(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 panel.
    (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 review panel.
  (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