Texas 2009 - 81st Regular

Texas House Bill HB4656 Compare Versions

Only one version of the bill is available at this time.

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1	1	2009S0619-2 03/12/09
2	2	By: Smithee H.B. No. 4656
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the management, operation, and review of groundwater
8	8	conservation districts.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Subchapter D, Chapter 6, Water Code, is amended
11	11	by adding Section 6.113 to read as follows:
12	12	Sec. 6.113. DUTY TO ESTABLISH TRAINING PROGRAM. The board
13	13	shall establish a training program for members of boards of
14	14	directors and general managers of groundwater conservation
15	15	districts that includes education in:
16	16	(1) the provisions of Chapter 36;
17	17	(2) the principles of hydrogeology;
18	18	(3) relevant permitting procedures;
19	19	(4) effective conservation practices;
20	20	(5) conflicts of interest;
21	21	(6) methods of conducting public hearings;
22	22	(7) the responsibility of a director to provide
23	23	financial oversight of a district; and
24	24	(8) board management and accountability.
25	25	SECTION 2. Subchapter C, Chapter 36, Water Code, is amended
26	26	by adding Section 36.069 to read as follows:
27	27	Sec. 36.069. REQUIRED TRAINING FOR DIRECTORS AND GENERAL
28	28	MANAGER. (a) Each director and general manager of a district
29	29	shall complete at least one hour of training in a program
30	30	established by the Texas Water Development Board under Section
31	31	6.113 during each one-year period in which the person serves as a
32	32	director or general manager.
33	33	(b) The Texas Water Development Board or other entity
34	34	providing the training shall provide a certificate of course
35	35	completion to persons who complete the training required by this
36	36	section. A district shall maintain and make available for public
37	37	inspection the record of its directors' and general manager's
38	38	completion of the training.
39	39	(c) The failure of one or more of a district's directors or
40	40	its general manager to complete the training required by this
41	41	section does not affect the validity of an action taken by the
42	42	district.
43	43	SECTION 3. The heading to Section 36.1071, Water Code, is
44	44	amended to read as follows:
45	45	Sec. 36.1071. DISTRICT MANAGEMENT PLAN.
46	46	SECTION 4. Section 36.1071, Water Code, is amended by
47	47	amending Subsections (a), (b), (c), (f), and (g) and adding
48	48	Subsection (i) to read as follows:
49	49	(a) Following notice and hearing, the district shall, in
50	50	coordination with surface water management entities on a regional
51	51	basis, develop a [comprehensive] management plan that [which]
52	52	addresses the following management goals, as applicable:
53	53	(1) providing the most efficient use of groundwater;
54	54	(2) controlling and preventing waste of groundwater;
55	55	(3) controlling and preventing subsidence;
56	56	(4) addressing conjunctive surface water management
57	57	issues;
58	58	(5) addressing natural resource issues;
59	59	(6) addressing drought conditions;
60	60	(7) addressing conservation, recharge enhancement,
61	61	rainwater harvesting, precipitation enhancement, or brush control,
62	62	where appropriate and cost-effective; and
63	63	(8) addressing in a quantitative manner the desired
64	64	future conditions of the groundwater resources.
65	65	(b) The [A] district management plan, or any amendments to
66	66	the [a] district management plan, shall be developed [by the
67	67	district] using the district's best available data and forwarded to
68	68	the regional water planning group for use in their planning
69	69	process.
70	70	(c) The commission and the Texas Water Development Board
71	71	shall provide technical assistance to a district in the development
72	72	of the district management plan required under Subsection (a) which
73	73	may include, if requested by the district, a preliminary review and
74	74	comment on the plan prior to final approval by the board. If such
75	75	review and comment by the commission is requested, the commission
76	76	shall provide comment not later than 30 days from the date the
77	77	request is received.
78	78	(f) The district shall adopt rules necessary to implement
79	79	the district management plan. Prior to the development of the
80	80	district's first management plan and [its] approval of that plan
81	81	under Section 36.1072, the district may not adopt rules other than
82	82	rules pertaining to the registration and interim permitting of new
83	83	and existing wells and rules governing spacing and procedure before
84	84	the district's board; however, the district may not adopt any rules
85	85	limiting the production of wells, except rules requiring that
86	86	groundwater produced from a well be put to a nonwasteful,
87	87	beneficial use. The district may accept applications for permits
88	88	under Section 36.113, provided the district does not act on any such
89	89	application until the district's management plan is approved as
90	90	provided in Section 36.1072.
91	91	(g) The district shall adopt amendments to the district
92	92	management plan as necessary. Amendments to the district
93	93	management plan shall be adopted after notice and hearing and shall
94	94	otherwise comply with the requirements of this section.
95	95	(i) After the first district management plan is adopted, the
96	96	district may not amend rules, repeal rules, or adopt new rules
97	97	unless its management plan has been approved and is in effect as
98	98	provided in Section 36.1072. The commission may take action under
99	99	Section 36.303 if a district amends, repeals, or adopts a rule
100	100	without an approved district management plan.
101	101	SECTION 5. Section 36.1072, Water Code, is amended to read
102	102	as follows:
103	103	Sec. 36.1072. TEXAS WATER DEVELOPMENT BOARD REVIEW AND
104	104	APPROVAL OF DISTRICT MANAGEMENT PLAN. (a) In this section,
105	105	"development board" means the Texas Water Development Board. A
106	106	district shall, not later than three years after the creation of the
107	107	district or, if the district required confirmation, after the
108	108	election confirming the district's creation, submit the district
109	109	management plan required under Section 36.1071 to the executive
110	110	administrator for review and approval.
111	111	(b) Within 60 days of receipt of a district management plan
112	112	adopted under Section 36.1071, readopted under Subsection [(e) or]
113	113	(g) or (i) of this section, or amended under Section 36.1073, the
114	114	executive administrator shall approve the district [a] management
115	115	plan if the plan is administratively complete. A management plan is
116	116	administratively complete when it contains the information
117	117	required to be submitted under Section 36.1071(a) and (e). The
118	118	executive administrator may waive [determine whether conditions
119	119	justify waiver of] the requirements under Section 36.1071(e)(4) if
120	120	the executive administrator determines that conditions justify the
121	121	waiver.
122	122	(c) Once the executive administrator has granted
123	123	administrative approval to [approved] a management plan:
124	124	(1) the executive administrator may not revoke but may
125	125	require revisions to the approved groundwater conservation
126	126	district management plan as provided by Subsection (g); and
127	127	(2) the executive administrator may request
128	128	additional information from the district if the information is
129	129	necessary to clarify, modify, or supplement previously submitted
130	130	material[, but a request for additional information does not render
131	131	the management plan unapproved].
132	132	(d) Not later than the 60th day after the date of the
133	133	administrative approval of a district management plan under
134	134	Subsection (c), the executive administrator shall perform a
135	135	substantive review of the plan and:
136	136	(1) request additional information from the district;
137	137	(2) request that the district make substantive changes
138	138	to the plan; or
139	139	(3) recommend approval of the plan.
140	140	(e) If the executive administrator recommends approval of a
141	141	district management plan under Subsection (d), the development
142	142	board shall review the plan, conduct a hearing on the plan, and
143	143	either approve or reject the plan.
144	144	(f) A district management plan takes effect on approval by
145	145	the development board [executive administrator or, if appealed, on
146	146	approval by the Texas Water Development Board].
147	147	(g) [(e)] The district may review the district management
148	148	plan annually and shall [must] review and readopt the plan with or
149	149	without revisions at least once every five years. The district
150	150	shall provide the readopted plan to the executive administrator not
151	151	later than the 60th day after the date on which the plan was
152	152	readopted. Approval of the preceding district management plan
153	153	remains in effect until:
154	154	(1) the district fails to timely readopt a district
155	155	management plan;
156	156	(2) the district fails to timely submit the district's
157	157	readopted management plan to the executive administrator for
158	158	administrative approval under Subsection (b); or
159	159	(3) the development board [executive administrator]
160	160	determines under Subsection (e) that the readopted district
161	161	management plan does not meet the requirements for approval, and
162	162	the district has exhausted all appeals [to the Texas Water
163	163	Development Board or appropriate court].
164	164	(h) [(f)] If the development board [executive
165	165	administrator] does not approve the district management plan, the
166	166	development board [executive administrator] shall provide to the
167	167	district, in writing, the reasons the development board does not
168	168	approve [for the action]. Not later than the 180th day after the
169	169	date a district receives notice that the development board has not
170	170	approved the district [its] management plan [has not been
171	171	approved], the district may submit a revised management plan for
172	172	review and approval. [The executive administrator's decision may
173	173	be appealed to the Texas Water Development Board.] If the
174	174	development board [Texas Water Development Board] decides not to
175	175	approve the revised district management plan [on appeal], the
176	176	district may request that the conflict be mediated. The district
177	177	and the development board may seek the assistance of the Center for
178	178	Public Policy Dispute Resolution at The University of Texas School
179	179	of Law or an alternative dispute resolution system established
180	180	under Chapter 152, Civil Practice and Remedies Code, in obtaining a
181	181	qualified impartial third party to mediate the conflict. The cost
182	182	of the mediation services must be specified in the agreement
183	183	between the parties and the Center for Public Policy Dispute
184	184	Resolution or the alternative dispute resolution system. If the
185	185	parties do not resolve the conflict through mediation, the decision
186	186	of the development board [Texas Water Development Board] not to
187	187	approve the district management plan may be appealed to a district
188	188	court in Travis County. Costs for the appeal shall be set by the
189	189	court hearing the appeal. An appeal under this subsection is by
190	190	trial de novo. The commission shall not take enforcement action
191	191	against a district under Subchapter I until the later of the
192	192	expiration of the 180-day period, the date the development board
193	193	[Texas Water Development Board] has taken final action withholding
194	194	approval of a revised district management plan, the date the
195	195	mediation is completed, or the date a final judgment upholding the
196	196	development board's decision is entered by a district court. An
197	197	enforcement action may not be taken against a district by the
198	198	commission or the state auditor under Subchapter I because the
199	199	district's management plan and the approved regional water plan are
200	200	in conflict while the parties are attempting to resolve the
201	201	conflict before the development board, in mediation, or in court.
202	202	Rules of the district continue in full force and effect until all
203	203	appeals under this subsection have been exhausted and the final
204	204	judgment is adverse to the district.
205	205	(i) [(g) In this subsection, "development board" means the
206	206	Texas Water Development Board.] A person with a legally defined
207	207	interest in groundwater in a district, or the regional water
208	208	planning group, may file a petition with the development board
209	209	stating that a conflict requiring resolution may exist between the
210	210	district's approved management plan developed under Section
211	211	36.1071 and the state water plan. If a conflict exists, the
212	212	development board shall provide technical assistance to and
213	213	facilitate coordination between the involved person or regional
214	214	water planning group and the district to resolve the conflict. Not
215	215	later than the 45th day after the date the person or the regional
216	216	water planning group files a petition with the development board,
217	217	if the conflict has not been resolved, the district and the involved
218	218	person or regional planning group may mediate the conflict. The
219	219	district and the involved person or regional planning group may
220	220	seek the assistance of the Center for Public Policy Dispute
221	221	Resolution at The University of Texas School of Law or an
222	222	alternative dispute resolution system established under Chapter
223	223	152, Civil Practice and Remedies Code, in obtaining a qualified
224	224	impartial third party to mediate the conflict. The cost of the
225	225	mediation services must be specified in the agreement between the
226	226	parties and the Center for Public Policy Dispute Resolution or the
227	227	alternative dispute resolution system. If the district and the
228	228	involved person or regional planning group cannot resolve the
229	229	conflict through mediation, the development board shall resolve the
230	230	conflict not later than the 60th day after the date the mediation is
231	231	completed. The development board action under this provision may
232	232	be consolidated, at the option of the board, with related action
233	233	under Section 16.053(p). If the development board determines that
234	234	resolution of the conflict requires a revision of the approved
235	235	groundwater conservation district management plan, the development
236	236	board shall provide information to the district. The district
237	237	shall prepare any revisions to the plan based on the information
238	238	provided by the development board and shall hold, after notice, at
239	239	least one public hearing at some central location within the
240	240	district. The district shall consider all public and development
241	241	board comments, prepare, revise, and adopt its management plan, and
242	242	submit the revised management plan to the development board for
243	243	approval. On the request of the district or the regional water
244	244	planning group, the development board shall include discussion of
245	245	the conflict and its resolution in the state water plan that the
246	246	development board provides to the governor, the lieutenant
247	247	governor, and the speaker of the house of representatives under
248	248	Section 16.051(e). If the groundwater conservation district
249	249	disagrees with the decision of the development board under this
250	250	subsection, the district may appeal the decision to a district
251	251	court in Travis County. Costs for the appeal shall be set by the
252	252	court hearing the appeal. An appeal under this subsection is by
253	253	trial de novo.
254	254	SECTION 6. Section 36.1073, Water Code, is amended to read
255	255	as follows:
256	256	Sec. 36.1073. AMENDMENT TO DISTRICT MANAGEMENT PLAN. Any
257	257	amendment to a district [the] management plan shall be submitted to
258	258	the executive administrator within 60 days following adoption of
259	259	the amendment by the district's board. The executive
260	260	administrator and the Texas Water Development Board shall review
261	261	and approve any amendment that [which] substantially affects the
262	262	district management plan in accordance with the procedures
263	263	established under Section 36.1072.
264	264	SECTION 7. Subsections (b), (c), and (n), Section 36.108,
265	265	Water Code, are amended to read as follows:
266	266	(b) If two or more districts are located within the
267	267	boundaries of the same management area, each district shall
268	268	[prepare a comprehensive management plan as required by Section
269	269	36.1071 covering that district's respective territory. On
270	270	completion and approval of the plan as required by Section 36.1072,
271	271	each district shall] forward a copy of the district's [new or
272	272	revised] management plan to the other districts in the management
273	273	area. The boards of the districts shall consider the plans
274	274	individually and shall compare them to other district management
275	275	plans then in force in the management area.
276	276	(c) The presiding officer, or the presiding officer's
277	277	designee, of each district located in whole or in part in the
278	278	management area shall meet at least annually to conduct joint
279	279	planning with the other districts in the management area and to
280	280	review the district management plans and accomplishments for the
281	281	management area. In reviewing the district management plans, the
282	282	districts shall consider:
283	283	(1) the goals of each district management plan and its
284	284	impact on planning throughout the management area;
285	285	(2) the effectiveness of the measures established by
286	286	each district management plan for conserving and protecting
287	287	groundwater and preventing waste, and the effectiveness of these
288	288	measures in the management area generally;
289	289	(3) any other matters that the boards consider
290	290	relevant to the protection and conservation of groundwater and the
291	291	prevention of waste in the management area; and
292	292	(4) the degree to which each district management plan
293	293	achieves the desired future conditions established during the joint
294	294	planning process.
295	295	(n) The districts shall prepare [a] revised conditions
296	296	[plan] in accordance with development board recommendations and
297	297	hold, after notice, at least one public hearing at a central
298	298	location in the groundwater management area. After consideration
299	299	of all public and development board comments, the districts shall
300	300	revise the conditions and submit the conditions to the development
301	301	board for review.
302	302	SECTION 8. Section 36.1132, Water Code, is amended to read
303	303	as follows:
304	304	Sec. 36.1132. PERMITS BASED ON MANAGED AVAILABLE
305	305	GROUNDWATER. A district may[, to the extent possible, shall] issue
306	306	permits up to the point that the total volume of groundwater
307	307	permitted equals the managed available groundwater, if
308	308	administratively complete permit applications are submitted to the
309	309	district.
310	310	SECTION 9. Subsection (b), Section 36.116, Water Code, is
311	311	amended to read as follows:
312	312	(b) In promulgating any rules limiting groundwater
313	313	production, the district may preserve historic or existing use
314	314	before the effective date of the rules to the maximum extent
315	315	practicable consistent with the district's [comprehensive]
316	316	management plan under Section 36.1071 and as provided by Section
317	317	36.113.
318	318	SECTION 10. Section 36.117, Water Code, is amended by
319	319	adding Subsection (e-1) to read as follows:
320	320	(e-1) An operator of a water well exempt under Subsection
321	321	(b)(2) or (3) shall annually report to the district for each exempt
322	322	well the total amount of groundwater withdrawn during the year.
323	323	SECTION 11. Section 36.207, Water Code, is amended to read
324	324	as follows:
325	325	Sec. 36.207. USE OF PERMIT FEES AUTHORIZED BY SPECIAL LAW.
326	326	A district may use funds obtained from permit fees collected
327	327	pursuant to the special law governing the district for any purpose
328	328	consistent with the district's certified [water] management plan
329	329	including, without limitation, making grants, loans, or
330	330	contractual payments to achieve, facilitate, or expedite
331	331	reductions in groundwater pumping or the development or
332	332	distribution of alternative water supplies.
333	333	SECTION 12. Section 36.301, Water Code, is amended to read
334	334	as follows:
335	335	Sec. 36.301. FAILURE TO SUBMIT A DISTRICT MANAGEMENT PLAN.
336	336	If a district [board] fails to submit a management plan or to
337	337	receive certification of its management plan under Section 36.1072,
338	338	or fails to submit or receive certification of an amendment to the
339	339	district management plan under Section 36.1073, the commission
340	340	shall take appropriate action under Section 36.303.
341	341	SECTION 13. Section 36.3011, Water Code, is amended to read
342	342	as follows:
343	343	Sec. 36.3011. FAILURE OF DISTRICT TO CONDUCT JOINT
344	344	PLANNING. Not later than the 45th day after receiving the review
345	345	panel's report under Section 36.108, the executive director or the
346	346	commission shall take action to implement any or all of the panel's
347	347	recommendations. The commission may take any action against a
348	348	district it considers necessary in accordance with Section 36.303
349	349	if the commission finds that:
350	350	(1) a district has failed to submit its management
351	351	plan to the executive administrator;
352	352	(2) a district has failed to adopt rules;
353	353	(3) the rules adopted by the district are not designed
354	354	to achieve the desired future condition of the groundwater
355	355	resources in the groundwater management area; or
356	356	(4) the groundwater in the management area is not
357	357	adequately protected by the rules adopted by the district, or the
358	358	groundwater in the management area is not adequately protected
359	359	because of the district's failure to enforce substantial compliance
360	360	with its rules.
361	361	SECTION 14. Subsections (c), (d), and (f), Section 36.302,
362	362	Water Code, are amended to read as follows:
363	363	(c) In a review performed under Subsection (a), the state
364	364	auditor shall make a determination, based on an analysis of a
365	365	district's activities, of whether the [a] district is actively
366	366	engaged in achieving the objectives of the district's management
367	367	plan, including a desired future condition established under
368	368	Section 36.108(d) that is applicable to all or part of the district
369	369	[based on an analysis of the district's activities].
370	370	(d) The state auditor shall [may] perform the review under
371	371	Subsection (a) following the first anniversary of the initial
372	372	approval of the plan under Section 36.1072 and at least as often as
373	373	once every five [seven] years after that date, subject to a risk
374	374	assessment and to the legislative audit committee's approval of
375	375	including the review in the audit plan under Section 321.013,
376	376	Government Code.
377	377	(f) The [If it is determined under Subsection (c) that the
378	378	district is not operational, the] commission shall take appropriate
379	379	action under Section 36.303 if it is determined under Subsection
380	380	(c) that a district is not actively engaged in achieving the
381	381	objectives of the district's management plan, including a desired
382	382	future condition established under Section 36.108(d) that is
383	383	applicable to all or part of the district.
384	384	SECTION 15. Subsection (a), Section 36.303, Water Code, is
385	385	amended to read as follows:
386	386	(a) If Section 36.1071(i), 36.108, 36.301, or 36.302(f)
387	387	applies, the commission, after notice and hearing in accordance
388	388	with Chapter 2001, Government Code, shall take action the
389	389	commission considers appropriate, including:
390	390	(1) issuing an order requiring the district to take
391	391	certain actions or to refrain from taking certain actions;
392	392	(2) dissolving the board in accordance with Sections
393	393	36.305 and 36.307 and calling an election for the purpose of
394	394	electing a new board;
395	395	(3) requesting the attorney general to bring suit for
396	396	the appointment of a receiver to collect the assets and carry on the
397	397	business of the groundwater conservation district; or
398	398	(4) dissolving the district in accordance with
399	399	Sections 36.304, 36.305, and 36.308.
400	400	SECTION 16. (a) Section 36.069, Water Code, as added by
401	401	this Act, applies to a member of the board of directors of a
402	402	groundwater conservation district who qualifies for office and to a
403	403	general manager of a groundwater conservation district who begins
404	404	employment with the district before, on, or after the effective
405	405	date of this Act. A person who is serving as a member of the board
406	406	of directors or as a general manager of a groundwater conversation
407	407	district on the effective date of this Act must complete the first
408	408	hour of training as required by Section 36.069, Water Code, as added
409	409	by this Act, not later than September 1, 2010.
410	410	(b) The changes in law made by this Act apply only to a
411	411	management plan or an amendment to a management plan that is
412	412	submitted by a groundwater conservation district to the executive
413	413	administrator of the Texas Water Development Board for review and
414	414	approval on or after the effective date of this Act. A management
415	415	plan or an amendment to a management plan that is submitted to the
416	416	executive administrator of the Texas Water Development Board before
417	417	the effective date of this Act is governed by the law in effect when
418	418	the management plan or amendment was submitted, and the former law
419	419	is continued in effect for that purpose.
420	420	(c) As soon as practicable after the effective date of this
421	421	Act, the Texas Water Development Board shall adopt rules to
422	422	implement Section 36.1072, Water Code, as amended by this Act.
423	423	(d) The first report under Subsection (e-1), Section
424	424	36.117, Water Code, as added by this Act, is due not later than
425	425	September 1, 2010.
426	426	(e) The change in law made by this Act to Section 36.302,
427	427	Water Code, applies only to a review of a groundwater conservation
428	428	district performed on or after the effective date of this Act. A
429	429	review of a groundwater conservation district performed before the
430	430	effective date of this Act is governed by the law in effect on the
431	431	date the review was performed, and the former law is continued in
432	432	effect for that purpose.
433	433	SECTION 17. This Act takes effect immediately if it
434	434	receives a vote of two-thirds of all the members elected to each
435	435	house, as provided by Section 39, Article III, Texas Constitution.
436	436	If this Act does not receive the vote necessary for immediate
437	437	effect, this Act takes effect September 1, 2009.