79R4658 JJT-F

By:  Armbrister                                                   S.B. No. 765


A BILL TO BE ENTITLED
AN ACT
relating to the regulation of water and sewer utility services. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Subchapter A, Chapter 13, Water Code, is amended by adding Section 13.004 to read as follows: Sec. 13.004. LEGISLATIVE FINDINGS AND POLICY REGARDING REGIONALIZATION OF SERVICES. (a) The legislature finds that regionalization of retail water or sewer utility services delivery promotes continuous, adequate, affordable, and reliable water and sewer utility services. (b) Regionalization of retail water or sewer utility services may take the form of: (1) a single retail public utility serving a service area that is composed of different communities or different subdivisions or portions of more than one county; (2) a single retail public utility serving several isolated systems with each system providing services to one or more communities or subdivisions; (3) several retail public utilities with the individual systems of the utilities operated through a centrally coordinated operating system; (4) one or more retail public utilities served by a central wholesale provider; or (5) permanent emergency interconnections between two or more retail public utilities. SECTION 2. Sections 13.244(a) and (b), Water Code, are amended to read as follows: (a) To obtain a certificate of public convenience and necessity or an amendment to a certificate, a retail [A] public utility must [or water supply or sewer service corporation shall] submit to the commission an application for the [to obtain a] certificate [of public convenience and necessity] or [an] amendment [of a certificate]. (b) On request by the commission, each retail public utility [and water supply or sewer service corporation] shall file with the commission a map or maps showing all its facilities and illustrating separately facilities for production, transmission, and distribution of its services, and each certificated retail public utility shall file with the commission a map or maps showing any facilities, customers, or area currently being served outside its certificated areas. The service area boundary defined by the map may be described by a metes and bounds survey, by lot and block number, or by verifiable landmarks such as roads, creeks, or railroads. SECTION 3. Subchapter G, Chapter 13, Water Code, is amended by adding Section 13.245 to read as follows: Sec. 13.245. EXTENSIONS OF CERTIFICATED AREA FOR MUNICIPALITIES WITH A POPULATION GREATER THAN 750,000. (a) The commission shall amend a municipality's certificate of public convenience and necessity on the application of the municipality to extend the certificated area to match the municipality's extensions of its extraterritorial jurisdiction. (b) To qualify for the extension under Subsection (a), the municipality must: (1) have a population greater than 750,000; (2) hold a certificate of public convenience and necessity for all or a portion of the municipality's extraterritorial jurisdiction; and (3) include with the municipality's application for the amendment a map, following property boundaries identified by county tax appraisal records, that defines the area proposed to be certificated. (c) An extension of the certificated area granted under Subsection (a) may not include any area that is included in a certificate of public convenience and necessity held by another retail public utility. (d) The commission shall issue the amended certificate of public convenience and necessity extending the certificated area as provided by this section not later than the 180th day after the commission receives the municipality's application. SECTION 4. Section 13.246, Water Code, is amended by adding Subsection (a-1) and amending Subsections (b) and (c) to read as follows: (a-1) In addition to the notice required by Subsection (a), the commission by rule shall require notice to be mailed to each owner of a tract of land included in the area proposed to be certificated that is 100 acres or larger in size. Notice required under this subsection must be mailed by first class mail to the owners of the tracts according to the most current tax appraisal rolls at the time the commission received the application for the certificate. Notice under this subsection is not required for a matter filed with the commission under: (1) Section 13.248, 13.255, or 13.301; or (2) Chapter 65. (b) The commission may grant applications and issue certificates only if the commission finds that a certificate is necessary for the service, accommodation, convenience, or safety of the public. The commission may issue a certificate as requested, or refuse to issue it, or issue it for the construction of only a portion of the contemplated system or facility or extension, or for the partial exercise only of the right or privilege and may impose special conditions necessary to ensure that continuous and adequate service is provided. The commission may not grant to more than one retail public utility serving or proposing to serve an area a certificate authorizing service to the area unless all retail public utilities serving and proposing to serve the area consent to that action. (c) Certificates of convenience and necessity shall be granted on a nondiscriminatory basis after consideration by the commission of the adequacy of service currently provided to the requested area, the need for additional service in the requested area, the effect of the granting of a certificate on the recipient of the certificate and on any retail public utility of the same kind already serving the proximate area, the ability of the applicant to provide adequate service, the feasibility of obtaining service from an adjacent retail public utility, the financial stability of the applicant, including, if applicable, the adequacy of the applicant's debt-equity ratio, environmental integrity, and the probable improvement of service or lowering of cost to consumers in that area resulting from the granting of the certificate. In determining the need for additional service in a requested area under this subsection, the commission shall consider projected growth in service demand, the benefits of regionalization of service to present and projected customers by incorporation of the requested area into an existing certificated area, and the potential that denial of the certificate for the requested area may increase the costs of and delays in providing service to the area. The commission may consider documentary evidence of the current demand for service in the requested area, but the absence of documentation of current demand does not preclude certification of the requested area. SECTION 5. Section 13.254, Water Code, is amended by amending Subsections (a), (e), (f), and (g) and adding Subsections (a-1) and (g-1) to read as follows: (a) The commission at any time after notice and hearing may revoke or amend any certificate of public convenience and necessity with the written consent of the certificate holder or if it finds that: (1) the certificate holder has never provided, is no longer providing, is incapable of providing, or has failed to provide continuous and adequate service in the area, or part of the area, covered by the certificate; (2) [in an affected county as defined in Section 16.341,] the cost of providing service by the certificate holder is so prohibitively expensive as to constitute denial of service, provided that[, for commercial developments or for residential developments started after September 1, 1997, in an affected county as defined in Section 16.341,] the fact that the cost of obtaining service from the currently certificated retail public utility makes the development economically unfeasible does not render such cost prohibitively expensive in the absence of other relevant factors; (3) the certificate holder has agreed in writing to allow another retail public utility to provide service within its service area, except for an interim period, without amending its certificate; or (4) the certificate holder has failed to file a cease and desist action pursuant to Section 13.252 within 180 days of the date that it became aware that another retail public utility was providing service within its service area, unless the certificate holder demonstrates good cause for its failure to file such action within the 180 days. (a-1) In determining whether the certificate holder is incapable of providing continuous and adequate service, the commission shall consider: (1) whether the certificate holder demonstrates adequate financial, managerial, and technical capability; (2) whether the certificate holder has responded appropriately to requests for service; (3) whether the certificate holder maintains an adequate supply of water or sewer treatment and disposal capacity for current and projected service demands; (4) the effects on regionalization of service that revocation or amendment of the certificate may have; and (5) other relevant factors. (e) The determination of the monetary amount of compensation, if any, shall be determined at the time another retail public utility seeks to provide service in the previously decertified area and before service is actually provided. The commission shall ensure that the monetary amount of compensation is determined not later than the 90th day after the date on which a retail public utility notifies the commission of its intent to provide service to the decertified area. (f) The monetary amount shall be determined by a qualified individual or firm serving as independent appraiser agreed upon by the decertified retail public utility and the retail public utility seeking to serve the area, or, if the retail public utilities do not agree, by an independent appraiser designated by the commission. The determination of compensation by the independent appraiser shall be binding on the commission. The costs of the independent appraiser shall be borne by the retail public utility seeking to serve the area. (g) For the purpose of implementing this section, the value of real property shall be determined according to the standards set forth in Chapter 21, Property Code, governing actions in eminent domain and the value of personal property and the retail public utility's business shall be determined according to the factors in this subsection. The factors ensuring that the compensation to a retail public utility for the taking, damaging, or loss of personal property, including the retail public utility's business, is just and adequate shall at a minimum include: the impact on the existing indebtedness of the retail public utility and its ability to repay that debt; the value of the service facilities of the retail public utility located within the area in question; the amount of any expenditures for planning, design, or construction of service facilities that are allocable to service to the area in question; the amount of the retail public utility's contractual obligations allocable to the area in question; any demonstrated impairment of service or increase of cost to consumers of the retail public utility remaining after the decertification; the impact on future revenues and expenses of the retail public utility; necessary and reasonable legal expenses and professional fees; factors relevant to maintaining the current financial integrity of the retail public utility; and other relevant factors. (g-1) The commission shall adopt rules governing the evaluation of the factors considered in determining the monetary value of personal property and a retail public utility's business under Subsection (g). SECTION 6. Section 13.2541(d), Water Code, is amended to read as follows: (d) The compensation paid to the decertified public utility for its facilities shall be determined by a qualified individual or firm serving as independent appraiser agreed upon by the decertified public utility and the municipality, or, if the retail public utilities do not agree, by an independent appraiser designated by the commission. The determination of compensation by the independent appraiser shall be binding on the commission. The municipality shall pay the costs of the independent appraiser. For the purpose of implementing this section, the value of real property shall be determined according to the standards prescribed by Chapter 21, Property Code, governing actions in eminent domain. SECTION 7. Section 13.255, Water Code, is amended by amending Subsection (g) and adding Subsection (g-1) to read as follows: (g) For the purpose of implementing this section, the value of real property shall be determined according to the standards set forth in Chapter 21, Property Code, governing actions in eminent domain; the value of personal property and the retail public utility's business shall be determined according to the factors in this subsection. The factors ensuring that the compensation to a retail public utility for the taking, damaging, and/or loss of personal property, including the retail public utility's business, is just and adequate, shall, at a minimum, include: impact on the existing indebtedness of the retail public utility and its ability to repay that debt, the value of the service facilities of the retail public utility located within the area in question, the amount of any expenditures for planning, design, or construction of service facilities outside the incorporated or annexed area that are allocable to service to the area in question, the amount of the retail public utility's contractual obligations allocable to the area in question, any demonstrated impairment of service or increase of cost to consumers of the retail public utility remaining after the single certification, the impact on future revenues and expenses of the retail public utility, necessary and reasonable legal expenses and professional fees, factors relevant to maintaining the current financial integrity of the retail public utility, and other relevant factors. (g-1) The commission shall adopt rules governing the evaluation of the factors to be considered in determining the monetary value of personal property and a retail public utility's business under Subsection (g). The commission by rule shall adopt procedures to ensure that the determination of the total compensation to be paid to a retail public utility under Subsection (g) is paid not later than the 90th day after the date on which the commission determines that the municipality's application is administratively complete. SECTION 8. Section 13.257, Water Code, is amended by amending Subsections (a) and (b) and adding Subsection (r) to read as follows: (a) In this section, "utility service provider" means a retail public utility [, a water supply or sewer service corporation, or a special utility district organized and operating under Chapter 65]. (b) If a person proposes to sell or convey [unimproved] real property located in a certificated service area of a utility service provider, the person must give to the purchaser written notice as prescribed by this section. An executory contract for the purchase and sale of real property that has a performance period of more than six months is considered a sale of real property under this section. (r) A utility service provider must file a copy of its current certificated service area map, as contained in the commission's records, in the real property records of all counties in which any part of the certificated service area is located. Each county shall accept and file in its real property records a utility service provider's map presented to the county clerk under this subsection. SECTION 9. The changes in law made by this Act apply only to: (1) an application for a certificate of public convenience and necessity or for an amendment to a certificate of public convenience and necessity presented to the Public Utility Commission of Texas on or after January 1, 2006; (2) a proceeding to amend or revoke a certificate of public convenience and necessity initiated on or after January 1, 2006; and (3) a proposal to sell or convey real property that occurs on or after January 1, 2006. SECTION 10. This Act takes effect September 1, 2005.