84R2584 SLB-F
By: Leach H.B. No. 201
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. Section 11.129, Water Code, is amended to read as
follows:
Sec. 11.129. REVIEW OF APPLICATION[; AMENDMENT]. (a) In
this section:
(1) "Administratively complete" means an application
includes the information and fees required under Sections 11.124,
11.125, 11.1271, and 11.128 and, if applicable, Sections 11.126,
11.127, and 11.1272.
(2) "Technical review" means the part of the process
of reviewing an application 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.
(b) Not later than the 30th working day after the date the
executive director receives an application, 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 that describes
in detail the information that the applicant must provide in order
for the application to be considered administratively complete.
(c) Not later than the 30th day after the date an applicant
receives a request under Subsection (b)(2), the applicant must
submit a response to the request. Not later than the 30th working
day after the date the executive director receives a timely
response, the executive director shall review the response and
provide to the applicant:
(1) written notice that the application is
administratively complete; or
(2) a written request for information that describes
in detail the information that the applicant must provide in order
for the application to be considered administratively complete.
(d) The applicant may request an extension of the time to
submit a response to a request under Subsection (b)(2) or (c)(2).
The executive director shall grant the request if the applicant
demonstrates good cause for the extension. An extension under this
subsection extends the deadline provided by Subsection (e) by the
same amount of time as the amount of the extension.
(e) Not later than the 180th day after the date the
executive director receives the application, the executive
director shall:
(1) provide the applicant written notice that the
application is administratively complete; or
(2) return the application and the entire filing fee
to the applicant and provide the applicant with a list of the
deficiencies in the application.
(f) The applicant is entitled to appeal the return of the
application and dispute an application deficiency in a hearing
before the commission. The commission shall review the application
and related documents, rule on the issues presented at the hearing,
and issue an order:
(1) directing the executive director to return the
application to the applicant;
(2) requesting additional information as required by
the executive director to render the application administratively
complete; or
(3) declaring that the application is
administratively complete and scheduling the technical review of
the application.
(g) If the commission requests additional information from
the applicant under Subsection (f)(2), the applicant must provide
the information to the commission not later than the 30th day after
the date the commission issues the request. The commission shall
review the material and issue an order described by Subsection
(f)(1) or (3), as applicable.
(h) After the executive director or the commission
determines that the application is administratively complete, the
executive director shall conduct a technical review of the
application. As part of the review, the executive director shall
determine whether the applicable water conservation and drought
contingency plans under Sections 11.1271 and 11.1272 are adequate.
(i) Not later than the 180th day after the date on which the
technical review begins, the executive director shall provide the
applicant with:
(1) written notice that the technical review is
complete, a draft permit, a draft notice, and technical memoranda
associated with the application; or
(2) a written request for technical information as
determined by the executive director to be necessary for the
completion of the technical review.
(j) With notice to the applicant, the executive director may
extend the deadline provided by Subsection (i) for a period of 30
days. The executive director may not extend the deadline more than
three times.
(k) Not later than the 60th day after the date the applicant
receives a request under Subsection (i)(2), the applicant must
provide the requested information to the executive director.
(l) The applicant may request an extension of the time to
submit a response to a request under Subsection (i)(2). The
executive director shall grant the request if the applicant
demonstrates good cause for the extension. An extension under this
subsection extends the deadline provided by Subsection (k) by the
same amount of time as the amount of the extension.
(m) If the executive director grants an extension under
Subsection (j) or (l), the executive director shall extend the
deadline under Subsection (i) or (k), as appropriate, for an
application:
(1) received after the application for which the
extension was granted under Subsection (j) or (l); and
(2) that relates to a new appropriation of water in the
same river basin as the application for which the extension was
granted under Subsection (j) or (l).
(n) The executive director shall provide notice in a timely
manner to an applicant who receives an extension under Subsection
(m).
(o) Not later than the 60th day after the date the executive
director receives a timely response to a request under Subsection
(i)(2), the executive director shall review the response and
provide the applicant with:
(1) written notice that the technical review is
complete, a draft permit, a draft notice, and technical memoranda
associated with the application; or
(2) written notice that the response to the request
for technical information is deficient.
(p) If the executive director provides notice under
Subsection (o)(2), the executive director and the applicant must
collaborate in a good faith effort to resolve the deficiency. Not
later than the 180th day after the date the executive director
provides the notice, the executive director shall:
(1) provide the applicant with written notice that the
technical review is complete, a draft permit, a draft notice, and
technical memoranda associated with the application; or
(2) return the application and the use fee and the
unused portion of the notice fee as prescribed by commission rule to
the applicant and provide the applicant with a list of the
deficiencies with the application.
(q) The applicant is entitled to appeal the return of the
application and dispute an application deficiency in a hearing
before the commission. The commission shall review the application
and related documents, rule on the issues presented at the hearing,
and issue an order:
(1) directing the executive director to return the
application to the applicant;
(2) requesting additional information as required by
the commission; or
(3) 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.
(r) If the commission requests additional information from
the applicant under Subsection (q)(2), the applicant must provide
the information to the commission not later than the 30th day after
the date the commission issues the request. The commission shall
review the material and issue an order described by Subsection
(q)(1) or (3), as applicable.
(s) The applicant may request an extension of the time to
submit a response to a request under Subsection (q)(2). The
commission shall grant the request if the applicant demonstrates
good cause for the extension. An extension under this subsection
extends the deadline provided by Subsection (r) by the same amount
of time as the amount of the extension.
(t) Not later than the 14th day after the date the applicant
receives the draft permit, draft notice, and technical memoranda
associated with the application, the applicant must provide the
executive director with:
(1) the applicant's comments on the draft permit,
draft notice, and technical memoranda; or
(2) a statement that the applicant has no comment on
the draft permit, draft notice, or technical memoranda.
(u) The applicant may request an extension of the time to
submit comments under Subsection (t)(1). The commission shall
grant the request if the applicant demonstrates good cause for the
extension.
(v) The executive director shall file the draft permit,
draft notice, and technical memoranda associated with the
application with the chief clerk of the commission:
(1) not later than the 14th day after the date the
executive director receives comments under Subsection (t)(1),
during which time the executive director and the applicant must
collaborate to address the comments; or
(2) immediately on receipt of a statement described by
Subsection (t)(2).
(w) Notwithstanding any other provision of this section, if
the executive director makes a written determination that notice is
not required for an application, the executive director shall grant
or deny the permit for which the application is filed not later than
the 300th day after the date the executive director receives the
application. This period shall be extended by the same amount of
time as the amount of any extension of time granted to the applicant
for the provision of information [The commission shall determine
whether the application, maps, and other materials comply with the
requirements of this chapter and the rules of the commission. The
commission may require amendment of the application, maps, or other
materials to achieve necessary compliance].
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 an [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) The commission may not refer an issue regarding an
application to the State Office of Administrative Hearings for a
hearing unless the commission determines that the issue is:
(1) a disputed question of fact; and
(2) relevant and material to a decision on the
application.
(c) If the commission grants a request for a hearing, the
commission shall:
(1) determine 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, which may not exceed a period of 270 days.
(d) If the application has been determined to be
administratively complete and the time for requesting more
information under Section 11.129(i)(2) has expired, the
commission:
(1) may not revoke that determination; and
(2) may request additional information from the
applicant only if the information is necessary to clarify, modify,
or supplement previously submitted information.
(e) A request for information under Subsection (d)(2) does
not render the application administratively incomplete.
(f) If the commission refers an issue regarding an
application to the State Office of Administrative Hearings for a
hearing, the administrative law judge who conducts the hearing may
not grant party status to a person who failed to seek party status
from the commission before the issue was referred to the office.
(g) In the event of a conflict between this section and any
other law, this section prevails.
SECTION 3. (a) As soon as practicable after the effective
date of this Act, the Texas Commission on Environmental Quality
shall adopt rules to implement the changes in law made by this Act.
(b) The changes in law made by this Act apply only to an
application for a new or amended water right received by the Texas
Commission on Environmental Quality on or after the effective date
of the rules adopted under Subsection (a) of this section. An
application received before the effective date of the rules adopted
under Subsection (a) of this section is governed by the law in
effect on the date the application was received, and the former law
is continued in effect for that purpose.
(c) On notice to the applicant, beginning on the effective
date of the rules adopted under Subsection (a) of this section, the
executive director of the Texas Commission on Environmental Quality
may extend the period for technical review of an application for a
new or amended water right under Section 11.129, Water Code, as
amended by this Act, by a period not to exceed 18 months from the
date the rules take effect if:
(1) on the effective date of the rules there are
applications for new or amended water rights pending before the
commission the technical review of which has not been completed;
and
(2) the applications described by Subdivision (1) of
this subsection affect the same river basin as the application for
which the technical review period is extended.
(d) During an extension under Subsection (c) of this
section, the executive director shall take all practicable measures
to substantially meet all other applicable deadlines in Section
11.129, Water Code, as amended by this Act, related to the technical
review of an application.
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, 2015.