H.B. No. 1763
AN ACT
relating to the notice, hearing, rulemaking, and permitting
procedures for groundwater conservation districts.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 16.053, Water Code, is amended by
amending Subsections (e) and (p) and adding Subsections (p-1),
(p-2), (p-3), and (p-4) to read as follows:
(e) Each regional water planning group shall submit to the
development board a regional water plan that:
(1) is consistent with the guidance principles for the
state water plan adopted by the development board under Section
16.051(d);
(2) provides information based on data provided or
approved by the development board in a format consistent with the
guidelines provided by the development board under Subsection (d);
(3) identifies:
(A) each source of water supply in the regional
water planning area, including information supplied by the
executive administrator on the amount of managed available
groundwater in accordance with the guidelines provided by the
development board under Subsections (d) and (f);
(B) factors specific to each source of water
supply to be considered in determining whether to initiate a
drought response; and
(C) actions to be taken as part of the response;
(4) has specific provisions for water management
strategies to be used during a drought of record;
(5) includes but is not limited to consideration of
the following:
(A) any existing water or drought planning
efforts addressing all or a portion of the region;
(B) approved [certified] groundwater
conservation district management plans and other plans submitted
under Section 16.054;
(C) all potentially feasible water management
strategies, including but not limited to improved conservation,
reuse, and management of existing water supplies, conjunctive use,
acquisition of available existing water supplies, and development
of new water supplies;
(D) protection of existing water rights in the
region;
(E) opportunities for and the benefits of
developing regional water supply facilities or providing regional
management of water supply facilities;
(F) appropriate provision for environmental
water needs and for the effect of upstream development on the bays,
estuaries, and arms of the Gulf of Mexico and the effect of plans on
navigation;
(G) provisions in Section 11.085(k)(1) if
interbasin transfers are contemplated;
(H) voluntary transfer of water within the region
using, but not limited to, regional water banks, sales, leases,
options, subordination agreements, and financing agreements; and
(I) emergency transfer of water under Section
11.139, including information on the part of each permit, certified
filing, or certificate of adjudication for nonmunicipal use in the
region that may be transferred without causing unreasonable damage
to the property of the nonmunicipal water rights holder;
(6) identifies river and stream segments of unique
ecological value and sites of unique value for the construction of
reservoirs that the regional water planning group recommends for
protection under Section 16.051;
(7) assesses the impact of the plan on unique river and
stream segments identified in Subdivision (6) if the regional water
planning group or the legislature determines that a site of unique
ecological value exists; and
(8) describes the impact of proposed water projects on
water quality.
(p) If a groundwater conservation district files a petition
with the development board stating that a conflict requiring
resolution may exist between the district's approved [certified
groundwater conservation district] management plan developed under
Section 36.1071 and an [the] approved state [regional] water plan,
the development board shall provide technical assistance to and
facilitate coordination between the district and the involved
region to resolve the conflict. Not later than the 45th day after
the date the groundwater conservation district files a petition
with the development board, if the conflict has not been resolved,
the district and the involved region shall mediate the conflict.
The district and the involved region may seek the assistance of the
Center for Public Policy Dispute Resolution at The University of
Texas School of Law or an alternative dispute resolution system
established under Chapter 152, Civil Practice and Remedies Code, in
obtaining a qualified impartial third party to mediate the
conflict. The cost of the mediation services must be specified in
the agreement between the parties and the Center for Public Policy
Dispute Resolution or the alternative dispute resolution system.
If the district and the involved region cannot resolve the conflict
through mediation [remains], the development board shall resolve
the conflict not later than the 60th day after the date the
mediation is completed as provided by Subsections (p-1) and (p-2).
(p-1) If the development board determines that resolution
of the conflict requires a revision of an approved regional water
plan, the development board shall suspend the approval of that plan
and provide information to the regional water planning group. The
regional water planning group shall prepare any revisions to its
plan specified by the development board and shall hold, after
notice, at least one public hearing at some central location within
the regional water planning area. The regional water planning
group shall consider all public and development board comments,
prepare, revise, and adopt its plan, and submit the revised plan to
the development board for approval and inclusion in the state water
plan.
(p-2) If the development board determines that resolution
of the conflict requires a revision of the district's approved
[certified] groundwater conservation district management plan, the
development board shall [suspend the certification of that plan
and] provide information to the district. The groundwater district
shall prepare any revisions to its plan based on the information
provided [specified] by the development board and shall hold, after
notice, at least one public hearing at some central location within
the district. The groundwater district shall consider all public
and development board comments, prepare, revise, and adopt its
plan, and submit the revised plan to the development board [for
certification].
(p-3) If the groundwater conservation district disagrees
with the decision of the development board under Subsection (p),
the district may appeal the decision to a district court in Travis
County. Costs for the appeal shall be set by the court hearing the
appeal. An appeal under this subsection is by trial de novo.
(p-4) On the request of the involved region or groundwater
conservation district, the development board shall include
discussion of the conflict and its resolution in the state water
plan that the development board provides to the governor, the
lieutenant governor, and the speaker of the house of
representatives under Section 16.051(e).
SECTION 2. Section 36.001, Water Code, is amended by
striking Subdivision (17) and adding Subdivisions (4-a) and (24)
through (29) to read as follows:
(4-a) "Federal conservation program" means the
Conservation Reserve Program of the United States Department of
Agriculture.
[(17) "Applicant" means a newly confirmed district
applying for a loan from the loan fund.]
(24) "Total aquifer storage" means the total
calculated volume of groundwater that an aquifer is capable of
producing.
(25) "Managed available groundwater" means the amount
of water that may be permitted by a district for beneficial use in
accordance with the desired future condition of the aquifer as
determined under Section 36.108.
(26) "Recharge" means the amount of water that
infiltrates to the water table of an aquifer.
(27) "Inflows" means the amount of water that flows
into an aquifer from another formation.
(28) "Discharge" means the amount of water that leaves
an aquifer by natural or artificial means.
(29) "Evidence of historic or existing use" means
evidence that is material and relevant to a determination of the
amount of groundwater beneficially used without waste by a permit
applicant during the relevant time period set by district rule that
regulates groundwater based on historic use. Evidence in the form
of oral or written testimony shall be subject to cross-examination.
The Texas Rules of Evidence govern the admissibility and
introduction of evidence of historic or existing use, except that
evidence not admissible under the Texas Rules of Evidence may be
admitted if it is of the type commonly relied upon by reasonably
prudent persons in the conduct of their affairs.
SECTION 3. Section 36.101, Water Code, is amended by
amending Subsection (b) and adding Subsections (d)-(l) to read as
follows:
(b) Except as provided by Section 36.1011, after [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 20th 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 at 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;
(4) provide notice by mail, facsimile, or electronic
mail to any person who has requested notice under Subsection (i);
and
(5) make available a copy of all proposed rules at a
place accessible to the public during normal business hours and, if
the district has a website, post an electronic copy on a generally
accessible Internet site.
(e) The notice provided under Subsection (d) must include:
(1) the time, date, and location of the rulemaking
hearing;
(2) a brief explanation of the subject of the
rulemaking hearing; and
(3) a location or Internet site 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 comments relating to the
proposed rule as conveniently and expeditiously as possible.
Comments may be submitted orally at the hearing or in writing. The
presiding officer may hold the record open for a specified period
after the conclusion of the hearing to receive additional written
comments.
(g) A district may require each person who participates in a
rulemaking 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 at
the hearing in the person's individual capacity.
(h) 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.
(i) A person may submit to the district a written request
for notice of a rulemaking hearing. A request is effective for the
remainder of the calendar year in which the request is received by
the district. To receive notice of a rulemaking hearing in a later
year, a person must submit a new request. An affidavit of an
officer or employee of the district establishing attempted service
by first class mail, facsimile, or e-mail to the person in
accordance with the information provided by the person is proof
that notice was provided by the district.
(j) A district may use an informal conference or
consultation to obtain the opinions and advice of interested
persons about contemplated rules and may appoint advisory
committees of experts, interested persons, or public
representatives to advise the district about contemplated rules.
(k) Failure to provide notice under Subsection (d)(4) does
not invalidate an action taken by the district at a rulemaking
hearing.
(l) Subsections (b)-(k) do not apply to the Edwards Aquifer
Authority.
SECTION 4. Subchapter D, Chapter 36, Water Code, is amended
by adding Section 36.1011 to read as follows:
Sec. 36.1011. EMERGENCY RULES. (a) A board may adopt an
emergency rule without prior notice or hearing, or with an
abbreviated notice and hearing, if the board:
(1) finds that a substantial likelihood of imminent
peril to the public health, safety, or welfare, or a requirement of
state or federal law, requires adoption of a rule on less than 20
days' notice; and
(2) prepares a written statement of the reasons for
its finding under Subdivision (1).
(b) Except as provided by Subsection (c), a rule adopted
under this section may not be effective for longer than 90 days.
(c) If notice of a hearing on the final rule is given not
later than the 90th day after the date the rule is adopted, the rule
is effective for an additional 90 days.
(d) A rule adopted under this section must be adopted at a
meeting held as provided by Chapter 551, Government Code.
(e) This section does not apply to the Edwards Aquifer
Authority.
SECTION 5. Sections 36.1071(a), (b), and (d)-(h), Water
Code, are amended to read as follows:
(a) Following notice and hearing, the district shall, in
coordination with surface water management entities on a regional
basis, develop a comprehensive management plan which addresses the
following management goals, as applicable:
(1) providing the most efficient use of groundwater;
(2) controlling and preventing waste of groundwater;
(3) controlling and preventing subsidence;
(4) addressing conjunctive surface water management
issues;
(5) addressing natural resource issues;
(6) addressing drought conditions; [and]
(7) addressing conservation, recharge enhancement,
rainwater harvesting, precipitation enhancement, or brush control,
where appropriate and cost-effective; and
(8) addressing in a quantitative manner the desired
future conditions of the groundwater resources.
(b) A [After January 5, 2002, a] district management plan,
or any amendments to a district management plan, shall be developed
by the district using the district's best available data and
forwarded to the regional water planning group for use
[consideration] in their planning process.
(d) The commission shall provide technical assistance to a
district during its initial operational phase. If requested by a
district, the Texas Water Development Board shall train the
district on basic data collection methodology and provide technical
assistance to districts.
(e) In the management plan described under Subsection (a),
the district shall:
(1) identify the performance standards and management
objectives under which the district will operate to achieve the
management goals identified under Subsection (a);
(2) specify, in as much detail as possible, the
actions, procedures, performance, and avoidance that are or may be
necessary to effect the plan, including specifications and proposed
rules;
(3) include estimates of the following:
(A) managed available [the existing total usable
amount of] groundwater in the district based on the desired future
condition established under Section 36.108;
(B) the amount of groundwater being used within
the district on an annual basis;
(C) the annual amount of recharge from
precipitation, if any, to the groundwater resources within the
district [and how natural or artificial recharge may be increased];
[and]
(D) for each aquifer, the annual volume of water
that discharges from the aquifer to springs and any surface water
bodies, including lakes, streams, and rivers;
(E) the annual volume of flow into and out of the
district within each aquifer and between aquifers in the district,
if a groundwater availability model is available;
(F) the projected surface water supply in the
district according to the most recently adopted state water plan;
and
(G) the projected total demand for water in the
district according to the most recently adopted state water plan
[projected water supply and demand for water within the district];
and
(4) consider the [address] water supply needs and
water management strategies included in [a manner that is not in
conflict with] the adopted state [appropriate approved regional]
water plan [if a regional water plan has been approved under Section
16.053].
(f) The district shall adopt rules necessary to implement
the management plan. Prior to the development of the management
plan and its approval under Section 36.1072, the district may not
adopt rules other than rules pertaining to the registration and
interim permitting of new and existing wells and rules governing
spacing and procedure before the district's board; however, the
district may not adopt any rules limiting the production of wells,
except rules requiring that groundwater produced from a well be put
to a nonwasteful, beneficial use. The district may accept
applications for permits under Section 36.113, provided the
district does not act on any such application until the district's
management plan is approved as provided in Section 36.1072.
(g) The district [board] shall adopt amendments to the
management plan as necessary. Amendments to the management plan
shall be adopted after notice and hearing and shall otherwise
comply with the requirements of this section.
(h) In developing its management plan, the district shall
use the groundwater availability modeling information provided by
the executive administrator together [in conjunction] with any
available site-specific information that has been provided by the
district to the executive administrator for review and comment
before being used in the plan [and acceptable to the executive
administrator].
SECTION 6. Section 36.1072, Water Code, is amended to read
as follows:
Sec. 36.1072. TEXAS WATER DEVELOPMENT BOARD REVIEW AND
APPROVAL [CERTIFICATION] OF MANAGEMENT PLAN. (a) A district
shall, not later than three [two] years after the creation of the
district or, if the district required confirmation, after the
election confirming the district's creation, submit the management
plan required under Section 36.1071 to the executive administrator
for review and approval [certification].
(b) Within 60 days of receipt of a management plan adopted
under Section 36.1071, readopted under Subsection (e) or (g) of
this section, or amended under Section 36.1073, the executive
administrator shall approve [certify] a management plan if the plan
is administratively complete. A management plan is
administratively complete when it contains the information
required to be submitted under Section 36.1071(a) and (e). The
executive administrator may determine whether [that] conditions
justify waiver of the requirements under Section 36.1071(e)(4).
(c) Once the executive administrator has approved a
[determination that a] management plan [is administratively
complete has been made]:
(1) the executive administrator may not revoke but may
require revisions to the approved groundwater conservation
district management plan as provided by Subsection (g)
[determination that a management plan is administratively
complete]; and
(2) the executive administrator may request
additional information from the district if the information is
necessary to clarify, modify, or supplement previously submitted
material, but[; and
[(3)] a request for additional information does not
render the management plan unapproved [incomplete].
(d) A management plan takes effect on approval
[certification] by the executive administrator or, if appealed, on
approval [certification] by the Texas Water Development Board.
(e) The district [board] may review the plan annually and
must review and readopt the plan with or without revisions at least
once every five years. The district shall provide the readopted
plan to the executive administrator not later than the 60th day
after the date on which the plan was readopted. Approval of the
preceding management plan remains in effect until:
(1) the district fails to timely readopt a management
plan;
(2) the district fails to timely submit the district's
readopted management plan to the executive administrator; or
(3) the executive administrator determines that the
readopted management plan does not meet the requirements for
approval, and the district has exhausted all appeals to the Texas
Water Development Board or appropriate court.
(f) If the executive administrator does not approve
[certify] the management plan, the executive administrator shall
provide to the district, in writing, the reasons for the action.
Not later than the 180th day after the date a district receives
notice that its management plan has not been approved [certified],
the district may submit a revised management plan for review and
approval [certification]. The executive administrator's decision
may be appealed to the Texas Water Development Board. If the Texas
Water Development Board decides not to approve the management plan
on appeal, the district may request that the conflict be mediated.
The district and the board may seek the assistance of the Center for
Public Policy Dispute Resolution at The University of Texas School
of Law or an alternative dispute resolution system established
under Chapter 152, Civil Practice and Remedies Code, in obtaining a
qualified impartial third party to mediate the conflict. The cost
of the mediation services must be specified in the agreement
between the parties and the Center for Public Policy Dispute
Resolution or the alternative dispute resolution system. If the
parties do not resolve the conflict through mediation, the [The]
decision of the Texas Water Development Board not [on whether] to
approve [certify] the management plan may [not] be appealed to a
district court in Travis County. Costs for the appeal shall be set
by the court hearing the appeal. An appeal under this subsection is
by trial de novo. The commission shall not take enforcement action
against a district under Subchapter I until the later of the
expiration of the 180-day period, [or] the date the Texas Water
Development Board has taken final action withholding approval
[certification] of a revised management plan, the date the
mediation is completed, or the date a final judgment upholding the
board's decision is entered by a district court. An enforcement
action may not be taken against a district by the commission or the
state auditor under Subchapter I because the district's management
plan and the approved regional water plan are in conflict while the
parties are attempting to resolve the conflict before the
development board, in mediation, or in court. Rules of the district
continue in full force and effect until all appeals under this
subsection have been exhausted and the final judgment is adverse to
the district.
(g) In this subsection, "development board" means the Texas
Water Development Board. A person with a legally defined interest
in groundwater in a district or the regional water planning group
may file a petition with the development board stating that a
conflict requiring resolution may exist between the district's
approved [certified groundwater conservation district] management
plan developed under Section 36.1071 and the state water plan. If a
conflict exists, the development board shall provide technical
assistance to and facilitate coordination between the involved
person or regional water planning group and the district to resolve
the conflict. Not later than the 45th day after the date the person
or the regional water planning group files a petition with the
development board, if the conflict has not been resolved, the
district and the involved person or regional planning group may
mediate the conflict. The district and the involved person or
regional planning group may seek the assistance of the Center for
Public Policy Dispute Resolution at The University of Texas School
of Law or an alternative dispute resolution system established
under Chapter 152, Civil Practice and Remedies Code, in obtaining a
qualified impartial third party to mediate the conflict. The cost
of the mediation services must be specified in the agreement
between the parties and the Center for Public Policy Dispute
Resolution or the alternative dispute resolution system. If the
district and the involved person or regional planning group cannot
resolve the conflict through mediation [remains], the development
board shall resolve the conflict not later than the 60th day after
the date the mediation is completed. The development board action
under this provision may be consolidated, at the option of the
board, with related action under Section 16.053(p). If the
development board determines that resolution of the conflict
requires a revision of the approved [certified] groundwater
conservation district management plan, the development board shall
[suspend the certification of the plan and] provide information to
the district. The district shall prepare any revisions to the plan
based on the information provided [specified] by the development
board and shall hold, after notice, at least one public hearing at
some central location within the district. The district shall
consider all public and development board comments, prepare,
revise, and adopt its plan, and submit the revised plan to the
development board for approval [certification]. On the request of
the district or the regional water planning group, the development
board shall include discussion of the conflict and its resolution
in the state water plan that the development board provides to the
governor, the lieutenant governor, and the speaker of the house of
representatives under Section 16.051(e). If the groundwater
conservation district disagrees with the decision of the
development board under this subsection, the district may appeal
the decision to a district court in Travis County. Costs for the
appeal shall be set by the court hearing the appeal. An appeal
under this subsection is by trial de novo.
SECTION 7. Section 36.1073, Water Code, is amended to read
as follows:
Sec. 36.1073. AMENDMENT TO MANAGEMENT PLAN. Any amendment
to the management plan shall be submitted to the executive
administrator within 60 days following adoption of the amendment by
the district's board. The executive administrator shall review and
approve [certify] any amendment which substantially affects the
management plan in accordance with the procedures established under
Section 36.1072.
SECTION 8. Section 36.108, Water Code, is amended to read as
follows:
Sec. 36.108. JOINT PLANNING IN MANAGEMENT AREA. (a) In
this section, "development board" means the Texas Water Development
Board.
(b) If two or more districts are located within the
boundaries of the same management area, each district shall prepare
a comprehensive management plan as required by Section 36.1071
covering that district's respective territory. On completion and
approval [certification] of the plan as required by Section
36.1072, each district shall forward a copy of the new or revised
management plan to the other districts in the management area. The
boards of the districts shall consider the plans individually and
shall compare them to other management plans then in force in the
management area.
(c) The presiding officer, or the presiding officer's
designee, of [(b) The board of directors of] each district located
in whole or in part in the management area shall meet at least
annually to conduct [may, by resolution, call for] joint planning
with the other districts in the management area and to review the
management plans and accomplishments for the management area. In
reviewing the management plans, the districts [boards] shall
consider:
(1) the goals of each management plan and its impact on
planning throughout the management area;
(2) the effectiveness of the measures established by
each management plan for conserving and protecting groundwater and
preventing waste, and the effectiveness of these measures in the
management area generally; [and]
(3) any other matters that the boards consider
relevant to the protection and conservation of groundwater and the
prevention of waste in the management area; and
(4) the degree to which each management plan achieves
the desired future conditions established during the joint planning
process.
(d) Not later than September 1, 2010, and every five years
thereafter, the districts shall consider groundwater availability
models and other data or information for the management area and
shall establish desired future conditions for the relevant aquifers
within the management area. In establishing the desired future
conditions of the aquifers under this section, the districts shall
consider uses or conditions of an aquifer within the management
area that differ substantially from one geographic area to another.
The districts may establish different desired future conditions
for:
(1) each aquifer, subdivision of an aquifer, or
geologic strata located in whole or in part within the boundaries of
the management area; or
(2) each geographic area overlying an aquifer in whole
or in part or subdivision of an aquifer within the boundaries of the
management area.
(d-1) The desired future conditions established under
Subsection (d) must be adopted by a two-thirds vote of the district
representatives present at a meeting:
(1) at which at least two-thirds of the districts
located in whole or in part in the management area have a voting
representative in attendance; and
(2) for which all districts located in whole or in part
in the management area provide public notice in accordance with
Chapter 551, Government Code.
(d-2) Each district in the management area shall ensure that
its management plan contains goals and objectives consistent with
achieving the desired future conditions of the relevant aquifers as
adopted during the joint planning process.
(e) A [(c) If a] joint meeting under this section must be
[of the boards of directors is called, the meeting must be] held in
accordance with Chapter 551, Government Code. Each district shall
comply with Chapter 552, Government Code. Notice of the meeting
shall be given in accordance with the requirements for notice of
district board of directors meetings under that Act.
(f) [(d)] A district or person with a legally defined
interest in the groundwater within [in] the management area may
file [with good cause] a petition with the commission requesting an
inquiry if a [the petitioner district adopted a resolution calling
for joint planning and the other] district or districts refused to
join in the planning process or the process failed to result in
adequate planning, including the establishment of reasonable
future desired conditions of the aquifers, and the petition
provides evidence that:
(1) a [another] district in the groundwater management
area has failed to adopt rules;
(2) the rules adopted by a district are not designed to
achieve the desired future condition of the groundwater resources
in the groundwater management area established during the joint
planning process;
(3) the groundwater in the management area is not
adequately protected by the rules adopted by a [another] district;
or
(4) [(3)] the groundwater in the groundwater
management area is not adequately protected due to the failure of a
[another] district to enforce substantial compliance with its
rules.
(g) [(e)] Not later than the 90th day after the date the
petition is filed, the commission shall review the petition and
either:
(1) dismiss the petition if the commission [it if
it] finds that the evidence is not adequate to show that any of the
conditions alleged in the petition exist; or
(2) select a review panel as provided in Subsection
(h) [(f)].
(h) [(f)] If the petition is not dismissed under Subsection
(g) [(e)], the commission shall appoint a review panel consisting
of a chairman and four other members. A director or general manager
of a district located outside the groundwater management area that
is the subject of the petition may be appointed to the review panel.
The commission may not appoint more than two members of the review
panel from any one district. The commission also shall appoint a
disinterested person to serve as a nonvoting recording secretary
for the review panel. The recording secretary may be an employee of
the commission. The recording secretary shall record and document
the proceedings of the panel.
(i) [(g)] Not later than the 120th day after appointment,
the review panel shall review the petition and any evidence
relevant to the petition and, in a public meeting, consider and
adopt a report to be submitted to the commission. The commission
may direct the review panel to conduct public hearings at a location
in the groundwater management area to take evidence on the
petition. The review panel may attempt to negotiate a settlement or
resolve the dispute by any lawful means.
(j) [(h)] In its report, the review panel shall include:
(1) a summary of all evidence taken in any hearing on
the petition;
(2) a list of findings and recommended actions
appropriate for the commission to take and the reasons it finds
those actions appropriate; and
(3) any other information the panel considers
appropriate.
(k) [(i)] The review panel shall submit its report to the
commission. The commission may take action under Section 36.3011.
(l) A person with a legally defined interest in the
groundwater in the groundwater management area, a district in or
adjacent to the groundwater management area, or a regional water
planning group for a region in the groundwater management area may
file a petition with the development board appealing the approval
of the desired future conditions of the groundwater resources
established under this section. The petition must provide evidence
that the districts did not establish a reasonable desired future
condition of the groundwater resources in the groundwater
management area.
(m) The development board shall review the petition and any
evidence relevant to the petition. The development board shall
hold at least one hearing at a central location in the management
area to take testimony on the petition. The development board may
delegate responsibility for a hearing to the executive
administrator or to a person designated by the executive
administrator. If the development board finds that the conditions
require revision, the development board shall submit a report to
the districts that includes a list of findings and recommended
revisions to the desired future conditions of the groundwater
resources.
(n) The districts shall prepare a revised plan in accordance
with development board recommendations and hold, after notice, at
least one public hearing at a central location in the groundwater
management area. After consideration of all public and development
board comments, the districts shall revise the conditions and
submit the conditions to the development board for review.
(o) The districts shall submit the conditions established
under this section to the executive administrator. The executive
administrator shall provide each district and regional water
planning group located wholly or partly in the management area with
the managed available groundwater in the management area based upon
the desired future condition of the groundwater resources
established under this section.
(p) [(j)] Districts located within the same groundwater
management areas or in adjacent management areas may contract to
jointly conduct studies or research, or to construct projects,
under terms and conditions that the districts consider beneficial.
These joint efforts may include studies of groundwater availability
and quality, aquifer modeling, and the interaction of groundwater
and surface water; educational programs; the purchase and sharing
of equipment; and the implementation of projects to make
groundwater available, including aquifer recharge, brush control,
weather modification, desalination, regionalization, and treatment
or conveyance facilities. The districts may contract under their
existing authorizations including those of Chapter 791, Government
Code, if their contracting authority is not limited by Sections
791.011(c)(2) and (d)(3) and Section 791.014, Government Code.
SECTION 9. Section 36.109, Water Code, is amended to read as
follows:
Sec. 36.109. COLLECTION OF INFORMATION. A district may
collect any information the board deems necessary, including
information regarding the use of groundwater, water conservation,
and the practicability of recharging a groundwater reservoir. At
the request of the executive administrator, the district shall
provide any data collected by the district in a format acceptable to
the executive administrator.
SECTION 10. Sections 36.113 and 36.114, Water Code, are
amended to read as follows:
Sec. 36.113. PERMITS FOR WELLS; PERMIT AMENDMENTS. (a)
Except as provided by Section 36.117, a [A] district shall require a
permit [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 during the term of a permit issued
by the district may not be made unless the district has first
approved a permit amendment authorizing the change.
(a-1) 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 rate.
(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, 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 11. Subchapter D, Chapter 36, Water Code, is
amended by adding Section 36.1132 to read as follows:
Sec. 36.1132. PERMITS BASED ON MANAGED AVAILABLE
GROUNDWATER. A district, to the extent possible, shall issue
permits up to the point that the total volume of groundwater
permitted equals the managed available groundwater, if
administratively complete permit applications are submitted to the
district.
SECTION 12. Sections 36.116(a) and (b), Water Code, are
amended as follows:
(a) In order to minimize as far as practicable the drawdown
of the water table or the reduction of artesian pressure, to control
subsidence, to prevent interference between wells, to prevent
degradation of water quality, or to prevent waste, a district by
rule may regulate:
(1) the spacing of water wells by:
(A) requiring all water wells to be spaced a
certain distance from property lines or adjoining wells;
(B) requiring wells with a certain production
capacity, pump size, or other characteristic related to the
construction or operation of and production from a well to be spaced
a certain distance from property lines or adjoining wells; or
(C) imposing spacing requirements adopted by the
board; and
(2) the production of groundwater by:
(A) setting production limits on wells;
(B) limiting the amount of water produced based
on acreage or tract size;
(C) limiting the amount of water that may be
produced from a defined number of acres assigned to an authorized
well site;
(D) limiting the maximum amount of water that may
be produced on the basis of acre-feet per acre or gallons per minute
per well site per acre; [or]
(E) managed depletion; or
(F) any combination of the methods listed above
in Paragraphs (A) through (E) [(D)].
(b) In promulgating any rules limiting groundwater
production, the district may preserve historic or existing use
before the effective date of the rules to the maximum extent
practicable consistent with the district's comprehensive
management plan under Section 36.1071 and as provided by Section
36.113.
SECTION 13. Section 36.3011, Water Code, is amended to read
as follows:
Sec. 36.3011. FAILURE OF [A] DISTRICT TO CONDUCT JOINT
PLANNING. [(a) If the board of a district within a common
management area fails to forward a copy of its new or revised
certified management plan under Section 36.108, the commission
shall take appropriate action under Section 36.303.
[(b)] Not later than the 45th day after receiving the review
panel's report under Section 36.108, the executive director or the
commission shall take action to implement any or all of the panel's
recommendations. The commission may take any action against a
district it considers necessary in accordance with Section 36.303
if [If] the commission finds that:
(1) a district [in the joint planning area] has failed
to submit its plan to the executive administrator;
(2) a district has failed to adopt rules;
(3) the rules adopted by the district are not designed
to achieve the desired future condition of the groundwater
resources in the groundwater management area; or
(4)[,] the groundwater in the management area is not
adequately protected by the rules adopted by the district, or the
groundwater in the management area is not adequately protected
because of the district's failure to enforce substantial compliance
with its rules[, the commission may take any action it considers
necessary in accordance with Section 36.303].
SECTION 14. Section 36.302(d), Water Code, is amended to
read as follows:
(d) The state auditor may perform the review under
Subsection (a) following the first anniversary of the initial
approval [certification] of the plan [by the Texas Water
Development Board] under Section 36.1072 and at least as often as
once every seven years after that date, subject to a risk assessment
and to the legislative audit committee's approval of including the
review in the audit plan under Section 321.013, Government Code.
SECTION 15. Section 36.304(a), Water Code, is amended to
read as follows:
(a) The commission may dissolve a district that[:
[(1) is not operational, as determined under Section
36.302; and
[(2)] has no outstanding bonded indebtedness.
SECTION 16. 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 17. 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
36.416, 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 may 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) If the general manager or board
schedules a hearing on an application for a permit or permit
amendment, the general manager or board shall give notice of the
hearing as provided by this section.
(b) The notice must include:
(1) the name of the applicant;
(2) the address or approximate location of the well or
proposed well;
(3) a brief explanation of the proposed permit or
permit amendment, including any requested amount of groundwater,
the purpose of the proposed use, and any change in use;
(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 at 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 requested notice under Subsection (d); and
(C) regular mail to any other person entitled to
receive notice under the rules of the district.
(d) A person may request notice from the district of a
hearing on a permit or a permit amendment application. The request
must be in writing and is effective for the remainder of the
calendar year in which the request is received by the district. To
receive notice of a hearing in a later year, a person must submit a
new request. An affidavit of an officer or employee of the district
establishing attempted service by first class mail, facsimile, or
e-mail to the person in accordance with the information provided by
the person is proof that notice was provided by the district.
(e) Failure to provide notice under Subsection (c)(3)(B)
does not invalidate an 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) Except as provided by Subsection (c), the board
president or the hearings examiner shall serve as the presiding
officer at the hearing.
(c) If the hearing is conducted by a quorum of the board and
the board president is not present, the directors conducting the
hearing may select a director to serve as the presiding officer.
(d) The presiding officer may:
(1) convene the hearing at the time and place
specified in the notice;
(2) set any necessary additional hearing dates;
(3) designate the parties regarding a contested
application;
(4) establish the order for presentation of evidence;
(5) administer oaths to all persons presenting
testimony;
(6) examine persons presenting testimony;
(7) ensure that information and testimony are
introduced as conveniently and expeditiously as possible without
prejudicing the rights of any party;
(8) prescribe reasonable time limits for testimony and
the presentation of evidence; and
(9) exercise the procedural rules adopted under
Section 36.415.
(e) Except as provided by a rule adopted under Section
36.415, a district may allow any person, including the general
manager or a district employee, to provide comments at a hearing on
an uncontested application.
(f) The presiding officer may allow testimony to be
submitted in writing and may require that written testimony be
sworn to. On the motion of a party to the hearing, the presiding
officer may exclude written testimony if the person who submits the
testimony is not available for cross-examination by phone, a
deposition before the hearing, or other reasonable means.
(g) If the board has not acted on the application, 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 presiding officer not later than the
10th day after the date of the hearing. A person who files
additional written material with the presiding officer under this
subsection must also provide the material, not later than the 10th
day after the date of the hearing, to any person who provided
comments on an uncontested application or any party to a contested
hearing. A person who receives additional written material under
this subsection may file a response to the material with the
presiding officer not later than the 10th day after the date the
material was received.
(h) The district by rule adopted under Section 36.417 may
authorize the presiding officer, at the presiding officer's
discretion, to issue an order at any time before board action under
Section 36.411 that:
(1) refers parties to a contested 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 that 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 an audio or video recording or
a court reporter transcription. On the request of a party to a
contested hearing, the presiding officer shall have the hearing
transcribed by a court reporter. The presiding officer may assess
any court reporter transcription costs against the party that
requested the transcription or among the parties to the hearing.
Except as provided by this subsection, the presiding officer may
exclude a party from further participation in a hearing for failure
to pay in a timely manner costs assessed against that party under
this subsection. The presiding officer may not exclude a party from
further participation in a hearing as provided by this subsection
if the parties have agreed that the costs assessed against that
party will be paid by another party.
(b) If a hearing is uncontested, the presiding officer may
substitute minutes or the report required under Section 36.410 for
a method of recording the hearing provided 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 the
parties.
Sec. 36.410. REPORT. (a) Except as provided by Subsection
(e), the presiding officer shall submit a report to the board not
later than the 30th day after the date a hearing is concluded.
(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) The presiding officer or general manager shall provide a
copy of the report to:
(1) the applicant; and
(2) each person who provided comments or each
designated party.
(d) A person who receives a copy of the report under
Subsection (c) may submit to the board written exceptions to the
report.
(e) If the hearing was conducted by a quorum of the board and
if the presiding officer prepared a record of the hearing as
provided by Section 36.408(a), the presiding officer shall
determine whether to prepare and submit a report to the board under
this section.
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 OR FINDINGS AND
CONCLUSIONS. (a) An applicant in a contested or uncontested
hearing on an application or a party to a contested hearing may
administratively appeal a decision of the board on a permit or
permit amendment application by requesting written findings and
conclusions or a rehearing before the board not later than the 20th
day after the date of the board's decision.
(b) On receipt of a timely written request, the board shall
make written findings and conclusions regarding a decision of the
board on a permit or permit amendment application. The board shall
provide certified copies of the findings and conclusions to the
person who requested them, and to each person who provided comments
or each designated party, not later than the 35th day after the date
the board receives the request. A person who receives a certified
copy of the findings and conclusions from the board may request a
rehearing before the board not later than the 20th day after the
date the board issues the findings and conclusions.
(c) A request for rehearing must be filed in the district
office and must state the grounds for the request. If the original
hearing was a contested hearing, the person requesting a rehearing
must provide copies of the request to all parties to the hearing.
(d) 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.
(e) The failure of the board to grant or deny a request for
rehearing before the 91st day after the date the request is
submitted is 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;
or
(B) the board renders a written decision after
rehearing.
(b) Except as provided by Subsection (c), an applicant or a
party to a contested hearing may file a suit against the district
under Section 36.251 to appeal a decision on a permit or permit
amendment application not later than the 60th day after the date on
which the decision becomes final.
(c) An applicant or a party to a contested hearing may not
file suit against the district under Section 36.251 if a request for
rehearing was not filed on time.
Sec. 36.414. CONSOLIDATED HEARING ON APPLICATIONS. (a)
Except as provided by Subsection (b), a district shall process
applications from a single applicant under consolidated notice and
hearing procedures on written request by the applicant if the
district requires a separate permit or permit amendment application
for:
(1) drilling, equipping, operating, or completing a
well or substantially altering the size of a well or well pump under
Section 36.113;
(2) the spacing of water wells or the production of
groundwater under Section 36.116; or
(3) transferring groundwater out of a district under
Section 36.122.
(b) A district is not required to use consolidated notice
and hearing procedures to process separate permit or permit
amendment applications from a single applicant if the board cannot
adequately evaluate one application until it has acted on another
application.
Sec. 36.415. RULES; ADDITIONAL PROCEDURES. (a) 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.
(b) In adopting the rules, a district shall:
(1) define under what circumstances an application is
considered contested; and
(2) limit participation in a hearing on a contested
application to persons who have a personal justiciable interest
related to a legal right, duty, privilege, power, or economic
interest that is within a district's regulatory authority and
affected by a permit or permit amendment application, not including
persons who have an interest common to members of the public.
Sec. 36.416. HEARINGS CONDUCTED BY STATE OFFICE OF
ADMINISTRATIVE HEARINGS. 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. 36.417. RULES; 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. 36.418. APPLICABILITY OF ADMINISTRATIVE PROCEDURE
ACT. (a) A district may adopt rules establishing procedures for
contested hearings consistent with Subchapters C, D, and F, Chapter
2001, Government Code, including the authority to issue a subpoena,
require a deposition, or order other discovery.
(b) Except as provided by this section and Section 36.416,
Chapter 2001, Government Code, does not apply to a hearing under
this subchapter.
Sec. 36.419. EDWARDS AQUIFER AUTHORITY. (a) Except as
provided by Subsection (b), this subchapter does not apply to the
Edwards Aquifer Authority.
(b) Sections 36.412 and 36.413 apply to the Edwards Aquifer
Authority.
SECTION 18. Sections 9.017 and 36.001(17), Water Code, are
repealed.
SECTION 19. The change in law made by this Act applies only
to a permit or permit amendment application determined to be
administratively complete or a rulemaking hearing for which notice
is given by a groundwater conservation district on or after the
effective date of this Act. A permit or permit amendment
application determined to be administratively complete or a
rulemaking hearing for which notice was given by a groundwater
conservation district before the effective date of this Act is
governed by the law in effect at the time the application was
determined to be administratively complete or the notice was given,
and the former law is continued in effect for that purpose.
SECTION 20. This Act takes effect September 1, 2005.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 1763 was passed by the House on May
12, 2005, by a non-record vote; and that the House concurred in
Senate amendments to H.B. No. 1763 on May 24, 2005, by a non-record
vote; and that the House adopted H.C.R. No. 236 authorizing certain
corrections in H.B. No. 1763 on May 30, 2005, by a non-record vote.
______________________________
Chief Clerk of the House
I certify that H.B. No. 1763 was passed by the Senate, with
amendments, on May 23, 2005, by the following vote: Yeas 31, Nays
0; and that the Senate adopted H.C.R. No. 236 authorizing certain
corrections in H.B. No. 1763 on May 30, 2005, by a viva-voce vote.
______________________________
Secretary of the Senate
APPROVED: __________________
Date
__________________
Governor