81R38514 TRH-F

By: Callegari H.R. No. 2969

R E S O L U T I O N

BE IT RESOLVED by the House of Representatives of the State of Texas, 81st Legislature, Regular Session, 2009, That House Rule 13, Section 9(a), be suspended in part as provided by House Rule 13, Section 9(f), to enable the conference committee appointed to resolve the differences on House Bill 3526 (the adoption of rules by the Texas Water Development Board regarding supplemental funding resulting from federal economic recovery legislation) to consider and take action on the following matter:

House Rule 13, Section 9(a)(4), is suspended to permit the committee to add text on matters which are not included in either the house or senate version of the bill by adding the following ARTICLES to the bill:

ARTICLE 8. RAINWATER HARVESTING AND WATER CONSERVATION

INITIATIVES

SECTION 8.01. Subchapter A, Chapter 59, Finance Code, is amended by adding Section 59.012 to read as follows:

Sec. 59.012. LOANS FOR DEVELOPMENTS THAT USE HARVESTED RAINWATER. Financial institutions may consider making loans for developments that will use harvested rainwater as the sole source of water supply.

SECTION 8.02. Section 447.004, Government Code, is amended by amending Subsection (c-1) and adding Subsection (c-3) to read as follows:

(c-1) The procedural standards adopted under this section must require that:

(1) on-site reclaimed system technologies, including rainwater harvesting, condensate collection, or cooling tower blow down, or a combination of those system technologies, for nonpotable indoor use and landscape watering be incorporated into the design and construction of:

(A) [(1)] each new state building with a roof measuring at least 10,000 square feet; and

(B) [(2)] any other new state building for which the incorporation of such systems is feasible;

(2) rainwater harvesting system technology for nonpotable indoor use and landscape watering be incorporated into the design and construction of each new state building with a roof measuring at least 10,000 square feet that is located in an area of this state in which the average annual rainfall is at least 20 inches; and

(3) at least 25 percent of the roof area of a building described by Subdivision (2) be used for rainwater collection.

(c-3) The procedural standards required by Subsections (c-1)(2) and (3) apply to a building described by Subsection (c-1)(2) unless Subsection (c-2) applies or the state agency or institution of higher education constructing the building provides the state energy conservation office evidence that the amount of rainwater that will be harvested from one or more existing buildings at the same location is equivalent to the amount of rainwater that could have been harvested from the new building had rainwater harvesting system technology been incorporated into its design and construction.

SECTION 8.03. Section 341.042(b), Health and Safety Code, is amended to read as follows:

(b) The commission by rule shall provide that if a structure is connected to a public water supply system and has a rainwater harvesting system, [for indoor use:

[(1)] the structure must have appropriate cross-connection safeguards[; and

[(2) the rainwater harvesting system may be used only for nonpotable indoor purposes].

SECTION 8.04. Chapter 580, Local Government Code, is amended by adding Section 580.004 to read as follows:

Sec. 580.004. RAINWATER HARVESTING. (a) Each municipality and county is encouraged to promote rainwater harvesting at residential, commercial, and industrial facilities through incentives such as the provision at a discount of rain barrels or rebates for water storage facilities.

(b) Each municipality or county that has adopted impervious cover or density restrictions shall consider the use in a development of harvested rainwater as an on-site water supply source in determining whether to grant the development a credit against or exemption from the restrictions.

(c) The Texas Water Development Board shall ensure that training on rainwater harvesting is available for the members of the permitting staffs of municipalities and counties at least quarterly. Members of the permitting staffs of counties and municipalities are encouraged to receive the training. The Texas Water Development Board may provide the training by seminars or by videotape or functionally similar and widely available media without cost.

(d) A municipality or county may not deny a building permit solely because the facility will implement rainwater harvesting.

(e) Each school district is encouraged to implement rainwater harvesting at facilities of the district.

SECTION 8.05. Section 202.007(d), Property Code, is amended to read as follows:

(d) This section does not:

(1) restrict a property owners' association from regulating the requirements, including size, type, shielding, and materials, for or the location of a composting device[, rain barrel, rain harvesting device, or any other appurtenance] if the restriction does not prohibit the economic installation of the device [or appurtenance] on the property owner's property where there is reasonably sufficient area to install the device [or appurtenance];

(2) require a property owners' association to permit a device [or appurtenance] described by Subdivision (1) to be installed in or on property:

(A) owned by the property owners' association;

(B) owned in common by the members of the property owners' association; or

(C) in an area other than the fenced yard or patio of a property owner;

(3) prohibit a property owners' association from regulating the installation of efficient irrigation systems, including establishing visibility limitations for aesthetic purposes;

(4) prohibit a property owners' association from regulating the installation or use of gravel, rocks, or cacti; [or]

(5) restrict a property owners' association from regulating yard and landscape maintenance if the restrictions or requirements do not restrict or prohibit turf or landscaping design that promotes water conservation; or

(6) require a property owners' association to permit a rain barrel or rainwater harvesting system to be installed in or on property if:

(A) the property is:

(i) owned by the property owners' association;

(ii) owned in common by the members of the property owners' association; or

(iii) located between the front of the property owner's home and the adjacent street; or

(B) the barrel or system:

(i) is of a color other than:

(a) the original manufacturer's color; or

(b) a color consistent with the color scheme of the property owner's home; or

(ii) displays any language or other content that is not typically displayed by such a barrel or system as it is manufactured.

SECTION 8.06. Section 1.003, Water Code, is amended to read as follows:

Sec. 1.003. PUBLIC POLICY. It is the public policy of the state to provide for the conservation and development of the state's natural resources, including:

(1) the control, storage, preservation, and distribution of the state's storm and floodwaters and the waters of its rivers and streams for irrigation, power, and other useful purposes;

(2) the reclamation and irrigation of the state's arid, semiarid, and other land needing irrigation;

(3) the reclamation and drainage of the state's overflowed land and other land needing drainage;

(4) the conservation and development of its forest, water, and hydroelectric power;

(5) the navigation of the state's inland and coastal waters;

(6) the maintenance of a proper ecological environment of the bays and estuaries of Texas and the health of related living marine resources; [and]

(7) the voluntary stewardship of public and private lands to benefit waters of the state; and

(8) the promotion of rainwater harvesting for potable and nonpotable purposes at public and private facilities in this state, including residential, commercial, and industrial buildings.

SECTION 8.07. Section 16.0121, Water Code, is amended by amending Subsection (b) and adding Subsection (g) to read as follows:

(b) Except as provided by Subsection (g) [Every five years], a retail public utility providing potable water shall perform and file with the board, every five years, a water audit computing the utility's most recent annual system water loss.

(g) A retail public utility shall perform and file with the board a water loss audit annually if the utility is receiving any financial assistance from the board.

SECTION 8.08. If the 81st Legislature makes an appropriation to the Texas Water Development Board to provide matching grants to political subdivisions of this state for rainwater harvesting demonstration projects, the board shall, not later than December 1, 2010, provide a report to the lieutenant governor and the speaker of the house of representatives regarding the projects for which the board has provided grants, including:

(1) a description of each project; and

(2) the amount of the grant provided for each project.

SECTION 8.09. This article does not make an appropriation. A provision of this article that creates a new governmental program, creates a new entitlement, or imposes a new duty on a governmental entity is not mandatory during a fiscal period for which the legislature has not made a specific appropriation to implement the provision.

SECTION 8.10. This article takes effect September 1, 2009.

ARTICLE 9. CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY FOR

WATER OR SEWER SERVICES

SECTION 9.01. Section 13.245, Water Code, is amended by amending Subsection (b) and adding Subsections (c-1) and (c-2) to read as follows:

(b) Except as provided by Subsections [Subsection] (c), (c-1), and (c-2), the commission may not grant to a retail public utility a certificate of public convenience and necessity for a service area within the boundaries or extraterritorial jurisdiction of a municipality without the consent of the municipality. The municipality may not unreasonably withhold the consent. As a condition of the consent, a municipality may require that all water and sewer facilities be designed and constructed in accordance with the municipality's standards for facilities.

(c-1) The commission may grant a certificate to a retail public utility for a service area within the boundaries or extraterritorial jurisdiction of a municipality before the 180th day after the municipality receives the retail public utility's application if:

(1) the municipality has not entered into a binding commitment to serve the area that is the subject of the application on or before the 180th day after the date a formal request for service is made on the same or substantially similar terms as provided by the retail public utility's application, including a capital improvements plan as required by Section 13.244(d)(3); or

(2) the municipality has refused to provide the service applied for as evidenced by a formal vote of the municipality's governing body or by an official notification from the municipality.

(c-2) The commission must include as a condition of a certificate of convenience and necessity granted under Subsection (c-1) that the authorized water and sewer facilities be designed and constructed in accordance with the municipality's standards for water and sewer facilities.

SECTION 9.02. Sections 13.2451(a) and (b), Water Code, are amended to read as follows:

(a) Except as provided by Subsection (b), if [If] a municipality extends its extraterritorial jurisdiction to include an area certificated to a retail public utility, the retail public utility may continue and extend service in its area of public convenience and necessity under the rights granted by its certificate and this chapter.

(b) The commission may not extend a municipality's certificate of public convenience and necessity beyond its extraterritorial jurisdiction if a landowner elects to exclude some or all of the landowner's property within a proposed service area in accordance with Section 13.246(h). This subsection does not apply to a transfer of a certificate as approved by the commission [A municipality that seeks to extend a certificate of public convenience and necessity beyond the municipality's extraterritorial jurisdiction must ensure that the municipality complies with Section 13.241 in relation to the area covered by the portion of the certificate that extends beyond the municipality's extraterritorial jurisdiction].

SECTION 9.03. Sections 13.246(a) and (h), Water Code, are amended to read as follows:

(a) If an application for a certificate of public convenience and necessity or for an amendment to a certificate is filed, the commission shall cause notice of the application to be given to affected parties and to each county and groundwater conservation district that is wholly or partly included in the area proposed to be certified. If [, if] requested, the commission shall fix a time and place for a hearing and give notice of the hearing. Any person affected by the application may intervene at the hearing.

(h) Except as provided by Subsection (i), a landowner who owns a tract of land that is at least 25 acres and that is wholly or partially located within the proposed service area may elect to exclude some or all of the landowner's property from the proposed service area by providing written notice to the commission before the 30th day after the date the landowner receives notice of a new application for a certificate of public convenience and necessity or for an amendment to an existing certificate of public convenience and necessity. The landowner's election is effective without a further hearing or other process by the commission. If a landowner makes an election under this subsection, the application shall be modified so that the electing landowner's property is not included in the proposed service area. An applicant for a certificate of public convenience and necessity that has land removed from its proposed certificated service area because of a landowner's election under this subsection may not be required to provide service to the removed land for any reason, including the violation of law or commission rules by the water or sewer system of another person.

SECTION 9.04. Section 13.254, Water Code, is amended by amending Subsections (a-1) and (a-3) and adding Subsection (h) to read as follows:

(a-1) As an alternative to decertification under Subsection (a), the owner of a tract of land that is at least 50 acres and that is not in a platted subdivision actually receiving water or sewer service may petition the commission under this subsection for expedited release of the area from a certificate of public convenience and necessity so that the area may receive service from another retail public utility. The fact that a certificate holder is a borrower under a federal loan program is not a bar to a request under this subsection for the release of the petitioner's land and the receipt of services from an alternative provider. On the day the petitioner submits the petition to the commission, the [The] petitioner shall send [deliver], via certified mail, a copy of the petition to the certificate holder, who may submit information to the commission to controvert information submitted by the petitioner. The petitioner must demonstrate that:

(1) a written request for service, other than a request for standard residential or commercial service, has been submitted to the certificate holder, identifying:

(A) the area for which service is sought;

(B) the timeframe within which service is needed for current and projected service demands in the area;

(C) the level and manner of service needed for current and projected service demands in the area;

(D) the approximate cost for the alternative service provider to provide the service at the same level and manner that is requested from the certificate holder;

(E) the flow and pressure requirements and specific infrastructure needs, including line size and system capacity for the required level of fire protection requested; and

(F) [(D)] any additional information requested by the certificate holder that is reasonably related to determination of the capacity or cost for providing the service;

(2) the certificate holder has been allowed at least 90 calendar days to review and respond to the written request and the information it contains;

(3) the certificate holder:

(A) has refused to provide the service;

(B) is not capable of providing the service on a continuous and adequate basis within the timeframe, at the level, at the approximate cost that the alternative provider is capable of providing for a comparable level of service, or in the manner reasonably needed or requested by current and projected service demands in the area; or

(C) conditions the provision of service on the payment of costs not properly allocable directly to the petitioner's service request, as determined by the commission; and

(4) the alternate retail public utility from which the petitioner will be requesting service possesses the financial, managerial, and technical capability to provide [is capable of providing] continuous and adequate service within the timeframe, at the level, at the cost, and in the manner reasonably needed or requested by current and projected service demands in the area.

(a-3) Within 60 [90] calendar days from the date the commission determines the petition filed pursuant to Subsection (a-1) to be administratively complete, the commission shall grant the petition unless the commission makes an express finding that the petitioner failed to satisfy the elements required in Subsection (a-1) and supports its finding with separate findings and conclusions for each element based solely on the information provided by the petitioner and the certificate holder. The commission may grant or deny a petition subject to terms and conditions specifically related to the service request of the petitioner and all relevant information submitted by the petitioner and the certificate holder. In addition, the commission may require an award of compensation as otherwise provided by this section. If the certificate holder has never made service available through planning, design, construction of facilities, or contractual obligations to serve the area the petitioner seeks to have released, the commission is not required to find that the proposed alternative provider is capable of providing better service than the certificate holder, but only that the proposed alternative provider is capable of providing the requested service.

(h) A certificate holder that has land removed from its certificated service area in accordance with this section may not be required, after the land is removed, to provide service to the removed land for any reason, including the violation of law or commission rules by a water or sewer system of another person.

SECTION 9.05. The changes made by this article to Sections 13.245, 13.2451, 13.246, and 13.254, Water Code, apply only to:

(1) a retail public utility's application for a certificate of public convenience and necessity for a service area in the extraterritorial jurisdiction of a municipality that is made on or after the effective date of this article;

(2) an extension of a municipality's certificate of public convenience and necessity for a service area in the extraterritorial jurisdiction of the municipality on or after the effective date of this article; and

(3) a petition to release an area from a certificate of public convenience and necessity that is made on or after the effective date of this article.

Explanation: The language is necessary to encourage rainwater harvesting and other water conservation initiatives and to provide for the issuance of certificates of public convenience and necessity for water and sewer service in the extraterritorial jurisdiction of a municipality.