82R25983 JXC-F
By: Callegari, Thompson, Orr, Ritter H.B. No. 3668
Substitute the following for H.B. No. 3668:
By: Miller of Comal C.S.H.B. No. 3668
A BILL TO BE ENTITLED
AN ACT
relating to certificates of public convenience and necessity for
water or sewer services.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 13.245, Water Code, is amended by
amending Subsection (b) and adding Subsections (c-1), (c-2), and
(c-3) to read as follows:
(b) Except as provided by Subsections [Subsection] (c),
(c-1), and (c-2), the commission may not grant to a retail public
utility a certificate of public convenience and necessity for a
service area within the boundaries or extraterritorial
jurisdiction of a municipality without the consent of the
municipality. The municipality may not unreasonably withhold the
consent. As a condition of the consent, a municipality may require
that all water and sewer facilities be designed and constructed in
accordance with the municipality's standards for facilities.
(c-1) If a municipality has not consented under Subsection
(b) before the 180th day after the date a landowner or a retail
public utility submits to the municipality a formal request for
service according to the municipality's application requirements
and standards for facilities on the same or substantially similar
terms as provided by the retail public utility's application to the
commission, including a capital improvements plan required by
Section 13.244(d)(3) or a subdivision plat, the commission may
grant the certificate of public convenience and necessity without
the consent of the municipality if:
(1) the commission makes the findings required by
Subsection (c);
(2) the municipality has not entered into a binding
commitment to serve the area that is the subject of the retail
public utility's application to the commission before the 180th day
after the date the formal request was made; and
(3) the landowner or retail public utility that
submitted the formal request has not unreasonably refused to:
(A) comply with the municipality's service
extension and development process; or
(B) enter into a contract for water or sewer
services with the municipality.
(c-2) If a municipality refuses to provide service in the
proposed service area, as evidenced by a formal vote of the
municipality's governing body or an official notification from the
municipality, the commission is not required to make the findings
otherwise required by this section and may grant the certificate of
public convenience and necessity to the retail public utility at
any time after the date of the formal vote or receipt of the
official notification.
(c-3) The commission must include as a condition of a
certificate of public convenience and necessity granted under
Subsection (c-1) or (c-2) that all water and sewer facilities be
designed and constructed in accordance with the municipality's
standards for water and sewer facilities.
SECTION 2. Sections 13.2451(a) and (b), Water Code, are
amended to read as follows:
(a) Except as provided by Subsection (b), if [If] a
municipality extends its extraterritorial jurisdiction to include
an area certificated to a retail public utility, the retail public
utility may continue and extend service in its area of public
convenience and necessity under the rights granted by its
certificate and this chapter.
(b) The commission may not extend a municipality's
certificate of public convenience and necessity beyond its
extraterritorial jurisdiction if an owner of land that is located
wholly or partly outside the extraterritorial jurisdiction elects
to exclude some or all of the landowner's property within a proposed
service area in accordance with Section 13.246(h). This subsection
does not apply to a transfer of a certificate as approved by the
commission. [A municipality that seeks to extend a certificate of
public convenience and necessity beyond the municipality's
extraterritorial jurisdiction must ensure that the municipality
complies with Section 13.241 in relation to the area covered by the
portion of the certificate that extends beyond the municipality's
extraterritorial jurisdiction.]
SECTION 3. Section 13.246(h), Water Code, is amended to
read as follows:
(h) Except as provided by Subsection (i), a landowner who
owns a tract of land that is at least 25 acres and that is wholly or
partially located within the proposed service area may elect to
exclude some or all of the landowner's property from the proposed
service area by providing written notice to the commission before
the 30th day after the date the landowner receives notice of a new
application for a certificate of public convenience and necessity
or for an amendment to an existing certificate of public
convenience and necessity. The landowner's election is effective
without a further hearing or other process by the commission. If a
landowner makes an election under this subsection, the application
shall be modified so that the electing landowner's property is not
included in the proposed service area. An applicant for a
certificate of public convenience and necessity that has land
removed from its proposed certificated service area because of a
landowner's election under this subsection may not be required to
provide service to the removed land for any reason, including the
violation of law or commission rules by the water or sewer system of
another person.
SECTION 4. Section 13.254, Water Code, is amended by
amending Subsections (a-1), (a-2), and (a-3) and adding Subsection
(h) to read as follows:
(a-1) As an alternative to decertification under Subsection
(a), the owner of a tract of land that is at least 50 acres and that
is not in a platted subdivision actually receiving water or sewer
service may petition the commission under this subsection for
expedited release of the area from a certificate of public
convenience and necessity so that the area may receive service from
another retail public utility. The fact that a certificate holder
is a borrower under a federal loan program is not a bar to a request
under this subsection for the release of the petitioner's land and
the receipt of services from an alternative provider. On the day
the petitioner submits the petition to the commission, the [The]
petitioner shall send [deliver], via certified mail, a copy of the
petition to the certificate holder, who may submit information to
the commission to controvert information submitted by the
petitioner. The petitioner must demonstrate that:
(1) a written request for service, other than a
request for standard residential or commercial service, has been
submitted to the certificate holder, identifying:
(A) the area for which service is sought;
(B) the timeframe within which service is needed
for current and projected service demands in the area;
(C) the level and manner of service needed for
current and projected service demands in the area;
(D) the approximate cost for the alternative
provider to provide the service at the same level and manner that is
requested from the certificate holder;
(E) the flow and pressure requirements and
specific infrastructure needs, including line size and system
capacity for the required level of fire protection requested; and
(F) [(D)] any additional information requested
by the certificate holder that is reasonably related to
determination of the capacity or cost for providing the service;
(2) the certificate holder has been allowed at least
90 calendar days to review and respond to the written request and
the information it contains;
(3) the certificate holder:
(A) has refused to provide the service;
(B) is not capable of providing the service on a
continuous and adequate basis within the timeframe, at the level,
at the approximate cost that the alternative provider is capable of
providing for a comparable level of service, or in the manner
reasonably needed or requested by current and projected service
demands in the area; or
(C) conditions the provision of service on the
payment of costs not properly allocable directly to the
petitioner's service request, as determined by the commission; and
(4) the alternate retail public utility from which the
petitioner will be requesting service possesses the financial,
managerial, and technical capability to provide [is capable of
providing] continuous and adequate service within the timeframe, at
the level, at the cost, and in the manner reasonably needed or
requested by current and projected service demands in the area.
(a-2) A landowner is not entitled to make the election
described in Subsection (a-1) but is entitled to contest under
Subsection (a) the involuntary certification of its property in a
hearing held by the commission if the landowner's property is
located:
(1) within the boundaries of any municipality or the
extraterritorial jurisdiction of a municipality with a population
of more than 500,000 and the municipality or retail public utility
owned by the municipality is the holder of the certificate; or
(2) in a platted subdivision actually receiving water
or sewer service.
(a-3) Within 60 [90] calendar days from the date the
commission determines the petition filed pursuant to Subsection
(a-1) to be administratively complete, the commission shall grant
the petition unless the commission makes an express finding that
the petitioner failed to satisfy the elements required in
Subsection (a-1) and supports its finding with separate findings
and conclusions for each element based solely on the information
provided by the petitioner and the certificate holder. The
commission may grant or deny a petition subject to terms and
conditions specifically related to the service request of the
petitioner and all relevant information submitted by the petitioner
and the certificate holder. In addition, the commission may
require an award of compensation as otherwise provided by this
section. If the certificate holder has never made service
available through planning, design, construction of facilities, or
contractual obligations to serve the area the petitioner seeks to
have released, the commission is not required to find that the
proposed alternative provider is capable of providing better
service than the certificate holder, but only that the proposed
alternative provider is capable of providing the requested service.
(h) A certificate holder that has land removed from its
certificated service area in accordance with this section may not
be required, after the land is removed, to provide service to the
removed land for any reason, including the violation of law or
commission rules by a water or sewer system of another person.
SECTION 5. The changes made by this Act to Sections 13.245,
13.2451, 13.246, and 13.254, Water Code, apply only to:
(1) a retail public utility's application for a
certificate of public convenience and necessity for a service area
in the extraterritorial jurisdiction of a municipality that is made
on or after the effective date of this Act;
(2) an extension of a municipality's certificate of
public convenience and necessity for a service area in the
extraterritorial jurisdiction of the municipality on or after the
effective date of this Act; and
(3) a petition to release an area from a certificate of
public convenience and necessity that is made on or after the
effective date of this Act.
SECTION 6. This Act takes effect September 1, 2011.