Texas 2015 - 84th Regular

Texas Senate Bill SB1440 Compare Versions

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1	1	By: Campbell, Zaffirini S.B. No. 1440
2	2	(In the Senate - Filed March 12, 2015; March 30, 2015, read
3	3	first time and referred to Committee on Agriculture, Water, and
4	4	Rural Affairs; May 6, 2015, reported adversely, with favorable
5	5	Committee Substitute by the following vote: Yeas 5, Nays 0;
6	6	May 6, 2015, sent to printer.)
7	7	Click here to see the committee vote
8	8	COMMITTEE SUBSTITUTE FOR S.B. No. 1440 By: Perry
9	9
10	10
11	11	A BILL TO BE ENTITLED
12	12	AN ACT
13	13	relating to the territory, jurisdiction, board composition,
14	14	elections, and powers of the Barton Springs-Edwards Aquifer
15	15	Conservation District, including its authority to regulate certain
16	16	wells for the production of groundwater; imposing a cap on certain
17	17	fees.
18	18	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
19	19	SECTION 1. Section 8802.003, Special District Local Laws
20	20	Code, is amended to read as follows:
21	21	Sec. 8802.003. DISTRICT TERRITORY. (a) The district is
22	22	composed of:
23	23	(1) the territory described by the Texas Water
24	24	Commission's August 15, 1986, order, as that territory may have
25	25	been modified:
26	26	(A) by actions of the board through resolutions
27	27	dated August 8, 1987, August 13, 1987, January 24, 2002, May 10,
28	28	2002, and June 23, 2011; or
29	29	(B) under:
30	30	(i) [(1)] Subchapter J, Chapter 36, Water
31	31	Code; or
32	32	(ii) [(2)] other law;
33	33	(2) the shared territory described by Section
34	34	8802.0035(a); and
35	35	(3) the territory described as follows: beginning at
36	36	a point at the intersection of the northeastern district boundary
37	37	as it existed on January 1, 2015, and the Colorado River, running
38	38	east along the southern bank of the Colorado River to a point where
39	39	the Colorado River intersects U.S. Highway 183, then south along
40	40	U.S. Highway 183 to a point where U.S. Highway 183 intersects the
41	41	current eastern boundary of the district, then generally west and
42	42	north following along the district boundary as it existed on
43	43	January 1, 2015, to the place of beginning.
44	44	(b) Any boundary reference under Subsection (a)(3) to a
45	45	highway, street, road, avenue, boulevard, or lane shall mean the
46	46	centerline of the boundary.
47	47	SECTION 2. Subchapter A, Chapter 8802, Special District
48	48	Local Laws Code, is amended by adding Section 8802.0035 to read as
49	49	follows:
50	50	Sec. 8802.0035. SHARED TERRITORY; JURISDICTION. (a) The
51	51	territory of the district includes any territory that is:
52	52	(1) inside the boundaries of the Edwards Aquifer
53	53	Authority;
54	54	(2) in Hays County; and
55	55	(3) not within the boundaries existing as of January
56	56	1, 1989, of any other district with the authority to regulate
57	57	groundwater under Chapter 36, Water Code, or prior laws.
58	58	(b) The Edwards Aquifer Authority has jurisdiction over any
59	59	well that is drilled to produce water from the Edwards Aquifer in
60	60	the shared territory described by Subsection (a).
61	61	(c) The district has jurisdiction over groundwater and any
62	62	well that is drilled to produce water from any aquifer other than
63	63	the Edwards Aquifer in the shared territory described by Subsection
64	64	(a).
65	65	(d) The district has jurisdiction over groundwater and any
66	66	well that is drilled to produce water from the Edwards Aquifer or
67	67	any other aquifer in the territory described by Section
68	68	8802.003(a)(1) or (3). For territory annexed in accordance with
69	69	board resolutions dated January 24, 2002, the district shall share
70	70	jurisdiction with the Plum Creek Conservation District, which also
71	71	includes that territory. Jurisdiction shall be shared under the
72	72	terms of an agreement authorized by Chapter 791, Government Code,
73	73	in a manner that ensures that the districts do not exercise their
74	74	jurisdiction in the shared territory at the same time and for the
75	75	same purpose.
76	76	(e) The district's jurisdiction over any well that is
77	77	drilled to produce water in the territory described in Section
78	78	8802.003(a)(1), including a well that is used to recover water that
79	79	has been injected as part of an aquifer storage and recovery
80	80	project, applies to the territory described by Section
81	81	8802.003(a)(3) and all wells for which the district has
82	82	jurisdiction in the shared territory described by this section.
83	83	SECTION 3. Sections 8802.051 and 8802.052, Special District
84	84	Local Laws Code, are amended to read as follows:
85	85	Sec. 8802.051. DIRECTORS; TERMS. (a) The district is
86	86	governed by a board of seven [five] directors who serve staggered
87	87	four-year terms.
88	88	(b) Three [At least two] directors must be elected by voters
89	89	residing in the territory composed of:
90	90	(1) director districts four and five as adopted by the
91	91	district on November 17, 2011; and
92	92	(2) the territory described by Section 8802.003(a)(3)
93	93	[city of Austin].
94	94	(c) Four directors must be elected by voters residing
95	95	outside the territory described by Subsection (b) and two of the
96	96	four directors must reside in Hays County.
97	97	Sec. 8802.052. ELECTION DATE. An election shall be held to
98	98	elect the appropriate number of directors on the [spring] uniform
99	99	election date in November of each even-numbered year.
100	100	SECTION 4. Section 8802.053, Special District Local Laws
101	101	Code, is amended by amending Subsections (a), (c), and (d) and
102	102	adding Subsection (f) to read as follows:
103	103	(a) The district is divided into seven [five] numbered,
104	104	single-member districts for electing directors.
105	105	(c) As soon as practicable after the publication of each
106	106	federal decennial census, the board shall revise the single-member
107	107	districts as the board considers appropriate to reflect population
108	108	changes. When the board revises the single-member districts under
109	109	this subsection, the board shall place three [two] of the districts
110	110	entirely inside and four of the districts entirely outside the
111	111	territory described by Section 8802.051(b)[:
112	112	[(1) entirely within the boundaries of the city of
113	113	Austin, as those boundaries exist at that time; or
114	114	[(2) within the boundaries of the city of Austin, as
115	115	those boundaries exist at that time, but also including
116	116	unincorporated areas or other municipalities that are surrounded
117	117	wholly or partly by the boundaries of the city of Austin if the
118	118	areas or municipalities are noncontiguous to the territory of any
119	119	other single-member district].
120	120	(d) If the district is required to create single-member
121	121	districts that do not comply with Sections 8802.051(b) and (c) to
122	122	satisfy standards under federal law, the board shall revise the
123	123	single-member districts as the board considers appropriate under
124	124	the federal law standards [Changes in the boundaries of the city of
125	125	Austin between revisions of the single-member districts under
126	126	Subsection (c) do not affect the boundaries of the single-member
127	127	districts].
128	128	(f) At the first regularly scheduled election of directors
129	129	after the board is expanded from five to seven directors, directors
130	130	elected to fill any vacant positions shall cast lots to determine
131	131	which of those directors shall serve a two-year term and which shall
132	132	serve a four-year term. Lots must be determined so that not more
133	133	than four directors' terms expire in any even-numbered year.
134	134	SECTION 5. Section 8802.1045, Special District Local Laws
135	135	Code, is amended by adding Subsection (g) to read as follows:
136	136	(g) Notwithstanding Subsection (b), before January 1, 2017,
137	137	the board may not charge an annual production fee higher than the
138	138	rates set forth under Subsection (a) for a well located in the
139	139	territory described by Section 8802.003(a)(3) or 8802.0035(a). The
140	140	district may increase the annual production fee under this
141	141	subsection by not more than 10 cents per thousand gallons per year
142	142	beginning January 1, 2018, for water permitted for nonagricultural
143	143	purposes, until the annual production fee is equal to the maximum
144	144	amount set forth in Subsection (b).
145	145	SECTION 6. Section 8802.105, Special District Local Laws
146	146	Code, is amended by amending Subsection (a) and adding Subsection
147	147	(a-1) to read as follows:
148	148	(a) In this section, "Consumer Price Index" means the annual
149	149	revised Consumer Price Index for All Urban Consumers, as published
150	150	by the Bureau of Labor Statistics of the United States Department of
151	151	Labor or a similar index if that index is unavailable. For
152	152	calculation purposes, the beginning base month is December 2014.
153	153	(a-1) Each year the board may assess against the City of
154	154	Austin a water use fee in an amount not to exceed the lesser of $1
155	155	million as adjusted to reflect the percentage change during the
156	156	preceding year in the Consumer Price Index or 60 percent of the
157	157	total funding the district expects to receive for the next fiscal
158	158	year from water use fees assessed against Austin and other
159	159	nonexempt users in that year as computed[, subject to the
160	160	computation] under Subsection (b).
161	161	SECTION 7. Subchapter C, Chapter 8802, Special District
162	162	Local Laws Code, is amended by adding Section 8802.111 to read as
163	163	follows:
164	164	Sec. 8802.111. AUTHORITY TO CONSIDER MITIGATION PLAN.
165	165	(a) If an applicant for a permit or permit amendment submits to the
166	166	district with the permit application or permit amendment
167	167	application a plan for mitigating any negative impacts to
168	168	groundwater resources or to other wells that may arise from the
169	169	production of groundwater by the well or wells for which the permit
170	170	or permit amendment is sought, the district may:
171	171	(1) consider the plan for mitigation in deciding
172	172	whether to grant or deny the application; and
173	173	(2) include special terms and conditions requiring
174	174	mitigation in a permit or permit amendment that is approved by the
175	175	board for the applicant.
176	176	(b) Regardless of whether an applicant for a permit or
177	177	permit amendment submits to the district a plan for mitigation, the
178	178	district and an applicant may negotiate a plan to mitigate any
179	179	negative impacts to groundwater resources or to other wells that
180	180	may arise from the production of groundwater by the well or wells
181	181	for which the permit or permit amendment is sought, and the district
182	182	may include the negotiated mitigation plan as a special term or
183	183	condition of the permit or permit amendment. The district may not
184	184	require an applicant to agree to a mitigation plan that was not
185	185	submitted by the applicant.
186	186	(c) A mitigation plan described by Subsection (a) or (b) may
187	187	include payment of a fee by the applicant for a permit or permit
188	188	amendment to the district in an amount sufficient to mitigate the
189	189	effects of reduced artesian pressure or the drawdown of the water
190	190	table on other wells in the district. If the mitigation plan is
191	191	approved by the district as a special term or condition of the
192	192	permit as submitted by, or as negotiated with, the applicant, the
193	193	district shall establish written procedures for the use of revenue
194	194	derived from fees paid by the applicant as part of the mitigation
195	195	plan and shall include the written procedures as a special term or
196	196	condition of the permit or permit amendment. The written
197	197	procedures may include use of the mitigation plan fee revenue to
198	198	deepen water wells or to lower pumps, to drill and equip new wells,
199	199	or to take other measures to mitigate impacts on water wells that
200	200	are negatively impacted by the production of groundwater by the
201	201	well or wells for which the permit or permit amendment is approved
202	202	by the district.
203	203	(d) Nothing in this section shall be construed to limit the
204	204	authority of the district to include as a special term or condition
205	205	of a permit a requirement that the permit holder reduce or cease
206	206	groundwater production during certain hydrological conditions.
207	207	SECTION 8. (a) In this section:
208	208	(1) "District" means the Barton Springs-Edwards
209	209	Aquifer Conservation District.
210	210	(2) "Maximum production capacity" means the maximum
211	211	production capacity of a well, which may be based on a 36-hour pump
212	212	test conducted at the time the well was initially constructed or
213	213	placed into service.
214	214	(b) A person operating a well before the effective date of
215	215	this Act or who has entered into a contract before the effective
216	216	date of this Act to drill or operate a well that is or will be
217	217	located in the added territory described by Sections 8802.003(a)(3)
218	218	or 8802.0035(a), Special District Local Laws Code, as added by this
219	219	Act, that is subject to the jurisdiction of the district, as
220	220	clarified by this Act, shall file an administratively complete
221	221	permit application with the district not later than three months
222	222	after the effective date of this Act for the drilling, equipping,
223	223	completion, or operation of any well if the well requires a permit
224	224	under the rules or orders of the district. The person may file the
225	225	permit application for an amount of groundwater production not to
226	226	exceed the maximum production capacity of the well.
227	227	(c) The district shall issue a temporary permit to a person
228	228	who files an application under Subsection (b) of this section
229	229	without a hearing on the application not later than the 30th day
230	230	after the date of receipt of the application. The district shall
231	231	issue the temporary permit for the groundwater production amount
232	232	set forth in the application. The temporary permit issued under
233	233	this subsection shall provide the person with retroactive and
234	234	prospective authorization to drill, operate, or perform another
235	235	activity related to a well for which a permit is required by the
236	236	district for the period of time between the effective date of this
237	237	Act and the date that the district takes a final, appealable action
238	238	on issuance of a regular permit pursuant to the permit application
239	239	if:
240	240	(1) the person's drilling, operating, or other
241	241	activities associated with the well are consistent with the
242	242	authorization sought in the permit application;
243	243	(2) the person timely pays to the district all
244	244	administrative fees and fees related to the amount of groundwater
245	245	authorized to be produced pursuant to the temporary permit in the
246	246	same manner as other permit holders in the district; and
247	247	(3) the person complies with other rules and orders of
248	248	the district applicable to permit holders.
249	249	(d) The temporary permit issued under Subsection (c) of this
250	250	section does not confer any rights or privileges to the permit
251	251	holder other than those set forth in this section. After issuing
252	252	the temporary permit, the district shall process the permit
253	253	application for notice, hearing, and consideration for issuance of
254	254	a regular permit in the same manner that the district processes
255	255	other permit applications not described by this section. The
256	256	district, after notice and hearing, may issue an order reducing the
257	257	amount of groundwater that may be produced under a temporary permit
258	258	under this section only if the district determines that the amount
259	259	of groundwater being produced under the temporary permit is causing
260	260	a failure to achieve applicable adopted desired future conditions
261	261	for the aquifer. The district bears the burden of proof in
262	262	demonstrating that the amount of groundwater being produced under a
263	263	temporary permit is causing a failure to achieve applicable adopted
264	264	desired future conditions for the aquifer. A person who relies on
265	265	the temporary permit granted by this section to drill, operate, or
266	266	engage in other activities associated with a water well assumes the
267	267	risk that the district may grant or deny, wholly or partly, the
268	268	permit application when the district takes final action after
269	269	notice and hearing to issue a regular permit pursuant to the
270	270	application.
271	271	(e) The holder of a temporary permit subject to a district
272	272	order under Subsection (d) of this section to reduce the amount of
273	273	groundwater production from the permitted well may contest the
274	274	reduction by requesting a contested case hearing to be conducted by
275	275	the State Office of Administrative Hearings in the manner provided
276	276	by Sections 36.416, 36.4165, and 36.418, Water Code. The district
277	277	shall contract with the State Office of Administrative Hearings to
278	278	conduct the hearing as provided by those sections of the Water Code.
279	279	To the extent possible, the State Office of Administrative Hearings
280	280	shall expedite a hearing under this subsection.
281	281	SECTION 9. (a) The legislature validates and confirms all
282	282	acts and proceedings of the board of directors of the Barton
283	283	Springs-Edwards Aquifer Conservation District that were taken
284	284	before the effective date of this Act.
285	285	(b) Subsection (a) of this section does not apply to any
286	286	matter that on the effective date of this Act:
287	287	(1) is involved in litigation if the litigation
288	288	ultimately results in the matter being held invalid by a final
289	289	judgment of a court; or
290	290	(2) has been held invalid by a final judgment of a
291	291	court.
292	292	SECTION 10. (a) Not later than three months after the
293	293	effective date of this Act, the board of directors of the Barton
294	294	Springs-Edwards Aquifer Conservation District shall appoint one
295	295	temporary director to the board to represent the territory
296	296	described by Section 8802.003(a)(3), Special District Local Laws
297	297	Code, as added by this Act, and one temporary director to represent
298	298	the territory described by Section 8802.0035(a), Special District
299	299	Local Laws Code, as added by this Act.
300	300	(b) The temporary directors appointed under Subsection (a)
301	301	of this section shall serve at large until the next general election
302	302	of directors of the district under Section 8802.052, Special
303	303	District Local Laws Code, as amended by this Act.
304	304	(c) The board of directors of the Barton Springs-Edwards
305	305	Aquifer Conservation District shall adjust the board member terms
306	306	of office to conform to the new election date under Section
307	307	8802.052, Special District Local Laws Code, as amended by this Act.
308	308	SECTION 11. (a) The legal notice of the intention to
309	309	introduce this Act, setting forth the general substance of this
310	310	Act, has been published as provided by law, and the notice and a
311	311	copy of this Act have been furnished to all persons, agencies,
312	312	officials, or entities to which they are required to be furnished
313	313	under Section 59, Article XVI, Texas Constitution, and Chapter 313,
314	314	Government Code.
315	315	(b) The governor, one of the required recipients, has
316	316	submitted the notice and Act to the Texas Commission on
317	317	Environmental Quality.
318	318	(c) The Texas Commission on Environmental Quality has filed
319	319	its recommendations relating to this Act with the governor, the
320	320	lieutenant governor, and the speaker of the house of
321	321	representatives within the required time.
322	322	(d) All requirements of the constitution and laws of this
323	323	state and the rules and procedures of the legislature with respect
324	324	to the notice, introduction, and passage of this Act are fulfilled
325	325	and accomplished.
326	326	SECTION 12. This Act takes effect immediately if it
327	327	receives a vote of two-thirds of all the members elected to each
328	328	house, as provided by Section 39, Article III, Texas Constitution.
329	329	If this Act does not receive the vote necessary for immediate
330	330	effect, this Act takes effect September 1, 2015.
331	331	* * * * *