Texas 2015 - 84th Regular

Texas House Bill HB3821 Compare Versions

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1	1	By: Ashby H.B. No. 3821
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	re
7	7	lating to the procedure for action by the Texas Commission on
8	8	Environmental Quality on an application for a water right.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 11.129, Water Code, is amended to read as
11	11	follows:
12	12	Sec. 11.129. REVIEW OF APPLICATION[; AMENDMENT]. (a) In
13	13	this section:
14	14	(1) "Administratively complete" means an application
15	15	includes the information and fees required under Sections 11.124,
16	16	11.125, 11.1271, and 11.128 and, if applicable, Sections 11.126,
17	17	11.127, and 11.1272.
18	18	(2) "Technical review" means the part of the process
19	19	of reviewing an application after the executive director has
20	20	determined the application is administratively complete in which
21	21	technical material is analyzed and reviewed in order to prepare a
22	22	draft permit and draft notice.
23	23	(b) Not later than the 30th working day after the date the
24	24	executive director receives an application, the executive director
25	25	shall review the application and provide to the applicant:
26	26	(1) written notice that the application is
27	27	administratively complete; or
28	28	(2) a written request for information that describes
29	29	in detail the information that the applicant must provide in order
30	30	for the application to be considered administratively complete.
31	31	(c) Not later than the 30th day after the date an applicant
32	32	receives a request under Subsection (b)(2), the applicant must
33	33	submit a response to the request. Not later than the 30th working
34	34	day after the date the executive director receives a timely
35	35	response, the executive director shall review the response and
36	36	provide to the applicant:
37	37	(1) written notice that the application is
38	38	administratively complete; or
39	39	(2) a written request for information that describes
40	40	in detail the information that the applicant must provide in order
41	41	for the application to be considered administratively complete.
42	42	(d) The applicant may request an extension of the time to
43	43	submit a response to a request under Subsection (b)(2) or (c)(2).
44	44	The executive director shall grant the request if the applicant
45	45	demonstrates good cause for the extension. An extension under this
46	46	subsection extends the deadline provided by Subsection (e) by the
47	47	same amount of time as the amount of the extension.
48	48	(e) Not later than the 180th day after the date the
49	49	executive director receives the application, the executive
50	50	director shall:
51	51	(1) provide the applicant written notice that the
52	52	application is administratively complete; or
53	53	(2) return the application and the entire filing fee
54	54	to the applicant and provide the applicant with a list of the
55	55	deficiencies in the application.
56	56	(f) The applicant is entitled to appeal the return of the
57	57	application and dispute an application deficiency in a hearing
58	58	before the commission. The commission shall expedite an
59	59	applicant's appeal of such a decision, review the application and
60	60	related documents, rule on the issues presented at the hearing, and
61	61	issue an order:
62	62	(1) directing the executive director to return the
63	63	application to the applicant;
64	64	(2) requesting additional information as required by
65	65	the executive director to render the application administratively
66	66	complete; or
67	67	(3) declaring that the application is
68	68	administratively complete and scheduling the technical review of
69	69	the application.
70	70	(g) If the commission requests additional information from
71	71	the applicant under Subsection (f)(2), the applicant must provide
72	72	the information to the commission not later than the 30th day after
73	73	the date the commission issues the request. The commission shall
74	74	review the material and issue an order described by Subsection
75	75	(f)(1) or (3), as applicable.
76	76	(h) Once the executive director determines that an
77	77	application is administratively complete:
78	78	(1) the commission may not revoke the determination
79	79	that the application is administratively complete;
80	80	(2) the executive director may request additional
81	81	information from the applicant only if the information is necessary
82	82	to clarify, modify, or supplement previously submitted
83	83	information; and
84	84	(3) a request for additional information does not
85	85	render the application incomplete.
86	86	(i) After the executive director or the commission
87	87	determines that the application is administratively complete, the
88	88	executive director shall conduct a technical review of the
89	89	application. As part of the review, the executive director shall
90	90	determine whether the applicable water conservation, drought
91	91	contingency, and water management plans under Sections 11.1271,
92	92	11.1272, and 11.1273 are adequate.
93	93	(j) Not later than the 180th day after the date on which the
94	94	technical review begins, the executive director shall provide the
95	95	applicant with:
96	96	(1) written notice that the technical review is
97	97	complete, a draft permit, a draft notice, and technical memoranda
98	98	associated with the application; or
99	99	(2) a written request for technical information as
100	100	determined by the executive director to be necessary for the
101	101	completion of the technical review.
102	102	(k) With notice to the applicant, the executive director may
103	103	extend the deadline provided by Subsection (j) for a period of 30
104	104	days. The executive director may not extend the deadline more than
105	105	three times.
106	106	(l) Not later than the 60th day after the date the applicant
107	107	receives a request under Subsection (j)(2), the applicant must
108	108	provide the requested information to the executive director.
109	109	(m) The applicant may request an extension of the time to
110	110	submit a response to a request under Subsection (j)(2). The
111	111	executive director shall grant the request if the applicant
112	112	demonstrates good cause for the extension. An extension under this
113	113	subsection extends the deadline provided by Subsection (o) by the
114	114	same amount of time as the amount of the extension.
115	115	(n) Not later than the 60th day after the date the executive
116	116	director receives a timely response to a request under Subsection
117	117	(j)(2), the executive director shall review the response and
118	118	provide the applicant with:
119	119	(1) written notice that the technical review is
120	120	complete, a draft permit, a draft notice, and technical memoranda
121	121	associated with the application; or
122	122	(2) written notice that the response to the request
123	123	for technical information is deficient.
124	124	(o) If the executive director provides notice under
125	125	Subsection (n)(2), the executive director and the applicant must
126	126	collaborate in a good faith effort to resolve the deficiency. Not
127	127	later than the 180th day after the date the executive director
128	128	provides such notice, the executive director shall:
129	129	(1) provide the applicant with written notice that the
130	130	technical review is complete, a draft permit, a draft notice, and
131	131	technical memoranda associated with the application; or
132	132	(2) return the application and the use fee and the
133	133	unused portion of the notice fee as prescribed by commission rule to
134	134	the applicant and provide the applicant with a list of the
135	135	deficiencies with the application.
136	136	(p) The applicant is entitled to appeal the return of the
137	137	application and dispute an application deficiency in a hearing
138	138	before the commission. The commission shall expedite an
139	139	applicant's appeal of such a decision, review the application and
140	140	related documents, rule on the issues presented at the hearing, and
141	141	issue an order:
142	142	(1) directing the executive director to return the
143	143	application to the applicant;
144	144	(2) requesting additional information as required by
145	145	the commission; or
146	146	(3) requiring the executive director to prepare the
147	147	draft permit, draft notice, and technical memoranda associated with
148	148	the application and written notice that the technical review is
149	149	complete.
150	150	(q) If the commission requests additional information from
151	151	the applicant under Subsection (p)(2), the applicant must provide
152	152	the information to the commission not later than the 30th day after
153	153	the date the commission issues the request. The commission shall
154	154	review the material and issue an order described by Subsection
155	155	(p)(1) or (3), as applicable.
156	156	(r) The applicant may request an extension of the time to
157	157	submit a response to a request under Subsection (p)(2). The
158	158	commission shall grant the request if the applicant demonstrates
159	159	good cause for the extension. An extension under this subsection
160	160	extends the deadline provided by Subsection (q) by the same amount
161	161	of time as the amount of the extension.
162	162	(s) Not later than the 14th day after the date the applicant
163	163	receives the draft permit, draft notice, and technical memoranda
164	164	associated with the application, the applicant must provide the
165	165	executive director with:
166	166	(1) the applicant's comments on the draft permit,
167	167	draft notice, and technical memoranda; or
168	168	(2) a statement that the applicant has no comment on
169	169	the draft permit, draft notice, or technical memoranda.
170	170	(t) The applicant may request an extension of the time to
171	171	submit comments under Subsection (s)(1). The commission shall
172	172	grant the request if the applicant demonstrates good cause for the
173	173	extension. An extension under this subsection extends the deadline
174	174	provided by Subsection (s) by the same amount of time as the amount
175	175	of the extension.
176	176	(u) The executive director shall file the draft permit,
177	177	draft notice, and technical memoranda associated with the
178	178	application with the chief clerk of the commission:
179	179	(1) not later than the 14th day after the date the
180	180	executive director receives comments under Subsection (s)(1),
181	181	during which time the executive director and the applicant must
182	182	collaborate to address the comments; or
183	183	(2) immediately on receipt of a statement described by
184	184	Subsection (s)(2).
185	185	(v) Notwithstanding any other provision of this section, if
186	186	the executive director makes a written determination that notice is
187	187	not required for an application, the executive director shall grant
188	188	or deny the permit for which the application is filed not later than
189	189	the 300th day after the date the executive director receives the
190	190	application. This period shall be extended by the same amount of
191	191	time as the amount of any extension of time granted to the applicant
192	192	for the provision of information [The commission shall determine
193	193	whether the application, maps, and other materials comply with the
194	194	requirements of this chapter and the rules of the commission. The
195	195	commission may require amendment of the application, maps, or other
196	196	materials to achieve necessary compliance].
197	197	SECTION 2. Subchapter D, Chapter 11, Water Code, is amended
198	198	by adding Section 11.1291 to read as follows:
199	199	Sec. 11.1291. TECHNICAL REVIEW OF APPLICATIONS
200	200	(a) Within 30 days of the written request of an applicant,
201	201	and following the declaration that an application is
202	202	administratively complete, the executive director may delegate
203	203	responsibilities for the technical review of the application to a
204	204	third-party contractor who will:
205	205	(1) follow the direction of the executive director in
206	206	conducting the technical review of the application and preparing
207	207	all technical memoranda required by the executive director to
208	208	reflect the analyses and conclusions developed as part of the
209	209	technical review; and
210	210	(2) be responsible for successfully completing the
211	211	technical review on behalf of the executive director.
212	212	(b) The executive director shall evaluate the principals
213	213	and all subcontractors to be involved in a technical review
214	214	conducted under this section for their experience in the areas to be
215	215	addressed during and as part of the technical review, and shall
216	216	secure the applicant's written consent before technical review may
217	217	commence if such review will not be conducted by the executive
218	218	director.
219	219	(c) If the executive director chooses to utilize a
220	220	third-party contractor to complete the technical review of an
221	221	application, the executive director shall:
222	222	(1) take all necessary measures to ensure that the
223	223	third-party contractor, its principals, and its subcontractors
224	224	have no financial or economic interest in the outcome of the
225	225	application that is to be the subject of the technical review; and
226	226	(2) provide the applicant with a written statement of
227	227	the basis for the executive director's selection of the third-party
228	228	contractor for the technical review, including a description of the
229	229	third-party contractor's demonstrated competency in the fields of
230	230	expertise required for the technical review.
231	231	(d) The technical review of an application under this
232	232	section shall be completed so that the executive director issues a
233	233	draft permit or a draft permit amendment and associated technical
234	234	memoranda within 180 days following the date the executive director
235	235	determines that the applicant may complete the technical review or
236	236	the applicant contracts with the third-party contractor.
237	237	(e) The period of technical review provided in this
238	238	subsection is exclusive of the time provided for an applicant's
239	239	responses to requests for information.
240	240	(f) For good cause demonstrated to the executive director,
241	241	an applicant may be granted no more than 90 days to respond to any
242	242	request for information.
243	243	(g) If an applicant requires additional time to respond to a
244	244	request for information during technical review beyond 30 days from
245	245	the date of applicant's receipt of the request, the time provided to
246	246	the executive director in this subsection to issue a draft permit or
247	247	draft permit amendment and associated technical memoranda shall be
248	248	extended by the number of days beyond 30 days that the applicant
249	249	requires to respond to the request.
250	250	(h) Upon receipt of the applicant's consent to the use of a
251	251	third-party contractor to conduct the technical review of an
252	252	application, the executive director shall require the applicant to:
253	253	(1) enter into a contract with the third-party
254	254	contractor that is consistent with this section and that expresses
255	255	the scope of work to be undertaken by the third-party contractor
256	256	during the technical review; and
257	257	(2) pay the third-party contractor for all services
258	258	rendered under the contract as and when they are performed.
259	259	(i) If the applicant does not consent to the use of the
260	260	third-party contractor under subsection (b), then the application
261	261	shall be reviewed by the executive director.
262	262	SECTION 3. Section 11.133, Water Code, is amended to read as
263	263	follows:
264	264	Sec. 11.133. HEARING. (a) At the time and place stated in
265	265	the notice, the commission shall hold a hearing on the application.
266	266	Any person may appear at the hearing in person or by attorney or may
267	267	enter an [his] appearance in writing. Any person who appears may
268	268	present objection to the issuance of the permit. The commission may
269	269	receive evidence, orally or by affidavit, in support of or in
270	270	opposition to the issuance of the permit, and it may hear arguments.
271	271	(b) The commission may not refer an application filed under
272	272	this chapter to the State Office of Administrative Hearings for
273	273	consideration unless the commission first determines that:
274	274	(1) an issue relating to the commission's jurisdiction
275	275	has been specifically identified in a timely filed request for a
276	276	contested case hearing on the application;
277	277	(2) such request includes supporting documentation
278	278	and evidence reflecting the interest the requestor asserts is
279	279	justiciable by the commission at the time of the request; and
280	280	(3) the identified issue is one the commission has the
281	281	authority to address under the statutes that govern the
282	282	commission's consideration of the application.
283	283	(c) If the commission grants a request for a contested case
284	284	hearing on an application submitted under this chapter, the
285	285	commission shall:
286	286	(1) issue an order identifying the number and scope of
287	287	issues to be referred to the State Office of Administrative
288	288	Hearings for a hearing; and
289	289	(2) specify the maximum expected duration of the
290	290	hearing, which may not exceed a period of 270 days from the date of
291	291	the issuance of the commission's order under this subsection until
292	292	the issuance of the proposal for decision.
293	293	(d) If the commission refers an issue regarding an
294	294	application to the State Office of Administrative Hearings for a
295	295	contested case hearing, the administrative law judge who conducts
296	296	the hearing may not grant party status to a person who failed to
297	297	timely seek party status from the commission before the issue was
298	298	referred or to any person who was considered by the commission but
299	299	was not determined to be a person affected by the commission's
300	300	action on the application.
301	301	(e) In the event of a conflict between this section and any
302	302	other law, this section prevails.
303	303	SECTION 4. Subchapter D, Chapter 11, Water Code, is amended
304	304	by adding Section 11.1331 to read as follows:
305	305	Sec. 11.1331. PARTICIPATION BY PUBLIC INTEREST COUNSEL.
306	306	(a) The public interest counsel may be named a party to a hearing on
307	307	an application submitted under this chapter only if:
308	308	(1) during the period the commission may receive and
309	309	consider requests for a contested case hearing on the application,
310	310	the office of public interest counsel files with the commission a
311	311	description of each public interest as established by Section 5.276
312	312	that the office of public interest counsel believes:
313	313	(A) is affected by the application; and
314	314	(B) has not been adequately addressed by the
315	315	executive director or the applicant during technical review;
316	316	(2) the commission in its discretion determines that
317	317	the office of public interest counsel has described a public
318	318	interest affected by the application that warrants participation by
319	319	the public interest counsel as a party, and that will not be
320	320	adequately addressed by any other party to the contested case
321	321	hearing; and
322	322	(3) the commission includes in an order issued
323	323	pursuant to section 11.133(c) one or more specified public interest
324	324	issues described by the public interest counsel pursuant to
325	325	subsection (a).
326	326	(b) If the commission names the office of public interest
327	327	counsel as a party to a contested case hearing on an application
328	328	submitted under this chapter, the public interest counsel's
329	329	participation shall be limited to examining only those public
330	330	interest issues identified in the commission's order issued under
331	331	section 11.133(c).
332	332	(c) The office of public interest counsel may not:
333	333	(1) submit responses to any requests for a contested
334	334	case hearing on an application submitted under this chapter; or
335	335	(2) provide assistance to any party to a contested
336	336	case hearing.
337	337	(d) A filing made by the public interest counsel under
338	338	subsection (a) of this section is insufficient to refer any issue of
339	339	an application to the State Office of Administrative Hearings for a
340	340	contested case hearing.
341	341	(e) Subsection (d) does not limit any authority of the
342	342	commission or executive director provided by other law to refer an
343	343	application to the State Office of Administrative Hearings for a
344	344	contested case hearing.
345	345	SECTION 5. (a) As soon as practicable after the effective
346	346	date of this Act, the Texas Commission on Environmental Quality
347	347	shall adopt rules to implement the changes in law made by this Act.
348	348	(b) The changes made to Section 11.133 and 11.1331 shall be
349	349	effective for any notice of an application considered by the
350	350	commission following the effective date of this Act. The changes
351	351	made to Sections 11.129 and 11.1291 shall be effective to any
352	352	application filed after the effective date of this Act.
353	353	(c) On notice to the applicant, beginning on the effective
354	354	date of the rules adopted under Subsection (a) of this section, the
355	355	executive director of the Texas Commission on Environmental Quality
356	356	may extend the period for technical review of an application for a
357	357	new or amended water right under Section 11.129, Water Code, as
358	358	amended by this Act, by a period not to exceed 18 months from the
359	359	date the rules take effect if:
360	360	(1) on the effective date of the rules there are
361	361	applications for new or amended water rights pending before the
362	362	commission the technical review of which has not been completed;
363	363	and
364	364	(2) the applications described by Subdivision (1)
365	365	affect the same river basin as the application for which the
366	366	technical review period is extended.
367	367	(d) During an extension under Subsection (c) of this
368	368	section, the executive director shall take all practicable measures
369	369	to substantially meet all other applicable deadlines in Section
370	370	11.129, Water Code, as amended by this Act, related to the technical
371	371	review of an application.
372	372	SECTION 6. This Act takes effect immediately if it receives
373	373	a vote of two-thirds of all the members elected to each house, as
374	374	provided by Section 39, Article III, Texas Constitution. If this
375	375	Act does not receive the vote necessary for immediate effect, this
376	376	Act takes effect September 1, 2015.