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