81R38514 TRH-F
By: Callegari H.R. No. 2969
R E S O L U T I O N
BE IT RESOLVED by the House of Representatives of the State of
Texas, 81st Legislature, Regular Session, 2009, That House Rule 13,
Section 9(a), be suspended in part as provided by House Rule 13,
Section 9(f), to enable the conference committee appointed to
resolve the differences on House Bill 3526 (the adoption of rules by
the Texas Water Development Board regarding supplemental funding
resulting from federal economic recovery legislation) to consider
and take action on the following matter:
House Rule 13, Section 9(a)(4), is suspended to permit the
committee to add text on matters which are not included in either
the house or senate version of the bill by adding the following
ARTICLES to the bill:
ARTICLE 8. RAINWATER HARVESTING AND WATER CONSERVATION
INITIATIVES
SECTION 8.01. Subchapter A, Chapter 59, Finance Code, is
amended by adding Section 59.012 to read as follows:
Sec. 59.012. LOANS FOR DEVELOPMENTS THAT USE HARVESTED
RAINWATER. Financial institutions may consider making loans for
developments that will use harvested rainwater as the sole source
of water supply.
SECTION 8.02. Section 447.004, Government Code, is amended
by amending Subsection (c-1) and adding Subsection (c-3) to read as
follows:
(c-1) The procedural standards adopted under this section
must require that:
(1) on-site reclaimed system technologies, including
rainwater harvesting, condensate collection, or cooling tower blow
down, or a combination of those system technologies, for nonpotable
indoor use and landscape watering be incorporated into the design
and construction of:
(A) [(1)] each new state building with a roof
measuring at least 10,000 square feet; and
(B) [(2)] any other new state building for which
the incorporation of such systems is feasible;
(2) rainwater harvesting system technology for
nonpotable indoor use and landscape watering be incorporated into
the design and construction of each new state building with a roof
measuring at least 10,000 square feet that is located in an area of
this state in which the average annual rainfall is at least 20
inches; and
(3) at least 25 percent of the roof area of a building
described by Subdivision (2) be used for rainwater collection.
(c-3) The procedural standards required by Subsections
(c-1)(2) and (3) apply to a building described by Subsection
(c-1)(2) unless Subsection (c-2) applies or the state agency or
institution of higher education constructing the building provides
the state energy conservation office evidence that the amount of
rainwater that will be harvested from one or more existing
buildings at the same location is equivalent to the amount of
rainwater that could have been harvested from the new building had
rainwater harvesting system technology been incorporated into its
design and construction.
SECTION 8.03. Section 341.042(b), Health and Safety Code,
is amended to read as follows:
(b) The commission by rule shall provide that if a structure
is connected to a public water supply system and has a rainwater
harvesting system, [for indoor use:
[(1)] the structure must have appropriate
cross-connection safeguards[; and
[(2) the rainwater harvesting system may be used only
for nonpotable indoor purposes].
SECTION 8.04. Chapter 580, Local Government Code, is
amended by adding Section 580.004 to read as follows:
Sec. 580.004. RAINWATER HARVESTING. (a) Each municipality
and county is encouraged to promote rainwater harvesting at
residential, commercial, and industrial facilities through
incentives such as the provision at a discount of rain barrels or
rebates for water storage facilities.
(b) Each municipality or county that has adopted impervious
cover or density restrictions shall consider the use in a
development of harvested rainwater as an on-site water supply
source in determining whether to grant the development a credit
against or exemption from the restrictions.
(c) The Texas Water Development Board shall ensure that
training on rainwater harvesting is available for the members of
the permitting staffs of municipalities and counties at least
quarterly. Members of the permitting staffs of counties and
municipalities are encouraged to receive the training. The Texas
Water Development Board may provide the training by seminars or by
videotape or functionally similar and widely available media
without cost.
(d) A municipality or county may not deny a building permit
solely because the facility will implement rainwater harvesting.
(e) Each school district is encouraged to implement
rainwater harvesting at facilities of the district.
SECTION 8.05. Section 202.007(d), Property Code, is amended
to read as follows:
(d) This section does not:
(1) restrict a property owners' association from
regulating the requirements, including size, type, shielding, and
materials, for or the location of a composting device[, rain
barrel, rain harvesting device, or any other appurtenance] if the
restriction does not prohibit the economic installation of the
device [or appurtenance] on the property owner's property where
there is reasonably sufficient area to install the device [or
appurtenance];
(2) require a property owners' association to permit a
device [or appurtenance] described by Subdivision (1) to be
installed in or on property:
(A) owned by the property owners' association;
(B) owned in common by the members of the
property owners' association; or
(C) in an area other than the fenced yard or patio
of a property owner;
(3) prohibit a property owners' association from
regulating the installation of efficient irrigation systems,
including establishing visibility limitations for aesthetic
purposes;
(4) prohibit a property owners' association from
regulating the installation or use of gravel, rocks, or cacti; [or]
(5) restrict a property owners' association from
regulating yard and landscape maintenance if the restrictions or
requirements do not restrict or prohibit turf or landscaping design
that promotes water conservation; or
(6) require a property owners' association to permit a
rain barrel or rainwater harvesting system to be installed in or on
property if:
(A) the property is:
(i) owned by the property owners'
association;
(ii) owned in common by the members of the
property owners' association; or
(iii) located between the front of the
property owner's home and the adjacent street; or
(B) the barrel or system:
(i) is of a color other than:
(a) the original manufacturer's
color; or
(b) a color consistent with the color
scheme of the property owner's home; or
(ii) displays any language or other content
that is not typically displayed by such a barrel or system as it is
manufactured.
SECTION 8.06. Section 1.003, Water Code, is amended to read
as follows:
Sec. 1.003. PUBLIC POLICY. It is the public policy of the
state to provide for the conservation and development of the
state's natural resources, including:
(1) the control, storage, preservation, and
distribution of the state's storm and floodwaters and the waters of
its rivers and streams for irrigation, power, and other useful
purposes;
(2) the reclamation and irrigation of the state's
arid, semiarid, and other land needing irrigation;
(3) the reclamation and drainage of the state's
overflowed land and other land needing drainage;
(4) the conservation and development of its forest,
water, and hydroelectric power;
(5) the navigation of the state's inland and coastal
waters;
(6) the maintenance of a proper ecological environment
of the bays and estuaries of Texas and the health of related living
marine resources; [and]
(7) the voluntary stewardship of public and private
lands to benefit waters of the state; and
(8) the promotion of rainwater harvesting for potable
and nonpotable purposes at public and private facilities in this
state, including residential, commercial, and industrial
buildings.
SECTION 8.07. Section 16.0121, Water Code, is amended by
amending Subsection (b) and adding Subsection (g) to read as
follows:
(b) Except as provided by Subsection (g) [Every five years],
a retail public utility providing potable water shall perform and
file with the board, every five years, a water audit computing the
utility's most recent annual system water loss.
(g) A retail public utility shall perform and file with the
board a water loss audit annually if the utility is receiving any
financial assistance from the board.
SECTION 8.08. If the 81st Legislature makes an
appropriation to the Texas Water Development Board to provide
matching grants to political subdivisions of this state for
rainwater harvesting demonstration projects, the board shall, not
later than December 1, 2010, provide a report to the lieutenant
governor and the speaker of the house of representatives regarding
the projects for which the board has provided grants, including:
(1) a description of each project; and
(2) the amount of the grant provided for each project.
SECTION 8.09. This article does not make an appropriation.
A provision of this article that creates a new governmental
program, creates a new entitlement, or imposes a new duty on a
governmental entity is not mandatory during a fiscal period for
which the legislature has not made a specific appropriation to
implement the provision.
SECTION 8.10. This article takes effect September 1, 2009.
ARTICLE 9. CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY FOR
WATER OR SEWER SERVICES
SECTION 9.01. Section 13.245, Water Code, is amended by
amending Subsection (b) and adding Subsections (c-1) and (c-2) to
read as follows:
(b) Except as provided by Subsections [Subsection] (c),
(c-1), and (c-2), the commission may not grant to a retail public
utility a certificate of public convenience and necessity for a
service area within the boundaries or extraterritorial
jurisdiction of a municipality without the consent of the
municipality. The municipality may not unreasonably withhold the
consent. As a condition of the consent, a municipality may require
that all water and sewer facilities be designed and constructed in
accordance with the municipality's standards for facilities.
(c-1) The commission may grant a certificate to a retail
public utility for a service area within the boundaries or
extraterritorial jurisdiction of a municipality before the 180th
day after the municipality receives the retail public utility's
application if:
(1) the municipality has not entered into a binding
commitment to serve the area that is the subject of the application
on or before the 180th day after the date a formal request for
service is made on the same or substantially similar terms as
provided by the retail public utility's application, including a
capital improvements plan as required by Section 13.244(d)(3); or
(2) the municipality has refused to provide the
service applied for as evidenced by a formal vote of the
municipality's governing body or by an official notification from
the municipality.
(c-2) The commission must include as a condition of a
certificate of convenience and necessity granted under Subsection
(c-1) that the authorized water and sewer facilities be designed
and constructed in accordance with the municipality's standards for
water and sewer facilities.
SECTION 9.02. Sections 13.2451(a) and (b), Water Code, are
amended to read as follows:
(a) Except as provided by Subsection (b), if [If] a
municipality extends its extraterritorial jurisdiction to include
an area certificated to a retail public utility, the retail public
utility may continue and extend service in its area of public
convenience and necessity under the rights granted by its
certificate and this chapter.
(b) The commission may not extend a municipality's
certificate of public convenience and necessity beyond its
extraterritorial jurisdiction if a landowner elects to exclude some
or all of the landowner's property within a proposed service area in
accordance with Section 13.246(h). This subsection does not apply
to a transfer of a certificate as approved by the commission [A
municipality that seeks to extend a certificate of public
convenience and necessity beyond the municipality's
extraterritorial jurisdiction must ensure that the municipality
complies with Section 13.241 in relation to the area covered by the
portion of the certificate that extends beyond the municipality's
extraterritorial jurisdiction].
SECTION 9.03. Sections 13.246(a) and (h), Water Code, are
amended to read as follows:
(a) If an application for a certificate of public
convenience and necessity or for an amendment to a certificate is
filed, the commission shall cause notice of the application to be
given to affected parties and to each county and groundwater
conservation district that is wholly or partly included in the area
proposed to be certified. If [, if] requested, the commission shall
fix a time and place for a hearing and give notice of the hearing.
Any person affected by the application may intervene at the
hearing.
(h) Except as provided by Subsection (i), a landowner who
owns a tract of land that is at least 25 acres and that is wholly or
partially located within the proposed service area may elect to
exclude some or all of the landowner's property from the proposed
service area by providing written notice to the commission before
the 30th day after the date the landowner receives notice of a new
application for a certificate of public convenience and necessity
or for an amendment to an existing certificate of public
convenience and necessity. The landowner's election is effective
without a further hearing or other process by the commission. If a
landowner makes an election under this subsection, the application
shall be modified so that the electing landowner's property is not
included in the proposed service area. An applicant for a
certificate of public convenience and necessity that has land
removed from its proposed certificated service area because of a
landowner's election under this subsection may not be required to
provide service to the removed land for any reason, including the
violation of law or commission rules by the water or sewer system of
another person.
SECTION 9.04. Section 13.254, Water Code, is amended by
amending Subsections (a-1) and (a-3) and adding Subsection (h) to
read as follows:
(a-1) As an alternative to decertification under Subsection
(a), the owner of a tract of land that is at least 50 acres and that
is not in a platted subdivision actually receiving water or sewer
service may petition the commission under this subsection for
expedited release of the area from a certificate of public
convenience and necessity so that the area may receive service from
another retail public utility. The fact that a certificate holder
is a borrower under a federal loan program is not a bar to a request
under this subsection for the release of the petitioner's land and
the receipt of services from an alternative provider. On the day
the petitioner submits the petition to the commission, the [The]
petitioner shall send [deliver], via certified mail, a copy of the
petition to the certificate holder, who may submit information to
the commission to controvert information submitted by the
petitioner. The petitioner must demonstrate that:
(1) a written request for service, other than a
request for standard residential or commercial service, has been
submitted to the certificate holder, identifying:
(A) the area for which service is sought;
(B) the timeframe within which service is needed
for current and projected service demands in the area;
(C) the level and manner of service needed for
current and projected service demands in the area;
(D) the approximate cost for the alternative
service provider to provide the service at the same level and manner
that is requested from the certificate holder;
(E) the flow and pressure requirements and
specific infrastructure needs, including line size and system
capacity for the required level of fire protection requested; and
(F) [(D)] any additional information requested
by the certificate holder that is reasonably related to
determination of the capacity or cost for providing the service;
(2) the certificate holder has been allowed at least
90 calendar days to review and respond to the written request and
the information it contains;
(3) the certificate holder:
(A) has refused to provide the service;
(B) is not capable of providing the service on a
continuous and adequate basis within the timeframe, at the level,
at the approximate cost that the alternative provider is capable of
providing for a comparable level of service, or in the manner
reasonably needed or requested by current and projected service
demands in the area; or
(C) conditions the provision of service on the
payment of costs not properly allocable directly to the
petitioner's service request, as determined by the commission; and
(4) the alternate retail public utility from which the
petitioner will be requesting service possesses the financial,
managerial, and technical capability to provide [is capable of
providing] continuous and adequate service within the timeframe, at
the level, at the cost, and in the manner reasonably needed or
requested by current and projected service demands in the area.
(a-3) Within 60 [90] calendar days from the date the
commission determines the petition filed pursuant to Subsection
(a-1) to be administratively complete, the commission shall grant
the petition unless the commission makes an express finding that
the petitioner failed to satisfy the elements required in
Subsection (a-1) and supports its finding with separate findings
and conclusions for each element based solely on the information
provided by the petitioner and the certificate holder. The
commission may grant or deny a petition subject to terms and
conditions specifically related to the service request of the
petitioner and all relevant information submitted by the petitioner
and the certificate holder. In addition, the commission may
require an award of compensation as otherwise provided by this
section. If the certificate holder has never made service
available through planning, design, construction of facilities, or
contractual obligations to serve the area the petitioner seeks to
have released, the commission is not required to find that the
proposed alternative provider is capable of providing better
service than the certificate holder, but only that the proposed
alternative provider is capable of providing the requested service.
(h) A certificate holder that has land removed from its
certificated service area in accordance with this section may not
be required, after the land is removed, to provide service to the
removed land for any reason, including the violation of law or
commission rules by a water or sewer system of another person.
SECTION 9.05. The changes made by this article to Sections
13.245, 13.2451, 13.246, and 13.254, Water Code, apply only to:
(1) a retail public utility's application for a
certificate of public convenience and necessity for a service area
in the extraterritorial jurisdiction of a municipality that is made
on or after the effective date of this article;
(2) an extension of a municipality's certificate of
public convenience and necessity for a service area in the
extraterritorial jurisdiction of the municipality on or after the
effective date of this article; and
(3) a petition to release an area from a certificate of
public convenience and necessity that is made on or after the
effective date of this article.
Explanation: The language is necessary to encourage
rainwater harvesting and other water conservation initiatives and
to provide for the issuance of certificates of public convenience
and necessity for water and sewer service in the extraterritorial
jurisdiction of a municipality.