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A BILL TO BE ENTITLED
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AN ACT
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re |
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lating to the procedure for action by the Texas Commission on |
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Environmental Quality on an application for a water right. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 11.129, Water Code, is amended to read as |
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follows: |
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Sec. 11.129. REVIEW OF APPLICATION[; AMENDMENT]. (a) In |
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this section: |
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(1) "Administratively complete" means an application |
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includes the information and fees required under Sections 11.124, |
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11.125, 11.1271, and 11.128 and, if applicable, Sections 11.126, |
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11.127, and 11.1272. |
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(2) "Technical review" means the part of the process |
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of reviewing an application after the executive director has |
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determined the application is administratively complete in which |
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technical material is analyzed and reviewed in order to prepare a |
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draft permit and draft notice. |
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(b) Not later than the 30th working day after the date the |
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executive director receives an application, the executive director |
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shall review the application and provide to the applicant: |
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(1) written notice that the application is |
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administratively complete; or |
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(2) a written request for information that describes |
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in detail the information that the applicant must provide in order |
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for the application to be considered administratively complete. |
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(c) Not later than the 30th day after the date an applicant |
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receives a request under Subsection (b)(2), the applicant must |
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submit a response to the request. Not later than the 30th working |
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day after the date the executive director receives a timely |
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response, the executive director shall review the response and |
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provide to the applicant: |
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(1) written notice that the application is |
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administratively complete; or |
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(2) a written request for information that describes |
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in detail the information that the applicant must provide in order |
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for the application to be considered administratively complete. |
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(d) The applicant may request an extension of the time to |
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submit a response to a request under Subsection (b)(2) or (c)(2). |
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The executive director shall grant the request if the applicant |
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demonstrates good cause for the extension. An extension under this |
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subsection extends the deadline provided by Subsection (e) by the |
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same amount of time as the amount of the extension. |
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(e) Not later than the 180th day after the date the |
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executive director receives the application, the executive |
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director shall: |
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(1) provide the applicant written notice that the |
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application is administratively complete; or |
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(2) return the application and the entire filing fee |
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to the applicant and provide the applicant with a list of the |
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deficiencies in the application. |
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(f) The applicant is entitled to appeal the return of the |
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application and dispute an application deficiency in a hearing |
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before the commission. The commission shall expedite an |
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applicant's appeal of such a decision, review the application and |
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related documents, rule on the issues presented at the hearing, and |
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issue an order: |
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(1) directing the executive director to return the |
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application to the applicant; |
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(2) requesting additional information as required by |
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the executive director to render the application administratively |
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complete; or |
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(3) declaring that the application is |
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administratively complete and scheduling the technical review of |
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the application. |
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(g) If the commission requests additional information from |
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the applicant under Subsection (f)(2), the applicant must provide |
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the information to the commission not later than the 30th day after |
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the date the commission issues the request. The commission shall |
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review the material and issue an order described by Subsection |
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(f)(1) or (3), as applicable. |
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(h) Once the executive director determines that an |
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application is administratively complete: |
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(1) the commission may not revoke the determination |
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that the application is administratively complete; |
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(2) the executive director may request additional |
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information from the applicant only if the information is necessary |
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to clarify, modify, or supplement previously submitted |
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information; and |
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(3) a request for additional information does not |
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render the application incomplete. |
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(i) After the executive director or the commission |
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determines that the application is administratively complete, the |
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executive director shall conduct a technical review of the |
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application. As part of the review, the executive director shall |
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determine whether the applicable water conservation, drought |
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contingency, and water management plans under Sections 11.1271, |
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11.1272, and 11.1273 are adequate. |
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(j) Not later than the 180th day after the date on which the |
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technical review begins, the executive director shall provide the |
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applicant with: |
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(1) written notice that the technical review is |
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complete, a draft permit, a draft notice, and technical memoranda |
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associated with the application; or |
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(2) a written request for technical information as |
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determined by the executive director to be necessary for the |
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completion of the technical review. |
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(k) With notice to the applicant, the executive director may |
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extend the deadline provided by Subsection (j) for a period of 30 |
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days. The executive director may not extend the deadline more than |
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three times. |
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(l) Not later than the 60th day after the date the applicant |
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receives a request under Subsection (j)(2), the applicant must |
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provide the requested information to the executive director. |
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(m) The applicant may request an extension of the time to |
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submit a response to a request under Subsection (j)(2). The |
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executive director shall grant the request if the applicant |
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demonstrates good cause for the extension. An extension under this |
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subsection extends the deadline provided by Subsection (o) by the |
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same amount of time as the amount of the extension. |
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(n) Not later than the 60th day after the date the executive |
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director receives a timely response to a request under Subsection |
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(j)(2), the executive director shall review the response and |
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provide the applicant with: |
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(1) written notice that the technical review is |
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complete, a draft permit, a draft notice, and technical memoranda |
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associated with the application; or |
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(2) written notice that the response to the request |
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for technical information is deficient. |
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(o) If the executive director provides notice under |
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Subsection (n)(2), the executive director and the applicant must |
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collaborate in a good faith effort to resolve the deficiency. Not |
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later than the 180th day after the date the executive director |
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provides such notice, the executive director shall: |
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(1) provide the applicant with written notice that the |
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technical review is complete, a draft permit, a draft notice, and |
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technical memoranda associated with the application; or |
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(2) return the application and the use fee and the |
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unused portion of the notice fee as prescribed by commission rule to |
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the applicant and provide the applicant with a list of the |
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deficiencies with the application. |
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(p) The applicant is entitled to appeal the return of the |
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application and dispute an application deficiency in a hearing |
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before the commission. The commission shall expedite an |
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applicant's appeal of such a decision, review the application and |
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related documents, rule on the issues presented at the hearing, and |
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issue an order: |
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(1) directing the executive director to return the |
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application to the applicant; |
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(2) requesting additional information as required by |
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the commission; or |
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(3) requiring the executive director to prepare the |
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draft permit, draft notice, and technical memoranda associated with |
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the application and written notice that the technical review is |
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complete. |
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(q) If the commission requests additional information from |
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the applicant under Subsection (p)(2), the applicant must provide |
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the information to the commission not later than the 30th day after |
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the date the commission issues the request. The commission shall |
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review the material and issue an order described by Subsection |
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(p)(1) or (3), as applicable. |
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(r) The applicant may request an extension of the time to |
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submit a response to a request under Subsection (p)(2). The |
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commission shall grant the request if the applicant demonstrates |
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good cause for the extension. An extension under this subsection |
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extends the deadline provided by Subsection (q) by the same amount |
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of time as the amount of the extension. |
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(s) Not later than the 14th day after the date the applicant |
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receives the draft permit, draft notice, and technical memoranda |
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associated with the application, the applicant must provide the |
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executive director with: |
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(1) the applicant's comments on the draft permit, |
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draft notice, and technical memoranda; or |
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(2) a statement that the applicant has no comment on |
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the draft permit, draft notice, or technical memoranda. |
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(t) The applicant may request an extension of the time to |
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submit comments under Subsection (s)(1). The commission shall |
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grant the request if the applicant demonstrates good cause for the |
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extension. An extension under this subsection extends the deadline |
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provided by Subsection (s) by the same amount of time as the amount |
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of the extension. |
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(u) The executive director shall file the draft permit, |
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draft notice, and technical memoranda associated with the |
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application with the chief clerk of the commission: |
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(1) not later than the 14th day after the date the |
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executive director receives comments under Subsection (s)(1), |
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during which time the executive director and the applicant must |
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collaborate to address the comments; or |
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(2) immediately on receipt of a statement described by |
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Subsection (s)(2). |
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(v) Notwithstanding any other provision of this section, if |
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the executive director makes a written determination that notice is |
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not required for an application, the executive director shall grant |
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or deny the permit for which the application is filed not later than |
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the 300th day after the date the executive director receives the |
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application. This period shall be extended by the same amount of |
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time as the amount of any extension of time granted to the applicant |
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for the provision of information [The commission shall determine
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whether the application, maps, and other materials comply with the
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requirements of this chapter and the rules of the commission.
The
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commission may require amendment of the application, maps, or other
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materials to achieve necessary compliance]. |
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SECTION 2. Subchapter D, Chapter 11, Water Code, is amended |
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by adding Section 11.1291 to read as follows: |
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Sec. 11.1291. TECHNICAL REVIEW OF APPLICATIONS |
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(a) Within 30 days of the written request of an applicant, |
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and following the declaration that an application is |
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administratively complete, the executive director may delegate |
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responsibilities for the technical review of the application to a |
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third-party contractor who will: |
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(1) follow the direction of the executive director in |
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conducting the technical review of the application and preparing |
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all technical memoranda required by the executive director to |
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reflect the analyses and conclusions developed as part of the |
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technical review; and |
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(2) be responsible for successfully completing the |
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technical review on behalf of the executive director. |
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(b) The executive director shall evaluate the principals |
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and all subcontractors to be involved in a technical review |
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conducted under this section for their experience in the areas to be |
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addressed during and as part of the technical review, and shall |
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secure the applicant's written consent before technical review may |
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commence if such review will not be conducted by the executive |
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director. |
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(c) If the executive director chooses to utilize a |
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third-party contractor to complete the technical review of an |
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application, the executive director shall: |
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(1) take all necessary measures to ensure that the |
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third-party contractor, its principals, and its subcontractors |
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have no financial or economic interest in the outcome of the |
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application that is to be the subject of the technical review; and |
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(2) provide the applicant with a written statement of |
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the basis for the executive director's selection of the third-party |
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contractor for the technical review, including a description of the |
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third-party contractor's demonstrated competency in the fields of |
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expertise required for the technical review. |
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(d) The technical review of an application under this |
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section shall be completed so that the executive director issues a |
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draft permit or a draft permit amendment and associated technical |
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memoranda within 180 days following the date the executive director |
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determines that the applicant may complete the technical review or |
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the applicant contracts with the third-party contractor. |
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(e) The period of technical review provided in this |
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subsection is exclusive of the time provided for an applicant's |
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responses to requests for information. |
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(f) For good cause demonstrated to the executive director, |
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an applicant may be granted no more than 90 days to respond to any |
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request for information. |
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(g) If an applicant requires additional time to respond to a |
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request for information during technical review beyond 30 days from |
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the date of applicant's receipt of the request, the time provided to |
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the executive director in this subsection to issue a draft permit or |
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draft permit amendment and associated technical memoranda shall be |
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extended by the number of days beyond 30 days that the applicant |
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requires to respond to the request. |
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(h) Upon receipt of the applicant's consent to the use of a |
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third-party contractor to conduct the technical review of an |
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application, the executive director shall require the applicant to: |
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(1) enter into a contract with the third-party |
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contractor that is consistent with this section and that expresses |
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the scope of work to be undertaken by the third-party contractor |
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during the technical review; and |
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(2) pay the third-party contractor for all services |
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rendered under the contract as and when they are performed. |
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(i) If the applicant does not consent to the use of the |
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third-party contractor under subsection (b), then the application |
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shall be reviewed by the executive director. |
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SECTION 3. Section 11.133, Water Code, is amended to read as |
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follows: |
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Sec. 11.133. HEARING. (a) At the time and place stated in |
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the notice, the commission shall hold a hearing on the application. |
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Any person may appear at the hearing in person or by attorney or may |
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enter an [his] appearance in writing. Any person who appears may |
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present objection to the issuance of the permit. The commission may |
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receive evidence, orally or by affidavit, in support of or in |
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opposition to the issuance of the permit, and it may hear arguments. |
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(b) The commission may not refer an application filed under |
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this chapter to the State Office of Administrative Hearings for |
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consideration unless the commission first determines that: |
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(1) an issue relating to the commission's jurisdiction |
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has been specifically identified in a timely filed request for a |
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contested case hearing on the application; |
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(2) such request includes supporting documentation |
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and evidence reflecting the interest the requestor asserts is |
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justiciable by the commission at the time of the request; and |
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(3) the identified issue is one the commission has the |
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authority to address under the statutes that govern the |
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commission's consideration of the application. |
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(c) If the commission grants a request for a contested case |
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hearing on an application submitted under this chapter, the |
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commission shall: |
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(1) issue an order identifying the number and scope of |
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issues to be referred to the State Office of Administrative |
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Hearings for a hearing; and |
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(2) specify the maximum expected duration of the |
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hearing, which may not exceed a period of 270 days from the date of |
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the issuance of the commission's order under this subsection until |
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the issuance of the proposal for decision. |
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(d) If the commission refers an issue regarding an |
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application to the State Office of Administrative Hearings for a |
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contested case hearing, the administrative law judge who conducts |
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the hearing may not grant party status to a person who failed to |
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timely seek party status from the commission before the issue was |
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referred or to any person who was considered by the commission but |
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was not determined to be a person affected by the commission's |
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action on the application. |
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(e) In the event of a conflict between this section and any |
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other law, this section prevails. |
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SECTION 4. Subchapter D, Chapter 11, Water Code, is amended |
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by adding Section 11.1331 to read as follows: |
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Sec. 11.1331. PARTICIPATION BY PUBLIC INTEREST COUNSEL. |
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(a) The public interest counsel may be named a party to a hearing on |
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an application submitted under this chapter only if: |
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(1) during the period the commission may receive and |
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consider requests for a contested case hearing on the application, |
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the office of public interest counsel files with the commission a |
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description of each public interest as established by Section 5.276 |
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that the office of public interest counsel believes: |
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(A) is affected by the application; and |
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(B) has not been adequately addressed by the |
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executive director or the applicant during technical review; |
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(2) the commission in its discretion determines that |
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the office of public interest counsel has described a public |
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interest affected by the application that warrants participation by |
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the public interest counsel as a party, and that will not be |
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adequately addressed by any other party to the contested case |
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hearing; and |
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(3) the commission includes in an order issued |
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pursuant to section 11.133(c) one or more specified public interest |
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issues described by the public interest counsel pursuant to |
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subsection (a). |
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(b) If the commission names the office of public interest |
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counsel as a party to a contested case hearing on an application |
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submitted under this chapter, the public interest counsel's |
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participation shall be limited to examining only those public |
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interest issues identified in the commission's order issued under |
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section 11.133(c). |
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(c) The office of public interest counsel may not: |
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(1) submit responses to any requests for a contested |
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case hearing on an application submitted under this chapter; or |
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(2) provide assistance to any party to a contested |
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case hearing. |
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(d) A filing made by the public interest counsel under |
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subsection (a) of this section is insufficient to refer any issue of |
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an application to the State Office of Administrative Hearings for a |
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contested case hearing. |
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(e) Subsection (d) does not limit any authority of the |
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commission or executive director provided by other law to refer an |
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application to the State Office of Administrative Hearings for a |
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contested case hearing. |
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SECTION 5. (a) As soon as practicable after the effective |
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date of this Act, the Texas Commission on Environmental Quality |
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shall adopt rules to implement the changes in law made by this Act. |
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(b) The changes made to Section 11.133 and 11.1331 shall be |
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effective for any notice of an application considered by the |
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commission following the effective date of this Act. The changes |
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made to Sections 11.129 and 11.1291 shall be effective to any |
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application filed after the effective date of this Act. |
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(c) On notice to the applicant, beginning on the effective |
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date of the rules adopted under Subsection (a) of this section, the |
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executive director of the Texas Commission on Environmental Quality |
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may extend the period for technical review of an application for a |
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new or amended water right under Section 11.129, Water Code, as |
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amended by this Act, by a period not to exceed 18 months from the |
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date the rules take effect if: |
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(1) on the effective date of the rules there are |
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applications for new or amended water rights pending before the |
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commission the technical review of which has not been completed; |
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and |
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(2) the applications described by Subdivision (1) |
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affect the same river basin as the application for which the |
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technical review period is extended. |
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(d) During an extension under Subsection (c) of this |
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section, the executive director shall take all practicable measures |
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to substantially meet all other applicable deadlines in Section |
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11.129, Water Code, as amended by this Act, related to the technical |
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review of an application. |
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SECTION 6. This Act takes effect immediately if it receives |
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a vote of two-thirds of all the members elected to each house, as |
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provided by Section 39, Article III, Texas Constitution. If this |
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Act does not receive the vote necessary for immediate effect, this |
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Act takes effect September 1, 2015. |