By: Campbell, Zaffirini S.B. No. 1440
(In the Senate - Filed March 12, 2015; March 30, 2015, read
first time and referred to Committee on Agriculture, Water, and
Rural Affairs; May 6, 2015, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 5, Nays 0;
May 6, 2015, sent to printer.)
Click here to see the committee vote
COMMITTEE SUBSTITUTE FOR S.B. No. 1440 By: Perry
A BILL TO BE ENTITLED
AN ACT
relating to the territory, jurisdiction, board composition,
elections, and powers of the Barton Springs-Edwards Aquifer
Conservation District, including its authority to regulate certain
wells for the production of groundwater; imposing a cap on certain
fees.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 8802.003, Special District Local Laws
Code, is amended to read as follows:
Sec. 8802.003. DISTRICT TERRITORY. (a) The district is
composed of:
(1) the territory described by the Texas Water
Commission's August 15, 1986, order, as that territory may have
been modified:
(A) by actions of the board through resolutions
dated August 8, 1987, August 13, 1987, January 24, 2002, May 10,
2002, and June 23, 2011; or
(B) under:
(i) [(1)] Subchapter J, Chapter 36, Water
Code; or
(ii) [(2)] other law;
(2) the shared territory described by Section
8802.0035(a); and
(3) the territory described as follows: beginning at
a point at the intersection of the northeastern district boundary
as it existed on January 1, 2015, and the Colorado River, running
east along the southern bank of the Colorado River to a point where
the Colorado River intersects U.S. Highway 183, then south along
U.S. Highway 183 to a point where U.S. Highway 183 intersects the
current eastern boundary of the district, then generally west and
north following along the district boundary as it existed on
January 1, 2015, to the place of beginning.
(b) Any boundary reference under Subsection (a)(3) to a
highway, street, road, avenue, boulevard, or lane shall mean the
centerline of the boundary.
SECTION 2. Subchapter A, Chapter 8802, Special District
Local Laws Code, is amended by adding Section 8802.0035 to read as
follows:
Sec. 8802.0035. SHARED TERRITORY; JURISDICTION. (a) The
territory of the district includes any territory that is:
(1) inside the boundaries of the Edwards Aquifer
Authority;
(2) in Hays County; and
(3) not within the boundaries existing as of January
1, 1989, of any other district with the authority to regulate
groundwater under Chapter 36, Water Code, or prior laws.
(b) The Edwards Aquifer Authority has jurisdiction over any
well that is drilled to produce water from the Edwards Aquifer in
the shared territory described by Subsection (a).
(c) The district has jurisdiction over groundwater and any
well that is drilled to produce water from any aquifer other than
the Edwards Aquifer in the shared territory described by Subsection
(a).
(d) The district has jurisdiction over groundwater and any
well that is drilled to produce water from the Edwards Aquifer or
any other aquifer in the territory described by Section
8802.003(a)(1) or (3). For territory annexed in accordance with
board resolutions dated January 24, 2002, the district shall share
jurisdiction with the Plum Creek Conservation District, which also
includes that territory. Jurisdiction shall be shared under the
terms of an agreement authorized by Chapter 791, Government Code,
in a manner that ensures that the districts do not exercise their
jurisdiction in the shared territory at the same time and for the
same purpose.
(e) The district's jurisdiction over any well that is
drilled to produce water in the territory described in Section
8802.003(a)(1), including a well that is used to recover water that
has been injected as part of an aquifer storage and recovery
project, applies to the territory described by Section
8802.003(a)(3) and all wells for which the district has
jurisdiction in the shared territory described by this section.
SECTION 3. Sections 8802.051 and 8802.052, Special District
Local Laws Code, are amended to read as follows:
Sec. 8802.051. DIRECTORS; TERMS. (a) The district is
governed by a board of seven [five] directors who serve staggered
four-year terms.
(b) Three [At least two] directors must be elected by voters
residing in the territory composed of:
(1) director districts four and five as adopted by the
district on November 17, 2011; and
(2) the territory described by Section 8802.003(a)(3)
[city of Austin].
(c) Four directors must be elected by voters residing
outside the territory described by Subsection (b) and two of the
four directors must reside in Hays County.
Sec. 8802.052. ELECTION DATE. An election shall be held to
elect the appropriate number of directors on the [spring] uniform
election date in November of each even-numbered year.
SECTION 4. Section 8802.053, Special District Local Laws
Code, is amended by amending Subsections (a), (c), and (d) and
adding Subsection (f) to read as follows:
(a) The district is divided into seven [five] numbered,
single-member districts for electing directors.
(c) As soon as practicable after the publication of each
federal decennial census, the board shall revise the single-member
districts as the board considers appropriate to reflect population
changes. When the board revises the single-member districts under
this subsection, the board shall place three [two] of the districts
entirely inside and four of the districts entirely outside the
territory described by Section 8802.051(b)[:
[(1) entirely within the boundaries of the city of
Austin, as those boundaries exist at that time; or
[(2) within the boundaries of the city of Austin, as
those boundaries exist at that time, but also including
unincorporated areas or other municipalities that are surrounded
wholly or partly by the boundaries of the city of Austin if the
areas or municipalities are noncontiguous to the territory of any
other single-member district].
(d) If the district is required to create single-member
districts that do not comply with Sections 8802.051(b) and (c) to
satisfy standards under federal law, the board shall revise the
single-member districts as the board considers appropriate under
the federal law standards [Changes in the boundaries of the city of
Austin between revisions of the single-member districts under
Subsection (c) do not affect the boundaries of the single-member
districts].
(f) At the first regularly scheduled election of directors
after the board is expanded from five to seven directors, directors
elected to fill any vacant positions shall cast lots to determine
which of those directors shall serve a two-year term and which shall
serve a four-year term. Lots must be determined so that not more
than four directors' terms expire in any even-numbered year.
SECTION 5. Section 8802.1045, Special District Local Laws
Code, is amended by adding Subsection (g) to read as follows:
(g) Notwithstanding Subsection (b), before January 1, 2017,
the board may not charge an annual production fee higher than the
rates set forth under Subsection (a) for a well located in the
territory described by Section 8802.003(a)(3) or 8802.0035(a). The
district may increase the annual production fee under this
subsection by not more than 10 cents per thousand gallons per year
beginning January 1, 2018, for water permitted for nonagricultural
purposes, until the annual production fee is equal to the maximum
amount set forth in Subsection (b).
SECTION 6. Section 8802.105, Special District Local Laws
Code, is amended by amending Subsection (a) and adding Subsection
(a-1) to read as follows:
(a) In this section, "Consumer Price Index" means the annual
revised Consumer Price Index for All Urban Consumers, as published
by the Bureau of Labor Statistics of the United States Department of
Labor or a similar index if that index is unavailable. For
calculation purposes, the beginning base month is December 2014.
(a-1) Each year the board may assess against the City of
Austin a water use fee in an amount not to exceed the lesser of $1
million as adjusted to reflect the percentage change during the
preceding year in the Consumer Price Index or 60 percent of the
total funding the district expects to receive for the next fiscal
year from water use fees assessed against Austin and other
nonexempt users in that year as computed[, subject to the
computation] under Subsection (b).
SECTION 7. Subchapter C, Chapter 8802, Special District
Local Laws Code, is amended by adding Section 8802.111 to read as
follows:
Sec. 8802.111. AUTHORITY TO CONSIDER MITIGATION PLAN.
(a) If an applicant for a permit or permit amendment submits to the
district with the permit application or permit amendment
application a plan for mitigating any negative impacts to
groundwater resources or to other wells that may arise from the
production of groundwater by the well or wells for which the permit
or permit amendment is sought, the district may:
(1) consider the plan for mitigation in deciding
whether to grant or deny the application; and
(2) include special terms and conditions requiring
mitigation in a permit or permit amendment that is approved by the
board for the applicant.
(b) Regardless of whether an applicant for a permit or
permit amendment submits to the district a plan for mitigation, the
district and an applicant may negotiate a plan to mitigate any
negative impacts to groundwater resources or to other wells that
may arise from the production of groundwater by the well or wells
for which the permit or permit amendment is sought, and the district
may include the negotiated mitigation plan as a special term or
condition of the permit or permit amendment. The district may not
require an applicant to agree to a mitigation plan that was not
submitted by the applicant.
(c) A mitigation plan described by Subsection (a) or (b) may
include payment of a fee by the applicant for a permit or permit
amendment to the district in an amount sufficient to mitigate the
effects of reduced artesian pressure or the drawdown of the water
table on other wells in the district. If the mitigation plan is
approved by the district as a special term or condition of the
permit as submitted by, or as negotiated with, the applicant, the
district shall establish written procedures for the use of revenue
derived from fees paid by the applicant as part of the mitigation
plan and shall include the written procedures as a special term or
condition of the permit or permit amendment. The written
procedures may include use of the mitigation plan fee revenue to
deepen water wells or to lower pumps, to drill and equip new wells,
or to take other measures to mitigate impacts on water wells that
are negatively impacted by the production of groundwater by the
well or wells for which the permit or permit amendment is approved
by the district.
(d) Nothing in this section shall be construed to limit the
authority of the district to include as a special term or condition
of a permit a requirement that the permit holder reduce or cease
groundwater production during certain hydrological conditions.
SECTION 8. (a) In this section:
(1) "District" means the Barton Springs-Edwards
Aquifer Conservation District.
(2) "Maximum production capacity" means the maximum
production capacity of a well, which may be based on a 36-hour pump
test conducted at the time the well was initially constructed or
placed into service.
(b) A person operating a well before the effective date of
this Act or who has entered into a contract before the effective
date of this Act to drill or operate a well that is or will be
located in the added territory described by Sections 8802.003(a)(3)
or 8802.0035(a), Special District Local Laws Code, as added by this
Act, that is subject to the jurisdiction of the district, as
clarified by this Act, shall file an administratively complete
permit application with the district not later than three months
after the effective date of this Act for the drilling, equipping,
completion, or operation of any well if the well requires a permit
under the rules or orders of the district. The person may file the
permit application for an amount of groundwater production not to
exceed the maximum production capacity of the well.
(c) The district shall issue a temporary permit to a person
who files an application under Subsection (b) of this section
without a hearing on the application not later than the 30th day
after the date of receipt of the application. The district shall
issue the temporary permit for the groundwater production amount
set forth in the application. The temporary permit issued under
this subsection shall provide the person with retroactive and
prospective authorization to drill, operate, or perform another
activity related to a well for which a permit is required by the
district for the period of time between the effective date of this
Act and the date that the district takes a final, appealable action
on issuance of a regular permit pursuant to the permit application
if:
(1) the person's drilling, operating, or other
activities associated with the well are consistent with the
authorization sought in the permit application;
(2) the person timely pays to the district all
administrative fees and fees related to the amount of groundwater
authorized to be produced pursuant to the temporary permit in the
same manner as other permit holders in the district; and
(3) the person complies with other rules and orders of
the district applicable to permit holders.
(d) The temporary permit issued under Subsection (c) of this
section does not confer any rights or privileges to the permit
holder other than those set forth in this section. After issuing
the temporary permit, the district shall process the permit
application for notice, hearing, and consideration for issuance of
a regular permit in the same manner that the district processes
other permit applications not described by this section. The
district, after notice and hearing, may issue an order reducing the
amount of groundwater that may be produced under a temporary permit
under this section only if the district determines that the amount
of groundwater being produced under the temporary permit is causing
a failure to achieve applicable adopted desired future conditions
for the aquifer. The district bears the burden of proof in
demonstrating that the amount of groundwater being produced under a
temporary permit is causing a failure to achieve applicable adopted
desired future conditions for the aquifer. A person who relies on
the temporary permit granted by this section to drill, operate, or
engage in other activities associated with a water well assumes the
risk that the district may grant or deny, wholly or partly, the
permit application when the district takes final action after
notice and hearing to issue a regular permit pursuant to the
application.
(e) The holder of a temporary permit subject to a district
order under Subsection (d) of this section to reduce the amount of
groundwater production from the permitted well may contest the
reduction by requesting a contested case hearing to be conducted by
the State Office of Administrative Hearings in the manner provided
by Sections 36.416, 36.4165, and 36.418, Water Code. The district
shall contract with the State Office of Administrative Hearings to
conduct the hearing as provided by those sections of the Water Code.
To the extent possible, the State Office of Administrative Hearings
shall expedite a hearing under this subsection.
SECTION 9. (a) The legislature validates and confirms all
acts and proceedings of the board of directors of the Barton
Springs-Edwards Aquifer Conservation District that were taken
before the effective date of this Act.
(b) Subsection (a) of this section does not apply to any
matter that on the effective date of this Act:
(1) is involved in litigation if the litigation
ultimately results in the matter being held invalid by a final
judgment of a court; or
(2) has been held invalid by a final judgment of a
court.
SECTION 10. (a) Not later than three months after the
effective date of this Act, the board of directors of the Barton
Springs-Edwards Aquifer Conservation District shall appoint one
temporary director to the board to represent the territory
described by Section 8802.003(a)(3), Special District Local Laws
Code, as added by this Act, and one temporary director to represent
the territory described by Section 8802.0035(a), Special District
Local Laws Code, as added by this Act.
(b) The temporary directors appointed under Subsection (a)
of this section shall serve at large until the next general election
of directors of the district under Section 8802.052, Special
District Local Laws Code, as amended by this Act.
(c) The board of directors of the Barton Springs-Edwards
Aquifer Conservation District shall adjust the board member terms
of office to conform to the new election date under Section
8802.052, Special District Local Laws Code, as amended by this Act.
SECTION 11. (a) The legal notice of the intention to
introduce this Act, setting forth the general substance of this
Act, has been published as provided by law, and the notice and a
copy of this Act have been furnished to all persons, agencies,
officials, or entities to which they are required to be furnished
under Section 59, Article XVI, Texas Constitution, and Chapter 313,
Government Code.
(b) The governor, one of the required recipients, has
submitted the notice and Act to the Texas Commission on
Environmental Quality.
(c) The Texas Commission on Environmental Quality has filed
its recommendations relating to this Act with the governor, the
lieutenant governor, and the speaker of the house of
representatives within the required time.
(d) All requirements of the constitution and laws of this
state and the rules and procedures of the legislature with respect
to the notice, introduction, and passage of this Act are fulfilled
and accomplished.
SECTION 12. 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.
* * * * *