TITLE: Relating to certificates of public convenience and necessity for water or sewer services.

SUMMARY: Relating to certificates of public convenience and necessity for water or sewer services.

FULL TEXT:
AN ACT relating to certificates of public convenience and necessity for water or sewer services. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Section 13.245, Water Code, is amended by amending Subsection (b) and adding Subsections (c-1) through (c-5) to read as follows: (b) Except as provided by Subsections [Subsection] (c),(c-1), and (c-2),the commission may not grant to a retail public utility a certificate of public convenience and necessity for a service area within the boundaries or extraterritorial jurisdiction of a municipality without the consent of the municipality. The municipality may not unreasonably withhold the consent. As a condition of the consent, a municipality may require that all water and sewer facilities be designed and constructed in accordance with the municipality's standards for facilities. (c-1) If a municipality has not consented under Subsection (b) before the 180th day after the date a landowner or a retail public utility submits to the municipality a formal request for service according to the municipality's application requirements and standards for facilities on the same or substantially similar terms as provided by the retail public utility's application to the commission, including a capital improvements plan required by Section 13.244(d)(3) or a subdivision plat, the commission may grant the certificate of public convenience and necessity without the consent of the municipality if: (1) the commission makes the findings required by Subsection (c); (2) the municipality has not entered into a binding commitment to serve the area that is the subject of the retail public utility's application to the commission before the 180th day after the date the formal request was made; and (3) the landowner or retail public utility that submitted the formal request has not unreasonably refused to: (A) comply with the municipality's service extension and development process; or (B) enter into a contract for water or sewer services with the municipality. (c-2) If a municipality refuses to provide service in the proposed service area, as evidenced by a formal vote of the municipality's governing body or an official notification from the municipality, the commission is not required to make the findings otherwise required by this section and may grant the certificate of public convenience and necessity to the retail public utility at any time after the date of the formal vote or receipt of the official notification. (c-3) The commission must include as a condition of a certificate of public convenience and necessity granted under Subsection (c-1) or (c-2) that all water and sewer facilities be designed and constructed in accordance with the municipality's standards for water and sewer facilities. (c-4) Subsections (c-1), (c-2), and (c-3) do not apply to: (1) a county that borders the United Mexican States and the Gulf of Mexico or a county adjacent to such a county; (2) a county with a population of more than 30,000 and less than 35,000 that borders the Red River; or (3) a county with a population of more than 100,000 and less than 200,000 that borders a county described by Subdivision (2). (c-5) Subsections (c-1), (c-2), and (c-3) do not apply to: (1) a county with a population of 130,000 or more that is adjacent to a county with a population of 1.5 million or more that is within 200 miles of an international border; or (2) a county with a population of more than 40,000 and less than 50,000 that contains a portion of the San Antonio River. SECTION 2. Section 13.2451, Water Code, is amended by amending Subsections (a) and (b) and adding Subsections (b-1), (b-2), and (b-3) to read as follows: (a) Except as provided by Subsection (b), if [If] a municipality extends its extraterritorial jurisdiction to include an area certificated to a retail public utility, the retail public utility may continue and extend service in its area of public convenience and necessity under the rights granted by its certificate and this chapter. (b) The commission may not extend a municipality's certificate of public convenience and necessity beyond its extraterritorial jurisdiction if an owner of land that is located wholly or partly outside the extraterritorial jurisdiction elects to exclude some or all of the landowner's property within a proposed service area in accordance with Section 13.246(h). This subsection does not apply to a transfer of a certificate as approved by the commission. [A municipality that seeks to extend a certificate of public convenience and necessity beyond the municipality's extraterritorial jurisdiction must ensure that the municipality complies with Section 13.241 in relation to the area covered by the portion of the certificate that extends beyond the municipality's extraterritorial jurisdiction.] (b-1) Subsection (b) does not apply to an extension of extraterritorial jurisdiction in a county that borders the United Mexican States and the Gulf of Mexico or a county adjacent to such a county. (b-2) Subsection (b) does not apply to an extension of extraterritorial jurisdiction in a county: (1) with a population of more than 30,000 and less than 35,000 that borders the Red River; or (2) with a population of more than 100,000 and less than 200,000 that borders a county described by Subdivision (1). (b-3) Subsection (b) does not apply to an extension of extraterritorial jurisdiction in a county: (1) with a population of 130,000 or more that is adjacent to a county with a population of 1.5 million or more that is within 200 miles of an international border; or (2) with a population of more than 40,000 and less than 50,000 that contains a portion of the San Antonio River. SECTION 3. Subsection (h), Section 13.246, Water Code, is amended to read as follows: (h) Except as provided by Subsection (i), a landowner who owns a tract of land that is at least 25 acres and that is wholly or partially located within the proposed service area may elect to exclude some or all of the landowner's property from the proposed service area by providing written notice to the commission before the 30th day after the date the landowner receives notice of a new application for a certificate of public convenience and necessity or for an amendment to an existing certificate of public convenience and necessity. The landowner's election is effective without a further hearing or other process by the commission. If a landowner makes an election under this subsection, the application shall be modified so that the electing landowner's property is not included in the proposed service area. An applicant for a certificate of public convenience and necessity that has land removed from its proposed certificated service area because of a landowner's election under this subsection may not be required to provide service to the removed land for any reason, including the violation of law or commission rules by the water or sewer system of another person. SECTION 4. Section 13.254, Water Code, is amended by amending Subsections (a), (a-1), (a-2), and (a-3) and adding Subsections (a-5) through (a-11) and (h) to read as follows: (a) The commission at any time after notice and hearing may [ on its own motion or on receipt of a petition described by Subsection (a-1)] revoke or amend any certificate of public convenience and necessity with the written consent of the certificate holder or if it finds that: (1) the certificate holder has never provided, is no longer providing, is incapable of providing, or has failed to provide continuous and adequate service in the area, or part of the area, covered by the certificate; (2) in an affected county as defined in Section 16.341, the cost of providing service by the certificate holder is so prohibitively expensive as to constitute denial of service, provided that, for commercial developments or for residential developments started after September 1, 1997, in an affected county as defined in Section 16.341, the fact that the cost of obtaining service from the currently certificated retail public utility makes the development economically unfeasible does not render such cost prohibitively expensive in the absence of other relevant factors; (3) the certificate holder has agreed in writing to allow another retail public utility to provide service within its service area, except for an interim period, without amending its certificate; or (4) the certificate holder has failed to file a cease and desist action pursuant to Section 13.252 within 180 days of the date that it became aware that another retail public utility was providing service within its service area, unless the certificate holder demonstrates good cause for its failure to file such action within the 180 days. (a-1) As an alternative to decertification under Subsection (a), the owner of a tract of land that is at least 50 acres and that is not in a platted subdivision actually receiving water or sewer service may petition the commission under this subsection for expedited release of the area from a certificate of public convenience and necessity so that the area may receive service from another retail public utility. The fact that a certificate holder is a borrower under a federal loan program is not a bar to a request under this subsection for the release of the petitioner's land and the receipt of services from an alternative provider. On the day the petitioner submits the petition to the commission, the [The] petitioner shall send [deliver],via certified mail, a copy of the petition to the certificate holder, who may submit information to the commission to controvert information submitted by the petitioner. The petitioner must demonstrate that: (1) a written request for service, other than a request for standard residential or commercial service, has been submitted to the certificate holder, identifying: (A) the area for which service is sought; (B) the timeframe within which service is needed for current and projected service demands in the area; (C) the level and manner of service needed for current and projected service demands in the area; (D) the approximate cost for the alternative provider to provide the service at the same level and manner that is requested from the certificate holder; (E) the flow and pressure requirements and specific infrastructure needs, including line size and system capacity for the required level of fire protection requested; and (F) [(D)] any additional information requested by the certificate holder that is reasonably related to determination of the capacity or cost for providing the service; (2) the certificate holder has been allowed at least 90 calendar days to review and respond to the written request and the information it contains; (3) the certificate holder: (A) has refused to provide the service; (B) is not capable of providing the service on a continuous and adequate basis within the timeframe, at the level, at the approximate cost that the alternative provider is capable of providing for a comparable level of service, or in the manner reasonably needed or requested by current and projected service demands in the area; or (C) conditions the provision of service on the payment of costs not properly allocable directly to the petitioner's service request, as determined by the commission; and (4) the alternate retail public utility from which the petitioner will be requesting service possesses the financial, managerial, and technical capability to provide [is capable of providing] 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. (a-2) A landowner is not entitled to make the election described in Subsection (a-1) or (a-5) but is entitled to contest under Subsection (a) the involuntary certification of its property in a hearing held by the commission if the landowner's property is located: (1) within the boundaries of any municipality or the extraterritorial jurisdiction of a municipality with a population of more than 500,000 and the municipality or retail public utility owned by the municipality is the holder of the certificate; or (2) in a platted subdivision actually receiving water or sewer service. (a-3) Within 60 [90] calendar days from the date the commission determines the petition filed pursuant to Subsection (a-1) to be administratively complete, the commission shall grant the petition unless the commission makes an express finding that the petitioner failed to satisfy the elements required in Subsection (a-1) and supports its finding with separate findings and conclusions for each element based solely on the information provided by the petitioner and the certificate holder. The commission may grant or deny a petition subject to terms and conditions specifically related to the service request of the petitioner and all relevant information submitted by the petitioner and the certificate holder. In addition, the commission may require an award of compensation as otherwise provided by this section. (a-5) As an alternative to decertification under Subsection (a) and expedited release under Subsection (a-1), the owner of a tract of land that is at least 25 acres and that is not receiving water or sewer service may petition for expedited release of the area from a certificate of public convenience and necessity and is entitled to that release if the landowner's property 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, or a county with a population of more than 200,000 and less than 220,000 that does not contain a public or private university that had a total enrollment in the most recent fall semester of 40,000 or more, and not in a county that has a population of more than 45,500 and less than 47,500. (a-6) The commission shall grant a petition received under Subsection (a-5) not later than the 60th day after the date the landowner files the petition. The commission may not deny a petition received under Subsection (a-5) based on the fact that a certificate holder is a borrower under a federal loan program. The commission may require an award of compensation by the petitioner to a decertified retail public utility that is the subject of a petition filed under Subsection (a-5) as otherwise provided by this section. (a-7) The utility shall include with the statement of intent provided to each landowner or ratepayer a notice of: (1) a proceeding under this section related to certification or decertification; (2) the reason or reasons for the proposed rate change; and (3) any bill payment assistance program available to low-income ratepayers. (a-8) If a certificate holder has never made service available through planning, design, construction of facilities, or contractual obligations to serve the area a petitioner seeks to have released under Subsection (a-1), the commission is not required to find that the proposed alternative provider is capable of providing better service than the certificate holder, but only that the proposed alternative provider is capable of providing the requested service. (a-9) Subsection (a-8) does not apply to a county that borders the United Mexican States and the Gulf of Mexico or a county adjacent to a county that borders the United Mexican States and the Gulf of Mexico. (a-10) Subsection (a-8) does not apply to a county: (1) with a population of more than 30,000 and less than 35,000 that borders the Red River; or (2) with a population of more than 100,000 and less than 200,000 that borders a county described by Subdivision (1). (a-11) Subsection (a-8) does not apply to a county: (1) with a population of 130,000 or more that is adjacent to a county with a population of 1.5 million or more that is within 200 miles of an international border; or (2) with a population of more than 40,000 and less than 50,000 that contains a portion of the San Antonio River. (h) A certificate holder that has land removed from its certificated service area in accordance with this section may not be required, after the land is removed, to provide service to the removed land for any reason, including the violation of law or commission rules by a water or sewer system of another person. SECTION 5. The changes made by this Act to Sections 13.245, 13.2451, 13.246, and 13.254, Water Code, apply only to: (1) a retail public utility's application for a certificate of public convenience and necessity for a service area in the extraterritorial jurisdiction of a municipality that is made on or after the effective date of this Act; (2) an extension of a municipality's certificate of public convenience and necessity for a service area in the extraterritorial jurisdiction of the municipality on or after the effective date of this Act; and (3) a petition to release an area from a certificate of public convenience and necessity that is made on or after the effective date of this Act. SECTION 6. This Act takes effect September 1, 2011.