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The committee met to take up and consider bills. This report focuses only on HB 200.
 
HB 200 (Keffer) – Relating to the regulation of groundwater.

  • Concepts passed out last session but a casualty of the calendar
  • Does not erode an owners real property rights
  • Does not weaken control of groundwater conservation
  • Does not weaken DFC or harm creation
  • Does establish an appeal process to challenge DFC
  • Does establish an administrative hearing process
  • Does allow an appeal of the district decision to the TWDB
  • Rep. Frank – is there currently an appeal process
    • They can appeal to the GCD but when go to court they become the expert witness
  • Rep. Larson – TWDB did this on surface water with TCCEQ and its time for the state to step in
  • Rep. Larson – there are some sophisticated GCDs and then less sophisticated who maybe didn’t have funds and couldn’t do the modeling and without this bill may see some project developments stall

 
Public Testimony
Paul Weatherby, Middle Pecos GCD, against

  • Whole program has gone through without a hitch throughout the years
  • Consult all different sciences
  • Export water and have three export permits that are active right now and gave ample supply
  • Have been accused of discrimination but would challenge that
  • Only one permit denied in 10.5 years
  • Rep. Larson – would look to know specifically in the bill how it will change the process
    • When someone appeals a DFC decision at this time the TWDB sends it back to the GMA to make final decision and in bill TWDB makes final decision
  • Rep. Larson – intent was not to alter DFC process so they will look into it
  • Rep. Bonnen – asked if witness would be comfortable with bill if the intent in language would be cleaned up
    • Yes
  • Rep. Larson – created regionalism in 1990s and state abdicated role of driving forward the needs of whole state
  • Rep. Larson – would like to see the lawyers out of the process altogether

 
Ty Embrey, Middle Trinty GCD, against bill

  • Sees bill as fundamental change where we are going
  • First deadline was Sept. 1, 2010 but then Sunset process made significant revisions so now in the second process of planning and feel this legislation is premature at this point
  • Is the next step the TWDB making the local groundwater decisions

 
Dirk Aaron, Clearwater GCD, against the bill

  • GCD is about local control and it means more local accountability
  • Two concerns: is the GMA process that they are currently going through and it is new…for the second time around and there is a significant funding challenge
  • Language in bill – understand it is more of a review than appeal but feels it is a slippery slope

 
Q&A of panel

  • Rep. Kacal – why are the ones doing a good job concerned
    • Bill as written says TWDB is making the decision and not in the GMA
    • GCD helps TWDB helped develop DFC and seems like they are already stretched resources wise – process does not make sense
  • Rep. Ashby said only time TWDB would step in would be if there was an unreasonable finding
  • Rep. King – are you saying you had a lot of help with TWDB when developing the DFC? Is that true for all?
    • Yes, cannot speak for others
  • Ty Embrey was asked if he has seen material of how many petitions there has been
    • Yes, but would defer the answer to TWDB (later it is said there has been only one)
  • Rep. Lucio – current appeal process handled
    • Current system is appeal to TWDB and then make a decision that goes back to GMA
    • If person does not like response they can sue in district court
    • Witnesses read it that the individual is suing the TWDB
  • Rep. Bonnen – why would a local board who has to pay for defense would be unhappy with not having to pay for suit in district court
    • Witnesses respond that local control is needed or that the decision would still come back to them even if state is defending the suit
    • GCD do not have to accept comments of TWDB and bill shows they have to accept the comments from the TWDB
    • GCD wants to have a role in the final decision
  • Rep. Burns – has faith in his GCD in his area but does not know how all the GCDs work in the rest of the state and reads bill language that ultimately the decision will come back to the local level
  • Rep. Larson – GCDs can consult with the TWDB in setting DFCs but can also reject all that technical information so what compels the board to change the GCD
    • Ty Embry – if TWDB gives information and then DFC is appealed then TWDB will say the DFC is not reasonable and send it back to GCD who will then have to make changes
    • Larson said the bill helps develops an anti-lawyer strategy and sees TWDB has shown a pretty good temperament and does not see a threat
    • Rep. Larson said he doesn’t think people kicking the bill around understand the bill author and he is honest

 
Michelle Gangnes, League of Independent Voters, on bill

  • Give time to those who can stay up later

 
CE Williams, GM of Panhandle GCD, on bill

  • Out of 11 actionable appeals only one was found unreasonable
  • Doesn’t think process is broke and process has been improved this time
  • Rep. King asked about someone appealing their DFC
    • More of a technical type of appeal on procedure and TWDB bore most of the cost
  • Agreed that cost would be a concern
  • Still thinks the 2016 DFCs should come out and see if they are challenged

 
Doug Shaw, Upper Trinity Ground Water Conservation, on bill 

  • District is most comfortable with law as it currently stands
  • Under current law TWDB has non-binding recommendation and that is believed to be the best system
  • Would amend bill to limit scope of review that GMA has done due diligence
  • Rep. Larson asked about if they had started a dialogue with author’s staff and encouraged him to do so
  • Rep. Larson said there is a way to manipulate the process

 
Stacey Steinbach, Texas Alliance of Groundwater Districts, on bill

  • DFC appeal issue and appeal of GCD permit decision to TWDB
  • DFC appeal 2011 changes reviewed – can sue district right now

 
Janet Guthrie, Hemphill GCD, against bill

  • Concerned about not letting current cycle play out and creating new process and impacting local control
  • Last process of appeal was grueling but does commend TWDB and appreciated the effort – would prefer review going to TWDB rather than SOA
  • Office does not have experiences with SOA
  • Hope that current process will perhaps address some issues and less petitions for lawsuits
  • Despite changes required in bill the district would still be required to adopt DFC and they could still be sued for that
  • Believes adequate checks and balances are currently in place
  • In response to question, TWDB did give them models and did have participation the first round and in second round TWDB are not running the GAM models but will be working with them on delivery 
    • Larson said seeing concerns and some GCDs are setting DFCs with no or very little science
    • Witness appreciates bill author working but would like to work through language because the question is where does final decision lie

 
Patricia Hays, Texas Association of Groundwater Owners, on bill

  • Language in bill matches guiding principles in TAG
  • Believes overall system is fundamentally flawed and supportive of interim study on groundwater in Texas

 
Russell Johnson, Attorney in Austin testifying for client EndOp, on bill

  • Bill provides some meaningful insight into process that has been abused
  • GCD have been given immense authority and power with virtually little oversight and lack of uniformity of powers and lack of predictability
  • Not all GCDs have these issues
  • Based on experience – there needs to be “adult supervision”
  • Rep. King – asked if they appealed the process and did it go to TWDB
    • Yes, it was one of the 11 and the appeal process was making a presentation to a tape recorded
    • No read opportunity to challenge
    • EndOp’s application was referred to SOA and have had three hearings with them
    • Went through process and recommendations have ended up in complete permit as they requested
  • Rep. Larson – much interest on this project, further questioned if permit would be issue if they had been located in another district
    • Yes but some differences

 
Alan Cockrell, Schertz Seguin Local Government Corporation, for bill

  • Concerned about GCD setting of DFC and arbitrary setting of DFC
  • Would like to see GCD planning process include regional planning groups

 
Steve Minnick, Texas Association of Business, for bill

  • For the process and hopes the process works as effectively as it does for TCEQ
  • If this process works for other permitting in Texas then could work here if administered adequately

 
Ed McCarthy, Self and Electro Purification, for bill

  • The bill will not change the current DFC process and the only thing that changes is how the appeal will work
  • Current process does not really allow challenge of science and the bill provides this
  • Thinks ability to use science at TWDB is needed and need contested cases to go directly to SOA

 
Registering but not testifying: 11 for the bill, 9 against, 1 on
 
Keffer closes noting GCD are the preferred way to manage groundwater resources but appeals process is unbalanced – there needs to be a way to appeal and encourages those who testified against to come to the author so they can work on bill language
 
Bill left pending