Texas 2011 - 82nd Regular

Texas House Bill HB3668 Compare Versions

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1	1	82R25983 JXC-F
2	2	By: Callegari, Thompson, Orr, Ritter H.B. No. 3668
3	3	Substitute the following for H.B. No. 3668:
4	4	By: Miller of Comal C.S.H.B. No. 3668
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to certificates of public convenience and necessity for
10	10	water or sewer services.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Section 13.245, Water Code, is amended by
13	13	amending Subsection (b) and adding Subsections (c-1), (c-2), and
14	14	(c-3) to read as follows:
15	15	(b) Except as provided by Subsections [Subsection] (c),
16	16	(c-1), and (c-2), the commission may not grant to a retail public
17	17	utility a certificate of public convenience and necessity for a
18	18	service area within the boundaries or extraterritorial
19	19	jurisdiction of a municipality without the consent of the
20	20	municipality. The municipality may not unreasonably withhold the
21	21	consent. As a condition of the consent, a municipality may require
22	22	that all water and sewer facilities be designed and constructed in
23	23	accordance with the municipality's standards for facilities.
24	24	(c-1) If a municipality has not consented under Subsection
25	25	(b) before the 180th day after the date a landowner or a retail
26	26	public utility submits to the municipality a formal request for
27	27	service according to the municipality's application requirements
28	28	and standards for facilities on the same or substantially similar
29	29	terms as provided by the retail public utility's application to the
30	30	commission, including a capital improvements plan required by
31	31	Section 13.244(d)(3) or a subdivision plat, the commission may
32	32	grant the certificate of public convenience and necessity without
33	33	the consent of the municipality if:
34	34	(1) the commission makes the findings required by
35	35	Subsection (c);
36	36	(2) the municipality has not entered into a binding
37	37	commitment to serve the area that is the subject of the retail
38	38	public utility's application to the commission before the 180th day
39	39	after the date the formal request was made; and
40	40	(3) the landowner or retail public utility that
41	41	submitted the formal request has not unreasonably refused to:
42	42	(A) comply with the municipality's service
43	43	extension and development process; or
44	44	(B) enter into a contract for water or sewer
45	45	services with the municipality.
46	46	(c-2) If a municipality refuses to provide service in the
47	47	proposed service area, as evidenced by a formal vote of the
48	48	municipality's governing body or an official notification from the
49	49	municipality, the commission is not required to make the findings
50	50	otherwise required by this section and may grant the certificate of
51	51	public convenience and necessity to the retail public utility at
52	52	any time after the date of the formal vote or receipt of the
53	53	official notification.
54	54	(c-3) The commission must include as a condition of a
55	55	certificate of public convenience and necessity granted under
56	56	Subsection (c-1) or (c-2) that all water and sewer facilities be
57	57	designed and constructed in accordance with the municipality's
58	58	standards for water and sewer facilities.
59	59	SECTION 2. Sections 13.2451(a) and (b), Water Code, are
60	60	amended to read as follows:
61	61	(a) Except as provided by Subsection (b), if [If] a
62	62	municipality extends its extraterritorial jurisdiction to include
63	63	an area certificated to a retail public utility, the retail public
64	64	utility may continue and extend service in its area of public
65	65	convenience and necessity under the rights granted by its
66	66	certificate and this chapter.
67	67	(b) The commission may not extend a municipality's
68	68	certificate of public convenience and necessity beyond its
69	69	extraterritorial jurisdiction if an owner of land that is located
70	70	wholly or partly outside the extraterritorial jurisdiction elects
71	71	to exclude some or all of the landowner's property within a proposed
72	72	service area in accordance with Section 13.246(h). This subsection
73	73	does not apply to a transfer of a certificate as approved by the
74	74	commission. [A municipality that seeks to extend a certificate of
75	75	public convenience and necessity beyond the municipality's
76	76	extraterritorial jurisdiction must ensure that the municipality
77	77	complies with Section 13.241 in relation to the area covered by the
78	78	portion of the certificate that extends beyond the municipality's
79	79	extraterritorial jurisdiction.]
80	80	SECTION 3. Section 13.246(h), Water Code, is amended to
81	81	read as follows:
82	82	(h) Except as provided by Subsection (i), a landowner who
83	83	owns a tract of land that is at least 25 acres and that is wholly or
84	84	partially located within the proposed service area may elect to
85	85	exclude some or all of the landowner's property from the proposed
86	86	service area by providing written notice to the commission before
87	87	the 30th day after the date the landowner receives notice of a new
88	88	application for a certificate of public convenience and necessity
89	89	or for an amendment to an existing certificate of public
90	90	convenience and necessity. The landowner's election is effective
91	91	without a further hearing or other process by the commission. If a
92	92	landowner makes an election under this subsection, the application
93	93	shall be modified so that the electing landowner's property is not
94	94	included in the proposed service area. An applicant for a
95	95	certificate of public convenience and necessity that has land
96	96	removed from its proposed certificated service area because of a
97	97	landowner's election under this subsection may not be required to
98	98	provide service to the removed land for any reason, including the
99	99	violation of law or commission rules by the water or sewer system of
100	100	another person.
101	101	SECTION 4. Section 13.254, Water Code, is amended by
102	102	amending Subsections (a-1), (a-2), and (a-3) and adding Subsection
103	103	(h) to read as follows:
104	104	(a-1) As an alternative to decertification under Subsection
105	105	(a), the owner of a tract of land that is at least 50 acres and that
106	106	is not in a platted subdivision actually receiving water or sewer
107	107	service may petition the commission under this subsection for
108	108	expedited release of the area from a certificate of public
109	109	convenience and necessity so that the area may receive service from
110	110	another retail public utility. The fact that a certificate holder
111	111	is a borrower under a federal loan program is not a bar to a request
112	112	under this subsection for the release of the petitioner's land and
113	113	the receipt of services from an alternative provider. On the day
114	114	the petitioner submits the petition to the commission, the [The]
115	115	petitioner shall send [deliver], via certified mail, a copy of the
116	116	petition to the certificate holder, who may submit information to
117	117	the commission to controvert information submitted by the
118	118	petitioner. The petitioner must demonstrate that:
119	119	(1) a written request for service, other than a
120	120	request for standard residential or commercial service, has been
121	121	submitted to the certificate holder, identifying:
122	122	(A) the area for which service is sought;
123	123	(B) the timeframe within which service is needed
124	124	for current and projected service demands in the area;
125	125	(C) the level and manner of service needed for
126	126	current and projected service demands in the area;
127	127	(D) the approximate cost for the alternative
128	128	provider to provide the service at the same level and manner that is
129	129	requested from the certificate holder;
130	130	(E) the flow and pressure requirements and
131	131	specific infrastructure needs, including line size and system
132	132	capacity for the required level of fire protection requested; and
133	133	(F) [(D)] any additional information requested
134	134	by the certificate holder that is reasonably related to
135	135	determination of the capacity or cost for providing the service;
136	136	(2) the certificate holder has been allowed at least
137	137	90 calendar days to review and respond to the written request and
138	138	the information it contains;
139	139	(3) the certificate holder:
140	140	(A) has refused to provide the service;
141	141	(B) is not capable of providing the service on a
142	142	continuous and adequate basis within the timeframe, at the level,
143	143	at the approximate cost that the alternative provider is capable of
144	144	providing for a comparable level of service, or in the manner
145	145	reasonably needed or requested by current and projected service
146	146	demands in the area; or
147	147	(C) conditions the provision of service on the
148	148	payment of costs not properly allocable directly to the
149	149	petitioner's service request, as determined by the commission; and
150	150	(4) the alternate retail public utility from which the
151	151	petitioner will be requesting service possesses the financial,
152	152	managerial, and technical capability to provide [is capable of
153	153	providing] continuous and adequate service within the timeframe, at
154	154	the level, at the cost, and in the manner reasonably needed or
155	155	requested by current and projected service demands in the area.
156	156	(a-2) A landowner is not entitled to make the election
157	157	described in Subsection (a-1) but is entitled to contest under
158	158	Subsection (a) the involuntary certification of its property in a
159	159	hearing held by the commission if the landowner's property is
160	160	located:
161	161	(1) within the boundaries of any municipality or the
162	162	extraterritorial jurisdiction of a municipality with a population
163	163	of more than 500,000 and the municipality or retail public utility
164	164	owned by the municipality is the holder of the certificate; or
165	165	(2) in a platted subdivision actually receiving water
166	166	or sewer service.
167	167	(a-3) Within 60 [90] calendar days from the date the
168	168	commission determines the petition filed pursuant to Subsection
169	169	(a-1) to be administratively complete, the commission shall grant
170	170	the petition unless the commission makes an express finding that
171	171	the petitioner failed to satisfy the elements required in
172	172	Subsection (a-1) and supports its finding with separate findings
173	173	and conclusions for each element based solely on the information
174	174	provided by the petitioner and the certificate holder. The
175	175	commission may grant or deny a petition subject to terms and
176	176	conditions specifically related to the service request of the
177	177	petitioner and all relevant information submitted by the petitioner
178	178	and the certificate holder. In addition, the commission may
179	179	require an award of compensation as otherwise provided by this
180	180	section. If the certificate holder has never made service
181	181	available through planning, design, construction of facilities, or
182	182	contractual obligations to serve the area the petitioner seeks to
183	183	have released, the commission is not required to find that the
184	184	proposed alternative provider is capable of providing better
185	185	service than the certificate holder, but only that the proposed
186	186	alternative provider is capable of providing the requested service.
187	187	(h) A certificate holder that has land removed from its
188	188	certificated service area in accordance with this section may not
189	189	be required, after the land is removed, to provide service to the
190	190	removed land for any reason, including the violation of law or
191	191	commission rules by a water or sewer system of another person.
192	192	SECTION 5. The changes made by this Act to Sections 13.245,
193	193	13.2451, 13.246, and 13.254, Water Code, apply only to:
194	194	(1) a retail public utility's application for a
195	195	certificate of public convenience and necessity for a service area
196	196	in the extraterritorial jurisdiction of a municipality that is made
197	197	on or after the effective date of this Act;
198	198	(2) an extension of a municipality's certificate of
199	199	public convenience and necessity for a service area in the
200	200	extraterritorial jurisdiction of the municipality on or after the
201	201	effective date of this Act; and
202	202	(3) a petition to release an area from a certificate of
203	203	public convenience and necessity that is made on or after the
204	204	effective date of this Act.
205	205	SECTION 6. This Act takes effect September 1, 2011.