82R8414 SGA-D
By: Hegar, Duncan S.B. No. 1306
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 any meeting or hearing at which
the board will consider or take public comments on the desired
future condition for an aquifer, including a joint planning meeting
under Section 36.108 attended by a district representative, the
board must post notice that includes:
(1) the proposed desired future condition or
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) Notice of a meeting or hearing described by Subsection
(b) must be posted:
(1) in the district office;
(2) in the county courthouse of each county located
wholly or partly in the district;
(3) with the secretary of state; and
(4) on the district's Internet website, if the
district has an Internet website.
(d) The Texas Water Development Board by rule may adopt
additional notice provisions for a meeting described by Subsection
(b) to ensure reasonable notice to and comment from affected
stakeholders such as landowners, permit holders, local officials,
and other members of the public.
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 by rule
[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, 36.1082,
36.1083, 36.1084, and 36.1085 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 be approved [adopted] by a
two-thirds vote of all the district representatives for
distribution to the districts in the management area. A 30-day
period 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 prepare
for consideration at the next joint planning meeting a district
report that includes comments received, 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 districts have submitted their district
reports 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 adoption 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 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 by rule shall adopt the desired
future conditions in the resolution and report that apply to the
district.
(d-5) A district's adoption of a desired future condition
may be appealed in district court in the manner provided under
Subchapter H for a challenge to a district rule.
(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. Each district in the management area shall post
uniform notice [Notice] of the meeting [shall be given] in
accordance with Section 36.063 [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 has groundwater rights 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. MANAGED AVAILABLE GROUNDWATER. 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
the desired future conditions resolution adopted [established]
under Section 36.108, proof that notice was posted for the adoption
meeting, and the desired future conditions explanatory report [this
section] to the executive administrator. 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
those [the] desired future conditions [condition of the groundwater
resources established under this section].
Sec. 36.1084. 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. 36.1085. 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
36.1083, 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.