By: Ashby H.B. No. 3821
A BILL TO BE ENTITLED
AN ACT
re
lating 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 expedite an
applicant's appeal of such a decision, 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) Once the executive director determines that an
application is administratively complete:
(1) the commission may not revoke the determination
that the application is administratively complete;
(2) the executive director may request additional
information from the applicant only if the information is necessary
to clarify, modify, or supplement previously submitted
information; and
(3) a request for additional information does not
render the application incomplete.
(i) 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, drought
contingency, and water management plans under Sections 11.1271,
11.1272, and 11.1273 are adequate.
(j) 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.
(k) With notice to the applicant, the executive director may
extend the deadline provided by Subsection (j) for a period of 30
days. The executive director may not extend the deadline more than
three times.
(l) Not later than the 60th day after the date the applicant
receives a request under Subsection (j)(2), the applicant must
provide the requested information to the executive director.
(m) The applicant may request an extension of the time to
submit a response to a request under Subsection (j)(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 (o) by the
same amount of time as the amount of the extension.
(n) Not later than the 60th day after the date the executive
director receives a timely response to a request under Subsection
(j)(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.
(o) If the executive director provides notice under
Subsection (n)(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 such 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.
(p) 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 expedite an
applicant's appeal of such a decision, 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.
(q) If the commission requests additional information from
the applicant under Subsection (p)(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
(p)(1) or (3), as applicable.
(r) The applicant may request an extension of the time to
submit a response to a request under Subsection (p)(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 (q) by the same amount
of time as the amount of the extension.
(s) 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.
(t) The applicant may request an extension of the time to
submit comments under Subsection (s)(1). 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 (s) by the same amount of time as the amount
of the extension.
(u) 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 (s)(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 (s)(2).
(v) 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. Subchapter D, Chapter 11, Water Code, is amended
by adding Section 11.1291 to read as follows:
Sec. 11.1291. TECHNICAL REVIEW OF APPLICATIONS
(a) Within 30 days of the written request of an applicant,
and following the declaration that an application is
administratively complete, the executive director may delegate
responsibilities for the technical review of the application to a
third-party contractor who will:
(1) follow the direction of the executive director in
conducting the technical review of the application and preparing
all technical memoranda required by the executive director to
reflect the analyses and conclusions developed as part of the
technical review; and
(2) be responsible for successfully completing the
technical review on behalf of the executive director.
(b) The executive director shall evaluate the principals
and all subcontractors to be involved in a technical review
conducted under this section for their experience in the areas to be
addressed during and as part of the technical review, and shall
secure the applicant's written consent before technical review may
commence if such review will not be conducted by the executive
director.
(c) If the executive director chooses to utilize a
third-party contractor to complete the technical review of an
application, the executive director shall:
(1) take all necessary measures to ensure that the
third-party contractor, its principals, and its subcontractors
have no financial or economic interest in the outcome of the
application that is to be the subject of the technical review; and
(2) provide the applicant with a written statement of
the basis for the executive director's selection of the third-party
contractor for the technical review, including a description of the
third-party contractor's demonstrated competency in the fields of
expertise required for the technical review.
(d) The technical review of an application under this
section shall be completed so that the executive director issues a
draft permit or a draft permit amendment and associated technical
memoranda within 180 days following the date the executive director
determines that the applicant may complete the technical review or
the applicant contracts with the third-party contractor.
(e) The period of technical review provided in this
subsection is exclusive of the time provided for an applicant's
responses to requests for information.
(f) For good cause demonstrated to the executive director,
an applicant may be granted no more than 90 days to respond to any
request for information.
(g) If an applicant requires additional time to respond to a
request for information during technical review beyond 30 days from
the date of applicant's receipt of the request, the time provided to
the executive director in this subsection to issue a draft permit or
draft permit amendment and associated technical memoranda shall be
extended by the number of days beyond 30 days that the applicant
requires to respond to the request.
(h) Upon receipt of the applicant's consent to the use of a
third-party contractor to conduct the technical review of an
application, the executive director shall require the applicant to:
(1) enter into a contract with the third-party
contractor that is consistent with this section and that expresses
the scope of work to be undertaken by the third-party contractor
during the technical review; and
(2) pay the third-party contractor for all services
rendered under the contract as and when they are performed.
(i) If the applicant does not consent to the use of the
third-party contractor under subsection (b), then the application
shall be reviewed by the executive director.
SECTION 3. 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 application filed under
this chapter to the State Office of Administrative Hearings for
consideration unless the commission first determines that:
(1) an issue relating to the commission's jurisdiction
has been specifically identified in a timely filed request for a
contested case hearing on the application;
(2) such request includes supporting documentation
and evidence reflecting the interest the requestor asserts is
justiciable by the commission at the time of the request; and
(3) the identified issue is one the commission has the
authority to address under the statutes that govern the
commission's consideration of the application.
(c) If the commission grants a request for a contested case
hearing on an application submitted under this chapter, the
commission shall:
(1) issue an order identifying the number and scope of
issues to be referred to the State Office of Administrative
Hearings for a hearing; and
(2) specify the maximum expected duration of the
hearing, which may not exceed a period of 270 days from the date of
the issuance of the commission's order under this subsection until
the issuance of the proposal for decision.
(d) If the commission refers an issue regarding an
application to the State Office of Administrative Hearings for a
contested case hearing, the administrative law judge who conducts
the hearing may not grant party status to a person who failed to
timely seek party status from the commission before the issue was
referred or to any person who was considered by the commission but
was not determined to be a person affected by the commission's
action on the application.
(e) In the event of a conflict between this section and any
other law, this section prevails.
SECTION 4. Subchapter D, Chapter 11, Water Code, is amended
by adding Section 11.1331 to read as follows:
Sec. 11.1331. PARTICIPATION BY PUBLIC INTEREST COUNSEL.
(a) The public interest counsel may be named a party to a hearing on
an application submitted under this chapter only if:
(1) during the period the commission may receive and
consider requests for a contested case hearing on the application,
the office of public interest counsel files with the commission a
description of each public interest as established by Section 5.276
that the office of public interest counsel believes:
(A) is affected by the application; and
(B) has not been adequately addressed by the
executive director or the applicant during technical review;
(2) the commission in its discretion determines that
the office of public interest counsel has described a public
interest affected by the application that warrants participation by
the public interest counsel as a party, and that will not be
adequately addressed by any other party to the contested case
hearing; and
(3) the commission includes in an order issued
pursuant to section 11.133(c) one or more specified public interest
issues described by the public interest counsel pursuant to
subsection (a).
(b) If the commission names the office of public interest
counsel as a party to a contested case hearing on an application
submitted under this chapter, the public interest counsel's
participation shall be limited to examining only those public
interest issues identified in the commission's order issued under
section 11.133(c).
(c) The office of public interest counsel may not:
(1) submit responses to any requests for a contested
case hearing on an application submitted under this chapter; or
(2) provide assistance to any party to a contested
case hearing.
(d) A filing made by the public interest counsel under
subsection (a) of this section is insufficient to refer any issue of
an application to the State Office of Administrative Hearings for a
contested case hearing.
(e) Subsection (d) does not limit any authority of the
commission or executive director provided by other law to refer an
application to the State Office of Administrative Hearings for a
contested case hearing.
SECTION 5. (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 made to Section 11.133 and 11.1331 shall be
effective for any notice of an application considered by the
commission following the effective date of this Act. The changes
made to Sections 11.129 and 11.1291 shall be effective to any
application filed after the effective date of this Act.
(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)
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 6. 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.