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HB 200, if passed, would make a number of changes to the
Water Code regarding contested case hearings and desired future conditions
regarding aquifers. A total of seven sections exist in the bill (modifying
code) each of which will be discussed in turn.
Section 1 of the bill amends Section 36.0015 of the Water
Code. It would require that future decisions be made on the basis of “best
available science” defined here as essentially being derived from statistical
and quantitative data. A new line is inserted which states that groundwater
management must “protect property rights, balance the development and
conservation of groundwater to meet the needs of the state, and use the best
available science in the development and conservation of groundwater”.
Section 2 of the bill would amend Section 36.066 of the
Water Code by adding a new subsection which notes that when districts take suit
and win in some areas but not others, the court may award attorney’s fees only
to those areas in which the district prevails.
Section 3 of the bill would amend Section 36.108(d-1) of the
Water Code by including a new requirement that relevant scientific and
hydrological data be consulted.
Section 4 of the bill would amend Section 36.1083 of the
Water Code and deals with contested case hearings and administrative review.
The first set of changes are merely the addition of relevant definitions. This section
would also require that petitions be filed within 120 days of a district
adopting desired future conditions. If a petition is submitted the district
would also be required to submit a copy of the petition to the development
board. After this the bill lists several pages of additional details which
would be added to the administrative review which are essentially clerical in
nature.
Section 5 of the bill would amend Subchapter D, Chapter 36
of the Water Code by adding a new section (36.10835), Judicial Appeal of
Desired Future Conditions. This section would allow that district orders could
be appealed in a district court. As provided by the Government Code (Section
2001.174) the court could strike down the future conditions if it finds them
unreasonable. A joint planning meeting would be held not later than the 30th
day after the date of the court order.
Section 6 of the bill would amend Section 36.251 of the
Water Code and deals with suits filed against a district. It allows that those
who are dissatisfied with the adoption of future conditions within a district
are entitled to file suite against a district or its directors.
Section 7 of the bill would repeal sections 36.1083 c and d
of the Water Code.
We take issue with the Desired Future Conditions regime
created by the Texas Water Development Board and under the Administrative Code.
Nevertheless, the regime exists, and the changes made by HB 200 must be
examined in a more limited context. Most of the changes made by the bill are
for the better, such as allowing for the filing of petitions. At the same time
the bill would allow for contested case hearings to drag on for a more extended
period of time. The additions proposed under Section 5 of the bill are
extensive, but also mostly procedural. The costs and benefits of HB 200 tend to
cancel each other out, and cannot readily be separated. As such we are neutral
on this bill.
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