85R3335 SLB-F

By: Leach H.B. No. 614

A BILL TO BE ENTITLED

AN ACT

relating to the procedure for action by the Texas Commission on Environmental Quality on an application for a water right.

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

SECTION 1. Section 11.129, Water Code, is amended to read as follows:

Sec. 11.129. REVIEW OF APPLICATION[; AMENDMENT]. (a) In this section:

(1) "Administratively complete" means an application includes the information and fees required under Sections 11.124, 11.125, 11.1271, and 11.128 and, if applicable, Sections 11.126, 11.127, and 11.1272.

(2) "Technical review" means the part of the process of reviewing an application after the executive director has determined the application is administratively complete in which technical material is analyzed and reviewed in order to prepare a draft permit and draft notice.

(b) Not later than the 30th working day after the date the executive director receives an application, the executive director shall review the application and provide to the applicant:

(1) written notice that the application is administratively complete; or

(2) a written request for information that describes in detail the information that the applicant must provide in order for the application to be considered administratively complete.

(c) Not later than the 30th day after the date an applicant receives a request under Subsection (b)(2), the applicant must submit a response to the request. Not later than the 30th working day after the date the executive director receives a timely response, the executive director shall review the response and provide to the applicant:

(1) written notice that the application is administratively complete; or

(2) a written request for information that describes in detail the information that the applicant must provide in order for the application to be considered administratively complete.

(d) The applicant may request an extension of the time to submit a response to a request under Subsection (b)(2) or (c)(2). The executive director shall grant the request if the applicant demonstrates good cause for the extension. An extension under this subsection extends the deadline provided by Subsection (e) by the same amount of time as the amount of the extension.

(e) Not later than the 180th day after the date the executive director receives the application, the executive director shall:

(1) provide the applicant written notice that the application is administratively complete; or

(2) return the application and the entire filing fee to the applicant and provide the applicant with a list of the deficiencies in the application.

(f) The applicant is entitled to file a motion to overturn the return of the application and dispute an application deficiency. The motion to overturn may be overruled by operation of law under commission rules. If the commission holds a hearing on the motion to overturn, the commission shall issue an order:

(1) denying the motion and confirming the executive director's return of the application to the applicant;

(2) granting the motion, reinstating the application, and remanding the application to the executive director to request additional information necessary to render the application administratively complete; or

(3) granting the motion, reinstating the application, and declaring that the application is administratively complete.

(g) If the executive director requests additional information from the applicant under Subsection (f)(2), the applicant must provide the information to the executive director not later than the 30th day after the date the executive director issues the request. The executive director shall review the material and:

(1) provide the applicant written notice that the application is administratively complete; or

(2) return the application and the entire filing fee to the applicant and provide the applicant with a list of the deficiencies in the application.

(h) After the executive director or the commission determines that the application is administratively complete, the executive director shall conduct a technical review of the application. As part of the review, the executive director shall determine whether the applicable water conservation and drought contingency plans under Sections 11.1271 and 11.1272 are adequate.

(i) The executive director shall act on applications that relate to new appropriations of water in the same river basin in the order in which they are declared administratively complete. If for an application that has been declared administratively complete the executive director grants an extension or the applicant files a motion to overturn, the executive director shall extend the relevant deadlines for any application:

(1) declared administratively complete after the application for which the extension was granted or the motion was filed; and

(2) that relates to a new appropriation of water in the same river basin as the application for which the extension was granted or the motion was filed.

(j) The executive director shall provide notice in a timely manner to an applicant who receives an extension under Subsection (i).

(k) Not later than the 180th day after the date on which the technical review begins, the executive director shall provide the applicant with:

(1) written notice that the technical review is complete, a draft permit, a draft notice, and technical memoranda associated with the application; or

(2) a written request for technical information as determined by the executive director to be necessary for the completion of the technical review.

(l) With notice to the applicant, the executive director may extend the deadline provided by Subsection (k) for a period of 30 days. The executive director may not extend the deadline more than three times.

(m) Not later than the 60th day after the date the applicant receives a request under Subsection (k)(2), the applicant must provide the requested information to the executive director.

(n) The applicant may request an extension of the deadline provided by Subsection (m). The executive director shall grant the request if the applicant demonstrates good cause for the extension.

(o) Not later than the 60th day after the date the executive director receives a timely response to a request under Subsection (k)(2), the executive director shall review the response and provide the applicant with:

(1) written notice that the technical review is complete, a draft permit, a draft notice, and technical memoranda associated with the application; or

(2) written notice that the response to the request for technical information is deficient.

(p) If the executive director provides notice under Subsection (o)(2), the executive director and the applicant must collaborate in a good faith effort to resolve the deficiency. Not later than the 180th day after the date the executive director provides the notice, the executive director shall:

(1) provide the applicant with written notice that the technical review is complete, a draft permit, a draft notice, and technical memoranda associated with the application; or

(2) return the application and the use fee and the unused portion of the notice fee as prescribed by commission rule to the applicant and provide the applicant with a list of the deficiencies with the application.

(q) The applicant is entitled to file a motion to overturn the return of the application and dispute an application deficiency. The motion to overturn may be overruled by operation of law under commission rules. If the commission holds a hearing on the motion to overturn, the commission shall issue an order:

(1) denying the motion and confirming the executive director's return of the application to the applicant;

(2) granting the motion, reinstating the application, and remanding the application to the executive director to request additional information necessary to complete the technical review of the application; or

(3) granting the motion, reinstating the application, and requiring the executive director to prepare the draft permit, draft notice, and technical memoranda associated with the application and written notice that the technical review is complete.

(r) If the executive director requests additional information from the applicant under Subsection (q)(2), the applicant must provide the information to the executive director not later than the 30th day after the date the executive director issues the request. The executive director shall review the material and:

(1) provide the applicant written notice that the technical review is complete, a draft permit, a draft notice, and technical memoranda associated with the application; or

(2) return the application and the use fee and the unused portion of the notice fee as prescribed by commission rule to the applicant and provide the applicant with a list of the deficiencies in the application.

(s) The applicant may request an extension of the deadline provided by Subsection (r). The executive director shall grant the request if the applicant demonstrates good cause for the extension.

(t) Not later than the 14th day after the date the applicant receives the draft permit, draft notice, and technical memoranda associated with the application, the applicant must provide the executive director with:

(1) the applicant's comments on the draft permit, draft notice, and technical memoranda; or

(2) a statement that the applicant has no comment on the draft permit, draft notice, or technical memoranda.

(u) The applicant may request an extension of the time to submit comments under Subsection (t)(1). The executive director shall grant the request if the applicant demonstrates good cause for the extension.

(v) The executive director shall file the draft permit, draft notice, and technical memoranda associated with the application with the chief clerk of the commission:

(1) not later than the 14th day after the date the executive director receives comments under Subsection (t)(1), during which time the executive director and the applicant must collaborate to address the comments; or

(2) immediately on receipt of a statement described by Subsection (t)(2).

(w) Notwithstanding any other provision of this section, if the executive director makes a written determination that notice is not required for an application, the executive director shall grant or deny the permit for which the application is filed not later than the 300th day after the date the executive director receives the application. This period shall be extended by the same amount of time as the amount of any extension of time granted to the applicant for the provision of information [The commission shall determine whether the application, maps, and other materials comply with the requirements of this chapter and the rules of the commission. The commission may require amendment of the application, maps, or other materials to achieve necessary compliance].

SECTION 2. Section 11.133, Water Code, is amended to read as follows:

Sec. 11.133. HEARING. (a) At the time and place stated in the notice, the commission shall hold a hearing on the application. Any person may appear at the hearing in person or by attorney or may enter an [his] appearance in writing. Any person who appears may present objection to the issuance of the permit. The commission may receive evidence, orally or by affidavit, in support of or in opposition to the issuance of the permit, and it may hear arguments.

(b) The commission may not refer an issue regarding an application to the State Office of Administrative Hearings for a hearing unless the commission determines that the issue is:

(1) a disputed question of fact; and

(2) relevant and material to a decision on the application.

(c) If the commission grants a request for a hearing, the commission shall:

(1) determine the number and scope of issues to be referred to the State Office of Administrative Hearings 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 hearing, which may not exceed a period of 270 days.

(d) If the application has been determined to be administratively complete and the time for requesting more information under Section 11.129(k)(2) has expired, the commission:

(1) may not revoke the determination that the application is administratively complete; and

(2) may request additional information from the applicant only if the information is necessary to make a final determination on the application.

(e) A request for information under Subsection (d)(2) does not render the application administratively incomplete.

(f) If the commission refers an issue regarding an application to the State Office of Administrative Hearings for a hearing, the administrative law judge who conducts the hearing may not grant party status to a person who failed to seek party status from the commission before the issue was referred to the office.

(g) In the event of a conflict between this section and any other law, this section prevails.

SECTION 3. (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.

(c) On notice to the applicant, beginning on the effective date of the rules adopted under Subsection (a) of this section, the executive director of the Texas Commission on Environmental Quality may extend the period for technical review of an application for a new or amended water right under Section 11.129, Water Code, as amended by this Act, by a period not to exceed 18 months from the date the rules take effect if:

(1) on the effective date of the rules there are applications for new or amended water rights pending before the commission the technical review of which has not been completed; and

(2) the applications described by Subdivision (1) of this subsection affect the same river basin as the application for which the technical review period is extended.

(d) During an extension under Subsection (c) of this section, the executive director shall take all practicable measures to substantially meet all other applicable deadlines in Section 11.129, Water Code, as amended by this Act, related to the technical review of an application.

SECTION 4. 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.