82R22553 SGA-F
By: Price H.B. No. 2166
Substitute the following for H.B. No. 2166:
By: Lucio III C.S.H.B. No. 2166
A BILL TO BE ENTITLED
AN ACT
relating to the procedures for and appeals of desired future
conditions adopted by groundwater management areas.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 36.001, Water Code, is amended by adding
Subdivision (30) to read as follows:
(30) "Desired future condition" means a quantitative
description, adopted in accordance with Section 36.108, of the
desired condition of the groundwater resources in a management area
at one or more specified future times.
SECTION 2. Section 36.063, Water Code, is amended to read as
follows:
Sec. 36.063. NOTICE OF MEETINGS. (a) Except as provided by
Subsections (b) and (c), notice [Notice] of meetings of the board
shall be given as set forth in the Open Meetings Act, Chapter 551,
Government Code. Neither failure to provide notice of a regular
meeting nor an insubstantial defect in notice of any meeting shall
affect the validity of any action taken at the meeting.
(b) At least 10 days before a hearing under Section
36.108(d-2) or a meeting at which a district will adopt a desired
future condition under Section 36.108(d-4), the board must post
notice that includes:
(1) the proposed desired future conditions and a list
of any other agenda items;
(2) the date, time, and location of the meeting or
hearing;
(3) the name, telephone number, and address of the
person to whom questions or requests for additional information may
be submitted;
(4) the names of the other districts in the district's
management area; and
(5) information on how the public may submit comments.
(c) Except as provided by Subsection (b), notice of a
hearing described by Subsection (b) must be provided in the manner
prescribed for a rulemaking hearing under Section 36.101(d).
SECTION 3. Sections 36.1071(a) and (e), Water Code, are
amended 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 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 adopted by the district under Section 36.108 [of
the groundwater resources].
(e) In the management plan described under Subsection (a),
the district shall:
(1) identify the performance standards and management
objectives under which the district will operate to achieve the
management goals identified under Subsection (a);
(2) specify, in as much detail as possible, the
actions, procedures, performance, and avoidance that are or may be
necessary to effect the plan, including specifications and proposed
rules;
(3) include estimates of the following:
(A) managed available groundwater in the
district based on the desired future condition adopted
[established] under Section 36.108;
(B) the amount of groundwater being used within
the district on an annual basis;
(C) the annual amount of recharge from
precipitation, if any, to the groundwater resources within the
district;
(D) for each aquifer, the annual volume of water
that discharges from the aquifer to springs and any surface water
bodies, including lakes, streams, and rivers;
(E) the annual volume of flow into and out of the
district within each aquifer and between aquifers in the district,
if a groundwater availability model is available;
(F) the projected surface water supply in the
district according to the most recently adopted state water plan;
and
(G) the projected total demand for water in the
district according to the most recently adopted state water plan;
and
(4) consider the water supply needs and water
management strategies included in the adopted state water plan.
SECTION 4. Subchapter D, Chapter 36, Water Code, is amended
by amending Section 36.108 and adding Sections 36.1081 through
36.1087 to read as follows:
Sec. 36.108. JOINT PLANNING IN MANAGEMENT AREA. (a) In
this section:
(1) "Development [, "development] board" means the
Texas Water Development Board.
(2) "District representative" means the presiding
officer or the presiding officer's designee for any district
located wholly or partly in the management area.
(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 new or revised management plan to the
other districts in the management area. The boards of the districts
shall consider the plans individually and shall compare them to
other management plans then in force in the management area.
(c) The district representatives [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 management plans, the [and] accomplishments
of [for] the management area, and proposals to adopt new or amend
existing desired future conditions. In reviewing the management
plans, the districts shall consider:
(1) the goals of each management plan and its impact on
planning throughout the management area;
(2) the effectiveness of the measures established by
each 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 management plan achieves
the desired future conditions established during the joint planning
process.
(d) Not later than September 1, 2010, and every five years
thereafter, the districts shall consider groundwater availability
models and other data or information for the management area and
shall propose for adoption [establish] desired future conditions
for the relevant aquifers within the management area. Before
voting on the proposed [In establishing the] desired future
conditions of the aquifers under Subsection (d-2) [this section],
the districts shall consider:
(1) aquifer uses or conditions within the management
area, including conditions that differ substantially from one
geographic area to another;
(2) the water supply needs and water management
strategies included in the state water plan;
(3) hydrological conditions, including for each
aquifer in the management area the total estimated recoverable
storage as provided by the executive administrator, and the average
annual recharge, inflows, and discharge;
(4) other environmental impacts, including impacts on
spring flow and other interactions between groundwater and surface
water;
(5) the impact on subsidence;
(6) socioeconomic impacts reasonably expected to
occur;
(7) the impact on the interests and rights in private
property, including ownership and the rights of management area
landowners and their lessees and assigns in groundwater as
recognized under Section 36.002;
(8) whether the desired future conditions are
physically possible; and
(9) any other information relevant to the specific
desired future conditions [uses or conditions of an aquifer within
the management area that differ substantially from one geographic
area to another].
(d-1) The districts may establish different desired future
conditions for:
(1) each aquifer, subdivision of an aquifer, or
geologic strata located in whole or in part within the boundaries of
the management area; or
(2) each geographic area overlying an aquifer in whole
or in part or subdivision of an aquifer within the boundaries of the
management area.
(d-2) [(d-1)] The desired future conditions proposed
[established] under Subsection (d) must provide a balance between
the highest practicable level of groundwater production and the
conservation, preservation, protection, recharging, and prevention
of waste of groundwater and control of subsidence in the management
area. This subsection does not prohibit the establishment of
desired future conditions that provide for the reasonable long-term
management of groundwater resources consistent with the management
goals under Section 36.1071(a). The desired future conditions
proposed under Subsection (d) must be approved [adopted] by a
two-thirds vote of all the district representatives for
distribution to the districts in the management area. A period of
not less than 30 or more than 90 days for public comments begins on
the day the proposed desired future conditions are mailed to the
districts. During the public comment period and after posting
notice as required by Section 36.063, each district shall hold a
public hearing on the proposed desired future conditions relevant
to that district. During the public comment period, the district
shall make available in its office a copy of the proposed desired
future conditions and any supporting materials, such as the
documentation of factors considered under Subsection (d) and
groundwater availability model run results. After the public
hearing, the district shall compile for consideration at the next
joint planning meeting a summary of relevant comments received, any
suggested revisions to the proposed desired future conditions, and
the basis for the revisions [present at a meeting:
[(1) at which at least two-thirds of the districts
located in whole or in part in the management area have a voting
representative in attendance; and
[(2) for which all districts located in whole or in
part in the management area provide public notice in accordance
with Chapter 551, Government Code.
[(d-2) Each district in the management area shall ensure
that its management plan contains goals and objectives consistent
with achieving the desired future conditions of the relevant
aquifers as adopted during the joint planning process].
(d-3) After the earlier of the date on which all the
districts have submitted their district summaries or the expiration
of the public comment period under Subsection (d-2), the district
representatives shall reconvene to review the reports, consider any
district's suggested revisions to the proposed desired future
conditions, and finally adopt the desired future conditions for the
management area. The desired future conditions must be adopted as a
resolution by a two-thirds vote of all the district
representatives. The district representatives shall produce a
desired future conditions explanatory report for the management
area and submit to the development board and each district in the
management area proof that notice was posted for the joint planning
meeting, a copy of the resolution, and a copy of the explanatory
report. The report must:
(1) identify each desired future condition;
(2) provide the policy and technical justifications
for each desired future condition;
(3) include documentation that the factors under
Subsection (d) were considered by the districts and a discussion of
how the adopted desired future conditions impact each factor;
(4) list other desired future condition options
considered, if any, and the reasons why those options were not
adopted; and
(5) discuss reasons why recommendations made by
advisory committees and public comments received by the districts
were or were not incorporated into the desired future conditions.
(d-4) As soon as possible after a district receives the
desired future conditions resolution and explanatory report under
Subsection (d-3), the district shall adopt the desired future
conditions in the resolution and report that apply to the district.
(e) Except as provided by this section, a [A] joint meeting
under this section must be held in accordance with Chapter 551,
Government Code. Each district shall comply with Chapter 552,
Government Code. The district representatives may elect one
district to be responsible for providing the notice of a joint
meeting that this section would otherwise require of each district
in the management area. Notice of a joint [the] meeting must be
provided at least 10 days before the date of the meeting by:
(1) providing notice to the secretary of state;
(2) providing notice to the county clerk of each
county located wholly or partly in a district that is located wholly
or partly in the management area; and
(3) posting notice at a place readily accessible to
the public at the district office of each district located wholly or
partly in the management area.
(e-1) The secretary of state and the county clerk of each
county described by Subsection (e) shall post notice of the meeting
in the manner provided by Section 551.053, Government Code.
(e-2) Notice of a joint meeting must include:
(1) the date, time, and location of the meeting;
(2) a summary of any action proposed to be taken;
(3) the name of each district located wholly or partly
in the management area; and
(4) the name, telephone number, and address of one or
more persons to whom questions, requests for additional
information, or comments may be submitted.
(e-3) The failure or refusal of one or more districts to
post notice for a joint meeting under Subsection (e)(3) does not
invalidate an action taken at the joint meeting [shall be given in
accordance with the requirements for notice of district board of
directors meetings under that Act].
Sec. 36.1081. TECHNICAL STAFF AND SUBCOMMITTEES FOR JOINT
PLANNING. (a) On request, the commission and the Texas Water
Development Board shall make technical staff available to serve in
a nonvoting advisory capacity to assist with the development of
desired future conditions during the joint planning process under
Section 36.108.
(b) During the joint planning process under Section 36.108,
the district representatives may appoint and convene nonvoting
advisory subcommittees who represent social, governmental,
environmental, or economic interests to assist in the development
of desired future conditions.
Sec. 36.1082. PETITION FOR INQUIRY. (a) In this section,
"affected person" means, with respect to a management area:
(1) an owner of land in the management area;
(2) a district in or adjacent to the management area;
(3) a regional water planning group with a water
management strategy in the management area;
(4) a person who holds or is applying for a permit from
a district in the management area;
(5) a person who, under Section 36.002, has an
ownership interest in groundwater in the management area; or
(6) any other person defined as affected by commission
rule.
(b) An affected person [(f) A district or person with a
legally defined interest in the groundwater within the management
area] may file a petition with the commission requesting an inquiry
for any of the following reasons:
(1) a district fails to submit its management plan to
the executive administrator;
(2) [if] a district fails [or districts refused] to
participate [join] in the joint planning process under Section
36.108;
(3) a district fails to adopt rules;
(4) a district fails to adopt the applicable desired
future conditions adopted by the management area at a joint
meeting;
(5) a district fails to update its management plan
before the second anniversary of the adoption of desired future
conditions by the management area;
(6) a district fails to update its rules to implement
the applicable desired future conditions before the first
anniversary of the date it updated its management plan with the
adopted desired future conditions;
(7) [or the process failed to result in adequate
planning, including the establishment of reasonable future desired
conditions of the aquifers, and the petition provides evidence
that:
[(1) a district in the groundwater management area has
failed to adopt rules;
[(2)] the rules adopted by a district are not designed
to achieve the desired future conditions adopted by [condition of
the groundwater resources in] the [groundwater] management area
[established] during the joint planning process;
(8) [(3)] the groundwater in the management area is
not adequately protected by the rules adopted by a district; or
(9) [(4)] the groundwater in the [groundwater]
management area is not adequately protected due to the failure of a
district to enforce substantial compliance with its rules.
(c) [(g)] Not later than the 90th day after the date the
petition is filed, the commission shall review the petition and
either:
(1) dismiss the petition if the commission finds that
the evidence is not adequate to show that any of the conditions
alleged in the petition exist; or
(2) select a review panel as provided in Subsection
(d) [(h)].
(d) [(h)] If the petition is not dismissed under Subsection
(c) [(g)], the commission shall appoint a review panel consisting
of a chairman and four other members. A director or general manager
of a district located outside the [groundwater] management area
that is the subject of the petition may be appointed to the review
panel. The commission may not appoint more than two members of the
review panel from any one district. The commission also shall
appoint a disinterested person to serve as a nonvoting recording
secretary for the review panel. The recording secretary may be an
employee of the commission. The recording secretary shall record
and document the proceedings of the panel.
(e) [(i)] Not later than the 120th day after appointment,
the review panel shall review the petition and any evidence
relevant to the petition and, in a public meeting, consider and
adopt a report to be submitted to the commission. The commission
may direct the review panel to conduct public hearings at a location
in the [groundwater] management area to take evidence on the
petition. The review panel may attempt to negotiate a settlement or
resolve the dispute by any lawful means.
(f) [(j)] In its report, the review panel shall include:
(1) a summary of all evidence taken in any hearing on
the petition;
(2) a list of findings and recommended actions
appropriate for the commission to take and the reasons it finds
those actions appropriate; and
(3) any other information the panel considers
appropriate.
(g) [(k)] The review panel shall submit its report to the
commission. The commission may take action under Section 36.3011.
Sec. 36.1083. ADMINISTRATIVE APPEAL OF DESIRED FUTURE
CONDITIONS. (a) In this section:
(1) "Affected person" has the meaning assigned by
Section 36.1082.
(2) "Development board" means the Texas Water
Development Board.
(3) "Office" means the State Office of Administrative
Hearings.
(b) Not later than the 180th day after the date on which a
district adopted a desired future condition under Section
36.108(d-4), an affected person may file a petition with the
district requesting that the district contract with the office to
conduct a hearing to appeal the desired future condition, including
the reasonableness of the desired future condition.
(c) Not later than the 45th day after receiving a request
under Subsection (b), the district shall:
(1) contract with the office;
(2) request a contested case hearing; and
(3) submit a copy of the petition to the office.
(d) The hearing must be held at a location described by
Section 36.403(c). The hearing shall be conducted in accordance
with Chapter 2001, Government Code, and rules of the office.
(e) The district may adopt rules for notice and hearings
conducted under this section that are consistent with the
procedural rules of the office. In the manner prescribed by
district and office rules, the district shall provide general
notice of the hearing and individual notice of the hearing to the
petitioner, any other party in the hearing identified under
Subsection (f)(3), each nonparty district and regional water
planning group in the management area, the development board, and
the commission. Only an affected person may participate as a party
in the hearing.
(f) The office shall hold a prehearing conference to
determine preliminary matters including:
(1) whether the petition should be dismissed for
failure to state a claim on which relief can be granted;
(2) whether a person is an affected person and
eligible to participate as a party in the hearing; and
(3) naming parties to the hearing.
(g) The petitioner shall pay all costs associated with the
contract for the hearing and shall deposit with the district an
amount sufficient to pay the contract amount before the hearing
begins. At the conclusion of the hearing, the district shall refund
any excess money to the petitioner.
(h) If the administrative law judge finds that a technical
analysis is needed related to the hydrogeology of the area or
matters within the development board's expertise, the judge may
request a study from the development board. In conducting the
technical analysis, the development board shall consider any
relevant information provided in the petition, as well as any
groundwater availability models, published studies, or other
information the development board considers relevant. The study
must be completed and delivered to the office not later than the
120th day after the date of the request for admission into the
evidentiary record for consideration at the hearing. The
development board shall make available the relevant staff as expert
witnesses during the hearing if requested by any party or the
administrative law judge.
(i) On receipt of the administrative law judge's findings of
fact and conclusions of law in a proposal for decision, including a
dismissal of a petition under Subsection (f), the district's board
shall issue a final order stating the district's decision on the
contested matter and the district's findings of fact and
conclusions of law. The board may change a finding of fact or
conclusion of law made by the administrative law judge, or may
vacate or modify an order issued by the administrative law judge in
the same manner as a state agency under Section 2001.058(e),
Government Code. If the district in its final order finds that a
desired future condition is unreasonable, the districts in the
management area shall reconvene in a joint planning meeting not
later than the 30th day after the date of the final order to revise
the desired future condition.
(j) A district's final order finding that a desired future
condition is unreasonable does not invalidate the desired future
condition for a district not subject to the petition.
Sec. 36.1084. COURT APPEAL OF DESIRED FUTURE CONDITION. A
final district order under Section 36.1083 may be appealed to the
Travis County district court under the substantial evidence
standard of review as provided by Section 2001.174, Government
Code. If the court finds that a desired future condition is
unreasonable, the court shall strike the desired future condition
and order the districts in the management area to reconvene in a
joint planning meeting not later than the 30th day after the date of
the court's decision to revise the desired future condition.
Sec. 36.1085. MANAGED AVAILABLE GROUNDWATER. (a) The
Texas Water Development Board shall require the [(l) A person with
a legally defined interest in the groundwater in the groundwater
management area, a district in or adjacent to the groundwater
management area, or a regional water planning group for a region in
the groundwater management area may file a petition with the
development board appealing the approval of the desired future
conditions of the groundwater resources established under this
section. The petition must provide evidence that the districts did
not establish a reasonable desired future condition of the
groundwater resources in the groundwater management area.
[(m) The development board shall review the petition and any
evidence relevant to the petition. The development board shall
hold at least one hearing at a central location in the management
area to take testimony on the petition. The development board may
delegate responsibility for a hearing to the executive
administrator or to a person designated by the executive
administrator. If the development board finds that the conditions
require revision, the development board shall submit a report to
the districts that includes a list of findings and recommended
revisions to the desired future conditions of the groundwater
resources.
[(n) The districts shall prepare a revised 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.
[(o) The] districts in a management area to [shall] submit
to the executive administrator not later than the 60th day after the
date on which the districts adopted desired future conditions under
Section 36.108(d-3):
(1) the desired future conditions adopted
[established] under Section 36.108;
(2) proof that notice was posted for the joint
planning meeting; and
(3) the desired future conditions explanatory report
[this section to the executive administrator].
(b) The executive administrator shall provide each district
and regional water planning group located wholly or partly in the
management area with the managed available groundwater in the
management area based upon the desired future conditions adopted by
the districts [condition of the groundwater resources established
under this section].
Sec. 36.1086. MANAGEMENT PLAN GOALS AND OBJECTIVES. Each
district in the management area shall ensure that its management
plan contains goals and objectives consistent with achieving the
desired future conditions of the relevant aquifers as adopted
during the joint planning process.
Sec. 36.1087. JOINT EFFORTS BY DISTRICTS IN A MANAGEMENT
AREA. [(p)] Districts located within the same [groundwater]
management areas or in adjacent management areas may contract to
jointly conduct studies or research, or to construct projects,
under terms and conditions that the districts consider beneficial.
These joint efforts may include studies of groundwater availability
and quality, aquifer modeling, and the interaction of groundwater
and surface water; educational programs; the purchase and sharing
of equipment; and the implementation of projects to make
groundwater available, including aquifer recharge, brush control,
weather modification, desalination, regionalization, and treatment
or conveyance facilities. The districts may contract under their
existing authorizations including those of Chapter 791, Government
Code, if their contracting authority is not limited by Sections
791.011(c)(2) and (d)(3) and Section 791.014, Government Code.
SECTION 5. Section 36.3011, Water Code, is amended to read
as follows:
Sec. 36.3011. COMMISSION ACTION REGARDING [FAILURE OF]
DISTRICT DUTIES [TO CONDUCT JOINT PLANNING]. Not later than the
45th day after receiving the review panel's report under Section
36.1082 [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) the [a] district has failed to submit its
management plan to the executive administrator;
(2) the district has failed to participate in the
joint planning process under Section 36.108;
(3) the [(2) a] district has failed to adopt rules;
(4) the district has failed to adopt the applicable
desired future conditions adopted by the management area at a joint
meeting;
(5) the district has failed to update its management
plan before the second anniversary of the adoption of desired
future conditions by the management area;
(6) the district has failed to update its rules to
implement the applicable desired future conditions before the first
anniversary of the date it updated its management plan with the
adopted desired future conditions;
(7) [(3)] the rules adopted by the district are not
designed to achieve the desired future conditions adopted by
[condition of the groundwater resources in] the [groundwater]
management area during the joint planning process; [or]
(8) [(4)] the groundwater in the management area is
not adequately protected by the rules adopted by the district; [,]
or
(9) the groundwater in the management area is not
adequately protected because of the district's failure to enforce
substantial compliance with its rules.
SECTION 6. The notice provisions of Sections 36.063(b) and
(c), Water Code, as added by this Act, apply only to a meeting or
hearing of a groundwater conservation district or a joint planning
meeting of groundwater conservation districts held on or after the
effective date of this Act. A meeting or hearing held before the
effective date of this Act is subject to the notice provisions in
effect at the time of the meeting or hearing, and those provisions
are continued in effect for that purpose.
SECTION 7. The requirement that a groundwater conservation
district's management plan under Section 36.1071(e), Water Code, as
amended by this Act, include the desired future conditions adopted
under Section 36.108, Water Code, as amended by this Act, for
submission to the executive administrator of the Texas Water
Development Board before the plan is considered administratively
complete applies only to a district management plan submitted to
the executive administrator on or after the effective date of this
Act. A management plan submitted before the effective date of this
Act is governed by the law in effect on the date the plan was
submitted, and that law is continued in effect for that purpose.
SECTION 8. The procedures for the adoption and reporting of
desired future conditions of groundwater resources in a management
area under Section 36.108, Water Code, as amended by this Act, and
Section 36.1085, Water Code, as added by this Act, apply only to the
adoption of desired future conditions that occurs on or after the
effective date of this Act. Desired future conditions adopted
before the effective date of this Act are governed by the law in
effect on the date the desired future conditions were adopted, and
that law is continued in effect for that purpose.
SECTION 9. A petition filed and pending on the effective
date of this Act before the Texas Water Development Board to appeal
the adoption of desired future conditions by a groundwater
management area under former Section 36.108(l), Water Code, shall
be handled by the Texas Water Development Board in compliance with
Sections 36.108(l), (m), and (n), Water Code, as those sections
existed before the effective date of this Act.
SECTION 10. This Act takes effect September 1, 2011.