Bill Text: TX HB1279 | 2011-2012 | 82nd Legislature | Comm Sub

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Bill Title: Relating to the administration, powers, duties, and operation of the Edwards Aquifer Authority.

Sponsorship: Partisan Bill (Republican 1)

Status: (Introduced - Dead) 2011-05-09 - Committee report sent to Calendars [HB1279 Detail]

Download: Texas-2011-HB1279-Comm_Sub.html

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82R23796 RWG-F
By: Miller of Comal H.B. No. 1279
Substitute the following for H.B. No. 1279:
By: Hopson C.S.H.B. No. 1279

A BILL TO BE ENTITLED
AN ACT
relating to the administration, powers, duties, and operation of
the Edwards Aquifer Authority.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1.03, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended by amending
Subdivisions (6), (9), (10), (20), (21), and (25) and adding
Subdivision (28) to read as follows:
(6) "Commission" means the Texas [Natural Resource
Conservation] Commission on Environmental Quality.
(9) "Domestic [or livestock] use" means the use of
water for:
(A) drinking, washing, or culinary purposes;
(B) irrigation of a family garden or orchard the
produce of which is for household consumption only; or
(C) the watering of residential landscape of
one-half acre or less or any other purpose incidental to and
associated with domestic activities, provided that the primary
purpose of the well is for the purposes of Paragraph (A) [watering
of animals].
(10) "Existing user" means a person who has withdrawn
and beneficially used groundwater [underground water] from the
aquifer on or before June 1, 1993.
(20) "Groundwater" means water percolating beneath
the surface of the earth ["Underground water" has the meaning
assigned by Section 52.001, Water Code].
(21) "Waste" means:
(A) withdrawal of groundwater [underground
water] from the aquifer at a rate and in an amount that causes or
threatens to cause intrusion into the reservoir of water unsuitable
for agricultural, gardening, domestic, or stock raising purposes;
(B) the flowing or producing of wells from the
aquifer if the water produced is not used for a beneficial purpose;
(C) escape of groundwater [underground water]
from the aquifer to any other reservoir that does not contain
groundwater [underground water];
(D) pollution or harmful alteration of
groundwater [underground water] in the aquifer by salt water or
other deleterious matter admitted from another stratum or from the
surface of the ground;
(E) wilfully or negligently causing, suffering,
or permitting groundwater [underground water] from the aquifer to
escape into any river, creek, natural watercourse, depression,
lake, reservoir, drain, sewer, street, highway, road, or road
ditch, or onto any land other than that of the owner of the well
unless such discharge is authorized by permit, rule, or order
issued by the commission under Chapter 26, Water Code;
(F) groundwater [underground water] pumped from
the aquifer for irrigation that escapes as irrigation tailwater
onto land other than that of the owner of the well unless permission
has been granted by the occupant of the land receiving the
discharge; or
(G) for water produced from an artesian well,
"waste" has the meaning assigned by Section 11.205, Water Code.
(25) "Withdrawal" means an act or a failure to act that
results in taking water from the aquifer by or through man-made
facilities, including pumping, withdrawing, or diverting
groundwater [underground water].
(28) "Livestock use" means the use of water for
watering livestock or poultry.
SECTION 2. Section 1.07, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended to read as follows:
Sec. 1.07. OWNERSHIP OF GROUNDWATER [UNDERGROUND WATER].
The ownership and rights of the owner of the land and the owner's
lessees and assigns, including holders of recorded liens or other
security interests in the land, in groundwater [underground water]
and the contract rights of any person who purchases water for the
provision of potable water to the public or for the resale of
potable water to the public for any use are recognized. However,
action taken pursuant to this Act may not be construed as depriving
or divesting the owner or the owner's lessees and assigns,
including holders of recorded liens or other security interests in
the land, of these ownership rights or as impairing the contract
rights of any person who purchases water for the provision of
potable water to the public or for the resale of potable water to
the public for any use, subject to the rules adopted by the
authority [or a district exercising the powers provided by Chapter
52, Water Code]. The legislature intends that just compensation be
paid if implementation of this article causes a taking of private
property or the impairment of a contract in contravention of the
Texas or federal constitution.
SECTION 3. Sections 1.08(a) and (b), Chapter 626, Acts of
the 73rd Legislature, Regular Session, 1993, are amended to read as
follows:
(a) The authority has all of the powers, rights, and
privileges necessary to manage, conserve, preserve, and protect the
aquifer and to increase the recharge of, and prevent the waste or
pollution of water in, the aquifer. The authority has all of the
rights, powers, privileges, authority, functions, and duties
provided by the general law of this state, including Chapters 49 and
[50,] 51, [and 52,] Water Code, applicable to an authority created
under Article XVI, Section 59, of the Texas Constitution. This
article prevails over any provision of general law that is in
conflict or inconsistent with this article regarding the area of
the authority's jurisdiction. Chapter 36, Water Code, does not
apply to the authority.
(b) The authority's powers regarding groundwater
[underground water] apply only to groundwater [underground water]
within or withdrawn from the aquifer. This section [subsection] is
not intended to allow the authority to regulate surface water.
SECTION 4. Section 1.09, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended by amending
Subsection (d) and adding Subsection (i) to read as follows:
(d) Section [Sections 41.003 and] 41.008, Election Code,
does [do] not apply to an election held under this article.
(i) A member of a governing body of another political
subdivision is ineligible for appointment or election as a director
of the authority. A director of the authority is disqualified and
vacates the office of director if the director is appointed or
elected as a member of the governing body of another political
subdivision.
SECTION 5. Section 1.10(h), Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended to read as follows:
(h) The presiding officer of the advisory committee shall
submit a report assessing the effectiveness of the authority to the
commission and the authority by December [March] 31 of each
even-numbered year. The report must assess the effect on
downstream water rights of the management of the aquifer. The
authority shall consider the report in managing the authority's
affairs.
SECTION 6. Sections 1.11(d) and (g), Chapter 626, Acts of
the 73rd Legislature, Regular Session, 1993, are amended to read as
follows:
(d) The authority may:
(1) issue or administer grants, loans, or other
financial assistance to water users for water conservation and
water reuse;
(2) enter into contracts;
(3) sue and be sued only in its own name;
(4) receive gifts, grants, awards, and loans for use
in carrying out its powers and duties;
(5) hire an executive director to be the chief
administrator of the authority and other employees as necessary to
carry out its powers and duties;
(6) delegate the power to hire employees to the
executive director of the authority;
(7) own real and personal property;
(8) close abandoned, wasteful, or dangerous wells;
(9) hold permits under state law or under federal law
pertaining to the Endangered Species Act of 1973 (16 U.S.C. Section
1531 et seq.) and its amendments;
(10) enforce Chapter 1901 [32], Occupations Code
[Water Code], and Texas Department of Licensing and Regulation
[commission] rules adopted under that chapter [Act] within the
authority's boundaries; and
(11) require to be furnished to the authority water
well drillers' logs that are required by Chapter 1901 [32],
Occupations Code [Water Code], to be kept and furnished to the Texas
Department of Licensing and Regulation [commission].
(g) The authority has the power of eminent domain. The
authority may not acquire rights to groundwater [underground water]
by the power of eminent domain.
SECTION 7. Section 1.13, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended to read as follows:
Sec. 1.13. REUSE AUTHORIZED. Any regulation of the
withdrawal of water from the aquifer must allow for credit to be
given for certified reuse of the water. For regulatory credit, the
authority [or a local underground water conservation district] must
certify:
(1) the lawful use and reuse of aquifer water;
(2) the amount of aquifer water to be used; and
(3) the amount of aquifer withdrawals replaced by
reuse.
SECTION 8. Section 1.14(e), Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended to read as follows:
(e) The authority may not allow withdrawals from the aquifer
through wells drilled after June 1, 1993, except for replacement or
[,] test[, or exempt] wells or wells exempt under Section 1.33 of
this article or to the extent that the authority approves an
amendment to an initial regular permit to authorize a change in the
point of withdrawal under that permit.
SECTION 9. Section 1.15, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended by amending
Subsection (d) and adding Subsection (d-1) to read as follows:
(d) A permit issued by the authority to an applicant must
state the terms and provisions prescribed by the authority. Each
groundwater withdrawal permit must specify the maximum rate and
total volume of water that the water user may withdraw in a calendar
year.
(d-1) A permit may include:
(1) the name and address of the person to whom the
permit is issued;
(2) the location of the well;
(3) the term of the permit, including the date the
permit is to expire;
(4) a statement of the purpose for which the well is to
be used;
(5) a requirement that the water withdrawn under the
permit be put to beneficial use at all times;
(6) the location at which the water from the well will
be used;
(7) a water well closure plan or a declaration that the
applicant will comply with the authority's well closure
requirements and notify the authority of the closure;
(8) conditions and restrictions on the rate and amount
of withdrawal;
(9) conservation requirements prescribed by the
authority;
(10) a drought contingency plan prescribed by the
authority; and
(11) other terms and conditions the authority
determines reasonable and appropriate.
SECTION 10. Sections 1.16(a), (b), and (d), Chapter 626,
Acts of the 73rd Legislature, Regular Session, 1993, are amended to
read as follows:
(a) An existing user may apply for an initial regular permit
by filing a declaration of historical use of groundwater
[underground water] withdrawn from the aquifer during the
historical period from June 1, 1972, through May 31, 1993.
(b) An existing user's declaration of historical use must be
filed on or before December 30, 1996 [March 1, 1994], on a form
prescribed by the board. An applicant for a permit must timely pay
all application fees required by the board. An owner of a well used
for irrigation must include additional documentation of the number
of acres irrigated during the historical period provided by
Subsection (a) of this section.
(d) The board shall grant an initial regular permit to an
existing user who:
(1) files a declaration and pays fees as required by
this section; and
(2) establishes by convincing evidence beneficial use
of groundwater [underground water] from the aquifer.
SECTION 11. Sections 1.17(a) and (d), Chapter 626, Acts of
the 73rd Legislature, Regular Session, 1993, are amended to read as
follows:
(a) A person who, on the effective date of this article,
owns a producing well that withdraws water from the aquifer may
continue to withdraw and beneficially use water without waste until
final action on permits by the authority, if:
(1) the well is in compliance with all statutes and
rules relating to well construction, approval, location, spacing,
and operation; and
(2) by December 30, 1996 [March 1, 1994], the person
files a declaration of historical use on a form as required by the
authority.
(d) Interim authorization for a well under this section ends
on:
(1) entry of a final and appealable order by the
authority acting on the application for the well; or
(2) December 30, 1996 [March 1, 1994], if the well
owner has not filed a declaration of historical use.
SECTION 12. Article 1, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended by adding Sections
1.21 and 1.211 to read as follows:
Sec. 1.21. CONTESTED CASE HEARINGS; REQUEST FOR REHEARING
OR FINDINGS AND CONCLUSIONS. (a) The authority, by rule, shall
define under what circumstances an application is considered
contested and shall limit participation in a hearing on a contested
application held in accordance with authority rules to persons who
have a personal justiciable interest related to a legal right,
duty, privilege, power, or economic interest affected by an
application, not including persons who have an interest common to
members of the public.
(b) Except as provided by Subsection (c) of this section, an
applicant or a party to a contested hearing may file a request for
rehearing not later than the 20th day after the date of the board's
decision.
(c) An applicant or a party to a contested hearing may
request written findings of fact and conclusions of law not later
than the 20th day after the date of the board's decision on the
application. On receipt of a timely filed written request under
this subsection, the board shall make written findings of fact and
conclusions of law regarding a decision of the board on the
application. The board shall provide copies of the findings of fact
and conclusions of law to the person who requested them, and to each
person who provided comments at the initial hearing or each
designated party, not later than the 35th day after the date the
board received the request. A person who receives a copy of the
findings of fact and conclusions of law from the board may request a
rehearing before the board not later than the 20th day after the
date the board issues the findings of fact and conclusions of law.
(d) A request for rehearing on a contested matter must be
filed in the authority's office and must state the grounds for the
request.
(e) 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.
(f) The failure of the board to grant or deny a request for
rehearing before the 91st day after the date the request is
submitted constitutes a denial of the request.
Sec. 1.211. APPLICATION DECISION; WHEN FINAL. (a) A
decision by the board on an application is final:
(1) if a request for rehearing is not timely filed, on
the expiration of the period for filing a request for rehearing; or
(2) if a request for rehearing is timely filed, on the
date:
(A) the board denies the request for rehearing;
or
(B) the board renders a written decision after
rehearing.
(b) A timely filed motion for rehearing challenging a
decision in a contested hearing is a prerequisite to a suit against
the authority under Section 1.46 of this article. A suit under that
section may be filed not later than the 60th day after the date on
which the decision becomes final.
SECTION 13. Section 1.22(b), Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended to read as follows:
(b) The authority may acquire, [and] hold, and transfer
permits or rights to appropriate surface water or groundwater from
sources inside or outside of the authority's boundaries. The
authority may transport and distribute surface water or groundwater
as necessary to accomplish the powers and duties authorized by this
article or other applicable law.
SECTION 14. Section 1.25, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended to read as follows:
Sec. 1.25. GROUNDWATER [COMPREHENSIVE] MANAGEMENT PLAN.
(a) Consistent with Section 1.14 of this article, after notice and
hearing, the authority shall develop[, by September 1, 1995,] and
implement a groundwater [comprehensive water] management plan that
includes conservation, future supply, and demand management plans.
The authority may not delegate the development of the plan under
Section 1.42 of this article.
(b) The authority shall develop the groundwater management
plan, and any amendment to the plan, using the best available data
that the authority has obtained and forward the plan, and any
amendment to the plan, to the appropriate regional water planning
group for use in the group's planning process [The authority, in
conjunction with the South Central Texas Water Advisory Committee,
the Texas Water Development Board, and underground water
conservation districts within the authority's boundaries, shall
develop a 20-year plan for providing alternative supplies of water
to the region, with five-year goals and objectives, to be
implemented by the authority and reviewed annually by the
appropriate state agencies and the Edwards Aquifer Legislative
Oversight Committee. The authority, advisory committee, Texas
Water Development Board, and districts, in developing the plan,
shall:
[(1) thoroughly investigate all alternative
technologies;
[(2) investigate mechanisms for providing financial
assistance for alternative supplies through the Texas Water
Development Board; and
[(3) perform a cost-benefit analysis and an
environmental analysis].
(c) On request by the authority, the commission and the
Texas Water Development Board shall provide technical assistance to
the authority in the development of the groundwater management
plan. The technical assistance provided may include a preliminary
review and comment on the plan prior to final certification by the
executive administrator of the Texas Water Development Board. If
such review and comment by the commission is requested, the
commission shall provide comment not later than the 30th day after
the date the request is received.
(d) On request of the executive director of the commission
or the executive administrator of the Texas Water Development
Board, the authority shall make available information that it
acquires concerning the aquifer and information concerning its
plans and activities in conserving and protecting the aquifer. On
request of the authority, the executive director and the executive
administrator shall provide information they acquire concerning
the aquifer within the authority's jurisdiction.
(e) In the groundwater management plan, the authority
shall:
(1) identify the performance standards and management
objectives under which the authority will operate to achieve its
aquifer management goals;
(2) specify the actions, procedures, performance, and
avoidance that are or may be necessary to effect the plan, including
specifications and proposed rules;
(3) include estimates of the following:
(A) the amount of groundwater being used within
the authority on an annual basis;
(B) the annual amount of recharge to the aquifer;
(C) the annual volume of water that discharges
from the aquifer to springs;
(D) the annual volume of flow into and out of the
authority's jurisdiction within the aquifer and between the aquifer
and other aquifers within the authority's boundaries, if an
appropriate groundwater availability model is available;
(E) the projected surface water supply in the
authority according to the most recently adopted state water plan;
and
(F) the projected total demand for water in the
authority according to the most recently adopted state water plan;
and
(4) consider the water supply needs and water
management strategies included in the adopted state water plan.
(f) The authority shall adopt amendments to the groundwater
management plan as necessary. An amendment to the plan may be
adopted only after notice and hearing. An amendment to the plan
shall be submitted to the executive administrator of the Texas
Water Development Board not later than the 60th day after the date
the amendment is adopted by the board. The executive administrator
shall review and certify any amendment in accordance with the
procedures established in this section.
(g) The authority shall, not later than December 31, 2015,
submit its next groundwater management plan to the executive
administrator of the Texas Water Development Board for review and
certification.
(h) Not later than the 60th day after the date of receipt of
the groundwater management plan adopted by the board, the executive
administrator of the Texas Water Development Board shall certify
the plan if the plan is administratively complete. The plan is
administratively complete if it contains the information required
by this section. Once the executive administrator has certified
the plan, the executive administrator may not decertify the plan.
(i) The groundwater management plan takes effect on
certification by the executive administrator of the Texas Water
Development Board.
(j) The authority shall review its groundwater management
plan annually and must review and readopt the plan with or without
amendments at least once every five years. The authority shall
provide the readopted plan to the executive administrator of the
Texas Water Development Board not later than the 60th day after the
date on which the plan was readopted by the board. Certification of
the preceding plan remains in effect until the executive
administrator has certified the readopted plan.
(k) If the executive administrator of the Texas Water
Development Board does not certify the groundwater management plan,
the executive administrator shall provide to the authority, in
writing, the reasons for the action. Not later than the 180th day
after the date the authority receives notice that its plan has not
been certified, the authority may submit a revised plan for review
and certification. The executive administrator's decision may be
appealed to the Texas Water Development Board. If the Texas Water
Development Board decides not to certify the plan on appeal, the
authority may request that the conflict be mediated. The authority
and the Texas Water Development Board may seek the assistance of the
Center for Public Policy Dispute Resolution at The University of
Texas at Austin School of Law or an alternative dispute resolution
system established under Chapter 152, Civil Practice and Remedies
Code, in obtaining a qualified impartial third party to mediate the
conflict. The cost of the mediation services must be specified in
the agreement between the parties and the Center for Public Policy
Dispute Resolution or the alternative dispute resolution system.
If the parties do not resolve the conflict through mediation, the
decision of the Texas Water Development Board not to certify the
plan may be appealed to a district court in Travis County. Costs
for the appeal shall be set by the court hearing the appeal. An
appeal under this subsection is by trial de novo.
SECTION 15. Section 1.29, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended by amending
Subsections (f), (g), (h), and (i) to read as follows:
(f) In addition to the fees assessed under Subsection (b) of
this section, the authority may assess fees to recover
administrative costs such as filing and processing applications and
registrations. The fees may not unreasonably exceed the
administrative costs. [The authority shall impose a permit
application fee not to exceed $25.]
(g) [The authority may impose a registration application
fee not to exceed $10.
[(h)] Fees assessed by the authority may not be used to fund
the cost of reducing withdrawals or retiring permits or of
judgments or claims related to withdrawals or permit retirements.
(h) [(i)] The authority and other stakeholders, including
state agencies, listed under Section 1.26A of this article shall
provide money as necessary to finance the activities of the
steering committee and any subcommittees appointed by the steering
committee and the program director of the recovery implementation
program under Section 1.26A of this article. The authority shall
provide, as necessary, up to $75,000 annually, adjusted for changes
in the consumer price index, to finance the South Central Texas
Water Advisory Committee's administrative expenses and programs
authorized under this article.
SECTION 16. Section 1.30(e), Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended to read as follows:
(e) Section [Sections 11.028 and] 11.033, Water Code, does
[do] not apply to a permit issued under this section.
SECTION 17. Section 1.31(b), Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended to read as follows:
(b) The authority is responsible for the costs of
purchasing, installing, and maintaining measuring devices, if
required, for an irrigation well in existence on June 28, 1996
[September 1, 1993].
SECTION 18. Section 1.33, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended to read as follows:
Sec. 1.33. WELL METERING EXEMPTION. (a) Except as provided
by Subsections (d) and (e) of this section, a [A] well that is
drilled, completed, or equipped so that it is incapable of
producing more than [produces] 25,000 gallons of water per [a] day
and is and will be used exclusively [or less] for domestic use or
livestock use is exempt from metering and withdrawal permit
requirements.
(b) A well drilled on or before June 1, 2011, that is
incapable of producing more than 1,250 gallons of water per day or
that is metered and does not produce more than 1,250 gallons of
water per day for any purpose authorized in this article is exempt
from withdrawal permit requirements. Multiple wells may not be
used in combination in a manner to satisfy a single water use or
purpose, that when combined, would not come within the requirements
of this subsection.
(c) A well that is exempt under Subsection (a) or (b) of this
section [Exempt wells] must be registered [register] with the
authority [or with an underground water conservation district in
which the well is located].
(d) [(c)] A well that meets the requirements of Subsection
(a) of this section [within or serving a subdivision requiring
platting] does not qualify for an exemption if the well:
(1) serves a subdivision of land requiring plat
approval under Chapter 232, Local Government Code;
(2) supplies water to a public water system as defined
by 30 T.A.C. Section 290.38; or
(3) produces groundwater for domestic use, was drilled
on or before June 1, 2011, and is on a tract of land with a residence
that receives water service from a retail public utility as defined
by Section 13.002, Water Code [exempt use].
(e) A well drilled after June 1, 2011, that meets the
requirements of Subsection (a) of this section, is exempt from
metering and withdrawal permit requirements only if the well is on a
tract of land larger than 10 acres.
SECTION 19. Article 1, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended by adding Section
1.361 to read as follows:
Sec. 1.361. ABANDONED, OPEN, UNCOVERED, OR DETERIORATED
WELLS. (a) If the owner or lessee of land on which an abandoned,
open, uncovered, or deteriorated well is located fails or refuses
to close, cap, or plug the well in compliance with Chapter 1901,
Occupations Code, and the authority's rules, the authority or its
authorized employees, representatives, or agents may enter the land
and close, cap, or plug the well in a safe and secure manner.
(b) Reasonable expenses incurred by the authority in
closing, capping, or plugging a well constitute a lien on the land
on which the well is located.
(c) A lien described by Subsection (b) of this section
arises and attaches after an affidavit executed by any person with
knowledge of the facts of the closing, capping, or plugging is
recorded in the deed records of the county where the well is
located. The affidavit must contain:
(1) a statement or photograph confirming the existence
of the well;
(2) the legal description of the property on which the
well is located;
(3) a description of the approximate location of the
well on the property;
(4) a statement confirming the failure or refusal of
the owner or lessee, after notification, to close or cap the well
within 10 days after the notification;
(5) a statement confirming the closing, capping, or
plugging of the well by the authority, or by an authorized agent,
representative, or employee of the authority; and
(6) a statement of the expenses incurred by the
authority in closing, capping, or plugging the well.
(d) Nothing in this section affects the enforcement of
Subchapter A, Chapter 756, Health and Safety Code.
SECTION 20. Sections 1.37(j), (n), and (r), Chapter 626,
Acts of the 73rd Legislature, Regular Session, 1993, are amended to
read as follows:
(j) Within 30 days after the date the authority's order is
final as provided by Section 2001.144(a), Government Code
[Subsection (c), Section 16, Administrative Procedure and Texas
Register Act (Article 6252-13a, Vernon's Texas Civil Statutes)],
the person shall:
(1) pay the amount of the penalty;
(2) pay the amount of the penalty and file a petition
for judicial review contesting the occurrence of the violation, the
amount of the penalty, or both the occurrence of the violation and
the amount of the penalty; or
(3) without paying the amount of the penalty, file a
petition for judicial review contesting the occurrence of the
violation, the amount of the penalty, or both the occurrence of the
violation and the amount of the penalty.
(n) Judicial review of the order of the authority:
(1) is instituted by filing a petition as provided by
Subchapter G, Chapter 2001, Government Code [Section 19,
Administrative Procedure and Texas Register Act (Article 6252-13a,
Vernon's Texas Civil Statutes)]; and
(2) is under the substantial evidence rule.
(r) All proceedings under this section are subject to
Chapter 2001, Government Code [the Administrative Procedure and
Texas Register Act (Article 6252-13a, Vernon's Texas Civil
Statutes)].
SECTION 21. Section 1.38, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended to read as follows:
Sec. 1.38. INJUNCTION BY AUTHORITY. (a) The authority may
file a civil suit in a state district court for an injunction or
mandatory injunction to enforce this article. The authority may
recover reasonable attorney fees in a suit under this section.
(b) In an enforcement action by the authority against a
governmental entity for a violation of authority rules, the limits
on the amount of fees, costs, and penalties that the authority may
impose under this section constitute a limit of the governmental
entity's liability for the violation. This subsection shall not be
construed to prohibit the recovery by the authority of fees and
costs under this article in an action against a governmental
entity.
SECTION 22. Sections 1.42(a), (b), and (c), Chapter 626,
Acts of the 73rd Legislature, Regular Session, 1993, are amended to
read as follows:
(a) A groundwater [An underground water] conservation
district other than the authority may manage and control water that
is a part of the aquifer after the effective date of this article
only as provided in this section. This article does not affect a
water reclamation or conservation district that manages and
controls only water from a resource other than the aquifer.
(b) A groundwater [An underground water] conservation
district other than the authority may manage and control water that
is a part of the aquifer to the extent that those management
activities do not conflict with and are not duplicative of this
article or the rules and orders of the authority.
(c) Except as otherwise provided by this article, the board
may delegate the powers and duties granted to it under this article.
The board shall delegate all or part of its powers or duties to a
groundwater [an underground water] conservation district on the
district's request if the district demonstrates to the satisfaction
of the board that:
(1) the district has statutory powers necessary for
full enforcement of the rules and orders to be delegated;
(2) the district has implemented all rules and
policies necessary to fully implement the programs to be delegated;
and
(3) the district has implemented a system designed to
provide the authority with adequate information with which to
monitor the adequacy of the district's performance in enforcing
board rules and orders.
SECTION 23. Section 1.43, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended to read as follows:
Sec. 1.43. CREATION OF GROUNDWATER [UNDERGROUND WATER]
CONSERVATION DISTRICT. A groundwater [An underground water]
conservation district may be created in any county affected by this
article as provided by Subchapter B, Chapter 36 [52], Water Code.
SECTION 24. Article 1, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended by adding Section
1.46 to read as follows:
Sec. 1.46. SUITS. (a) An affected person dissatisfied with
any authority rule, order, or act is entitled to file suit against
the authority or its directors to challenge the validity of the
rule, order, or act. The suit may be filed in any county in which
the authority is located. The suit may be filed only after all
administrative appeals to the authority are final. The burden of
proof is on the petitioner, and the challenged rule, order, or act
shall be deemed prima facie valid. The review on appeal is governed
by Section 2001.038 or 2001.174, Government Code, as appropriate.
(b) If the authority prevails in a suit to enforce this
article or its rules, orders, or acts, or in a suit other than a suit
in which it voluntarily intervenes, the authority may seek and the
court shall grant, in the same action, recovery for attorney's
fees, costs for expert witnesses, and other costs incurred by the
authority before the court. The court shall set the amount of the
attorney's fees.
SECTION 25. Section 4.02, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is transferred to Article 1 of
that Act, redesignated as Section 1.47, and amended to read as
follows:
Sec. 1.47 [4.02]. ORIGINAL EFFECTIVE DATES. This article
[Act] takes effect June 28, 1996 [September 1, 1993], except
Section 1.35 of Article 1 takes effect December 30, 1996 [March 1,
1994].
SECTION 26. Section 3.02, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended to read as follows:
Sec. 3.02. NOTICE OF AVAILABLE WATER. The Texas [Natural
Resource Conservation] Commission on Environmental Quality shall
notify the Edwards Aquifer Authority of any water available for
appropriation in the Guadalupe-Blanco River Basin as the commission
discovers the available water.
SECTION 27. Section 36.205(e), Water Code, is amended to
read as follows:
(e) Subsection (c) does not apply to the following
districts:
(1) [the Edwards Aquifer Authority;
[(2)] the Fort Bend Subsidence District;
(2) [(3)] the Harris-Galveston Coastal Subsidence
District;
(3) [(4)] the Barton Springs-Edwards Aquifer
Conservation District; or
(4) [(5)] any district that collects a property tax
and that was created before September 1, 1999, unless otherwise
authorized by special law.
SECTION 28. The following laws are repealed:
(1) Section 1.41(d), Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993; and
(2) Sections 36.101(l), 36.1011(e), and 36.419, Water
Code.
SECTION 29. (a) A suit based on or derived from Chapter 36,
Water Code, contesting the validity or implementation of Article 1,
Chapter 626, Acts of the 73rd Legislature, Regular Session, 1993,
or a rule, order, or other action of the Edwards Aquifer Authority
under that article may not be instituted in a state court.
(b) A person may not institute or maintain a suit against
the Edwards Aquifer Authority based on or derived from Chapter 36,
Water Code, for any injury or potential injury, including any
injury or potential injury caused by an action taken by the
authority to implement or enforce Article 1, Chapter 626, Acts of
the 73rd Legislature, Regular Session, 1993, or a rule, order, or
other action of the authority under that article.
(c) The changes in law made by this Act to Chapter 36, Water
Code, apply only to a cause of action against the Edwards Aquifer
Authority filed on or after the effective date of this Act. A cause
of action filed before the effective date of this Act is governed by
the law in effect when the cause of action was filed, and the former
law is continued in effect for that purpose.
SECTION 30. (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 31. 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, 2011.