| (a) Applicability. This section applies to proceedings
for revocation or amendment by decertification, expedited release,
or streamlined expedited release of a certificate of convenience and
necessity (CCN).
(b) Definitions. The following terms, when used in
this section, have the following meanings unless the context indicates
otherwise:
(1) Alternate retail public utility -- The retail public
utility from which a landowner plans to receive service after the
landowner obtains expedited release under subsection (f) of this section.
(2) Amendment -- The change of a CCN to remove a portion
of a service area by decertification amendment, expedited release,
or streamlined expedited release.
(3) Current CCN holder -- An entity that currently
holds a CCN to provide service to an area for which revocation or
amendment is sought.
(4) Decertification amendment -- A process by which
a portion of a certificated service area is removed from a CCN, other
than expedited release or streamlined expedited release.
(5) Expedited Release -- Removal of a tract of land
from a CCN area under Texas Water Code (TWC) §13.254(a-1).
(6) Former CCN holder -- An entity that formerly held
a CCN to provide service to an area that was removed from the entity's
service area by revocation or amendment.
(7) Landowner -- The owner of a tract of land who files
a petition for expedited release or streamlined expedited release.
(8) Prospective retail public utility -- A retail public
utility seeking to provide service to a removed area.
(9) Removed area -- Area that will be or has been removed
under this section from a CCN.
(10) Streamlined Expedited Release -- Removal of a
tract of land from a CCN area under TWC §13.2541.
(c) Provisions applicable to all proceedings for revocation,
decertification amendment, expedited release, or streamlined expedited
release.
(1) An order of the commission issued under this section
does not transfer any property, except as provided under subsection
(l) of this section.
(2) A former CCN holder is not required to provide
service within a removed area.
(3) If the CCN of any retail public utility is revoked
or amended by decertification, expedited release, or streamlined expedited
release, the commission may by order require one or more other retail
public utilities to provide service to the removed area, but only
with the consent of each retail public utility that is to provide
service.
(4) A retail public utility, including an alternate
retail public utility, may not in any way render retail water or sewer
service directly or indirectly to the public in a removed area unless
any compensation due has been paid to the former CCN holder and a
CCN to serve the area has been obtained, if one is required.
(d) Revocation or amendment by decertification.
(1) At any time after notice and opportunity for hearing,
the commission may revoke any CCN or amend any CCN by decertifying
a portion of the service area if the commission finds that any of
the circumstances identified in this paragraph exist.
(A) The current CCN holder has never provided, is no
longer providing, is incapable of providing, or has failed to provide
continuous and adequate service in all or part of the certificated
service area. If the current CCN holder opposes revocation or decertification
amendment on one of these bases, it has the burden of proving that
it is, or is capable of, providing continuous and adequate service.
(B) The current CCN holder is in an affected county
as defined in TWC §16.341, and the cost of providing service
by the current CCN holder is so prohibitively expensive as to constitute
denial of service. Absent other relevant factors, for commercial developments
or residential developments started after September 1, 1997, the fact
that the cost of obtaining service from the current CCN holder makes
the development economically unfeasible does not render such cost
prohibitively expensive.
(C) The current CCN holder has agreed in writing to
allow another retail public utility to provide service within its
certificated service area or a portion of its service area, except
for an interim period, without amending its CCN.
(D) The current CCN holder failed to apply for a cease-and-desist
order under TWC §13.252 and §24.255 of this title (relating
to content of request for cease and desist order by the commission
under TWC §13.252) within 180 days of the date that the current
CCN holder became aware that another retail public utility was providing
service within the current CCN holder's certificated service area,
unless the current CCN holder proves that good cause exists for its
failure to timely apply for a cease-and-desist order.
(E) The current CCN holder has consented in writing
to the revocation or amendment.
(2) A retail public utility may file a written request
with the commission to revoke its CCN or to amend its CCN by decertifying
a portion of the service area.
(A) The retail public utility must provide, at the
time its request is filed, notice of its request to each customer
and landowner within the affected service area of the utility.
(B) The request must specify the area that is requested
to be revoked or removed from the CCN area.
(C) The request must address the effect of the revocation
or decertification amendment on the current CCN holder, any existing
customers, and landowners in the affected service area.
(D) The request must include the mapping information
required by §24.257 of this title (relating to Mapping Requirements
for Certificate of Convenience and Necessity Applications).
(E) The commission may deny the request to revoke or
amend a CCN if existing customers or landowners will be adversely
affected.
(F) If a retail public utility's request for decertification
amendment or revocation by consent under this paragraph is granted,
the retail public utility is not entitled to compensation from a prospective
retail public utility.
(3) The commission may initiate a proceeding to revoke
a CCN or decertify a portion of a service area on its own motion or
upon request of commission staff.
(4) The current CCN holder has the burden to establish
that it is, or is capable of, providing continuous and adequate service
and, if applicable, that there is good cause for failing to file a
cease and desist action under TWC §13.252 and §24.255 of
this title.
(e) Decertification amendment for a municipality's
service area. After notice to a municipality and an opportunity for
a hearing, the commission may decertify an area that is located outside
the municipality's extraterritorial jurisdictional boundary if the
municipality has not provided service to the area on or before the
fifth anniversary of the date the CCN was granted for the area. This
subsection does not apply to an area that was transferred to a municipality's
certificated service area by the commission and for which the municipality
has spent public funds.
(1) A proceeding to remove an area from a municipality's
service area may be initiated by the commission with or without a
petition.
(2) A petition filed under this subsection must allege
that a CCN was granted for the area more than five years before the
petition was filed and the municipality has not provided service in
the area.
(3) A petition filed under this subsection must include
the mapping information required by §24.257 of this title.
(4) Notice of the proceeding to remove an area must
be given to the municipality, landowners within the area to be removed,
and other retail public utilities as determined by the presiding officer.
(5) If the municipality asserts that it is providing
service to the area, the municipality has the burden to prove that
assertion.
(f) Expedited release.
(1) An owner of a tract of land may petition the commission
for expedited release of all or a portion of the tract of land from
a current CCN holder's certificated service area so that the area
may receive service from an alternate retail public utility if all
the following circumstances exist:
(A) the tract of land is at least 50 acres in size;
(B) the tract of land is not located in a platted subdivision
actually receiving service;
(C) the landowner has submitted a request for service
to the current CCN holder at least 90 calendar days before filing
the petition;
(D) the alternate retail public utility possesses the
financial, managerial, and technical capability to provide service
as identified in the request for service provided under paragraph
(5) of this subsection on a continuous and adequate basis; and
(E) the current CCN holder:
Cont'd... |
