84R22628 SLB-F
By: Keffer H.B. No. 200
Substitute the following for H.B. No. 200:
By: Larson C.S.H.B. No. 200
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of groundwater.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 36.0015, Water Code, is amended to read
as follows:
Sec. 36.0015. PURPOSE. (a) In this section, "best
available science" means conclusions that are logically and
reasonably derived using statistical or quantitative data,
techniques, analyses, and studies that are publicly available to
reviewing scientists and can be employed to address a specific
scientific question.
(b) In order to provide for the conservation, preservation,
protection, recharging, and prevention of waste of groundwater, and
of groundwater reservoirs or their subdivisions, and to control
subsidence caused by withdrawal of water from those groundwater
reservoirs or their subdivisions, consistent with the objectives of
Section 59, Article XVI, Texas Constitution, groundwater
conservation districts may be created as provided by this chapter.
Groundwater conservation districts created as provided by this
chapter are the state's preferred method of groundwater management
in order to protect property rights, balance the development and
conservation of groundwater to meet the needs of this state, and use
the best available science in the development and conservation of
groundwater through rules developed, adopted, and promulgated by a
district in accordance with the provisions of this chapter.
SECTION 2. Section 36.066, Water Code, is amended by
amending Subsection (g) and adding Subsection (h) to read as
follows:
(g) If the district prevails in any suit other than a suit in
which it voluntarily intervenes, the district may seek and the
court shall grant, in the interests of justice and as provided by
Subsection (h), in the same action, recovery for attorney's fees,
costs for expert witnesses, and other costs incurred by the
district before the court. The amount of the attorney's fees shall
be fixed by the court.
(h) If the district prevails on some, but not all, of the
issues in the suit, the court may award attorney's fees and costs
only for those issues on which the district prevails. The district
has the burden of segregating the attorney's fees and costs in order
for the court to make an award.
SECTION 3. Section 36.108(d-1), Water Code, is amended to
read as follows:
(d-1) After considering and documenting the factors
described by Subsection (d) and other relevant scientific and
hydrogeological data, the [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.
SECTION 4. Section 36.1083, Water Code, is amended by
amending Subsections (a) and (b) and adding Subsections (e) through
(r) to read as follows:
(a) In this section:
(1) "Affected person" has the meaning assigned by
Section 36.1082.
(2) "Development [, "development] board" means the
Texas Water Development Board.
(3) "Office" means the State Office of Administrative
Hearings.
(b) Not later than the 120th day after the date on which a
district adopts a desired future condition under Section
36.108(d-4), an affected [A] person [with a legally defined
interest in the groundwater in the management area, a district in or
adjacent to the management area, or a regional water planning group
for a region in the management area] may file a petition with the
district requiring that the district contract with the office to
conduct a hearing [development board] appealing the reasonableness
[approval] of the desired future condition [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 management area.
(e) Not later than the 10th day after receiving a petition
described by Subsection (b), the district shall submit a copy of the
petition to the development board. On receipt of the petition, the
development board shall conduct:
(1) an administrative review to determine whether the
desired future condition established by the district meets the
criteria in Section 36.108(d); and
(2) a study containing scientific and technical
analysis of the desired future condition, including consideration
of:
(A) the hydrogeology of the aquifer; and
(B) any relevant:
(i) groundwater availability models;
(ii) published studies;
(iii) estimates of total recoverable
storage capacity;
(iv) average annual amounts of recharge,
inflows, and discharge of groundwater; or
(v) information provided in the petition or
available to the development board.
(f) The development board must complete and deliver to the
office a study described by Subsection (e)(2) not later than the
120th day after the date the development board receives a copy of
the petition.
(g) For the purposes of a hearing conducted under Subsection
(b):
(1) the office shall consider the study described by
Subsection (e)(2) to be part of the administrative record; and
(2) the development board shall make available
relevant staff as expert witnesses if requested by the office or a
party to the hearing.
(h) Not later than the 60th day after receiving a petition
under Subsection (b), the district shall:
(1) contract with the office to conduct the contested
case hearing requested under Subsection (b); and
(2) submit to the office a copy of any petitions
related to the hearing requested under Subsection (b) and received
by the district.
(i) A hearing under Subsection (b) must be held:
(1) at a location described by Section 36.403(c); and
(2) in accordance with Chapter 2001, Government Code,
and the rules of the office.
(j) During the period between the filing of the petition and
the delivery of the study described by Subsection (e)(2), the
district may seek the assistance of the Center for Public Policy
Dispute Resolution, the development board, or another alternative
dispute resolution system to mediate the issues raised in the
petition. If the district and the petitioner cannot resolve the
issues raised in the petition, the office will proceed with a
hearing as described by this section.
(k) The district may adopt rules for notice and hearings
conducted under this section that are consistent with the
procedural rules of the office. In accordance with rules adopted by
the district and the office, the district shall provide:
(1) general notice of the hearing; and
(2) individual notice of the hearing to:
(A) the petitioner;
(B) any other party to the hearing;
(C) each nonparty district and regional water
planning group located in the same management area as a district
named in the petition;
(D) the development board; and
(E) the commission.
(l) Before a hearing conducted under this section, the
office shall hold a prehearing conference to determine preliminary
matters, including:
(1) whether the petition should be dismissed for
failure to state a claim on which relief can be granted;
(2) whether a person seeking to participate in the
hearing is an affected person who is eligible to participate; and
(3) which affected persons shall be named as parties
to the hearing.
(m) The petitioner shall pay the costs associated with the
contract for the hearing under this section. The petitioner shall
deposit with the district an amount sufficient to pay the contract
amount before the hearing begins. After the hearing, the office may
assess costs to one or more of the parties participating in the
hearing and the district shall refund any excess money to the
petitioner. The office shall consider the following in
apportioning costs of the hearing:
(1) the party who requested the hearing;
(2) the party who prevailed in the hearing;
(3) the financial ability of the party to pay the
costs;
(4) the extent to which the party participated in the
hearing; and
(5) any other factor relevant to a just and reasonable
assessment of costs.
(n) On receipt of the administrative law judge's findings of
fact and conclusions of law in a proposal for decision, including a
dismissal of a petition, the district shall issue a final order
stating the district's decision on the contested matter and the
district's findings of fact and conclusions of law. The district
may change a finding of fact or conclusion of law made by the
administrative law judge, or may vacate or modify an order issued by
the administrative law judge, as provided by Section 2001.058(e),
Government Code.
(o) If the district vacates or modifies the proposal for
decision, the district shall issue a report describing in detail
the district's reasons for disagreement with the administrative law
judge's findings of fact and conclusions of law. The report shall
provide the policy, scientific, and technical justifications for
the district's decision.
(p) If the district in its final order finds that a desired
future condition is unreasonable, the districts in the same
management area as the district that participated in the hearing
shall reconvene in a joint planning meeting not later than the 30th
day after the date of the final order for the purpose of revising
the desired future condition.
(q) A final order by the district finding that a desired
future condition is unreasonable does not invalidate the adoption
of a desired future condition by a district that did not participate
as a party in the hearing conducted under this section.
(r) The administrative law judge may consolidate hearings
requested under this section that affect two or more districts. The
administrative law judge shall prepare separate findings of fact
and conclusions of law for each district included as a party in a
multidistrict hearing.
SECTION 5. Subchapter D, Chapter 36, Water Code, is amended
by adding Section 36.10835 to read as follows:
Sec. 36.10835. JUDICIAL APPEAL OF DESIRED FUTURE
CONDITIONS. (a) A final district order issued under Section
36.1083 may be appealed to a district court with jurisdiction over
any part of the territory of the district that issued the order.
The case shall be decided under the substantial evidence standard
of review as provided by Section 2001.174, Government Code. If the
court finds that a desired future condition is unreasonable, the
court shall strike the desired future condition and order the
districts in the same management area as the district that did not
participate as a party in the hearing to reconvene in a joint
planning meeting not later than the 30th day after the date of the
court order for the purpose of revising the desired future
condition.
(b) A court's finding under this section does not apply to a
desired future condition that is not a matter before the court.
SECTION 6. Section 36.251, Water Code, is amended to read as
follows:
Sec. 36.251. SUITS [SUIT] AGAINST DISTRICT. (a) A person,
firm, corporation, or association of persons affected by and
dissatisfied with any provision or with any rule or order made by a
district is entitled to file a suit against the district or its
directors to challenge the validity of the law, rule, or order. The
suit shall be filed in a court of competent jurisdiction in any
county in which the district or any part of the district is located.
The suit may only be filed after all administrative appeals to the
district are final.
(b) Notwithstanding Sections 36.1083 and 36.10835, an
affected person under Section 36.1082 who is dissatisfied with the
adoption of a desired future condition by a district is entitled to
file suit against the district or its directors to challenge the
reasonableness of the desired future condition. The suit must be
filed in a court of competent jurisdiction in any county in which
the district or any part of the district is located.
SECTION 7. Sections 36.1083(c) and (d), Water Code, are
repealed.
SECTION 8. Section 36.1083, Water Code, as amended by this
Act, and Section 36.10835, Water Code, as added by this Act, apply
only to a desired future condition adopted by a groundwater
conservation district on or after the effective date of this Act. A
desired future condition adopted before that date is governed by
the law in effect on the date the desired future condition was
adopted, and the former law is continued in effect for that purpose.
SECTION 9. This Act takes effect September 1, 2015.