Texas 2009 - 81st Regular

Texas House Bill HB1669 Compare Versions

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1	1	By: Callegari, Smith of Harris, H.B. No. 1669
2	2	Howard of Fort Bend, Pitts, Ritter
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to certificates of public convenience and necessity for
8	8	water or sewer services.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 13.245, Water Code, is amended by
11	11	amending Subsection (b) and adding Subsections (c-1) and (c-2) to
12	12	read as follows:
13	13	(b) Except as provided by Subsections [Subsection] (c),
14	14	(c-1), and (c-2), the commission may not grant to a retail public
15	15	utility a certificate of public convenience and necessity for a
16	16	service area within the boundaries or extraterritorial
17	17	jurisdiction of a municipality without the consent of the
18	18	municipality. The municipality may not unreasonably withhold the
19	19	consent. As a condition of the consent, a municipality may require
20	20	that all water and sewer facilities be designed and constructed in
21	21	accordance with the municipality's standards for facilities.
22	22	(c-1) The commission may grant a certificate to a retail
23	23	public utility for a service area within the boundaries or
24	24	extraterritorial jurisdiction of a municipality before the 180th
25	25	day after the municipality receives the retail public utility's
26	26	application if:
27	27	(1) the municipality has not entered into a binding
28	28	commitment to serve the area that is the subject of the application
29	29	on or before the 180th day after the date a formal request for
30	30	service is made on the same or substantially similar terms as
31	31	provided by the retail public utility's application, including a
32	32	capital improvements plan as required by Section 13.244(d)(3); or
33	33	(2) the municipality has refused to provide the
34	34	service applied for as evidenced by a formal vote of the
35	35	municipality's governing body or by an official notification from
36	36	the municipality.
37	37	(c-2) The commission must include as a condition of a
38	38	certificate of convenience and necessity granted under Subsection
39	39	(c-1) that the authorized water and sewer facilities be designed
40	40	and constructed in accordance with the municipality's standards for
41	41	water and sewer facilities.
42	42	SECTION 2. Sections 13.2451(a) and (b), Water Code, are
43	43	amended to read as follows:
44	44	(a) Except as provided by Subsection (b), if [If] a
45	45	municipality extends its extraterritorial jurisdiction to include
46	46	an area certificated to a retail public utility, the retail public
47	47	utility may continue and extend service in its area of public
48	48	convenience and necessity under the rights granted by its
49	49	certificate and this chapter.
50	50	(b) The commission may not extend a municipality's
51	51	certificate of public convenience and necessity beyond its
52	52	extraterritorial jurisdiction if a landowner elects to exclude some
53	53	or all of the landowner's property within a proposed service area in
54	54	accordance with Section 13.246(h). This subsection does not apply
55	55	to a transfer of a certificate as approved by the commission [A
56	56	municipality that seeks to extend a certificate of public
57	57	convenience and necessity beyond the municipality's
58	58	extraterritorial jurisdiction must ensure that the municipality
59	59	complies with Section 13.241 in relation to the area covered by the
60	60	portion of the certificate that extends beyond the municipality's
61	61	extraterritorial jurisdiction].
62	62	SECTION 3. Sections 13.246(a) and (h), Water Code, are
63	63	amended to read as follows:
64	64	(a) If an application for a certificate of public
65	65	convenience and necessity or for an amendment to a certificate is
66	66	filed, the commission shall cause notice of the application to be
67	67	given to affected parties and to each county and groundwater
68	68	conservation district that is wholly or partly included in the area
69	69	proposed to be certified. If [, if] requested, the commission shall
70	70	fix a time and place for a hearing and give notice of the hearing.
71	71	Any person affected by the application may intervene at the
72	72	hearing.
73	73	(h) Except as provided by Subsection (i), a landowner who
74	74	owns a tract of land that is at least 25 acres and that is wholly or
75	75	partially located within the proposed service area may elect to
76	76	exclude some or all of the landowner's property from the proposed
77	77	service area by providing written notice to the commission before
78	78	the 30th day after the date the landowner receives notice of a new
79	79	application for a certificate of public convenience and necessity
80	80	or for an amendment to an existing certificate of public
81	81	convenience and necessity. The landowner's election is effective
82	82	without a further hearing or other process by the commission. If a
83	83	landowner makes an election under this subsection, the application
84	84	shall be modified so that the electing landowner's property is not
85	85	included in the proposed service area. An applicant for a
86	86	certificate of public convenience and necessity that has land
87	87	removed from its proposed certificated service area because of a
88	88	landowner's election under this subsection may not be required to
89	89	provide service to the removed land for any reason, including the
90	90	violation of law or commission rules by the water or sewer system of
91	91	another person.
92	92	SECTION 4. Section 13.254, Water Code, is amended by
93	93	amending Subsections (a-1) and (a-3) and adding Subsection (h) to
94	94	read as follows:
95	95	(a-1) As an alternative to decertification under Subsection
96	96	(a), the owner of a tract of land that is at least 50 acres and that
97	97	is not in a platted subdivision actually receiving water or sewer
98	98	service may petition the commission under this subsection for
99	99	expedited release of the area from a certificate of public
100	100	convenience and necessity so that the area may receive service from
101	101	another retail public utility. The fact that a certificate holder
102	102	is a borrower under a federal loan program is not a bar to a request
103	103	under this subsection for the release of the petitioner's land and
104	104	the receipt of services from an alternative provider. On the day
105	105	the petitioner submits the petition to the commission, the [The]
106	106	petitioner shall send [deliver], via certified mail, a copy of the
107	107	petition to the certificate holder, who may submit information to
108	108	the commission to controvert information submitted by the
109	109	petitioner. The petitioner must demonstrate that:
110	110	(1) a written request for service, other than a
111	111	request for standard residential or commercial service, has been
112	112	submitted to the certificate holder, identifying:
113	113	(A) the area for which service is sought;
114	114	(B) the timeframe within which service is needed
115	115	for current and projected service demands in the area;
116	116	(C) the level and manner of service needed for
117	117	current and projected service demands in the area;
118	118	(D) the approximate cost for the alternative
119	119	service provider to provide the service at the same level and manner
120	120	that is requested from the certificate holder;
121	121	(E) the flow and pressure requirements and
122	122	specific infrastructure needs, including line size and system
123	123	capacity for the required level of fire protection requested; and
124	124	(F) [(D)] any additional information requested
125	125	by the certificate holder that is reasonably related to
126	126	determination of the capacity or cost for providing the service;
127	127	(2) the certificate holder has been allowed at least
128	128	90 calendar days to review and respond to the written request and
129	129	the information it contains;
130	130	(3) the certificate holder:
131	131	(A) has refused to provide the service;
132	132	(B) is not capable of providing the service on a
133	133	continuous and adequate basis within the timeframe, at the level,
134	134	at the approximate cost that the alternative provider is capable of
135	135	providing for a comparable level of service, or in the manner
136	136	reasonably needed or requested by current and projected service
137	137	demands in the area; or
138	138	(C) conditions the provision of service on the
139	139	payment of costs not properly allocable directly to the
140	140	petitioner's service request, as determined by the commission; and
141	141	(4) the alternate retail public utility from which the
142	142	petitioner will be requesting service possesses the financial,
143	143	managerial, and technical capability to provide [is capable of
144	144	providing] continuous and adequate service within the timeframe, at
145	145	the level, at the cost, and in the manner reasonably needed or
146	146	requested by current and projected service demands in the area.
147	147	(a-3) Within 60 [90] calendar days from the date the
148	148	commission determines the petition filed pursuant to Subsection
149	149	(a-1) to be administratively complete, the commission shall grant
150	150	the petition unless the commission makes an express finding that
151	151	the petitioner failed to satisfy the elements required in
152	152	Subsection (a-1) and supports its finding with separate findings
153	153	and conclusions for each element based solely on the information
154	154	provided by the petitioner and the certificate holder. The
155	155	commission may grant or deny a petition subject to terms and
156	156	conditions specifically related to the service request of the
157	157	petitioner and all relevant information submitted by the petitioner
158	158	and the certificate holder. In addition, the commission may
159	159	require an award of compensation as otherwise provided by this
160	160	section. If the certificate holder has never made service
161	161	available through planning, design, construction of facilities, or
162	162	contractual obligations to serve the area the petitioner seeks to
163	163	have released, the commission is not required to find that the
164	164	proposed alternative provider is capable of providing better
165	165	service than the certificate holder, but only that the proposed
166	166	alternative provider is capable of providing the requested service.
167	167	(h) A certificate holder that has land removed from its
168	168	certificated service area in accordance with this section may not
169	169	be required, after the land is removed, to provide service to the
170	170	removed land for any reason, including the violation of law or
171	171	commission rules by a water or sewer system of another person.
172	172	SECTION 5. The changes made by this Act to Sections 13.245,
173	173	13.2451, 13.246, and 13.254, Water Code, apply only to:
174	174	(1) a retail public utility's application for a
175	175	certificate of public convenience and necessity for a service area
176	176	in the extraterritorial jurisdiction of a municipality that is made
177	177	on or after the effective date of this Act;
178	178	(2) an extension of a municipality's certificate of
179	179	public convenience and necessity for a service area in the
180	180	extraterritorial jurisdiction of the municipality on or after the
181	181	effective date of this Act; and
182	182	(3) a petition to release an area from a certificate of
183	183	public convenience and necessity that is made on or after the
184	184	effective date of this Act.
185	185	SECTION 6. This Act takes effect September 1, 2009.