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A BILL TO BE ENTITLED
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AN ACT
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relating to the procedure for contested case hearings regarding |
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water rights permit applications and amendments to certain water |
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management plans. |
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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 adding |
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Subsection (h) to read as follows: |
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(h) This section does not apply to a hearing on an |
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application for a water rights permit or an amendment to a water |
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rights permit under 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 to the persons who in the judgment |
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of the commission 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 submissions and |
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requests 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; |
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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: |
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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 30 days after the date of the newspaper |
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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 period described by Section 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," or "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; |
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(2) owns or leases a permit, certified filing, or |
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certificate of adjudication of a senior or superior water right in |
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the same basin as the basin affected by the application; |
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(3) has an application pending before the commission |
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for a new or amended water right in the same basin as the basin |
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affected by the application; |
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(4) has an application pending before the commission |
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for a change of ownership of a water right in the same basin as the |
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basin affected by the application; or |
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(5) has timely submitted one or more disputed issues |
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of fact or mixed questions of fact and law that: |
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(A) are relevant and material to the decision on |
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the application; and |
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(B) have the potential to affect the justiciable |
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interest asserted by the person. |
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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 in |
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writing; 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) or (e), the commission shall make a determination regarding |
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whether a person is an 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 and any supporting documentation; |
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(3) the analysis and opinions of the executive |
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director; and |
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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. |
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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. HEARING. (a) If an applicant requests a |
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contested case hearing and that the hearing be referred to the State |
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Office of Administrative Hearings, the commission shall refer the |
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hearing to the State Office of Administrative Hearings. |
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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 hearing in person or by attorney or may |
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enter the person's [his] appearance in writing. Any affected |
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person who appears may present objection to the issuance of the |
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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) If the commission grants a request for a hearing, the |
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commission shall: |
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(1) for a hearing other than a hearing referred to the |
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State Office of Administrative Hearings under Subsection (a), |
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determine the number and scope of issues to be considered in the |
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contested case 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 duration of the |
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hearing, beginning on the date of the preliminary hearing and |
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concluding with the issuance of a proposal for decision, which may |
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not exceed a period of 270 days, unless the commission determines |
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that the nature and number of issues to be considered at the hearing |
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requires that the period be extended. |
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(e) An issue included in the scope of issues determined |
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under Subsection (d)(1) must be an issue the commission determines: |
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(1) involves a disputed question of fact or a mixed |
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question of fact and law; |
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(2) is relevant and material to the decision on the |
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application; and |
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(3) was raised by an affected person during the notice |
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period described by Section 11.132. |
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SECTION 6. Subchapter D, Chapter 11, Water Code, is amended |
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by adding Section 11.1335 to read as follows: |
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Sec. 11.1335. HEARINGS CONDUCTED BY THE STATE OFFICE OF |
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ADMINISTRATIVE HEARINGS. (a) The presiding administrative law |
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judge of a contested case hearing referred under Section |
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11.133(b)(2): |
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(1) may not grant party status to a person who is not |
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an affected person as determined by the commission under Section |
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11.1321; and |
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(2) shall limit the scope of the hearing to the |
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disputed issues of fact or mixed questions of fact and law |
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identified by the commission under Section 11.133(d)(1). |
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(b) The presiding administrative law judge of a contested |
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case hearing referred under Section 11.133(a): |
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(1) may not grant party status to a person who is not |
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an affected person; and |
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(2) shall limit the scope of the hearing to: |
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(A) disputed issues of fact or mixed questions of |
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fact and law that: |
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(i) are relevant and material to the |
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decision on the application; and |
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(ii) were raised by a party to the hearing |
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within the period described by Section 11.132; |
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(B) issues that the parties have agreed to |
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include in the hearing, with the approval of the presiding judge; |
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and |
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(C) issues that the presiding judge determines |
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are necessary to prevent the deprivation of due process or another |
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constitutional right to a party. |
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(c) The administrative law judge who hears the case shall |
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issue a proposal for decision on or before the deadline determined |
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by the commission under Section 11.133(d)(2) unless the judge |
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determines that failure to extend the deadline would unduly deprive |
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a party to the hearing of due process or another constitutional |
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right. |
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(d) For the purposes of Subsections (b) and (c), a political |
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subdivision has the same rights as an individual. |
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SECTION 7. 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 8. 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 9. Section 11.132(f), Water Code, is repealed. |
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SECTION 10. (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 received by the Texas Commission on Environmental |
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Quality on or after the effective date of the rules adopted under |
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Subsection (a) of this section. An application received before the |
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effective date of the rules adopted under Subsection (a) of this |
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section is governed by the law in effect on the date the application |
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was received, and the former law is continued in effect for that |
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purpose. |
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SECTION 11. This Act takes effect September 1, 2017. |