By: Hegar S.B. No. 1714
(In the Senate - Filed March 10, 2009; March 20, 2009, read
first time and referred to Committee on Natural Resources;
April 30, 2009, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 10, Nays 0; April 30, 2009,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 1714 By: Hegar
A BILL TO BE ENTITLED
AN ACT
relating to evidence of beneficial use and other matters in
connection with the issuance of permits by a groundwater
conservation district in accordance with its management plan.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 36.001, Water Code, is amended by adding
Subdivision (28-a) to read as follows:
(28-a) "Evidence of beneficial use" means evidence
that is material and relevant to a determination of the amount of
groundwater that is reasonable for a beneficial use without waste
proposed by a permit applicant consistent with generally accepted
agriculture or industry standards for the proposed type of use and
does not exclude innovations in agriculture or industry practices.
Evidence of beneficial use that satisfies the requirements of
Subdivision (9)(C) includes evidence that may be in the form of a:
(A) statutory requirement applicable to an
applicant who is a supplier of water to the public to provide
continuous and adequate water service consistent with the state
water plan; or
(B) contractual obligation applicable to the
applicant for the use of the water based on a demonstrated need for
the water by an end user.
SECTION 2. Subsection (a), Section 36.1071, Water Code, is
amended to read as follows:
(a) Following notice and hearing, the district shall, in
coordination with surface water management entities on a regional
basis, develop a comprehensive management plan which addresses the
following management goals, as applicable:
(1) providing the most efficient use of groundwater;
(2) controlling and preventing waste of groundwater;
(3) controlling and preventing subsidence;
(4) addressing conjunctive surface water management
issues;
(5) addressing natural resource issues;
(6) addressing drought conditions;
(7) addressing conservation, recharge enhancement,
rainwater harvesting, precipitation enhancement, or brush control,
where appropriate and cost-effective; [and]
(8) addressing in a quantitative manner the desired
future conditions of the groundwater resources; and
(9) addressing the ability of the district's
groundwater resources to meet the future water supply needs of the
district and this state as established in the adopted state water
plan, including any water management strategy dependent on use of
the district's groundwater resources.
SECTION 3. Subsection (g), Section 36.1072, Water Code, is
amended to read as follows:
(g) In this subsection, "development board" means the Texas
Water Development Board. A person with a legally defined interest
in groundwater in a district or in the management area in which a
district is located or a [the] regional water planning group
dependent on a district's groundwater resources to meet a water
management strategy identified in the adopted state water plan may
file a petition with the development board stating that a conflict
requiring resolution may exist between the district's approved
management plan developed under Section 36.1071 and the state water
plan. If a conflict exists, the development board shall provide
technical assistance to and facilitate coordination between the
involved person or regional water planning group and the district
to resolve the conflict. Not later than the 45th day after the date
the person or the regional water planning group files a petition
with the development board, if the conflict has not been resolved,
the district and the involved person or regional planning group may
mediate the conflict. The district and the involved person or
regional planning group may seek the assistance of the Center for
Public Policy Dispute Resolution at The University of Texas School
of Law or an alternative dispute resolution system established
under Chapter 152, Civil Practice and Remedies Code, in obtaining a
qualified impartial third party to mediate the conflict. The cost
of the mediation services must be specified in the agreement
between the parties and the Center for Public Policy Dispute
Resolution or the alternative dispute resolution system. If the
district and the involved person or regional planning group cannot
resolve the conflict through mediation, the development board shall
resolve the conflict not later than the 60th day after the date the
mediation is completed. The development board action under this
provision may be consolidated, at the option of the board, with
related action under Section 16.053(p). If the development board
determines that resolution of the conflict requires a revision of
the approved groundwater conservation district management plan,
the development board shall provide information to the
district. The district shall prepare any revisions to the plan
based on the information provided by the development board and
shall hold, after notice, at least one public hearing at some
central location within the district. The district shall consider
all public and development board comments, prepare, revise, and
adopt its plan, and submit the revised plan to the development board
for approval. On the request of the district or the regional water
planning group, the development board shall include discussion of
the conflict and its resolution in the state water plan that the
development board provides to the governor, the lieutenant
governor, and the speaker of the house of representatives under
Section 16.051(e). If the groundwater conservation district
disagrees with the decision of the development board under this
subsection, the district may appeal the decision to a district
court in Travis County. Costs for the appeal shall be set by the
court hearing the appeal. An appeal under this subsection is by
trial de novo.
SECTION 4. Subsections (c), (f), and (l), Section 36.108,
Water Code, are amended to read as follows:
(c) The presiding officer, or the presiding officer's
designee, of each district located in whole or in part in the
management area shall meet at least annually to conduct joint
planning with the other districts in the management area and to
review the management plans and accomplishments for the management
area. In reviewing the management plans, the districts shall
consider:
(1) the goals of each management plan and its impact on
planning throughout the management area and this state as
established by the adopted state water plan;
(2) the effectiveness of the measures established by
each management plan for conserving and protecting groundwater and
preventing waste, and the effectiveness of these measures in the
management area generally;
(3) any other matters that the boards consider
relevant to the protection and conservation of groundwater and the
prevention of waste in the management area; and
(4) the degree to which each management plan achieves
the desired future conditions established during the joint planning
process.
(f) A district, regional water planning group dependent on
the groundwater resources in the groundwater management area to
meet a water management strategy identified in the adopted state
water plan, or person with a legally defined interest in the
groundwater within the management area may file a petition with the
commission requesting an inquiry if a district or districts refused
to join in the planning process or the process failed to result in
adequate planning, including the establishment of reasonable
future desired conditions of the aquifers, and the petition
provides evidence that:
(1) a district in the groundwater management area has
failed to adopt rules;
(2) the rules adopted by a district are not designed to
achieve the desired future condition of the groundwater resources
in the groundwater management area established during the joint
planning process;
(3) the groundwater in the management area is not
adequately protected by the rules adopted by a district; or
(4) the groundwater in the groundwater management area
is not adequately protected due to the failure of a district to
enforce substantial compliance with its rules.
(l) A person with a legally defined interest in the
groundwater in the groundwater management area, a district in or
adjacent to the groundwater management area, or a regional water
planning group dependent on the groundwater resources [for a
region] in the groundwater management area to meet a water
management strategy identified in the adopted state water plan may
file a petition with the development board appealing the approval
of the desired future conditions of the groundwater resources
established under this section. The petition must provide
evidence that the districts did not establish a reasonable desired
future condition of the groundwater resources in the groundwater
management area.
SECTION 5. Section 36.113, Water Code, is amended by adding
Subsection (e-1) to read as follows:
(e-1) A district may not grant a permit unless the applicant
provides evidence of beneficial use.
SECTION 6. Subchapter D, Chapter 36, Water Code, is amended
by adding Section 36.1133 to read as follows:
Sec. 36.1133. PREPRODUCTION PERMITS. (a) A district may
adopt rules to authorize the issuance of a preproduction permit to
an applicant if the applicant has met the requirements for a
production permit but is unable to provide documentation of a need
to supply water for a purpose included in an approved regional water
plan.
(b) The term of a preproduction permit issued under this
section must be five years.
(c) If, before the expiration of a preproduction permit, the
holder of the permit provides to the district that issued the permit
a copy of a water supply contract or other documentation of an
obligation to supply water for a purpose included in an approved
regional water plan, the district shall convert the preproduction
permit to a production permit for that purpose and for the amount of
production authorized by the preproduction permit.
SECTION 7. Section 36.122, Water Code, is amended by
amending Subsection (f) and adding Subsection (r) to read as
follows:
(f) In reviewing a proposed transfer of groundwater out of
the district, the district shall consider:
(1) the availability of water in the district and in
the proposed receiving area during the period for which the water
supply is requested;
(2) the projected effect of the proposed transfer on
aquifer conditions, depletion, subsidence, or effects on existing
permit holders or other groundwater users within the district; and
(3) the approved [regional water plan and certified]
district management plan.
(r) A district may not grant a permit that allows the
transfer of groundwater outside the district for municipal use
unless the municipal use is established by a contractual obligation
described by Section 36.001(28-a)(B).
SECTION 8. Subsection (e-1), Section 36.113, and Section
36.1133, Water Code, as added by this Act, and Section 36.122, Water
Code, as amended by this Act, apply only to an application for a
permit that is submitted to a groundwater conservation district on
or after the effective date of this Act. An application submitted
before the effective date of this Act is governed by the law in
effect on the date the application was submitted, and that law
continues in effect for that purpose.
SECTION 9. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2009.
* * * * *