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R-89-1213 - 1/12/1989WHEREAS, with the passage of House Bill 1593 by the 69th Legislature, nineteen named river authorities and their boards of directors were made subject to limited application of the Texas Sunset Act, with a review date of September 1, 1991; and WHEREAS, at this time the nineteen agencies are to be reviewed but are not subject to abolishment; however, the boards of directors are subject to review and abolishment unless continued in office under the Act; and WHEREAS, the Sunset legislation allows the management of river authorities to be removed from local boards of directors and transferred to the State Water Commission; and WHEREAS, this process violates both State and Federal constitutional provisions, is unnecessarily expensive to the local area, time consuming, potentially disruptive, and damaging to the public interest, as more fully described in an "Outline of Sunset Act and the Problems Created by Sunset for the Brazos River Authority ", attached hereto and made a part hereof for all purposes as Exhibit "A "; and WHEREAS, the City Council of Round Rock, Texas, has considered the matter and deems that the public interest will be best served by repeal of the Sunset provisions as they apply to the river authorities of Texas; BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the City of Round Rock, Texas, acting by and through its City Council, hereby supports repeal of the 1985 special Sunset legislation applying to river authorities and their boards of directors. RESOLVED this 12th day of January, 1989. ATTEST: '4/ JI Ji LAND, City Secretary C37RESREPEAL RESOLUTION NO. / ,U ,€ MIKE ROBINSON, Mayor City of Round Rock, Texas November 21, 1988 Mayor Mike Robinson 221 East Main Street Round Rock, Texas 78664 Dear Mayor: Enclosed is a copy of a resolution posted by the City of Temple supporting the repeal of the 1985 Special Sunset. legislation applying to River Authorities and their boards. I would appreciate your consideration of a similar resolution. As a city we are dependent on a close working relationship with the Brazos River Authority for our water supply. Under the current Sunset provision the board of all river authorities will be reviewed and abolished September 1, 1991 unless specifically retained by an act of the legislature. If the board is abolished there will be uncertainty for customers such as Round Rock, as to how B.R.A. projects can be legally funded, built and operated. The enclosures 1 am sending you should offer additional information as to the importance of amending the 1985 legislation in the upcoming legislature. I will be glad to have members of the Brazos River Authority staff attend a council meeting to provide support and testimony if you would consider the passage of a resolution supporting the amendment to the Sunset legislation. cc: Carson Floage Enclosures JHM /sab bra /res JAMES H. MILLS 2499 LOOP 360 SOUTH, SUITE 201 AUSTIN. TEXAS 78746 512.327.5309 Ray 4 ,71881.7 y a ;.bkl * temple Hr. Carson Hoge General Manager Brazos River Authority P.G. Box 7555 Waco, TX 76710 Dear Sir: November 9, 1988 Please find the enclosed Resolution passed and approved by the City Commission of the City of Temple, Texas on November 3, 1988. This Resolution supports repeal of the 1985 Special Sunset Legislation applying to River Authorities and their boards of directors. Thank you for your attention concerning this issue. Sincerely, Cly et t Entzminger Assistant City Secretary WP4035 P.O. BOX 917 TEMPLE, TEXAS 76503 • TELEPHONE 111171 770,5531 I, Clydette Entzminger, Assistant City Secretary of the City of Temple, Texas, do hereby certify that the foregoing instrument is a true and correct copy of the Resolution passed and approved by the City Commission of the City of Temple, Texas onilrikmjrr 3,1�14g , and is on file in the office of the Assistant City secretary. h, g, I ggK Date % -, � inAci ¢nJ C1y tte Entz nger' Assistant City Secretary P.O. BOX 987 TEMPLE, TEXAS 76503 • TELEPHONE (817( 770.5631 RESOLUTION A RESOLUTION OF THE BOARD OF COMMISSIONERS OF THE CITY OF TEMPLE, TEXAS, SUPPORTING REPEAL OF 1985 SPECIAL SUNSET LEGISLATION APPLYING TO RIVER AUTHORITIES AND THEIR BOARDS OF DIRECTORS; AUTHORIZING THE CITY SECRETARY TO FORWARD A CERTI— FIED COPY OF THIS RESOLUTION TO THE STATE LEGISLATORS FOR THIS DISTRICT; DECLARING FINDINGS OF FACT; AND PROVIDING AND OPEN MEETINGS CLAUSE. WHEREAS, with the passage of House Bill 1593 by the 69th Leg- islature, nineteen named river authorities and their boards of directors were made subject to limited application of the Texas Sunset Act, with a review date of September 1, 1991; and WHEREAS, at this time the nineteen agencies are to be reviewed but are not subject to abolishment; however, the boards of directors are subject to review and abolishment unless continued in office under the Act; and WHEREAS, the Sunset legislation allows the management of river authorities to be removed from local boards of directors and trans- ferred to the State Water Commission; and WHEREAS, this process violates both State and Federal constitutional provisions, is unnecessarily duplicitative, expen- sive to the local area, time consuming, potentially disruptive, and damaging to the public interest, as more fully described in an "Outline of Sunset Act and the Problems Created by Sunset for the Brazos River Authority ", attached hereto and made a part hereof for all purposes as Exhibit "A "; and WHEREAS, the Board of Commissioners has considered the matter and deems that the public interest will be best served by repeal of the Sunset provisions as they apply to the river authorities of -1- Texas; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COMMISSIONERS OF THE CITY OF TEMPLE, TEXAS: SECTION 1: That the City of Temple, Texas, acting by and through its Board of Commissioners, hereby supports repeal of the 1985 special Sunset'leg'islation applying to river authorities and their boards of directors. SECTION 2: That the City Secretary is hereby authorized to for— ward a certified copy of this Resolution to the State Legislators for this district as a request for support in the repeal of this legislation. SECTION 3: That it is hereby officially found and determined that the meeting at which this resolution is passed was open to the public as required by law and that public notice of the time, place, and purpose of said meeting was given as required by the Open Meetings Act, Tex.Stat.Ann.Art 6252- 17(Vernon 1988). PASSED AND APPROVED this the 3rd day of November, 1988. ATTEST: 11., 111 Ate CLYIETTE ENT ING Assistant City Secretary 1081 APPROVED AS TO FORM AND CONTENT: 1 • � .,CP: TRUDI DA I L Deputy City Attorney —2— THE CITY OF TEMPLE, TEXAS (I By: W.A. PREWITT, III, Mayor 1. SUNSET ACT Exhibit "A" Page 1 OUTLINE OF SUNSET ACT AND THE PROBLEMS CREATED BY SUNSET FOR THE BRAZOS RIVER AUTHORITY a. Effective August 1977 b. Periodic review and evaluation of State agencies to improve effectiveness of government. All agency programs are evaluated. c. Specific legislation must be enacted to recreate the agency and its programs; if not, the "sun sets" on the agency and it is abolished. d. River authorities were placed under Act in 1985 by special legislation. e. The application of the Sunset Act to river authorities and Boards of Directors is as follows: (1) 19 named river authorities are subject to review beginning September 1, 1989; but may not be abolished. (2) The Boards of Directors of the named river authorities will be reviewed and abolished September 1, 1991 unless specifically retained by an act of the legislature. 2 WHY SUNSET REVIEW IS INAPPROPRIATE FOR RIVER AUTHORITIES a. Sunset Act was created to review State agencies that have a statewide function and are funded by the State Legislature; river authorities were consciously excluded in 1977; b. River authorities are not State agencies but are like the other 1,100 special purpose districts. They (1) are governmental subdivisions of the State; (2) are regional bodies of government; (3) have geographic responsibilities for water resource management; and (4) do not receive State appropriated funds; but are self- supporting through revenues received from customers they serve. c. Board of Directors Exhibit "A" Page 2 (1) By statute all authority rests with board; power to contract, finance and operate. (2) One -third appointed by Governor every two years. (3) Experienced corporate group comprised of ranchers, businessmen and professionals that represent citizens of the'regibn served. (4) Abolishment of Board leads to: (a) Loss of experienced members; (b) Unfounded suggestions of impropriety; (c) Instability in policy which impacts long -term contracts and increases costs of bonds for customers; (d) Uncertainty for the customers served; (e) Unanswered legal issues. 3. PROBLEMS CREATED BY APPLYING SUNSET TO THE BRAZOS RIVER AUTHORITY a. Inability to provide needed services because of the threat to stability and continuity. (1) The people of the Basin rely on Brazos River Authority to put together the kinds of large scale, basin -wide or regional projects necessary to provide for local water resource needs. (a) To furnish needed water supplies that cannot be obtained by any other practicable means. (b) To provide wastewater treatment and disposal that can most effectively be accomplished, and in some cases, can only effectively be accomplished, through the regionalization Brazos River Authority makes possible. (c) To accomplish water quality protection programs that require a manager that can apply experienced management and coordinate a regional effort. (2) The development of such projects has to be based upon contracts between Brazos River Authority and the project beneficiaries that involve very serious commitments on the part of all parties. r Exhibit "A" Page 3 (a) Brazos River Authority commits to furnishing the resources and providing the services. (b) The beneficiaries commit to paying the costs. (c) In connection with water supplies and wastewater treatment, the commitments on both sides are major, long -term commitments. (1)'BRA commits itself to incur long -term debt, develop projects, acquire staff and operate projects to meet the beneficiaries needs. (2) The beneficiaries commit themselves unconditionally to make payments to BRA to retire capital costs of the development whether or not BRA can deliver the contracted -for benefits, and in effect, commit themselves to reliance on BRA for an absolutely essential service. (3) The threat to continuity inherent in Sunset undermines the confidence in the continuing stability of BRA that is absolutely essential for either side to be comfortable with or willing to enter into these kinds of relationships and commitments. (4) This threat of instability and uncertainty with regard to future policies and capabilities will also seriously erode and perhaps eliminate BRA ability to finance projects to serve the people of the Basin. b. Inability to function if the BRA Board is actually sunsetted. (1) Board, by law, sets policy, approves budgets, authorizes contracts, undertakes financing and approves expenditures. (2) Within a very short period without a Board, BRA activities would all come to a halt. (3) Past experience indicates that a minimum of six months would be required to get a new Board in place, and with a possibility of more than 200 appointments having to be made, the required time could be much greater. c. Sunset represents a major cost in money and resources. (1) Two -year process involving expense for legal counsel, trips, etc. Exhibit "A" Page 4 (2) Already contacted by consultants to help prepare a self- review report that requires 26 pages of instruction. (3) Costs have to be passed on to customers. (a) Estimates of $200,000 to $400,000 per year. (b) Staff will be doing Sunset rather than serving customers. d. Sunset creates major problems and we need help to repeal the applicability of Sunset to river authorities. 1. SUNSET ACT OUTLINE OF REASONS FOR REPEAL OF, AND SUGGESTED ALTERNATIVES FOR, SUNSET REVIEW OF RIVER AUTHORITIES a. Effective August 1977 b. Periodic review and evaluation of State agencies to improve effectiveness of government. All agency programs are evaluated. c. Specific legislation must be enacted to recreate the agency and its programs; if not, the "sun sets" on the agency and it is abolished. d. River authorities were placed under Act in 1985 by special legislation. e. The application of the Sunset Act to river authorities and Boards of Directors is as follows: (1) 19 named river authorities are subject to review beginning September 1, 1989; but may not be abolished. (2) The Boards of Directors of the named river authorities will be reviewed and abolished September 1, 1991 unless specifically retained by an act of the legislature. 2. WHY SUNSET REVIEW IS INAPPROPRIATE FOR RIVER AUTHORITIES a. Sunset Act was created to review State agencies that have a statewide function and are funded by the State Legislature; river authorities were consciously excluded in 1977; b. River authorities are not State agencies but are like the other 1,100 special purpose districts. They (1) are governmental subdivisions of the State; (2) are regional bodies of government; (3) have geographic responsibilities for water resource management; and (4) do not receive State appropriated funds; but are self - supporting through revenues received from customers they serve. c. The Board of Directors provide for a direct channel of responsibility to the public served by river authorities. (1) By statute all authority rests with board; power to contract, finance and operate. Brazos River Authority October 17, 1988 (2) One -third appointed by Governor every two years. (3) Experienced corporate group comprised of ranchers, businessmen and professionals that represent citizens region served. (4) Abolishment of Board leads to: (a) Loss of experienced members; (b) Unfounded suggestions of impropriety; (c) Instability in policy which impacts long -term contrac_s and increases costs of bonds for customers; (d) Uncertainty for the customers served; (e) Unanswered legal issues. of the d. The Sunset process is not an effective means for either state coordination of water resource management or for providing oversight of the management policies and practices relating to water resources (1) There are more than 1,100 regional water agencies created under the same provisions of the Texas Constitution and with the same kinds of programs and responsibilities as river authorities, and some 6,000 governmental, corporate and individual water rights holders in the State; sunset review of nineteen river authorities addresses only a small fragment of the over -all picture. (2) Without substantial additional personnel and resources, the Sunset Commission staff cannot adequately review the total programs of even the nineteen named river authorities at less than the 12 year maximum interval allowed under the Sunset Act, and reviews at 12 year intervals will be totally ineffectual for purposes of coordination and for addressing real or perceived management of policy problems that may arise from time to time. 3. PROBLEMS CREATED BY APPLYING SUNSET TO THE BRAZOS RIVER AUTHORITY a. Inability to provide needed services because of the threat to stability and continuity. (1) The people of the Basin rely on Brazos River Authority to put together the kinds of large scale, basin -wide or regional projects necessary to provide for local water resource needs. (a) To furnish needed water supplies that cannot be obtained by any other practicable means. 2 Brazos River Authority October 17, 1988 (b) To provide wastewater treatment and disposal that can most effectively be accomplished, and in some cases, can only effectively be accomplished, through the regionalization Brazos River Authority makes possible. (c) To accomplish water quality protection programs that require experienced management to coordinate regional efforts. (2) The development'of such projects has to be based upon contracts between Brazos River Authority and the project beneficiaries that involve very serious commitments on the part of all parties. (a) Brazos River Authority commits to furnishing the resources and providing the services. (b) The beneficiaries commit to paying the costs. (c) In connection with water supplies and wastewater treatment, the commitments on both sides are major, long -term commitments. (1) BRA commits itself to incur long -term debt, develop projects, acquire staff and operate projects to meet the beneficiaries needs. (2) The beneficiaries commit themselves unconditionally to make payments to BRA to retire capital costs of the development whether or not BRA can deliver the contracted -for benefits, and in effect, commit themselves to reliance on BRA for an absolutely essential service. (3) The threat to continuity inherent in Sunset undermines the confidence in the continuing stability of BRA that is absolutely essential for either side to be comfortable with or willing to enter into these kinds of relationships and commitments. (4) This threat of instability and uncertainty with regard to future policies and capabilities will also seriously erode and perhaps eliminate BRA ability to finance projects to serve the people of the Basin. b Inability to function if the BRA Board is actually sunsetted. (1) Board, by law, sets policy, approves budgets, authorizes contracts, undertakes financing and approves expenditures. (2) Within a very short period without a Board, BRA activities would all come to a halt. 3 Brazos River Authority October 17, 1988 (3) Past experience indicates that a minimum of six months would be required to get a new Board in place, and with a possibility of more than 200 appointments having to be made, the required time could be much greater. (4) An entirely new board would require at least a year to gain the understanding necessary for it to effectively direct the activities of the Authority. c. Sunset represents a major cost in money and resources. (1) Two -year process involving expense for legal counsel, trips, etc. (2) Already contacted by consultants to help prepare a self - evaluation report that requires 26 pages of instruction. (3) (3) (3) Costs have to be passed on to customers. (a) Estimates of $200,000 to $400,000 per year for self - evaluation process alone (probably less than half of total costs). (b) Staff will be doing Sunset rather than serving customers. 4. EXISTING STATE LAWS PROVIDE OVERSIGHT OF AUTHORITIES BY: a. Requiring authorities to: (1) Comply with Open Meetings Act. (2) Comply with Open Records Act. Have annual audits and to submit copies to Texas Water Commission, State Auditor and county of location (in addition, submitted to Attorney General, Bond holders, most contract customers, and to any others showing interest) [Texas Water Code, 50.374] (4) Adopt code of ethics and procedures to assure proper conduct and adequate internal and external control of administration, fiscal affairs and policy. [Texas Water Code 50.381a] b. Providing Texas Water Commission with authority to (1) Continually supervise districts /authorities. [Texas Water Code 5.013(a)(2)] (2) Issue, enforce and cancel for cause permits for water rights and use of water. [Texas Water Code 5.013(a)(1)] Issue, enforce and cancel for cause permits for any and all activities relating to water quality. [Texas Water Code 5.013(a)(3)] 4 Brazos River Authority October 17, 1988 (4) Review, and approve or disapprove and require changes to rates charged for services relating to water resources. [Texas Water Code 12.0131 (5) Review and approve annual audits of districts and authorities. [Texas Water Code 50.375] (6) Notify State Attorney General, County or District Attorney and the governing Board of Directors of any impropriety in a district or authority's affairs and to require correction. [Texas Water Code 50.375] (7) To hold hearings, issue subpoenas and require submission of evidence and testimony on any matter it believes is needed to carry out its responsibilities. [Texas Water Code 5.102] c. Assigning responsibility to Texas Water Development Board to: (1) Prepare and maintain State's complete water management plan. [Texas Water Code 6.012(a)] (2) Participate in Texas Water Commission proceedings to assure proper attention to plan. [Texas Water Code 6.189] (3) To require water conservation and proper fiscal management when State funds are involved. [Texas Water Code 15.106 b] 5. ACCEPTABLE ALTERNATIVES TO REPLACE THE EXISTING FRAGMENTARY USE OF SUNSET TO ACCOMPLISH OVERSIGHT AND COORDINATION: a. If additional oversight is considered necessary: (1) Amend Section 12.081 of the Water Code to extend supervision by the Texas Water Commission to all governmental subdivisions of the State created under Article XVI, Section 59 of the Texas Constitution. (2) Amend Section 50.381 of the Water Code to require that the Texas Water Commission and State Auditor set standards for and review for compliance the policies and procedures required to be established thereunder and to make the section applicable to all governmental subdivisions created under Article XVI, Section 59. (3) Amend Section 50.375 of the Water code to: (a) Add the Governor to the list of those to whom the Executive Director of the Texas Water Commission is required to report any impropriety discovered as a result of the reviews he is responsible for making under Section 50.375. (b) Provide for the Governor to remove and replace any director of any covered subdivision found guilty, after due process, of misconduct in office. 5 Brazos River Authority October 17, 1988 b. If additional coordination is considered necessary: (1) Strengthen both the Water Development Board's responsibility for maintaining the State's water resources management plan current and its capabilities for meeting this responsibility. (2) Require the Texas Water Development Board to be a party to all proceedings, before the Texas Water Commission regarding the granting, modification or cancellation of water rights, and require the Commission to rely on the testimony of the Board as to whether action requested of or proposed by the Commission is consistent with the State's water resources management plan. (3) Prohibit any grant or modification of water rights not consistent with the State's water resources management plan. (4) Authorize the Texas Water Commission to make modifications to the State's water resources management plan that the commission finds to be in the public interest after due process. c. To assure that the overall program continuously operates effectively and in the public interest, establish a permanent Water Resources Oversight Commission: (1) Membership: Composed of state senators, state representatives and private citizens. State senators are to be appointed by the Lt. Governor; representatives by the Speaker; and private citizens by the Governor. (2) Duties: (a) Conduct annual hearings to review and evaluate performance and effectiveness of all aspects of the management and use of the state's water resources at the state, regional, and local level by both public agencies and private interests. (b) Prepare an annual report on its findings, including as appropriate, policy and /or legislative recommendations to the Governor and the Legislature. (3) Staff: Existing staff from the Governor's Office and from the House and Senate Committees working water resource matters would be used to assist the Commission in carrying out their duties. 6 Brazos River Authority October 17, 1988 DATE: January 10, 1989 SUBJECT: Council Agenda, January 12, 1989 ITEM: 8A. Consider a resolution supporting the repeal of the 1985 Special Sunset legislation applying to River Authorities and their boards. STAFF RESOURCE PERSON: Bob Bennett STAFF RECOMMENDATION: This legislation supposed that River Authorities in the State could be sunsetted out of existance and their responsibilities. ECONOMIC IMPACT: Transferred to other State Agencies such as the Texas Water Commission. The legislation actually intended to give the State Legislature leverage over the water authorities, e.g., if the State Legislature couldn't control a River Authority, it would do away with it.