16 Tex. Admin. Code § 24.233 - Contents of Certificate of Convenience and Necessity Applications
(a)
Application. To obtain or amend a certificate of convenience and necessity
(CCN), a person, public water or sewer utility, water supply or sewer service
corporation, affected county as defined in §
24.3(4) of this
title (relating to Definitions of Terms), county, district, or municipality
must file an application for a new CCN or a CCN amendment. Applications must
contain the following materials, unless otherwise specified in the application
form:
(1) the appropriate application form
prescribed by the commission, completed as instructed and properly
executed;
(2) mapping documents as
prescribed in §
24.257 of this title (relating to
Mapping Requirements for Certificate of Convenience and Necessity
Applications);
(3) information to
demonstrate a need for service in the requested area, including:
(A) a copy of each written request for
service received, if any; and
(B) a
map showing the location of each request for service, if
any;
(4) if applicable, a
statement that the requested area overlaps with the corporate boundaries of a
district, municipality, or other public authority, including:
(A) a list of the entities that overlap with
the requested area; and
(B)
evidence to show that the applicant has received the necessary approvals
including any consents, franchises, permits, or licenses to provide retail
water or sewer utility service in the requested area from the applicable
municipality, district, or other public authority that:
(i) currently provides retail water or sewer
utility service in the requested area;
(ii) is authorized to provide retail water or
sewer service by enabling statute or order; or
(iii) has an ordinance in effect that allows
it to provide retail water or sewer service in the requested area, if
any.
(5) an
explanation from the applicant demonstrating that issuance of a new CCN or a
CCN amendment is necessary for the service, accommodation, convenience, or
safety of the public;
(6) if the
infrastructure is not already in place or if existing infrastructure needs
repairs and improvements to provide continuous and adequate service to the
requested area, a capital improvement plan, including a budget and an estimated
timeline for construction of all facilities necessary to provide full service
to the requested area, keyed to a map showing where such facilities will be
located to provide service;
(7) a
description of the sources of funding for all facilities that will be
constructed to serve the requested area, if any;
(8) disclosure of all affiliated interests as
defined by §
24.3 of this title;
(9) to the extent known, a description of
current and projected land uses, including densities;
(10) a current financial statement of the
applicant;
(11) according to the
tax roll of the central appraisal district for each county in which the
requested area is located, a list of the owners of each tract of land that is:
(A) at least 25 acres; and
(B) wholly or partially located within the
requested area;
(12) if
dual certification is being requested, a copy of the executed agreement that
allows for dual certification of the requested area. Where such an agreement is
not practicable, a statement of why dual certification is in the public
interest;
(13) if an amendment is
being requested with the consent of the existing CCN holder, a copy of the
executed agreement to amend the existing certificated service area;
(14) for an application for a new water CCN
or a CCN amendment that will require the construction of a new public drinking
water system or facilities to provide retail water utility service, a copy of:
(A) the approval letter for the plans and
specifications issued by the TCEQ for the public drinking water system or
facilities. Proof that the applicant has submitted plans and specifications for
the proposed drinking water system is sufficient for a determination of
administrative completeness. The applicant must notify the commission within
ten days upon receipt of any TCEQ disapproval letter. If the applicant receives
a TCEQ disapproval letter, the application for a new water CCN or a CCN
amendment may be subject to dismissal without prejudice. Any approval letter
for the proposed public drinking water system or facilities must be filed with
the commission before the issuance of a new CCN or a CCN amendment. Failure to
provide such approvals within a reasonable amount of time after the application
is found administratively complete may result in dismissal of the application
without prejudice. Plans and specifications are only required if the proposed
change in the existing capacity is required by TCEQ rules;
(B) other information that indicates the
applicant is in compliance with §
24.205 of this title (relating to
Adequacy of Water Utility Service) for the system; or
(C) a contract with a wholesale provider that
meets the requirements in §
24.205 of this
title;
(15) for an
application for a new sewer CCN or CCN amendment that will require the
construction of a new sewer system or new facilities to provide retail sewer
utility service, a copy of:
(A) a wastewater
permit or proof that a wastewater permit application for the additional
facility has been filed with the TCEQ. Proof that the applicant has submitted
an application for a wastewater permit is sufficient for a determination of
administrative completeness. The applicant must notify the commission within
ten days upon receipt of any TCEQ disapproval letter. If the applicant receives
a TCEQ disapproval letter, the application for a new sewer CCN or CCN amendment
may be subject to dismissal without prejudice. Any approval letter for the
permit application must be filed with the commission before the issuance of a
new CCN or a CCN amendment. Failure to provide such approvals within a
reasonable amount of time after the application is found administratively
complete may result in the dismissal of the application without prejudice.
Plans and specifications are only required if the proposed change in the
existing capacity is required by TCEQ rules.
(B) other information that indicates that the
applicant is in compliance with §
24.207 of this title (relating to
Adequacy of Sewer Service) for the facility; or
(C) a contract with a wholesale provider that
meets the requirements in §
24.207 of this title;
and
(16) any other item
or information required by the commission.
(b) If the requested area overlaps the
boundaries of a district, and the district does not intervene in the docket by
the intervention deadline after notice of the application is given, the
commission will determine that the district is consenting to the applicant's
request to provide service in the requested area.
(c) Application within the municipal
boundaries or extraterritorial jurisdiction of certain municipalities.
(1) This subsection applies only to a
municipality with a population of 500,000 or more.
(2) Except as provided by paragraphs (3) -
(7) of this subsection, the commission may not grant to a retail public utility
a CCN for a requested 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.
(3) If a municipality
has not consented under paragraph (2) of this subsection before the 180th day
after the date the municipality receives the retail public utility's
application, the commission will grant the CCN without the consent of the
municipality if the commission finds that the municipality:
(A) does not have the ability to provide
service; or
(B) has failed to make
a good faith effort to provide service on reasonable terms and
conditions.
(4) If a
municipality has not consented under this subsection 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 improvement plan required by TWC §13.244(d)(3) or a
subdivision plat, the commission may grant the new CCN or a CCN amendment
without the consent of the municipality if:
(A) the commission makes the findings
required by paragraph (3) of this subsection;
(B) the municipality has not entered into a
binding commitment to serve the requested area before the 180th day after the
date the formal request was made; and
(C) the landowner or retail public utility
that submitted the formal request has not unreasonably refused to:
(i) comply with the municipality's service
extension and development process; or
(ii) enter into a contract for retail water
or sewer utility service with the municipality.
(5) If a municipality refuses to provide
service in the requested 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 CCN to the retail public utility at
any time after the date of the formal vote or receipt of the official
notification.
(6) The commission
must include as a condition of a CCN granted under paragraph (4) or (5) of this
subsection that all water and sewer facilities be designed and constructed in
accordance with the municipality's standards for water and sewer
facilities.
(7) Paragraphs (4) -
(6) of this subsection do not apply to Cameron, Hidalgo, or Willacy Counties,
or to a county:
(A) with a population of more
than 30,000 and less than 36,000 that borders the Red River;
(B) with a population of more than 100,000
and less than 200,000 that borders a county described by subparagraph (A) of
this paragraph;
(C) with a
population of 170,000 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
(D) with a population of more
than 40,000 and less than 50,000 that contains a portion of the San Antonio
river.
(E) The commission will
maintain on its website a list of counties that are presumed to meet the
requirements of this paragraph.
(8) A commitment by a city to provide service
must, at a minimum, provide that the construction of service facilities will
begin within one year and will be substantially completed within two years
after the date the retail public utility's application was filed with the
municipality.
(9) If the commission
makes a decision under paragraph (3) of this subsection regarding the granting
of a CCN without the consent of the municipality, the municipality or the
retail public utility may appeal the decision to the appropriate state district
court.
(d) Extension
beyond extraterritorial jurisdiction.
(1)
Except as provided by paragraph (2) of this subsection, if a municipality
extends its extraterritorial jurisdiction to include an area in the
certificated service area of a retail public utility, the retail public utility
may continue and extend service in its certificated service area under the
rights granted by its CCN and this chapter.
(2) The commission may not extend a
municipality's certificated service area 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 the requested area in accordance with TWC §13.246(h). This
subsection does not apply to a sale, transfer, merger, consolidation,
acquisition, lease, or rental of a CCN as approved by the commission.
(3) Paragraph (2) of this subsection does not
apply to an extension of extraterritorial jurisdiction in Cameron, Hidalgo, or
Willacy Counties, or in a county:
(A) with a
population of more than 30,000 and less than 36,000 that borders the Red
River;
(B) with a population of
more than 100,000 and less than 200,000 that borders a county described by
subparagraph (A) of this paragraph;
(C) with a population of 170,000 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
(D) with a population of more than 40,000 and
less than 50,000 that contains a portion of the San Antonio river.
(E) The commission will maintain on its
website a list of counties that are presumed to meet the requirements of this
paragraph.
(4) To the
extent of a conflict between this subsection and TWC §13.245, TWC
§13.245 prevails.
(e) Area within municipality.
(1) If an area is within the boundaries of a
municipality, any retail public utility holding or entitled to hold a CCN under
this chapter to provide retail water and/or sewer utility service or operate
facilities in that area may continue and extend service in its certificated
service area, unless the municipality exercises its power of eminent domain to
acquire the property of the retail public utility under this subsection. Except
as provided by TWC §13.255, a municipally owned or operated utility may
not provide retail water and sewer utility service within the certificated
service area of another retail public utility without first having obtained
from the commission a CCN that includes the area to be served.
(2) This subsection may not be construed as
limiting the power of municipalities to incorporate or extend their boundaries
by annexation, or as prohibiting any municipality from levying taxes and other
special charges for the use of the streets as are authorized by Texas Tax Code
§
182.025.
(3) In addition to any other rights provided
by law, a municipality with a population of more than 500,000 may exercise the
power of eminent domain in the manner provided by Texas Property Code, chapter
21, to acquire a substandard water or sewer system if all the facilities of the
system are located entirely within the municipality's boundaries. The
municipality must pay just and adequate compensation for the property. In this
subsection, substandard water or sewer system means a system that is not in
compliance with the municipality's standards for water and wastewater service.
(A) A municipality must notify the commission
no later than seven days after filing an eminent domain lawsuit to acquire a
substandard water or sewer system and also notify the commission no later than
seven days after acquiring the system.
(B) With the notification of filing its
eminent domain lawsuit, the municipality, in its sole discretion, may either
request that the commission cancel the CCN of the acquired system or transfer
the certificate to the municipality, and the commission will take such
requested action upon notification of acquisition of the
system.
(f)
Executive corrections. The executive director may make a correction to a CCN,
at the discretion of the executive director or at the request of the CCN
holder.
(1) An executive correction may be
issued under this subsection only:
(A) to
correct a clerical or typographical error;
(B) to correct a mapping error in a CCN:
(i) to reflect the metes and bounds of the
certificated area on the map approved in a final order in a prior proceeding;
or
(ii) to correct a typographical
or grammatical error on the map approved in a final order in a prior
proceeding.
(C) to change
the name of an incorporated CCN holder on a CCN if:
(i) an amendment to the to the CCN holder's
articles of incorporation or certificate of formation is filed with the
secretary of state that only changes the name of the CCN holder; and
(ii) the CCN holder provides documentation
from the secretary of state that the amendment only changed the name of the CCN
holder.
(2)
Commission staff will open a dedicated project for processing executive
corrections under this subsection. Unless directed otherwise by commission
staff on behalf of the executive director, all filings related to executive
corrections must be made in this dedicated project.
(3) Request. A CCN holder may request the
executive director make a correction under this subsection by filing a request
for executive correction. The request must provide any information required for
the executive director to determine whether to make the requested correction,
including:
(A) a precise description of the
requested correction;
(B) an
explanation of the correction, including any applicable supporting
documentation;
(C) a justification
for making the correction by executive action rather than other available
proceedings; and
(D) for a request
to correct a mapping error under paragraph (1)(b) of this subsection:
(i) a list of any persons or entities whose
retail service may be directly affected by the correction; and
(ii) a written agreement between the CCN
holder any other retail water or sewer service provider whose service area is
directly affected by the correction.
(4) Notice. For a request to correct a
mapping error under paragraph (1)(B) of this subsection, commission staff will
review the request and provide the CCN holder with a notice document. The CCN
holder must provide the notice to any water or sewer service customers whose
retail service is directly affected by the proposed correction. After providing
notice, the CCN holder must file an affidavit specifying every person and
entity to whom notice was provided and the date the notice was
provided.
(5) Executive review. The
executive director will issue an order granting, granting in part, or denying
the requested executive correction.
(A) The
executive director has discretion to determine whether to make an executive
correction under this subsection. In evaluating whether to make an executive
correction, the executive director will consider whether the requested
correction is supported by appropriate documentation, whether it is appropriate
to bypass any proceedings that would otherwise be required to make the
requested correction, and any other factor deemed relevant by the executive
director.
(B) The executive
director must not make an executive correction to address a mapping error under
paragraph (1)(B) of this subsection unless the CCN holder:
(i) files a written agreement between the CCN
holder and any other retail water or sewer service provider whose service area
is directly affected by the correction; and
(ii) provides notice of the correction to any
water or sewer service customers whose retail service is directly affected by
the correction.
(C) The
executive director, or commission staff on behalf of the executive director,
may request any additional information from the CCN holder necessary to
determine whether to issue an executive correction under this
subsection.
(D) The executive
director's order may require commission staff or the CCN holder to take any
actions or make any additional filings necessary to appropriately update the
commission's records to accurately reflect the correction.
(E) If the executive director issues an
executive correction, commission staff must notify the CCN holder that the
correction has been made.
Notes
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