Texas Register, Volume 37, Number 40, Pages 7815-8094, October 5, 2012 Page: 7,969
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Texas Water Code 36.1083(c). Proposed subsection (a) clari-
fies that at least one hearing will be held to take testimony from
the petitioner and the districts. Evidence from other interested
persons is addressed in 356.42(f).
Proposed new 356.42(b) clarifies that any hearing shall be con-
ducted at a central location in the groundwater management
area. This provision mirrors the language of the statute and is
intended to underscore that the desired future conditions rep-
resent the collective action of all the districts in a groundwater
management area.
Proposed new 356.42(c) provides for notice of the hearing to af-
fected parties. Under proposed subsection (c), affected parties
include counties in the groundwater management area that do
not have a district, districts adjacent to the groundwater manage-
ment area, and any regional water planning group in the ground-
water management area, as well as the petitioner and the dis-
tricts in the groundwater management area. The provision rec-
ognizes that these entities may have an interest in the desired
future condition process (as evident by the statutory identifica-
tion of who may file a petition).
Proposed new 356.42(d) states that a hearing on a petition ap-
pealing a desired future condition is not a contested case hearing
subject to the Texas Administrative Procedure Act, Texas Gov-
ernment Code 2001.051 - 2001.178. A contested case hear-
ing is limited to matters where the legislation specifically requires
one. Unless an enabling statute requires a contested case hear-
ing, the agency is not authorized to provide such a hearing. Best
& Co. v. Tex. State Bd. Of Plumbing Examiners, 927 S.W.2d
306 (Tex.App.--Austin 1996, writ denied). The legislature did
not provide for a contested case hearing in Texas Water Code
36.1083, or in any of the agency's enabling statutes. Therefore
the board does not consider a hearing on a petition appealing
a desired future condition a contested case hearing and related
rules--the Texas Rules of Evidence, Rules of Civil Procedure,
and the rules promulgated by the State Office of Administrative
Hearings related to contested case hearings--will not apply to a
hearing on a desired future condition petition.
Proposed new 356.42(e) provides the structure that partici-
pants may expect during the hearing. It underscores that the
purpose of the hearing is to give the petitioner and the districts
an opportunity to provide testimony and evidence for the record
in a fair, orderly, and efficient manner. While the hearing is open
to the public, it is not a forum for public comment.
Proposed new 356.42(f) provides an opportunity for interested
person, members of the public who have a legally defined in-
terest in the issues, to provide evidence and written testimony
regarding the issues raised in the petition. The hearing record
will remain open for 15 days following the close of the hearing
for public statements. The time is not intended, however, to pro-
vide an opportunity for parties to supplement the testimony or
evidence provided during the hearing. No post-hearing briefing
is anticipated.
Proposed new 356.42(g) provides that the executive adminis-
trator has the discretion to adopt different or additional proce-
dures at the hearing either on the joint request of the parties or
on the executive administrator's own initiative.
Proposed new 356.43 relating to board evaluation, consider-
ation, and deliberation describes how board staff will evaluate
the petition in preparing a recommendation to the board and
what staff will consider in its analysis. Proposed 356.43 rep-
resents a revision of current 356.44 and 356.45 proposed forrepeal elsewhere in this issue of the Texas Registerto reflect the
changes that were made by the 82nd Legislature to Texas Water
Code 36.108.
Proposed new 356.43(a) provides that the executive adminis-
trator must prepare a report on the petition that includes a sum-
mary of the testimony, an analysis of the evidence received, a
recommendation regarding the reasonableness of the desired
future condition and any necessary findings. Proposed subsec-
tion (d) further clarifies the contents of the report by providing
that findings will only be prepared if the desired future condition
is found to be unreasonable. The board has determined that
findings are not otherwise necessary as this proceeding is not a
contested case that requires findings of fact and conclusions of
law in all cases as under the Texas Administrative Procedure Act,
Texas Government Code 2001.060 - 2001.061. If the board
determines that a desired future condition is not reasonable, then
the board will include a list of findings with its recommendations
in the report to the districts (see Texas Water Code 36.1083(c)).
Proposed new 356.43(b) lists the contents of the hearing record
on which the board will base its decision regarding the petition.
The language is revised from existing 356.44(g) proposed for
repeal elsewhere in this issue of the Texas Registerto reflect the
record available for evaluation and consideration when the staff
recommendation is taken to the board.
Proposed new 356.43(c) lists the criteria that will be used in
determining whether a desired future condition is reasonable. In
addition to the petition and relevant evidence, the board shall
also consider whether the desired future condition is physically
possible, that is, is it achievable. In addition, the statutory revi-
sions in 2011 require that the desired future conditions must pro-
vide a balance between production from the aquifer and conser-
vation, preservation, protection, recharging, and prevention of
waste of the water in the aquifer (Texas Water Code 36.108(d-
2)). Therefore, the list of criteria includes an assessment of
whether the desired future condition provides such a balance.
Similarly, the statute provides that the districts must consider a
list of factors before adopting the desired future condition. The
explanatory report that must be provided with the desired future
condition under Texas Water Code 36.108(d-3) and proposed
new 356.32, relating to Submission Package, is required under
the proposed rule to include an explanation of how the report
addresses the factors in Texas Water Code 36.108(d). There-
fore, part of the board's evaluation of the reasonableness of the
desired future condition will be a determination of whether the
districts have given appropriate consideration to the factors set
forth in Texas Water Code 36.108(d).
Finally, proposed new 356.43(c) provides that the board will
consider whether the districts have stated a purpose for the
desired future condition and whether the desired future condition
is reasonably fit and appropriate for that particular purpose.
This criterion is based on the requirement in Texas Water Code
36.108(d-3)(2) that the districts provide the policy justification
for each desired future condition. There should be a reasonable
correlation between the desired future condition and the state
of the aquifer it is intended to address. This criterion notes
that concern and is to be articulated by the districts when they
develop the desired future condition.
Proposed new 356.43(f) provides that action by the executive
administrator is sufficient to terminate the proceedings on a pe-
tition in the event the parties reach an agreement that resolves
the petition or a petition is withdrawn. Subsection (f) also pro-PROPOSED RULES October 5, 2012 37 TexReg 7969
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Texas. Secretary of State. Texas Register, Volume 37, Number 40, Pages 7815-8094, October 5, 2012, periodical, October 5, 2012; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth288982/m1/155/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.