By: Duncan S.B. No. 738
A BILL TO BE ENTITLED
AN ACT
relating to the notice, hearing, and permitting process for
groundwater conservation districts.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 36.101, Water Code, is amended by
amending Subsection (b) and adding Subsections (d) through (i) to
read as follows:
(b) After notice and hearing, the board shall adopt and
enforce rules to implement this chapter, including rules governing
procedure before the board. [Notice in this section shall include
publication of the agenda of the hearing in one or more newspapers
of general circulation in the county or counties in which the
district is located.]
(d) Not later than the 10th day before the date of a
rulemaking hearing, the general manager or board shall:
(1) post notice in a place readily accessible to the
public in the district office;
(2) provide notice to the county clerk of each county
in the district;
(3) publish notice in one or more newspapers of
general circulation in the county or counties in which the district
is located; and
(4) provide notice by mail, facsimile, or electronic
mail to any person who has submitted a written request for notice of
a rulemaking hearing.
(e) The notice provided under Subsection (d) must include:
(1) the time, date, and location of the hearing;
(2) a brief explanation of the subject of the hearing;
and
(3) a location at which a copy of the proposed rules
may be reviewed or copied.
(f) The presiding officer shall conduct a rulemaking
hearing in the manner the presiding officer determines to be most
appropriate to obtain information and testimony relating to the
proposed rule as conveniently and expeditiously as possible without
prejudicing the rights of any person at the hearing.
(g) The presiding officer shall prepare and keep a record of
each rulemaking hearing in the form of an audio or video recording
or a court reporter transcription. On the request of any party, the
hearing shall be transcribed by a court reporter. The presiding
officer may assess any costs associated with the court reporter
transcription against the party requesting the transcription or
among the parties to the hearing at the discretion of the presiding
officer.
(h) A person may submit to the district a written request
for notice of a rulemaking hearing. A written request for notice of
a rulemaking hearing is effective for one year from the date the
request is received by the district. To receive notice of a hearing
after a request expires, a person must submit a new request.
(i) Failure to provide notice under Subsection (d)(4) does
not invalidate any action taken by the district at the hearing.
SECTION 2. Section 36.113, Water Code, is amended to read as
follows:
Sec. 36.113. PERMITS FOR WELLS; PERMIT AMENDMENTS. (a) A
district shall require permits for the drilling, equipping,
operating, or completing of wells or for substantially altering the
size of wells or well pumps. A district may 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. A district may not
require a permit or a permit amendment for maintenance or repair of
a well if the maintenance or repair does not increase the production
capabilities of the well to more than its authorized or permitted
production rates.
(b) A district shall require that an application for a
permit or a permit amendment be in writing and sworn to.
(c) A district may require that the following be included in
the permit or permit amendment application:
(1) the name and mailing address of the applicant and
the owner of the land on which the well will be located;
(2) if the applicant is other than the owner of the
property, documentation establishing the applicable authority to
construct and operate a well for the proposed use;
(3) a statement of the nature and purpose of the
proposed use and the amount of water to be used for each purpose;
(4) a water conservation plan or a declaration that
the applicant will comply with the district's management plan;
(5) the location of each well and the estimated rate at
which water will be withdrawn;
(6) a water well closure plan or a declaration that the
applicant will comply with well plugging guidelines and report
closure to the commission; and
(7) a drought contingency plan.
(d) Before granting or denying a permit or permit amendment,
the district shall consider whether:
(1) the application conforms to the requirements
prescribed by this chapter and is accompanied by the prescribed
fees;
(2) the proposed use of water unreasonably affects
existing groundwater and surface water resources or existing permit
holders;
(3) the proposed use of water is dedicated to any
beneficial use;
(4) the proposed use of water is consistent with the
district's certified water management plan;
(5) the applicant has agreed to avoid waste and
achieve water conservation; and
(6) the applicant has agreed that reasonable diligence
will be used to protect groundwater quality and that the applicant
will follow well plugging guidelines at the time of well closure.
(e) The district may impose more restrictive permit
conditions on new permit applications and permit amendment
applications to increase [increased] use by historic users if the
limitations:
(1) apply to all subsequent new permit applications
and permit amendment applications to increase [increased] use by
historic users, regardless of type or location of use;
(2) bear a reasonable relationship to the existing
district management plan; and
(3) are reasonably necessary to protect existing use.
(f) Permits and permit amendments may be issued subject to
the rules promulgated by the district and subject to terms and
provisions with reference to the drilling, equipping, completion,
[or] alteration, or operation of, or production of groundwater
from, [of] 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) In implementing Subsection (e) or Section 36.116(b), a
district may require an existing or historic user to prove the
maximum annual amount of groundwater that the user applied to a
beneficial use during a reasonable period established by the
district that ends on or before the date on which the district
publishes notice or adopts rules protecting existing or historic
users under Subsection (e) or Section 36.116(b).
(h) In implementing Subsection (g), a district may:
(1) for a user who produced groundwater only within
the final year of the period established under Subsection (g),
issue a permit for existing or historic use based on an
extrapolation of the user's beneficial use of groundwater to the
amount that would have been used in a full calendar year for the
same beneficial use;
(2) for use based on agricultural irrigation, issue a
permit based on:
(A) the maximum annual amount of groundwater
actually used during the period established under Subsection (g);
or
(B) the acreage irrigated during the period
established under Subsection (g); or
(3) for an electric utility, a power generation
company, or a retail electric provider as defined by Section
31.002, Utilities Code, issue a permit based on the amount actually
used as computed under and for the period established under
Subsection (g) or Subdivision (1).
(i) An annual report of groundwater use previously
submitted to a state agency is admissible as evidence of existing or
historic use under Subsection (g) or (h).
(j) In issuing a permit for existing or historic use, a
district may not discriminate against land or wells on land
enrolled or participating in the federal conservation reserve
program. Notwithstanding any provision to the contrary in this
chapter, a district that adopts rules related to the protection of
existing or historic use which authorize a person who participated
in the federal conservation reserve program during a period
established by the district under Subsection (g) to establish
existing or historic use based upon the person's groundwater
production during a reasonable period of time established by the
district prior to the person entering the federal conservation
reserve program shall not be considered discriminatory against such
a person for purposes of this chapter [A district may require that
changes in the withdrawal and use of groundwater under a permit not
be made without the prior approval of a permit amendment issued by
the district].
SECTION 3. Subchapter D, Chapter 36, Water Code, is amended
by adding Section 36.1132 to read as follows:
Sec. 36.1132. DEFINED HISTORIC USE PERIODS FOR CERTAIN
DISTRICTS. (a) This section applies only to a groundwater
conservation district created under Section 59, Article XVI, Texas
Constitution, that:
(1) is, at least in part, adjacent to an international
border;
(2) has within its boundaries a part of an aquifer that
is regulated under Chapter 626, Acts of the 73rd Legislature,
Regular Session, 1993; and
(3) is not regulated under Chapter 626, Acts of the
73rd Legislature, Regular Session, 1993.
(b) In implementing Section 36.113(e) or 36.116(b), and
notwithstanding the periods described under Section 36.113(g), a
district may institute a process requiring an existing or historic
user to prove the maximum annual amount of groundwater that the user
applied to a beneficial use during the period from:
(1) June 1, 1972, to December 31, 1991; or
(2) January 1, 1992, to January 7, 2003.
(c) In implementing Subsection (b), for a user who produced
groundwater only within the final year of the period established
under Subsection (b)(2), a district shall issue a permit for
existing or historic use based on an extrapolation of the user's
beneficial use of groundwater to the amount that would have been
used in a full calendar year for the same beneficial use.
(d) If a district limits or reduces total permitted
production within its boundaries in a manner consistent with its
certified groundwater district management plan under Section
36.1072, the district shall limit or reduce the amount of permitted
production of groundwater through proportionate reductions that
will apply equally among classes of users in the following order,
with all limitations or reductions that can be made in one class
being made in that class before proceeding with limitations or
reductions in the next subsequent class:
(1) new users, except as provided by Subdivision (2);
(2) the class of users described by Subsections (b)(1)
and (c), or any new user who was issued a permit by the district on
or before May 1, 2003, for the amount recognized in the permit; and
(3) the class of users described by Subsection (b)(2).
SECTION 4. Section 36.114, Water Code, is amended to read as
follows:
Sec. 36.114. PERMIT; PERMIT AMENDMENT; APPLICATION AND
HEARING. (a) The district by rule shall determine each activity
regulated by the district for which a permit or permit amendment is
required.
(b) For each activity for which the district determines a
permit or permit amendment is required under Subsection (a), the
district by rule shall determine whether a hearing on the permit or
permit amendment application is required.
(c) For all applications for which a hearing is not required
under Subsection (b), the board shall act on the application at a
meeting, as defined by Section 551.001(4), Government Code, unless
the board by rule has delegated to the general manager the authority
to act on the application.
(d) The district shall promptly consider and act on each
administratively complete application for a permit or permit
amendment as provided by Subsection (c) or Subchapter M.
(e) If, within 60 [30] days after the date an [the]
administratively complete application is submitted, the [an]
application has not been acted on or set for a hearing on a specific
date, the applicant may 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.
(f) For applications requiring a hearing, the initial [A]
hearing shall be held within 35 days after the setting of the date,
and the district shall act on the application within 60 [35] days
after the date [of] the final hearing on the application is
concluded.
(g) The district may by rule set a time when an application
will expire if the information requested in the application is not
provided to the district.
(h) An administratively complete application requires
information set forth in accordance with Sections 36.113 and
36.1131.
SECTION 5. Subchapter L, Chapter 36, Water Code, is amended
by adding Section 36.3705 to read as follows:
Sec. 36.3705. DEFINITION. In this subchapter, "applicant"
means a newly confirmed district applying for a loan from the loan
fund.
SECTION 6. Chapter 36, Water Code, is amended by adding
Subchapter M to read as follows:
SUBCHAPTER M. PERMIT AND PERMIT AMENDMENT APPLICATIONS;
NOTICE AND HEARING PROCESS
Sec. 36.401. DEFINITION. In this subchapter, "applicant"
means a person who is applying for a permit or a permit amendment.
Sec. 36.402. APPLICABILITY. Except as provided by Section
36.415, 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. (a) The general
manager or board shall schedule a hearing on permit or permit
amendment applications received by the district as necessary, as
provided by Section 36.114.
(b) The general manager or board may schedule more than one
application for consideration at a hearing.
(c) A hearing must be held at the district office or regular
meeting location of the board unless the board provides for
hearings to be held at a different location.
(d) A hearing may be held in conjunction with a regularly
scheduled board meeting.
Sec. 36.404. NOTICE. (a) The general manager or board
shall give notice of each hearing on an application for a permit or
permit amendment.
(b) The notice must include:
(1) the name of the applicant;
(2) the address or approximate location of the well or
proposed well;
(3) for a permit amendment hearing, a brief
explanation of the proposed amendment;
(4) the time, date, and location of the hearing; and
(5) any other information the general manager or board
considers relevant and appropriate.
(c) Not later than the 10th day before the date of a hearing,
the general manager or board shall:
(1) post notice in a place readily accessible to the
public in the district office;
(2) provide notice to the county clerk of each county
in the district; and
(3) provide notice by:
(A) regular mail to the applicant;
(B) regular mail, facsimile, or electronic mail
to any person who has submitted a written request for notice of the
hearing; and
(C) regular mail to any other person entitled to
receive notice under the rules of the district.
(d) A person may submit to the district a written request
for notice of a hearing on a permit or permit amendment application.
A written request for notice of a hearing is effective for one year
from the date the request is received by the district. To receive
notice of a hearing after a request expires, a person must submit a
new request.
(e) Failure to provide notice under Subsection (c)(3)(B)
does not invalidate any action taken by the district at the hearing.
Sec. 36.405. HEARING REGISTRATION. The district may
require each person who participates in a hearing to submit a
hearing registration form stating:
(1) the person's name;
(2) the person's address; and
(3) whom the person represents, if the person is not
there in the person's individual capacity.
Sec. 36.406. HEARING PROCEDURES. (a) A hearing must be
conducted by:
(1) a quorum of the board; or
(2) an individual to whom the board has delegated in
writing the responsibility to preside as a hearings examiner over
the hearing or matters related to the hearing.
(b) The board president or the hearings examiner shall serve
as the presiding officer at the hearing.
(c) The presiding officer shall:
(1) convene the hearing at the time and place
specified in the notice;
(2) set any necessary additional hearing dates;
(3) establish the order for presentation of evidence;
(4) administer oaths to all persons presenting
testimony;
(5) examine persons presenting testimony;
(6) ensure that information and testimony are
introduced as conveniently and expeditiously as possible without
prejudicing the rights of any party; and
(7) prescribe reasonable time limits for testimony and
the presentation of evidence.
(d) Any interested person, including the general manager or
a district employee, may testify or present evidence at the
hearing, unless:
(1) the district by rule limits testimony or the
presentation of evidence to persons that the district determines to
be affected by the subject matter of the hearing; or
(2) the presiding officer, under authority granted to
the presiding officer by district rule, limits testimony or the
presentation of evidence to persons who, in the presiding officer's
determination, are affected by the subject matter of the hearing.
(e) The presiding officer may allow testimony to be
submitted in writing and may require that written testimony be
sworn to.
(f) The presiding officer may allow a person who testifies
at the hearing to supplement the testimony given at the hearing by
filing additional written materials with the board or hearings
examiner not later than the 10th day after the date of the hearing
if no decision has been made by the board.
(g) Notwithstanding any other provision of this section, if
authorized by the rules of the district, the presiding officer, at
the discretion of the presiding officer, may issue an order at any
time before board action under Section 36.411 that:
(1) refers parties to a contested application hearing
to an alternative dispute resolution procedure on any matter at
issue in the hearing;
(2) determines how the costs of the procedure shall be
apportioned among the parties; and
(3) appoints an impartial third party as provided by
Section 2009.053, Government Code, to facilitate that procedure.
Sec. 36.407. EVIDENCE. (a) The presiding officer shall
admit evidence if it is relevant to an issue at the hearing.
(b) The presiding officer may exclude evidence that is
irrelevant, immaterial, or unduly repetitious.
Sec. 36.408. RECORDING. (a) Except as provided by
Subsection (b), the presiding officer shall prepare and keep a
record of each hearing in the form of minutes, audio or video
recording, or court reporter transcription. On the request of any
party to a contested hearing, the hearing shall be transcribed by a
court reporter. The presiding officer may assess costs associated
with the court reporter transcription against the party requesting
the transcription or among the parties to the hearing at the
presiding officer's discretion. The presiding officer may exclude
a party from further participation in a hearing for failure to pay
in a timely manner any costs associated with a court reporter
transcription that were assessed against that party.
(b) If a hearing is uncontested, the presiding officer may
substitute the report required under Section 36.410 for a method of
recording the hearing described by Subsection (a).
Sec. 36.409. CONTINUANCE. The presiding officer may
continue a hearing from time to time and from place to place without
providing notice under Section 36.404. If the presiding officer
continues a hearing without announcing at the hearing the time,
date, and location of the continued hearing, the presiding officer
must provide notice of the continued hearing by regular mail to
persons who submitted a hearing registration form under Section
36.405.
Sec. 36.410. REPORT. (a) The presiding officer shall
submit a report to the board not later than the 30th day after the
date a hearing is concluded, unless the hearing was conducted by a
quorum of the board. If the hearing was conducted by a quorum of the
board, the presiding officer shall determine at the presiding
officer's discretion whether to prepare and submit a report to the
board under this section.
(b) The report must include:
(1) a summary of the subject matter of the hearing;
(2) a summary of the evidence or public comments
received; and
(3) the presiding officer's recommendations for board
action on the subject matter of the hearing.
(c) A person who participated in the hearing may:
(1) submit a written request to review a copy of the
report; and
(2) submit to the board written exceptions to the
report.
(d) The presiding officer or general manager shall mail a
copy of the report to each person who requests to review the report
under Subsection (c).
Sec. 36.411. BOARD ACTION. The board shall act on a permit
or permit amendment application not later than the 60th day after
the date the final hearing on the application is concluded.
Sec. 36.412. REQUEST FOR REHEARING AND APPEAL. (a) An
applicant may appeal a decision of the board on a permit or permit
amendment application by requesting a rehearing before the board
not later than the 20th day after the date of the board's decision.
(b) A request for rehearing must be filed in the district
office and must state the grounds for the request.
(c) If the board grants a request for rehearing, the board
shall schedule the rehearing not later than the 45th day after the
date the request is granted.
(d) The failure of the board to grant or deny a request for
rehearing before the 91st day after the date the request is
submitted constitutes a denial of the request.
Sec. 36.413. DECISION; WHEN FINAL. (a) A decision by the
board on a permit or permit amendment application is final:
(1) if a request for rehearing is not filed on time, on
the expiration of the period for filing a request for rehearing; or
(2) if a request for rehearing is filed on time, on the
date:
(A) the board denies the request for rehearing;
(B) the board renders a decision after rehearing;
or
(C) the request for rehearing is denied by
operation of law.
(b) A decision by the board on a permit or permit amendment
application is appealable if the decision is final under Subsection
(a)(2).
Sec. 36.414. ADDITIONAL PROCEDURES. A district by rule
shall adopt procedural rules to implement this subchapter and may
adopt notice and hearing procedures in addition to those provided
by this subchapter.
Sec. 36.415. HEARINGS CONDUCTED BY STATE OFFICE OF
ADMINISTRATIVE HEARINGS. This subchapter does not apply to a
hearing conducted by the State Office of Administrative Hearings
under Section 2003.021(b)(4), Government Code. If a district
contracts with the State Office of Administrative Hearings to
conduct a hearing, the hearing shall be conducted as provided by
Subchapters C, D, and F, Chapter 2001, Government Code.
Sec. 36.416. ALTERNATIVE DISPUTE RESOLUTION. A district by
rule may develop and use alternative dispute resolution procedures
in the manner provided for governmental bodies under Chapter 2009,
Government Code.
Sec. 36.417. NONAPPLICABILITY OF CHAPTER 2001, GOVERNMENT
CODE. Except as provided by Section 36.415, Chapter 2001,
Government Code, does not apply to a hearing under this chapter.
SECTION 7. Subdivision (17), Section 36.001, Water Code, is
repealed.
SECTION 8. (a) The legislature finds that:
(1) groundwater conservation districts have existing
statutory authority to protect existing or historic use under
Subsection (e), Section 36.113, and Subsection (b), Section 36.116,
Water Code;
(2) in implementing Subsection (e), Section 36.113,
and Subsection (b), Section 36.116, Water Code, it is important
that groundwater conservation districts, in the conservation and
management of groundwater, adopt precise rules regarding existing
or historic use of groundwater, and that those rules may include
definite time periods during which existing or historic use must be
proven; and
(3) it will benefit the state and its citizens to set
express statutory guidelines that clarify the ability of
groundwater conservation districts to define and identify existing
or historic use periods.
(b) The changes in law made by this Act do not:
(1) limit the express or implied powers that
groundwater conservation districts had before the effective date of
this Act to implement Subsection (e), Section 36.113, and
Subsection (b), Section 36.116, Water Code, using reasonable time
periods during which existing or historic use must be proven by a
permit applicant; or
(2) invalidate rules lawfully adopted by a groundwater
conservation district before the effective date of this Act that
use those reasonable time periods.
(c) A district to which Section 36.1132, Water Code, as
added by this Act, applies may require a well that was previously
exempted by district rule from the permitting procedures of the
district but that is not exempt under Subsection (b), Section
36.117, Water Code, and is no longer exempted by district rule, as
of the effective date of this Act, to comply with the permitting
procedures and rules of the district, as amended. This subsection
does not apply to the requirement to obtain a permit to drill,
equip, or complete a well that was drilled, equipped, or completed
under an exemption by district rule before the date of repeal of the
exemption; however, this subsection does apply to the production of
groundwater from or operation of such a well.
(d) Notwithstanding Subdivision (3), Subsection (h),
Section 36.113, Water Code, as added by this Act, a district that
issues permits based on existing or historic use under Subsection
(e), Section 36.113, or Subsection (b), Section 36.116, Water Code,
and implements Subsection (g), Section 36.113, Water Code, may
issue an electric utility, a power generation company, or a retail
electric provider as defined by Section 31.002, Utilities Code, a
permit based on an amount necessary to annually provide sufficient
groundwater for cooling, boiler make-up, and potable purposes for
use at an existing or planned power generation facility using land
or the right to produce groundwater from land that was acquired by
the electric utility, power generation company, or retail electric
provider before May 1, 2003, to supply water to power generation
facilities that on that date existed or were planned for future
construction.
SECTION 9. 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. 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 related to notice and hearing in effect at the
time the hearing is held, and the former law is continued in effect
for that purpose.
SECTION 10. This Act takes effect September 1, 2003.