78R1799 QS-D
By: Duncan S.B. No. 738
A BILL TO BE ENTITLED
AN ACT
relating to the notice and hearing 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), (e), and (f) 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 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) publish notice in one or more newspapers of
general circulation in the county or counties in which the district
is located.
(e) The notice provided under Subsection (d) must include:
(1) the time, date, and location of the hearing; and
(2) a brief explanation of the subject of the hearing.
(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.
SECTION 2. Sections 36.113 and 36.114, Water Code, are
amended to read as follows:
Sec. 36.113. PERMITS FOR WELLS; PERMIT AMENDMENTS. (a) A
district shall require permits for the drilling, equipping, 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.
(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) 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.]
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.
(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 last date of the hearing or hearings.
(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 3. 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 4. 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 by rule provides for
hearings to be held at a different location in the district.
(d) A hearing may be held in conjunction with a regularly
scheduled board meeting.
Sec. 36.404. NOTICE. (a) The general manager shall give
notice of each permit or permit amendment hearing.
(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 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 regular mail to:
(A) the applicant; and
(B) any other person entitled to receive notice
under the rules of the district.
Sec. 36.405. HEARING REGISTRATION. The district may
require each person who attends a hearing to submit a hearing
registration form stating:
(1) the person's name;
(2) the person's address;
(3) whom the person represents, if the person is not
there in the person's individual capacity; and
(4) whether the person wishes to testify.
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 by rule
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 may 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. The presiding officer shall
prepare and keep a record of each hearing in the form of minutes,
audio or video recording, court reporter transcription, or the
report described by Section 36.410. If a hearing is transcribed at
the request of a party to the hearing, the presiding officer may
assess the costs associated with producing the transcript to one or
more parties.
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 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 decision by the board
in a permit or permit amendment application hearing 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;
or
(B) the board renders a decision after rehearing.
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 district shall adopt rules establishing
procedures for those hearings consistent with 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.
SECTION 5. Section 36.001(17), Water Code, is repealed.
SECTION 6. 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 in effect at the time the hearing is held, and
the former law is continued in effect for that purpose.
SECTION 7. This Act takes effect September 1, 2003.