By: Ritter H.B. No. 3234
A BILL TO BE ENTITLED
AN ACT
relating to the procedure for action by the Texas Commission on
Environmental Quality on an application for a water right.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter D, Chapter 11, Water Code, is amended
by adding Section 11.1281 to read as follows:
Sec. 11.1281. TIME FOR PROCESSING APPLICATIONS FOR PERMITS
AND PERMIT AMENDMENTS FOR WATER RIGHTS. (a) In this section:
(1) "Administratively complete" means the application
includes the information required under Sections 11.124, 11.125,
and 11.128 of this code and commission rules. If the application
includes an agricultural use, the application must also include the
information required by Sections 11.126 and 11.127 of this code.
Submission of applicable water conservation and drought
contingency plans under Sections 11.1271, 11.1272, and 11.1273 is
also required, but the adequacy of these plans is not to be
evaluated until the technical review of the application.
(2) "Technical review" means the application review
process performed after the executive director has determined the
application is administratively complete, in which technical
material is analyzed and reviewed in order to prepare a draft permit
and draft notice based on the technical information associated with
the application.
(b) Within 30 working days of receipt of an application for
a permit or permit amendment by the executive director, the
executive director shall review the application and provide to the
applicant:
(1) written notice that the application is
administratively complete; or
(2) a written request for information detailing all
information that must be provided for the application to be
administratively complete.
(c) The applicant has 30 days to submit a response to a
request for information. Upon receipt of a timely response, within
30 working days the executive director shall review the response
and provide the applicant:
(1) written notice that the application is
administratively complete; or
(2) a written request for information detailing all
information that must be provided for the application to be deemed
administratively complete.
(d) For good cause, an applicant may request additional time
to respond to a request for information and the Commission shall
grant such request. The time periods specified in subsection (e)
for determining the application to be administratively complete
shall be abated for the additional period of time authorized by the
Commission.
(e) If an application has not been deemed administratively
complete within 180 days of receipt of an application by the
executive director, the executive director shall return the
application, return all fees, and provide the applicant with a list
of all deficiencies with the application. The applicant is entitled
to appeal the return of the application and dispute the application
deficiencies in a hearing before the commission. The commission
will review the application, rule on the issues presented at the
hearing, and issue an order:
(1) returning the application, unless the applicant,
within 30 days, or within an additional time period requested by the
applicant and granted by the commission, provides the additional
information the commission has determined is required to make the
application administratively complete; or
(2) declaring that the application is
administratively complete with a time schedule for conducting the
technical review of the application.
(f) After an application is determined by the executive
director to be administratively complete, the executive director
shall commence a technical review of the application as necessary
and appropriate. The technical review will continue for a period of
time not to exceed 180 days.
(g) During any time within the 180 day technical review
period, if the executive director determines that additional
technical information is required from the applicant, the executive
director shall provide to the applicant a written request for such
additional technical information.
(h) The applicant has 30 days to submit a response to a
request for technical information. Within 60 days following an
applicant's timely response, the executive director shall review
the response and provide the applicant:
(1) the draft permit, draft notice, and technical
memoranda associated with the application and written notice that
the technical review is complete; or
(2) written notice that the response to request for
technical information was not adequate.
(i) (1) For good cause, an applicant may request additional
time to respond to a request for technical information and the
Commission shall grant such request. The time periods specified
herein for the technical review of the application shall be abated
for the additional period of time authorized by the Commission.
(2) For good cause, the executive director may, with
notice to the applicant, extend the time to complete the technical
review for 30 days. The executive director may not extend the time
to complete the technical review more than three times. The time
period specified herein for the commission's technical review of
the application shall be abated for the additional period of time.
(j) At the conclusion of the technical review period, the
executive director shall provide the applicant with the draft
permit, draft notice, and technical memoranda associated with the
application and written notice that the technical review is
complete.
(k) If a response to a request for technical information is
deemed not adequate by the executive director, the applicant and
the executive director will have 180 days to collaborate in good
faith efforts to resolve the inadequacy. If the executive director
determines that the application is still inadequate at the end of
this time period, the executive director shall return the
application, return all fees, and provide the applicant with a list
of all deficiencies with the application. The applicant is entitled
to appeal the return of the application and dispute the application
deficiencies in a hearing before the commission. The commission
will review the application, rule on the issues presented at the
hearing, and issue an order:
(1) returning the application, unless the applicant,
within 30 days, or within an additional time period requested by the
applicant and granted by the commission, provides the additional
information the commission has determined is required to complete
the technical review; or
(2) requiring the executive director to prepare the
draft permit, draft notice, and technical memoranda associated with
the application and written notice that the technical review is
complete.
(l) Not later than 14 days after receipt of the draft
permit, draft notice, and technical memoranda associated with the
application, the applicant shall provide to the executive director:
(1) the applicant's comments to the draft permit,
draft notice, and technical memoranda associated with the
application; or
(2) a statement that indicates that the applicant has
no comments.
(m) For good cause, an applicant may request additional time
to provide comments to the draft permit, draft notice, and
technical memoranda, and the Commission shall grant such request.
The time periods specified herein for processing the application
shall be abated for the additional period of time authorized by the
Commission.
(n) The executive director shall file the draft permit,
draft notice, and technical memoranda with the chief clerk of the
commission:
(1) after 14 days if the applicant submits comments,
during which time the executive director and the applicant shall
collaborate to address the comments; or
(2) immediately upon receipt of a statement by the
applicant that there are no comments to the draft permit, draft
notice, and technical memoranda associated with the application.
(o) Notwithstanding the provisions within subsections (a)
through (n) of this section, if the executive director is in receipt
of an application for which it makes a written determination that
published and mailed notice is not required, the executive director
shall grant or deny the application within a total time period not
to exceed 300 days following the receipt of the application. The 300
day time period shall not include additional time requested by the
applicant for responding to requests for information.
SECTION 2. Section 11.133, Water Code, is amended to read as
follows:
Sec. 11.133. HEARING. (a) At the time and place stated in
the notice, the commission shall hold a hearing on the application.
Any person may appear at the hearing in person or by attorney or may
enter his appearance in writing. Any person who appears may present
objection to the issuance of the permit. The commission may receive
evidence, orally or by affidavit, in support of or in opposition to
the issuance of the permit, and it may hear arguments.
(b) If the commission determines that a public hearing must
be held pursuant to Section 11.132, it shall:
(1) limit the number and scope of issues to be referred
to the State Office of Administrative Hearings for a hearing; and
(2) consistent with the nature and number of issues to
be considered at the hearing, specify the maximum expected duration
of the hearing.
(c) The commission may not refer an issue to the State
Office of Administrative Hearings for a hearing unless the
commission determines that the issue:
(1) involves a disputed question of fact; and
(2) is relevant and material to the decision on the
application.
(d) Once an application has been declared administratively
complete by the commission pursuant to Section 11.129 of this
Chapter and has become the subject of a hearing:
(1) the commission may not revoke the determination
that an application is administratively or technically complete;
(2) the commission may request additional information
from the applicant only if the information is necessary to clarify,
modify, or supplement previously submitted material; and
(3) a request for additional information does not
render the application incomplete.
(e) In a hearing on an application pursuant to this Chapter
that is referred to the State Office of Administrative Hearings, an
administrative law judge may not grant party status to a person
that:
(1) was denied party status by the commission prior to
referral; or
(2) failed to timely seek party status at the
commission.
(f) This provisions of this section shall supersede any
conflicting provisions of law currently in effect.
SECTION 3. The change in law made by this Act applies only
to an application for a permit filed with the Texas Commission on
Environmental Quality on or after the effective date of this Act. An
application filed before the effective date of this Act is governed
by the law in effect on the date the application was filed, and the
prior law is continued in effect for that purpose.
SECTION 4. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2013.