By: Seliger S.B. No. 2120

(In the Senate - Filed March 13, 2009; March 31, 2009, read first time and referred to Committee on Natural Resources; April 22, 2009, reported adversely, with favorable Committee Substitute by the following vote: Yeas 9, Nays 0; April 22, 2009, sent to printer.)

COMMITTEE SUBSTITUTE FOR S.B. No. 2120 By: Seliger

A BILL TO BE ENTITLED

AN ACT

relating to the management, operation, and review of groundwater conservation districts.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Subchapter D, Chapter 6, Water Code, is amended by adding Section 6.113 to read as follows:

Sec. 6.113. DUTY TO ESTABLISH TRAINING PROGRAM. (a) The board shall establish a training program for members of boards of directors and general managers of groundwater conservation districts that includes education in:

(1) the provisions of Chapter 36;

(2) the principles of hydrogeology;

(3) relevant permitting procedures;

(4) effective conservation practices;

(5) conflicts of interest;

(6) methods of conducting public hearings;

(7) the responsibility of a director to provide financial oversight of a district; and

(8) board management and accountability.

(b) As the board considers appropriate, the board may consult with stakeholders in the development of the training program under Subsection (a).

SECTION 2. Subsection (h), Section 36.0171, Water Code, is amended to read as follows:

(h) If the majority of the votes cast at the election are against the levy of a maintenance tax, the district shall set production [permit] fees to pay for the district's regulation of groundwater in the district, including fees based on the amount of water to be withdrawn from a well.

SECTION 3. Subchapter C, Chapter 36, Water Code, is amended by adding Section 36.069 to read as follows:

Sec. 36.069. REQUIRED TRAINING FOR DIRECTORS AND GENERAL MANAGER. (a) Each director or general manager of a district shall complete at least one hour of training in a program established by the Texas Water Development Board under Section 6.113 during each one-year period in which the person serves as a director or general manager.

(b) The Texas Water Development Board or other entity providing the training shall provide a certificate of course completion to persons who complete the training required by this section. A district shall maintain and make available for public inspection the record of its directors' and general manager's completion of the training.

(c) The failure of one or more of the directors or the general manager of a district to complete the training required by this section does not affect the validity of an action taken by the district.

SECTION 4. The heading to Section 36.1071, Water Code, is amended to read as follows:

Sec. 36.1071. DISTRICT MANAGEMENT PLAN.

SECTION 5. Section 36.1071, Water Code, is amended by amending Subsections (a), (b), (c), (f), and (g) and adding Subsection (f-1) to read as follows:

(a) Following notice and hearing, the district shall, in coordination with surface water management entities on a regional basis, develop a [comprehensive] management plan that [which] addresses the following management goals, as applicable:

(1) providing the most efficient use of groundwater;

(2) controlling and preventing waste of groundwater;

(3) controlling and preventing subsidence;

(4) addressing conjunctive surface water management issues;

(5) addressing natural resource issues;

(6) addressing drought conditions;

(7) addressing conservation, recharge enhancement, rainwater harvesting, precipitation enhancement, or brush control, where appropriate and cost-effective; and

(8) addressing in a quantitative manner the desired future conditions of the groundwater resources.

(b) The [A] district management plan, or any amendments to the [a] district management plan, shall be developed [by the district] using the district's best available data and forwarded to the regional water planning group for use in their planning process.

(c) The commission and the Texas Water Development Board shall provide technical assistance to a district in the development of the district management plan required under Subsection (a) which may include, if requested by the district, a preliminary review and comment on the plan prior to final approval by the board. If such review and comment by the commission is requested, the commission shall provide comment not later than 30 days from the date the request is received.

(f) [The district shall adopt rules necessary to implement the management plan.] Prior to the development of the district's first district management plan and [its] approval of that plan under Section 36.1072, the district may not adopt rules other than rules pertaining to the registration and interim permitting of new and existing wells and rules governing spacing and procedure before the district's board; however, the district may not adopt any rules limiting the production of wells, except rules requiring that groundwater produced from a well be put to a nonwasteful, beneficial use. The district may accept applications for permits under Section 36.113, provided the district does not act on any such application until the district's management plan is approved as provided in Section 36.1072.

(f-1) After a district management plan is approved under Section 36.1072, the district shall adopt or amend rules limiting the production of wells or allocating groundwater as necessary to implement the district management plan. The district may not adopt rules limiting the production of wells or allocating groundwater or amend the district's rules limiting the production of wells or allocating groundwater if the district fails to:

(1) adopt a district management plan as required by this section;

(2) submit a district management plan to the executive administrator as required by Section 36.1072; and

(3) receive approval of the district management plan under Section 36.1072.

(g) The district shall adopt amendments to the district management plan as necessary. Amendments to the district management plan shall be adopted after notice and hearing and shall otherwise comply with the requirements of this section.

SECTION 6. Section 36.1072, Water Code, is amended to read as follows:

Sec. 36.1072. TEXAS WATER DEVELOPMENT BOARD REVIEW AND APPROVAL OF DISTRICT MANAGEMENT PLAN. (a) In this section, "development board" means the Texas Water Development Board. A district shall, not later than three years after the creation of the district or, if the district required confirmation, after the election confirming the district's creation, submit the district management plan required under Section 36.1071 to the executive administrator for review and approval.

(b) Within 60 days of receipt of a district management plan adopted under Section 36.1071, readopted under Subsection (f) [(e) or (g)] of this section, or amended under Section 36.1073, the executive administrator shall approve the district [a] management plan if the plan is administratively complete. A management plan is administratively complete when it contains the information required to be submitted under Section 36.1071(a) and (e). The executive administrator may waive [determine whether conditions justify waiver of] the requirements under Section 36.1071(e)(4) if the executive administrator determines that conditions justify the waiver.

(c) Once the executive administrator has granted administrative approval to [approved] a management plan:

(1) the executive administrator may not revoke but may require revisions to the approved groundwater conservation district management plan as provided by Subsection (g); and

(2) the executive administrator may request additional information from the district if the information is necessary to clarify, modify, or supplement previously submitted material[, but a request for additional information does not render the management plan unapproved].

(d) Not later than the 60th day after the date of the administrative approval of a district management plan under Subsection (c), the executive administrator shall review the district management plan to determine whether the district management plan is adequate to achieve a desired future condition established under Section 36.108(d) that is applicable to all or part of the district, considering any available information regarding groundwater levels, and:

(1) request additional information from the district;

(2) request that the district make substantive changes to the plan; or

(3) approve the plan.

(e) A district management plan takes effect on approval by the executive administrator or, if appealed, on approval by the development board [Texas Water Development Board].

(f) [(e)] The district may review the district management plan annually and shall [must] review and readopt the plan with or without revisions at least once every five years. The district shall provide the readopted plan to the executive administrator not later than the 60th day after the date on which the plan was readopted. Approval of the preceding district management plan remains in effect until:

(1) the district fails to timely readopt a district management plan;

(2) the district fails to timely submit the district's readopted district management plan to the executive administrator for administrative approval under Subsection (b); or

(3) the executive administrator determines that the readopted district management plan does not meet the requirements for approval, and the district has exhausted all appeals to the development board [Texas Water Development Board or appropriate court].

(g) [(f)] If the executive administrator does not approve the district management plan, the executive administrator shall provide to the district, in writing, the reasons the executive administrator does not approve [for the action]. Not later than the 180th day after the date a district receives notice that the executive administrator has not approved the district [its] management plan [has not been approved], the district may submit a revised district management plan for review and approval. The executive administrator's decision may be appealed to the development board [Texas Water Development Board]. If the development board [Texas Water Development Board] decides not to approve the revised district management plan on appeal, the district may request that the conflict be mediated. The district and the development board may 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 152, Civil Practice and Remedies Code, in obtaining a qualified impartial third party to mediate the conflict. The cost of the mediation services must be specified in the agreement between the parties and the Center for Public Policy Dispute Resolution or the alternative dispute resolution system. If the parties do not resolve the conflict through mediation, the decision of the development board [Texas Water Development Board] not to approve the district management plan may be appealed to a district court in Travis County. Costs for the appeal shall be set by the court hearing the appeal. An appeal under this subsection is by trial de novo. The commission shall not take enforcement action against a district under Subchapter I until the later of the expiration of the 180-day period, the date the development board [Texas Water Development Board] has taken final action withholding approval of a revised district management plan, the date the mediation is completed, or the date a final judgment upholding the development board's decision is entered by a district court. An enforcement action may not be taken against a district by the commission or the state auditor under Subchapter I because the district [district's] management plan and the approved regional water plan are in conflict while the parties are attempting to resolve the conflict before the development board, in mediation, or in court. Rules of the district continue in full force and effect until all appeals under this subsection have been exhausted and the final judgment is adverse to the district.

(h) [(g) In this subsection, "development board" means the Texas Water Development Board.] A person with a legally defined interest in groundwater in a district, or the regional water planning group, may file a petition with the development board stating that a conflict requiring resolution may exist between the district's approved management plan developed under Section 36.1071 and the state water plan. If a conflict exists, the development board shall provide technical assistance to and facilitate coordination between the involved person or regional water planning group and the district to resolve the conflict. Not later than the 45th day after the date the person or the regional water planning group files a petition with the development board, if the conflict has not been resolved, the district and the involved person or regional planning group may mediate the conflict. The district and the involved person or regional planning group may 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 152, Civil Practice and Remedies Code, in obtaining a qualified impartial third party to mediate the conflict. The cost of the mediation services must be specified in the agreement between the parties and the Center for Public Policy Dispute Resolution or the alternative dispute resolution system. If the district and the involved person or regional planning group cannot resolve the conflict through mediation, the development board shall resolve the conflict not later than the 60th day after the date the mediation is completed. The development board action under this provision may be consolidated, at the option of the board, with related action under Section 16.053(p). If the development board determines that resolution of the conflict requires a revision of the approved groundwater conservation district management plan, the development board shall provide information to the district. The district shall prepare any revisions to the plan based on the information provided by the development board and shall hold, after notice, at least one public hearing at some central location within the district. The district shall consider all public and development board comments, prepare, revise, and adopt its district management plan, and submit the revised district management plan to the development board for approval. On the request of the district or the regional water planning group, the development board shall include discussion of the conflict and its resolution in the state water plan that the development board provides to the governor, the lieutenant governor, and the speaker of the house of representatives under Section 16.051(e). If the groundwater conservation district disagrees with the decision of the development board under this subsection, the district may appeal the decision to a district court in Travis County. Costs for the appeal shall be set by the court hearing the appeal. An appeal under this subsection is by trial de novo.

SECTION 7. Section 36.1073, Water Code, is amended to read as follows:

Sec. 36.1073. AMENDMENT TO DISTRICT MANAGEMENT PLAN. Any amendment to a district [the] management plan shall be submitted to the executive administrator within 60 days following adoption of the amendment by the district's board. The executive administrator shall review and approve any amendment that [which] substantially affects the district management plan in accordance with the procedures established under Section 36.1072.

SECTION 8. Subsections (b), (c), and (n), Section 36.108, Water Code, are amended to read as follows:

(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 36.1071 covering that district's respective territory. On completion and approval of the plan as required by Section 36.1072, each district shall] forward a copy of the district's district [new or revised] management plan to the other districts in the management area. The boards of the districts shall consider the district management plans individually and shall compare them to other district management plans then in force in the management area.

(c) The presiding officer, or the presiding officer's designee, of each district located in whole or in part in the management area shall meet at least annually to conduct joint 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 districts shall consider:

(1) the goals of each district management plan and its impact on planning throughout the management area;

(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.

(n) The districts shall prepare [a] revised conditions [plan] in accordance with development board recommendations and hold, after notice, at least one public hearing at a central 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.

SECTION 9. Section 36.1132, Water Code, is amended to read as follows:

Sec. 36.1132. DISTRICT PLANS AND RULES TO ACHIEVE DESIRED FUTURE CONDITION; PERMITS BASED ON MANAGED AVAILABLE GROUNDWATER. (a) Not later than the second anniversary of the date that the districts in a management area establish one or more desired future conditions under Section 36.108(d), 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 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:

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. (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 18. 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 19. 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.

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