By: Callegari (Senate Sponsor - Averitt) H.B. No. 3526
(In the Senate - Received from the House May 8, 2009;
May 8, 2009, read first time and referred to Committee on Natural
Resources; May 23, 2009, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 9, Nays 0;
May 23, 2009, sent to printer.)
COMMITTEE SUBSTITUTE FOR H.B. No. 3526 By: Averitt
A BILL TO BE ENTITLED
AN ACT
relating to the powers and duties of the Texas Water Development
Board and related entities, including the funding of projects by
the board and the composition, duties, recommendations, and
expenses of entities created to study and provide advice regarding
environmental flows.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. ADOPTION OF RULES BY THE TEXAS WATER DEVELOPMENT BOARD
REGARDING SUPPLEMENTAL FUNDING RESULTING FROM FEDERAL ECONOMIC
RECOVERY LEGISLATION
SECTION 1.01. Section 15.604(b), Water Code, is amended to
read as follows:
(b) The board shall adopt rules specifying the manner in
which any additional state revolving fund hereafter established by
the board, or any capitalization grant under the state water
pollution control revolving fund, the safe drinking water revolving
fund, or any additional state revolving fund, may be used to provide
financial assistance to an eligible applicant [political
subdivisions] for public works. Such rules shall require financial
assistance to be provided for the purpose or purposes and on the
terms authorized by the federal legislation or federal agency
program under which the additional state revolving fund was
established or the capitalization grant was awarded.
SECTION 1.02. Subchapter J, Chapter 15, Water Code, is
amended by adding Section 15.6055 to read as follows:
Sec. 15.6055. RULEMAKING AUTHORITY FOR SPECIAL FEDERAL
CAPITALIZATION GRANTS. (a) The board may adopt rules specifying
the manner in which any special capitalization grant under the
state water pollution control revolving fund, the safe drinking
water revolving fund, or any additional state revolving fund
received as a result of federal economic recovery legislation may
be used to provide financial assistance to an eligible applicant
for public works. The rules must require financial assistance to be
provided for the purpose or purposes, and on the terms authorized
by, the federal legislation or federal agency program under which
the additional state revolving fund was established or the special
capitalization grant was awarded.
(b) If the board determines that it is necessary to adopt
rules to comply with the terms of a special capitalization grant or
other source of federal funding, and that the procedures prescribed
by Subchapter B, Chapter 2001, Government Code, for adopting rules
do not allow for the adoption of the rules in a sufficiently prompt
manner, the procedures prescribed by that subchapter do not apply
to the adoption of the rules. In that case, the board shall:
(1) post notice of a meeting to adopt rules not later
than 72 hours before the time the meeting is scheduled; and
(2) adopt the necessary rules at the meeting.
(c) The board shall file a rule adopted in the manner
authorized by Subsection (b) and the board's written determinations
made under that subsection in the office of the secretary of state
for publication in the Texas Register in the manner prescribed by
Chapter 2002, Government Code.
(d) Not later than the 180th day after the date rules are
adopted under Subsection (b), the board may readopt or amend the
rules in accordance with the procedures prescribed by Subchapter B,
Chapter 2001, Government Code. If the board does not readopt or
amend the rules in that manner, the rules expire on the 180th day
after the date the rules were adopted under Subsection (b).
(e) This section expires September 1, 2011.
ARTICLE 2. TEXAS WATER DEVELOPMENT BOARD SURVEYS FOR WATER
INFRASTRUCTURE FINANCING
SECTION 2.01. Section 15.975, Water Code, is amended by
adding Subsection (d) to read as follows:
(d) The board may not approve an application if the
applicant has failed to satisfactorily complete a request by the
executive administrator or a regional planning group for
information relevant to the project, including a water
infrastructure financing survey under Section 16.053(q).
SECTION 2.02. Section 15.912, Water Code, is amended to
read as follows:
Sec. 15.912. CONSIDERATIONS IN ACTING ON APPLICATION.
(a) In acting on an application for financial assistance, the
board shall consider:
(1) the needs of the area to be served by the project
and the benefit of the project to the area in relation to the needs
of other areas requiring state assistance in any manner and the
benefits of those projects to the other areas;
(2) the availability of revenue to the political
subdivision or water supply corporation from all sources for any
necessary repayment of the cost of the project, including all
interest;
(3) the relationship of the project to overall
statewide needs; and
(4) any other factors that the board considers
relevant.
(b) The board may not accept an application for a loan or
grant of financial assistance from the fund for a project
recommended through the state and regional water planning processes
under Sections 16.051 and 16.053 if the applicant has failed to
satisfactorily complete a request by the executive administrator or
a regional planning group for information relevant to the project,
including a water infrastructure financing survey under Section
16.053(q).
SECTION 2.03. Section 16.131, Water Code, is amended to
read as follows:
Sec. 16.131. AUTHORIZED PROJECTS. (a) The board may use
the state participation account of the development fund to
encourage optimum regional development of projects including the
design, acquisition, lease, construction, reconstruction,
development, or enlargement in whole or part of:
(1) reservoirs and storm water retention basins for
water supply, flood protection, and groundwater recharge;
(2) facilities for the transmission and treatment of
water; and
(3) treatment works as defined by Section 17.001 [of
this code].
(b) The board may not use the state participation account of
the development fund to finance a project recommended through the
state and regional water planning processes under Sections 16.051
and 16.053 if the applicant has failed to satisfactorily complete a
request by the executive administrator or a regional planning group
for information relevant to the project, including a water
infrastructure financing survey under Section 16.053(q).
ARTICLE 3. COMPOSITION, DUTIES, RECOMMENDATIONS, AND EXPENSES OF
CERTAIN ENTITIES CREATED TO STUDY AND PROVIDE ADVICE REGARDING
ENVIRONMENTAL FLOWS
SECTION 3.01. Subsections (e) and (j), Section 11.0236,
Water Code, are amended to read as follows:
(e) The lieutenant governor shall designate an appointed
senator [with the most seniority] and the speaker of the house of
representatives shall designate an [the] appointed house member to
[with the most seniority] serve together as co-presiding officers
of the advisory group.
(j) The advisory group may adopt rules, procedures, and
policies as needed to administer this section, to implement its
responsibilities, and to exercise its authority under Sections
11.02361 and 11.02362. The advisory group may submit comments
regarding environmental flows to the board, the commission, or the
Parks and Wildlife Department at any time.
SECTION 3.02. Section 11.02361, Water Code, is amended by
amending Subsections (a), (b), (c), and (f) and adding Subsection
(b-1) to read as follows:
(a) The Texas environmental flows science advisory
committee consists of at least five but not more than nine members
appointed by the board [advisory group].
(b) The board, after consulting with the advisory group, the
commission, and the Parks and Wildlife Department, shall appoint to
the science advisory committee persons who will provide an
objective perspective and diverse technical expertise, including
expertise in hydrology, hydraulics, water resources, aquatic and
terrestrial biology, geomorphology, geology, water quality,
computer modeling, and other technical areas pertinent to the
evaluation of environmental flows.
(b-1) In making an appointment under this section, the board
shall ensure that the appointee to the science advisory committee
is not disqualified from service on the committee under provisions
of state law that apply to such appointees, including provisions
regarding conflicts of interest.
(c) Members of the science advisory committee serve
five-year terms expiring March 1. A vacancy on the science advisory
committee is filled by appointment by the board [co-presiding
officers of the advisory group] for the unexpired term.
(f) To assist the board [advisory group] to assess the
extent to which the recommendations of the science advisory
committee are considered and implemented, the commission and [,]
the Parks and Wildlife Department[, and the board] shall provide
written reports to the board and the advisory group, at intervals
determined by the board [advisory group], that describe:
(1) the actions taken by each agency in response to
each recommendation; and
(2) for each recommendation not implemented, the
reason it was not implemented.
SECTION 3.03. Section 11.02362, Water Code, is amended by
amending Subsections (c), (d), (e), (f), (g), (n), (o), (p), and (q)
and adding Subsections (d-1), (f-1), (i-1), and (q-1) to read as
follows:
(c) For the river basin and bay systems listed in Subsection
(b)(1):
(1) the board, after consulting with the advisory
group, the commission, and the Parks and Wildlife Department, shall
appoint the basin and bay area stakeholders committee not later
than November 1, 2007;
(2) the basin and bay area stakeholders committee
shall establish a basin and bay expert science team not later than
March 1, 2008;
(3) the basin and bay expert science team shall
finalize environmental flow regime recommendations and submit them
to the basin and bay area stakeholders committee, the board, the
advisory group, [and] the commission, and the Parks and Wildlife
Department not later than March 1, 2010 [2009], except that at the
request of the basin and bay area stakeholders committee for good
cause shown, the board [advisory group] may extend the deadline
provided by this subdivision;
(4) the basin and bay area stakeholders committee
shall submit to the board, the advisory group, the commission, and
the Parks and Wildlife Department its comments on and
recommendations regarding the basin and bay expert science team's
recommended environmental flow regime not later than September 1,
2010 [2009]; [and]
(5) if appropriate, the board shall submit to the
commission its comments on the environmental flow analyses and
environmental flow regime recommendations submitted by the basin
and bay expert science team not later than six months after the date
of receipt of the analyses and recommendations as provided by
Subsection (q); and
(6) the commission shall adopt the environmental flow
standards as provided by Section 11.1471 not later than September
1, 2011 [2010].
(d) For the river basin and bay systems listed in Subsection
(b)(2):
(1) the board, after consulting with the [The]
advisory group, the commission, and the Parks and Wildlife
Department, shall appoint the basin and bay area stakeholders
committee [committees for the river basin and bay systems listed in
Subsection (b)(2)] not later than November [September] 1, 2009;
(2) the basin and bay area stakeholders committee
shall establish a basin and bay expert science team not later than
March 1, 2010;
(3) the basin and bay expert science team shall
finalize environmental flow regime recommendations and submit them
to the basin and bay area stakeholders committee, the board, the
advisory group, the commission, and the Parks and Wildlife
Department not later than July 1, 2011, except that at the request
of the basin and bay area stakeholders committee for good cause
shown, the board may extend the deadline provided by this
subdivision;
(4) the basin and bay area stakeholders committee
shall submit to the board, the advisory group, the commission, and
the Parks and Wildlife Department its comments on and
recommendations regarding the basin and bay expert science team's
recommended environmental flow regime not later than February 1,
2012;
(5) if appropriate, the board shall submit to the
commission its comments on the environmental flow analyses and
environmental flow regime recommendations submitted by the basin
and bay expert science team not later than six months after the date
of receipt of the analyses and recommendations as provided by
Subsection (q); and
(6) the commission shall adopt the environmental flow
standards as provided by Section 11.1471 not later than February 1,
2013 [2008, and shall appoint the basin and bay area stakeholders
committees for the river basin and bay systems listed in Subsection
(b)(3) not later than September 1, 2009. The advisory group shall
establish a schedule for the performance of the tasks listed in
Subsections (c)(2) through (5) with regard to the river basin and
bay systems listed in Subsections (b)(2) and (3) that will result in
the adoption of environmental flow standards for that river basin
and bay system by the commission as soon as is reasonably possible.
Each basin and bay area stakeholders committee and basin and bay
expert science team for a river basin and bay system listed in
Subsection (b)(2) or (3) shall make recommendations to the advisory
group with regard to the schedule applicable to that river basin and
bay system. The advisory group shall consider the recommendations
of the basin and bay area stakeholders committee and basin and bay
expert science team as well as coordinate with, and give
appropriate consideration to the recommendations of, the
commission, the Parks and Wildlife Department, and the board in
establishing the schedule].
(d-1) For the river basin and bay systems listed in
Subsection (b)(3):
(1) the board, after consulting with the advisory
group, the commission, and the Parks and Wildlife Department, shall
appoint the basin and bay area stakeholders committee not later
than November 1, 2010;
(2) the basin and bay area stakeholders committee
shall establish a basin and bay expert science team not later than
March 1, 2011;
(3) the basin and bay expert science team shall
finalize environmental flow regime recommendations and submit them
to the basin and bay area stakeholders committee, the board, the
advisory group, the commission, and the Parks and Wildlife
Department not later than July 1, 2012, except that at the request
of the basin and bay area stakeholders committee for good cause
shown, the board may extend the deadline provided by this
subdivision;
(4) the basin and bay area stakeholders committee
shall submit to the board, the advisory group, the commission, and
the Parks and Wildlife Department its comments on and
recommendations regarding the basin and bay expert science team's
recommended environmental flow regime not later than February 1,
2013;
(5) if appropriate, the board shall submit to the
commission its comments on the environmental flow analyses and
environmental flow regime recommendations submitted by the basin
and bay expert science team not later than six months after the date
of receipt of the analyses and recommendations as provided by
Subsection (q); and
(6) the commission shall adopt the environmental flow
standards as provided by Section 11.1471 not later than February 1,
2014.
(e) For a river basin and bay system or a river basin that
does not have an associated bay system in this state not listed in
Subsection (b), the board [advisory group] shall establish a
schedule for the development of environmental flow regime
recommendations and the adoption of environmental flow standards.
The board [advisory group] shall develop the schedule in
consultation with the commission, the Parks and Wildlife
Department, the advisory group [board], and the pertinent basin and
bay area stakeholders committee and basin and bay expert science
team. The board [advisory group] may, on its own initiative or on
request, modify a schedule established under this subsection to be
more responsive to particular circumstances, local desires,
changing conditions, or time-sensitive conflicts. This subsection
does not prohibit, in a river basin and bay system for which the
board [advisory group] has not yet established a schedule for the
development of environmental flow regime recommendations and the
adoption of environmental flow standards, an effort to develop
information on environmental flow needs and ways in which those
needs can be met by a voluntary consensus-building process.
(f) The board, after consulting with the advisory group, the
commission, and the Parks and Wildlife Department, shall appoint a
basin and bay area stakeholders committee for each river basin and
bay system in this state for which a schedule for the development of
environmental flow regime recommendations and the adoption of
environmental flow standards is specified by or established under
Subsection (c), (d), (d-1), or (e). Chapter 2110, Government Code,
does not apply to the size, composition, or duration of a basin and
bay area stakeholders committee. Each committee must consist of at
least 17 members. The membership of each committee must:
(1) reflect a fair and equitable balance of interest
groups concerned with the particular river basin and bay system for
which the committee is established; and
(2) be representative of appropriate stakeholders,
including the following if they have a presence in the particular
river basin and bay system for which the committee is established:
(A) agricultural water users, including
representatives of each of the following sectors:
(i) agricultural irrigation;
(ii) free-range livestock; and
(iii) concentrated animal feeding
operation;
(B) recreational water users, including coastal
recreational anglers and businesses supporting water recreation;
(C) municipalities;
(D) soil and water conservation districts;
(E) industrial water users, including
representatives of each of the following sectors:
(i) refining;
(ii) chemical manufacturing;
(iii) electricity generation; and
(iv) production of paper products or
timber;
(F) commercial fishermen;
(G) public interest groups;
(H) regional water planning groups;
(I) groundwater conservation districts;
(J) river authorities and other conservation and
reclamation districts with jurisdiction over surface water; and
(K) environmental interests.
(f-1) In appointing a member to a basin and bay area
stakeholders committee, the board shall ensure that the appointee
is not disqualified from service on the committee under provisions
of state law that apply to such appointees, including provisions
regarding conflicts of interest.
(g) Members of a basin and bay area stakeholders committee
serve five-year terms expiring March 1. On the expiration of a
member's term, the board shall make an appointment to the committee
in accordance with Subsections (f) and (f-1). If a vacancy occurs
on a committee, the remaining members of the committee by majority
vote shall appoint a member to serve the remainder of the unexpired
term.
(i-1) In appointing a member to a basin and bay expert
science team, the basin and bay area stakeholders committee shall
ensure that the appointee is not disqualified from service on the
team under provisions of state law that apply to such appointees,
including provisions regarding conflicts of interest.
(n) Each basin and bay expert science team shall submit its
environmental flow analyses and environmental flow regime
recommendations to the pertinent basin and bay area stakeholders
committee, the board, the advisory group, [and] the commission, and
the Parks and Wildlife Department in accordance with the applicable
schedule specified by or established under Subsection (c), (d),
(d-1), or (e). The basin and bay area stakeholders committee and
the board [advisory group] may not change the environmental flow
analyses or environmental flow regime recommendations of the basin
and bay expert science team.
(o) Each basin and bay area stakeholders committee shall
review the environmental flow analyses and environmental flow
regime recommendations submitted by the committee's basin and bay
expert science team and shall consider them in conjunction with
other factors, including the present and future needs for water for
other uses related to water supply planning in the pertinent river
basin and bay system. For the Rio Grande, the basin and bay area
stakeholders committee shall also consider the water accounting
requirements for any international water sharing treaty, minutes,
and agreement applicable to the Rio Grande and the effects on
allocation of water by the Rio Grande watermaster in the middle and
lower Rio Grande. The Rio Grande basin and bay expert science team
may not recommend any environmental flow regime that would result
in a violation of a treaty or court decision. The basin and bay area
stakeholders committee shall develop recommendations regarding
environmental flow standards and strategies to meet the
environmental flow standards and submit those recommendations to
the commission, the board, [and to] the advisory group, and the
Parks and Wildlife Department in accordance with the applicable
schedule specified by or established under Subsection (c), (d),
(d-1), or (e). In developing its recommendations, the basin and bay
area stakeholders committee shall operate on a consensus basis to
the maximum extent possible.
(p) In recognition of the importance of adaptive
management, after submitting its recommendations regarding
environmental flow standards and strategies to meet the
environmental flow standards to the commission, each basin and bay
area stakeholders committee, with the assistance of the pertinent
basin and bay expert science team, shall prepare and submit for
approval by the board [advisory group] a work plan. The work plan
must:
(1) establish a periodic review of the basin and bay
environmental flow analyses and environmental flow regime
recommendations, environmental flow standards, and strategies, to
occur at least once every 10 years;
(2) prescribe specific monitoring, studies, and
activities; and
(3) establish a schedule for continuing the validation
or refinement of the basin and bay environmental flow analyses and
environmental flow regime recommendations, the environmental flow
standards adopted by the commission, and the strategies to achieve
those standards.
(q) In accordance with the applicable schedule specified by
or established under Subsection (c), (d), (d-1), or (e), the board
[advisory group], with input from the science advisory committee,
shall review the environmental flow analyses and environmental flow
regime recommendations submitted by each basin and bay expert
science team. If appropriate, the board [advisory group] shall
submit comments on the analyses and recommendations to the
commission for use by the commission in adopting rules under
Section 11.1471. Comments must be submitted not later than six
months after the date of receipt of the analyses and
recommendations.
(q-1) In performing its duties and exercising its authority
related to environmental flows under this section or other law, the
board shall consult with the advisory group.
SECTION 3.04. Subsection (b), Section 11.1471, Water Code,
is amended to read as follows:
(b) In adopting environmental flow standards for a river
basin and bay system under Subsection (a)(1), the commission shall
consider:
(1) the definition of the geographical extent of the
river basin and bay system adopted by the advisory group under
Section 11.02362(a) and the definition and designation of the river
basin by the board under Section 16.051(c);
(2) the schedule established by the board [advisory
group] under Section 11.02362(d) or (e) for the adoption of
environmental flow standards for the river basin and bay system, if
applicable;
(3) the environmental flow analyses and the
recommended environmental flow regime developed by the applicable
basin and bay expert science team under Section 11.02362(m);
(4) the recommendations developed by the applicable
basin and bay area stakeholders committee under Section 11.02362(o)
regarding environmental flow standards and strategies to meet the
flow standards;
(5) any comments submitted by the board [advisory
group] to the commission under Section 11.02362(q);
(6) the specific characteristics of the river basin
and bay system;
(7) economic factors;
(8) the human and other competing water needs in the
river basin and bay system;
(9) all reasonably available scientific information,
including any scientific information provided by the science
advisory committee; and
(10) any other appropriate information.
SECTION 3.05. Section 15.4063, Water Code, is amended to
read as follows:
Sec. 15.4063. ENVIRONMENTAL FLOWS FUNDING. The board may
authorize the use of money in the research and planning fund:
(1) to compensate the members of the Texas
environmental flows science advisory committee established under
Section 11.02361 for attendance and participation at meetings of
the committee and for transportation, meals, lodging, or other
travel expenses other than out-of-state travel expenses associated
with attendance at those meetings as provided by the General
Appropriations Act;
(2) for contracts with cooperating state and federal
agencies and universities and with private entities as necessary to
provide technical assistance to enable the Texas environmental
flows science advisory committee and the basin and bay expert
science teams established under Section 11.02362 to perform their
statutory duties;
(3) to compensate the members of the basin and bay
expert science teams established under Section 11.02362 for
attendance and participation at meetings of the basin and bay
expert science teams and for transportation, meals, lodging, or
other travel expenses other than out-of-state travel expenses
associated with attendance at those meetings as provided by the
General Appropriations Act; and
(4) for contracts with political subdivisions
designated as representatives of basin and bay area stakeholders
committees established under Section 11.02362 to fund all or part
of the administrative expenses incurred in conducting meetings of
the basin and bay area stakeholders committees or the pertinent
basin and bay expert science teams.
SECTION 3.06. The changes in law made by this article to
Sections 11.02361 and 11.02362, Water Code, in the appointment and
qualifications of members of the Texas environmental flows science
advisory committee, a basin and bay area stakeholders committee,
and a basin and bay expert science team do not affect the
entitlement of a member serving on a committee or team immediately
before the effective date of this article to continue to serve and
function as a member of the committee or team for the remainder of
the member's term. Those changes in law apply only to a member
appointed on or after the effective date of this article.
SECTION 3.07. This article takes effect September 1, 2009.
ARTICLE 4. EFFECTIVE DATE
SECTION 4.01. Except as otherwise provided by this Act:
(1) 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; and
(2) if this Act does not receive the vote necessary for
immediate effect, this Act takes effect September 1, 2009.
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