85R26050 SLB-F
By: Phelan H.B. No. 3742
Substitute the following for H.B. No. 3742:
By: Larson C.S.H.B. No. 3742
A BILL TO BE ENTITLED
AN ACT
relating to the procedure for action by the Texas Commission on
Environmental Quality on an application for a new or amended water
right.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 5.115, Water Code, is amended by
amending Subsection (b) and adding Subsection (h) to read as
follows:
(b) At the time an application for a permit or license under
this code, other than an application for a water right or an
amendment to a water right under Chapter 11, is filed with the
executive director and is administratively complete, the
commission shall give notice of the application to any person who
may be affected by the granting of the permit or license. At the
time an application for a water right or an amendment to a water
right under Chapter 11 is filed with the executive director and is
technically complete, the commission shall give notice as required
by law. A state agency that receives notice under this subsection
may submit comments to the commission in response to the notice but
may not contest the issuance of a permit or license by the
commission. For the purposes of this subsection, "state agency"
does not include a river authority.
(h) Subsections (a) and (a-1) do not apply to a hearing on an
application for a water right or an amendment to a water right 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 as provided by commission rule to
a person [to the persons] who in the judgment of the commission
should receive notice [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 requests and
submissions 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, if published notice is
required by commission rule;
(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 all persons to
whom notice is required to be mailed under commission rules adopted
under Subsection (a)[:
[(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 the period specified in the [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 30-day notice 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," "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; or
(2) has timely submitted one or more disputed issues
of fact or mixed questions of fact and law that are relevant and
material to the decision on the application and have the potential
to affect the justiciable interest asserted by the person, and the
person:
(A) owns or leases a permit, certified filing,
certificate of adjudication, or other water right recognized under
this chapter in the same basin as the basin affected by the
application;
(B) has an administratively complete application
pending before the commission for a new or amended water right in
the same basin as the basin affected by the application;
(C) 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
(D) is otherwise an affected person under
Subsection (b).
(e) The following are not affected persons:
(1) a group or association that does not:
(A) timely request a contested case hearing; 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)(1), (d)(2)(A), (d)(2)(B), (d)(2)(C), 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, public comments, hearing requests, related filings,
and any supporting documentation;
(3) the analysis and opinions of the executive
director;
(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; and
(5) any other factors the commission considers
relevant.
SECTION 5. Section 11.133, Water Code, is amended to read as
follows:
Sec. 11.133. CONTESTED CASE HEARING ON APPLICATION. (a) If
an applicant requests that the applicant's application be referred
to the State Office of Administrative Hearings for a contested case
hearing, the commission shall refer the application to the office.
(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 contested case 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) The commission may not refer an issue regarding an
application for a contested case hearing under Subsection (b)
unless the commission determines that the issue:
(1) is a disputed issue of fact or mixed question of
fact and law;
(2) is relevant and material to a decision on the
application; and
(3) was raised by an affected person whose hearing
request was granted by the commission.
(e) If the commission grants a request for a contested case
hearing under Subsection (b), the commission shall:
(1) determine the number and scope of issues to be
referred for a hearing; and
(2) consistent with the nature and number of issues to
be considered at the hearing, specify the maximum expected duration
of the proceeding, beginning with the holding of the preliminary
hearing and concluding with the issuance of the 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 require that the period be extended.
(f) The administrative law judge who conducts the contested
case hearing or the commission, if the commission conducts the
hearing, may extend the proceeding beyond the period specified by
the commission under Subsection (e)(2) if:
(1) the parties to the hearing agree to an extension;
or
(2) the administrative law judge or the commission, if
the commission conducts the hearing, determines that failure to
extend the proceeding would deprive a party of due process or
another constitutional right.
(g) For the purposes of Subsection (f)(2), a political
subdivision has the same constitutional rights as an individual.
(h) If the commission refers an application for a contested
case hearing under Subsection (a), the administrative law judge who
conducts the hearing:
(1) may not grant party status to:
(A) a person who is not an affected person under
Section 11.1321; or
(B) a person whose hearing request was denied by
the commission; and
(2) shall determine the number and scope of issues to
be considered at the hearing in accordance with the limitations
contained in Subsection (d).
(i) Subsection (h)(1) does not apply to the office of public
interest counsel or the executive director.
(j) In the event of a conflict between this section and any
other law, this section prevails.
SECTION 6. 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 7. 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 8. Section 11.132(f), Water Code, is repealed.
SECTION 9. (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 for a new or amended water right 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 10. 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, 2017.