|(a) Purpose and applicability. This section provides
procedures for commission review of a petition filed by an affected
person requesting an inquiry into a groundwater conservation district's
(GCD) activities regarding management planning or rules; commission
appointment of the review panel; review panel actions; and executive
director actions under Texas Water Code (TWC), §36.3011. An affected
person means, with respect to a management area:
(1) an owner of land in the management area;
(2) a GCD or subsidence district in or adjacent to
the management area;
(3) a regional water planning group with a water management
strategy in the management area;
(4) a person who holds or is applying for a permit
from a district in the management area; or
(5) a person with a legally defined interest in groundwater
in the management area.
(b) Petition requesting commission inquiry. An affected
person may file a petition with the commission to request an inquiry
for any of the reasons in paragraphs (1) - (9) of this subsection:
(1) a district fails to submit its management plan
to the executive administrator of the Texas Water Development Board;
(2) a district fails to participate in the joint planning
process under TWC, §36.108;
(3) a district fails to adopt rules;
(4) a district fails to adopt the applicable desired
future conditions adopted by the management area at a joint meeting;
(5) a district fails to update its management plan
before the second anniversary of the adoption of desired future conditions
by the management area;
(6) a district fails to update its rules to implement
the applicable desired future conditions before the first anniversary
of the date the district updated its management plan with the adopted
desired future conditions;
(7) the rules adopted by a district are not designed
to achieve the adopted desired future conditions;
(8) the groundwater in the management area is not adequately
protected by the rules adopted by a district; or
(9) the groundwater in the management area is not adequately
protected due to the failure of a district to enforce substantial
compliance with its rules.
(c) The petition must include supporting documentation
for each of the individual reasons the affected person identifies
in subsection (b) of this section demonstrating that a commission
inquiry is necessary.
(d) The petition must include a certified statement
from the affected person that describes why the petitioner believes
that a commission inquiry is necessary.
(e) The petitioner shall provide a copy of the filed
petition to all GCDs within and adjacent to the GMA within five days
of the date the petition was filed. Within 21 days of filing the petition,
the petitioner shall file with the chief clerk of the commission an
affidavit or other evidence, such as a return receipt for certified
mail service, that a copy of the petition was mailed to each GCD within
and adjacent to the petitioner's GMA.
(f) Any GCD that is within and adjacent to the GMA
that is the subject matter of the petition may file a response to
the validity of the specific claims raised in the petition. The responding
entity shall file its response with the chief clerk of the commission
within 35 days of the date that the petition is filed, and shall also
on the same day serve the petitioner, the executive director, the
public interest counsel, and any other GCD in and adjacent to the
GMA. The chief clerk shall accept a response that is filed after the
deadline but shall not process the late documents. The chief clerk
shall place the late documents in the file for the petition.
(g) Commission review of petition. The commission shall
review the petition and any timely filed responses, no sooner than
35 days, but not later than 90 days after the date the petition was
filed. The commission may dismiss the petition if it finds that the
evidence required by subsections (c) and (d) of this section is not
sufficient to show that the items contained in subsection (b)(1) -
(9) of this section exist. If the commission does not dismiss the
petition, it shall appoint a review panel to prepare a written report.
(1) The review panel shall consist of five members.
(A) The commission shall appoint one of the members
to serve as the chairman of the review panel. The chairman shall schedule
and preside over the proceedings and meetings of the panel.
(B) A director or general manager of a district that
is not an affected person as defined by subsection (a) of this section
and is not the subject of the petition may be appointed to the review
(C) The commission may not appoint more than two members
of the review panel from any one district.
(2) The commission shall appoint a disinterested person
to serve as a nonvoting recording secretary for the review panel.
The recording secretary may be an employee of the commission. The
recording secretary shall record and document the proceedings of the
(3) The commission may direct the review panel to conduct
public hearings at a location in the groundwater management area to
take evidence on the petition.
(4) In accordance with TWC, §36.3011, the review
panel shall review the petition and any evidence relevant to the petition
and consider and adopt a report to the commission.
(h) Review panel report. The review panel's report
must be submitted to the executive director no later than 120 days
after the review panel was appointed by the commission. The review
panel's report shall include:
(1) if a public hearing is conducted, a summary of
evidence taken on the petition;
(2) a list of findings and recommended actions appropriate
for the commission to take under TWC, §36.303 and §293.22(e)
of this title (relating to Noncompliance Review and Commission Action)
and the reasons it finds those commission actions appropriate; and
(3) any other information the panel considers appropriate
for commission consideration.
(i) Commission action on review panel report. The executive
director or the commission shall take action to implement any or all
of the review panel's recommendations if a cause contained in subsection
(b)(1) - (9) of this section applies. The executive director shall,
no later than 45 days after the date the review panel report was received,
recommend to the commission or initiate any action considered necessary
under TWC, §36.303 and §293.22(b) - (h) of this title.
|Source Note: The provisions of this §293.23 adopted to be effective August 29, 2002, 27 TexReg 7942; amended to be effective October 26, 2006, 31 TexReg 8699; amended to be effective August 16, 2012, 37 TexReg 6060; amended to be effective May 19, 2016, 41 TexReg 3506