By: Keffer, Lucio III (Senate Sponsor - Perry) H.B. No. 200
         (In the Senate - Received from the House May 7, 2015;
  May 7, 2015, read first time and referred to Committee on
  Agriculture, Water, and Rural Affairs; May 12, 2015, reported
  favorably by the following vote:  Yeas 6, Nays 0; May 12, 2015, sent
  to printer.)
 
 
A BILL TO BE ENTITLED
 
AN ACT
 
  relating to the regulation of groundwater.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 36.0015, Water Code, is amended to read
  as follows:
         Sec. 36.0015.  PURPOSE. (a) In this section, "best
  available science" means conclusions that are logically and
  reasonably derived using statistical or quantitative data,
  techniques, analyses, and studies that are publicly available to
  reviewing scientists and can be employed to address a specific
  scientific question.
         (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 development and
  conservation of groundwater to meet the needs of this state, and use
  the best available science in the development and conservation of
  groundwater through rules developed, adopted, and promulgated by a
  district in accordance with the provisions of this chapter.
         SECTION 2.  Section 36.066, Water Code, is amended by
  amending Subsection (g) and adding Subsection (h) to read as
  follows:
         (g)  If the district prevails in any suit other than a suit in
  which it voluntarily intervenes, the district may seek and the
  court shall grant, in the interests of justice and as provided by
  Subsection (h), in the same action, recovery for attorney's fees,
  costs for expert witnesses, and other costs incurred by the
  district before the court. The amount of the attorney's fees shall
  be fixed by the court.
         (h)  If the district prevails on some, but not all, of the
  issues in the suit, the court may award attorney's fees and costs
  only for those issues on which the district prevails. The district
  has the burden of segregating the attorney's fees and costs in order
  for the court to make an award.
         SECTION 3.  Section 36.108(d-1), Water Code, is amended to
  read as follows:
         (d-1)  After considering and documenting the factors
  described by Subsection (d) and other relevant scientific and
  hydrogeological data, the [The] districts may establish different
  desired future conditions for:
               (1)  each aquifer, subdivision of an aquifer, or
  geologic strata located in whole or in part within the boundaries of
  the management area; or
               (2)  each geographic area overlying an aquifer in whole
  or in part or subdivision of an aquifer within the boundaries of the
  management area.
         SECTION 4.  Section 36.1083, Water Code, is amended by
  amending Subsections (a) and (b) and adding Subsections (e) through
  (r) to read as follows:
         (a)  In this section:
               (1)  "Affected person" has the meaning assigned by
  Section 36.1082.
               (2)  "Development [, "development] board" means the
  Texas Water Development Board.
               (3)  "Office" means the State Office of Administrative
  Hearings.
         (b)  Not later than the 120th day after the date on which a
  district adopts a desired future condition under Section
  36.108(d-4), an affected [A] person [with a legally defined
  interest in the groundwater in the management area, a district in or
  adjacent to the management area, or a regional water planning group
  for a region in the management area] may file a petition with the
  district requiring that the district contract with the office to
  conduct a hearing [development board] appealing the reasonableness
  [approval] of the desired future condition [conditions of the
  groundwater resources established under this section].  The
  petition must provide evidence that the districts did not establish
  a reasonable desired future condition of the groundwater resources
  in the management area.
         (e)  Not later than the 10th day after receiving a petition
  described by Subsection (b), the district shall submit a copy of the
  petition to the development board. On receipt of the petition, the
  development board shall conduct:
               (1)  an administrative review to determine whether the
  desired future condition established by the district meets the
  criteria in Section 36.108(d); and
               (2)  a study containing scientific and technical
  analysis of the desired future condition, including consideration
  of:
                     (A)  the hydrogeology of the aquifer; and
                     (B)  any relevant:
                           (i)  groundwater availability models;
                           (ii)  published studies; 
                           (iii)  estimates of total recoverable
  storage capacity;
                           (iv)  average annual amounts of recharge,
  inflows, and discharge of groundwater; or
                           (v)  information provided in the petition or
  available to the development board.
         (f)  The development board must complete and deliver to the
  office a study described by Subsection (e)(2) not later than the
  120th day after the date the development board receives a copy of
  the petition.
         (g)  For the purposes of a hearing conducted under Subsection
  (b):
               (1)  the office shall consider the study described by
  Subsection (e)(2) to be part of the administrative record; and
               (2)  the development board shall make available
  relevant staff as expert witnesses if requested by the office or a
  party to the hearing.
         (h)  Not later than the 60th day after receiving a petition
  under Subsection (b), the district shall:
               (1)  contract with the office to conduct the contested
  case hearing requested under Subsection (b); and
               (2)  submit to the office a copy of any petitions
  related to the hearing requested under Subsection (b) and received
  by the district.
         (i)  A hearing under Subsection (b) must be held:
               (1)  at a location described by Section 36.403(c); and
               (2)  in accordance with Chapter 2001, Government Code,
  and the rules of the office.
         (j)  During the period between the filing of the petition and
  the delivery of the study described by Subsection (e)(2), the
  district may seek the assistance of the Center for Public Policy
  Dispute Resolution, the development board, or another alternative
  dispute resolution system to mediate the issues raised in the
  petition. If the district and the petitioner cannot resolve the
  issues raised in the petition, the office will proceed with a
  hearing as described by this section.
         (k)  The district may adopt rules for notice and hearings
  conducted under this section that are consistent with the
  procedural rules of the office. In accordance with rules adopted by
  the district and the office, the district shall provide:
               (1)  general notice of the hearing; and
               (2)  individual notice of the hearing to:
                     (A)  the petitioner;
                     (B)  any other party to the hearing;
                     (C)  each nonparty district and regional water
  planning group located in the same management area as a district
  named in the petition;
                     (D)  the development board; and
                     (E)  the commission.
         (l)  Before a hearing conducted under this section, the
  office shall hold a prehearing conference to determine preliminary
  matters, including:
               (1)  whether the petition should be dismissed for
  failure to state a claim on which relief can be granted;
               (2)  whether a person seeking to participate in the
  hearing is an affected person who is eligible to participate; and
               (3)  which affected persons shall be named as parties
  to the hearing.
         (m)  The petitioner shall pay the costs associated with the
  contract for the hearing under this section. The petitioner shall
  deposit with the district an amount sufficient to pay the contract
  amount before the hearing begins. After the hearing, the office may
  assess costs to one or more of the parties participating in the
  hearing and the district shall refund any excess money to the
  petitioner. The office shall consider the following in
  apportioning costs of the hearing:
               (1)  the party who requested the hearing;
               (2)  the party who prevailed in the hearing;
               (3)  the financial ability of the party to pay the
  costs;
               (4)  the extent to which the party participated in the
  hearing; and
               (5)  any other factor relevant to a just and reasonable
  assessment of costs.
         (n)  On receipt of the administrative law judge's findings of
  fact and conclusions of law in a proposal for decision, including a
  dismissal of a petition, the district shall issue a final order
  stating the district's decision on the contested matter and the
  district's findings of fact and conclusions of law. The district
  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 law judge, as provided by Section 2001.058(e),
  Government Code.
         (o)  If the district vacates or modifies the proposal for
  decision, the district shall issue a report describing in detail
  the district's reasons for disagreement with the administrative law
  judge's findings of fact and conclusions of law. The report shall
  provide the policy, scientific, and technical justifications for
  the district's decision.
         (p)  If the district in its final order finds that a desired
  future condition is unreasonable, the districts in the same
  management area as the district that participated in the hearing
  shall reconvene in a joint planning meeting not later than the 30th
  day after the date of the final order for the purpose of revising
  the desired future condition.
         (q)  A final order by the district finding that a desired
  future condition is unreasonable does not invalidate the adoption
  of a desired future condition by a district that did not participate
  as a party in the hearing conducted under this section.
         (r)  The administrative law judge may consolidate hearings
  requested under this section that affect two or more districts. The
  administrative law judge shall prepare separate findings of fact
  and conclusions of law for each district included as a party in a
  multidistrict hearing.
         SECTION 5.  Subchapter D, Chapter 36, Water Code, is amended
  by adding Section 36.10835 to read as follows:
         Sec. 36.10835.  JUDICIAL APPEAL OF DESIRED FUTURE
  CONDITIONS. (a)  A final district order issued under Section
  36.1083 may be appealed to a district court with jurisdiction over
  any part of the territory of the district that issued the order.  An
  appeal under this subsection must be filed with the district court
  not later than the 45th day after the date the district issues the
  final order. The case shall be decided under the substantial
  evidence standard of review as provided by Section 2001.174,
  Government Code. If the court finds that a desired future condition
  is unreasonable, the court shall strike the desired future
  condition and order the districts in the same management area as the
  district that did not participate as a party in the hearing to
  reconvene in a joint planning meeting not later than the 30th day
  after the date of the court order for the purpose of revising the
  desired future condition.
         (b)  A court's finding under this section does not apply to a
  desired future condition that is not a matter before the court.
         SECTION 6.  Sections 36.1083(c) and (d), Water Code, are
  repealed.
         SECTION 7.  Section 36.1083, Water Code, as amended by this
  Act, and Section 36.10835, Water Code, as added by this Act, apply
  only to a desired future condition adopted by a groundwater
  conservation district on or after the effective date of this Act. A
  desired future condition adopted before that date is governed by
  the law in effect on the date the desired future condition was
  adopted, and the former law is continued in effect for that purpose.
         SECTION 8.  This Act takes effect September 1, 2015.
 
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