BILL ANALYSIS

C.S.H.B. 1971

By: Ashby

Natural Resources

Committee Report (Substituted)

BACKGROUND AND PURPOSE

Groundwater is an important source of water throughout Texas but, under current law, there is no deadline for a groundwater conservation district to take final action following a contested case hearing on a permit application. As demands on groundwater continue to grow, the framework for groundwater permitting should ensure timely decisions and finality for all parties in the permitting process, while also providing for sufficient time for careful and thorough permitting decisions by groundwater conservation districts. C.S.H.B. 1971 seeks to increase efficiency in the groundwater permitting process by setting a deadline for a district to make a final decision in a proceeding on a permit application or permit amendment.

CRIMINAL JUSTICE IMPACT

It is the committee's opinion that this bill does not expressly create a criminal offense, increase the punishment for an existing criminal offense or category of offenses, or change the eligibility of a person for community supervision, parole, or mandatory supervision.

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution.

ANALYSIS

C.S.H.B. 1971 amends the Water Code to require a final decision issued by a groundwater conservation district board of directors in a proceeding for a permit application or permit amendment to be in writing and to either adopt the proposed findings of fact and conclusions of law as proposed by the administrative law judge or include revised findings of fact and conclusions of law, if applicable. The bill requires a district board to do the following with respect to such a decision, as applicable:

· issue the final decision not later than the 180th day after the date of receipt of the final proposal for such a decision from the State Office of Administrative Hearings, unless all parties agree to a deadline extension; and

· if a motion for rehearing is filed and granted by the board, make a final decision on the application not later than the 90th day after the date of the board's decision that was subject to the motion.

The board is considered to have adopted a final proposal for decision of an administrative law judge as a final order on the 181st day after the date the judge issued the final proposal for decision if the board has not issued a final decision by adopting the findings of fact and conclusions of law as proposed by the judge or issuing revised findings and conclusions. Such an adopted proposal for decision is final, immediately appealable, and not subject to a request for rehearing. The bill establishes that a concurrence of a majority of directors eligible to vote is sufficient for taking an action on a permit or permit amendment application for the purposes of making a final decision on the application by a district board composed of 10 or more directors.

C.S.H.B. 1971 limits the continuance of a hearing to the time limit established by the bill for the issuance of a final decision in a contested case hearing and requires a district board to ensure a decision on a permit or permit amendment application is timely rendered in accordance with applicable statutory provisions. The bill specifies that an applicant in a contested or uncontested hearing or a party to a contested hearing appealing a board decision on a permit or permit amendment application must do so by making a request in writing to the board not later than the 20th day after the date of the board's decision, unless the board issued findings of fact and conclusions of law as part of the final decision. The bill requires the board to consolidate requests for rehearing filed by multiple parties to the contested case hearing but authorizes only one rehearing to be considered per matter.

C.S.H.B. 1971 establishes that, if a district board director is required to file an affidavit as a result of a substantial interest in an applicable business entity or real property, the director is prohibited from attending a closed meeting related to and voting on the matter for which the director is required to file the affidavit unless a majority of the directors are also required to file an affidavit related to a similar interest on the same official action.

C.S.H.B. 1971 applies to an application for a permit or permit amendment submitted on or after the bill's effective date.

EFFECTIVE DATE

On passage, or, if the bill does not receive the necessary vote, September 1, 2023.

COMPARISON OF INTRODUCED AND SUBSTITUTE

While C.S.H.B. 1971 may differ from the introduced in minor or nonsubstantive ways, the following summarizes the substantial differences between the introduced and committee substitute versions of the bill.

The substitute does not include a provision in the introduced that established that a director on a groundwater conservation district board is disqualified and vacates the office if the director is recused from voting on more than one permit or permit amendment application or fails to attend two consecutive board meetings.

The substitute changes the provisions it shares with the introduced relating to a final decision made by a district board in a contested case hearing relating to a permit or permit amendment application as follows:

· omits a provision in the introduced establishing that a request from a party for findings of fact or conclusions of law is not required; and

· with respect to a granted motion for rehearing, changes the deadline for the board to make a final decision on an application to not later than the 90th day after the date of the board's decision that was subject to the motion for rehearing.

Whereas the substitute provides for the adoption of a final proposal for decision of an administrative law judge if the board has not issued a final decision by adopting or revising the findings and conclusion, the introduced provided for the adoption of such a judge's recommendations as a final order if the board fails to issue a final decision as required under the bill by the applicable deadline. 

The substitute provides for a requirement for the board to consolidate requests for rehearing filed by multiple parties to the contested case hearing, whereas the introduced did not provide for such a requirement.

Whereas the introduced established that certain requirements relating to a written request by a party seeking to appeal a district board's decision do not apply to a board's failure to issue a decision, the substitute makes an exception for such requirements if the board issued the findings of fact and conclusions of law as part of the final decision.

The substitute includes provisions that were not in the introduced relating to prohibitions applicable to a director who is required to file an affidavit under statutory provisions relating to certain conflicts of interest.