Texas 2017 - 85th Regular

Texas House Bill HB3742 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	~~85R26050~~ SLB-F
	1	+	85R6203 SLB-F
2	2		By: Phelan H.B. No. 3742
3		-	Substitute the following for H.B. No. 3742:
4		-	By: Larson C.S.H.B. No. 3742
5	3
6	4
7	5		A BILL TO BE ENTITLED
8	6		AN ACT
9		-	relating to the procedure for ~~action by the Texas Commission on~~
10		-	~~Environmental Quality on an application for a new or amended~~ water
11		-	~~right~~.
	7	+	relating to the procedure for contested case hearings regarding
	8	+	water rights permit applications and amendments to certain water
	9	+	management plans.
12	10		BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
13		-	SECTION 1. Section 5.115, Water Code, is amended by
14		-	amending Subsection (b) and adding Subsection (h) to read as
15		-	follows:
16		-	(b) At the time an application for a permit or license under
17		-	this code, other than an application for a water right or an
18		-	amendment to a water right under Chapter 11, is filed with the
19		-	executive director and is administratively complete, the
20		-	commission shall give notice of the application to any person who
21		-	may be affected by the granting of the permit or license. At the
22		-	time an application for a water right or an amendment to a water
23		-	right under Chapter 11 is filed with the executive director and is
24		-	technically complete, the commission shall give notice as required
25		-	by law. A state agency that receives notice under this subsection
26		-	may submit comments to the commission in response to the notice but
27		-	may not contest the issuance of a permit or license by the
28		-	commission. For the purposes of this subsection, "state agency"
29		-	does not include a river authority.
30		-	(h) Subsections (a) and (a-1) do not apply to a hearing on an
31		-	application for a water right or an amendment to a water right under
32		-	Chapter 11.
	11	+	SECTION 1. Section 5.115, Water Code, is amended by adding
	12	+	Subsection (h) to read as follows:
	13	+	(h) This section does not apply to a hearing on an
	14	+	application for a water rights permit or an amendment to a water
	15	+	rights permit under Chapter 11.
33	16		SECTION 2. Section 11.1273(d), Water Code, is amended to
34	17		read as follows:
35	18		(d) The commission shall provide an opportunity for public
36	19		comment and a contested case [public] hearing on the application,
37	20		consistent with the process for other water rights applications.
38	21		SECTION 3. Sections 11.132(a), (c), and (d), Water Code,
39	22		are amended to read as follows:
40		-	(a) Notice shall be given as provided by commission rule to
41		-	a person [to the persons] who in the judgment of the commission
42		-	should receive notice [may be affected by an application, including
	23	+	(a) Notice shall be given to the persons who in the judgment
	24	+	of the commission may be affected by an application, including
43	25		those persons listed in Subdivision (2), Subsection (d), of this
44		-	section]. The commission, on the motion of a commissioner or on the
	26	+	section. The commission, on the motion of a commissioner or on the
45	27		request of the executive director, the applicant, or any affected
46	28		person, shall hold a contested case [public] hearing on the
47	29		application.
48	30		(c) In the notice, the commission shall:
49	31		(1) state the name and address of the applicant;
50	32		(2) state the date the application was filed;
51	33		(3) state the purpose and extent of the proposed
52	34		appropriation of water;
53	35		(4) identify the source of supply and the place where
54	36		the water is to be stored or taken or diverted from the source of
55	37		supply;
56	38		(5) describe the process by which the commission will
57	39		consider the application [specify the time and location where the
58	40		commission will consider the application]; [and]
59	41		(6) provide notice that, not later than the 30th day
60	42		after the date of the notice, a person described by Subsection (a)
61	43		may:
62	44		(A) request a contested case hearing; or
63	45		(B) submit:
64	46		(i) comments on the application; or
65	47		(ii) disputed issues of fact or mixed
66	48		questions of fact and law that are relevant and material to the
67	49		decision on the application;
68		-	(7) describe the process for the ~~requests~~ and
69		-	~~submissions~~ described by Subdivision (6); and
	50	+	(7) describe the process for the submissions and
	51	+	requests described by Subdivision (6); and
70	52		(8) give any additional information the commission
71	53		considers necessary.
72	54		(d) The commission may act on the application without
73	55		holding a contested case [public] hearing if:
74	56		(1) not less than 30 days before the date of action on
75	57		the application by the commission, the applicant has published the
76	58		commission's notice of the application at least once in a newspaper
77	59		regularly published or circulated within the section of the state
78		-	where the source of water is located, if published notice is
79		-	required by commission rule;
	60	+	where the source of water is located;
80	61		(2) not less than 30 days before the date of action on
81	62		the application by the commission, the commission mails a copy of
82		-	the notice by first-class mail, postage prepaid, to all persons to
83		-	whom notice is required to be mailed under commission rules adopted
84		-	under Subsection (a)[:
85		-	[(A) each claimant or appropriator of water from
	63	+	the notice by first-class mail, postage prepaid, to:
	64	+	(A) each claimant or appropriator of water from
86	65		the source of water supply, the record of whose claim or
87	66		appropriation has been filed with the commission; and
88		-	[(B) all navigation districts within the river
89		-	basin concerned]; and
90		-	(3) within ~~the period specified in the [~~30 days after
91		-	~~the date of the newspaper~~ publication of the commission's] notice:
	67	+	(B) all navigation districts within the river
	68	+	basin concerned; and
	69	+	(3) within 30 days after the date of the newspaper
	70	+	publication of the commission's notice:
92	71		(A) [,] a contested case [public] hearing has not
93	72		been requested in writing by a commissioner, the executive
94	73		director, the applicant, or an affected person; or
95	74		(B) no disputed issue of fact or mixed question
96	75		of fact and law that is relevant and material to the decision on the
97	76		application has been submitted by the applicant or an affected
98	77		person [who objects to the application].
99	78		SECTION 4. Subchapter D, Chapter 11, Water Code, is amended
100	79		by adding Section 11.1321 to read as follows:
101	80		Sec. 11.1321. AFFECTED PERSON. (a) In this section,
102		-	"timely" means within the 30-day notice period described by Section
103		-	11.132.
	81	+	"timely" means within the period described by Section 11.132.
104	82		(b) For the purpose of an administrative hearing held by or
105	83		for the commission involving a contested case under this chapter,
106		-	"affected person," "person affected," or "person who may be
	84	+	"affected person," or "person affected," or "person who may be
107	85		affected" means a person who has a personal justiciable interest
108	86		related to a legal right, duty, privilege, power, or economic
109	87		interest affected by the administrative hearing. An interest
110	88		common to members of the general public does not qualify as a
111	89		personal justiciable interest.
112	90		(c) Unless an application is referred to the State Office of
113	91		Administrative Hearings under Section 11.133(a), the commission
114	92		shall determine whether a person is an affected person at a public
115	93		meeting of the commission.
116	94		(d) The commission shall make a determination that a person
117	95		is an affected person regarding the application if the person:
118		-	(1) is the applicant; or
119		-	(2) has timely submitted one or more disputed issues
120		-	of fact or mixed questions of fact and law that are relevant and
121		-	material to the decision on the application and have the potential
122		-	to affect the justiciable interest asserted by the person, and the
123		-	person:
124		-	(A) owns or leases a permit, certified filing,
125		-	certificate of adjudication, or other water right recognized under
126		-	this chapter in the same basin as the basin affected by the
127		-	application;
128		-	(B) has an administratively complete application
129		-	pending before the commission for a new or amended water right in
	96	+	(1) is the applicant;
	97	+	(2) owns or leases a permit, certified filing, or
	98	+	certificate of adjudication of a senior or superior water right in
130	99		the same basin as the basin affected by the application;
131		-	(C) has an application pending before the
132		-	commission for a change of ownership of a water right in the same
133		-	basin as the basin affected by the application; or
134		-	(D) is otherwise an affected person under
135		-	Subsection (b).
	100	+	(3) has an application pending before the commission
	101	+	for a new or amended water right in the same basin as the basin
	102	+	affected by the application;
	103	+	(4) has an application pending before the commission
	104	+	for a change of ownership of a water right in the same basin as the
	105	+	basin affected by the application; or
	106	+	(5) has timely submitted one or more disputed issues
	107	+	of fact or mixed questions of fact and law that:
	108	+	(A) are relevant and material to the decision on
	109	+	the application; and
	110	+	(B) have the potential to affect the justiciable
	111	+	interest asserted by the person.
136	112		(e) The following are not affected persons:
137	113		(1) a group or association that does not:
138		-	(A) timely request a contested case hearing; and
	114	+	(A) timely request a contested case hearing in
	115	+	writing; and
139	116		(B) identify by name and physical address or
140	117		location a member of the group or association who would be an
141	118		affected person in the person's own right;
142	119		(2) a hearing requestor, even if otherwise an affected
143	120		person, who did not timely submit in writing a disputed issue of
144	121		fact or mixed question of fact and law that is relevant and material
145	122		to the decision on the application; or
146	123		(3) a person, even if otherwise an affected person,
147	124		who did not timely request a contested case hearing.
148	125		(f) For a person other than those described by Subsection
149		-	(d)(1), (d)(2)(A), (d)(2)(B), (d)(2)(C), or (e), the commission
150		-	shall make a determination regarding whether a person is an
151		-	affected person by considering:
	126	+	(d) or (e), the commission shall make a determination regarding
	127	+	whether a person is an affected person by considering:
152	128		(1) the likely impact of approving the application on
153	129		the health, safety, and use of the property of the hearing
154	130		requestor, to the extent the impact relates to issues within the
155	131		commission's jurisdiction;
156	132		(2) the administrative record, including the permit
157		-	application, public comments, hearing requests, related filings,
158		-	and any supporting documentation;
	133	+	application and any supporting documentation;
159	134		(3) the analysis and opinions of the executive
160		-	director;
	135	+	director; and
161	136		(4) any other expert reports, affidavits, opinions, or
162	137		data submitted on or before any applicable deadline to the
163	138		commission by the executive director, the applicant, or a hearing
164		-	requestor; and
165		-	(5) any other factors the commission considers
166		-	relevant.
	139	+	requestor.
167	140		SECTION 5. Section 11.133, Water Code, is amended to read as
168	141		follows:
169		-	Sec. 11.133. ~~CONTESTED CASE~~ HEARING ~~ON APPLICATION~~. (a) If
170		-	~~an applicant requests~~ that the ~~applicant's application~~ be referred
171		-	~~to the State~~ Office of Administrative Hearings ~~for a contested case~~
172		-	hearing~~, the commission shall refer the application~~ to the office.
	142	+	Sec. 11.133. HEARING. (a) If an applicant requests a
	143	+	contested case hearing and that the hearing be referred to the State
	144	+	Office of Administrative Hearings, the commission shall refer the
	145	+	hearing to the State Office of Administrative Hearings.
173	146		(b) If the commission determines at a public meeting of the
174	147		commission that a contested case hearing has been requested by an
175	148		affected person, the commission shall either:
176	149		(1) hold a contested case hearing on the application
177	150		before the commission at a time and place designated by the
178	151		commission; or
179	152		(2) refer the application to the State Office of
180	153		Administrative Hearings.
181	154		(c) [At the time and place stated in the notice, the
182	155		commission shall hold a hearing on the application.] Any affected
183		-	person may appear at the ~~contested case~~ hearing in person or by
184		-	~~attorney or may~~ enter the person's [his] appearance in writing. Any
185		-	~~affected~~ person who appears may present objection to the issuance
186		-	~~of the~~ permit. The commission or the State Office of Administrative
	156	+	person may appear at the hearing in person or by attorney or may
	157	+	enter the person's [his] appearance in writing. Any affected
	158	+	person who appears may present objection to the issuance of the
	159	+	permit. The commission or the State Office of Administrative
187	160		Hearings may receive evidence, orally or by affidavit, in support
188		-	of or in opposition to the issuance of the permit, and [it] may hear
	161	+	of or in opposition to the issuance of the permit, and it may hear
189	162		arguments. Chapter 2001, Government Code, applies to a contested
190	163		case hearing held under this section.
191		-	(d) The commission may not refer an issue regarding an
192		-	application for a contested case hearing under Subsection (b)
193		-	unless the commission determines that the issue:
194		-	(1) is a disputed issue of fact or mixed question of
195		-	fact and law;
196		-	(2) is relevant and material to a decision on the
	164	+	(d) If the commission grants a request for a hearing, the
	165	+	commission shall:
	166	+	(1) for a hearing other than a hearing referred to the
	167	+	State Office of Administrative Hearings under Subsection (a),
	168	+	determine the number and scope of issues to be considered in the
	169	+	contested case hearing; and
	170	+	(2) consistent with the nature and number of issues to
	171	+	be considered at the hearing, specify the maximum duration of the
	172	+	hearing, beginning on the date of the preliminary hearing and
	173	+	concluding with the issuance of a proposal for decision, which may
	174	+	not exceed a period of 270 days, unless the commission determines
	175	+	that the nature and number of issues to be considered at the hearing
	176	+	requires that the period be extended.
	177	+	(e) An issue included in the scope of issues determined
	178	+	under Subsection (d)(1) must be an issue the commission determines:
	179	+	(1) involves a disputed question of fact or a mixed
	180	+	question of fact and law;
	181	+	(2) is relevant and material to the decision on the
197	182		application; and
198		-	(3) was raised by an affected person whose hearing
199		-	request was granted by the commission.
200		-	(e) If the commission grants a request for a contested case
201		-	hearing under Subsection (b), the commission shall:
202		-	(1) determine the number and scope of issues to be
203		-	referred for a hearing; and
204		-	(2) consistent with the nature and number of issues to
205		-	be considered at the hearing, specify the maximum expected duration
206		-	of the proceeding, beginning with the holding of the preliminary
207		-	hearing and concluding with the issuance of the proposal for
208		-	decision, which may not exceed a period of 270 days, unless the
209		-	commission determines that the nature and number of issues to be
210		-	considered at the hearing require that the period be extended.
211		-	(f) The administrative law judge who conducts the contested
212		-	case hearing or the commission, if the commission conducts the
213		-	hearing, may extend the proceeding beyond the period specified by
214		-	the commission under Subsection (e)(2) if:
215		-	(1) the parties to the hearing agree to an extension;
216		-	or
217		-	(2) the administrative law judge or the commission, if
218		-	the commission conducts the hearing, determines that failure to
219		-	extend the proceeding would deprive a party of due process or
220		-	another constitutional right.
221		-	(g) For the purposes of Subsection (f)(2), a political
222		-	subdivision has the same constitutional rights as an individual.
223		-	(h) If the commission refers an application for a contested
224		-	case hearing under Subsection (a), the administrative law judge who
225		-	conducts the hearing:
226		-	(1) may not grant party status to:
227		-	(A) a person who is not an affected person under
228		-	Section 11.1321; or
229		-	(B) a person whose hearing request was denied by
230		-	the commission; and
231		-	(2) shall determine the number and scope of issues to
232		-	be considered at the hearing in accordance with the limitations
233		-	contained in Subsection (d).
234		-	(i) Subsection (h)(1) does not apply to the office of public
235		-	interest counsel or the executive director.
236		-	(j) In the event of a conflict between this section and any
237		-	other law, this section prevails.
238		-	SECTION 6. Sections 11.143(d) and (g), Water Code, are
	183	+	(3) was raised by an affected person during the notice
	184	+	period described by Section 11.132.
	185	+	SECTION 6. Subchapter D, Chapter 11, Water Code, is amended
	186	+	by adding Section 11.1335 to read as follows:
	187	+	Sec. 11.1335. HEARINGS CONDUCTED BY THE STATE OFFICE OF
	188	+	ADMINISTRATIVE HEARINGS. (a) The presiding administrative law
	189	+	judge of a contested case hearing referred under Section
	190	+	11.133(b)(2):
	191	+	(1) may not grant party status to a person who is not
	192	+	an affected person as determined by the commission under Section
	193	+	11.1321; and
	194	+	(2) shall limit the scope of the hearing to the
	195	+	disputed issues of fact or mixed questions of fact and law
	196	+	identified by the commission under Section 11.133(d)(1).
	197	+	(b) The presiding administrative law judge of a contested
	198	+	case hearing referred under Section 11.133(a):
	199	+	(1) may not grant party status to a person who is not
	200	+	an affected person; and
	201	+	(2) shall limit the scope of the hearing to:
	202	+	(A) disputed issues of fact or mixed questions of
	203	+	fact and law that:
	204	+	(i) are relevant and material to the
	205	+	decision on the application; and
	206	+	(ii) were raised by a party to the hearing
	207	+	within the period described by Section 11.132;
	208	+	(B) issues that the parties have agreed to
	209	+	include in the hearing, with the approval of the presiding judge;
	210	+	and
	211	+	(C) issues that the presiding judge determines
	212	+	are necessary to prevent the deprivation of due process or another
	213	+	constitutional right to a party.
	214	+	(c) The administrative law judge who hears the case shall
	215	+	issue a proposal for decision on or before the deadline determined
	216	+	by the commission under Section 11.133(d)(2) unless the judge
	217	+	determines that failure to extend the deadline would unduly deprive
	218	+	a party to the hearing of due process or another constitutional
	219	+	right.
	220	+	(d) For the purposes of Subsections (b) and (c), a political
	221	+	subdivision has the same rights as an individual.
	222	+	SECTION 7. Sections 11.143(d) and (g), Water Code, are
239	223		amended to read as follows:
240	224		(d) Except as otherwise specifically provided by this
241	225		subsection, before the commission may approve the application and
242	226		issue the permit, it shall give notice and hold a hearing as
243	227		prescribed by this section. The commission may act on the
244	228		application without holding a contested case [public] hearing if:
245	229		(1) not less than 30 days before the date of action on
246	230		the application by the commission, the applicant has published the
247	231		commission's notice of the application at least once in a newspaper
248	232		regularly published or circulated within the section of the state
249	233		where the source of water is located;
250	234		(2) not less than 30 days before the date of action on
251	235		the application by the commission, the commission mails a copy of
252	236		the notice by first-class mail, postage prepaid, to each person
253	237		whose claim or appropriation has been filed with the commission and
254	238		whose diversion point is downstream from that described in the
255	239		application; and
256	240		(3) within 30 days after the date of the newspaper
257	241		publication of the commission's notice, a contested case [public]
258	242		hearing is not requested in writing by a commissioner, the
259	243		executive director, or an affected person who objects to the
260	244		application.
261	245		(g) If on the date specified in the notice prescribed by
262		-	Subsection (d) [of this section,] the commission determines that a
	246	+	Subsection (d) of this section, the commission determines that a
263	247		contested case [public] hearing must be held, the matter shall be
264	248		remanded for hearing without the necessity of issuing further
265	249		notice other than advising all parties of the time and place where
266	250		the hearing is to convene.
267		-	SECTION 7. Section 11.174, Water Code, is amended to read as
	251	+	SECTION 8. Section 11.174, Water Code, is amended to read as
268	252		follows:
269	253		Sec. 11.174. COMMISSION MAY INITIATE PROCEEDINGS. When the
270	254		commission finds that its records do not show that some portion of
271	255		the water has been used during the past 10 years, the executive
272	256		director may initiate proceedings, terminated by contested case
273	257		[public] hearing, to cancel the permit, certified filing, or
274	258		certificate of adjudication in whole or in part.
275		-	SECTION 8. Section 11.132(f), Water Code, is repealed.
276		-	SECTION 9. (a) As soon as practicable after the effective
	259	+	SECTION 9. Section 11.132(f), Water Code, is repealed.
	260	+	SECTION 10. (a) As soon as practicable after the effective
277	261		date of this Act, the Texas Commission on Environmental Quality
278	262		shall adopt rules to implement the changes in law made by this Act.
279	263		(b) The changes in law made by this Act apply only to an
280		-	application for a new or amended water right received by the Texas
281		-	Commission on Environmental Quality on or after the effective date
282		-	of the rules adopted under Subsection (a) of this section. An
283		-	application received before the effective date of the rules adopted
284		-	under Subsection (a) of this section is governed by the law in
285		-	effect on the date the application was received, and the former law
286		-	is continued in effect for that purpose.
287		-	SECTION 10. This Act takes effect immediately if it
288		-	receives a vote of two-thirds of all the members elected to each
289		-	house, as provided by Section 39, Article III, Texas Constitution.
290		-	If this Act does not receive the vote necessary for immediate
291		-	effect, this Act takes effect September 1, 2017.
	264	+	application received by the Texas Commission on Environmental
	265	+	Quality on or after the effective date of the rules adopted under
	266	+	Subsection (a) of this section. An application received before the
	267	+	effective date of the rules adopted under Subsection (a) of this
	268	+	section is governed by the law in effect on the date the application
	269	+	was received, and the former law is continued in effect for that
	270	+	purpose.
	271	+	SECTION 11. This Act takes effect September 1, 2017.