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A BILL TO BE ENTITLED
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AN ACT
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relating to the procedures for and appeals of desired future |
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conditions adopted by groundwater management areas. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 36.001, Water Code, is amended by adding |
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Subdivision (30) to read as follows: |
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(30) "Desired future condition" means a quantitative |
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description, adopted in accordance with Section 36.108, of the |
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desired condition of the groundwater resources in a management area |
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at one or more specified future times. |
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SECTION 2. Section 36.063, Water Code, is amended to read as |
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follows: |
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Sec. 36.063. NOTICE OF MEETINGS. (a) Except as provided by |
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Subsections (b) and (c), notice [Notice] of meetings of the board |
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shall be given as set forth in the Open Meetings Act, Chapter 551, |
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Government Code. Neither failure to provide notice of a regular |
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meeting nor an insubstantial defect in notice of any meeting shall |
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affect the validity of any action taken at the meeting. |
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(b) At least 10 days before any meeting or hearing at which |
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the board will consider or take public comments on the desired |
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future condition for an aquifer, including a joint planning meeting |
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under Section 36.108 attended by a district representative, the |
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board must post notice that includes: |
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(1) the proposed desired future condition or |
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conditions and a list of any other agenda items; |
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(2) the date, time, and location of the meeting or |
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hearing; |
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(3) the name, telephone number, and address of the |
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person to whom questions or requests for additional information may |
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be submitted; |
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(4) the names of the other districts in the district's |
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management area; and |
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(5) information on how the public may submit comments. |
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(c) Notice of a meeting or hearing described by Subsection |
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(b) must be posted: |
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(1) in the district office; |
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(2) in the county courthouse of each county located |
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wholly or partly in the district; |
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(3) with the secretary of state; and |
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(4) on the district's Internet website, if the |
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district has an Internet website. |
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(d) The Texas Water Development Board by rule may adopt |
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additional notice provisions for a meeting described by Subsection |
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(b) to ensure reasonable notice to and comment from affected |
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stakeholders such as landowners, permit holders, local officials, |
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and other members of the public. |
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SECTION 3. Sections 36.1071(a) and (e), Water Code, are |
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amended 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 which addresses the |
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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 adopted by the district under Section 36.108 [of
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the groundwater resources]. |
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(e) In the management plan described under Subsection (a), |
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the district shall: |
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(1) identify the performance standards and management |
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objectives under which the district will operate to achieve the |
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management goals identified under Subsection (a); |
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(2) specify, in as much detail as possible, the |
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actions, procedures, performance, and avoidance that are or may be |
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necessary to effect the plan, including specifications and proposed |
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rules; |
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(3) include estimates of the following: |
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(A) managed available groundwater in the |
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district based on the desired future condition adopted by rule |
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[established] under Section 36.108; |
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(B) the amount of groundwater being used within |
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the district on an annual basis; |
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(C) the annual amount of recharge from |
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precipitation, if any, to the groundwater resources within the |
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district; |
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(D) for each aquifer, the annual volume of water |
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that discharges from the aquifer to springs and any surface water |
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bodies, including lakes, streams, and rivers; |
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(E) the annual volume of flow into and out of the |
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district within each aquifer and between aquifers in the district, |
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if a groundwater availability model is available; |
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(F) the projected surface water supply in the |
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district according to the most recently adopted state water plan; |
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and |
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(G) the projected total demand for water in the |
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district according to the most recently adopted state water plan; |
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and |
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(4) consider the water supply needs and water |
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management strategies included in the adopted state water plan. |
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SECTION 4. Subchapter D, Chapter 36, Water Code, is amended |
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by amending Section 36.108 and adding Sections 36.1081, 36.1082, |
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36.1083, 36.1084, and 36.1085 to read as follows: |
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Sec. 36.108. JOINT PLANNING IN MANAGEMENT AREA. (a) In |
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this section: |
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(1) "Development [, "development] board" means the |
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Texas Water Development Board. |
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(2) "District representative" means the presiding |
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officer or the presiding officer's designee for any district |
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located wholly or partly in the management area. |
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(b) If two or more districts are located within the |
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boundaries of the same management area, each district shall prepare |
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a comprehensive management plan as required by Section 36.1071 |
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covering that district's respective territory. On completion and |
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approval of the plan as required by Section 36.1072, each district |
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shall forward a copy of the new or revised management plan to the |
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other districts in the management area. The boards of the districts |
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shall consider the plans individually and shall compare them to |
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other management plans then in force in the management area. |
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(c) The district representatives [The presiding officer, or
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the presiding officer's designee, of each district located in whole
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or in part in the management area] shall meet at least annually to |
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conduct joint planning with the other districts in the management |
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area and to review the management plans, the [and] accomplishments |
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of [for] the management area, and proposals to adopt new or amend |
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existing desired future conditions. In reviewing the management |
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plans, the districts shall consider: |
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(1) the goals of each management plan and its impact on |
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planning throughout the management area; |
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(2) the effectiveness of the measures established by |
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each management plan for conserving and protecting groundwater and |
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preventing waste, and the effectiveness of these measures in the |
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management area generally; |
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(3) any other matters that the boards consider |
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relevant to the protection and conservation of groundwater and the |
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prevention of waste in the management area; and |
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(4) the degree to which each management plan achieves |
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the desired future conditions established during the joint planning |
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process. |
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(d) Not later than September 1, 2010, and every five years |
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thereafter, the districts shall consider groundwater availability |
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models and other data or information for the management area and |
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shall propose for adoption [establish] desired future conditions |
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for the relevant aquifers within the management area. Before |
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voting on the proposed [In establishing the] desired future |
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conditions of the aquifers under Subsection (d-2) [this section], |
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the districts shall consider: |
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(1) aquifer uses or conditions within the management |
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area, including conditions that differ substantially from one |
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geographic area to another; |
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(2) the water supply needs and water management |
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strategies included in the state water plan; |
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(3) hydrological conditions, including for each |
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aquifer in the management area the total estimated recoverable |
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storage as provided by the executive administrator, and the average |
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annual recharge, inflows, and discharge; |
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(4) other environmental impacts, including impacts on |
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spring flow and other interactions between groundwater and surface |
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water; |
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(5) the impact on subsidence; |
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(6) socioeconomic impacts reasonably expected to |
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occur; |
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(7) the impact on the interests and rights in private |
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property, including ownership and the rights of management area |
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landowners and their lessees and assigns in groundwater as |
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recognized under Section 36.002; |
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(8) whether the desired future conditions are |
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physically possible; and |
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(9) any other information relevant to the specific |
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desired future conditions [uses or conditions of an aquifer within
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the management area that differ substantially from one geographic
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area to another]. |
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(d-1) The districts may establish different desired future |
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conditions for: |
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(1) each aquifer, subdivision of an aquifer, or |
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geologic strata located in whole or in part within the boundaries of |
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the management area; or |
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(2) each geographic area overlying an aquifer in whole |
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or in part or subdivision of an aquifer within the boundaries of the |
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management area. |
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(d-2) [(d-1)] The desired future conditions proposed |
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[established] under Subsection (d) must be approved [adopted] by a |
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two-thirds vote of all the district representatives for |
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distribution to the districts in the management area. A 30-day |
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period for public comments begins on the day the proposed desired |
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future conditions are mailed to the districts. During the public |
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comment period and after posting notice as required by Section |
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36.063, each district shall hold a public hearing on the proposed |
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desired future conditions relevant to that district. During the |
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public comment period, the district shall make available in its |
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office a copy of the proposed desired future conditions and any |
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supporting materials, such as the documentation of factors |
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considered under Subsection (d) and groundwater availability model |
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run results. After the public hearing, the district shall prepare |
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for consideration at the next joint planning meeting a district |
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report that includes comments received, suggested revisions to the |
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proposed desired future conditions, and the basis for the revisions |
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[present at a meeting:
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[(1)
at which at least two-thirds of the districts
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located in whole or in part in the management area have a voting
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representative in attendance; and
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[(2)
for which all districts located in whole or in
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part in the management area provide public notice in accordance
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with Chapter 551, Government Code.
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[(d-2)
Each district in the management area shall ensure
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that its management plan contains goals and objectives consistent
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with achieving the desired future conditions of the relevant
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aquifers as adopted during the joint planning process]. |
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(d-3) After the districts have submitted their district |
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reports under Subsection (d-2), the district representatives shall |
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reconvene to review the reports, consider any district's suggested |
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revisions to the proposed desired future conditions, and finally |
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adopt the desired future conditions for the management area. The |
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desired future conditions must be adopted as a resolution by a |
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two-thirds vote of all the district representatives. The district |
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representatives shall produce a desired future conditions |
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explanatory report for the management area and submit to the |
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development board and each district in the management area proof |
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that notice was posted for the adoption meeting, a copy of the |
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resolution, and a copy of the explanatory report. The report must: |
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(1) identify each desired future condition; |
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(2) provide the policy and technical justifications |
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for each desired future condition; |
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(3) include documentation that the factors under |
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Subsection (d) were considered by the districts and a discussion of |
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how the adopted desired future conditions impact each factor; |
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(4) list other desired future condition options |
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considered and the reasons why those options were not adopted; and |
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(5) discuss reasons why recommendations made by |
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advisory committees and public comments received by the districts |
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were or were not incorporated into the desired future conditions. |
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(d-4) As soon as possible after a district receives the |
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desired future conditions resolution and explanatory report under |
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Subsection (d-3), the district by rule shall adopt the desired |
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future conditions in the resolution and report that apply to the |
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district. |
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(d-5) A district's adoption of a desired future condition |
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may be appealed in district court in the manner provided under |
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Subchapter H for a challenge to a district rule. |
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(e) Except as provided by this section, a [A] joint meeting |
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under this section must be held in accordance with Chapter 551, |
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Government Code. Each district shall comply with Chapter 552, |
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Government Code. Each district in the management area shall post |
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uniform notice [Notice] of the meeting [shall be given] in |
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accordance with Section 36.063 [the requirements for notice of
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district board of directors meetings under that Act]. |
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Sec. 36.1081. TECHNICAL STAFF AND SUBCOMMITTEES FOR JOINT |
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PLANNING. (a) On request, the commission and the Texas Water |
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Development Board shall make technical staff available to serve in |
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a nonvoting advisory capacity to assist with the development of |
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desired future conditions during the joint planning process under |
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Section 36.108. |
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(b) During the joint planning process under Section 36.108, |
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the district representatives may appoint and convene nonvoting |
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advisory subcommittees who represent social, governmental, |
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environmental, or economic interests to assist in the development |
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of desired future conditions. |
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Sec. 36.1082. PETITION FOR INQUIRY. (a) In this section, |
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"affected person" means, with respect to a management area: |
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(1) an owner of land in the management area; |
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(2) a district in or adjacent to the management area; |
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(3) a regional water planning group with a water |
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management strategy in the management area; |
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(4) a person who holds or is applying for a permit from |
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a district in the management area; |
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(5) a person who has groundwater rights in the |
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management area; or |
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(6) any other person defined as affected by commission |
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rule. |
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(b) An affected person [(f) A district or person with a
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legally defined interest in the groundwater within the management
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area] may file a petition with the commission requesting an inquiry |
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for any of the following reasons: |
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(1) a district fails to submit its management plan to |
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the executive administrator; |
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(2) [if] a district fails [or districts refused] to |
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participate [join] in the joint planning process under Section |
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36.108; |
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(3) a district fails to adopt rules; |
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(4) a district fails to adopt the applicable desired |
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future conditions adopted by the management area at a joint |
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meeting; |
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(5) a district fails to update its management plan |
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before the second anniversary of the adoption of desired future |
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conditions by the management area; |
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(6) a district fails to update its rules to implement |
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the applicable desired future conditions before the first |
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anniversary of the date it updated its management plan with the |
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adopted desired future conditions; |
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(7) [or the process failed to result in adequate
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planning, including the establishment of reasonable future desired
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conditions of the aquifers, and the petition provides evidence
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that:
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[(1)
a district in the groundwater management area has
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failed to adopt rules;
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[(2)] the rules adopted by a district are not designed |
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to achieve the desired future conditions adopted by [condition of
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the groundwater resources in] the [groundwater] management area |
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[established] during the joint planning process; |
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(8) [(3)] the groundwater in the management area is |
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not adequately protected by the rules adopted by a district; or |
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(9) [(4)] the groundwater in the [groundwater] |
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management area is not adequately protected due to the failure of a |
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district to enforce substantial compliance with its rules. |
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(c) [(g)] Not later than the 90th day after the date the |
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petition is filed, the commission shall review the petition and |
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either: |
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(1) dismiss the petition if the commission finds that |
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the evidence is not adequate to show that any of the conditions |
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alleged in the petition exist; or |
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(2) select a review panel as provided in Subsection |
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(d) [(h)]. |
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(d) [(h)] If the petition is not dismissed under Subsection |
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(c) [(g)], the commission shall appoint a review panel consisting |
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of a chairman and four other members. A director or general manager |
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of a district located outside the [groundwater] management area |
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that is the subject of the petition may be appointed to the review |
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panel. The commission may not appoint more than two members of the |
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review panel from any one district. The commission also shall |
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appoint a disinterested person to serve as a nonvoting recording |
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secretary for the review panel. The recording secretary may be an |
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employee of the commission. The recording secretary shall record |
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and document the proceedings of the panel. |
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(e) [(i)] Not later than the 120th day after appointment, |
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the review panel shall review the petition and any evidence |
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relevant to the petition and, in a public meeting, consider and |
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adopt a report to be submitted to the commission. The commission |
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may direct the review panel to conduct public hearings at a location |
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in the [groundwater] management area to take evidence on the |
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petition. The review panel may attempt to negotiate a settlement or |
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resolve the dispute by any lawful means. |
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(f) [(j)] In its report, the review panel shall include: |
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(1) a summary of all evidence taken in any hearing on |
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the petition; |
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(2) a list of findings and recommended actions |
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appropriate for the commission to take and the reasons it finds |
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those actions appropriate; and |
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(3) any other information the panel considers |
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appropriate. |
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(g) [(k)] The review panel shall submit its report to the |
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commission. The commission may take action under Section 36.3011. |
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Sec. 36.1083. MANAGED AVAILABLE GROUNDWATER. The Texas |
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Water Development Board shall require the [(l)
A person with a
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legally defined interest in the groundwater in the groundwater
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management area, a district in or adjacent to the groundwater
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management area, or a regional water planning group for a region in
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the groundwater management area may file a petition with the
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development board appealing the approval of the desired future
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conditions of the groundwater resources established under this
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section.
The petition must provide evidence that the districts did
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not establish a reasonable desired future condition of the
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groundwater resources in the groundwater management area.
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[(m)
The development board shall review the petition and any
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evidence relevant to the petition.
The development board shall
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hold at least one hearing at a central location in the management
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area to take testimony on the petition.
The development board may
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delegate responsibility for a hearing to the executive
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administrator or to a person designated by the executive
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administrator.
If the development board finds that the conditions
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require revision, the development board shall submit a report to
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the districts that includes a list of findings and recommended
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revisions to the desired future conditions of the groundwater
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resources.
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[(n)
The districts shall prepare a revised plan in
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accordance with development board recommendations and hold, after
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notice, at least one public hearing at a central location in the
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groundwater management area.
After consideration of all public and
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development board comments, the districts shall revise the
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conditions and submit the conditions to the development board for
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review.
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[(o) The] districts in a management area to [shall] submit |
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the desired future conditions resolution adopted [established] |
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under Section 36.108, proof that notice was posted for the adoption |
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meeting, and the desired future conditions explanatory report [this
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section] to the executive administrator. The executive |
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administrator shall provide each district and regional water |
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planning group located wholly or partly in the management area with |
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the managed available groundwater in the management area based upon |
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those [the] desired future conditions [condition of the groundwater
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resources established under this section]. |
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Sec. 36.1084. MANAGEMENT PLAN GOALS AND OBJECTIVES. Each |
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district in the management area shall ensure that its management |
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plan contains goals and objectives consistent with achieving the |
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desired future conditions of the relevant aquifers as adopted |
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during the joint planning process. |
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Sec. 36.1085. JOINT EFFORTS BY DISTRICTS IN A MANAGEMENT |
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AREA. [(p)] Districts located within the same [groundwater] |
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management areas or in adjacent management areas may contract to |
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jointly conduct studies or research, or to construct projects, |
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under terms and conditions that the districts consider beneficial. |
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These joint efforts may include studies of groundwater availability |
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and quality, aquifer modeling, and the interaction of groundwater |
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and surface water; educational programs; the purchase and sharing |
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of equipment; and the implementation of projects to make |
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groundwater available, including aquifer recharge, brush control, |
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weather modification, desalination, regionalization, and treatment |
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or conveyance facilities. The districts may contract under their |
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existing authorizations including those of Chapter 791, Government |
|
Code, if their contracting authority is not limited by Sections |
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791.011(c)(2) and (d)(3) and Section 791.014, Government Code. |
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SECTION 5. Section 36.3011, Water Code, is amended to read |
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as follows: |
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Sec. 36.3011. COMMISSION ACTION REGARDING [FAILURE OF] |
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DISTRICT DUTIES [TO CONDUCT JOINT PLANNING]. Not later than the |
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45th day after receiving the review panel's report under Section |
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36.1082 [36.108], the executive director or the commission shall |
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take action to implement any or all of the panel's recommendations. |
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The commission may take any action against a district it considers |
|
necessary in accordance with Section 36.303 if the commission finds |
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that: |
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(1) the [a] district has failed to submit its |
|
management plan to the executive administrator; |
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(2) the district has failed to participate in the |
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joint planning process under Section 36.108; |
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(3) the [(2) a] district has failed to adopt rules; |
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(4) the district has failed to adopt the applicable |
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desired future conditions adopted by the management area at a joint |
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meeting; |
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(5) the district has failed to update its management |
|
plan before the second anniversary of the adoption of desired |
|
future conditions by the management area; |
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(6) the district has failed to update its rules to |
|
implement the applicable desired future conditions before the first |
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anniversary of the date it updated its management plan with the |
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adopted desired future conditions; |
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(7) [(3)] the rules adopted by the district are not |
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designed to achieve the desired future conditions adopted by |
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[condition of the groundwater resources in] the [groundwater] |
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management area during the joint planning process; [or] |
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(8) [(4)] the groundwater in the management area is |
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not adequately protected by the rules adopted by the district; [,] |
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or |
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(9) the groundwater in the management area is not |
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adequately protected because of the district's failure to enforce |
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substantial compliance with its rules. |
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SECTION 6. The notice provisions of Sections 36.063(b) and |
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(c), Water Code, as added by this Act, apply only to a meeting or |
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hearing of a groundwater conservation district or a joint planning |
|
meeting of groundwater conservation districts held on or after the |
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effective date of this Act. A meeting or hearing held before the |
|
effective date of this Act is subject to the notice provisions in |
|
effect at the time of the meeting or hearing, and those provisions |
|
are continued in effect for that purpose. |
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SECTION 7. The requirement that a groundwater conservation |
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district's management plan under Section 36.1071(e), Water Code, as |
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amended by this Act, include the desired future conditions adopted |
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under Section 36.108, Water Code, as amended by this Act, for |
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submission to the executive administrator of the Texas Water |
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Development Board before the plan is considered administratively |
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complete applies only to a district management plan submitted to |
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the executive administrator on or after the effective date of this |
|
Act. A management plan submitted before the effective date of this |
|
Act is governed by the law in effect on the date the plan was |
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submitted, and that law is continued in effect for that purpose. |
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SECTION 8. The procedures for the adoption and reporting of |
|
desired future conditions of groundwater resources in a management |
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area under Section 36.108, Water Code, as amended by this Act, and |
|
36.1083, Water Code, as added by this Act, apply only to the |
|
adoption of desired future conditions that occurs on or after the |
|
effective date of this Act. Desired future conditions adopted |
|
before the effective date of this Act are governed by the law in |
|
effect on the date the desired future conditions were adopted, and |
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that law is continued in effect for that purpose. |
|
SECTION 9. A petition filed and pending on the effective |
|
date of this Act before the Texas Water Development Board to appeal |
|
the adoption of desired future conditions by a groundwater |
|
management area under former Section 36.108(l), Water Code, shall |
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be handled by the Texas Water Development Board in compliance with |
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Sections 36.108(l), (m), and (n), Water Code, as those sections |
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existed before the effective date of this Act. |
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SECTION 10. This Act takes effect September 1, 2011. |