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R E S O L U T I O N
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BE IT RESOLVED by the Senate of the State of Texas, 81st |
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Legislature, Regular Session, 2009, That Senate Rule 12.03 be |
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suspended in part as provided by Senate Rule 12.08 to enable the |
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conference committee appointed to resolve the differences on House |
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Bill 3526 (the adoption of rules by the Texas Water Development |
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Board regarding supplemental funding resulting from federal |
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economic recovery legislation) to consider and take action on the |
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following matter: |
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Senate Rule 12.03(4) is suspended to permit the committee to |
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add text on matters which are not included in either the house or |
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senate version of the bill by adding the following ARTICLES to the |
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bill: |
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ARTICLE 8. RAINWATER HARVESTING AND WATER CONSERVATION |
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INITIATIVES |
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SECTION 8.01. Subchapter A, Chapter 59, Finance Code, is |
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amended by adding Section 59.012 to read as follows: |
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Sec. 59.012. LOANS FOR DEVELOPMENTS THAT USE HARVESTED |
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RAINWATER. Financial institutions may consider making loans for |
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developments that will use harvested rainwater as the sole source |
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of water supply. |
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SECTION 8.02. Section 447.004, Government Code, is amended |
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by amending Subsection (c-1) and adding Subsection (c-3) to read as |
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follows: |
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(c-1) The procedural standards adopted under this section |
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must require that: |
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(1) on-site reclaimed system technologies, including |
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rainwater harvesting, condensate collection, or cooling tower blow |
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down, or a combination of those system technologies, for nonpotable |
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indoor use and landscape watering be incorporated into the design |
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and construction of: |
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(A) [(1)] each new state building with a roof |
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measuring at least 10,000 square feet; and |
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(B) [(2)] any other new state building for which |
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the incorporation of such systems is feasible; |
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(2) rainwater harvesting system technology for |
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nonpotable indoor use and landscape watering be incorporated into |
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the design and construction of each new state building with a roof |
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measuring at least 10,000 square feet that is located in an area of |
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this state in which the average annual rainfall is at least 20 |
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inches; and |
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(3) at least 25 percent of the roof area of a building |
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described by Subdivision (2) be used for rainwater collection. |
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(c-3) The procedural standards required by Subsections |
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(c-1)(2) and (3) apply to a building described by Subsection |
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(c-1)(2) unless Subsection (c-2) applies or the state agency or |
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institution of higher education constructing the building provides |
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the state energy conservation office evidence that the amount of |
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rainwater that will be harvested from one or more existing |
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buildings at the same location is equivalent to the amount of |
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rainwater that could have been harvested from the new building had |
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rainwater harvesting system technology been incorporated into its |
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design and construction. |
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SECTION 8.03. Section 341.042(b), Health and Safety Code, |
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is amended to read as follows: |
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(b) The commission by rule shall provide that if a structure |
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is connected to a public water supply system and has a rainwater |
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harvesting system, [for indoor use:
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[(1)] the structure must have appropriate |
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cross-connection safeguards[; and
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[(2)
the rainwater harvesting system may be used only
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for nonpotable indoor purposes]. |
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SECTION 8.04. Chapter 580, Local Government Code, is |
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amended by adding Section 580.004 to read as follows: |
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Sec. 580.004. RAINWATER HARVESTING. (a) Each municipality |
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and county is encouraged to promote rainwater harvesting at |
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residential, commercial, and industrial facilities through |
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incentives such as the provision at a discount of rain barrels or |
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rebates for water storage facilities. |
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(b) Each municipality or county that has adopted impervious |
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cover or density restrictions shall consider the use in a |
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development of harvested rainwater as an on-site water supply |
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source in determining whether to grant the development a credit |
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against or exemption from the restrictions. |
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(c) The Texas Water Development Board shall ensure that |
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training on rainwater harvesting is available for the members of |
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the permitting staffs of municipalities and counties at least |
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quarterly. Members of the permitting staffs of counties and |
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municipalities are encouraged to receive the training. The Texas |
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Water Development Board may provide the training by seminars or by |
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videotape or functionally similar and widely available media |
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without cost. |
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(d) A municipality or county may not deny a building permit |
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solely because the facility will implement rainwater harvesting. |
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(e) Each school district is encouraged to implement |
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rainwater harvesting at facilities of the district. |
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SECTION 8.05. Section 202.007(d), Property Code, is amended |
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to read as follows: |
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(d) This section does not: |
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(1) restrict a property owners' association from |
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regulating the requirements, including size, type, shielding, and |
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materials, for or the location of a composting device[, rain
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barrel, rain harvesting device, or any other appurtenance] if the |
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restriction does not prohibit the economic installation of the |
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device [or appurtenance] on the property owner's property where |
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there is reasonably sufficient area to install the device [or
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appurtenance]; |
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(2) require a property owners' association to permit a |
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device [or appurtenance] described by Subdivision (1) to be |
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installed in or on property: |
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(A) owned by the property owners' association; |
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(B) owned in common by the members of the |
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property owners' association; or |
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(C) in an area other than the fenced yard or patio |
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of a property owner; |
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(3) prohibit a property owners' association from |
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regulating the installation of efficient irrigation systems, |
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including establishing visibility limitations for aesthetic |
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purposes; |
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(4) prohibit a property owners' association from |
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regulating the installation or use of gravel, rocks, or cacti; [or] |
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(5) restrict a property owners' association from |
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regulating yard and landscape maintenance if the restrictions or |
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requirements do not restrict or prohibit turf or landscaping design |
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that promotes water conservation; or |
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(6) require a property owners' association to permit a |
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rain barrel or rainwater harvesting system to be installed in or on |
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property if: |
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(A) the property is: |
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(i) owned by the property owners' |
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association; |
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(ii) owned in common by the members of the |
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property owners' association; or |
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(iii) located between the front of the |
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property owner's home and the adjacent street; or |
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(B) the barrel or system: |
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(i) is of a color other than: |
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(a) the original manufacturer's |
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color; or |
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(b) a color consistent with the color |
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scheme of the property owner's home; or |
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(ii) displays any language or other content |
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that is not typically displayed by such a barrel or system as it is |
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manufactured. |
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SECTION 8.06. Section 1.003, Water Code, is amended to read |
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as follows: |
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Sec. 1.003. PUBLIC POLICY. It is the public policy of the |
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state to provide for the conservation and development of the |
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state's natural resources, including: |
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(1) the control, storage, preservation, and |
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distribution of the state's storm and floodwaters and the waters of |
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its rivers and streams for irrigation, power, and other useful |
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purposes; |
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(2) the reclamation and irrigation of the state's |
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arid, semiarid, and other land needing irrigation; |
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(3) the reclamation and drainage of the state's |
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overflowed land and other land needing drainage; |
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(4) the conservation and development of its forest, |
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water, and hydroelectric power; |
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(5) the navigation of the state's inland and coastal |
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waters; |
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(6) the maintenance of a proper ecological environment |
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of the bays and estuaries of Texas and the health of related living |
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marine resources; [and] |
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(7) the voluntary stewardship of public and private |
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lands to benefit waters of the state; and |
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(8) the promotion of rainwater harvesting for potable |
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and nonpotable purposes at public and private facilities in this |
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state, including residential, commercial, and industrial |
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buildings. |
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SECTION 8.07. Section 16.0121, Water Code, is amended by |
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amending Subsection (b) and adding Subsection (g) to read as |
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follows: |
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(b) Except as provided by Subsection (g) [Every five years], |
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a retail public utility providing potable water shall perform and |
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file with the board, every five years, a water audit computing the |
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utility's most recent annual system water loss. |
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(g) A retail public utility shall perform and file with the |
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board a water loss audit annually if the utility is receiving any |
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financial assistance from the board. |
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SECTION 8.08. If the 81st Legislature makes an |
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appropriation to the Texas Water Development Board to provide |
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matching grants to political subdivisions of this state for |
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rainwater harvesting demonstration projects, the board shall, not |
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later than December 1, 2010, provide a report to the lieutenant |
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governor and the speaker of the house of representatives regarding |
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the projects for which the board has provided grants, including: |
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(1) a description of each project; and |
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(2) the amount of the grant provided for each project. |
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SECTION 8.09. This article does not make an appropriation. |
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A provision of this article that creates a new governmental |
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program, creates a new entitlement, or imposes a new duty on a |
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governmental entity is not mandatory during a fiscal period for |
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which the legislature has not made a specific appropriation to |
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implement the provision. |
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SECTION 8.10. This article takes effect September 1, 2009. |
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ARTICLE 9. CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY FOR |
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WATER OR SEWER SERVICES |
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SECTION 9.01. Section 13.245, Water Code, is amended by |
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amending Subsection (b) and adding Subsections (c-1) and (c-2) to |
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read as follows: |
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(b) Except as provided by Subsections [Subsection] (c), |
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(c-1), and (c-2), the commission may not grant to a retail public |
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utility a certificate of public convenience and necessity for a |
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service area within the boundaries or extraterritorial |
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jurisdiction of a municipality without the consent of the |
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municipality. The municipality may not unreasonably withhold the |
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consent. As a condition of the consent, a municipality may require |
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that all water and sewer facilities be designed and constructed in |
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accordance with the municipality's standards for facilities. |
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(c-1) The commission may grant a certificate to a retail |
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public utility for a service area within the boundaries or |
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extraterritorial jurisdiction of a municipality before the 180th |
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day after the municipality receives the retail public utility's |
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application if: |
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(1) the municipality has not entered into a binding |
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commitment to serve the area that is the subject of the application |
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on or before the 180th day after the date a formal request for |
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service is made on the same or substantially similar terms as |
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provided by the retail public utility's application, including a |
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capital improvements plan as required by Section 13.244(d)(3); or |
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(2) the municipality has refused to provide the |
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service applied for as evidenced by a formal vote of the |
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municipality's governing body or by an official notification from |
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the municipality. |
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(c-2) The commission must include as a condition of a |
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certificate of convenience and necessity granted under Subsection |
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(c-1) that the authorized water and sewer facilities be designed |
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and constructed in accordance with the municipality's standards for |
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water and sewer facilities. |
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SECTION 9.02. Sections 13.2451(a) and (b), Water Code, are |
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amended to read as follows: |
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(a) Except as provided by Subsection (b), if [If] a |
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municipality extends its extraterritorial jurisdiction to include |
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an area certificated to a retail public utility, the retail public |
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utility may continue and extend service in its area of public |
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convenience and necessity under the rights granted by its |
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certificate and this chapter. |
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(b) The commission may not extend a municipality's |
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certificate of public convenience and necessity beyond its |
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extraterritorial jurisdiction if a landowner elects to exclude some |
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or all of the landowner's property within a proposed service area in |
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accordance with Section 13.246(h). This subsection does not apply |
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to a transfer of a certificate as approved by the commission [A
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municipality that seeks to extend a certificate of public
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convenience and necessity beyond the municipality's
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extraterritorial jurisdiction must ensure that the municipality
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complies with Section 13.241 in relation to the area covered by the
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portion of the certificate that extends beyond the municipality's
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extraterritorial jurisdiction]. |
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SECTION 9.03. Sections 13.246(a) and (h), Water Code, are |
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amended to read as follows: |
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(a) If an application for a certificate of public |
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convenience and necessity or for an amendment to a certificate is |
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filed, the commission shall cause notice of the application to be |
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given to affected parties and to each county and groundwater |
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conservation district that is wholly or partly included in the area |
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proposed to be certified. If [, if] requested, the commission shall |
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fix a time and place for a hearing and give notice of the hearing. |
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Any person affected by the application may intervene at the |
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hearing. |
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(h) Except as provided by Subsection (i), a landowner who |
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owns a tract of land that is at least 25 acres and that is wholly or |
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partially located within the proposed service area may elect to |
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exclude some or all of the landowner's property from the proposed |
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service area by providing written notice to the commission before |
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the 30th day after the date the landowner receives notice of a new |
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application for a certificate of public convenience and necessity |
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or for an amendment to an existing certificate of public |
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convenience and necessity. The landowner's election is effective |
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without a further hearing or other process by the commission. If a |
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landowner makes an election under this subsection, the application |
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shall be modified so that the electing landowner's property is not |
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included in the proposed service area. An applicant for a |
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certificate of public convenience and necessity that has land |
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removed from its proposed certificated service area because of a |
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landowner's election under this subsection may not be required to |
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provide service to the removed land for any reason, including the |
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violation of law or commission rules by the water or sewer system of |
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another person. |
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SECTION 9.04. Section 13.254, Water Code, is amended by |
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amending Subsections (a-1) and (a-3) and adding Subsection (h) to |
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read as follows: |
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(a-1) As an alternative to decertification under Subsection |
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(a), the owner of a tract of land that is at least 50 acres and that |
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is not in a platted subdivision actually receiving water or sewer |
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service may petition the commission under this subsection for |
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expedited release of the area from a certificate of public |
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convenience and necessity so that the area may receive service from |
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another retail public utility. The fact that a certificate holder |
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is a borrower under a federal loan program is not a bar to a request |
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under this subsection for the release of the petitioner's land and |
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the receipt of services from an alternative provider. On the day |
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the petitioner submits the petition to the commission, the [The] |
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petitioner shall send [deliver], via certified mail, a copy of the |
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petition to the certificate holder, who may submit information to |
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the commission to controvert information submitted by the |
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petitioner. The petitioner must demonstrate that: |
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(1) a written request for service, other than a |
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request for standard residential or commercial service, has been |
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submitted to the certificate holder, identifying: |
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(A) the area for which service is sought; |
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(B) the timeframe within which service is needed |
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for current and projected service demands in the area; |
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(C) the level and manner of service needed for |
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current and projected service demands in the area; |
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(D) the approximate cost for the alternative |
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service provider to provide the service at the same level and manner |
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that is requested from the certificate holder; |
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(E) the flow and pressure requirements and |
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specific infrastructure needs, including line size and system |
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capacity for the required level of fire protection requested; and |
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(F) [(D)] any additional information requested |
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by the certificate holder that is reasonably related to |
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determination of the capacity or cost for providing the service; |
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(2) the certificate holder has been allowed at least |
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90 calendar days to review and respond to the written request and |
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the information it contains; |
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(3) the certificate holder: |
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(A) has refused to provide the service; |
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(B) is not capable of providing the service on a |
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continuous and adequate basis within the timeframe, at the level, |
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at the approximate cost that the alternative provider is capable of |
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providing for a comparable level of service, or in the manner |
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reasonably needed or requested by current and projected service |
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demands in the area; or |
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(C) conditions the provision of service on the |
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payment of costs not properly allocable directly to the |
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petitioner's service request, as determined by the commission; and |
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(4) the alternate retail public utility from which the |
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petitioner will be requesting service possesses the financial, |
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managerial, and technical capability to provide [is capable of
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providing] continuous and adequate service within the timeframe, at |
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the level, at the cost, and in the manner reasonably needed or |
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requested by current and projected service demands in the area. |
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(a-3) Within 60 [90] calendar days from the date the |
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commission determines the petition filed pursuant to Subsection |
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(a-1) to be administratively complete, the commission shall grant |
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the petition unless the commission makes an express finding that |
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the petitioner failed to satisfy the elements required in |
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Subsection (a-1) and supports its finding with separate findings |
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and conclusions for each element based solely on the information |
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provided by the petitioner and the certificate holder. The |
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commission may grant or deny a petition subject to terms and |
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conditions specifically related to the service request of the |
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petitioner and all relevant information submitted by the petitioner |
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and the certificate holder. In addition, the commission may |
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require an award of compensation as otherwise provided by this |
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section. If the certificate holder has never made service |
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available through planning, design, construction of facilities, or |
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contractual obligations to serve the area the petitioner seeks to |
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have released, the commission is not required to find that the |
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proposed alternative provider is capable of providing better |
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service than the certificate holder, but only that the proposed |
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alternative provider is capable of providing the requested service. |
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(h) A certificate holder that has land removed from its |
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certificated service area in accordance with this section may not |
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be required, after the land is removed, to provide service to the |
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removed land for any reason, including the violation of law or |
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commission rules by a water or sewer system of another person. |
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SECTION 9.05. The changes made by this article to Sections |
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13.245, 13.2451, 13.246, and 13.254, Water Code, apply only to: |
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(1) a retail public utility's application for a |
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certificate of public convenience and necessity for a service area |
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in the extraterritorial jurisdiction of a municipality that is made |
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on or after the effective date of this article; |
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(2) an extension of a municipality's certificate of |
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public convenience and necessity for a service area in the |
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extraterritorial jurisdiction of the municipality on or after the |
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effective date of this article; and |
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(3) a petition to release an area from a certificate of |
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public convenience and necessity that is made on or after the |
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effective date of this article. |
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Explanation: The language is necessary to encourage |
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rainwater harvesting and other water conservation initiatives and |
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to provide for the issuance of certificates of public convenience |
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and necessity for water and sewer service in the extraterritorial |
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jurisdiction of a municipality. |