By: Springer S.B. No. 638
A BILL TO BE ENTITLED
AN ACT
relating to the governance and decision-making of groundwater
conservation districts in contested cases.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
Section 1. Texas Water Code Sec. 36.0015, subsection (b), is
amended as follows:
(b) In order to provide for the conservation, preservation,
protection, recharging, and prevention of waste of groundwater, and
of groundwater reservoirs or their subdivisions, and to control
subsidence caused by withdrawal of water from those groundwater
reservoirs or their subdivisions, consistent with the objectives of
Section 59, Article XVI, Texas Constitution, groundwater
conservation districts may be created as provided by this chapter.
Groundwater conservation districts created as provided by this
chapter are the state's preferred method of groundwater management
in order to protect property rights, balance the conservation and
development of groundwater to meet the needs of this state, and use
the best available science in the conservation and development of
groundwater through rules and procedures developed, adopted, and
promulgated by a district in accordance with the provisions of this
chapter.
Section 2. Texas Water Code Sec. 36.003 is added as
follows:
36.003. IMPORTANCE OF GROUNDWATER TO THE STATE'S
ECONOMIC GROWTH. The legislature recognizes that timely decisions
regarding production and transport of private groundwater are
essential to the state's continued economic development. Delays in
such decisions substantially increase uncertainty and expense, and
thereby have a detrimental impact on the state's ability to
competitively attract businesses. Accordingly, districts should
ensure timely decisions in accordance with the procedures set forth
in this chapter.
Section 3. Texas Water Code Sec. 36.051 is amended by adding
subsection (c-1) as follows:
(c-1) A director who has been recused from voting on more
than one application for a permit or permit amendment or fails to
attend meetings two consecutive meetings of the district board
shall be disqualified from further service on the Board. The
resulting vacant position shall be filled as provided by this
chapter or as prescribed by the district's enabling legislation.
Section 4. Texas Water Code Sec. 36.053 is amended as
follows:
(a) A majority of the membership of the board constitutes a
quorum for any meeting, and a concurrence of a majority of the
entire membership of the board is sufficient for transacting any
business of the district, except as provided by subsection (b).
(b) For purposes of reaching a final decision on a permit or
permit amendment application, any board member who is recused from
voting or fails to attend shall not count towards the quorum or
majority requirements set forth in subsection (a).
Section 5. Texas Water Code Sec. 36.409 is amended as
follows:
The presiding officer may continue a hearing from time to
time and from place to place without providing notice under Section
36.404; however, in no event shall such continuance exceed the time
limits prescribed for issuance of a final decision as set forth in
Section 36.4165. If the presiding officer continues a hearing
without announcing at the hearing the time, date, and location of
the continued hearing, the presiding officer must provide notice of
the continued hearing by regular mail to the parties.
Section 6. Texas Water Code Sec. 36.412 is amended as
follows:
(a) An applicant in a contested or uncontested hearing on an
application or a party to a contested hearing may administratively
appeal a decision of the board on a permit or permit amendment
application. Except for decisions by the board under Section
36.4165, a party seeking to appeal a decision by the board must
request by requesting written findings and conclusions not later
than the 20th day after the date of the board's decision.
(b) On receipt of a timely written request required by
subsection (a), the board shall make written findings and
conclusions regarding a decision of the board on a permit or permit
amendment application. The board shall provide certified copies of
the findings and conclusions to the person who requested them, and
to each designated party, not later than the 35th day after the date
the board receives the request.
(c) A party to a contested hearing may request a rehearing
not later than the 20th day after the date the board issues the
findings and conclusions.
(dc) A request for rehearing must be filed in the district
office and must state the grounds for the request. If the original
hearing was a contested hearing, the party requesting a rehearing
must provide copies of the request to all parties to the hearing.
(ed) If the board grants a request for rehearing, the board
shall schedule the rehearing not later than the 45th day after the
date the request is granted.
(fe) The failure of the board to grant or deny a request for
rehearing before the 91st day after the date the request is
submitted is a denial of the request.
Section 7. Texas Water Code Sec. 36.413 is amended as
follows:
(a) A decision by the board on a permit or permit amendment
application is final:
(1) if a request for rehearing is not filed on time, on
the expiration of the period for filing a request for rehearing; or
(2) if a request for rehearing is filed on time, on the
date:
(A) the board denies the request for rehearing;
or
(B) the board renders a written decision after
rehearing, or
(3) as provided by section 36.4165(e).
(b) Except as provided by Subsection (c), an applicant or a
party to a contested hearing may file a suit against the district
under Section 36.251 to appeal a decision on a permit or permit
amendment application not later than the 60th day after the date on
which the decision becomes final.
(c) An applicant or a party to a contested hearing may not
file suit against the district under Section 36.251 if a request for
rehearing was not filed on time unless no such request is required
under section 36.4165(e).
Section 8. Texas Water Code Sec. 36.4165 is amended as
follows:
(a) In a proceeding for a permit application or amendment in
which a district has contracted with the State Office of
Administrative Hearings for a contested case hearing, the board has
the authority to make a final decision on consideration of a
proposal for decision issued by an administrative law judge.
(b) A board may change a finding of fact or conclusion of law
made by the administrative law judge, or may vacate or modify an
order issued by the administrative judge, only if the board
determines:
(1) that the administrative law judge did not properly
apply or interpret applicable law, district rules, written policies
provided under Section 36.416(e), or prior administrative
decisions;
(2) that a prior administrative decision on which the
administrative law judge relied is incorrect or should be changed;
or
(3) that a technical error in a finding of fact should
be changed.
(c) The final decision issued by the district under this
section must be in writing and shall either adopt the proposed
findings of fact and conclusions of law as proposed by the
administrative law judge or include revised findings of fact and
conclusions of law consistent with subsection (b). No request for
findings of fact or conclusions of law from a party is required
under this section.
(d) Notwithstanding any other timelines provided in this
chapter, and unless otherwise agreed to by the applicant, a
district must issue its final decision under this section no later
than 180 days after receipt of the proposal for decision, including
final disposition of all motions for rehearing.
(e) If the administrative law judge recommends granting one
or more permits, and the district fails to issue its final decision
as required by subsection (d) for any reason, the district shall be
deemed to have adopted the recommendations of the administrative
law judge as a final order.
(f) A decision under (e) is final and appealable immediately
and not subject to a motion for rehearing.
Section 9. STATUTORY INTERPRETATION. If there is a conflict
between this Act and the enabling act of a groundwater conservation
district or any other deadlines established by Chapter 36, this Act
controls.
Section 10. (a) The changes in law made by this Act apply to
any permit application that is filed with a district on or after the
effective date of this Act and any permit application pending
before a district for which a proposal for decision not yet been
issued.
(b) Any proposal for decision that has been pending before a
district for more than 180 days on the effective date and for which
the administrative law judge recommends granting one or more
permits, shall be deemed adopted as a final order subject to
immediate appeal and not subject to a motion for rehearing.
Section 11. 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, 2023.