By: Duncan S.B. No. 344
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) through (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 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.
(e) This section does not apply to the Edwards Aquifer
Authority.
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) 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 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
36.416, 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 6. Subdivision (17), Section 36.001, Water Code, is
repealed.
SECTION 7. 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 8. This Act takes effect September 1, 2005.