By: Williams S.B. No. 2489
(In the Senate - Filed April 2, 2009; April 2, 2009, read
first time and referred to Committee on Natural Resources;
April 28, 2009, reported favorably by the following vote: Yeas 10,
Nays 0; April 28, 2009, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to the authority of the San Jacinto River Authority to
implement a groundwater reduction plan for the conservation of
groundwater and the reduction of groundwater withdrawals in
Montgomery County, and to issue bonds of the authority; providing
administrative penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 426, Acts of the 45th Legislature,
Regular Session, 1937, is amended by adding Sections 11 through 11M
to read as follows:
Sec. 11. GROUNDWATER REDUCTION PLANNING AUTHORITY.
Consistent with the purposes of Section 59, Article XVI, Texas
Constitution, and in addition to all rights, powers, privileges,
authority, and functions conferred by other sections of this Act,
the authority is authorized to provide for the conservation,
preservation, protection, recharge, and prevention of waste of
groundwater and for the reduction of groundwater withdrawals by
developing, implementing, and enforcing a groundwater reduction
plan to facilitate compliance with the applicable rules, orders,
regulations, or requirements of the Lone Star Groundwater
Conservation District. If the authority determines to exercise the
powers and authority described by Sections 11 through 11M of this
Act and to implement a groundwater reduction plan for all or
substantially all of Montgomery County, the authority shall have
the continuing duty and responsibility to implement and enforce
such plan, including the responsibility to develop sufficient
alternative water supply resources consistent with the purposes
described in this section, subject to the limitations of
engineering, financial, and legal feasibility.
Sec. 11A. DEFINITIONS. In Sections 11 through 11M of this
Act:
(1) "Authority" means the San Jacinto River Authority.
(2) "Board" means the board of directors of the
authority.
(3) "Conservation district" means the Lone Star
Groundwater Conservation District.
(4) "District" means any district or authority created
under Sections 52(b)(1) and (2), Article III, or Section 59,
Article XVI, Texas Constitution, regardless of the manner of
creation, other than the conservation district, a navigation
district, a port authority, or a district that does not have legal
authority to provide retail water service.
(5) "Groundwater reduction plan" means a plan adopted
or implemented by the authority to supply water, reduce reliance on
groundwater, control groundwater pumping or usage by regulated
users, or restrict, allocate, or require water usage among
regulated users in order to fully and timely comply with or exceed
requirements imposed by the conservation district, including any
applicable groundwater reduction requirements and any related
water supply plan, water conservation plan, or drought contingency
plan of the authority.
(6) "Local government" means a municipality, county,
district, or other political subdivision of this state or a
combination of two or more of those entities.
(7) "Participant" means a regulated user
participating in the authority's groundwater reduction plan.
(8) "Person" means an individual, corporation,
organization, government or governmental subdivision or agency,
district, local government, business trust, estate, trust,
partnership, association, and any other legal entity.
(9) "Regulated user" means a person located in whole
or in part, or with a service area, certificated area, or boundaries
located in whole or in part, in Montgomery County that is subject to
any rule, order, regulation, or requirement of the conservation
district imposing groundwater withdrawal reductions, except for
any person that owns or operates a single groundwater well serving
not more than two single-family residential dwellings or units.
Sec. 11B. ADDITIONAL POWERS AND DUTIES. (a) In
furtherance of Section 11 of this Act and in addition to all rights,
powers, privileges, authority, and functions conferred by other
sections of this Act, the authority is authorized to take any and
all actions necessary or convenient to:
(1) design, finance, construct, acquire by purchase,
gift, lease, contract, or any other legal means, operate, maintain,
repair, improve, or extend water treatment or supply systems as
necessary to implement the authority's groundwater reduction plan,
including all additions to such systems and all land, improvements,
facilities, plants, equipment, appliances, interests in property,
water rights or contract rights for water supply, and regional,
regulatory, or joint use participation rights, or contract rights
needed for, and administrative facilities needed in connection with
such systems;
(2) enter into contracts of limited or unlimited
duration, notwithstanding the provisions of other law or municipal
charter provisions to the contrary, with persons inside or outside
the authority's boundaries, on terms and conditions the board
considers desirable, fair, and advantageous for the exercise of the
rights, powers, privileges, authority, and functions contemplated
by this Act;
(3) allocate water among participants;
(4) coordinate water services provided by or among
participants;
(5) provide wholesale and retail water services to any
participant by order, rule, policy, or on open account, without the
necessity for execution of a written contract with such
participant;
(6) store, sell, or reuse water or any by-product from
the operations of the authority's water systems;
(7) adopt and enforce rules and administrative
policies reasonably required to implement Sections 11 through 11M
of this Act, including rules governing procedures before the board
and regarding implementation, enforcement, and any other matters
related to the authority's groundwater reduction plan; and
(8) otherwise administer and enforce Sections 11
through 11M of this Act.
(b) The authority may not utilize the systems, facilities,
or properties developed to implement the authority groundwater
reduction plan to provide treated surface water outside of
Montgomery County, except as permitted by Subsection (i), Section
11F of this Act, or as necessary to serve a participant located in
part outside of Montgomery County.
(c) Notwithstanding Subdivision (5), Subsection (a) of this
section, the authority may not provide retail water service to a
person located within the boundaries or certificated area of either
a district or municipality or a retail public utility participating
in the authority's groundwater reduction plan on the date the
authority awards a contract for the construction of, or executes a
contract for the acquisition of, water supply facilities to serve
that retail user, unless:
(1) the district or municipality or the retail public
utility consents in writing to the authority's provision of such
retail water service; or
(2) the retail water user is a regulated user, the
authority has provided the district or municipality or retail
public utility with written notice of the request for service from
the retail water user, the authority has provided the district or
municipality or retail public utility with reasonable opportunity
to negotiate an agreement for the requested service with the retail
water user, and the district or municipality or retail public
utility has not entered into an agreement for the requested service
with the retail water user on or before the 120th day after the date
the authority has provided the district or municipality or retail
public utility written notice of the request for service from the
retail water user. For purposes of this subsection, the boundaries
of a municipality shall include territory within the
extraterritorial jurisdiction of the municipality.
(d) If a retail water user is added to the boundaries or
certificated area of a district or municipality or a retail public
utility after the date the authority awards a contract for the
construction of, or executes a contract for the acquisition of,
water supply facilities to serve that retail water user, and the
district or municipality or retail public utility is a participant,
the authority may provide retail water service to that retail water
user without consent.
(e) Except as provided by Subsection (c) of this section,
the right and power of the authority to provide or continue the
provision of wholesale water service to any participant is not
limited, restricted, curtailed, or discontinued by:
(1) any part or provision of this section; or
(2) the annexation or inclusion within the boundaries,
extraterritorial jurisdiction, or service area by a municipality,
district, retail public utility, or other person, for full or
limited purposes, of all or any portion of the boundaries or service
area of any participant.
(f) Any local government, district, retail public utility,
or other person succeeding to the assets and obligations of a
participant, whether by annexation, consolidation, merger,
abolition, or otherwise, shall assume the rights, powers,
authority, obligations, and indebtedness of such participant under
Sections 11 through 11M of this Act.
Sec. 11C. INITIAL AREA; INCLUSION IN GROUNDWATER REDUCTION
PLAN. (a) The authority shall have jurisdiction to enforce the
rights, powers, privileges, authority, and functions contemplated
by Sections 11 through 11M of this Act with respect to regulated
users located in whole or in part within Montgomery County, except
where expressly prohibited by this Act, but only on or after the
date such regulated users are included as participants in the
authority's groundwater reduction plan.
(b) A person that is a regulated user on the effective date
of this section may petition to be included in the authority's
groundwater reduction plan by filing with the authority a duly
authorized and executed petition requesting inclusion. The board
shall grant the petition and order the regulated user included in
the authority's groundwater reduction plan if the petition includes
an accurate legal description of the boundaries of the regulated
user's service area, or other documents, descriptions, or maps that
sufficiently identify the area proposed to be included in lieu of
such legal description, and the petition is filed with the board not
later than the 120th day after the effective date of the initial
groundwater reduction plan adopted by the authority under Section
11E of this Act. Such order shall be adopted not later than the
120th day after the last date for filing a petition for inclusion.
(c) If a person that is a regulated user on the effective
date of this section is not included in the authority's groundwater
reduction plan under Subsection (b) of this section, the authority
may not include the regulated user in any groundwater reduction
plan adopted or implemented by the authority unless the regulated
user is subsequently added to the authority's groundwater reduction
plan under Section 11D of this Act.
(d) After a regulated user is included in the authority's
groundwater reduction plan under Subsection (b) of this section,
the authority may exclude the regulated user from its groundwater
reduction plan, at its sole discretion and on terms and conditions
the board considers appropriate, on the filing with the board of a
duly authorized and executed petition requesting exclusion. This
subsection shall not be construed to limit the power of the
authority to exclude a regulated user from its groundwater
reduction plan, without the filing of a petition, under Section 11H
of this Act.
Sec. 11D. ADDITIONS TO GROUNDWATER REDUCTION PLAN.
(a) Any person that becomes a regulated user after the period has
expired for filing a petition for inclusion under Section 11C of
this Act shall become a participant without further action by the
authority or such person. The authority and the conservation
district may enter into such agreements as may be appropriate to
provide information to the authority reasonably necessary to
identify and contact such participants. The authority by rule may
require a participant to provide the authority with any necessary
documents pertaining to the participant's service area and the
actual or projected water demands of such service area.
(b) A regulated user that was not included in the
authority's groundwater reduction plan under Section 11C of this
Act may subsequently file with the board a duly authorized and
executed petition requesting that all or part of the regulated
user's service area be included in the authority's groundwater
reduction plan. The petition must include an accurate legal
description of the boundaries of the regulated user's service area
to be included or other documents, descriptions, or maps that
sufficiently identify the area proposed to be included in lieu of
such legal description. The authority may grant the petition if, in
its sound discretion, the authority determines that:
(1) it is feasible from an engineering and economic
standpoint to do so;
(2) granting the petition will not:
(A) result in material increases in costs to the
participants in the authority's groundwater reduction plan;
(B) result in any material delay in the
implementation of the authority's groundwater reduction plan; or
(C) expose the authority or any participant to
additional construction or financing costs, fines, or penalties or
noncompliance with applicable regulatory requirements.
(c) The authority may require a regulated user, all or part
of whose service area is included in the authority's groundwater
reduction plan under Subsection (b) of this section, to pay to the
authority, for the benefit of the participants, a reasonable and
equitable charge determined by the authority to mitigate or fairly
distribute among the participants any additional costs to be
incurred by the inclusion of the additional service area in the
authority's groundwater reduction plan. If the authority has
outstanding or unissued bonds, notes, or other obligations to
finance the costs of the authority's provision of water supply
facilities and services under the authority's groundwater
reduction plan, the petition shall constitute the election and
agreement of the petitioning regulated user to assume the regulated
user's pro rata share of the principal of and interest on such
outstanding or unissued bonds, notes, or other obligations. This
subsection shall not apply to an annexation to or expansion of a
participant's boundaries, extraterritorial jurisdiction, or
service area, as applicable, notwithstanding that such annexation
or expansion may include, in whole or in part, territory within or
previously within the boundaries or service area of a regulated
user that was not included in the authority's groundwater reduction
plan under Section 11C of this Act.
(d) The authority by rule may require participants to
provide the authority with written notice of the effective date of
an annexation to or expansion of the regulated user's boundaries or
service area, together with copies of any necessary documents,
descriptions, maps, and projected or actual water demands of the
annexed or expanded boundaries or service area. Except to the
extent otherwise provided by rule, order, or written agreement of
the authority, the boundary or service area expansion of a
participant does not affect:
(1) the authority's powers and authority inside or
outside the expanded boundary or service area of the participant;
(2) the authority's groundwater reduction plan or
contracts; or
(3) the authority's authority to assess fees, user
fees, rates, charges, or special assessments inside or outside the
expanded boundaries or service area of the participant.
(e) The addition of territory to the authority's
groundwater reduction plan under this section does not affect the
validity of the authority's bonds, notes, or other obligations
authorized, issued, or incurred before or after such addition.
Sec. 11E. GROUNDWATER REDUCTION, WATER SUPPLY,
CONSERVATION, AND DROUGHT CONTINGENCY PLANS. (a) The authority
may wholly or partly develop, prepare, adopt, amend, revise,
implement, enforce, manage, or participate in a groundwater
reduction plan as necessary, in the discretion of the authority, to
facilitate full and timely compliance with applicable conservation
district rules, orders, regulations, or requirements. A
groundwater reduction plan may:
(1) specify the measures to be taken by regulated
users to reduce groundwater withdrawals;
(2) identify alternative sources of water, including
water from the authority, to be provided to regulated users;
(3) identify or estimate the rates, terms, and
conditions under which alternative sources of water will be
provided, which may be changed from time to time as considered
necessary by the authority;
(4) specify the dates and the extents to which
participants must reduce or cease usage of groundwater and accept
water from alternative sources, including water from the authority;
(5) require conversion or overconversion by regulated
users in any designated portion of the plan area to alternative
water sources in excess of the minimum requirements imposed by the
conservation district, including any applicable groundwater
reduction requirements, so long as and to the extent that the
conversion or overconversion is necessary or appropriate in
implementing the authority's groundwater reduction plan and the
costs are apportioned among participants through the authority's
fees, user fees, rates, and charges under Section 11F of this Act;
(6) provide that the groundwater reduction plan shall
be the exclusive groundwater reduction plan that is binding and
mandatory on regulated users included in the plan;
(7) limit, prohibit, or permit the export of
groundwater from, or the importation of water from any source to,
participants;
(8) require the joint use by one or more participants
of the water supply or delivery systems or facilities of a
participant to facilitate the delivery of alternative water
supplies, but only to the extent feasible without diminishing or
impairing the delivery capabilities of the systems or facilities of
a participant for its own uses and only upon proper compensation to
the participant;
(9) include other terms and measures that are
consistent with the powers and duties of the authority; and
(10) be amended from time to time at the discretion of
the authority.
(b) The initial groundwater reduction plan of the authority
may not be adopted until the later of:
(1) the effective date of any final rule, order,
regulation, or requirement adopted by the conservation district
that imposes groundwater withdrawal reductions applicable to a
regulated user; or
(2) the effective date of one or more written
agreements, each with an initial term of not less than 40 years,
that grant the authority the right to receive water supply services
from all or substantially all of the remaining permitted yield for
municipal use in and to the Lake Conroe Dam and Reservoir Project
not then permitted to the authority.
(c) Notwithstanding any other provisions of Sections 11
through 11M of this Act, the authority may rescind the adoption of
the initial groundwater reduction plan by written order of the
board adopted not later than the 240th day or before the 120th day
following the adoption of the initial groundwater reduction plan if
the authority finds, in its sole discretion, that the
implementation of the initial groundwater reduction plan is not
practicable or feasible for any reason or will not achieve the
purposes of Sections 11 through 11M of this Act. On and after the
date of the order of the board rescinding the initial groundwater
reduction plan, the authority shall have no obligation to continue
to develop or implement a groundwater reduction plan for the
benefit of any regulated user, including a regulated user that
filed a petition to be included in the authority's groundwater
reduction plan under Subsection (b), Section 11C of this Act, or
that would otherwise be included in the authority's groundwater
reduction plan under Subsection (a), Section 11D of this Act.
Written notice of the adoption of an order rescinding adoption of
the initial groundwater reduction plan shall be provided within 30
days to each regulated user that filed a petition to be included in
the authority's groundwater reduction plan under Section 11C of
this Act, but the failure of a regulated user to receive notice
shall not obligate the authority to continue to develop or
implement a groundwater reduction plan for the benefit of the
regulated user.
(d) Fees, user fees, rates, charges, and special
assessments of the authority may be imposed by the authority as
provided by this Act for a regulated user's participation in and
benefit derived from the authority's groundwater reduction plan.
(e) The authority by rule may develop, prepare, adopt,
amend, revise, implement, enforce, and manage a comprehensive water
supply plan, water conservation plan, or drought contingency plan
for and applicable to participants.
Sec. 11F. FEES, USER FEES, RATES, AND CHARGES. (a) The
authority may establish fees, user fees, rates, and charges
applicable to any participant and make reasonable classifications
of participants for purposes of such fees, rates, and charges as are
necessary by the authority to implement and enforce the plans,
powers, and authority conferred by Sections 11 through 11M of this
Act, but the fees, rates, and charges may not be imposed before the
last date for the authority to adopt an order granting a petition to
be included in the authority's groundwater reduction plan under
Subsection (b), Section 11C of this Act.
(b) Among other criteria and classifications, the authority
may charge a participant a fee or user fee according to the amount
of water pumped from the participant's groundwater well. If
ownership of a groundwater well changes, both the prior and
subsequent well owners are responsible to the authority as
participants, jointly and severally, for all fees and user fees
imposed by the authority under this Act, and any related penalties
and interest, for water pumped from the groundwater well before the
change in ownership.
(c) The board shall make reasonable efforts to notify each
participant, by publication or by written notice, of the date,
time, and location of the meeting of the board at which the board
intends to adopt a proposed rate, fee, user fee, or charge under
this section and the amount of the proposed rate, fee, user fee, or
charge. The board's failure to provide actual notice to each
participant does not invalidate a rate, fee, user fee, or charge
adopted by the board under this section.
(d) The board shall exempt from any rate, fee, user fee, or
charge under this section persons or classes of groundwater wells
that are not subject to any groundwater reduction requirement
imposed by the conservation district, but if any such persons or
classes of groundwater wells subsequently become subject to a
groundwater reduction requirement imposed by the conservation
district, the authority may thereafter impose such rate, fee, user
fee, or charge. For purposes of this subsection, a person or a
groundwater well is subject to a groundwater reduction requirement
if the conservation district has adopted or adopts a requirement or
rule that withdrawals from the groundwater well, or from the
groundwater well and other groundwater wells collectively, be
reduced, including a groundwater reduction requirement that does
not need to be satisfied until a future date.
(e) Notwithstanding Subsection (d) of this section, any
person that owns or operates a single groundwater well serving not
more than two single-family residential dwellings or units, and any
groundwater well in such class, shall be exempt from any rate, fee,
user fee, or charge under this section or any special assessment
under Section 11G of this Act. The board by rule may exempt any
other persons or classes of groundwater wells from any rate, fee,
user fee, or charge under this section.
(f) The authority may establish fees, user fees, rates, and
charges that are sufficient to:
(1) achieve water conservation;
(2) prevent waste of water;
(3) serve as a disincentive to pumping groundwater;
(4) develop, implement, or enforce a groundwater
reduction plan;
(5) accomplish the purposes of Sections 11 through 11M
of this Act, including making available alternative water supplies;
(6) purchase, lease, reserve, option, or contract for
alternative water supplies;
(7) enable the authority to meet administrative,
operations, and maintenance expenses relating to the authority's
groundwater reduction plan;
(8) pay the principal of and interest on notes, bonds,
and other obligations issued or incurred or to be issued or incurred
in connection with the exercise of the authority's rights, powers,
privileges, authority, and functions under Sections 11 through 11M
of this Act;
(9) satisfy all rate covenants relating to the
issuance of notes, bonds, and other obligations; and
(10) establish, accumulate, maintain, or replenish
one or more operating, debt service, contingency, or emergency
reserve funds as deemed necessary by the authority.
(g) The rates, fees, user fees, and charges of the authority
shall at all times be established and imposed in order to equitably
apportion the costs of the authority's groundwater reduction plan
among the participants, as nearly as practicable on a uniform
basis, such that no special advantage or disadvantage is realized
by a participant or class of participants because of proximity or
access to alternative water supplies of the authority, geographical
location, the time of inclusion within the groundwater reduction
plan, the nature or extent of the water demands of the participant,
or because the participant or class of participants is using
groundwater, or alternative water supplies, or both.
(h) The authority may also impose rates, fees, user fees, or
charges for the importation of water by a participant.
(i) To the extent that any fees, user fees, rates, charges,
or special assessments collected by the authority from participants
in the authority's groundwater reduction plan under this Act are
used to pay or reimburse the authority or one or more of its
operating divisions for the costs of developing, holding,
purchasing, leasing, reserving, optioning, or contracting for
alternative water supplies, the first and prior use of such
alternative water supplies shall be for the benefit of the
participants. Nothing in this Act shall be deemed or construed to
limit the right and power of the authority or one or more of its
other operating divisions to sell, option, or reserve water
supplies that in the judgment of the authority are surplus to the
needs of the participants, on a temporary, seasonal, periodic, or
permanent basis, to other persons, so long as any net income or
revenues from such sale, optioning, or reservation are first used
to reimburse the participants for any actual costs, expenses, or
carrying costs and interest paid by or on behalf of the participants
for such water supplies.
(j) The rates, fees, user fees, and charges imposed by the
authority under this section shall be at all times the lowest
charges which are:
(1) consistent with good management practices by the
authority;
(2) necessary and proper to pay or provide for full and
timely payment of the items described in Subsection (f) of this
section;
(3) consistent with the authority's statutory and
constitutional duties and responsibilities; and
(4) just, reasonable, and nondiscriminatory.
(k) The charges imposed by the authority under this section
shall be reviewed and adjusted from time to time by the authority in
order to ensure that the charges are not in excess of the needs of
the authority for the purposes of this section and that, other than
amounts properly allocable to the payment of the general and
administrative expenses of the authority relating to the
groundwater reduction plan, such charges will not be used for any
other corporate purpose of the authority.
Sec. 11G. ASSESSMENTS. (a) The board may undertake
improvement projects or services that confer a special benefit on
all or a defined part of the service area of one or more
participants and may impose special assessments on property in the
defined area, including property of a local government, based on
the benefit conferred by the improvement project or service, to pay
all or part of the costs of the project or service. The authority
may finance with special assessments any improvement project or
service authorized by this Act or other law, including water
delivery systems or facilities or water supplies for recreational,
environmental, aesthetic, or other nonconsumptive uses.
(b) Services or improvement projects may be financed with
special assessments only after the board holds a public hearing on
the advisability of the improvement project or service and the
proposed assessments.
(c) The board shall publish notice of the hearing in a
newspaper or newspapers with general circulation in Montgomery
County. The publication must be made not later than the 30th day
before the date of the hearing.
(d) Notice provided under this section must include:
(1) the time and place of the hearing;
(2) the general nature of the proposed improvement
project or service;
(3) the estimated cost of the improvement project or
service, including projected interest and associated financing
costs; and
(4) the proposed method of assessment.
(e) Written notice containing the information required by
Subsection (d) of this section shall be sent by certified mail,
return receipt requested, not later than the 30th day before the
date of the hearing, to each participant affected by such proposed
assessment.
(f) Following a hearing conducted by the board on a proposed
improvement project or service, the board shall make written
findings and conclusions relating to the advisability of the
improvement project or service, the nature of the improvement
project or service, the estimated costs, and the area benefited.
(g) After conclusion of a hearing conducted by a hearings
examiner on a proposed improvement project or service, the hearings
examiner shall file with the board a written report of the
examiner's findings and conclusions. The board may act upon such
findings and conclusions at any meeting of the board at which notice
of the meeting is given as provided by Chapter 551, Government Code,
without the necessity for further notice.
(h) At adjournment of a hearing on proposed assessments, or
after consideration of a hearings examiner's findings and
conclusions on the proposed assessments, the board shall hear and
rule on all objections to each proposed assessment. After the board
hears and rules on such objections, the board, by order:
(1) shall fix the amount of and impose the assessments
as special assessments on each affected property;
(2) shall specify the method of payment of the
assessments; and
(3) may provide that such assessments, including
interest, be paid in periodic installments or be subject to
prepayment charges if prepaid.
(i) Periodic installment payments of assessments must be in
amounts sufficient to meet all costs for the associated improvement
projects or services and must continue in effect for the period
required to fully and timely pay for the services to be rendered or
any bonds, notes, or other obligations issued or incurred by the
authority to finance any associated improvement projects. The
board may provide interest charges or penalties for failure to make
timely payment and may impose a fee to cover delinquencies and
expenses of collection.
(j) The board shall equitably apportion the cost of an
improvement project or services, to be assessed against the
property according to the special benefits that accrue to the
property because of the improvement project or services. Among
other classifications of benefits received, the board may assess
costs according to the number of gallons of groundwater pumped from
groundwater wells that are within or that serve such property and
are subject to a groundwater reduction requirement imposed by the
conservation district.
(k) A person that becomes a participant after the authority
has imposed assessments may waive the right to notice and an
assessment hearing and may agree to the imposition and payment of
assessments at an agreed rate. A participant may waive the right to
notice and an assessment hearing for territory within its
boundaries or service area added to the authority's groundwater
reduction plan and may agree to the imposition and payment of
assessments at an agreed rate.
(l) The board shall provide for the preparation of an
assessment roll showing the assessments against each property and
the board's basis for the assessment. The assessment roll shall be:
(1) filed with the secretary of the board or another
officer who performs similar functions; and
(2) open for public inspection.
(m) After notice and hearing in the manner required for an
original assessment, the board may make supplemental assessments to
correct omissions or mistakes or to address changed circumstances
relating to the total costs of the improvement project or service or
to covering delinquencies or costs of collection.
(n) The board may not impose or enforce a special assessment
under this section unless:
(1) one or more participants request in writing that
the authority undertake an improvement project or services that
confer a special benefit on the requesting participant or
participants; or
(2) one or more participants have failed to commence
construction of facilities or provide for equipment necessary to
accept water from alternative sources by a date that is 120 days or
more after written notice from the authority of the availability of
such water from alternative sources and of the rules of the
authority requiring such action.
Sec. 11H. INTEREST AND PENALTIES; COLLECTIONS; LIEN.
(a) The board may require the payment of interest on any late or
unpaid fees, user fees, rates, charges, and special assessments due
the authority, but the interest rate may not exceed the interest
rate permitted by Section 2251.025, Government Code. The board may
also impose penalties for the failure to make a complete or timely
payment to the authority. In addition, the board may exclude a
participant, or the service area or territory or a groundwater well
owned or controlled by a participant, from the authority's
groundwater reduction plan for failure to make a complete or timely
payment to the authority. The authority is entitled to reasonable
attorney's fees incurred by the authority in enforcing its rules or
in collecting any delinquent fees, user fees, rates, charges, and
special assessments and any related penalties and interest.
(b) In addition to being the legal responsibility of a
participant or well owner, the fees, user fees, rates, charges, and
special assessments imposed by the authority under Sections 11F and
11G of this Act, any related penalties and interest, and collection
expenses and reasonable attorney's fees incurred by the authority:
(1) are a first and prior lien against the groundwater
well to which they apply; and
(2) are superior to any other lien or claim, other than
a lien or claim for county, school district, or municipal ad valorem
taxes.
(c) A lien under this section is effective from the date of
the resolution or order of the board imposing the fee, user fee,
rate, charge, or special assessment until paid. The board may
enforce the lien in the same manner that a municipal utility
district operating under Chapters 49 and 54, Water Code, may
enforce an ad valorem tax lien against real property.
Sec. 11I. ADMINISTRATIVE PENALTY; INJUNCTION. (a) A
person who violates a rule or order of the authority imposed under
Sections 11 through 11M of this Act is subject to an administrative
penalty, payable to the authority:
(1) in an amount of not more than $5,000, as determined
by the board, for each violation or each day of a continuing
violation; or
(2) in an amount in excess of $5,000, as determined by
the board, necessary to recoup any administrative fines or
penalties imposed against the authority resulting from one or more
violations of the rules or orders of the authority by one or more
participants.
(b) The authority may bring an action to recover the penalty
in a district court in the county where the violation occurred.
(c) The authority may bring an action for injunctive relief
in a district court in the county where a violation of a rule or
order of the authority occurs or is threatened to occur. The court
may grant to the authority, without bond or other undertaking, a
prohibitory or mandatory injunction, as warranted by the facts,
including a temporary restraining order, temporary injunction, or
permanent injunction.
(d) The authority may bring an action for an administrative
penalty and injunctive relief in the same proceeding.
Sec. 11J. WAIVER OF IMMUNITY. Immunity from suit,
judgment, or liability of any local government participating in the
authority's groundwater reduction plan is hereby waived, but only
to the limited extent necessary to permit the authority to exercise
and enforce the rights, powers, privileges, and authority granted
in Sections 11 through 11M of this Act against any such local
government.
Sec. 11K. ELIGIBILITY FOR FINANCIAL ASSISTANCE. In
addition to any other financial assistance program for which the
authority may be eligible, the rights, powers, privileges, and
authority conferred by Sections 11 through 11M of this Act shall be
construed as authorizing the authority to receive financial
assistance through the Groundwater District Loan Program
administered by the Texas Water Development Board.
Sec. 11L. PUBLIC HEARINGS. The board by rule may establish
the procedures for conducting public hearings and whether any
hearing shall be conducted by the board or a hearings examiner. Any
public hearing may be adjourned from time to time to a date, time,
and location specified upon adjournment, without the necessity for
further notice.
Sec. 11M. OPERATING DIVISION. (a) To facilitate the
implementation of a groundwater reduction plan, the authority
shall:
(1) establish and maintain a separate operating
division of the authority with separate books of account that shall
be audited annually;
(2) contract for, lease, or purchase, by and for the
separate operating division, services, land, equipment, and
facilities, including administrative and management services and
facilities, and water and water byproducts, from the authority or
one or more other operating divisions of the authority or from other
persons; and
(3) allocate to the separate operating division a
proportional share of the direct and indirect costs of the
authority's general and administrative, managerial, accounting,
legal, fiscal, clerical, human resources, support services, and
technical services.
(b) The separate operating division shall be operated for
the exclusive benefit of the participants in the authority's
groundwater reduction plan and not for the use or benefit of any
water user outside the plan area, on a break-even basis, without
profit or loss to the separate operating division, such that,
except as provided in Subsection (i), Section 11F of this Act, the
assets, income, responsibilities, liabilities, and debts of the
separate operating division are not a charge against, an obligation
or responsibility of, or an asset of or income source to any other
operating division of the authority. Nothing in this subsection
shall be deemed or construed to limit or restrict the right and
power of the authority or one or more of its other operating
divisions to:
(1) prepare, maintain, audit, or report its financial
position on a consolidated basis with one or more other operating
divisions of the authority;
(2) sell untreated water to such separate operating
division from one or more other operating divisions of the
authority or from other sources at generally prevailing and
applicable rates adopted by the authority; or
(3) recover or be reimbursed the costs described in
Subsection (a) of this section.
SECTION 2. Sections 10, 10a, 10b, 10c, and 10d, Chapter 426,
Acts of the 45th Legislature, Regular Session, 1937, are repealed.
SECTION 3. Chapter 426, Acts of the 45th Legislature,
Regular Session, 1937, is amended by adding Section 10A to read as
follows:
Sec. 10A. PUBLIC SECURITIES. (a) In this section:
(1) "Public security" has the meaning assigned by
Chapter 1201, Government Code.
(2) "Credit agreement," "security agreement," and
"security interest" have the meanings assigned by Chapter 1208,
Government Code.
(b) The authority is authorized to issue, sell, and deliver
its public securities in the manner provided by this section or
other law, including Chapter 1371, Government Code, to finance or
pay for any project, improvement, program, plan, or purpose of the
authority or to refund or refinance any public security.
(c) Public securities of the authority may be sold by the
board or by delegation of authority to an officer or employee of the
authority, at public or private sale, in such form, at such price,
on such terms and conditions, and at such interest rate or rates,
whether fixed, variable, floating, adjustable, or otherwise, as the
board may determine appropriate, provided the net effective
interest rate does not exceed the maximum rate allowed by law.
(d) Without the necessity for an election, public
securities of the authority may be made payable from all or any
designated portion or combination of any revenues, receipts, fees,
user fees, rates, charges, special assessments, contract revenues,
income, proceeds of refunding public securities, or funds from any
other source of the authority other than ad valorem taxes. Public
securities of the authority payable in whole or in part from ad
valorem taxes may be issued only after approval by a majority of the
qualified electors of all or a defined portion of the service area
of the authority voting at an election held for that purpose. The
board may call and conduct elections within all or a defined portion
of the service area of the authority for that purpose.
(e) Public securities of the authority may be secured by
means of a security agreement or credit agreement, or both, and with
such security interest or interests, other than a mortgage interest
on real property, and with such parity or priority of pledge and
lien as the board may determine to be appropriate.
SECTION 4. The repeal of laws under Section 2 of this Act
shall not affect the validity, enforceability, security, priority
of lien, or other terms and conditions of any bonds, notes, or
obligations of the San Jacinto River Authority issued or incurred
prior to the effective date of this Act.
SECTION 5. The legislature finds that proper and legal
notice of the intention to introduce this Act, setting forth the
general substance of this Act, has been published as provided by
law, and such notice and a copy of this Act have been furnished to
all persons, agencies, officials, or entities to which they are
required to be furnished by the constitution and laws of this state,
including the governor, who has submitted the notice and Act to the
Texas Commission on Environmental Quality, and that the Texas
Commission on Environmental Quality has filed its recommendations
relating to this Act with the governor, lieutenant governor, and
speaker of the house of representatives within the required time,
and that all requirements of the constitution and laws of this state
and the rules and procedures of the legislature with respect to the
notice, introduction, and passage of this Act have been fulfilled
and accomplished.
SECTION 6. The legislature finds, determines, and declares
its intent that:
(1) the conservation and preservation of groundwater
resources in Montgomery County is essential to the economic
well-being and public health of the state as a whole;
(2) effective measures to reduce groundwater
withdrawals by large-volume groundwater users in Montgomery County
must be implemented immediately;
(3) the withdrawal of groundwater from shallow
aquifers for domestic or household use by individuals has no
significant negative impact on groundwater resources in Montgomery
County; and
(4) under no circumstances shall this Act be
interpreted, deemed, or construed to apply to or to authorize the
reduction of groundwater withdrawal by any person that owns or
operates a single groundwater well serving not more than two
single-family residential dwellings or units.
SECTION 7. The provisions of this Act are severable. If any
word, phrase, clause, sentence, section, provision, or part of this
Act is held invalid or unconstitutional, it shall not affect the
validity of the remaining portions, and it is declared to be the
legislative intent that this Act would have been passed as to the
remaining portions regardless of the invalidity of any part.
SECTION 8. 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.
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