82R9591 JXC-F
By: Carona S.B. No. 1374
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of weather modification operations.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading to Subchapter B, Chapter 301,
Agriculture Code, is amended to read as follows:
SUBCHAPTER B. POWERS AND DUTIES OF COUNTIES [TEXAS DEPARTMENT
OF LICENSING AND REGULATION]
SECTION 2. Sections 301.051 and 301.052, Agriculture Code,
are amended to read as follows:
Sec. 301.051. ORDERS [RULES]. A county commissioners court
[The Texas Department of Licensing and Regulation] may issue orders
[adopt rules] necessary to:
(1) exercise the powers and perform the duties under
this chapter;
(2) establish procedures and conditions for the
issuance of licenses and permits under this chapter; and
(3) establish standards and instructions to govern the
carrying out of research or projects in weather modification and
control that the commissioners court [Texas Department of Licensing
and Regulation] considers necessary or desirable to minimize danger
to health or property.
Sec. 301.052. STUDIES; INVESTIGATIONS; HEARINGS. A
commissioners court [The Texas Department of Licensing and
Regulation] may make any studies or investigations, obtain any
information, and hold any hearings necessary or proper to
administer or enforce this chapter or any [rules or] orders issued
under this chapter.
SECTION 3. Sections 301.057(a) and (b), Agriculture Code,
are amended to read as follows:
(a) A county may enter into cooperative agreements with
other counties to exercise the powers and perform the duties under
[The Texas Department of Licensing and Regulation may cooperate
with public or private agencies to promote the purposes of] this
chapter.
(b) A county [The Texas Department of Licensing and
Regulation] may enter into cooperative agreements with the United
States or any of its agencies, with other counties and
municipalities of this state, or with any private or public
agencies for conducting weather modification or cloud-seeding
operations.
SECTION 4. Section 301.058(b), Agriculture Code, is amended
to read as follows:
(b) A county [The Texas Department of Licensing and
Regulation with approval of the executive director] may conduct and
may contract for research and development activities relating to:
(1) the theory and development of methods of weather
modification and control, including processes, materials, and
devices related to these methods;
(2) the use of weather modification and control for
agricultural, industrial, commercial, and other purposes; and
(3) the protection of life and property during
research and operational activities [the purposes of this section].
SECTION 5. Sections 301.101, 301.102, 301.103, 301.105,
301.106, 301.107, 301.109, 301.110, 301.111, 301.113, 301.114,
301.115, 301.116, and 301.117, Agriculture Code, are amended to
read as follows:
Sec. 301.101. LICENSE AND PERMIT [REQUIRED]. (a) A
commissioners court may require a person who engages in activities
for weather modification and control in the county or with intent to
affect any part of the county to obtain a license and permit under
this chapter.
(b) Except as provided by the commissioners court of the
county [rule of the Texas Department of Licensing and Regulation]
under Section 301.102, a person may not engage in activities for
weather modification and control in a county or with intent to
affect any part of the county:
(1) without a weather modification license and weather
modification permit issued by the county, if the county requires a
license and permit [the department]; or
(2) in violation of any term or condition of a [the]
license or permit issued under this chapter.
Sec. 301.102. EXEMPTIONS. (a) A commissioners court [The
Texas Department of Licensing and Regulation by rule], to the
extent it considers exemptions practical, may [shall] provide for
exempting the following activities from any [the] license and
permit requirements the county adopts [of this chapter]:
(1) research, development, and experiments conducted
by state and federal agencies, institutions of higher learning, and
bona fide nonprofit research organizations;
(2) laboratory research and experiments;
(3) activities of an emergent nature for protection
against fire, frost, sleet, or fog; and
(4) activities normally conducted for purposes other
than inducing, increasing, decreasing, or preventing precipitation
or hail.
(b) The commissioners court [The Texas Department of
Licensing and Regulation by rule] may modify or revoke an
exemption.
Sec. 301.103. ISSUANCE OF LICENSE. (a) A commissioners
court that requires a license under this chapter shall establish
procedures for the county to [The Texas Department of Licensing and
Regulation, in accordance with the rules adopted under this
chapter, shall] issue a weather modification license to each
applicant who:
(1) pays the license fee; and
(2) demonstrates, to the satisfaction of the
commissioners court [Texas Department of Licensing and
Regulation], competence in the field of meteorology that is
reasonably necessary to engage in weather modification and control
activities.
(b) If the applicant is an organization, the competence must
be demonstrated by the individual or individuals who are to be in
control and in charge of the operation for the applicant.
Sec. 301.105. EXPIRATION DATE. Each original or renewal
license expires at the end of the period established by the
commissioners court [state fiscal year for which it was issued].
Sec. 301.106. RENEWAL LICENSE. At the expiration of the
license period, the county [Texas Department of Licensing and
Regulation] shall issue a renewal license to each applicant who
pays the license fee and who has the qualifications necessary for
issuance of an original license.
Sec. 301.107. ISSUANCE OF PERMIT. (a) If the commissioners
court of a county requires a permit, the county [The Texas
Department of Licensing and Regulation], in accordance with
procedures [the rules] adopted by the commissioners court under
this chapter and on a finding that the weather modification and
control operation as proposed in the permit application will not
significantly dissipate the clouds and prevent their natural course
of developing rain in the area in which the operation is to be
conducted to the material detriment of persons or property in that
area, and after approval at an election if governed by Subchapter D,
may issue a weather modification permit to each applicant who:
(1) holds a valid weather modification license;
(2) files an application for a permit and pays the
permit fee;
(3) publishes a notice of intention and submits proof
of publication as required by this chapter; and
(4) furnishes proof of financial responsibility.
(b) The commissioners court [Texas Department of Licensing
and Regulation] shall, if requested by at least 25 persons, hold at
least one public hearing [in the area where the operation is to be
conducted] prior to the issuance of a permit.
Sec. 301.109. SCOPE OF PERMIT. If the commissioners court
requires a permit, a [A] separate permit is required for each
operation. If an operation is to be conducted under contract, a
permit is required for each separate contract. The county [Texas
Department of Licensing and Regulation] may not issue a permit for a
contracted operation unless the permit [it] covers a continuous
period not to exceed four years.
Sec. 301.110. [APPLICATION AND] NOTICE OF INTENTION.
Before undertaking any operation, a person who is to conduct the
operation must [a license holder must file an application for a
permit and] have a notice of intention published as required by this
chapter, regardless of whether the commissioners court requires the
person to have a license or permit.
Sec. 301.111. CONTENT OF NOTICE. In the notice of
intention, the person [applicant] must include:
(1) the name and address of the license holder, if the
commissioners court requires a license, or of the person who is to
conduct the operation, if the court does not require a license;
(2) the nature and object of the intended operation
and the person or organization on whose behalf it is to be
conducted;
(3) the area in which and the approximate time during
which the operation is to be conducted;
(4) the area that is intended to be affected by the
operation; and
(5) the materials and methods to be used in conducting
the operation.
Sec. 301.113. PROOF OF PUBLICATION; AFFIDAVIT. A person
who publishes notice under Section 301.111 [The applicant] shall
file proof of the publication, together with the publishers'
affidavits, with the county [Texas Department of Licensing and
Regulation] during the 15-day period immediately after the date of
the last publication.
Sec. 301.114. PROOF OF FINANCIAL RESPONSIBILITY. Proof of
financial responsibility is made by showing to the satisfaction of
the county [Texas Department of Licensing and Regulation] that the
license holder has the ability to respond in damages for liability
that might reasonably result from the operation for which the
permit is sought.
Sec. 301.115. MODIFICATION OF PERMIT. A commissioners
court [The Texas Department of Licensing and Regulation] may modify
the terms and conditions of a permit the commissioners court issued
if:
(1) the license holder is first given notice and a
reasonable opportunity for a hearing on the need for a
modification; and
(2) it appears to the commissioners court [Texas
Department of Licensing and Regulation] that a modification is
necessary to protect the health or property of any person.
Sec. 301.116. SCOPE OF ACTIVITY. Once a permit is issued,
the license holder shall confine the license holder's activities
substantially within the limits of time and area specified in the
notice of intention, except to the extent that the limits are
modified by the commissioners court that issued the permit [Texas
Department of Licensing and Regulation]. The license holder shall
comply with any terms and conditions of the permit as originally
issued or as subsequently modified by the commissioners court
[Texas Department of Licensing and Regulation].
Sec. 301.117. RECORDS AND REPORTS. (a) A license holder
shall keep a record of each operation conducted under a permit,
showing:
(1) the method employed;
(2) the type of equipment used;
(3) the kind and amount of each material used;
(4) the times and places the equipment is operated;
(5) the name and mailing address of each individual,
other than the license holder, who participates or assists in the
operation; and
(6) other information required by the county [Texas
Department of Licensing and Regulation].
(b) The county [Texas Department of Licensing and
Regulation] shall require license holders to submit to the county
written reports for each operation, whether the operation is exempt
or conducted under a permit. A license holder shall submit a
written report at the time and in the manner required by the county
[Texas Department of Licensing and Regulation].
(c) All information a county requires to be submitted on an
operation shall be submitted to the county [Texas Department of
Licensing and Regulation] before it is released to the public.
(d) The reports and records in the custody of the county
[Texas Department of Licensing and Regulation] shall be kept open
for public inspection.
SECTION 6. Section 301.151(b), Agriculture Code, is amended
to read as follows:
(b) A commissioners court may [The Texas Department of
Licensing and Regulation by rule shall] define hail suppression as
used in this subchapter. A commissioners court that defines hail
suppression shall use[, using] the most current scientifically
accepted technological concepts.
SECTION 7. Sections 301.152(b) and (c), Agriculture Code,
are amended to read as follows:
(b) If a county requires a permit under this chapter for
hail suppression, the [The] operational area must be described by
metes and bounds or other specific bounded description and set out
in the application for a permit.
(c) If the application for a permit does not describe the
operational area, the commissioners court [Texas Department of
Licensing and Regulation] may designate an area located inside and
up to eight miles from the limits of the target area described in
the application as the operational area of the permit for the
purposes of this chapter.
SECTION 8. Section 301.153, Agriculture Code, is amended to
read as follows:
Sec. 301.153. DATE OF PERMIT ISSUANCE; PERMIT AREA. A
county [permit] may not issue a permit under this subchapter [be
issued by the Texas Department of Licensing and Regulation] before
the end of the 30-day period immediately following the first
publication of notice and then only in:
(1) those counties or parts of counties in the target
area or operational area in which the majority of the qualified
voters voting have approved or have not disapproved the issuance of
a permit if an election has been held; or
(2) any county or part of a county in the target area
or operational area if no petition for an election has been filed.
SECTION 9. Sections 301.163(b), (c), and (d), Agriculture
Code, are amended to read as follows:
(b) If a majority of the qualified voters voting in the
election precincts any part of which are located within the target
area vote in favor of issuance of the permit, the county [Texas
Department of Licensing and Regulation] may issue the permit as
provided in this subchapter, except that if a majority of the
qualified voters voting in any of the following areas vote against
issuance of the permit, that area is excluded from the coverage of
the permit:
(1) an election precinct any part of which is located
in the operational area; or
(2) an election precinct located wholly within the
target area and contiguous with its outer boundary.
(c) If the commissioners court [Texas Department of
Licensing and Regulation] finds that a weather modification and
control operation is still feasible, a permit may be issued
covering areas in which no election is requested or areas in which
the voters give their approval as provided by this subchapter.
(d) If a permit is denied under Subsection (a), an
application for a permit covering all or part of the same target
area or operational area that was denied may not be considered, and
for a period of two years following the date of the election, a
permit under that application may not be issued by the county [Texas
Department of Licensing and Regulation] and an election may not be
held under this chapter.
SECTION 10. Section 301.165, Agriculture Code, is amended
to read as follows:
Sec. 301.165. MONITOR OF PROGRAM. The commissioners court
[Texas Department of Licensing and Regulation] may monitor any
program conducted under this subchapter under conditions the
commissioners court [Texas Department of Licensing and Regulation]
determines advisable.
SECTION 11. Section 301.166(b), Agriculture Code, is
amended to read as follows:
(b) If the county voters voting in the election disapprove
the issuance of permits authorizing hail suppression, the
commissioners court of that county [Texas Department of Licensing
and Regulation] may not issue a permit covering the county until the
proposition has been approved at a subsequent election.
SECTION 12. Section 301.167(a), Agriculture Code, is
amended to read as follows:
(a) If any county or part of a county has disapproved the
issuance of a permit at a previous election held under this
subchapter, that county or part of a county may not be included in
any permit issued by the commissioners court [Texas Department of
Licensing and Regulation] until the voters of that county or part of
a county have participated in a subsequent election at which a
permit is approved.
SECTION 13. Sections 301.201, 301.202, 301.203, 301.252,
301.253, 301.254, 301.257, and 301.301, Agriculture Code, are
amended to read as follows:
Sec. 301.201. CIVIL PENALTIES. A commissioners court may
provide civil penalties for a violation of this chapter or an order
issued under this chapter [person who violates this chapter is
subject to Subchapters F and G, Chapter 51, Occupations Code, in the
same manner as a person regulated by the Texas Department of
Licensing and Regulation under other law is subject to those
subchapters].
Sec. 301.202. ACT OF GOD. If a person can establish that an
event that would otherwise be a violation of this chapter or an [a
rule adopted or] order or permit issued under this chapter was
caused solely by an act of God, war, strike, riot, or other
catastrophe, the event is not a violation of this chapter or an [a
rule,] order[,] or permit issued under this chapter.
Sec. 301.203. DEFENSE EXCLUDED. Unless otherwise provided
by this chapter, the fact that a person holds a permit issued under
this chapter [by the Texas Department of Licensing and Regulation]
does not relieve that person from liability for the violation of
this chapter or an [a rule adopted or] order or permit issued under
this chapter.
Sec. 301.252. GROUNDS FOR REVOCATION OR SUSPENSION OF
PERMIT. After notice and an opportunity for a hearing, a
commissioners court [the Texas Department of Licensing and
Regulation] may revoke or suspend a permit issued by the
commissioners court under this chapter on any of the following
grounds:
(1) violating any term or condition of the permit, and
revocation or suspension is necessary to maintain the quality of
water or the quality of air in the state, or to otherwise protect
human health and the environment consistent with the objectives of
the law within the county's jurisdiction [of the Texas Department
of Licensing and Regulation];
(2) having a record of environmental violations in the
preceding five years related to the permitted operation [at the
permitted site];
(3) causing a discharge, release, or emission
contravening a pollution control standard set by the county [Texas
Department of Licensing and Regulation] or contravening the intent
of a law within the county's jurisdiction [of the Texas Department
of Licensing and Regulation];
(4) misrepresenting or failing to disclose fully all
relevant facts in obtaining the permit or misrepresenting to the
county [Texas Department of Licensing and Regulation] any relevant
fact at any time;
(5) being indebted to the county [state] for fees,
payment of penalties, or taxes imposed by the law within the
county's [department's] jurisdiction;
(6) failing to ensure that the management of the
permitted facility conforms or will conform to the law within the
county's jurisdiction [of the Texas Department of Licensing and
Regulation];
(7) abandoning the permit or operations under the
permit;
(8) the finding by the county [Texas Department of
Licensing and Regulation] that a change in conditions requires
discontinuing [elimination of] the operations [discharge]
authorized by the permit; or
(9) failing to continue to possess qualifications
necessary for the issuance of the permit.
Sec. 301.253. GROUNDS FOR REVOCATION OR SUSPENSION OF
LICENSE. (a) This section applies to a license issued under this
chapter or under an order issued [a rule adopted] under this
chapter.
(b) After notice and an opportunity for a hearing, a
commissioners court [the Texas Department of Licensing and
Regulation] may suspend or revoke a license issued by the
commissioners court under this chapter, place on probation a person
whose license has been suspended, reprimand a license holder, or
refuse to renew or reissue a license on any of the following
grounds:
(1) having a record of environmental violations in the
preceding five years related to permitted operations [at a permit
site];
(2) committing fraud or deceit in obtaining the
license;
(3) demonstrating gross negligence, incompetency, or
misconduct while acting as license holder;
(4) making an intentional misstatement or
misrepresentation of fact in information required to be maintained
or submitted to the county [Texas Department of Licensing and
Regulation] by the license holder;
(5) failing to keep and transmit records as required
by a law within the county's jurisdiction [of the Texas Department
of Licensing and Regulation];
(6) being indebted to the county [state] for a fee,
payment of a penalty, or a tax imposed by a law within the county's
jurisdiction [of the Texas Department of Licensing and Regulation];
or
(7) failing to continue to possess qualifications
necessary for the issuance of the license.
Sec. 301.254. PROCEDURES FOR NOTICE AND HEARINGS. The
commissioners court [Texas Department of Licensing and Regulation
by rule] shall establish procedures for public notice and any
public hearing under this subchapter.
Sec. 301.257. OTHER RELIEF. A proceeding brought by a
county [the Texas Department of Licensing and Regulation] under
this subchapter does not affect the authority of the appropriate
county official [the Texas Department of Licensing and Regulation]
to bring suit for injunctive relief or other relief to which the
county may be entitled [a penalty, or both,] under this chapter.
Sec. 301.301. IMMUNITY OF STATE. A county [The state] and
its officers and employees are immune from liability for all
weather modification and control activities conducted by private
persons or groups.
SECTION 14. Section 301.302(b), Agriculture Code, is
amended to read as follows:
(b) The fact that a person holds a license or permit under
this chapter or that the person has complied with this chapter or an
order [the rules] issued under this chapter is not admissible as
evidence in any legal proceeding brought against the person.
SECTION 15. The following provisions of the Agriculture
Code are repealed:
(1) Sections 301.001(1) and (5);
(2) Section 301.053;
(3) Section 301.054;
(4) Section 301.055;
(5) Section 301.056;
(6) Section 301.057(c);
(7) Section 301.058(a);
(8) Section 301.059;
(9) Section 301.060;
(10) Section 301.156(d);
(11) Section 301.162(d);
(12) Section 301.255;
(13) Section 301.256; and
(14) Chapter 302.
SECTION 16. (a) The changes in law made by this Act to
Chapter 301, Agriculture Code, apply only to a license or permit
issued on or after the effective date of this Act.
(b) A county that requires a license and permit under
Chapter 301, Agriculture Code, as amended by this Act, may review a
license or permit that was issued by the Texas Department of
Licensing and Regulation before the effective date of this Act. A
county that reviews a license or permit under this section must
allow the license or permit holder to apply for a license or permit
from the county before the county revokes the holder's state-issued
license or permit.
(c) A license or permit issued before the effective date of
this Act is governed by the law in effect on the date the license or
permit is issued, and the former law is continued in effect for that
purpose until the license or permit expires or is revoked under
Subsection (b) of this section.
SECTION 17. This Act takes effect September 1, 2011.