Bill Text: TX HB2729 | 2019-2020 | 86th Legislature | Enrolled

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Bill Title: Relating to the administration, duties, and operation of the Edwards Aquifer Authority; authorizing a fee.

Spectrum: Bipartisan Bill

Status: (Passed) 2019-06-14 - Effective on 9/1/19 [HB2729 Detail]

Download: Texas-2019-HB2729-Enrolled.html

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H.B. No. 2729

AN ACT
relating to the administration, duties, and operation of the
Edwards Aquifer Authority; authorizing a fee.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1.03(20), Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended to read as follows:
(20) "Underground water" or "groundwater" means water
percolating beneath the earth [has the meaning assigned by Section
52.001, Water Code].
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 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 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 under this Act or a district exercising the
powers provided by Chapter 36 [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. Section 1.08(a), Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is 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.
SECTION 4. Section 1.09, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended by amending
Subsection (d) and adding Subsections (i) through (k) 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.
(j) For liability purposes only, a director of the authority
is considered an employee of the authority under Chapter 101, Civil
Practice and Remedies Code, even if the director does not receive
fees of office voluntarily, by authority policy, or through a
statutory exception.
(k) A director of the authority is immune from suit and
immune from liability for official votes and official actions. To
the extent an official vote or official action conforms to laws
relating to conflicts of interest, abuse of office, or
constitutional obligations, this subsection provides immunity for
those actions.
SECTION 5. Section 1.11(d), Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is 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 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 inside the authority's boundaries Chapter
1901 [32], Occupations [Water] Code, and [commission] rules adopted
by the Texas Commission of Licensing and Regulation 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 [Water] Code, to be kept and furnished to the Texas
Department of Licensing and Regulation [commission].
SECTION 6. 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) An applicant in a contested or
uncontested hearing on an application under this Act or a party to a
contested hearing may administratively appeal a decision of the
board on an application by requesting written findings of fact and
conclusions of law not later than the 20th day after the date of the
board's decision.
(b) On receipt of a timely written request, the board shall
make written findings of fact and conclusions of law regarding a
decision of the board on an application under this Act. 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 20th day after the date the board receives the
request. A party to a contested hearing may request a rehearing
before the board not later than the 20th day after the date the
board issues the findings and conclusions.
(c) A request for rehearing must be filed in the authority's
office and must state the grounds for the request.
(d) 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.
(e) 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.
Sec. 1.211. DECISION; WHEN FINAL. (a) A decision by the
board on an application under this Act 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.
(b) A timely filed motion for rehearing is a prerequisite to
a suit against the authority under Section 1.46 of this article
challenging a decision in a contested hearing. A suit under Section
1.46 must be filed not later than the 60th day after the date on
which the decision becomes final.
SECTION 7. Section 1.26(a), Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended to read as follows:
(a) The [After review of the recommendations received in the
program document, as prescribed by Section 1.26A of this article,
the] authority by rule shall adopt a critical period management
plan consistent with Sections 1.14(a), (f), and (h) of this
article. [The critical period management plan shall be adopted by
the authority no later than six months after the authority's
receipt of the program document. On adoption of the critical period
management plan, the authority shall provide a written report to
the governor, lieutenant governor, and speaker of the house of
representatives describing the actions taken in response to each
recommendation and, for each recommendation not implemented, the
reason it was not implemented.] The plan must[:
[(1) distinguish between discretionary use and
nondiscretionary use;
[(2) require reductions of all discretionary use to
the maximum extent feasible;
[(3) require utility pricing, to the maximum extent
feasible, to limit discretionary use by the customers of water
utilities;
[(4) require reduction of nondiscretionary use by
permitted or contractual users, to the extent further reductions
are necessary, in the reverse order of the following water use
preferences:
[(A) municipal, domestic, and livestock;
[(B) industrial and crop irrigation;
[(C) residential landscape irrigation;
[(D) recreational and pleasure; and
[(E) other uses that are authorized by law; and
[(5)] allow irrigation use to continue in order to
permit the user to complete the irrigation of a crop in progress.
SECTION 8. Sections 1.29(b) and (f), Chapter 626, Acts of
the 73rd Legislature, Regular Session, 1993, are amended to read as
follows:
(b) The authority shall assess equitable aquifer management
fees based on aquifer use under the water management plan to finance
its administrative expenses and programs authorized under this
article. Each water district governed by Chapter 36, Water Code,
that is within the authority's boundaries may contract with the
authority to pay expenses of the authority through taxes in lieu of
user fees to be paid by water users in the district. The contract
must provide that the district will pay an amount equal to the
amount that the water users in the district would have paid through
user fees. The authority may not collect a total amount of fees and
taxes that is more than is reasonably necessary for the
administration of the authority. The authority may not increase
aquifer management fees by more than eight percent per year.
(f) The authority may [shall] impose a permit application
fee not to exceed $25. The authority may impose fees to recover
administrative costs associated with actions other than the filing
and processing of applications and registrations. The fees may not
unreasonably exceed the administrative costs.
SECTION 9. 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. OPEN OR UNCOVERED WELLS. (a) If the owner or
lessee of land on which an open or uncovered well is located fails
or refuses to close or cap the well in compliance with Chapter 1901,
Occupations Code, and the authority's rules:
(1) the authority may take enforcement action as
authorized by this article to require the owner or lessee to close
or cap the well; or
(2) a person, firm, or corporation employed by the
authority may go on the land and close or cap the well safely and
securely.
(b) Reasonable expenses incurred by the authority in
closing or capping a well constitute a lien on the land on which the
well is located.
(c) The lien described by Subsection (b) arises and attaches
on recordation of, in the deed records of the county where the well
is located, an affidavit executed by any person conversant with the
facts stating the following:
(1) the existence of the well;
(2) the legal description of the property on which the
well is located;
(3) the approximate location of the well on the
property;
(4) the failure or refusal of the owner or lessee,
after notification, to close or cap the well before the expiration
of 10 days after the notification;
(5) the closing or capping of the well by the
authority, or by an authorized agent, representative, or employee
of the authority; and
(6) the expense incurred by the authority in closing
or capping the well.
(d) This section does not affect the enforcement of
Subchapter A, Chapter 756, Health and Safety Code.
SECTION 10. Sections 1.37(j), (n), and (r), Chapter 626,
Acts of the 73rd Legislature, Regular Session, 1993, are amended to
read as follows:
(j) Before the expiration of [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 11. 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 and the authority's
rules. 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 liability of the
governmental entity for the violation. This subsection does not
prohibit the recovery by the authority of fees and costs under this
article in an action against a governmental entity.
SECTION 12. 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) A person, firm, corporation, or
association of persons affected by and dissatisfied with any
provision or with any rule or order made by the authority is
entitled to file a suit against the authority or its directors to
challenge the validity of the law, rule, or order.
(b) Only the authority, the applicant, and parties to a
contested case hearing may participate in an appeal of a decision on
the application that was the subject of that contested case
hearing. An appeal of a decision on a permit application must
include the applicant as a necessary party.
(c) A suit under this section must be filed in a court of
competent jurisdiction in any county in which the authority is
located. The suit may be filed only after all administrative
appeals to the authority are final.
(d) The burden of proof is on the petitioner, and the
challenged law, rule, order, or act is to be considered prima facie
valid. The review on appeal is governed by either Section 2001.038
or Section 2001.174, Government Code, as appropriate.
(e) The authority may recover attorney's fees, costs for
expert witnesses, and other costs incurred by the authority before
the court on the same basis as Chapter 36, Water Code, provides for
a groundwater conservation district to recover those fees and
costs.
SECTION 13. Section 3.01, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended by adding Subsection
(d) to read as follows:
(d) Not later than the last business day of each
even-numbered year, the Edwards Aquifer Authority shall prepare and
deliver a report to the committee on the authority's operations.
The report must contain a summary of issues related to the
authority's operations that affect the continuing implementation
of this Act or require an amendment to this Act.
SECTION 14. 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 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 15. The following provisions are repealed:
(1) Section 1.25(b), Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993;
(2) Section 36.101(l), Water Code;
(3) Section 36.1011(e), Water Code;
(4) Section 36.125, Water Code; and
(5) Section 36.419, Water Code.
SECTION 16. This Act takes effect September 1, 2019.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 2729 was passed by the House on April
24, 2019, by the following vote: Yeas 145, Nays 0, 1 present, not
voting; and that the House concurred in Senate amendments to H.B.
No. 2729 on May 23, 2019, by the following vote: Yeas 110, Nays 29,
1 present, not voting.
______________________________
Chief Clerk of the House
I certify that H.B. No. 2729 was passed by the Senate, with
amendments, on May 21
, 2019, by the following vote: Yeas 30, Nays
1.
______________________________
Secretary of the Senate
APPROVED: __________________
Date
__________________
Governor