Texas 2013 - 83rd Regular

Texas House Bill HB3234 Compare Versions

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1	1	83R22142 SLB-D
2	2	By: Ritter, Johnson H.B. No. 3234
3	3	Substitute the following for H.B. No. 3234:
4	4	By: Bonnen of Brazoria C.S.H.B. No. 3234
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to the procedure for action by the Texas Commission on
10	10	Environmental Quality on an application for a water right.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Section 11.129, Water Code, is amended to read as
13	13	follows:
14	14	Sec. 11.129. REVIEW OF APPLICATION[; AMENDMENT]. (a) In
15	15	this section:
16	16	(1) "Administratively complete" means an application
17	17	includes the information and fees required under Sections 11.124,
18	18	11.125, 11.1271, and 11.128 and, if applicable, Sections 11.126,
19	19	11.127, and 11.1272.
20	20	(2) "Technical review" means the part of the process
21	21	of reviewing an application after the executive director has
22	22	determined the application is administratively complete in which
23	23	technical material is analyzed and reviewed in order to prepare a
24	24	draft permit and draft notice.
25	25	(b) Not later than the 30th working day after the date the
26	26	executive director receives an application, the executive director
27	27	shall review the application and provide to the applicant:
28	28	(1) written notice that the application is
29	29	administratively complete; or
30	30	(2) a written request for information that describes
31	31	in detail the information that the applicant must provide in order
32	32	for the application to be considered administratively complete.
33	33	(c) Not later than the 30th day after the date an applicant
34	34	receives a request under Subsection (b)(2), the applicant must
35	35	submit a response to the request. Not later than the 30th working
36	36	day after the date the executive director receives a timely
37	37	response, the executive director shall review the response and
38	38	provide to the applicant:
39	39	(1) written notice that the application is
40	40	administratively complete; or
41	41	(2) a written request for information that describes
42	42	in detail the information that the applicant must provide in order
43	43	for the application to be considered administratively complete.
44	44	(d) The applicant may request an extension of the time to
45	45	submit a response to a request under Subsection (b)(2) or (c)(2).
46	46	The executive director shall grant the request if the applicant
47	47	demonstrates good cause for the extension. An extension under this
48	48	subsection extends the deadline provided by Subsection (e) by the
49	49	same amount of time as the amount of the extension.
50	50	(e) Not later than the 180th day after the date the
51	51	executive director receives the application, the executive
52	52	director shall:
53	53	(1) provide the applicant written notice that the
54	54	application is administratively complete; or
55	55	(2) return the application and the entire filing fee
56	56	to the applicant and provide the applicant with a list of the
57	57	deficiencies in the application.
58	58	(f) The applicant is entitled to appeal the return of the
59	59	application and dispute an application deficiency in a hearing
60	60	before the commission. The commission shall review the application
61	61	and related documents, rule on the issues presented at the hearing,
62	62	and issue an order:
63	63	(1) directing the executive director to return the
64	64	application to the applicant;
65	65	(2) requesting additional information as required by
66	66	the executive director to render the application administratively
67	67	complete; or
68	68	(3) declaring that the application is
69	69	administratively complete and scheduling the technical review of
70	70	the application.
71	71	(g) If the commission requests additional information from
72	72	the applicant under Subsection (f)(2), the applicant must provide
73	73	the information to the commission not later than the 30th day after
74	74	the date the commission issues the request. The commission shall
75	75	review the material and issue an order described by Subsection
76	76	(f)(1) or (3), as applicable.
77	77	(h) After the executive director or the commission
78	78	determines that the application is administratively complete, the
79	79	executive director shall conduct a technical review of the
80	80	application. As part of the review, the executive director shall
81	81	determine whether the applicable water conservation, drought
82	82	contingency, and water management plans under Sections 11.1271,
83	83	11.1272, and 11.1273 are adequate.
84	84	(i) Not later than the 180th day after the date on which the
85	85	technical review begins, the executive director shall provide the
86	86	applicant with:
87	87	(1) written notice that the technical review is
88	88	complete, a draft permit, a draft notice, and technical memoranda
89	89	associated with the application; or
90	90	(2) a written request for technical information as
91	91	determined by the executive director to be necessary for the
92	92	completion of the technical review.
93	93	(j) With notice to the applicant, the executive director may
94	94	extend the deadline provided by Subsection (i) for a period of 30
95	95	days. The executive director may not extend the deadline more than
96	96	three times.
97	97	(k) Not later than the 60th day after the date the applicant
98	98	receives a request under Subsection (i)(2), the applicant must
99	99	provide the requested information to the executive director.
100	100	(l) The applicant may request an extension of the time to
101	101	submit a response to a request under Subsection (i)(2). The
102	102	executive director shall grant the request if the applicant
103	103	demonstrates good cause for the extension. An extension under this
104	104	subsection extends the deadline provided by Subsection (n) by the
105	105	same amount of time as the amount of the extension.
106	106	(m) Not later than the 60th day after the date the executive
107	107	director receives a timely response to a request under Subsection
108	108	(i)(2), the executive director shall review the response and
109	109	provide the applicant with:
110	110	(1) written notice that the technical review is
111	111	complete, a draft permit, a draft notice, and technical memoranda
112	112	associated with the application; or
113	113	(2) written notice that the response to the request
114	114	for technical information is deficient.
115	115	(n) If the executive director provides notice under
116	116	Subsection (m)(2), the executive director and the applicant must
117	117	collaborate in a good faith effort to resolve the deficiency. Not
118	118	later than the 180th day after the date the executive director
119	119	provides the notice, the executive director shall:
120	120	(1) provide the applicant with written notice that the
121	121	technical review is complete, a draft permit, a draft notice, and
122	122	technical memoranda associated with the application; or
123	123	(2) return the application and the use fee and the
124	124	unused portion of the notice fee as prescribed by commission rule to
125	125	the applicant and provide the applicant with a list of the
126	126	deficiencies with the application.
127	127	(o) The applicant is entitled to appeal the return of the
128	128	application and dispute an application deficiency in a hearing
129	129	before the commission. The commission shall review the application
130	130	and related documents, rule on the issues presented at the hearing,
131	131	and issue an order:
132	132	(1) directing the executive director to return the
133	133	application to the applicant;
134	134	(2) requesting additional information as required by
135	135	the commission; or
136	136	(3) requiring the executive director to prepare the
137	137	draft permit, draft notice, and technical memoranda associated with
138	138	the application and written notice that the technical review is
139	139	complete.
140	140	(p) If the commission requests additional information from
141	141	the applicant under Subsection (o)(2), the applicant must provide
142	142	the information to the commission not later than the 30th day after
143	143	the date the commission issues the request. The commission shall
144	144	review the material and issue an order described by Subsection
145	145	(o)(1) or (3), as applicable.
146	146	(q) The applicant may request an extension of the time to
147	147	submit a response to a request under Subsection (o)(2). The
148	148	commission shall grant the request if the applicant demonstrates
149	149	good cause for the extension. An extension under this subsection
150	150	extends the deadline provided by Subsection (p) by the same amount
151	151	of time as the amount of the extension.
152	152	(r) Not later than the 14th day after the date the applicant
153	153	receives the draft permit, draft notice, and technical memoranda
154	154	associated with the application, the applicant must provide the
155	155	executive director with:
156	156	(1) the applicant's comments on the draft permit,
157	157	draft notice, and technical memoranda; or
158	158	(2) a statement that the applicant has no comment on
159	159	the draft permit, draft notice, or technical memoranda.
160	160	(s) The applicant may request an extension of the time to
161	161	submit comments under Subsection (r)(1). The commission shall
162	162	grant the request if the applicant demonstrates good cause for the
163	163	extension. An extension under this subsection extends the deadline
164	164	provided by Subsection (r) by the same amount of time as the amount
165	165	of the extension.
166	166	(t) The executive director shall file the draft permit,
167	167	draft notice, and technical memoranda associated with the
168	168	application with the chief clerk of the commission:
169	169	(1) not later than the 14th day after the date the
170	170	executive director receives comments under Subsection (r)(1),
171	171	during which time the executive director and the applicant must
172	172	collaborate to address the comments; or
173	173	(2) immediately on receipt of a statement described by
174	174	Subsection (r)(2).
175	175	(u) Notwithstanding any other provision of this section, if
176	176	the executive director makes a written determination that notice is
177	177	not required for an application, the executive director shall grant
178	178	or deny the permit for which the application is filed not later than
179	179	the 300th day after the date the executive director receives the
180	180	application. This period shall be extended by the same amount of
181	181	time as the amount of any extension of time granted to the applicant
182	182	for the provision of information [The commission shall determine
183	183	whether the application, maps, and other materials comply with the
184	184	requirements of this chapter and the rules of the commission. The
185	185	commission may require amendment of the application, maps, or other
186	186	materials to achieve necessary compliance].
187	187	SECTION 2. Section 11.133, Water Code, is amended to read as
188	188	follows:
189	189	Sec. 11.133. HEARING. (a) At the time and place stated in
190	190	the notice, the commission shall hold a hearing on the application.
191	191	Any person may appear at the hearing in person or by attorney or may
192	192	enter an [his] appearance in writing. Any person who appears may
193	193	present objection to the issuance of the permit. The commission may
194	194	receive evidence, orally or by affidavit, in support of or in
195	195	opposition to the issuance of the permit, and it may hear arguments.
196	196	(b) The commission may not refer an issue regarding an
197	197	application to the State Office of Administrative Hearings for a
198	198	hearing unless the commission determines that the issue is:
199	199	(1) a disputed question of fact; and
200	200	(2) relevant and material to a decision on the
201	201	application.
202	202	(c) If the commission grants a request for a hearing, the
203	203	commission shall:
204	204	(1) determine the number and scope of issues to be
205	205	referred to the State Office of Administrative Hearings for a
206	206	hearing; and
207	207	(2) consistent with the nature and number of issues to
208	208	be considered at the hearing, specify the maximum expected duration
209	209	of the hearing, which may not exceed a period of 270 days.
210	210	(d) If the application has been determined to be
211	211	administratively complete and the time for requesting more
212	212	information under Section 11.129(i)(2) has expired, the
213	213	commission:
214	214	(1) may not revoke that determination; and
215	215	(2) may request additional information from the
216	216	applicant only if the information is necessary to clarify, modify,
217	217	or supplement previously submitted information.
218	218	(e) A request for information under Subsection (d)(2) does
219	219	not render the application administratively incomplete.
220	220	(f) If the commission refers an issue regarding an
221	221	application to the State Office of Administrative Hearings for a
222	222	hearing, the administrative law judge who conducts the hearing may
223	223	not grant party status to a person who failed to seek party status
224	224	from the commission before the issue was referred to the office.
225	225	(g) In the event of a conflict between this section and any
226	226	other law, this section prevails.
227	227	SECTION 3. (a) As soon as practicable after the effective
228	228	date of this Act, the Texas Commission on Environmental Quality
229	229	shall adopt rules to implement the changes in law made by this Act.
230	230	(b) The changes in law made by this Act apply only to an
231	231	application for a new or amended water right filed with the Texas
232	232	Commission on Environmental Quality on or after the effective date
233	233	of the rules adopted under Subsection (a) of this section. An
234	234	application filed before the effective date of the rules adopted
235	235	under Subsection (a) of this section is governed by the law in
236	236	effect on the date the application was filed, and the former law is
237	237	continued in effect for that purpose.
238	238	(c) On notice to the applicant, beginning on the effective
239	239	date of the rules adopted under Subsection (a) of this section, the
240	240	executive director of the Texas Commission on Environmental Quality
241	241	may extend the period for technical review of an application for a
242	242	new or amended water right under Section 11.129, Water Code, as
243	243	amended by this Act, by a period not to exceed 18 months from the
244	244	date the rules take effect if:
245	245	(1) on the effective date of the rules there are
246	246	applications for new or amended water rights pending before the
247	247	commission the technical review of which has not been completed;
248	248	and
249	249	(2) the applications described by Subdivision (1)
250	250	affect the same river basin as the application for which the
251	251	technical review period is extended.
252	252	(d) During an extension under Subsection (c) of this
253	253	section, the executive director shall take all practicable measures
254	254	to substantially meet all other applicable deadlines in Section
255	255	11.129, Water Code, as amended by this Act, related to the technical
256	256	review of an application.
257	257	SECTION 4. This Act takes effect immediately if it receives
258	258	a vote of two-thirds of all the members elected to each house, as
259	259	provided by Section 39, Article III, Texas Constitution. If this
260	260	Act does not receive the vote necessary for immediate effect, this
261	261	Act takes effect September 1, 2013.