UTILITIES AND ENVIRONMENT
H.B. 51 (Lucio/Hinojosa) – Energy Conservation Codes: provides that: (1) a city shall establish procedures to track and report to the State Energy Conservation Office on implementation of the energy efficiency chapter of the International Residential Code and the International Energy Conservation Code; (2) the Energy Systems Laboratory at Texas A&M University shall report its findings to the city, including an estimate of any energy savings potential above the unamended code from local amendments and annually submit a report to the Texas Commission on Environmental Quality that: (a) identifies the cities and counties whose codes are more stringent than the unamended code, and whose codes are equally stringent or less stringent than the unamended code; and (b) quantifies energy savings and emissions reductions from this program for consideration in the state implementation plan for emissions reduction credit; (3) the laboratory may provide local jurisdictions with technical assistance concerning implementation and enforcement of the International Energy Conservation Code and the energy efficiency chapter of the International Residential Code, including local amendments to those codes; and (4) the laboratory may conduct outreach to the real estate industry, including real estate agents, home builders, remodelers, appraisers, and financial institutions, on the value of energy code compliance and verified, above-code, high-performance construction. (Effective September 1, 2011.)
H.B. 257 (Hilderbran/Patrick) – Utility Deposits: this bill, among other things: (1) provides that a utility deposit is presumed abandoned on the latest of: (a) eighteen months after the date a refund check for the utility deposit was payable to the owner of the deposit; (b) eighteen months after the date the utility last received documented communication from the owner of the utility deposit; or (c) eighteen months after the date the utility issued a refund check for the deposit payable to the owner of the deposit if, according to the knowledge and records of the utility or payor of the check, during that period, a claim to the check has not been asserted or an act of ownership by the payee has not been exercised; (2) provides that a utility deposit is not presumed abandoned for two years from the time the depositor provides documentation to the utility of being called to active U.S. military service during any part of the period described in (1), above; (3) requires each holder who on March 1 holds property presumed to be abandoned under various laws to file a report of that property with the comptroller on or before the following July 1; (4) requires each holder who on March 1 holds property valued at more than $250 that is presumed abandoned under various laws to, on or before May 1, mail to the last known address of the owner certain written notice; and (5) requires each holder who on March 1 holds property that is presumed abandoned under certain laws to deliver the property to the comptroller on or before the following July 1, with some exceptions if the property is a safe deposit box. (Effective September 1, 2011, except as otherwise provided in the bill.)
H.B. 965 (Callegari/Hegar) – TCEQ License Requirements: this bill: (1) permits the Texas Commission on Environmental Quality (TCEQ) to recognize Internet-based continuing education programs; and (2) requires the TCEQ to provide a method for certain individuals who hold a license issued by the TCEQ to certify at the time of license renewal that the license holder has complied with the TCEQ’s continuing education requirements. (Effective September 1, 2011.)
H.B. 971 (P. King/Fraser) – Electric Transmission/Eminent Domain: makes changes to the routing of certain electric transmission lines. Of particular interest to cities, the bill provides that, for certain electric transmission facilities ordered or approved by the Public Utility Commission, the electric provider’s right of eminent domain can be exercised across all public land (e.g., municipal property), except land owned by the state. (Effective immediately.)
H.B. 1728 (Keffer/Harris) – Energy Efficiency: provides that: (1) notwithstanding other law, the governing body of a local government – including a city – may use any available money, other than money borrowed from this state, to pay the provider of the energy or water conservation measures under an energy savings performance contract, and the governing body is not required to pay for such costs solely out of the savings realized by the local government under an energy savings performance contract; and (2) the governing body may contract with the provider to perform work that is related to, connected with, or otherwise ancillary to the measures identified in the scope of an energy savings performance contract. (Effective September 1, 2011.)
H.B. 1732 (Ritter/Hinojosa) – Texas Water Development Board: provides that an applicant for certain financial assistance or loans from the Texas Water Development Board (including assistance through the water infrastructure fund) may not receive the assistance if the applicant has failed to satisfactorily complete a request by the agency’s executive administrator or a regional planning group for information relevant to the project for which the assistance is being requested, including a water infrastructure financing survey. (Effective September 1, 2011.)
H.B. 2663 (Chisum/Seliger) – LP Gas: provides that: (1) the rules and standards promulgated and adopted by the Texas Railroad Commission preempt and supersede any ordinance, order, or rule adopted by a political subdivision of this state relating to any aspect or phase of the liquefied petroleum gas industry; and (2) a political subdivision may petition the commission's executive director for permission to promulgate more restrictive rules and standards only if the political subdivision can prove that the more restrictive rules and standards enhance public safety. (Effective September 1, 2011.)
H.B. 2694 (W. Smith/Huffman) – Texas Commission on Environmental Quality: this is the Texas Commission on Environmental Quality (TECQ) sunset bill. It, among other things:
- expands the TCEQ’s role in dam management, but exempts certain small dams on private property outside city limits.
- transfers authority over the regulation of surface casings for oil and gas wells as they relate to groundwater protection to the Texas Railroad Commission.
- requires the TCEQ to develop and implement a program to improve public access to information about the TCEQ and the matters the agency regulates.
- changes how compliance history is used in certain enforcement situations, including taking into account the size and complexity of the site where a violation occurred, requiring the consideration of most notices of violation for a period of no longer than a year from the date of issuance, as well as consent decrees, but excluding most self-reported air quality deviations or violations
- changes the three classifications of compliance history to unsatisfactory (below minimal acceptable performance standards), satisfactory (generally in compliance), and high performers (above-satisfactory performance record).
- increases the penalties and increase the maximum fine amount for most statute and rule violations under the jurisdiction of the TCEQ
- authorizes the TCEQ to approve a city’s supplemental environmental project in lieu of a fine that is necessary to bring the city into compliance with environmental laws or to remediate environmental harm caused by the city’s alleged violation.
- requires the TCEQ to develop a policy to prevent a regulated entity from systematically avoiding compliance through the use of supplemental environmental projects.
- makes changes to the fees, penalties, and authorized TCEQ action for underground storage tanks.
- requires any water right holder who impounds, diverts, or otherwise uses state water to maintain water use information on a monthly basis to be made available to the TCEQ during an emergency water shortage or in response to a complaint, upon request.
- authorizes the TCEQ to order temporary suspension and reallocation of water rights during a drought or other emergency water shortage and requires recipients of a water transfer to comply with drought management measures.
- authorizes a city to provide by e-mail, if available, the notice of a rate change required by state law to be given to customers outside city limits, and also authorizes a non-city-owned utility to provide a statement of notice of a proposed rate change to a city by e-mail.
(Effective September 1, 2011.)
H.B. 3090 (Creighton/Nichols) – Water Utilities: provides that: (1) a water utility providing potable water that receives financial assistance from the Texas Water Development Board (TWDB) shall perform and file an annual water audit computing the utility’s system water loss during the preceding year; (2) a utility that does not receive financial assistance from the TWDB shall perform and file an audit described in (1), above, every five years; and (3) the categories into which cities are grouped by population for purposes of TWDB-developed water audit methodologies and submission dates are modified to combine in the lowest population group all cities with populations of 10,000 or less. (Effective September 1, 2011.)
H.B. 3372 (T. King/M. Jackson) – Harvested Rainwater: provides that: (1) the Texas Commission on Environmental Quality (TCEQ) shall work with the Texas Water Development Board (TWDB) to develop rules regarding the installation and maintenance of rainwater harvesting systems that are used for indoor potable purposes and connected to a public water supply system; (2) a person who installs and maintains rainwater harvesting systems that are connected to a public water supply system and are used for potable purposes shall be licensed by the Texas State Board of Plumbing Examiners as a master plumber or journeyman plumber and hold an endorsement issued by the board as a water supply protection specialist; (3) the use of harvested rainwater for drinking water and other potable uses in a structure connected to a public water supply system is authorized, and that the system owner shall notify (but not obtain the consent of) the city utility before connecting; and (4) a city may not be held liable for any adverse health effects allegedly caused by the consumption of water collected by a rainwater harvesting system and is used for drinking purposes if the city is in compliance with state standards for drinking water sanitation. (Effective September 1, 2011.)
H.B. 3391 (D. Miller/Seliger) – Harvested Rainwater: this bill (1) requires the Texas Commission on Environmental Quality (TCEQ) to develop rules regarding the installation and maintenance of rainwater harvesting systems that are used for indoor potable purposes and are connected to a public water supply system; (2) requires the owner of the system to obtain consent from the city before connecting the system to the public water supply system; (3) provides that a city may not be held liable for any adverse health effects allegedly caused by the consumption of water collected by a rainwater harvesting system and is used for drinking purposes if the city is in compliance with state standards for drinking water sanitation; (4) encourages a city to promote rainwater harvesting through incentives such as the provision at a discount of rain barrels or rebates for water storage facilities; (5) requires the Texas Water Development Board (TWDB) to ensure that training on rainwater harvesting is available for city permitting staff, and require each member of the permitting staff of a city located wholly or partly in an area designated as a priority groundwater management area or any city with a population of more than 100,000 to receive mandatory training on rainwater harvesting at least once every five years; and (6) prohibits a city from denying a building permit solely because the facility will implement rainwater harvesting (but authorizes a city to require that such a system comply with minimum state standards). (Effective September 1, 2011.)
S.B. 181 (Shapiro/Laubenberg) – Water Conservation: requires that: (1) the Texas Water Development Board (TWDB) and the Texas Commission on Environmental Quality (TCEQ) to develop a uniform, consistent methodology and guidance for calculating water use and conservation to be used by a city in developing water conservation plans and preparing certain reports required by state law; (2) the methodology and guidance include: (a) a method of calculating total water use, including water billed and nonrevenue water used, (b) a method of calculating water use for each sector of water users, (c) a method of calculating total water use by a city in gallons per capita per day, (d) a method of classifying water users within sectors, (e) a method of calculating water use in the residential sector that includes both single-family and multifamily residences, in gallons per capita per day, (f) a method of calculating water use in the industrial, agricultural, commercial, and institutional sectors that is not dependent on a city’s population, and (g) guidelines on the use of service populations by a city in developing a per-capita-based method of calculation, including guidance on the use of permanent and temporary populations in making calculations; (3) the TWDB and TCEQ use the methodology and guidance developed in evaluating a water conservation plan, program of water conservation, survey, or several other types of reports required by state law; (4) the TWDB create a data collection and reporting program for cities with more than 3,300 connections; and (5) the TWDB and TCEQ adopt rules as necessary to implement the bill. (Effective immediately.)
S.B. 332 (Fraser/Ritter) – Groundwater: this is this “rule of capture” bill, which: (1) recognizes that a landowner owns the groundwater below the surface of the landowner’s land as real property; (2) outlines the rights that the landowner owns as entitling the landowner or the landowner’s lessees, heirs, or assigns, to drill for and produce the groundwater below the surface of real property without causing waste or malicious drainage of other property or negligently causing subsidence; (3) clarifies that the rights owned by a landowner to groundwater do not entitle a landowner or the landowner’s lessees, heirs, or assigns the right to capture a specific amount of groundwater below the surface of that landowner’s land; (4) provides for a groundwater conservation district’s authority to regulate groundwater through restrictions on well spacing, tract size, and other types of restrictions based on proportional share of total groundwater production in the district, and also provides for the authority of the Edwards Aquifer Authority, the Harris-Galveston Subsidence District, and the Fort Bend Subsidence District to do the same; and (5) requires a groundwater conservation district, when adopting rules limiting groundwater production, to consider a landowner’s groundwater ownership and rights and the public interest in preserving, protecting, recharging, and preventing the waste of groundwater and in controlling subsidence. (Effective September 1, 2011.)
S.B. 370 (Seliger/Ritter) – Texas Water Development Board Assistance: includes substantially the same provisions as H.B. 1732, above. (Effective immediately.)
S.B. 403 (Eltife/Murphy) – Gas Rates: provides that: (1) when establishing a gas utility’s rates, the regulatory authority (e.g., and city and/or the Texas Railroad Commission) shall allow recovery of the gas utility’s costs of pensions and other postemployment benefits – as determined by actuarial or other similar studies in accordance with generally accepted accounting principles – in amounts the regulatory authority finds reasonable and necessary; (2) a gas utility must follow detailed procedures to include the benefits in its rates; and (3) if the gas utility establishes reserve accounts for the costs of pensions and other postemployment benefits, the regulatory authority at a subsequent general rate proceeding shall determine whether the amounts are reasonable and necessary and act accordingly. (Effective immediately.)
S.B. 573 (Nichols/Creighton) – Certificates of Convenience and Necessity: provides that: (1) for most cities with a population of 500,000 or more: (a) the Texas Commission on Environmental Quality (TCEQ) may grant a CCN to a retail public utility within the city limits or the city’s extraterritorial jurisdiction (ETJ) if: (i) after 180 days have passed since a formal request for a CCN for the area was filed, the city is does not enter into a binding agreement to provide service to the area or the city has refused to provide the service applied for as evidenced by a formal vote or formal notification by the city, and the TCEQ finds that the landowner or retail public utility that submitted the formal request has not unreasonably refused to comply with the city’s service extension and development process or enter into a contract for water and sewer services with the city, or (ii) if the city refuses to provide service in the proposed service area by formal vote of the city or an official notification by the city; (b) the TCEQ must require as a term of the CCN granted within a city’s limits or ETJ that the authorized water and sewer facilities be designed and constructed in compliance with the city’s standards for such facilities; (2) for most cities, a landowner may elect to exclude some or all of his property from a city’s CCN expansion beyond its ETJ except where the ETJ expansion is due to a transfer of certificate; (3) a utility is exempt from any requirement to provide water or sewer service in the future to an area that has had land removed from its CCN due to landowner election, including a future petition for service due to the violation of law or TCEQ rules by the water or sewer system of another person; (4) a landowner may apply for expedited release from a CCN, even if the CCN holder is a borrower under a federal loan program; (5) a landowner applying for expedited CCN release must, in addition to current requirements under state law: (a) show that the request for service submitted to the certificate holder included the approximate cost for the alternative provider to provide the service at the same level and manner that is requested from the certificate holder and the flow and pressure requirements and specific infrastructure needs of the landowner, including line size and system capacity for the required level of fire protection requested; (b) that the holder of the CCN from which the landowner is requesting release is not capable of providing the at the approximate cost that the alternative provider is capable of providing for a comparable level of service; and (c) the alternate provider from which the petitioner will be requesting service possesses the financial, managerial, and technical capability to provide continuous and adequate service within the timeframe, at the level, at the cost, and in the manner reasonably needed or requested by current and projected service demands in the area; (6) an additional expedited CCN release process is available to owners of land that is at least 25 acres, that is not receiving water or sewer service, and is located in a county with a population of at least one million, a county adjacent to a county with a population of at least one million, and certain other counties; (7) a utility is exempt from any requirement to provide water or sewer service in the future to an area that has had land removed from its CCN due to landowner election under the new expedited release provision in (6), above, including a future petition for service due to the violation of law or TCEQ rules by the water or sewer system of another person. (Effective September 1, 2011.)
S.B. 652 (Hegar/Bonnen) – State Agency Sunset: this is the “safety net bill” that continues certain agencies whose sunset bills did not pass this session, including: (1) the Railroad Commission (S.B 655/H.B. 3106), which is continued until September 1, 2013; and (2) the Public Utility Commission (H.B. 2134/S.B. 661), which is continued until September 1, 2013. (Effective immediately.)
S.B. 660 (Hinojosa/Ritter) – Texas Water Development Board: this is the Texas Water Development Board (TWDB) sunset bill. It, among other things, requires: (1) the attorney general to, in the event of a default on payment of a loan, failure to comply with a covenant related to a bond, or other failure to pay or comply with financial assistance requirements, and upon the request of the TWDB’s board, seek a writ of mandamus in Travis County to compel a financial assistance program recipient or the recipient’s officers, agents, and employees to cure the default and seek any other legal or equitable remedy the board and attorney general deem necessary; (2) the TWDB to develop a methodology and guidance for calculating water use and conservation, and require that the system be used in water conservation plans and certain other reports required by statute, though the rules adopted may not require a city to report data that is more detailed than the city’s billing system is capable of producing; (3) the TWDB to establish advisory committees, which include local governmental representatives, to assist the board with state geographic data issues; (4) regional water plans to be consistent with the desired future conditions adopted for the relevant aquifers located in the regional water planning area; (5) includes substantially the same the provisions of S.B. 181, above, relating to water conservation methodology; and (6) that a public comment period and public hearing requirement be implemented before any vote on proposed desired future conditions for an aquifer. (Effective September 1, 2011.)
S.B. 694 (West/Smith) – Metal Recycling: this bill, among other things: (1) adds various items to the list of regulated metals under state law, including: fire hydrants, an item with the logo of a governmental entity or utility, and wire that has been burned to remove the insulation; (2) provides that a county, city, or other political subdivision may require the record of purchase of regulated metals to contain a clear and legible thumbprint of a seller; (3) requires that a county, city, or other political subdivision that requires a metal recycling entity to report information relating to a sale of regulated material include certain provisions in its contracts and investigate certain activities in relation to those provisions; (4) prohibits owning or operating a metal recycling entity without a license or permit if a license or permit is required by a county, city, or other political subdivision, and provides for criminal and civil penalties for a violation of this prohibition; (5) exempts a person from an offense described in (4), above, if the person held a license or permit at one point during the 12-month period preceding the date of the alleged offense and the person obtains or submits an application for the appropriate license or permit not later than the 15th day after the date the person receives notice that they are operating without a license; (6) requires a county, city, or other political subdivision to provide a minimum 30-day notice followed by a public hearing prior to enacting a prohibition on the sale or use of a recyclable product; (7) authorizes the Department of Public Safety (DPS) to enter into contracts relating to the operation of a statewide electronic reporting system and database; (8) requires the department to make available on its Internet website a publicly accessible list of all registered metal recycling entities; (9) requires the department to establish an advisory committee relating to the department’s regulation of metal recycling entities and include on that committee representatives of local law enforcement agencies; (10) prohibits a metal recycling entity from paying for a purchase of regulated material in cash if the entity does not hold a certificate of registration and does not hold (if applicable) a license or permit required by a county, city, or other political subdivision, or has been prohibited by the department from paying cash; (11) prohibits a county, city, or other political subdivision from adopting or enforcing a rule, charter, or ordinance or issuing an order or imposing standards that limit the use of cash by a metal recycling entity in a manner more restrictive than provided in (10), above, unless the rule, charter, ordinance, or order was in effect on January 1, 2011; (12) authorizes a county, city, or other political subdivision to enjoin the business operations of a business owner or operator of a recycling entity if the owner or operator has not submitted an application for a certificate of registration or, if applicable, a license or permit required by a county, city, or other political subdivision; (13) allows a city or county to retain 10 percent of the money collected from a fine for a conviction of certain offenses related to metal recycling; and (14) provides that fines collected and remitted to the comptroller for violations of metal recycling laws may be used to finance certain activities of the department and to fund grants to assist local law enforcement agencies in preventing the theft of regulated metals. (Effective September 1, 2011, except as otherwise provided in the bill.)
S.B. 875 (Fraser/Hancock) – Greenhouse Gases: provides that: (1) a person who is subject to an administrative, civil, or criminal action for nuisance or trespass arising from greenhouse gas emissions has an affirmative defense to that action if the person’s actions that resulted in the alleged nuisance or trespass were authorized by a rule, permit, order, license, certificate, registration, approval, or other form of authorization issued by the Texas Commission on Environmental Quality, the federal government, or an agency of the federal government and: (a) the person was in substantial compliance with that rule, permit, order, license, certificate, registration, approval, or other authorization while the alleged nuisance or trespass was occurring; or (b) the commission, the federal government, or an agency of the federal government exercised enforcement discretion in connection with the actions that resulted in the alleged nuisance or trespass; and (2) the bill does not apply to nuisance actions solely based on a noxious odor. (Effective immediately.)
S.B. 898 (Carona/Cook) – Energy Efficiency: provides that: (1) each political subdivision shall establish a goal to reduce the electric consumption by the entity by at least five percent each state fiscal year for 10 years, beginning September 1, 2011; (2) a political subdivision that does not attain the goals in (1), above, must include in the report (required by current law) to the State Energy Conservation Office (SECO) justification that the entity has already implemented all available cost-effective measures; (3) an entity that submits a report under the bill indicating that the entity has reviewed its available options, has determined that no additional measures are cost-effective, and has already implemented all available cost-effective measures is exempt from the annual reporting requirement if a subsequent report would indicate no change in status; (4) an entity may be required to provide notice to SECO that it is exempt under (4), above; (5) a political subdivision annually shall report to SECO regarding the entity’s goal, the entity’s efforts to meet the goal, and progress the entity has made under the bill; (6) SECO must develop and make available a standardized form for reporting purposes; and (7) the Energy Systems Laboratory at Texas A&M University shall calculate, based on the evaluation and the forms submitted to SECO, the amount of energy savings and estimated reduction in pollution achieved as a result of the implementation of programs, and shall share the information with the Public Utility Commission, the United States Environmental Protection Agency, and the Electric Reliability Council of Texas to help with long-term forecasting and in estimating pollution reduction. (Effective September 1, 2011.)
S.B. 924 (Carona/Keffer) – Municipally Owned Electric Utilities/Emergency Notification: provides that: (1) beginning April 1, 2012, a municipally owned electric utility must report each year to the State Energy Conservation Office (SECO), on a standardized form developed by SECO, information regarding the combined effects of the energy efficiency activities of the utility from the previous calendar year, including the utility’s annual goals, programs enacted to achieve those goals, and any achieved energy demand or savings goals; (2) SECO shall provide the reports to the energy systems laboratory at Texas A&M University, which shall calculate the energy savings and estimated pollution reductions that resulted from the reported activities; (3) the energy systems laboratory shall share the results of the analysis with the Public Utility Commission of Texas, ERCOT, the United States Environmental Protection Agency, and the Texas Commission on Environmental Quality; (4) a public service provider, including a city, may use an emergency notification system to notify the provider’s customers, governmental entities, and other affected persons of: (a) a disaster or emergency; and (b) actions to take during a disaster or emergency; (5) an emergency notification system must use a dynamic information database for simultaneous transmission of the information; and (6) a provider may receive confidential 9-1-1 contact information to use the emergency notification system. (Portions Effective immediately, and portions effective September 1, 2011.)
S.B. 937 (Lucio/Naishtat) – Electric Service: provides that a municipally owned electric utility shall report to the governing body or the body vested with the power to manage and operate the municipally owned utility the emergency operations plan for restoring power to a nursing facility, an assisted living facility, and a facility that provides hospice services. (Effective September 1, 2011.)
S.B. 1073 (M. Jackson/T. King) – Harvested Rainwater: provides that: (1) the Texas Commission on Environmental Quality (TCEQ) shall work with the Texas Water Development Board (TWDB) to develop rules regarding the installation and maintenance of rainwater harvesting systems that are used for indoor potable purposes and connected to a public water supply system; (2) a person who installs and maintains rainwater harvesting systems that are connected to a public water supply system and are used for potable purposes must be licensed by the Texas State Board of Plumbing Examiners as a master plumber or journeyman plumber and hold an endorsement issued by the board as a water supply protection specialist; (3) harvested rainwater may be used for drinking water and other potable uses in a structure connected to a public water supply system (a system owner must notify a city utility of the connection, but is not required to obtain the consent of the city); and (4) a city may not be held liable for any adverse health effects allegedly caused by the consumption of water collected by a rainwater harvesting system and is used for drinking purposes if the city is in compliance with state standards for drinking water sanitation. (Effective September 1, 2011.)
S.B. 1087 (Carona/Hilderbran) – Cable Franchises: provides that: (1) an entity providing cable service or video service under a franchise agreement with a city is bound to that agreement until it expires or is terminated under the bill; (2) beginning September 1, 2011, a cable service provider or video service provider in a city with a population of less than 215,000 that was not allowed to or did not terminate a municipal franchise may elect to terminate not less than all unexpired franchises in cities with a population of less than 215,000 and seek a state-issued certificate of franchise authority (at the full five-percent fee) for those areas by providing written notice to the Public Utility Commission and each of those cities before January 1, 2012; (3) a cable service provider or video service provider in a city with a population of at least 215,000 may: (a) terminate a municipal franchise in that city if the cable service provider or video service provider is not the incumbent cable service provider in that city and the incumbent cable service provider received a state-issued certificate of franchise authority from the commission before September 1, 2011; or (b) enter into an agreement with any cable service provider in the city to terminate a municipal cable franchise before the expiration of the franchise, and that - to the extent that the mutually agreed on terms and conditions for early termination of the unexpired municipal cable franchise conflict with a provision of the bill or current law – the agreed on terms and conditions control; (4) a cable service provider that elects to terminate an existing municipal franchise is responsible for remitting to the affected city before the 91st day after the date the municipal franchise is terminated any accrued but unpaid franchise fees due under the terminated franchise; (5) a city may review the business records of the cable service provider or video service provider to the extent necessary to ensure compensation in accordance with the terms of a state-issued franchise, provided that the city may only review records that relate to the 48-month period preceding the date of the last franchise fee payment; (6) with regard to the one-percent fee that a provider pays to a city for public, educational, and governmental (PEG) channels: (a) the holder of a state-issued certificate of franchise authority shall include with a fee paid to a city a statement identifying the fee; and (b) a city that receives the fees shall maintain revenue from the fees in a separate account established for that purpose, may not commingle revenue from the fees with any other money, shall maintain a record of each deposit to and disbursement from the separate account, including a record of the payee and purpose of each disbursement, and may not spend revenue from the fees except directly from the separate account; (7) a city that received PEG fees before September 1, 2011, shall, on September 1, 2011, transfer any fees that have not been disbursed to a separate account as required by (6), above; (8) institutional network capacity and cable service to community public buildings, such as municipal buildings and public schools, shall continue to be provided to a city under a state-issued franchise in certain circumstances; (9) if a city did not have the maximum number of PEG access channels as of September 1, 2005, based on the city's population on that date, the cable service provider or video service provider shall furnish at the request of city: (a) up to three PEG channels for a city with a population of at least 50,000; and (b) up to two PEG channels for a municipality with a population of less than 50,000; and (10) where technically feasible, the holder of a state-issued certificate of franchise authority that is not an incumbent cable service provider and an incumbent cable service provider, including an incumbent cable service provider that holds a state-issued certificate of franchise authority, shall use reasonable efforts to interconnect their cable or video systems for the purpose of providing PEG programming. (Effective September 1, 2011.)
S.B. 1134 (Hegar/Craddick) – Oil and Gas Facilities: provides, among other things, that the Texas Railroad Commission may not adopt a new permit by rule or a new standard permit or amend an existing permit by rule or an existing standard permit relating to certain oil and gas facilities unless the commission: (1) conducts a regulatory analysis of the permit; (2) determines, based on the evaluation of credible air quality monitoring data, that the emissions limits or other emissions-related requirements of the permit are necessary to ensure that the permit protects the public’s health and physical property; (3) establishes any required emissions limits or other emissions-related requirements based on the evaluation of credible air quality monitoring data and credible air quality modeling that is not based on the worst-case scenario of emissions or other worst-case modeling scenarios unless the actual air quality monitoring data and evaluation of that data indicate that the worst-case scenario of emissions or other worst-case modeling scenarios yield modeling results that reflect the actual air quality monitoring data and evaluation; and (4) considers whether the requirements of the permit should be imposed only on facilities that are located in a particular geographic region of the state. The bill also provides an affirmative defense to enforcement for emissions events in certain circumstances. (Effective immediately.)
S.B. 1258 (Duncan/Hardcastle) – Demolition Waste: provides that: (1) the Texas Commission on Environmental Quality may issue a permit by rule to authorize a city with a population of 10,000 or less to dispose of demolition waste from certain buildings, including nuisance buildings, if the disposal occurs on land that the city owns or controls and would qualify for an arid exemption under the commission’s rules; and (2) the commission shall – in order to protect public and private property, rights-of-way, groundwater, and any other right – adopt rules to control the collection, handling, storage, processing, and disposal of demolition waste from buildings that are abandoned, found to be a nuisance, acquired by a city through bankruptcy, tax delinquency, or condemnation, and buildings that were previously-owned by a person not financially capable of paying the costs of disposal at a solid waste disposal facility. (Effective September 1, 2011.)
S.B. 1693 (Carona/Thompson) – Periodic Electric Rate Adjustments: provides that:
- the Public Utility Commission or a regulatory authority (e.g., a city), on the petition of an electric utility, may approve a tariff or rate schedule in which a nonfuel rate may be periodically adjusted upward or downward based on changes in the parts of the utility’s invested capital.
- invested capital is that categorized as distribution plant, distribution-related intangible plant, and distribution-related communication equipment and networks in accordance with commission rules adopted after consideration of the uniform system of accounts prescribed by the Federal Energy Regulatory Commission.
- a periodic rate adjustment approved under the bill may not include indirect corporate costs or capitalized operations and maintenance expenses.
- a periodic rate adjustment must: (a) be approved or denied in accordance with an expedited procedure that provides for appropriate updates of information, allows for participation by the Office of Public Utility Counsel and affected parties, and extends for not less than 60 days; (b) take into account changes in the number of an electric utility’s customers and the effects, on a weather-normalized basis, that energy consumption and energy demand have on the amount of revenue recovered through the electric utility’s base rates; (c) be consistent with the manner in which costs for invested capital were allocated to each rate class in an electric utility’s most recent base rate; (d) not diminish the ability of the commission or a regulatory authority on its own motion or on complaint by an affected person, after reasonable notice and hearing, to change the existing rates of an electric utility for a service after finding that the rates are unreasonable or in violation of law; and (e) be applied by an electric utility on a system-wide basis; and (f) be supported by the sworn statement of an appropriate employee of the electric utility that affirms certain information.
- a periodic rate adjustment approved under the bill may not be used to adjust the portion of a nonfuel rate relating to the generation of electricity.
- an electric utility may adjust the utility’s rates under the bill not more than once per year and not more than four times between comprehensive base rate proceedings.
- nothing in the bill is intended to limit: (a) the authority of the commission; (b) the jurisdiction of a city over the rates, operations, and services of an electric utility; or (c) the ability of a city to obtain reimbursement for the reasonable cost of services related to the bill.
- the commission shall adopt rules necessary to implement the bill, which must contain certain protective requirements.
- the commission shall undertake a study and conduct a report analyzing any periodic rate adjustment established under the bill for the legislature’s review by January 31, 2017, so that the legislature may properly be informed as to the need to continue the commission's authority to allow periodic rate adjustments.
- the provisions in the bill expire on January 1, 2017.