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ACT No. 955
Regular Session, 2010
HOUSE BILL NO. 1486 (Substitute for House Bill No. 926 by Representative Little)
BY REPRESENTATIVES MORRIS, ARMES, BOBBY BADON, BILLIOT, BURFORD,
HENRY BURNS, BURRELL, CARMODY, CHAMPAGNE, EDWARDS,
GISCLAIR, HARDY, HARRISON, HENDERSON, HENRY, GIROD JACKSON,
LITTLE, LORUSSO, NOWLIN, GARY SMITH, JANE SMITH, ST. GERMAIN,
TALBOT, TUCKER, WADDELL, WILLIAMS, AND WOOTON AND SENATOR
ADLEY
AN ACT1
To enact Chapter 9-B of Title 30 of the Louisiana Revised Statutes of 1950, to be comprised2
of R.S. 30:961 through 963, relative to the use of surface water; to provide for3
definitions; to provide for cooperative endeavor agreements to withdraw running4
surface water; to provide for findings and purpose; to provide for requirements for5
cooperative endeavor agreements to withdraw running surface water; to provide for6
the authority of the secretary of the Department of Natural Resources; to provide for7
legislative intent; and to provide for related matters.8
Be it enacted by the Legislature of Louisiana:9
Section 1. Chapter 9-B of Title 30 of the Louisiana Revised Statutes of 1950,10
comprised of R.S. 30:961 through 963, is hereby enacted to read as follows: 11
CHAPTER 9-B. SURFACE WATER MANAGEMENT12
§961. Cooperative endeavor agreements; withdrawal of surface water; intent13
A. As provided by this Chapter and except as otherwise provided by law, a14
person or entity may enter into a cooperative endeavor agreement to withdraw15
running surface water as described in this Chapter. The cooperative endeavor16
agreement shall prohibit the resale of withdrawn running surface water for a price17
greater than provided for in the agreement; however, a person or entity may receive18
compensation for the transportation, manufacturing, or processing of withdrawn19
running surface water. Unless otherwise provided by law, all cooperative endeavor20
agreements to withdraw running surface water, and any assignment of such21
agreement, shall be approved by the secretary as provided in this Chapter. No22
provision contained in this Chapter should be construed as a requirement for any23 ENROLLEDHB NO. 1486
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person or entity to enter into any cooperative endeavor agreement to withdraw1
running surface water. This Chapter shall have no effect on the rights provided for2
in Civil Code Articles 657 and 658 or any rights held by riparian owners in3
accordance with the laws of this state. It is also the intent of the legislature that4
should any portion of this Chapter be found to be unconstitutional that the remaining5
parts shall continue in force and effect.6
B. No agency or subdivision of the state otherwise authorized to enter into7
a cooperative endeavor agreement to withdraw running surface water, or assignment8
of such shall do so unless the said agreement is in writing, provides for fair market9
value to the state, is in the public interest, and is contained on an uniform form10
developed and prescribed by the State Mineral and Energy Board and approved by11
the attorney general. Fair market value to the state shall include, but not be limited12
to, the economic development, employment, and increased tax revenues created by13
the activities associated with the withdrawal of running surface water. No such14
cooperative endeavor agreement to withdraw running surface water shall be valid15
unless and until such agreement is approved by the secretary following the16
submission of an application for approval, which the secretary shall develop and17
prescribe. The secretary shall conduct the evaluation provided for in Subsection D18
of this Section and take action on the application within sixty days of the application19
being deemed complete. If the secretary denies the application, the secretary shall20
provide written reasons for the denial at the time of the denial.21
C. Unless otherwise provided by law, the secretary is authorized to enter into22
any cooperative endeavor agreement to withdraw running surface water, provided23
that any such agreement complies with the prohibition against gratuitous donation24
of state property by ensuring that the state receives fair market value for any water25
removed, and the substance of the agreement is contained within a written26
cooperative endeavor agreement as provided for in Article VII, Section 14 of the27
Constitution of Louisiana.28
D. The secretary shall evaluate each application for a cooperative endeavor29
agreement to withdraw running surface water and each such cooperative endeavor30 ENROLLEDHB NO. 1486
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that he may enter to ensure that each is in the public interest. The secretary shall1
ensure the proposed agreement is based on best management practices and sound2
science, and is consistent with the required balancing of environmental and3
ecological impacts with the economic and social benefits found in Article IX,4
Section 1 of the Constitution of Louisiana. In his evaluation, the secretary shall also5
ensure that all cooperative endeavor agreements to withdraw running surface water,6
or assignments of such, adequately consider the potential and real effects of such7
contracted activity on the sustainability of the water body and on navigation. Any8
assignment of any such cooperative endeavor agreement to withdraw running surface9
water may be approved by the secretary in the same manner as an agreement as10
provided in this Section, unless otherwise provided for by law.11
E. No cooperative endeavor agreement to withdraw running surface water,12
or an assignment of such, entered into pursuant to the provisions of this Chapter shall13
have a term which exceeds two years, however, such two-year terms may be renewed14
until December 31, 2020. A person or entity who has entered into a cooperative15
endeavor agreement to withdraw running surface waters or has obtained an16
assignment of such, may terminate such agreement effective December 31, 2012.17
In order to be effective, the person or entity seeking to terminate shall provide18
written notice by certified mail to the secretary at least thirty days prior to19
termination.20
F. The secretary may act to protect the natural resources of the state by21
reducing any withdrawal of water from the running surface waters of the state22
otherwise agreed to be withdrawn pursuant to an agreement entered into pursuant to23
this Chapter, or make other conditions, including the suspension or termination of24
such withdrawal of water when such an action is required to protect the resource and25
to maintain sustainability and environmental and ecological balance. If the secretary26
acts to reduce or suspend the volume of water agreed to be withdrawn, he shall do27
so in such a manner that the total necessary reductions are proportionally borne by28
all users of the running surface waters, subject to this Chapter, in the area for which29
a reduction is required. Prior to approval, the secretary shall ensure that each30 ENROLLEDHB NO. 1486
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contract or agreement or assignment thereof that involved the withdrawal of the1
running surface waters of the state provides for the secretary's authority, without2
liability for damages, in this regard.3
G.(1) The secretary, in deciding whether to approve or require changes in an4
application for a cooperative endeavor agreement to withdraw running surface water,5
or assignment of such, shall consider the various existing and potential users of the6
resource and shall give appropriate consideration and priority to the following users7
or uses in the following order of priority:8
(a) Human consumption by means of a public water system or a private9
water system that provides domestic potable water service.10
(b) Agricultural uses that provide sustenance to animals or irrigation to11
plants.12
(c) Any commercial purpose or other industrial or mining activity.13
(2) The secretary shall also consider the impact of any proposed contract,14
agreement, assignment, or use on resource planning. By way of illustration but not15
limitation, these would include any potential project or use that impacts:16
(a) Stream or water flow energy.17
(b) Sediment load and distribution.18
(c) Navigation.19
(d) Aquatic life.20
(e) Other vegetation or wildlife.21
(3) The management of cooperative endeavor agreements to withdraw22
running surface water shall be consistent with the comprehensive master plan for23
coastal restoration and protection as approved by the Coastal Protection and24
Restoration Authority and the legislature.25
H. Approval of an application for a cooperative endeavor agreement to26
withdraw running surface water or assignment of such pursuant to this Chapter does27
not obviate the need for other permits or authorizations required by law for any28
proposed activity.29 ENROLLEDHB NO. 1486
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§962. Definitions1
As used in this Chapter, the following words, terms, and phrases have the2
meanings ascribed to them in this Section, unless the context clearly indicates a3
different meaning:4
(1) "Running surface waters" means the running waters of the state,5
including the waters of navigable water bodies and state owned lakes.6
(2) "Secretary" means the secretary of the Department of Natural Resources,7
and his designees.8
§963. Management by the Department of Natural Resources9
A. Except as otherwise provided by law, the Department of Natural10
Resources shall be the state agency charged with managing and monitoring the11
implementation of all cooperative endeavor agreements to withdraw running surface12
water or assignments thereof. The secretary shall have the authority to designate13
where within his agency the various functions of this Chapter are to be performed,14
to issue contracts or enter into agreements with other public entities when required15
in his opinion for the efficient administration of this Chapter, and to establish any16
necessary policy or promulgate, in accordance with the provisions of the17
Administrative Procedure Act, any regulations that in his opinion are necessary for18
the efficient implementation of this Chapter.19
B. The secretary may negotiate and enter into a cooperative endeavor20
agreement to withdraw running surface water under terms which the secretary deems21
to be most advantageous to the state and which is consistent with the policies and22
regulations implemented pursuant to this Chapter.23
C. Where there exists a governmental entity to manage, preserve, conserve,24
and protect running surface water that lacks the authority to enter into cooperative25
endeavor agreements to withdraw running surface water, such entities may provide,26
by resolution, their recommendations to the secretary of any requested terms of such27
contracts or agreements entered into by the secretary.28
Section 2. It is the express intention of the Legislature of Louisiana that nothing29
contained herein be interpreted as codifying, confirming, or ratifying; or overruling,30 ENROLLEDHB NO. 1486
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nullifying, or rejecting the statements of law contained in the Memorandum to All State1
Surface Water Managers from the State Of Louisiana, Office of the Attorney General, and2
the secretary of the Department of Natural Resources dated February 5, 2010, and also in3
Attorney General opinions, 08-0176, 09-0028, 09-0066 and 09-0291. But rather, the intent4
of the legislature with this enactment is to provide needed interim stewardship of running5
surface water, as detailed in HCR No.1 of the 2010 Regular Session of the Legislature. That6
resolution requests from the Ground Water Resources Commission, a report to the7
legislature by March 1, 2012, with recommendations for changes necessary for optimal,8
comprehensive, integrated surface and ground water management policy, so that a thorough,9
deliberate, public, legislative evaluation of the issues and concerns may be had before a10
permanent state policy is established. The legislature finds that, pending this legislative11
process, it is necessary to immediately provide for an appropriate level of management and12
availability of the state's surface water resources in the interim period, and to provide for an13
optimal level of protection and use of all the natural resources of the state. In this regard,14
the express intention of the legislature is that the provisions of Chapter 9-B of Title 30 of the15
Louisiana Revised Statutes of 1950, comprised of R.S. 30:961 through 963, shall be null,16
void, and without effect after December 31, 2012.17
Section 3. This Act shall become effective upon signature by the governor or, if not18
signed by the governor, upon expiration of the time for bills to become law without signature19
by the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If20
vetoed by the governor and subsequently approved by the legislature, this Act shall become21
effective on the day following such approval.22
SPEAKER OF THE HOUSE OF REPRESENTATI VES
PRESIDENT OF THE SENATE
GOVERNOR OF THE STATE OF LOUISIANA
APPROVED: