By: Seliger, Zaffirini S.B. No. 2120
A BILL TO BE ENTITLED
AN ACT
relating to the management, operation, and review of groundwater
conservation districts and to the potential impact of districts'
rules and plans on the Carrizo-Wilcox aquifer.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter D, Chapter 6, Water Code, is amended
by adding Section 6.113 to read as follows:
Sec. 6.113. DUTY TO ESTABLISH TRAINING PROGRAM. (a) The
board shall establish a training program for members of boards of
directors and general managers of groundwater conservation
districts that includes education in:
(1) the provisions of Chapter 36;
(2) the principles of hydrogeology;
(3) relevant permitting procedures;
(4) effective conservation practices;
(5) conflicts of interest;
(6) methods of conducting public hearings;
(7) the responsibility of a director to provide
financial oversight of a district; and
(8) board management and accountability.
(b) As the board considers appropriate, the board may
consult with stakeholders in the development of the training
program under Subsection (a).
SECTION 2. Subsection (h), Section 36.0171, Water Code, is
amended to read as follows:
(h) If the majority of the votes cast at the election are
against the levy of a maintenance tax, the district shall set
production [permit] fees to pay for the district's regulation of
groundwater in the district, including fees based on the amount of
water to be withdrawn from a well.
SECTION 3. Subchapter C, Chapter 36, Water Code, is amended
by adding Section 36.069 to read as follows:
Sec. 36.069. REQUIRED TRAINING FOR DIRECTORS AND GENERAL
MANAGER. (a) Each director or general manager of a district shall
complete at least one hour of training in a program established by
the Texas Water Development Board under Section 6.113 during each
one-year period in which the person serves as a director or general
manager.
(b) The Texas Water Development Board or other entity
providing the training shall provide a certificate of course
completion to persons who complete the training required by this
section. A district shall maintain and make available for public
inspection the record of its directors' and general manager's
completion of the training.
(c) The failure of one or more of the directors or the
general manager of a district to complete the training required by
this section does not affect the validity of an action taken by the
district.
SECTION 4. The heading to Section 36.1071, Water Code, is
amended to read as follows:
Sec. 36.1071. DISTRICT MANAGEMENT PLAN.
SECTION 5. Section 36.1071, Water Code, is amended by
amending Subsections (a), (b), (c), (f), and (g) and adding
Subsection (f-1) to read as follows:
(a) Following notice and hearing, the district shall, in
coordination with surface water management entities on a regional
basis, develop a [comprehensive] management plan that [which]
addresses the following management goals, as applicable:
(1) providing the most efficient use of groundwater;
(2) controlling and preventing waste of groundwater;
(3) controlling and preventing subsidence;
(4) addressing conjunctive surface water management
issues;
(5) addressing natural resource issues;
(6) addressing drought conditions;
(7) addressing conservation, recharge enhancement,
rainwater harvesting, precipitation enhancement, or brush control,
where appropriate and cost-effective; and
(8) addressing in a quantitative manner the desired
future conditions of the groundwater resources.
(b) The [A] district management plan, or any amendments to
the [a] district management plan, shall be developed [by the
district] using the district's best available data and forwarded to
the regional water planning group for use in their planning
process.
(c) The commission and the Texas Water Development Board
shall provide technical assistance to a district in the development
of the district management plan required under Subsection (a) which
may include, if requested by the district, a preliminary review and
comment on the plan prior to final approval by the board. If such
review and comment by the commission is requested, the commission
shall provide comment not later than 30 days from the date the
request is received.
(f) [The district shall adopt rules necessary to implement
the management plan.] Prior to the development of the district's
first district management plan and [its] approval of that plan
under Section 36.1072, the district may not adopt rules other than
rules pertaining to the registration and interim permitting of new
and existing wells and rules governing spacing and procedure before
the district's board; however, the district may not adopt any rules
limiting the production of wells, except rules requiring that
groundwater produced from a well be put to a nonwasteful,
beneficial use. The district may accept applications for permits
under Section 36.113, provided the district does not act on any such
application until the district's management plan is approved as
provided in Section 36.1072.
(f-1) After a district management plan is approved under
Section 36.1072, the district shall adopt or amend rules limiting
the production of wells or allocating groundwater as necessary to
implement the district management plan. The district may not adopt
rules limiting the production of wells or allocating groundwater or
amend the district's rules limiting the production of wells or
allocating groundwater if the district fails to:
(1) adopt a district management plan as required by
this section;
(2) submit a district management plan to the executive
administrator as required by Section 36.1072; and
(3) receive approval of the district management plan
under Section 36.1072.
(g) The district shall adopt amendments to the district
management plan as necessary. Amendments to the district
management plan shall be adopted after notice and hearing and shall
otherwise comply with the requirements of this section.
SECTION 6. Section 36.1072, Water Code, is amended to read
as follows:
Sec. 36.1072. TEXAS WATER DEVELOPMENT BOARD REVIEW AND
APPROVAL OF DISTRICT MANAGEMENT PLAN. (a) In this section,
"development board" means the Texas Water Development Board. A
district shall, not later than three years after the creation of the
district or, if the district required confirmation, after the
election confirming the district's creation, submit the district
management plan required under Section 36.1071 to the executive
administrator for review and approval.
(b) Within 60 days of receipt of a district management plan
adopted under Section 36.1071, readopted under Subsection (f) [(e)
or (g)] of this section, or amended under Section 36.1073, the
executive administrator shall approve the district [a] management
plan if the plan is administratively complete. A management plan is
administratively complete when it contains the information
required to be submitted under Section 36.1071(a) and (e). The
executive administrator may waive [determine whether conditions
justify waiver of] the requirements under Section 36.1071(e)(4) if
the executive administrator determines that conditions justify the
waiver.
(c) Once the executive administrator has granted
administrative approval to [approved] a management plan:
(1) the executive administrator may not revoke but may
require revisions to the approved groundwater conservation
district management plan as provided by Subsection (g); and
(2) the executive administrator may request
additional information from the district if the information is
necessary to clarify, modify, or supplement previously submitted
material[, but a request for additional information does not render
the management plan unapproved].
(d) Not later than the 60th day after the date of the
administrative approval of a district management plan under
Subsection (c), the executive administrator shall review the
district management plan to determine whether the district
management plan is adequate to achieve a desired future condition
established under Section 36.108(d) that is applicable to all or
part of the district, considering any available information
regarding groundwater levels, and:
(1) request additional information from the district;
(2) recommend that the district make substantive
changes to the plan; or
(3) approve the plan.
(e) A district management plan takes effect on approval by
the executive administrator or, if appealed, on approval by the
development board [Texas Water Development Board].
(f) [(e)] The district may review the district management
plan annually and shall [must] review and readopt the plan with or
without revisions at least once every five years. The district
shall provide the readopted plan to the executive administrator not
later than the 60th day after the date on which the plan was
readopted. Approval of the preceding district management plan
remains in effect until:
(1) the district fails to timely readopt a district
management plan;
(2) the district fails to timely submit the district's
readopted district management plan to the executive administrator
for administrative approval under Subsection (b); or
(3) the executive administrator determines that the
readopted district management plan does not meet the requirements
for approval, and the district has exhausted all appeals to the
development board [Texas Water Development Board or appropriate
court].
(g) [(f)] If the executive administrator does not approve
the district management plan, the executive administrator shall
provide to the district, in writing, the reasons the executive
administrator does not approve [for the action]. Not later than the
180th day after the date a district receives notice that the
executive administrator has not approved the district [its]
management plan [has not been approved], the district may submit a
revised district management plan for review and approval. The
executive administrator's decision may be appealed to the
development board [Texas Water Development Board]. If the
development board [Texas Water Development Board] decides not to
approve the revised district management plan on appeal, the
district may request that the conflict be mediated. The district
and the development board may seek the assistance of the Center for
Public Policy Dispute Resolution at The University of Texas School
of Law or an alternative dispute resolution system established
under Chapter 152, Civil Practice and Remedies Code, in obtaining a
qualified impartial third party to mediate the conflict. The cost
of the mediation services must be specified in the agreement
between the parties and the Center for Public Policy Dispute
Resolution or the alternative dispute resolution system. If the
parties do not resolve the conflict through mediation, the decision
of the development board [Texas Water Development Board] not to
approve the district management plan may be appealed to a district
court in Travis County. Costs for the appeal shall be set by the
court hearing the appeal. An appeal under this subsection is by
trial de novo. The commission shall not take enforcement action
against a district under Subchapter I until the later of the
expiration of the 180-day period, the date the development board
[Texas Water Development Board] has taken final action withholding
approval of a revised district management plan, the date the
mediation is completed, or the date a final judgment upholding the
development board's decision is entered by a district court. An
enforcement action may not be taken against a district by the
commission or the state auditor under Subchapter I because the
district [district's] management plan and the approved regional
water plan are in conflict while the parties are attempting to
resolve the conflict before the development board, in mediation, or
in court. Rules of the district continue in full force and effect
until all appeals under this subsection have been exhausted and the
final judgment is adverse to the district.
(h) [(g) In this subsection, "development board" means the
Texas Water Development Board.] A person with a legally defined
interest in groundwater in a district, or the regional water
planning group, may file a petition with the development board
stating that a conflict requiring resolution may exist between the
district's approved management plan developed under Section
36.1071 and the state water plan. If a conflict exists, the
development board shall provide technical assistance to and
facilitate coordination between the involved person or regional
water planning group and the district to resolve the conflict. Not
later than the 45th day after the date the person or the regional
water planning group files a petition with the development board,
if the conflict has not been resolved, the district and the involved
person or regional planning group may mediate the conflict. The
district and the involved person or regional planning group may
seek the assistance of the Center for Public Policy Dispute
Resolution at The University of Texas School of Law or an
alternative dispute resolution system established under Chapter
152, Civil Practice and Remedies Code, in obtaining a qualified
impartial third party to mediate the conflict. The cost of the
mediation services must be specified in the agreement between the
parties and the Center for Public Policy Dispute Resolution or the
alternative dispute resolution system. If the district and the
involved person or regional planning group cannot resolve the
conflict through mediation, the development board shall resolve the
conflict not later than the 60th day after the date the mediation is
completed. The development board action under this provision may
be consolidated, at the option of the board, with related action
under Section 16.053(p). If the development board determines that
resolution of the conflict requires a revision of the approved
groundwater conservation district management plan, the development
board shall provide information to the district. The district
shall prepare any revisions to the plan based on the information
provided by the development board and shall hold, after notice, at
least one public hearing at some central location within the
district. The district shall consider all public and development
board comments, prepare, revise, and adopt its district management
plan, and submit the revised district management plan to the
development board for approval. On the request of the district or
the regional water planning group, the development board shall
include discussion of the conflict and its resolution in the state
water plan that the development board provides to the governor, the
lieutenant governor, and the speaker of the house of
representatives under Section 16.051(e). If the groundwater
conservation district disagrees with the decision of the
development board under this subsection, the district may appeal
the decision to a district court in Travis County. Costs for the
appeal shall be set by the court hearing the appeal. An appeal
under this subsection is by trial de novo.
SECTION 7. Section 36.1073, Water Code, is amended to read
as follows:
Sec. 36.1073. AMENDMENT TO DISTRICT MANAGEMENT PLAN. Any
amendment to a district [the] management plan shall be submitted to
the executive administrator within 60 days following adoption of
the amendment by the district's board. The executive administrator
shall review and approve any amendment that [which] substantially
affects the district management plan in accordance with the
procedures established under Section 36.1072.
SECTION 8. Subsections (b), (c), and (n), Section 36.108,
Water Code, are amended to read as follows:
(b) If two or more districts are located within the
boundaries of the same management area, each district shall
[prepare a comprehensive management plan as required by Section
36.1071 covering that district's respective territory. On
completion and approval of the plan as required by Section 36.1072,
each district shall] forward a copy of the district's district [new
or revised] management plan to the other districts in the
management area. The boards of the districts shall consider the
district management plans individually and shall compare them to
other district management plans then in force in the management
area.
(c) The presiding officer, or the presiding officer's
designee, of each district located in whole or in part in the
management area shall meet at least annually to conduct joint
planning with the other districts in the management area and to
review the district management plans and accomplishments for the
management area. In reviewing the district management plans, the
districts shall consider:
(1) the goals of each district management plan and its
impact on planning throughout the management area;
(2) the effectiveness of the measures established by
each district management plan for conserving and protecting
groundwater and preventing waste, and the effectiveness of these
measures in the management area generally;
(3) any other matters that the boards consider
relevant to the protection and conservation of groundwater and the
prevention of waste in the management area; and
(4) the degree to which each district management plan
achieves the desired future conditions established during the joint
planning process.
(n) The districts shall prepare [a] revised conditions
[plan] in accordance with development board recommendations and
hold, after notice, at least one public hearing at a central
location in the groundwater management area. After consideration
of all public and development board comments, the districts shall
revise the conditions and submit the conditions to the development
board for review.
SECTION 9. Section 36.1132, Water Code, is amended to read
as follows:
Sec. 36.1132. DISTRICT PLANS AND RULES TO ACHIEVE DESIRED
FUTURE CONDITION; PERMITS BASED ON MANAGED AVAILABLE GROUNDWATER.
(a) Not later than the second anniversary of the later of the date
that the districts in a management area establish one or more
desired future conditions under Section 36.108(d) or the date that
the districts receive the managed available groundwater amount from
the executive administrator under Section 36.108(o), each district
in the management area shall review its district management plan
and rules and adopt any amendments necessary to ensure that the
district will achieve a desired future condition applicable to all
or part of the district.
(b) A district, to the extent possible, shall issue permits
up to the point that the total volume of groundwater permitted
equals the managed available groundwater, if administratively
complete permit applications are submitted to the district. For
purposes of this subsection, a district may adjust the amount of
managed available groundwater provided to the district under
Section 36.108(o) or may adjust the amount of groundwater issued
under permits to account for exempt uses and known demands for
groundwater in the district based on a state or regional water plan.
SECTION 10. Subsection (b), Section 36.116, Water Code, is
amended to read as follows:
(b) In promulgating any rules limiting groundwater
production, the district may preserve historic or existing use
before the effective date of the rules to the maximum extent
practicable consistent with its district [the district's
comprehensive] management plan under Section 36.1071 and as
provided by Section 36.113.
SECTION 11. Section 36.117, Water Code, is amended by
adding Subsection (e-1) to read as follows:
(e-1) An operator of a water well exempt under Subsection
(b)(2) or (3) shall report annually to the district for the exempt
well the total amount of groundwater withdrawn during the calendar
year.
SECTION 12. Section 36.207, Water Code, is amended to read
as follows:
Sec. 36.207. USE OF PRODUCTION [PERMIT] FEES AUTHORIZED BY
SPECIAL LAW. A district may use funds obtained from production
[permit] fees collected pursuant to the special law governing the
district for any purpose consistent with the district's district
[certified water] management plan including, without limitation,
making grants, loans, or contractual payments to achieve,
facilitate, or expedite reductions in groundwater pumping or the
development or distribution of alternative water supplies.
SECTION 13. Section 36.301, Water Code, is amended to read
as follows:
Sec. 36.301. VIOLATIONS RELATED TO DISTRICT [FAILURE TO
SUBMIT A] MANAGEMENT PLAN. The commission shall take appropriate
action under Section 36.303 if:
(1) a district adopts or amends a rule in violation of
Section 36.1071(f-1);
(2) [If] a district [board] fails to submit a district
management plan or to receive certification of the district [its]
management plan under Section 36.1072;
(3) a district fails to timely readopt the district
management plan or to submit the readopted district management plan
to the executive administrator for approval in accordance with
Section 36.1072(f);
(4) the executive administrator determines that a
readopted district management plan does not meet the requirements
for approval, and the district has exhausted all appeals; or
(5) a district fails to submit or receive
certification of an amendment to the district management plan under
Section 36.1073[, the commission shall take appropriate action
under Section 36.303].
SECTION 14. Section 36.3011, Water Code, is amended to read
as follows:
Sec. 36.3011. FAILURE OF DISTRICT TO CONDUCT JOINT
PLANNING. Not later than the 45th day after receiving the review
panel's report under Section 36.108, the executive director or the
commission shall take action to implement any or all of the panel's
recommendations. The commission may take any action against a
district it considers necessary in accordance with Section 36.303
if the commission finds that:
(1) a district has failed to submit its district
management plan to the executive administrator;
(2) a district has failed to adopt rules;
(3) the rules adopted by the district are not designed
to achieve the desired future condition of the groundwater
resources in the groundwater management area; or
(4) the groundwater in the management area is not
adequately protected by the rules adopted by the district, or the
groundwater in the management area is not adequately protected
because of the district's failure to enforce substantial compliance
with its rules.
SECTION 15. Subsection (c), Section 36.302, Water Code, is
amended to read as follows:
(c) In a review performed under Subsection (a), the state
auditor shall make a determination, based on an analysis of a
district's activities, of whether the [a] district is actively
engaged in achieving the objectives of the district [district's]
management plan, including a desired future condition established
under Section 36.108(d) that is applicable to all or part of the
district [based on an analysis of the district's activities].
SECTION 16. Subsection (a), Section 36.303, Water Code, is
amended to read as follows:
(a) If Section 36.108, 36.301, or 36.302(f) applies and if
the state auditor has performed a review of the district under
Section 36.302(a), the commission, after notice and hearing in
accordance with Chapter 2001, Government Code, shall take action
the commission considers appropriate, including:
(1) issuing an order requiring the district to take
certain actions or to refrain from taking certain actions;
(2) dissolving the board in accordance with Sections
36.305 and 36.307 and calling an election for the purpose of
electing a new board;
(3) requesting the attorney general to bring suit for
the appointment of a receiver to collect the assets and carry on the
business of the groundwater conservation district; or
(4) dissolving the district in accordance with
Sections 36.304, 36.305, and 36.308.
SECTION 17. STUDY AND REPORT. (a) The Texas Commission on
Environmental Quality shall conduct a study regarding the impact on
the entire Carrizo-Wilcox aquifer of rules and plans adopted by
groundwater conservation districts in whose boundaries the aquifer
is located and of determinations made by groundwater conservation
districts in connection with the joint planning process relating to
groundwater management areas in whose boundaries the aquifer is
located. In conducting the study, the commission shall examine:
(1) whether the rules and plans adopted by each
groundwater conservation district:
(A) are based on sound scientific principles;
(B) adequately conserve and protect the aquifer
and ensure the achievement of the applicable desired future
condition for each part of the district; and
(C) are likely to affect other groundwater
conservation districts or groundwater management areas;
(2) whether each district is enforcing substantial
compliance with its rules;
(3) whether the desired future conditions established
under Section 36.108, Water Code, in each groundwater management
area are reasonable and based on sound scientific principles, and
whether the rules adopted by each district are designed to achieve
the applicable desired future condition;
(4) other long-term impacts of the applicable rules
and plans on the aquifer, taking into consideration:
(A) projected population and agricultural,
municipal, and industrial demands for water from the aquifer within
the groundwater conservation districts; and
(B) other appropriate factors as determined by
commission rule; and
(5) whether the presence of contaminants in the
recharge area of the aquifer and the potential pollution of the
aquifer are issues that should be addressed and, if so, by whom.
(b) The Texas Water Development Board and the Bureau of
Economic Geology of The University of Texas at Austin shall assist
the Texas Commission on Environmental Quality in conducting the
study under this section.
(c) The Texas Commission on Environmental Quality may
contract with any appropriate person to assist the commission in
conducting the study under this section.
(d) Not later than December 31, 2012, the Texas Commission
on Environmental Quality shall report the results of the study
conducted under this Act to the governor, the lieutenant governor,
the speaker of the house of representatives, and the standing
committees in the senate and the house of representatives that have
primary jurisdiction over natural resources. The report may
include the commission's recommendations for legislation to
address any areas of concern.
(e) This section expires August 31, 2013.
SECTION 18. (a) Section 36.069, Water Code, as added by
this Act, applies to a member of the board of directors of a
groundwater conservation district who qualifies for office and to a
general manager of a groundwater conservation district who begins
employment with the district before, on, or after the effective
date of this Act. A person who is serving as a member of the board
of directors or as a general manager of a groundwater conservation
district on the effective date of this Act must complete the first
hour of training as required by Section 36.069, Water Code, as added
by this Act, not later than September 1, 2010.
(b) The changes in law made by this Act apply only to a
management plan or an amendment to a management plan that is
submitted by a groundwater conservation district to the executive
administrator of the Texas Water Development Board for review and
approval on or after the effective date of this Act. A management
plan or an amendment to a management plan that is submitted to the
executive administrator of the Texas Water Development Board before
the effective date of this Act is governed by the law in effect when
the management plan or amendment was submitted, and the former law
is continued in effect for that purpose.
(c) As soon as practicable after the effective date of this
Act, the Texas Water Development Board shall adopt rules to
implement Section 36.1072, Water Code, as amended by this Act.
(d) The first report under Subsection (e-1), Section
36.117, Water Code, as added by this Act, is due not later than
September 1, 2010.
(e) The change in law made by this Act to Section 36.301,
Water Code, applies only to a violation by a groundwater
conservation district that occurs on or after the effective date of
this Act. A violation that occurs before the effective date of this
Act is governed by the law in effect on the date the violation
occurred, and the former law is continued in effect for that
purpose.
(f) The change in law made by this Act to Section 36.302,
Water Code, applies only to a review of a groundwater conservation
district performed on or after the effective date of this Act. A
review of a groundwater conservation district performed before the
effective date of this Act is governed by the law in effect on the
date the review was performed, and the former law is continued in
effect for that purpose.
SECTION 19. This Act does not make an appropriation. A
provision in this Act 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 20. 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.
If this Act does not receive the vote necessary for immediate
effect, this Act takes effect September 1, 2009.