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A BILL TO BE ENTITLED
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AN ACT
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relating to the management, operation, and review of groundwater |
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conservation districts and to the potential impact of districts' |
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rules and plans on the Carrizo-Wilcox aquifer. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subchapter D, Chapter 6, Water Code, is amended |
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by adding Section 6.113 to read as follows: |
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Sec. 6.113. DUTY TO ESTABLISH TRAINING PROGRAM. (a) The |
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board shall establish a training program for members of boards of |
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directors and general managers of groundwater conservation |
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districts that includes education in: |
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(1) the provisions of Chapter 36; |
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(2) the principles of hydrogeology; |
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(3) relevant permitting procedures; |
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(4) effective conservation practices; |
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(5) conflicts of interest; |
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(6) methods of conducting public hearings; |
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(7) the responsibility of a director to provide |
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financial oversight of a district; and |
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(8) board management and accountability. |
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(b) As the board considers appropriate, the board may |
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consult with stakeholders in the development of the training |
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program under Subsection (a). |
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SECTION 2. Subsection (h), Section 36.0171, Water Code, is |
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amended to read as follows: |
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(h) If the majority of the votes cast at the election are |
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against the levy of a maintenance tax, the district shall set |
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production [permit] fees to pay for the district's regulation of |
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groundwater in the district, including fees based on the amount of |
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water to be withdrawn from a well. |
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SECTION 3. Subchapter C, Chapter 36, Water Code, is amended |
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by adding Section 36.069 to read as follows: |
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Sec. 36.069. REQUIRED TRAINING FOR DIRECTORS AND GENERAL |
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MANAGER. (a) Each director or general manager of a district shall |
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complete at least one hour of training in a program established by |
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the Texas Water Development Board under Section 6.113 during each |
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one-year period in which the person serves as a director or general |
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manager. |
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(b) The Texas Water Development Board or other entity |
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providing the training shall provide a certificate of course |
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completion to persons who complete the training required by this |
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section. A district shall maintain and make available for public |
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inspection the record of its directors' and general manager's |
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completion of the training. |
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(c) The failure of one or more of the directors or the |
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general manager of a district to complete the training required by |
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this section does not affect the validity of an action taken by the |
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district. |
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SECTION 4. The heading to Section 36.1071, Water Code, is |
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amended to read as follows: |
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Sec. 36.1071. DISTRICT MANAGEMENT PLAN. |
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SECTION 5. Section 36.1071, Water Code, is amended by |
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amending Subsections (a), (b), (c), (f), and (g) and adding |
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Subsection (f-1) to read as follows: |
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(a) Following notice and hearing, the district shall, in |
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coordination with surface water management entities on a regional |
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basis, develop a [comprehensive] management plan that [which] |
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addresses the following management goals, as applicable: |
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(1) providing the most efficient use of groundwater; |
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(2) controlling and preventing waste of groundwater; |
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(3) controlling and preventing subsidence; |
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(4) addressing conjunctive surface water management |
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issues; |
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(5) addressing natural resource issues; |
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(6) addressing drought conditions; |
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(7) addressing conservation, recharge enhancement, |
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rainwater harvesting, precipitation enhancement, or brush control, |
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where appropriate and cost-effective; and |
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(8) addressing in a quantitative manner the desired |
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future conditions of the groundwater resources. |
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(b) The [A] district management plan, or any amendments to |
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the [a] district management plan, shall be developed [by the
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district] using the district's best available data and forwarded to |
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the regional water planning group for use in their planning |
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process. |
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(c) The commission and the Texas Water Development Board |
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shall provide technical assistance to a district in the development |
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of the district management plan required under Subsection (a) which |
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may include, if requested by the district, a preliminary review and |
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comment on the plan prior to final approval by the board. If such |
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review and comment by the commission is requested, the commission |
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shall provide comment not later than 30 days from the date the |
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request is received. |
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(f) [The district shall adopt rules necessary to implement
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the
management plan.] Prior to the development of the district's |
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first district management plan and [its] approval of that plan |
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under Section 36.1072, the district may not adopt rules other than |
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rules pertaining to the registration and interim permitting of new |
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and existing wells and rules governing spacing and procedure before |
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the district's board; however, the district may not adopt any rules |
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limiting the production of wells, except rules requiring that |
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groundwater produced from a well be put to a nonwasteful, |
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beneficial use. The district may accept applications for permits |
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under Section 36.113, provided the district does not act on any such |
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application until the district's management plan is approved as |
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provided in Section 36.1072. |
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(f-1) After a district management plan is approved under |
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Section 36.1072, the district shall adopt or amend rules limiting |
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the production of wells or allocating groundwater as necessary to |
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implement the district management plan. The district may not adopt |
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rules limiting the production of wells or allocating groundwater or |
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amend the district's rules limiting the production of wells or |
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allocating groundwater if the district fails to: |
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(1) adopt a district management plan as required by |
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this section; |
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(2) submit a district management plan to the executive |
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administrator as required by Section 36.1072; and |
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(3) receive approval of the district management plan |
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under Section 36.1072. |
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(g) The district shall adopt amendments to the district |
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management plan as necessary. Amendments to the district |
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management plan shall be adopted after notice and hearing and shall |
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otherwise comply with the requirements of this section. |
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SECTION 6. Section 36.1072, Water Code, is amended to read |
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as follows: |
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Sec. 36.1072. TEXAS WATER DEVELOPMENT BOARD REVIEW AND |
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APPROVAL OF DISTRICT MANAGEMENT PLAN. (a) In this section, |
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"development board" means the Texas Water Development Board. A |
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district shall, not later than three years after the creation of the |
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district or, if the district required confirmation, after the |
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election confirming the district's creation, submit the district |
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management plan required under Section 36.1071 to the executive |
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administrator for review and approval. |
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(b) Within 60 days of receipt of a district management plan |
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adopted under Section 36.1071, readopted under Subsection (f) [(e)
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or (g)] of this section, or amended under Section 36.1073, the |
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executive administrator shall approve the district [a] management |
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plan if the plan is administratively complete. A management plan is |
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administratively complete when it contains the information |
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required to be submitted under Section 36.1071(a) and (e). The |
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executive administrator may waive [determine whether conditions
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justify waiver of] the requirements under Section 36.1071(e)(4) if |
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the executive administrator determines that conditions justify the |
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waiver. |
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(c) Once the executive administrator has granted |
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administrative approval to [approved] a management plan: |
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(1) the executive administrator may not revoke but may |
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require revisions to the approved groundwater conservation |
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district management plan as provided by Subsection (g); and |
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(2) the executive administrator may request |
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additional information from the district if the information is |
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necessary to clarify, modify, or supplement previously submitted |
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material[, but a request for additional information does not render
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the management plan unapproved]. |
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(d) Not later than the 60th day after the date of the |
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administrative approval of a district management plan under |
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Subsection (c), the executive administrator shall review the |
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district management plan to determine whether the district |
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management plan is adequate to achieve a desired future condition |
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established under Section 36.108(d) that is applicable to all or |
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part of the district, considering any available information |
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regarding groundwater levels, and: |
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(1) request additional information from the district; |
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(2) recommend that the district make substantive |
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changes to the plan; or |
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(3) approve the plan. |
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(e) A district management plan takes effect on approval by |
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the executive administrator or, if appealed, on approval by the |
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development board [Texas Water Development Board]. |
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(f) [(e)] The district may review the district management |
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plan annually and shall [must] review and readopt the plan with or |
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without revisions at least once every five years. The district |
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shall provide the readopted plan to the executive administrator not |
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later than the 60th day after the date on which the plan was |
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readopted. Approval of the preceding district management plan |
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remains in effect until: |
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(1) the district fails to timely readopt a district |
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management plan; |
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(2) the district fails to timely submit the district's |
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readopted district management plan to the executive administrator |
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for administrative approval under Subsection (b); or |
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(3) the executive administrator determines that the |
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readopted district management plan does not meet the requirements |
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for approval, and the district has exhausted all appeals to the |
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development board [Texas Water Development Board or appropriate
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court]. |
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(g) [(f)] If the executive administrator does not approve |
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the district management plan, the executive administrator shall |
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provide to the district, in writing, the reasons the executive |
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administrator does not approve [for the action]. Not later than the |
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180th day after the date a district receives notice that the |
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executive administrator has not approved the district [its] |
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management plan [has not been approved], the district may submit a |
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revised district management plan for review and approval. The |
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executive administrator's decision may be appealed to the |
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development board [Texas Water Development Board]. If the |
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development board [Texas Water Development Board] decides not to |
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approve the revised district management plan on appeal, the |
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district may request that the conflict be mediated. The district |
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and the development board may seek the assistance of the Center for |
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Public Policy Dispute Resolution at The University of Texas School |
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of Law or an alternative dispute resolution system established |
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under Chapter 152, Civil Practice and Remedies Code, in obtaining a |
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qualified impartial third party to mediate the conflict. The cost |
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of the mediation services must be specified in the agreement |
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between the parties and the Center for Public Policy Dispute |
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Resolution or the alternative dispute resolution system. If the |
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parties do not resolve the conflict through mediation, the decision |
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of the development board [Texas Water Development Board] not to |
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approve the district management plan may be appealed to a district |
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court in Travis County. Costs for the appeal shall be set by the |
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court hearing the appeal. An appeal under this subsection is by |
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trial de novo. The commission shall not take enforcement action |
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against a district under Subchapter I until the later of the |
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expiration of the 180-day period, the date the development board |
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[Texas Water Development Board] has taken final action withholding |
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approval of a revised district management plan, the date the |
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mediation is completed, or the date a final judgment upholding the |
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development board's decision is entered by a district court. An |
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enforcement action may not be taken against a district by the |
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commission or the state auditor under Subchapter I because the |
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district [district's] management plan and the approved regional |
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water plan are in conflict while the parties are attempting to |
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resolve the conflict before the development board, in mediation, or |
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in court. Rules of the district continue in full force and effect |
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until all appeals under this subsection have been exhausted and the |
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final judgment is adverse to the district. |
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(h) [(g)
In this subsection, "development board" means the
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Texas Water Development Board.] A person with a legally defined |
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interest in groundwater in a district, or the regional water |
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planning group, may file a petition with the development board |
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stating that a conflict requiring resolution may exist between the |
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district's approved management plan developed under Section |
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36.1071 and the state water plan. If a conflict exists, the |
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development board shall provide technical assistance to and |
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facilitate coordination between the involved person or regional |
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water planning group and the district to resolve the conflict. Not |
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later than the 45th day after the date the person or the regional |
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water planning group files a petition with the development board, |
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if the conflict has not been resolved, the district and the involved |
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person or regional planning group may mediate the conflict. The |
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district and the involved person or regional planning group may |
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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 |
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152, Civil Practice and Remedies Code, in obtaining a qualified |
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impartial third party to mediate the conflict. The cost of the |
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mediation services must be specified in the agreement between the |
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parties and the Center for Public Policy Dispute Resolution or the |
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alternative dispute resolution system. If the district and the |
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involved person or regional planning group cannot resolve the |
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conflict through mediation, the development board shall resolve the |
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conflict not later than the 60th day after the date the mediation is |
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completed. The development board action under this provision may |
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be consolidated, at the option of the board, with related action |
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under Section 16.053(p). If the development board determines that |
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resolution of the conflict requires a revision of the approved |
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groundwater conservation district management plan, the development |
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board shall provide information to the district. The district |
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shall prepare any revisions to the plan based on the information |
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provided by the development board and shall hold, after notice, at |
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least one public hearing at some central location within the |
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district. The district shall consider all public and development |
|
board comments, prepare, revise, and adopt its district management |
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plan, and submit the revised district management plan to the |
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development board for approval. On the request of the district or |
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the regional water planning group, the development board shall |
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include discussion of the conflict and its resolution in the state |
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water plan that the development board provides to the governor, the |
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lieutenant governor, and the speaker of the house of |
|
representatives under Section 16.051(e). If the groundwater |
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conservation district disagrees with the decision of the |
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development board under this subsection, the district may appeal |
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the decision to a district court in Travis County. Costs for the |
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appeal shall be set by the court hearing the appeal. An appeal |
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under this subsection is by trial de novo. |
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SECTION 7. Section 36.1073, Water Code, is amended to read |
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as follows: |
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Sec. 36.1073. AMENDMENT TO DISTRICT MANAGEMENT PLAN. Any |
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amendment to a district [the] management plan shall be submitted to |
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the executive administrator within 60 days following adoption of |
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the amendment by the district's board. The executive administrator |
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shall review and approve any amendment that [which] substantially |
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affects the district management plan in accordance with the |
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procedures established under Section 36.1072. |
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SECTION 8. Subsections (b), (c), and (n), Section 36.108, |
|
Water Code, are amended to read as follows: |
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(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
|
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36.1071 covering that district's respective territory. On
|
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completion and approval of the plan as required by Section 36.1072,
|
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each district shall] forward a copy of the district's district [new
|
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or revised] management plan to the other districts in the |
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management area. The boards of the districts shall consider the |
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district management plans individually and shall compare them to |
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other district management plans then in force in the management |
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area. |
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(c) The presiding officer, or the presiding officer's |
|
designee, of each district located in whole or in part in the |
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management area shall meet at least annually to conduct joint |
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planning with the other districts in the management area and to |
|
review the district management plans and accomplishments for the |
|
management area. In reviewing the district management plans, the |
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districts shall consider: |
|
(1) the goals of each district management plan and its |
|
impact on planning throughout the management area; |
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(2) the effectiveness of the measures established by |
|
each district management plan for conserving and protecting |
|
groundwater and preventing waste, and the effectiveness of these |
|
measures in the management area generally; |
|
(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 district management plan |
|
achieves the desired future conditions established during the joint |
|
planning process. |
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(n) The districts shall prepare [a] revised conditions |
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[plan] in accordance with development board recommendations and |
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hold, after notice, at least one public hearing at a central |
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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. |
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SECTION 9. Section 36.1132, Water Code, is amended to read |
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as follows: |
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Sec. 36.1132. DISTRICT PLANS AND RULES TO ACHIEVE DESIRED |
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FUTURE CONDITION; PERMITS BASED ON MANAGED AVAILABLE GROUNDWATER. |
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(a) Not later than the second anniversary of the later of the date |
|
that the districts in a management area establish one or more |
|
desired future conditions under Section 36.108(d) or the date that |
|
the districts receive the managed available groundwater amount from |
|
the executive administrator under Section 36.108(o), each district |
|
in the management area shall review its district management plan |
|
and rules and adopt any amendments necessary to ensure that the |
|
district will achieve a desired future condition applicable to all |
|
or part of the district. |
|
(b) 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. For |
|
purposes of this subsection, a district may adjust the amount of |
|
managed available groundwater provided to the district under |
|
Section 36.108(o) or may adjust the amount of groundwater issued |
|
under permits to account for exempt uses and known demands for |
|
groundwater in the district based on a state or regional water plan. |
|
SECTION 10. Subsection (b), Section 36.116, Water Code, is |
|
amended to read as follows: |
|
(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 its district [the district's
|
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comprehensive] management plan under Section 36.1071 and as |
|
provided by Section 36.113. |
|
SECTION 11. Section 36.117, Water Code, is amended by |
|
adding Subsection (e-1) to read as follows: |
|
(e-1) An operator of a water well exempt under Subsection |
|
(b)(2) or (3) shall report annually to the district for the exempt |
|
well the total amount of groundwater withdrawn during the calendar |
|
year. |
|
SECTION 12. Section 36.207, Water Code, is amended to read |
|
as follows: |
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Sec. 36.207. USE OF PRODUCTION [PERMIT] FEES AUTHORIZED BY |
|
SPECIAL LAW. A district may use funds obtained from production |
|
[permit] fees collected pursuant to the special law governing the |
|
district for any purpose consistent with the district's district |
|
[certified water] management plan including, without limitation, |
|
making grants, loans, or contractual payments to achieve, |
|
facilitate, or expedite reductions in groundwater pumping or the |
|
development or distribution of alternative water supplies. |
|
SECTION 13. Section 36.301, Water Code, is amended to read |
|
as follows: |
|
Sec. 36.301. VIOLATIONS RELATED TO DISTRICT [FAILURE TO
|
|
SUBMIT A] MANAGEMENT PLAN. The commission shall take appropriate |
|
action under Section 36.303 if: |
|
(1) a district adopts or amends a rule in violation of |
|
Section 36.1071(f-1); |
|
(2) [If] a district [board] fails to submit a district |
|
management plan or to receive certification of the district [its] |
|
management plan under Section 36.1072; |
|
(3) a district fails to timely readopt the district |
|
management plan or to submit the readopted district management plan |
|
to the executive administrator for approval in accordance with |
|
Section 36.1072(f); |
|
(4) the executive administrator determines that a |
|
readopted district management plan does not meet the requirements |
|
for approval, and the district has exhausted all appeals; or |
|
(5) a district fails to submit or receive |
|
certification of an amendment to the district management plan under |
|
Section 36.1073[, the commission shall take appropriate action
|
|
under Section 36.303]. |
|
SECTION 14. Section 36.3011, Water Code, is amended to read |
|
as follows: |
|
Sec. 36.3011. FAILURE OF DISTRICT TO CONDUCT JOINT |
|
PLANNING. 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 the commission finds that: |
|
(1) a district has failed to submit its district |
|
management 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. |
|
SECTION 15. Subsection (c), Section 36.302, Water Code, is |
|
amended to read as follows: |
|
(c) In a review performed under Subsection (a), the state |
|
auditor shall make a determination, based on an analysis of a |
|
district's activities, of whether the [a] district is actively |
|
engaged in achieving the objectives of the district [district's] |
|
management plan, including a desired future condition established |
|
under Section 36.108(d) that is applicable to all or part of the |
|
district [based on an analysis of the district's activities]. |
|
SECTION 16. Subsection (a), Section 36.303, Water Code, is |
|
amended to read as follows: |
|
(a) If Section 36.108, 36.301, or 36.302(f) applies and if |
|
the state auditor has performed a review of the district under |
|
Section 36.302(a), the commission, after notice and hearing in |
|
accordance with Chapter 2001, Government Code, shall take action |
|
the commission considers appropriate, including: |
|
(1) issuing an order requiring the district to take |
|
certain actions or to refrain from taking certain actions; |
|
(2) dissolving the board in accordance with Sections |
|
36.305 and 36.307 and calling an election for the purpose of |
|
electing a new board; |
|
(3) requesting the attorney general to bring suit for |
|
the appointment of a receiver to collect the assets and carry on the |
|
business of the groundwater conservation district; or |
|
(4) dissolving the district in accordance with |
|
Sections 36.304, 36.305, and 36.308. |
|
SECTION 17. STUDY AND REPORT. (a) The Texas Commission on |
|
Environmental Quality shall conduct a study regarding the impact on |
|
the entire Carrizo-Wilcox aquifer of rules and plans adopted by |
|
groundwater conservation districts in whose boundaries the aquifer |
|
is located and of determinations made by groundwater conservation |
|
districts in connection with the joint planning process relating to |
|
groundwater management areas in whose boundaries the aquifer is |
|
located. In conducting the study, the commission shall examine: |
|
(1) whether the rules and plans adopted by each |
|
groundwater conservation district: |
|
(A) are based on sound scientific principles; |
|
(B) adequately conserve and protect the aquifer |
|
and ensure the achievement of the applicable desired future |
|
condition for each part of the district; and |
|
(C) are likely to affect other groundwater |
|
conservation districts or groundwater management areas; |
|
(2) whether each district is enforcing substantial |
|
compliance with its rules; |
|
(3) whether the desired future conditions established |
|
under Section 36.108, Water Code, in each groundwater management |
|
area are reasonable and based on sound scientific principles, and |
|
whether the rules adopted by each district are designed to achieve |
|
the applicable desired future condition; |
|
(4) other long-term impacts of the applicable rules |
|
and plans on the aquifer, taking into consideration: |
|
(A) projected population and agricultural, |
|
municipal, and industrial demands for water from the aquifer within |
|
the groundwater conservation districts; and |
|
(B) other appropriate factors as determined by |
|
commission rule; and |
|
(5) whether the presence of contaminants in the |
|
recharge area of the aquifer and the potential pollution of the |
|
aquifer are issues that should be addressed and, if so, by whom. |
|
(b) The Texas Water Development Board and the Bureau of |
|
Economic Geology of The University of Texas at Austin shall assist |
|
the Texas Commission on Environmental Quality in conducting the |
|
study under this section. |
|
(c) The Texas Commission on Environmental Quality may |
|
contract with any appropriate person to assist the commission in |
|
conducting the study under this section. |
|
(d) Not later than December 31, 2012, the Texas Commission |
|
on Environmental Quality shall report the results of the study |
|
conducted under this Act to the governor, the lieutenant governor, |
|
the speaker of the house of representatives, and the standing |
|
committees in the senate and the house of representatives that have |
|
primary jurisdiction over natural resources. The report may |
|
include the commission's recommendations for legislation to |
|
address any areas of concern. |
|
(e) This section expires August 31, 2013. |
|
SECTION 18. (a) Section 36.069, Water Code, as added by |
|
this Act, applies to a member of the board of directors of a |
|
groundwater conservation district who qualifies for office and to a |
|
general manager of a groundwater conservation district who begins |
|
employment with the district before, on, or after the effective |
|
date of this Act. A person who is serving as a member of the board |
|
of directors or as a general manager of a groundwater conservation |
|
district on the effective date of this Act must complete the first |
|
hour of training as required by Section 36.069, Water Code, as added |
|
by this Act, not later than September 1, 2010. |
|
(b) The changes in law made by this Act apply only to a |
|
management plan or an amendment to a management plan that is |
|
submitted by a groundwater conservation district to the executive |
|
administrator of the Texas Water Development Board for review and |
|
approval on or after the effective date of this Act. A management |
|
plan or an amendment to a management plan that is submitted to the |
|
executive administrator of the Texas Water Development Board before |
|
the effective date of this Act is governed by the law in effect when |
|
the management plan or amendment was submitted, and the former law |
|
is continued in effect for that purpose. |
|
(c) As soon as practicable after the effective date of this |
|
Act, the Texas Water Development Board shall adopt rules to |
|
implement Section 36.1072, Water Code, as amended by this Act. |
|
(d) The first report under Subsection (e-1), Section |
|
36.117, Water Code, as added by this Act, is due not later than |
|
September 1, 2010. |
|
(e) The change in law made by this Act to Section 36.301, |
|
Water Code, applies only to a violation by a groundwater |
|
conservation district that occurs on or after the effective date of |
|
this Act. A violation that occurs before the effective date of this |
|
Act is governed by the law in effect on the date the violation |
|
occurred, and the former law is continued in effect for that |
|
purpose. |
|
(f) The change in law made by this Act to Section 36.302, |
|
Water Code, applies only to a review of a groundwater conservation |
|
district performed on or after the effective date of this Act. A |
|
review of a groundwater conservation district performed before the |
|
effective date of this Act is governed by the law in effect on the |
|
date the review was performed, and the former law is continued in |
|
effect for that purpose. |
|
SECTION 19. This Act does not make an appropriation. A |
|
provision in this Act 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 20. This Act takes effect immediately if it |
|
receives a vote of two-thirds of all the members elected to each |
|
house, as provided by Section 39, Article III, Texas Constitution. |
|
If this Act does not receive the vote necessary for immediate |
|
effect, this Act takes effect September 1, 2009. |