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79R2912 QS-D
By: Cook of Colorado H.B. No. 1763
A BILL TO BE ENTITLED
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 36.101, Water Code, is amended by
amending Subsection (b) and adding Subsections (d)-(j) 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 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 or 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 hearing;
(2) a brief explanation of the subject of the 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 testimony relating to the
proposed rule as conveniently and expeditiously as possible without
prejudicing the rights of any person at the hearing. Comments may
be submitted orally 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
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.
SECTION 2. 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.
SECTION 3. 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 may [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 4. 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 5. 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 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) 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 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 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) 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.
(e) Any 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.
(f) The presiding officer may allow testimony to be
submitted in writing and may require that written testimony be
sworn to.
(g) 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 if no decision
has been made by the board.
(h) The district by rule 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 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 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 minutes, 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. 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.
(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 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
persons who submitted a hearing registration form under Section
36.405.
Sec. 36.410. REPORT. (a) Except as provided by Subsection
(f), 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 the applicant, and the applicant may submit to
the board written exceptions to the report.
(d) A person who participated in the hearing may:
(1) submit a written request to review the report; and
(2) submit to the board written exceptions to the
report.
(e) The presiding officer or general manager shall mail a
copy of the report to each person who requests to review the report
under Subsection (d).
(f) 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 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) An applicant may not file suit against the district
under Section 36.251 if a request for rehearing was not filed on
time.
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 subchapter.
SECTION 6. Section 36.001(17), Water Code, is repealed.
SECTION 7. 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 was held, and
the former law is continued in effect for that purpose.
SECTION 8. This Act takes effect September 1, 2005.