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INTRODUCED
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HOUSE COMMITTEE
SUBSTITUTE
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SECTION 1. Section 5.115,
Water Code, is amended by adding Subsection (h) to read as follows:
(h) This section does not apply to a
hearing on an application for a water rights permit
or an amendment to a water rights permit
under Chapter 11.
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SECTION 1. Section 5.115,
Water Code, is amended by amending Subsection (b) and adding Subsection (h)
to read as follows:
(b)
At the time an application for a permit or license under this code,
other than an application for a water right or an amendment to a water
right under Chapter 11, is filed with the executive director and is
administratively complete, the commission shall give notice of the
application to any person who may be affected by the granting of the permit
or license. At the time an application for a water right or an
amendment to a water right under Chapter 11 is filed with the executive
director and is technically complete, the commission shall give notice as
required by law. A state agency that receives notice under this
subsection may submit comments to the commission in response to the notice
but may not contest the issuance of a permit or license by the commission.
For the purposes of this subsection, "state agency" does not
include a river authority.
(h) Subsections (a) and (a-1) do not apply
to a hearing on an application for a water right or an amendment to a water
right under Chapter 11.
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SECTION 2. Section
11.1273(d), Water Code, is amended.
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SECTION 2. Same as introduced
version.
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SECTION 3. Sections
11.132(a), (c), and (d), Water Code, are amended to read as follows:
(a) Notice shall be given to the persons who in the judgment of
the commission may be affected by an
application, including those persons listed in Subdivision (2), Subsection
(d), of this section. The commission, on the motion of a
commissioner or on the request of the executive director, the applicant,
or any affected person, shall hold a contested case [public]
hearing on the application.
(c) In the notice, the
commission shall:
(1) state the name and address
of the applicant;
(2) state the date the
application was filed;
(3) state the purpose and
extent of the proposed appropriation of water;
(4) identify the source of
supply and the place where the water is to be stored or taken or diverted
from the source of supply;
(5) describe the process
by which the commission will consider the application [specify the
time and location where the commission will consider the application];
[and]
(6) provide notice that,
not later than the 30th day after the date of the notice, a person
described by Subsection (a) may:
(A) request a contested
case hearing; or
(B) submit:
(i) comments on the
application; or
(ii) disputed issues of
fact or mixed questions of fact and law that are relevant and material to
the decision on the application;
(7) describe the process
for the submissions and requests described by Subdivision (6); and
(8) give any
additional information the commission considers necessary.
(d) The commission may act
on the application without holding a contested case [public]
hearing if:
(1) not less than 30 days
before the date of action on the application by the commission, the
applicant has published the commission's notice of the application at least
once in a newspaper regularly published or circulated within the section of
the state where the source of water is located;
(2) not less than 30 days
before the date of action on the application by the commission, the
commission mails a copy of the notice by first-class mail, postage prepaid,
to:
(A)
each claimant or appropriator of water from the source of water supply, the
record of whose claim or appropriation has been filed with the commission;
and
(B)
all navigation districts within the river basin concerned; and
(3) within 30 days after the date of the newspaper
publication of the commission's notice:
(A) [,] a contested
case [public] hearing has not been requested in writing by a
commissioner, the executive director, the applicant, or an affected
person; or
(B) no disputed issue of
fact or mixed question of fact and law that is relevant and material to the
decision on the application has been submitted by the applicant or an
affected person [who objects to the application].
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SECTION 3. Sections
11.132(a), (c), and (d), Water Code, are amended to read as follows:
(a) Notice shall be given as provided by commission rule to a person [to the persons] who in the
judgment of the commission should
receive notice [may be
affected by an application, including those persons listed in Subdivision
(2), Subsection (d), of this section]. The commission, on the
motion of a commissioner or on the request of the executive director,
the applicant, or any affected person, shall hold a contested case
[public] hearing on the application.
(c) In the notice, the
commission shall:
(1) state the name and
address of the applicant;
(2) state the date the
application was filed;
(3) state the purpose and
extent of the proposed appropriation of water;
(4) identify the source of
supply and the place where the water is to be stored or taken or diverted
from the source of supply;
(5) describe the process
by which the commission will consider the application [specify the
time and location where the commission will consider the application];
[and]
(6) provide notice that,
not later than the 30th day after the date of the notice, a person
described by Subsection (a) may:
(A) request a contested
case hearing; or
(B) submit:
(i) comments on the
application; or
(ii) disputed issues of
fact or mixed questions of fact and law that are relevant and material to
the decision on the application;
(7) describe the process
for the requests and submissions described by Subdivision (6); and
(8) give any
additional information the commission considers necessary.
(d) The commission may act
on the application without holding a contested case [public]
hearing if:
(1) not less than 30 days
before the date of action on the application by the commission, the
applicant has published the commission's notice of the application at least
once in a newspaper regularly published or circulated within the section of
the state where the source of water is located, if published notice is required by commission rule;
(2) not less than 30 days
before the date of action on the application by the commission, the
commission mails a copy of the notice by first-class mail, postage prepaid,
to all persons to whom notice is
required to be mailed under commission rules adopted under Subsection (a)[:
[(A)
each claimant or appropriator of water from the source of water supply, the
record of whose claim or appropriation has been filed with the commission;
and
[(B)
all navigation districts within the river basin concerned]; and
(3) within the period specified in the [30 days after the date of the newspaper
publication of the commission's] notice:
(A) [,] a contested
case [public] hearing has not been requested in writing by a
commissioner, the executive director, the applicant, or an affected
person; or
(B) no disputed issue of
fact or mixed question of fact and law that is relevant and material to the
decision on the application has been submitted by the applicant or an
affected person [who objects to the application].
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SECTION 4. Subchapter D,
Chapter 11, Water Code, is amended by adding Section 11.1321 to read as
follows:
Sec. 11.1321. AFFECTED
PERSON. (a) In this section, "timely" means within the period
described by Section 11.132.
(b) For the purpose of an
administrative hearing held by or for the commission involving a contested
case under this chapter, "affected person," or "person
affected," or "person who may be affected" means a person
who has a personal justiciable interest related to a legal right, duty,
privilege, power, or economic interest affected by the administrative
hearing. An interest common to members of the general public does not
qualify as a personal justiciable interest.
(c) Unless an application
is referred to the State Office of Administrative Hearings under Section
11.133(a), the commission shall determine whether a person is an affected
person at a public meeting of the commission.
(d) The commission shall
make a determination that a person is an affected person regarding the
application if the person:
(1) is the applicant;
(2) owns or leases a
permit, certified filing, or certificate of adjudication of a senior or superior water right in
the same basin as the basin affected by the application;
(3) has an application pending
before the commission for a new or amended water right in the same basin as
the basin affected by the application;
(4) has an application
pending before the commission for a change of ownership of a water right in
the same basin as the basin affected by the application; or
(5) has timely submitted one or more disputed issues of fact or
mixed questions of fact and law that:
(A) are relevant and material to the decision on the
application; and
(B) have the potential to affect the justiciable interest
asserted by the person.
(e) The following are not
affected persons:
(1) a group or
association that does not:
(A) timely request a
contested case hearing in writing;
and
(B) identify by name and
physical address or location a member of the group or association who would
be an affected person in the person's own right;
(2) a hearing requestor,
even if otherwise an affected person, who did not timely submit in writing
a disputed issue of fact or mixed question of fact and law that is relevant
and material to the decision on the application; or
(3) a person, even if
otherwise an affected person, who did not timely request a contested case
hearing.
(f) For a person other
than those described by Subsection (d)
or (e), the commission shall make a determination regarding whether a
person is an affected person by considering:
(1) the likely impact of
approving the application on the health, safety, and use of the property of
the hearing requestor, to the extent the impact relates to issues within
the commission's jurisdiction;
(2) the administrative
record, including the permit application and any supporting documentation;
(3) the analysis and
opinions of the executive director; and
(4) any other expert
reports, affidavits, opinions, or data submitted on or before any
applicable deadline to the commission by the executive director, the
applicant, or a hearing requestor.
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SECTION 4. Subchapter D,
Chapter 11, Water Code, is amended by adding Section 11.1321 to read as
follows:
Sec. 11.1321. AFFECTED PERSON.
(a) In this section, "timely" means within the 30-day notice period described by
Section 11.132.
(b) For the purpose of an
administrative hearing held by or for the commission involving a contested
case under this chapter, "affected person," "person
affected," or "person who may be affected" means a person
who has a personal justiciable interest related to a legal right, duty,
privilege, power, or economic interest affected by the administrative
hearing. An interest common to members of the general public does not
qualify as a personal justiciable interest.
(c) Unless an application
is referred to the State Office of Administrative Hearings under Section
11.133(a), the commission shall determine whether a person is an affected
person at a public meeting of the commission.
(d) The commission shall
make a determination that a person is an affected person regarding the
application if the person:
(1) is the applicant; or
(2) has timely submitted one or more disputed issues of fact or
mixed questions of fact and law that are relevant and material to the
decision on the application and have the potential to affect the
justiciable interest asserted by the person, and the person:
(A) owns or leases a
permit, certified filing, certificate of adjudication, or other water right recognized under this
chapter in the same basin as the basin affected by the application;
(B) has an administratively complete application
pending before the commission for a new or amended water right in the same
basin as the basin affected by the application;
(C) has an application
pending before the commission for a change of ownership of a water right in
the same basin as the basin affected by the application; or
(D) is otherwise an affected person under Subsection (b).
(e) The following are not
affected persons:
(1) a group or
association that does not:
(A) timely request a
contested case hearing; and
(B) identify by name and
physical address or location a member of the group or association who would
be an affected person in the person's own right;
(2) a hearing requestor,
even if otherwise an affected person, who did not timely submit in writing
a disputed issue of fact or mixed question of fact and law that is relevant
and material to the decision on the application; or
(3) a person, even if
otherwise an affected person, who did not timely request a contested case
hearing.
(f) For a person other
than those described by Subsection (d)(1),
(d)(2)(A), (d)(2)(B), (d)(2)(C), or (e), the commission shall make a
determination regarding whether a person is an affected person by
considering:
(1) the likely impact of
approving the application on the health, safety, and use of the property of
the hearing requestor, to the extent the impact relates to issues within
the commission's jurisdiction;
(2) the administrative
record, including the permit application, public
comments, hearing requests, related filings, and any supporting
documentation;
(3) the analysis and
opinions of the executive director;
(4) any other expert
reports, affidavits, opinions, or data submitted on or before any
applicable deadline to the commission by the executive director, the
applicant, or a hearing requestor; and
(5) any other factors the commission considers relevant.
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SECTION 5. Section 11.133, Water
Code, is amended to read as follows:
Sec. 11.133. HEARING. (a)
If an applicant requests a contested
case hearing and that the hearing
be referred to the State Office of Administrative Hearings, the commission
shall refer the hearing to the State
Office of Administrative Hearings.
(b) If the commission
determines at a public meeting of the commission that a contested case
hearing has been requested by an affected person, the commission shall
either:
(1) hold a contested case
hearing on the application before the commission at a time and place
designated by the commission; or
(2) refer the application
to the State Office of Administrative Hearings.
(c) [At the time
and place stated in the notice, the commission shall hold a hearing on the
application.] Any affected person may appear at the hearing in
person or by attorney or may enter the person's [his]
appearance in writing. Any affected person who appears may present
objection to the issuance of the permit. The commission or the State Office
of Administrative Hearings may receive evidence, orally or by
affidavit, in support of or in opposition to the issuance of the permit,
and it may hear arguments. Chapter 2001, Government Code, applies to a
contested case hearing held under this section.
(d) If the commission
grants a request for a hearing, the commission shall:
(1) for a hearing other than a hearing referred to the State
Office of Administrative Hearings under Subsection (a), determine
the number and scope of issues to be considered
in the contested case hearing; and
(2) consistent with the
nature and number of issues to be considered at the hearing, specify the
maximum duration of the hearing,
beginning on the date of the preliminary
hearing and concluding with the issuance of a proposal for decision, which
may not exceed a period of 270 days, unless the commission determines that
the nature and number of issues to be considered at the hearing requires
that the period be extended.
(e) An issue included in the scope of issues determined under
Subsection (d)(1) must be an issue the commission determines:
(1) involves a disputed question of fact or a mixed question of
fact and law;
(2) is relevant and material to the decision on the
application; and
(3) was raised by an affected person during the notice period
described by Section 11.132.
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SECTION 5. Section 11.133,
Water Code, is amended to read as follows:
Sec. 11.133. CONTESTED
CASE HEARING ON APPLICATION. (a) If an applicant requests
that the applicant's application
be referred to the State Office of Administrative Hearings for a contested case hearing, the
commission shall refer the application
to the office.
(b) If the commission
determines at a public meeting of the commission that a contested case
hearing has been requested by an affected person, the commission shall
either:
(1) hold a contested case
hearing on the application before the commission at a time and place
designated by the commission; or
(2) refer the application
to the State Office of Administrative Hearings.
(c) [At the time
and place stated in the notice, the commission shall hold a hearing on the
application.] Any affected person may appear at the contested case hearing in person or
by attorney or may enter the person's [his] appearance in
writing. Any affected person who appears may present objection to
the issuance of the permit. The commission or the State Office of
Administrative Hearings may receive evidence, orally or by affidavit,
in support of or in opposition to the issuance of the permit, and [it]
may hear arguments. Chapter 2001, Government Code, applies to a
contested case hearing held under this section.
(d) The commission may not refer an issue regarding an
application for a contested case hearing under Subsection (b) unless the
commission determines that the issue:
(1) is a disputed issue of fact or mixed question of fact and
law;
(2) is relevant and material to a decision on the application;
and
(3) was raised by an affected person whose hearing request was
granted by the commission.
(e) If the commission
grants a request for a contested case
hearing under Subsection (b), the
commission shall:
(1) determine the number
and scope of issues to be referred for a
hearing; and
(2) consistent with the
nature and number of issues to be considered at the hearing, specify the
maximum expected duration of the proceeding, beginning with the holding of the preliminary
hearing and concluding with the issuance of the proposal for decision,
which may not exceed a period of 270 days, unless the commission determines
that the nature and number of issues to be considered at the hearing
require that the period be extended.
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SECTION 6. Subchapter D,
Chapter 11, Water Code, is amended by adding Section 11.1335 to read as
follows:
Sec. 11.1335. HEARINGS
CONDUCTED BY THE STATE OFFICE OF ADMINISTRATIVE HEARINGS.
(a) The presiding administrative law judge of a contested case
hearing referred under Section 11.133(b)(2):
(1) may not grant party status to a person who is not an
affected person as determined by the commission under Section 11.1321; and
(2) shall limit the scope of the hearing to the disputed issues
of fact or mixed questions of fact and law identified by the commission
under Section 11.133(d)(1).
(b) The presiding
administrative law judge of a contested case hearing referred under Section
11.133(a):
(1) may not grant party
status to a person who is not an affected person; and
(2) shall limit the scope of the hearing to:
(A) disputed issues of fact or mixed questions of fact and law
that:
(i) are relevant and material to the decision on the
application; and
(ii) were raised by a party to the hearing within the period
described by Section 11.132;
(B) issues that the parties have agreed to include in the
hearing, with the approval of the presiding judge; and
(C) issues that the presiding judge determines are necessary to
prevent the deprivation of due process or another constitutional right to a
party.
(c) The administrative
law judge who hears the case shall issue
a proposal for decision on or before the deadline determined by the
commission under Section 11.133(d)(2) unless the judge determines
that failure to extend the deadline
would unduly deprive a party to
the hearing of due process or another constitutional right.
(d) For the purposes of Subsections (b) and (c), a political
subdivision has the same rights as an individual.
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(h) If the commission
refers an application for a contested case hearing under Subsection (a),
the administrative law judge who conducts the hearing:
(1) may not grant party
status to:
(A) a person who is not
an affected person under Section
11.1321; or
(B) a person whose hearing request was denied by the
commission; and
(2) shall determine the number and scope of issues to be considered at the hearing in
accordance with the limitations contained in Subsection (d).
(f) The administrative
law judge who conducts the contested
case hearing or the commission, if the commission conducts the hearing, may
extend the proceeding beyond the period specified by the commission under
Subsection (e)(2) if:
(1) the parties to the hearing agree to an extension; or
(2) the administrative
law judge or the commission, if the
commission conducts the hearing, determines that failure to extend
the proceeding would deprive a
party of due process or another constitutional right.
(g) For the purposes of Subsection (f)(2), a political
subdivision has the same constitutional
rights as an individual.
(i) Subsection (h)(1) does not apply to the office of public
interest counsel or the executive director.
(j) In the event of a conflict between this section and any
other law, this section prevails.
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SECTION 7. Sections
11.143(d) and (g), Water Code, are amended.
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SECTION 6. Substantially the
same as introduced version.
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SECTION 8. Section 11.174,
Water Code, is amended.
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SECTION 7. Same as introduced
version.
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SECTION 9. Section
11.132(f), Water Code, is repealed.
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SECTION 8. Same as introduced
version.
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SECTION 10. (a) As soon as
practicable after the effective date of this Act, the Texas Commission on
Environmental Quality shall adopt rules to implement the changes in law
made by this Act.
(b) The changes in law made
by this Act apply only to an application received by the Texas Commission
on Environmental Quality on or after the effective date of the rules
adopted under Subsection (a) of this section. An application received
before the effective date of the rules adopted under Subsection (a) of this
section is governed by the law in effect on the date the application was
received, and the former law is continued in effect for that purpose.
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SECTION 9. (a) As soon as
practicable after the effective date of this Act, the Texas Commission on
Environmental Quality shall adopt rules to implement the changes in law
made by this Act.
(b) The changes in law made
by this Act apply only to an application for
a new or amended water right received by the Texas Commission on
Environmental Quality on or after the effective date of the rules adopted
under Subsection (a) of this section. An application received before the
effective date of the rules adopted under Subsection (a) of this section is
governed by the law in effect on the date the application was received, and
the former law is continued in effect for that purpose.
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SECTION 11. This Act takes
effect September 1, 2017.
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SECTION 10. This Act takes effect immediately if it
receives a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this Act does
not receive the vote necessary for immediate effect, this Act takes
effect September 1, 2017.
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