The committee met to take up and consider the following bills.
HB 163, Rep. Larson: Relating to interstate cooperation to address regional water issues.
· Creates Southwestern State Water Commission to work with neighboring states to identify and develop sources and methods of water supply after existing water supplies are fully committed
· Committee Substitute to HB 163 changes number of members from 6 to 3, and all 3 will be appointed by the Governor, one from natural resources in house, one from natural resources in the senate and then governor can sit or have a designee sit
· HB 163 to be reported favorably on House Floor
HB 1016, Rep. King: Relating to the designation of certain river or stream segments as being of unique ecological value.
· Regarding all or parts of Comal River, Frio River, Guadalupe River, Nueces River, Sabinal River, San Marcos River
· HB 1016 to be reported favorably on House Floor
HB 1221, Rep. Lucio: Relating to seller's disclosures in connection with residential real property subject to groundwater regulation.
· Requires sellers to disclose if a residential property is located in a ground water conservation district
· HB 1221 to be reported favorably on House floor
HB 1336, Rep. Bonnen: Relating to fees of office for the Velasco Drainage District.
· Gives Valesco Drainage District the ability to raise supervisor’s salary from $7,000 to $12,000
· HB 1336 to be reported favorably on House floor
HB 1088, Rep. Marquez: Relating to the establishment of the Texas Technical Center for Innovative Desalination at The University of Texas at El Paso in partnership with The University of Texas at San Antonio
· HB 1088 to be reported favorably on House floor
HB 3405, HB 3406, HB 3407 (HB 1191 Pulled)
Rep. Isaac lays out bills
· Private company, Electro Purification (EP) developed ground water well project just outside boundaries of a priority ground water management area
· The well field is within the geographic boundary of Edwards Aquifer Authority, but is being drilled into the Trinity Aquifer just outside any aquifer conservation districts’ territory
· EP has contracts in place to deliver up to 5.3 million gallons of water per day utilizing a 13 mile pipeline to deliver across Hays County to Goforth, Buda, and Anthem
· Well Field is within geographic boundary of Edwards Aquifer Authority but is being drilled into the trinity aquifer just outside any aquifer conservation districts’ territory
· Goforth SUD has sold eminent domain authority to EP to allow for pipeline
· Pipeline could create a takings for nearby well owners and infringe on private property rights
· HB 3405: Relating to the territory and authority of the Barton Springs-Edwards Aquifer Conservation District to regulate certain wells for the production of groundwater
· Expands boundaries of Barton Springs Edwards Aquifer Conservation District to encompass remaining unprotected areas of Trinity Aquifer in Hays county
· Will not place tax or registration fees on existing land owners
· HB 3406 (Committee Substitute) Relating to the territory of the Hays Trinity Groundwater Conservation District; authorizing the regulation of certain wells for the production of groundwater
· Redundant language as HB 3405 (They would stand as backups for each other in case one does not move forward)
· HB 3407 (committee substitute) Relating to Goforth Special Utility District
· Removes eminent domain powers of Goforth SUD outside of their geographic boundaries still allowing them to serve customers inside of their service area
· Eminent domain was granted to Goforth SUD by legislature and was not intended to be sold or loaned to private company
· Rep. Ashby – asks why local election isn’t held to join a GCD; That would be normal process
o This is the best way Rep. Isaac knows to fix the issue
· Rep. Ashby – unaware Goforth SUD could sell eminent domain rights
o Debatable if company is breaking existing law, this is the reason for the legislation
· Rep. Ashby – Buda would be consumers of the EP contract; asks if Isaac got their opinion on the legislation?
o Buda and Goforth and Anthem would all benefit
o Yes, Isaac got their opinion and citizens are in favor of legislation
· Chair Keffer – asks if city of Buda already signed contract with EP; what happens to contract if legislation is passed?
o Contract has been signed
o Contract is contingent on availability of water, Science must be there to permit the contract to go forward
· Chair Keffer – What happens to growth potential in areas if the contract is voided
o Later testimonies will address this issue
· Rep. Ashby – There is a group in Hays County that filed lawsuit in Hays County Court to ask for injunction to stop the contract – we usually don’t like to get involved when it has been settled in court. Some would argue we should just let the lawsuit play out.
o HB 3405 and HB 3407 refer to Hays Edwards Conservation District and would not fall under that lawsuit, but HB 3406 would be in Hays Trinity Groundwater Conservation District
· Rep. Nevarez – Buda is supportive even if it hampers their contract?
o Yes, in a unanimous vote
Mary Stone, Barton Springs/Edwards Aquifer Conservation District
· Supports HB 3405
· Wants resources protected and shared equitably
· Even without the EP issue, this legislation is much needed – the area should be a part of the Edwards Aquifer Groundwater Conservation District
· Rep. Frank –what is the history of why lines were drawn the way they are
o Lines follow the outcrop of the Edwards Aquifer
Linda Kaye Rogers Hays Trinity Groundwater Conservation District
· Linda Kaye Rogers
· In favor of HB 3405 and HB 3406 testifies on HB 3407 representing self
· Imperative that area comes into some type of regulation
· Science shows there would be significant drawdown with EP project
· Hays Trinity GCD has been notified with 90 day notice that they must hear evidentiary hearing to determine if that area is in their district to see if EP should have come to them for a permit – that will be reviewed with presented evidence – no evidence presented yet
· Petition going on to be annexed into GCP that they are adjacent to, but it would not be entirely covered
· Regarding HB 3407
o Huge amount of water would be leaving her community
o Buda has other options for water
· Ashby – was told there would be now drawdown, what data supports drawdown?
o Hydrologists report given to county commissioners court of Hays County yesterday and will be addressed in later testimony
o Recharge will not be known until it is too late
· Chair Keffer – if this did not show harm towards Hays County would there be an issue
o Wants water to stay in county first when we have our own water issues
o If no harm to aquifer, then she would not oppose the issue
· Rep. Nevarrez – if there is ever debate, the standard of proof will be within a reasonable degree of scientific probability within preponderance of evidence – her level of having to be convinced is too absolute
Ed McCarthy, Electro Purification
· Neutral on HB 3405 and HB 3406, Against HB 3407
· Bills contradict each other and would repeal jurisdiction of Plum Creek
· TESPA Lawsuit: two major problems for legislature – effort to overturn rule of capture AND seeks injunction on theory that EP area is already in jurisdiction of Hays County Trinity GCP
Billy Gray, Representing Self
· For HB 3405 and HB 3406, against HB 3407
· Owns company that builds water plants – there is a true water need
· Invited EP to come help the water need because nobody else has helped
Tim Throckmorton, Electro Purification
· On HB 3405 and HB 3406, and against HB 3407
· Hired Cave Kaveh Khorzad with Wetrock Groundwater Services, past president of Texas Groundwater Association Scientific division with questions about Trinity Aquifer
· Told EP that upper trinity and lower trinity separated by hydraulic disconnect which would avoid any problems with wells
· Goforth, Buda, Anthem receive water in that order on contract
· Water starts with 500 thousand gallons per day and will slowly increase through 2036 so it can be monitored
Kaveh Khorzad, Wetrock Groundwater Services
· Neutral on HB 3405, HB 3406, and HB 3407
· Trinity is three distinct aquifers upper middle lower each with hydraulic disconnects
· 102 wells recorded in databases along Trinity Aquifer, tests thus far have not shown negative effects
· Rep. Frank – how was EP invited to Hays County and how much water would you be able to get from wells if they drilled within water district and not outside of water district
o Gray personally invited EP to look at opportunity then they negotiated thecontracts with Goforth, Buda, Anthem
o McCarthy – Believes the districts would not give them a permit regardless of what the science says
· Rep. Ashby – what has been proven up in terms of availability at well site locations
o EP has drilled 7 test wells, and 6 have proved to be sufficient for municipal water supply project
o Combined these 6 wells can produce 2.74 million gallons per day
· Rep. Ashby – what does contract with Buda entail
o Buda is 1 million gallons per day
o Goforth is 3 million gallons per day
o Anthem is 1.3 million gallons per day
· Rep. Ashby – what is impact on Cow Creek
o There are wells in the Cow Creek
o Aquifer is fractured, so it is difficult to predict
o We want to develop a monitoring network and stress aquifer at higher level to determine what impact will be because we are concerned about existing wells in Cow Creek
· Buda needs the water
· Rep. Larson – does EP have transport projects in other parts of Texas
o Far eastern Travis county, and in Williamson county
o 700 thousand gallons a day in Travis County and 2 million gallons a day in Williamson
· Cow creek has a relatively small amount of wells which is why EP picked this area to drill
· Chair Keffer – in these contracts what happens if EP’s monitoring shows issues with drilling
o In contract, we can scale back production
o We are having to over prove the amount of water available to go forward with the contract
· Rep. Workman – does mitigation include drilling new wells in lower Glenn Rose for those whose wells may be drawn down
o If we are affecting a well, EP will fix the issue whether that means drilling a new well, adding a pump, etc.
Ron Bell, Goforth Utility District
· Opposes HB 3407
· HB 3407 proposed in response to the EP groundwater project, but the bill is actually about Goforth’s ability to service customers
· HB 3407 also prohibits Goforth from creating water transportation systems that would if doing so requires condemnation
· Rep. King – has Goforth has ever used power of condemnation
o Not to Bell’s knowledge
· Rep. Frank – is it fair to say that, while Goforth has not used eminent domain in the past, the threat of eminent domain allows negotiations to go smoothly for Goforth SUD
o That is a fair assessment
· Goforth water supply would currently last until June 2016
· Rep. Larson – cuts need to be made on water use, revenues may go down, but a lasting water supply is more important
o Goforth has no way to mandate water conservation
Fred Aus, Texas Rural Water Association
· Opposes HB 3407
· Goforth is a member of the Association
· Bill would amend Goforth SUD’s enabling legislation
· Fear the bill could be precedent for eminent domain and water and waste water infrastructure development
· Would prohibit Goforth from moving water from one side of a road to the other to service a customer
· Rep. Ashby – “we are careful not to set a precedent unless it’s a good one” and asks if legislature has ever stripped powers of an SUD
o There are powers given and not given to SUDs when they are set up initially, but cannot recall an SUD ever being stripped of powers
· Rep. Larson – we are all Texans and need to have a sharing mentality, but if certain districts are not conserving water, rural areas become upset that their water is being used for lavish lawns, washing cars, etc.
Patrick Reznik, Halifax Ranch
· For HB 3407
· Not everything gets settled under power of condemnation
· EP’s contract with Goforth gives EP ability to utilize Goforth eminent domain authority as a private company
· Rep. Larson – how many landowners would be impacted by the project
o Not aware, but Halifax Ranch and surrounding land owners feel under the threat of condemnation
· Chair Keffer – Goforth says they are using the threat of condemnation to help bring water to their subscribers, is your feeling that this contract is a misuse of eminent domain?
o Yes because of the private company benefitting from threat of condemnation
o Misuse of 22.06 in the government code which states that if it is private benefit, threat of condemnation may not be used
David Crowe, Represents Self
· In favor of HB 3407
· Goforth is using eminent domain powers to benefit private company
Catarina Gonzales, City of Buda
· Testifying on HB 3405, HB 3406, HB 3407
· Buda is not against reasonable regulation that does not interfere with city’s duty to provide potable water
· Buda is experiencing 11% population growth rate ach year
· Believes Hays Trinity may already have legislation of the questioned area, so legislation may be premature
· HB 3407 prohibits city from constructing water distribution system if right of way is obtained by exercising eminent domain
· Rep. Ashby – what additional fees and costs could be associated with 3405/3406
o Fear that the municipal units charge additional fees
o Would we have to pay additional money for water they are currently receiving
· Chair Keffer – does Buda have drought stages
o We are currently in stage one (10% curtailment) and are close to a stage 3 (30% curtailment) on April 6
o Also have tiered rate system to penalize individuals using too much water
Daryl, Slusher, City of Austin Water Utility
· On HB 3405
· Austin supports bill on concept, but wants to add amendment that caps Austin’s expenditure on at $1 million per year which would still allow district to meet their needs
Chris Elliot, Represents Self
· In favor of HB 3407
· Conservation should be the first solution
· Works for a non-profit called “One Cool Earth, Let’s Keep it That Way” that teaches kids about conservation in hopes that they will take the message home
Ron Bell, Goforth Utility District (Called back by Chair Keffer)
· Chair Keffer – Who owns pipeline in contract with EP
o EP owns pipeline, Goforth owns easement
Louis Bond, Represents Self
· In favor HB 3405, HB 3406, HB 3407
· Lives near the unregulated EP wells and fears the EP project will be detrimental water supply in her area
· Rep. Ashby – how many times has Bond asked her state representative or senator to put her land in a groundwater district
o Never because she never thought her water supply was threatened
Linda Curtis, Represents Self
· In favor of HB 3405 and HB 3406
· Support legislation for local control over groundwater
· Science should not be paid for by those who have interest in outcome
Barton Springs Edwards Aquifer Conservation District, Brian Sledge
· In favor of HB 3405
· HB 3405 is best option because Barton Springs district is most fit to control area as a science based district
· They have approved exports before and will do it again if science does not show downsides
· Lawsuit should not stop legislature from acting
· Rep. Larson – if the legislature was not in session, what would be Rep. Isaac’s pathway to put conservation district in place
o There is a petition process that allows group of landowners to ask TECQ to create a district over an area, but when TECQ creates a district they can only create one with standard chapter 36 power and there would be funding issues
· Barton Springs is in best financial situation to take on this area
Ashley Whittenberger, Represents Self
· In favor HB 3405, HB 3406, HB 3407
· Agrees that we should use science, but we need to pay attention to who is paying for the science
· Land owners are best fit to be stewards of the land
· Private property rights should be protected over private interests
Will Conley, Hays County
· In favor HB 3405, HB 3406, HB 3407
· Hays needs tools to manage EP’s sophisticated private interests in rural districts
· EP contract is abuse of private property rights
Gary Bradley, Represents Self
· On HB 3405 HB 3406 against HB 3407
· EP should just have to deal with Barton Springs district rules under HB 3405
· Taking away eminent domain would open up other issues
· There is no water between Austin and San Antonio, and they need it
· Rep. Larson – there should be regulatory scheme in place to figure out balance between rural communities, urban communities, and the state
· As more and more people move to the city, they will want water and elect people to give it to them without regard to the rural communities
· Chair Keffer – we should always take part in conservation even when the draught ends
Rep. Isaac, Closing
· Largest issue in district
· May be unprecedented to take eminent domain authority away, but not unprecedented to take power away from government agencies abusing private property rights
· 40 wells are known to be effective, there are surely more, and one well would be too many
· Lower chamber is on board
HB 3405, HB 3406, HB, 3407 Pending
HB 1665, Rep. Bonnen: Relating to notice of water level fluctuations to purchasers of real property adjoining an impoundment of water.
Rep. Dennis Bonnen, lays out HB 1665 and substitute
· Purchaser of waterfront property should be aware that bodies of water are subject to fluctuation due to other’s right to utilize body of water
· Transparency is the goal of HB 1665, simple language for notice and allows purchaser to terminate sales contract and bring an action for misrepresentation if notice isn’t provided
· Substitute clarifies and strengthens language allowing purchaser to terminate and allows purchaser to bring misrepresentation actions
· Rep. Frank James – Is this going to be part of the standard real estate form?
o Will be part of the normal closing documents, similar to notice required for property changes on beachfront property, but this issue is more easily managed
· James – Sounds like a good idea, unfortunate that we must inform people lakes may not always maintain water level
o A lot of confusion about which lakes are and are not subject to fluctuations
Ronald Gertson, Colorado Water Issues Committee
· Testifying in support of HB 1665
· Similar to Rep. Eddie Lucio’s HB 1221 requiring notice to purchasers of groundwater conservation districts
· Purchasers should be notified if they are not purchasing property near a constantly level lake
Ward Wyatt, Central Texas Water Coalition
· On HB 1665
· Notice requirement should not be used as an excuse for poor water management decisions by river authorities and water rights holders (LCRA mentioned)
· Bonnen – Where does the bill talk about poor management plans?
o It does not, this is why we are testifying on this issue
· Bonnen – You say HB 1665 excuses poor water management, could you explain that?
o Just want the concern on the record
· Bonnen – Is it fair to say your testimony is that the LCRA would use HB 1665 as an excuse for poor water management?
o Does not think LCRA will use it for poor water management
· Bonnen – So the problem is solved?
o Some waterfront property owners know of fluctuations
· Bonnen – Just want to clarify that you do not think HB 1665 would cause poor water management or that LCRA would use this as an excuse
o Absolutely not
Kirby Brown, Lower Colorado River Basin Coalition
· In support of HB 1665
· HB 1665 makes “a lot of sense”
· New purchasers likely do not know of water fluctuations, new owners bring a lot of litigation on the issue and HB 1665 will help that
Brian Sledge, Benbrook Water Authority
· In support of HB 1665
· HB 1665 is “long overdue,” Lake Conroe is a good example of a reservoir where waterfront property owners do not want the reservoir to be used
· Will engender good water management planning by assuring proper usage of water resources
· Chair Jim Keffer – We sympathize with people who cannot “get to their boat docks” and understand why they are perplexed and frustrated, but “facts are facts”
· Bonnen – Relative moved away from Lake Conroe to avoid this issue
· Keffer – Real estate agents have misrepresented lake levels before, HB 1665 is extremely important to alert people that water levels fluctuate in Texas
Rep. Bonnen, closing
· Idea for HB 1665 came from person at LCRA meeting who expressed confusion over water level fluctuations
· Keffer – “Very needed bill”
HB 1665 Pending
HB 2647 Rep. Ashby: Relating to a limitation on the authority to curtail groundwater production from wells used for power generation or mining.
Rep. Ashby, laying out HB 2647
· Prohibits future curtailment or reduction of groundwater used by power plants or mines
· Even small curtailments could endanger electrical grids
· Currently GCDs can curtail pumping for power plants and have in some instances
· “Duty and prerogative” of Texas legislature to protect certain usage, oil and gas and livestock use already have protected usage exemptions
· Extremely unlikely that takings will occur, groundwater used for plants is a very small portion of groundwater usage in state (.7%)
Bill Moore, Luminant Generation Company
· Supports HB 2647
· Luminant depends on groundwater and uses only the water it needs
· Recycles and reuses 98% of water it uses
· Chair Keffer asks about other exemptions that exist
o 3 exemptions
o Domestic and live-stock wells
o Oil and gas drilling
o Mining use permeated by rail road commission
· It takes several years to find new sources of water if curtailment occurs
· Rep. Kacal – Could Oak Grove possibly close down because of curtailment?
o Yes, Oak Grove relies on groundwater
· Rep. Frank – Could they not get water from somewhere else? Trucking etc.
o Depends upon timing, if curtailment took effect quickly, would have no other option, could take years to source water
· Rep. King – Which plant’s usage was curtailed?
o Lewis Creek Entergy plant, Lone Star GCD curtailed
· Rep. King – And what is the outcome?
o Curtailed by 30% by 2016, understanding is that plant drilled antoher well and made accommodations
· Rep. King – CPS has groundwater wells also?
o 2 CPS plants rely on groundwater to some degree
· Rep. King – What is groundwater used for?
o Boiler make-up water, potable water, fire safety etc.
· Rep. King – Does CPS have other sources?
o Does not know the details
· Rep. Larson – Emissions reductions will cause plant development, HB 2647 is forward-thinking to care for these facilities, electric groundwater usage is the “most critical” usage
· Rep. Burns – While statewide usage is not that large, percentages are different from a local perspective, correct?
o On a GCD-by-GCD basis, in all but 2 GCDs, percentage of groundwater usage is a “single-digit” percent, in Panola and Rusk the number is 25-30%
· Rep. Burns – Is there anything that would keep power industry from using a market-based solution? I.e. agreements for water usage in the event of curtailment
o Buying up water is an “economically inefficient” answer, also not necessarily good public policy to “hoard” groundwater
· Rep. Burns – Just seems like market-based solutions should be considered
o Like everyone engaged in using water, we are always exploring other resources
Mike Nasse, Water Energy Nexus for Texas Coalition
· For HB 2647
· Power generation is a low water consuming use, HB2647 is about hedging a risk to the power grid
· Electrical usage is a “known” quantity, unlikely to grow significantly
· Frank – When we assure your usage, what other types of users would be curtailed?
o Anybody who uses groundwater in the area subject to a GCD
· Ashby – Can you speak to the 2011-2012 crisis to give a little perspective on the issue? When looking at what the state faces in a power crisis, HB 2647 is very important
o ERCOT has studied this issue and found that generally it is a surface water issue, because we have groundwater usage grid is very drought resistant
Allan Day, Brazos Valley GCD
· Against HB 2647
· Reductions require participation of all groundwater wells to be effective
· Board does not elevate any use over any other, rights holder treated equally
· Exempting one group of producers puts undue strain on all other users, slippery slope for producers to claim for exemptions
· Conservation credits program being discussed, reduction can be offset by credits for conservative efforts
· Larson – There is a beneficial use scale for municipalities that is consistent for purveyors in the state, it’s interesting that you would cut entertainment and municipal use at the same rate. To make all of the other producers work (farmers etc.) you will need electricity
o BVGCD is “bumping on 10%” of district usage for power, producers fall under permitted usage regularly and can get more water if they hit the permit cap
· Larson – HB 2647 is talking about a small percentage of the usage you describe
· Burns – Are the conservation credits trade-able?
o Unsure, conservation credit discussion started recently
· Keffer – If producers did run out of water and needed to procure more what is the process?
o Apply for a permit and show that they control the water, this could be curtailed, will use the “DFC” and curtailments are integral to be able to permit water
· Keffer – Glad you are thinking about the future of water usage, but not every GCD is of the same mindset
Stephen Minick, Texas Association of Business
· For HB 2647
· No other issue more critical than grid stability
· Clearly permitted limits have given producers room, but these issues should be considered in relation to other issues like brackish desalination
Brian Sledge, Lone Star Groundwater District
· On HB 2647
· GCD usage is a good discussion to have, power usage is a small usage
· Would not counsel any district to implement usage restrictions that would cause shutdowns or spur Takings lawsuits
· 2006 instituted 30% reduction by 2016, a 10 year head-start and reasonable reduction plan
· Would hope that legislature would expect GCDs to plan like this and consider it an appropriate course of action; plans to reduce reasonably and allow for market solutions
· Ashby – Working on a substitute and welcome the input from GCDs
Lindsay Hughes, Texas Competitive Power Advocates
· Supports HB 2647
· Electricity is building block and should not be curtailed
Stacy Steinbach, Texas Alliance of Groundwater Districts
· On HB 2647
· Municipalities, schools, hospitals are also important use of groundwater, and GCDs get backed into corner if all of these groups want similar treatment
· Maximum production rates in bill could create loopholes
Chess Blevins, Texas Mining and Reclamation Association
· Supports HB 2647
· We already have exemption for mining, but this additional protection is still important
· Mines use water for potable water needs as well
· Conservation and reuse are always practiced
Rep. Ashby Closes
· This is a big issue
· We are working on substitute and will have open door
HB 2647 left pending
HB 949, Rep. Lucio: Relating to the obligation of certain retail public utilities to mitigate their system water loss.
Lucio lays out HB 949
· According to Texas water code, retail public utility that provides potable water and receives financial assistance from the Texas Water Development Board is required to use a portion of assistance to mitigate that utility’s water loss if it meets or exceeds a threshold established by the board
· If you borrow money from board and have water loss at or above threshold, a portion of that money must go to mitigate water loss, however many of them are already mitigating water loss
· Current statute do not get credit and have to spend money twice to mitigate
· HB 949 is a clarifying bill
10 registered for the bill and 0 registered against
Lucio, closing
· Asks for committee’s favorable consideration
HB 949 left pending
HB 1224, Rep. Lucio: Relating to the purposes for which the assets of certain revolving funds administered by the Texas Water Development Board may be used.
Lucio lays out HB 1224
· Allows Texas Water Development Board to cross collateralize the Federally collateralized Drinking Water State Revolving Fund and the Clean Water State Revolving Fund to strengthen credit rating
· Cross collateralization allows stronger Clean Water State Revolving fund to insure the repayments of the Drinking Water State Water State Revolving Fund
· This translates into lower cost of funds
· Rep. Frank – does it allow Water Development Board to borrow more money or just get a lower interest rate?
o Just a lower interest rate to Lucio’s knowledge
· Rep. Nevarez – could it damage or hinder the stronger fund’s ability to borrow money
o Texas Water Development Board has better answer
Jeff Walker, Texas Water Development Board
· Resource Witness
· Rep. Nevarez – would this damage or hinder stronger fund’s ability to borrow money
o Clean Water fund is very strong, so it is very unlikely
o It would not be leveraged that much
· Funds are for potable water projects
· 26 other states do this and have not had issues
3 For Bill 1 on bill
Rep. Lucio, closing
· Asks for favorable consideration
HB 1224 left pending
HB 200, Rep. Keffer: Relating to the regulation of groundwater.
Rep. Keffer lays out HB 200
· 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
o 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
Paul Weatherby, Middle Pecos GCD
· Against HB 200
· 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
o 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 Trinity GCD
· Against HB 200
· 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 HB 200
· 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
o Bill as written says TWDB is making the decision and not in the GMA
o 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?
o Yes, cannot speak for others
· Ty Embrey was asked if he has seen material of how many petitions there has been
o Yes, but would defer the answer to TWDB (later it is said there has been only one)
· Rep. Lucio – current appeal process handled
o Current system is appeal to TWDB and then make a decision that goes back to GMA
o If person does not like response they can sue in district court
o 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
o Witnesses respond that local control is needed or that the decision would still come back to them even if state is defending the suit
o GCD do not have to accept comments of TWDB and bill shows they have to accept the comments from the TWDB
o 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
o 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
o 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
o 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 HB 200
· Give time to those who can stay up later
CE Williams, Panhandle GCD
· 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
o 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 GCD
· 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
· 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 HB 200
· 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
o 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
· 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 HB 200
· 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
o Yes, it was one of the 11 and the appeal process was making a presentation to a tape recorded
o No read opportunity to challenge
o EndOp’s application was referred to SOA and have had three hearings with them
o 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
o Yes but some differences
Alan Cockrell, Schertz Seguin Local Government Corporation
· For HB 200
· 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 HB 200
· 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, Electro Purification
· For HB 200
· 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 closing
· 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 no to come to the author so they can work on bill language
HB 200 left pending