Bill Text: TX SB1440 | 2015-2016 | 84th Legislature | Comm Sub
Bill Title: Relating to the territory, jurisdiction, board composition, elections, and powers of the Barton Springs-Edwards Aquifer Conservation District, including its authority to regulate certain wells for the production of groundwater; imposing a cap on certain fees.
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2015-05-13 - Not again placed on intent calendar [SB1440 Detail]
Download: Texas-2015-SB1440-Comm_Sub.html
By: Campbell, Zaffirini | S.B. No. 1440 | |
(In the Senate - Filed March 12, 2015; March 30, 2015, read | ||
first time and referred to Committee on Agriculture, Water, and | ||
Rural Affairs; May 6, 2015, reported adversely, with favorable | ||
Committee Substitute by the following vote: Yeas 5, Nays 0; | ||
May 6, 2015, sent to printer.) | ||
COMMITTEE SUBSTITUTE FOR S.B. No. 1440 | By: Perry |
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relating to the territory, jurisdiction, board composition, | ||
elections, and powers of the Barton Springs-Edwards Aquifer | ||
Conservation District, including its authority to regulate certain | ||
wells for the production of groundwater; imposing a cap on certain | ||
fees. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Section 8802.003, Special District Local Laws | ||
Code, is amended to read as follows: | ||
Sec. 8802.003. DISTRICT TERRITORY. (a) The district is | ||
composed of: | ||
(1) the territory described by the Texas Water | ||
Commission's August 15, 1986, order, as that territory may have | ||
been modified: | ||
(A) by actions of the board through resolutions | ||
dated August 8, 1987, August 13, 1987, January 24, 2002, May 10, | ||
2002, and June 23, 2011; or | ||
(B) under: | ||
(i) [ |
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Code; or | ||
(ii) [ |
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(2) the shared territory described by Section | ||
8802.0035(a); and | ||
(3) the territory described as follows: beginning at | ||
a point at the intersection of the northeastern district boundary | ||
as it existed on January 1, 2015, and the Colorado River, running | ||
east along the southern bank of the Colorado River to a point where | ||
the Colorado River intersects U.S. Highway 183, then south along | ||
U.S. Highway 183 to a point where U.S. Highway 183 intersects the | ||
current eastern boundary of the district, then generally west and | ||
north following along the district boundary as it existed on | ||
January 1, 2015, to the place of beginning. | ||
(b) Any boundary reference under Subsection (a)(3) to a | ||
highway, street, road, avenue, boulevard, or lane shall mean the | ||
centerline of the boundary. | ||
SECTION 2. Subchapter A, Chapter 8802, Special District | ||
Local Laws Code, is amended by adding Section 8802.0035 to read as | ||
follows: | ||
Sec. 8802.0035. SHARED TERRITORY; JURISDICTION. (a) The | ||
territory of the district includes any territory that is: | ||
(1) inside the boundaries of the Edwards Aquifer | ||
Authority; | ||
(2) in Hays County; and | ||
(3) not within the boundaries existing as of January | ||
1, 1989, of any other district with the authority to regulate | ||
groundwater under Chapter 36, Water Code, or prior laws. | ||
(b) The Edwards Aquifer Authority has jurisdiction over any | ||
well that is drilled to produce water from the Edwards Aquifer in | ||
the shared territory described by Subsection (a). | ||
(c) The district has jurisdiction over groundwater and any | ||
well that is drilled to produce water from any aquifer other than | ||
the Edwards Aquifer in the shared territory described by Subsection | ||
(a). | ||
(d) The district has jurisdiction over groundwater and any | ||
well that is drilled to produce water from the Edwards Aquifer or | ||
any other aquifer in the territory described by Section | ||
8802.003(a)(1) or (3). For territory annexed in accordance with | ||
board resolutions dated January 24, 2002, the district shall share | ||
jurisdiction with the Plum Creek Conservation District, which also | ||
includes that territory. Jurisdiction shall be shared under the | ||
terms of an agreement authorized by Chapter 791, Government Code, | ||
in a manner that ensures that the districts do not exercise their | ||
jurisdiction in the shared territory at the same time and for the | ||
same purpose. | ||
(e) The district's jurisdiction over any well that is | ||
drilled to produce water in the territory described in Section | ||
8802.003(a)(1), including a well that is used to recover water that | ||
has been injected as part of an aquifer storage and recovery | ||
project, applies to the territory described by Section | ||
8802.003(a)(3) and all wells for which the district has | ||
jurisdiction in the shared territory described by this section. | ||
SECTION 3. Sections 8802.051 and 8802.052, Special District | ||
Local Laws Code, are amended to read as follows: | ||
Sec. 8802.051. DIRECTORS; TERMS. (a) The district is | ||
governed by a board of seven [ |
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four-year terms. | ||
(b) Three [ |
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residing in the territory composed of: | ||
(1) director districts four and five as adopted by the | ||
district on November 17, 2011; and | ||
(2) the territory described by Section 8802.003(a)(3) | ||
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(c) Four directors must be elected by voters residing | ||
outside the territory described by Subsection (b) and two of the | ||
four directors must reside in Hays County. | ||
Sec. 8802.052. ELECTION DATE. An election shall be held to | ||
elect the appropriate number of directors on the [ |
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election date in November of each even-numbered year. | ||
SECTION 4. Section 8802.053, Special District Local Laws | ||
Code, is amended by amending Subsections (a), (c), and (d) and | ||
adding Subsection (f) to read as follows: | ||
(a) The district is divided into seven [ |
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single-member districts for electing directors. | ||
(c) As soon as practicable after the publication of each | ||
federal decennial census, the board shall revise the single-member | ||
districts as the board considers appropriate to reflect population | ||
changes. When the board revises the single-member districts under | ||
this subsection, the board shall place three [ |
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entirely inside and four of the districts entirely outside the | ||
territory described by Section 8802.051(b)[ |
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(d) If the district is required to create single-member | ||
districts that do not comply with Sections 8802.051(b) and (c) to | ||
satisfy standards under federal law, the board shall revise the | ||
single-member districts as the board considers appropriate under | ||
the federal law standards [ |
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(f) At the first regularly scheduled election of directors | ||
after the board is expanded from five to seven directors, directors | ||
elected to fill any vacant positions shall cast lots to determine | ||
which of those directors shall serve a two-year term and which shall | ||
serve a four-year term. Lots must be determined so that not more | ||
than four directors' terms expire in any even-numbered year. | ||
SECTION 5. Section 8802.1045, Special District Local Laws | ||
Code, is amended by adding Subsection (g) to read as follows: | ||
(g) Notwithstanding Subsection (b), before January 1, 2017, | ||
the board may not charge an annual production fee higher than the | ||
rates set forth under Subsection (a) for a well located in the | ||
territory described by Section 8802.003(a)(3) or 8802.0035(a). The | ||
district may increase the annual production fee under this | ||
subsection by not more than 10 cents per thousand gallons per year | ||
beginning January 1, 2018, for water permitted for nonagricultural | ||
purposes, until the annual production fee is equal to the maximum | ||
amount set forth in Subsection (b). | ||
SECTION 6. Section 8802.105, Special District Local Laws | ||
Code, is amended by amending Subsection (a) and adding Subsection | ||
(a-1) to read as follows: | ||
(a) In this section, "Consumer Price Index" means the annual | ||
revised Consumer Price Index for All Urban Consumers, as published | ||
by the Bureau of Labor Statistics of the United States Department of | ||
Labor or a similar index if that index is unavailable. For | ||
calculation purposes, the beginning base month is December 2014. | ||
(a-1) Each year the board may assess against the City of | ||
Austin a water use fee in an amount not to exceed the lesser of $1 | ||
million as adjusted to reflect the percentage change during the | ||
preceding year in the Consumer Price Index or 60 percent of the | ||
total funding the district expects to receive for the next fiscal | ||
year from water use fees assessed against Austin and other | ||
nonexempt users in that year as computed[ |
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SECTION 7. Subchapter C, Chapter 8802, Special District | ||
Local Laws Code, is amended by adding Section 8802.111 to read as | ||
follows: | ||
Sec. 8802.111. AUTHORITY TO CONSIDER MITIGATION PLAN. | ||
(a) If an applicant for a permit or permit amendment submits to the | ||
district with the permit application or permit amendment | ||
application a plan for mitigating any negative impacts to | ||
groundwater resources or to other wells that may arise from the | ||
production of groundwater by the well or wells for which the permit | ||
or permit amendment is sought, the district may: | ||
(1) consider the plan for mitigation in deciding | ||
whether to grant or deny the application; and | ||
(2) include special terms and conditions requiring | ||
mitigation in a permit or permit amendment that is approved by the | ||
board for the applicant. | ||
(b) Regardless of whether an applicant for a permit or | ||
permit amendment submits to the district a plan for mitigation, the | ||
district and an applicant may negotiate a plan to mitigate any | ||
negative impacts to groundwater resources or to other wells that | ||
may arise from the production of groundwater by the well or wells | ||
for which the permit or permit amendment is sought, and the district | ||
may include the negotiated mitigation plan as a special term or | ||
condition of the permit or permit amendment. The district may not | ||
require an applicant to agree to a mitigation plan that was not | ||
submitted by the applicant. | ||
(c) A mitigation plan described by Subsection (a) or (b) may | ||
include payment of a fee by the applicant for a permit or permit | ||
amendment to the district in an amount sufficient to mitigate the | ||
effects of reduced artesian pressure or the drawdown of the water | ||
table on other wells in the district. If the mitigation plan is | ||
approved by the district as a special term or condition of the | ||
permit as submitted by, or as negotiated with, the applicant, the | ||
district shall establish written procedures for the use of revenue | ||
derived from fees paid by the applicant as part of the mitigation | ||
plan and shall include the written procedures as a special term or | ||
condition of the permit or permit amendment. The written | ||
procedures may include use of the mitigation plan fee revenue to | ||
deepen water wells or to lower pumps, to drill and equip new wells, | ||
or to take other measures to mitigate impacts on water wells that | ||
are negatively impacted by the production of groundwater by the | ||
well or wells for which the permit or permit amendment is approved | ||
by the district. | ||
(d) Nothing in this section shall be construed to limit the | ||
authority of the district to include as a special term or condition | ||
of a permit a requirement that the permit holder reduce or cease | ||
groundwater production during certain hydrological conditions. | ||
SECTION 8. (a) In this section: | ||
(1) "District" means the Barton Springs-Edwards | ||
Aquifer Conservation District. | ||
(2) "Maximum production capacity" means the maximum | ||
production capacity of a well, which may be based on a 36-hour pump | ||
test conducted at the time the well was initially constructed or | ||
placed into service. | ||
(b) A person operating a well before the effective date of | ||
this Act or who has entered into a contract before the effective | ||
date of this Act to drill or operate a well that is or will be | ||
located in the added territory described by Sections 8802.003(a)(3) | ||
or 8802.0035(a), Special District Local Laws Code, as added by this | ||
Act, that is subject to the jurisdiction of the district, as | ||
clarified by this Act, shall file an administratively complete | ||
permit application with the district not later than three months | ||
after the effective date of this Act for the drilling, equipping, | ||
completion, or operation of any well if the well requires a permit | ||
under the rules or orders of the district. The person may file the | ||
permit application for an amount of groundwater production not to | ||
exceed the maximum production capacity of the well. | ||
(c) The district shall issue a temporary permit to a person | ||
who files an application under Subsection (b) of this section | ||
without a hearing on the application not later than the 30th day | ||
after the date of receipt of the application. The district shall | ||
issue the temporary permit for the groundwater production amount | ||
set forth in the application. The temporary permit issued under | ||
this subsection shall provide the person with retroactive and | ||
prospective authorization to drill, operate, or perform another | ||
activity related to a well for which a permit is required by the | ||
district for the period of time between the effective date of this | ||
Act and the date that the district takes a final, appealable action | ||
on issuance of a regular permit pursuant to the permit application | ||
if: | ||
(1) the person's drilling, operating, or other | ||
activities associated with the well are consistent with the | ||
authorization sought in the permit application; | ||
(2) the person timely pays to the district all | ||
administrative fees and fees related to the amount of groundwater | ||
authorized to be produced pursuant to the temporary permit in the | ||
same manner as other permit holders in the district; and | ||
(3) the person complies with other rules and orders of | ||
the district applicable to permit holders. | ||
(d) The temporary permit issued under Subsection (c) of this | ||
section does not confer any rights or privileges to the permit | ||
holder other than those set forth in this section. After issuing | ||
the temporary permit, the district shall process the permit | ||
application for notice, hearing, and consideration for issuance of | ||
a regular permit in the same manner that the district processes | ||
other permit applications not described by this section. The | ||
district, after notice and hearing, may issue an order reducing the | ||
amount of groundwater that may be produced under a temporary permit | ||
under this section only if the district determines that the amount | ||
of groundwater being produced under the temporary permit is causing | ||
a failure to achieve applicable adopted desired future conditions | ||
for the aquifer. The district bears the burden of proof in | ||
demonstrating that the amount of groundwater being produced under a | ||
temporary permit is causing a failure to achieve applicable adopted | ||
desired future conditions for the aquifer. A person who relies on | ||
the temporary permit granted by this section to drill, operate, or | ||
engage in other activities associated with a water well assumes the | ||
risk that the district may grant or deny, wholly or partly, the | ||
permit application when the district takes final action after | ||
notice and hearing to issue a regular permit pursuant to the | ||
application. | ||
(e) The holder of a temporary permit subject to a district | ||
order under Subsection (d) of this section to reduce the amount of | ||
groundwater production from the permitted well may contest the | ||
reduction by requesting a contested case hearing to be conducted by | ||
the State Office of Administrative Hearings in the manner provided | ||
by Sections 36.416, 36.4165, and 36.418, Water Code. The district | ||
shall contract with the State Office of Administrative Hearings to | ||
conduct the hearing as provided by those sections of the Water Code. | ||
To the extent possible, the State Office of Administrative Hearings | ||
shall expedite a hearing under this subsection. | ||
SECTION 9. (a) The legislature validates and confirms all | ||
acts and proceedings of the board of directors of the Barton | ||
Springs-Edwards Aquifer Conservation District that were taken | ||
before the effective date of this Act. | ||
(b) Subsection (a) of this section does not apply to any | ||
matter that on the effective date of this Act: | ||
(1) is involved in litigation if the litigation | ||
ultimately results in the matter being held invalid by a final | ||
judgment of a court; or | ||
(2) has been held invalid by a final judgment of a | ||
court. | ||
SECTION 10. (a) Not later than three months after the | ||
effective date of this Act, the board of directors of the Barton | ||
Springs-Edwards Aquifer Conservation District shall appoint one | ||
temporary director to the board to represent the territory | ||
described by Section 8802.003(a)(3), Special District Local Laws | ||
Code, as added by this Act, and one temporary director to represent | ||
the territory described by Section 8802.0035(a), Special District | ||
Local Laws Code, as added by this Act. | ||
(b) The temporary directors appointed under Subsection (a) | ||
of this section shall serve at large until the next general election | ||
of directors of the district under Section 8802.052, Special | ||
District Local Laws Code, as amended by this Act. | ||
(c) The board of directors of the Barton Springs-Edwards | ||
Aquifer Conservation District shall adjust the board member terms | ||
of office to conform to the new election date under Section | ||
8802.052, Special District Local Laws Code, as amended by this Act. | ||
SECTION 11. (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 12. 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, 2015. | ||
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