necessary investigation and
response action requirements in accordance with Section 361.808;
and
(3) include a legal description of the outer
boundaries of the municipal setting designation.
(c) If the executive director determines that an applicant
has submitted a complete application except that an ordinance or
restrictive covenant and any required resolutions satisfying the
requirements described in Section 361.8065 have not been submitted,
the executive director shall issue a letter to the applicant listed
in Subsection (a) stating that a municipal setting designation will
be certified on submission of a copy of the ordinance or restrictive
covenant and any required resolutions satisfying the requirements
described in Section 361.8065. On submission of the ordinance or
restrictive covenant and any required resolutions satisfying the
requirements described in Section 361.8065, the executive director
shall issue a municipal setting designation certificate in
accordance with Subsections (a) and (b).
Sec. 361.808. INVESTIGATION AND RESPONSE ACTION
REQUIREMENTS. (a) If no potable water wells are located within
one-half mile beyond the boundary of a municipal setting
designation, the executive director shall not require a person
addressing environmental impacts for a property located in the
municipal setting designation to:
(1) investigate the nature and extent of contamination
in groundwater except to satisfy the requirements of Subsection
(b); or
(2) conduct response actions to remove,
decontaminate, or control environmental impacts to groundwater
based solely on potential potable water use.
(b) Notwithstanding Subsection (a), the executive director
shall require a responsible person to complete a response action to
address environmental impacts to groundwater in a certified
municipal setting designation if action is necessary to ensure:
(1) the protection of humans from exposures to
environmental impacts to groundwater that are not related to a
potable water use, including exposures from nonconsumptive uses and
exposures resulting from inadvertent contact with contaminated
groundwater; or
(2) the protection of ecological resources.
(c) If potable water wells are located within one-half mile
beyond the boundary of a municipal setting designation, the
executive director shall require a person addressing environmental
impacts for a property located in the municipal setting designation
to complete an investigation to determine whether groundwater
contamination emanating from the property has caused or is
reasonably anticipated to cause applicable human health or
ecological standards to be exceeded in the area located within
one-half mile beyond the boundary of the certified municipal
setting designation.
(d) If an investigation described in Subsection (c)
confirms that groundwater emanating from the property has not
caused and is not reasonably anticipated to cause applicable human
health or ecological standards to be exceeded in the area located
within one-half mile beyond the boundary of the certified municipal
setting designation, the executive director shall approve the
completion of groundwater response actions at the property except
to the extent that response actions are necessary to satisfy
Subsection (b).
(e) If an investigation described in Subsection (c)
confirms that groundwater emanating from the property has caused or
is reasonably anticipated to cause applicable human health or
ecological standards to be exceeded in the area located within
one-half mile beyond the boundary of the certified municipal
setting designation, the executive director shall approve the
completion of groundwater response action at the source property if
the person addressing environmental impacts:
(1) completes response actions at the source property
to remove, decontaminate, or control environmental impacts to
groundwater to meet applicable human health or ecological
standards; or
(2) completes response actions at the source property
to remove, decontaminate, or control environmental impacts to
groundwater that are not related to a potable water use, including
actions to protect humans from exposures from nonconsumptive uses
and exposures resulting from inadvertent contact with contaminated
groundwater and actions to protect ecological resources, and:
(A) provides to owners of impacted potable water
wells described in Subsection (c) a reliable alternate water supply
that will provide a volume of water sufficient for the intended use
for a period not shorter than the period that the impacted wells
exceed the human health or ecological standards and, after
obtaining permission from such owners, files a restrictive covenant
that prohibits the use of groundwater from those wells as potable
water and restricts other uses of groundwater in a manner
consistent with groundwater quality; or
(B) expands the municipal setting designation in
accordance with the procedures under this subchapter relating to
the initial application for a municipal setting designation to
include the properties with impacted potable water wells described
in Subsection (c).
(f) Notwithstanding any other provision of this section,
the executive director may require a person responsible for
property within a certified municipal setting designation to
complete a response action to address environmental impacts to
groundwater emanating from the property that has caused or is
reasonably anticipated to cause applicable human health or
ecological standards to be exceeded in an area located more than
one-half mile beyond the boundary of the certified municipal
setting designation, provided such action is necessary to ensure:
(1) the protection of humans from exposures to
environmental impacts to groundwater; or
(2) the protection of ecological resources.
(g) This subchapter relates to the scope of the response
action that can be required by the executive director in municipal
settings designated under this subchapter. Nothing in this
subchapter shall be construed to alter or affect the private rights
of action of any person under any statute or common law for personal
injury or property damage caused by the release of contaminants.
Nothing in this subchapter is meant to alter or supersede any
requirement of a federally authorized environmental program
administered by the State of Texas.
SECTION 2. Subsection (a), Section 211.003, Local
Government Code, is amended to read as follows:
(a) The governing body of a municipality may regulate:
(1) the height, number of stories, and size of
buildings and other structures;
(2) the percentage of a lot that may be occupied;
(3) the size of yards, courts, and other open spaces;
(4) population density; [and]
(5) the location and use of buildings, other
structures, and land for business, industrial, residential, or
other purposes; and
(6) the pumping, extraction, and use of groundwater by
persons other than retail public utilities, as defined by Section
13.002, Water Code, for the purpose of preventing the use or contact
with groundwater that presents an actual or potential threat to
human health.
SECTION 3. Subsection (a), Section 212.003, Local
Government Code, is amended to read as follows:
(a) The governing body of a municipality by ordinance may
extend to the extraterritorial jurisdiction of the municipality the
application of municipal ordinances adopted under Section 212.002
and other municipal ordinances relating to access to public roads
or the pumping, extraction, and use of groundwater by persons other
than retail public utilities, as defined by Section 13.002, Water
Code, for the purpose of preventing the use or contact with
groundwater that presents an actual or potential threat to human
health. However, unless otherwise authorized by state law, in its
extraterritorial jurisdiction a municipality shall not regulate:
(1) the use of any building or property for business,
industrial, residential, or other purposes;
(2) the bulk, height, or number of buildings
constructed on a particular tract of land;
(3) the size of a building that can be constructed on a
particular tract of land, including without limitation any
restriction on the ratio of building floor space to the land square
footage;
(4) the number of residential units that can be built
per acre of land; or
(5) the size, type, or method of construction of a
water or wastewater facility that can be constructed to serve a
developed tract of land if:
(A) the facility meets the minimum standards
established for water or wastewater facilities by state and federal
regulatory entities; and
(B) the developed tract of land is:
(i) located in a county with a population of
2.8 million or more; and
(ii) served by:
(a) on-site septic systems
constructed before September 1, 2001, that fail to provide adequate
services; or
(b) on-site water wells constructed
before September 1, 2001, that fail to provide an adequate supply of
safe drinking water.
SECTION 4. Chapter 401, Local Government Code, is amended
by adding Section 401.005 to read as follows:
Sec. 401.005. RESTRICTION ON PUMPING, EXTRACTION, OR USE OF
GROUNDWATER. (a) For the purpose of establishing and enforcing a
municipal setting designation, the governing body of a municipality
may regulate the pumping, extraction, or use of groundwater by
persons other than retail public utilities, as defined by Section
13.002, Water Code, to prevent the use of or contact with
groundwater that presents an actual or potential threat to human
health.
(b) For the purpose of establishing and enforcing a
municipal setting designation, the governing body of a municipality
by ordinance may extend to the extraterritorial jurisdiction of the
municipality the application of municipal ordinances adopted under
this section.
SECTION 5. This Act takes effect September 1, 2003.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 3152 was passed by the House on May 8,
2003, by a non-record vote; and that the House concurred in Senate
amendments to H.B. No. 3152 on May 26, 2003, by a non-record vote.
______________________________
Chief Clerk of the House
I certify that H.B. No. 3152 was passed by the Senate, with
amendments, on May 24, 2003, by a viva-voce vote.
______________________________
Secretary of the Senate
APPROVED: __________________
Date
__________________
Governor