85R6203 SLB-F
By: Phelan H.B. No. 3742
A BILL TO BE ENTITLED
AN ACT
relating to the procedure for contested case hearings regarding
water rights permit applications and amendments to certain water
management plans.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 5.115, Water Code, is amended by adding
Subsection (h) to read as follows:
(h) This section does not apply to a hearing on an
application for a water rights permit or an amendment to a water
rights permit under Chapter 11.
SECTION 2. Section 11.1273(d), Water Code, is amended to
read as follows:
(d) The commission shall provide an opportunity for public
comment and a contested case [public] hearing on the application,
consistent with the process for other water rights applications.
SECTION 3. Sections 11.132(a), (c), and (d), Water Code,
are amended to read as follows:
(a) Notice shall be given to the persons who in the judgment
of the commission may be affected by an application, including
those persons listed in Subdivision (2), Subsection (d), of this
section. The commission, on the motion of a commissioner or on the
request of the executive director, the applicant, or any affected
person, shall hold a contested case [public] hearing on the
application.
(c) In the notice, the commission shall:
(1) state the name and address of the applicant;
(2) state the date the application was filed;
(3) state the purpose and extent of the proposed
appropriation of water;
(4) identify the source of supply and the place where
the water is to be stored or taken or diverted from the source of
supply;
(5) describe the process by which the commission will
consider the application [specify the time and location where the
commission will consider the application]; [and]
(6) provide notice that, not later than the 30th day
after the date of the notice, a person described by Subsection (a)
may:
(A) request a contested case hearing; or
(B) submit:
(i) comments on the application; or
(ii) disputed issues of fact or mixed
questions of fact and law that are relevant and material to the
decision on the application;
(7) describe the process for the submissions and
requests described by Subdivision (6); and
(8) give any additional information the commission
considers necessary.
(d) The commission may act on the application without
holding a contested case [public] hearing if:
(1) not less than 30 days before the date of action on
the application by the commission, the applicant has published the
commission's notice of the application at least once in a newspaper
regularly published or circulated within the section of the state
where the source of water is located;
(2) not less than 30 days before the date of action on
the application by the commission, the commission mails a copy of
the notice by first-class mail, postage prepaid, to:
(A) each claimant or appropriator of water from
the source of water supply, the record of whose claim or
appropriation has been filed with the commission; and
(B) all navigation districts within the river
basin concerned; and
(3) within 30 days after the date of the newspaper
publication of the commission's notice:
(A) [,] a contested case [public] hearing has not
been requested in writing by a commissioner, the executive
director, the applicant, or an affected person; or
(B) no disputed issue of fact or mixed question
of fact and law that is relevant and material to the decision on the
application has been submitted by the applicant or an affected
person [who objects to the application].
SECTION 4. Subchapter D, Chapter 11, Water Code, is amended
by adding Section 11.1321 to read as follows:
Sec. 11.1321. AFFECTED PERSON. (a) In this section,
"timely" means within the period described by Section 11.132.
(b) For the purpose of an administrative hearing held by or
for the commission involving a contested case under this chapter,
"affected person," or "person affected," or "person who may be
affected" means a person who has a personal justiciable interest
related to a legal right, duty, privilege, power, or economic
interest affected by the administrative hearing. An interest
common to members of the general public does not qualify as a
personal justiciable interest.
(c) Unless an application is referred to the State Office of
Administrative Hearings under Section 11.133(a), the commission
shall determine whether a person is an affected person at a public
meeting of the commission.
(d) The commission shall make a determination that a person
is an affected person regarding the application if the person:
(1) is the applicant;
(2) owns or leases a permit, certified filing, or
certificate of adjudication of a senior or superior water right in
the same basin as the basin affected by the application;
(3) has an application pending before the commission
for a new or amended water right in the same basin as the basin
affected by the application;
(4) has an application pending before the commission
for a change of ownership of a water right in the same basin as the
basin affected by the application; or
(5) has timely submitted one or more disputed issues
of fact or mixed questions of fact and law that:
(A) are relevant and material to the decision on
the application; and
(B) have the potential to affect the justiciable
interest asserted by the person.
(e) The following are not affected persons:
(1) a group or association that does not:
(A) timely request a contested case hearing in
writing; and
(B) identify by name and physical address or
location a member of the group or association who would be an
affected person in the person's own right;
(2) a hearing requestor, even if otherwise an affected
person, who did not timely submit in writing a disputed issue of
fact or mixed question of fact and law that is relevant and material
to the decision on the application; or
(3) a person, even if otherwise an affected person,
who did not timely request a contested case hearing.
(f) For a person other than those described by Subsection
(d) or (e), the commission shall make a determination regarding
whether a person is an affected person by considering:
(1) the likely impact of approving the application on
the health, safety, and use of the property of the hearing
requestor, to the extent the impact relates to issues within the
commission's jurisdiction;
(2) the administrative record, including the permit
application and any supporting documentation;
(3) the analysis and opinions of the executive
director; and
(4) any other expert reports, affidavits, opinions, or
data submitted on or before any applicable deadline to the
commission by the executive director, the applicant, or a hearing
requestor.
SECTION 5. Section 11.133, Water Code, is amended to read as
follows:
Sec. 11.133. HEARING. (a) If an applicant requests a
contested case hearing and that the hearing be referred to the State
Office of Administrative Hearings, the commission shall refer the
hearing to the State Office of Administrative Hearings.
(b) If the commission determines at a public meeting of the
commission that a contested case hearing has been requested by an
affected person, the commission shall either:
(1) hold a contested case hearing on the application
before the commission at a time and place designated by the
commission; or
(2) refer the application to the State Office of
Administrative Hearings.
(c) [At the time and place stated in the notice, the
commission shall hold a hearing on the application.] Any affected
person may appear at the hearing in person or by attorney or may
enter the person's [his] appearance in writing. Any affected
person who appears may present objection to the issuance of the
permit. The commission or the State Office of Administrative
Hearings may receive evidence, orally or by affidavit, in support
of or in opposition to the issuance of the permit, and it may hear
arguments. Chapter 2001, Government Code, applies to a contested
case hearing held under this section.
(d) If the commission grants a request for a hearing, the
commission shall:
(1) for a hearing other than a hearing referred to the
State Office of Administrative Hearings under Subsection (a),
determine the number and scope of issues to be considered in the
contested case hearing; and
(2) consistent with the nature and number of issues to
be considered at the hearing, specify the maximum duration of the
hearing, beginning on the date of the preliminary hearing and
concluding with the issuance of a proposal for decision, which may
not exceed a period of 270 days, unless the commission determines
that the nature and number of issues to be considered at the hearing
requires that the period be extended.
(e) An issue included in the scope of issues determined
under Subsection (d)(1) must be an issue the commission determines:
(1) involves a disputed question of fact or a mixed
question of fact and law;
(2) is relevant and material to the decision on the
application; and
(3) was raised by an affected person during the notice
period described by Section 11.132.
SECTION 6. Subchapter D, Chapter 11, Water Code, is amended
by adding Section 11.1335 to read as follows:
Sec. 11.1335. HEARINGS CONDUCTED BY THE STATE OFFICE OF
ADMINISTRATIVE HEARINGS. (a) The presiding administrative law
judge of a contested case hearing referred under Section
11.133(b)(2):
(1) may not grant party status to a person who is not
an affected person as determined by the commission under Section
11.1321; and
(2) shall limit the scope of the hearing to the
disputed issues of fact or mixed questions of fact and law
identified by the commission under Section 11.133(d)(1).
(b) The presiding administrative law judge of a contested
case hearing referred under Section 11.133(a):
(1) may not grant party status to a person who is not
an affected person; and
(2) shall limit the scope of the hearing to:
(A) disputed issues of fact or mixed questions of
fact and law that:
(i) are relevant and material to the
decision on the application; and
(ii) were raised by a party to the hearing
within the period described by Section 11.132;
(B) issues that the parties have agreed to
include in the hearing, with the approval of the presiding judge;
and
(C) issues that the presiding judge determines
are necessary to prevent the deprivation of due process or another
constitutional right to a party.
(c) The administrative law judge who hears the case shall
issue a proposal for decision on or before the deadline determined
by the commission under Section 11.133(d)(2) unless the judge
determines that failure to extend the deadline would unduly deprive
a party to the hearing of due process or another constitutional
right.
(d) For the purposes of Subsections (b) and (c), a political
subdivision has the same rights as an individual.
SECTION 7. Sections 11.143(d) and (g), Water Code, are
amended to read as follows:
(d) Except as otherwise specifically provided by this
subsection, before the commission may approve the application and
issue the permit, it shall give notice and hold a hearing as
prescribed by this section. The commission may act on the
application without holding a contested case [public] hearing if:
(1) not less than 30 days before the date of action on
the application by the commission, the applicant has published the
commission's notice of the application at least once in a newspaper
regularly published or circulated within the section of the state
where the source of water is located;
(2) not less than 30 days before the date of action on
the application by the commission, the commission mails a copy of
the notice by first-class mail, postage prepaid, to each person
whose claim or appropriation has been filed with the commission and
whose diversion point is downstream from that described in the
application; and
(3) within 30 days after the date of the newspaper
publication of the commission's notice, a contested case [public]
hearing is not requested in writing by a commissioner, the
executive director, or an affected person who objects to the
application.
(g) If on the date specified in the notice prescribed by
Subsection (d) of this section, the commission determines that a
contested case [public] hearing must be held, the matter shall be
remanded for hearing without the necessity of issuing further
notice other than advising all parties of the time and place where
the hearing is to convene.
SECTION 8. Section 11.174, Water Code, is amended to read as
follows:
Sec. 11.174. COMMISSION MAY INITIATE PROCEEDINGS. When the
commission finds that its records do not show that some portion of
the water has been used during the past 10 years, the executive
director may initiate proceedings, terminated by contested case
[public] hearing, to cancel the permit, certified filing, or
certificate of adjudication in whole or in part.
SECTION 9. Section 11.132(f), Water Code, is repealed.
SECTION 10. (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 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.
SECTION 11. This Act takes effect September 1, 2017.