By: Miller of Comal H.B. No. 1279
A BILL TO BE ENTITLED
AN ACT
relating to the administration, powers, duties, and operation of
the Edwards Aquifer Authority.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter A, Chapter 36, Water Code, is amended
by adding Section 36.003 to read as follows:
36.003. EDWARDS AQUIFER AUTHORITY
This chapter does not apply to the Edwards Aquifer Authority.
SECTION 2. Subsection (l) Section 36.101, Subsection (e),
Section 36.1011, Subsection (e)(1), Section 36.205, and Section
36.419, Water Code, are repealed.
SECTION 3. Section 1.03, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended by amending
Subsections (6), (9), (10), (20), (21), and (25) and adding
Subsection (28) to read as follows:
(6) "Commission" means the Texas Natural Resource
Conservation Commission on Environmental Quality.
(9) "Domestic or livestock use" means use of water for:
(A) drinking, washing, or culinary purposes;
(B) irrigation of a family garden or orchard the
produce of which is for household consumption only; or
(C) watering of animals the watering of residential
landscape of not to exceed one-half (1/2) acre of land, or any other
purpose incidental to and associated with domestic activities, so
long as the primary purpose of the well is for the purposes in
Subsection (A) of this subsection.
(10) "Existing user" means a person who has withdrawn and
beneficially used underground water goundwater from the aquifer on
or before June 1, 1993.
(20) "Underground water Groundwater" has the meaning
assigned by Section 52.001, Water Code means water percolating
below the surface of the earth.
(21) "Waste" means:
(A) withdrawal of underground water groundwater from
the aquifer at a rate and in an amount that causes or threatens to
cause intrusion into the reservoir of water unsuitable for
agricultural, gardening, domestic, or stock raising purposes;
(B) the flowing or producing of wells from the aquifer
if the water produced is not used for a beneficial purpose;
(C) escape of underground water groundwater from the
aquifer to any other reservoir that does not contain underground
water groundwater;
(D) pollution or harmful alteration of underground
water groundwater in the aquifer by salt water or other deleterious
matter admitted from another stratum or from the surface of the
ground;
(E) willfully or negligently causing, suffering, or
permitting underground water groundwater from the aquifer to escape
into any river, creek, natural watercourse, depression, lake,
reservoir, drain, sewer, street, highway, road, or road ditch, or
onto any land other than that of the owner of the well unless such
discharge is authorized by permit, rule, or order issued by the
commission under Chapter 26, Water Code;
(F) underground water groundwater pumped from the
aquifer for irrigation that escapes as irrigation tailwater onto
land other than that of the owner of the well unless permission has
been granted by the occupant of the land receiving the discharge; or
(G) for water produced from an artesian well, "waste"
has the meaning assigned by Section 11.205, Water Code.
(25) "Withdrawal" means an act or a failure to act that
results in taking water from the aquifer by or through man-made
facilities, including pumping, withdrawing, or diverting
underground water groundwater.
(28) "Livestock use" means use of water for the watering of
livestock.
SECTION 4. Section 1.07, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended to read as follows:
SECTION 1.07. OWNERSHIP OF UNDERGROUND WATER
GROUNDWATER. The ownership and rights of the owner of the land and
the owner's lessees and assigns, including holders of recorded
liens or other security interests in the land, in underground water
groundwater and the contract rights of any person who purchases
water for the provision of potable water to the public or for the
resale of potable water to the public for any use are recognized.
However, action taken pursuant to this Act may not be construed as
depriving or divesting the owner or the owner's lessees and
assigns, including holders of recorded liens or other security
interests in the land, of these ownership rights or as impairing the
contract rights of any person who purchases water for the provision
of potable water to the public or for the resale of potable water to
the public for any use, subject to the rules adopted by the
authority. or a district exercising the powers provided by Chapter
52, Water Code. The legislature intends that just compensation be
paid if implementation of this article causes a taking of private
property or the impairment of a contract in contravention of the
Texas or federal constitution.
SECTION 5. Subsections (a) and (b), Section 1.08, Chapter
626, Acts of the 73rd Legislature, Regular Session, 1993, are
amended to read as follows:
(a) The authority has all of the powers, rights, and
privileges necessary to manage, conserve, preserve, and protect the
aquifer and to increase the recharge of, and prevent the waste or
pollution of water in, the aquifer. The authority has all of the
rights, powers, privileges, authority, functions, and duties
provided by the general law of this state, including Chapters 50 49,
and 51, and 52, Water Code, applicable to an authority created under
Article XVI, Section 59, of the Texas Constitution. This article
prevails over any provision of general law that is in conflict or
inconsistent with this article regarding the area of the
authority's jurisdiction. Chapter 36, Water Code, does not apply
to the authority.
(b) The authority's powers regarding underground water
groundwater apply only to underground water groundwater within or
withdrawn from the aquifer. This subsection is not intended to
allow the authority to regulate surface water.
SECTION 6. Subsection (d), Section 1.09, Chapter 626, Acts
of the 73rd Legislature, Regular Session, 1993, is amended to read
as follows:
(d) Sections 41.003 and Section 41.008, Election Code, do
does not apply to an election held under this article.
SECTION 7. Subsection (h), Section 1.10, Chapter 626, Acts
of the 73rd Legislature, Regular Session, 1993, is amended to read
as follows:
(h) The presiding officer of the advisory committee shall
submit a report assessing the effectiveness of the authority to the
commission and the authority by March December 31 of each
even-numbered year. The report must assess the effect on
downstream water rights of the management of the aquifer. The
authority shall consider the report in managing the authority's
affairs.
SECTION 8. Section 1.11, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended by amending
Subsections (d)(3), (d)(10), (d)(11), and (g) to read as follows:
(d) The authority may:
(3) sue and be sued in its own name in the courts of
this state in the name of the authority by and through the board;
(10) enforce Chapter 32 1901, Water Code Texas
Occupations Code, and commission rules of the Texas Department of
Licensing and Regulation adopted under that Act within the
authority's boundaries; and
(11) require to be furnished to the authority water
well drillers' logs that are required by Chapter 32 1901, Water Code
Texas Occupations Code, to be kept and furnished to the commission
Texas Department of Licensing and Regulation.
(g) The authority has the power of eminent domain. The
authority may not acquire rights to underground water groundwater
by the power of eminent domain.
SECTION 9. Section 1.13, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended to read as follows:
Any regulation of the withdrawal of water from the aquifer
must allow for credit to be given for certified reuse of the water.
For regulatory credit, the authority or a local underground water
conservation district must certify:
(1) the lawful use and reuse of aquifer water;
(2) the amount of aquifer water to be used; and
(3) the amount of aquifer withdrawals replaced by
reuse.
SECTION 10. Subsection (e) of Section 1.14, Chapter 626,
Acts of the 73rd Legislature, Regular Session, 1993, is amended to
read as follows:
(e) The authority may not allow withdrawals from the aquifer
through wells drilled after June 1, 1993, except for replacement,
test, or exempt wells exempt under Section 1.33 of this article or
to the extent that the authority approves an amendment to an initial
regular permit to authorize a change in the point of withdrawal
under that permit.
SECTION 11. Subsections (a), (b), and (d)(2) of Section
1.16, Chapter 626, Acts of the 73rd Legislature, Regular Session,
1993, are amended to read as follows:
(a) An existing user may apply for an initial regular permit
by filing a declaration of historical use of underground water
groundwater withdrawn from the aquifer during the historical period
from June 1, 1972, through May 31, 1993.
(b) An existing user's declaration of historical use must be
filed on or before March 1, 1994 December 30, 1996, on a form
prescribed by the board. An applicant for a permit must timely pay
all application fees required by the board. An owner of a well used
for irrigation must include additional documentation of the number
of acres irrigated during the historical period provided by
Subsection (a) of this section.
(d) The board shall grant an initial regular permit to an
existing user who:
(1) files a declaration and pays fees as required by
this section; and
(2) establishes by convincing evidence beneficial use
of underground water groundwater from the aquifer.
SECTION 12. Subsections (a)(2) and (d)(2), Section 1.17,
Chapter 626, Acts of the 73rd Legislature, Regular Session, 1993,
are amended to read as follows:
(a) A person who, on the effective date of this article,
owns a producing well that withdraws water from the aquifer may
continue to withdraw and beneficially use water without waste until
final action on permits by the authority, if:
(2) by March 1, 1994 December 30, 1996, the person
files a declaration of historical use on a form as required by the
authority.
(d) Interim authorization for a well under this section ends
on:
(2) March 1, 1994 December 30, 1996, if the well owner
has not filed a declaration of historical use.
SECTION 13. Act of May 30, 1993, 73rd Leg. R.S., as amended,
is amended by adding new Sections 1.21 and 1.211 to read as follows:
SECTION 1.21 CONTESTED CASE HEARINGS; REQUEST FOR REHEARING
OR FINDINGS AND CONCLUSIONS
(a) The authority, by rule, shall define under what
circumstances an application is considered contested and shall
limit participation in a hearing on a contested application to
persons who have a personal justiciable interest related to a legal
right, duty, privilege, power, or economic interest that is
affected by a permit or other application, not including persons
who have an interest common to members of the public.
(b) Except as provided in Subsection (c), an applicant or a
party in a contested hearing may file a request for rehearing not
later than the 20th day after the date of the board's decision.
(c) An applicant or a party in a contested hearing may
request written findings and conclusions not later than the 20th
day after the date of the board's decision. Upon receipt of a
timely filed written request under this subsection, the board shall
make written findings and conclusions regarding a decision of the
board on an application. The board shall provide copies of the
findings and conclusions to the person who requested them, and to
each person who provided comments or each designated party, not
later than the 35th day after the date the board received the
request. A person who receives a copy of the findings and
conclusions from the board may request a rehearing before the board
not later than the 20th day after the date the board issues the
findings and conclusions.
(d) A request for rehearing on a contested matter must be
filed in the authority's office and must state the grounds for the
request.
(e) If the board grants a request for rehearing, the board
shall schedule the rehearing not later than the 45th day after the
date the request is granted.
(f) The failure of the board to grant or deny a request for
rehearing before the 91st day after the date the request is
submitted constitutes a denial of the request.
SECTION 1.211 DECISION; WHEN FINAL
(a) A decision by the board on an application is final:
(1) if a request for rehearing is not timely filed, on
the expiration of the period for filing a request for rehearing; or
(2) if a request for rehearing is timely filed, on the
date:
(A) the board denies the request for rehearing;
or
(B) the board renders a written decision after
rehearing.
(b) A timely filed motion for rehearing is a prerequisite to
a suit against the Authority under Section 1.46 of this article
challenging the decision in a contested hearing. Such a suit may be
filed not later than the 60th day after the date on which the
decision becomes final.
SECTION 14. Subsection (b), Section 1.22, Chapter 626, Acts
of the 73rd Legislature, Regular Session, 1993, is amended to read
as follows:
(b) The authority may acquire, and hold, and transfer
permits or rights to appropriate surface water or groundwater from
sources inside or outside of the authority's boundaries. The
authority may transport and distribute surface water or groundwater
necessary for the authority to accomplish its powers and duties
authorized by this article or other applicable general law.
SECTION 15. Subsections (a) and (b), Section 1.25, Chapter
626, Acts of the 73rd Legislature, Regular Session, 1993, is
amended to read as follows:
(a) Consistent with Section 1.14 of this article, the
authority shall develop, by September 1, 1995, and implement a
comprehensive water management plan that includes conservation,
future supply, and demand management plans. The authority may not
delegate the development of the plan under Section 1.42 of this
article.
(b) The authority, in conjunction with the South Central
Texas Water Advisory Committee, the Texas Water Development Board,
and underground water groundwater conservation districts within
the authority's boundaries, shall develop a 20-year plan for
providing alternative supplies of water to the region, with
five-year goals and objectives, to be implemented by the authority
and reviewed annually by the appropriate state agencies and the
Edwards Aquifer Legislative Oversight Committee. The authority,
advisory committee, Texas Water Development Board, and districts,
in developing the plan, shall:
(1) thoroughly investigate all alternative
technologies;
(2) investigate mechanisms for providing financial
assistance for alternative supplies through the Texas Water
Development Board; and
(3) perform a cost-benefit and an environmental
analysis.
SECTION 16. Section 1.26A, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended by adding Subsection
(r) to read as follows:
(r) After the authority has received the program document
that may be in the form of a habitat conservation plan used in the
issuance of an incidental take permit as required by Section
1.26(a) of this article, the administration of the recovery
implementation program may be transferred by the steering committee
to any entity that in judgment of the steering committee is suitable
for the administration or performance of any continuing functions
that may be required of the recovery implementation program. Such
administrative transfers may include all files, records, personal
property, contracts, unobligated and unexpended funds, and staff,
including the program manager.
SECTION 17. Section 1.29, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended by amending
Subsection (f), repealing Subsection (g), and renumbering
Subsections (h) and (i) to read as follows:
(f) The authority shall impose a permit application fee not
to exceed $25. In addition to any fees set under Subsection (b) of
this section, the authority may set fees for its performance of
administrative acts, such as filing and processing applications and
registrations. Fees set by the authority may not unreasonably
exceed the costs of performing the administrative functions for
which the fee is charged.
(g) The authority may impose a registration application fee
not to exceed $10.
(h) (g) Fees assessed by the authority may not by used to
fund the cost of reducing withdrawals or retiring permits or of
judgments or claims related to withdrawals or permit retirements.
(i) (h) The authority and other stakeholders, including
state agencies, listed under Section 1.26A of this article shall
provide money as necessary to finance the activities of the
steering committee and any subcommittees appointed by the steering
committee and the program director of the recovery implementation
program under Section 1.26A of this article. The authority shall
provide, as necessary, up to $75,000 annually, adjusted for changes
in the consumer price index, to finance the South Central Texas
Water Advisory Committee's administrative expenses and programs
authorized under this article.
SECTION 18. Subsection (e), Section 1.30, Chapter 626, Acts
of the 73rd Legislature, Regular Session, 1993, is amended to read
as follows:
(e) Sections 11.028 and Section 11.033, Water Code, do does
not apply to a permit issued under this section.
SECTION 19. Subsection (b), Section 1.31, Chapter 626, Acts
of the 73rd Legislature, Regular Session, 1993, is amended to read
as follows:
(b) The authority is responsible for the costs of
purchasing, installing, and maintaining measuring devices, if
required, for an irrigation well in existence on September 1, 1993
June 28, 1996.
SECTION 20. Section 1.33, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended by amending
Subsections (a), (b), and (c) and adding Subsection (d) to read as
follows:
(a) Except as provided in Subsections (d) and (e) of this
section, A a well that is drilled, completed, or equipped so that it
is incapable of produces producing more than 25,000 gallons of
water a per day or less and is and will be used exclusively for
domestic use or livestock use is exempt from metering and
withdrawal permit requirements.
(b) A well drilled on or before June 1, 2011, that is
incapable of producing more than 1,250 gallons of water per day, or
that is metered and does not produce more than 1,250 gallons of
water per day, for any purpose of use authorized in this article is
exempt from withdrawal permit requirements. Multiple wells shall
not be used in combination with one another in a manner to satisfy a
single water use or purpose that when combined would not come within
the requirements of this subsection.
(b) (c) Exempt wells Wells exempt under Subsections (a) and
(b) of this section must register be registered with the authority.
or with an underground water conservation district in which the
well is located.
(c) (d) A well within or serving a subdivision requiring
platting meeting the requirements of Subsection (a) of this section
does not qualify for an as exempt use if the well.:
(1) serves a subdivision of land for which a plat
approval is required by Chapter 232, Local Government Code;
(2) supplies water to a public water system as that
term is defined in Chapter 290, 30 Texas Administrative Code; or
(3) is for domestic use, was drilled on or before June
1, 2011, and is on a tract of land on which a residence is located
that receives water service from a retail public utility as defined
in Section 13.002(19), Water Code.
(e) A well meeting the requirements of Subsection (a) of
this section that is drilled after June 1, 2011, is exempt from
metering and withdrawal permit requirements only if the well is on a
tract of land that is larger than 10 acres.
SECTION 21. Act of May 30, 1993, 73rd Leg. R.S., is amended
by adding new Section 1.361 to read as follows:
SECTION 1.361 ABANDONED, OPEN, UNCOVERED OR DETERIORATED
WELLS
(a) If the owner or lessee of land on which an abandoned,
open, uncovered or deteriorated well is located fails or refuses to
close, cap or plug the well in compliance with Chapter 1901,
Occupations Code, and the authority's rules, the authority or its
authorized employees, representatives, or agents may enter upon the
land and close, cap, or plug the well safely and securely.
(b) Reasonable expenses incurred by the authority in
closing, capping, or plugging a well constitute a lien on the land
on which the well is located.
(c) The lien as set forth in Subsection (b), arises and
attaches upon recordation in the deed records of the county where
the well is located of an affidavit, executed by any person
conversant with the facts, stating the following:
(1) the existence of the well;
(2) the legal description of the property on which the
well is located;
(3) the approximate location of the well on the
property;
(4) the failure or refusal of the owner or lessee,
after notification, to close or cap the well within 10 days after
the notification, or to plug the well within 180 days after
notification, as required by the authority's rules;
(5) the closing, capping, or plugging of the well by
the authority, or by an authorized agent, representative, or
employee of the authority; and
(6) the expense incurred by the authority in closing,
capping, or plugging the well.
(d) Nothing in this section shall affect the enforcement of
Subchapter A, Chapter 756, Health and Safety Code.
SECTION 22. Subsections (j), (n)(1), and (r), Section 1.37,
Chapter 626, Acts of the 73rd Legislature, Regular Session, 1993,
are amended to read as follows:
(j) Within 30 days after the date the authority's order is
final as provided by Subsection (c), Section 16, Administrative
Procedure and Texas Register Act (Article 6252 13a, Vernon's Texas
Civil Statutes) (Section 2001.144(a), Government Code), the person
shall:
(1) pay the amount of the penalty;
(2) pay the amount of the penalty and file a petition
for judicial review contesting the occurrence of the violation, the
amount of the penalty, or both the occurrence of the violation and
the amount of the penalty; or
(3) without paying the amount of the penalty, file a
petition for judicial review contesting the occurrence of the
violation, the amount of the penalty, or both the occurrence of the
violation and the amount of the penalty.
(n) Judicial review of the order of the authority:
(1) is instituted by filing a petition as provided by
Section 19, the Administrative Procedure and Texas Register Act
(Article 6252 13a, Vernon's Texas Civil Statutes) (Subchapter G,
Chapter 2001, Government Code); and
(2) is under the substantial evidence rule.
(r) All proceedings under this section are subject to the
Administrative Procedure and Texas Register Act (Article 6252 13a,
Vernon's Texas Civil Statutes (Chapter 2001, Government Code).
SECTION 23. Section 1.38, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended to read as follows:
(a) The authority may file a civil suit in a state district
court for an injunction or mandatory injunction to enforce this
article. The authority may recover reasonable attorney fees in a
suit under this section.
(b) In an enforcement action by the authority against any
person that is a governmental entity for a violation of authority
rules, the limits on the amount of fees, costs, and penalties that
the authority may impose under this section constitute a limit of
liability of the governmental entity for the violation. This
subsection shall not be construed to prohibit the recovery by the
authority of fees and costs under this article in an action against
any person that is a governmental entity.
SECTION 24. Subsection (d), Section 1.41, Chapter 626, Acts
of the 73rd Legislature, Regular Session, 1993, is amended to read
as follows:
(d) On September 1, 1993 June 28, 1996, all unobligated and
unexpended funds of the Edwards Underground Water District shall be
transferred to the authority.
SECTION 25. Subsections (a), (b), and (c), Section 1.42,
Chapter 626, Acts of the 73rd Legislature, Regular Session, 1993,
are amended to read as follows:
(a) An underground water A groundwater conservation
district other than the authority may manage and control water that
is a part of the aquifer after the effective date of this article
only as provided in this section. This article does not affect a
water reclamation or conservation district that manages and
controls only water from a resource other than the aquifer.
(b) An underground water A groundwater conservation
district other than the authority may manage and control water that
is a part of the aquifer to the extent that those management
activities do not conflict with and are not duplicative of this
article or the rules and orders of the authority.
(c) Except as otherwise provided by this article, the board
may delegate the powers and duties granted to it under this article.
The board shall delegate all or part of its powers or duties to an
underground water a groundwater conservation district on the
district's request if the district demonstrates to the satisfaction
of the board that:
(1) the district has statutory powers necessary for
full enforcement of the rules and orders to be delegated;
(2) the district has implemented all rules and
policies necessary to fully implement the programs to be delegated;
and
(3) the district has implemented a system designed to
provide the authority with adequate information with which to
monitor the adequacy of the district's performance in enforcing
board rules and orders.
SECTION 26. Section 1.43, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended to read as follows:
SECTION 1.43. CREATION OF UNDERGROUND WATER GROUNDWATER
CONSERVATION DISTRICT. An underground water A groundwater
conservation district may be created in any county affected by this
article as provided by Subchapter B, Chapter 52 36, Water Code.
SECTION 27. Act of May 30, 1993, 73rd Leg. R.S., as amended,
is amended by adding new Section 1.46 to read as follows:
SECTION 1.46 SUITS
(a) A person, firm, corporation, or association of persons
affected by and dissatisfied with any provision or with any rule or
order made by the authority is entitled to file a suit against the
authority or its directors to challenge the validity of the law,
rule, or order. The suit shall be filed in a court of competent
jurisdiction in any county in which the authority is located. The
suit may only by filed after all administrative appeals to the
authority are final. The burden of proof is on the petitioner, and
the challenged law, rule, order, or act shall be deemed prima facie
valid. The review on appeal is governed by either Section 2001.038
or Section 2001.174, Government Code, as appropriate.
(b) If the authority prevails in any suit to enforce this
article or its rules, or in any suit other than a suit in which it
voluntarily intervenes, the authority may seek and the court shall
grant, in the same action, recovery for attorney's fees, costs for
expert witnesses, and other costs incurred by the authority before
the court. The court shall set the amount of the attorney's fees.
SECTION 28. Section 3.02, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended to read as follows:
The Texas Natural Resource Conservation Commission
commission shall notify the Edwards Aquifer Authority of any water
available for appropriation in the Guadalupe-Blanco River Basin as
the commission discovers the available water.
SECTION 29. Section 4.02, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended to read as follows:
This Act takes effect September 1, 1993 June 28, 1996, except
Section 1.35 of Article 1 takes effect March 1, 1994 December 30,
1996.
SECTION 30. FINDINGS RELATED TO PROCEDURAL REQUIREMENTS.
(a) The proper and legal notice of the intention to
introduce this Act, setting forth the general substance of this
Act, has been published as provided by law, and the notice and a
copy of this Act have been furnished to all persons, agencies,
officials, or entities to which they are required to be furnished by
the constitution and other laws of this state, including the
governor, who has submitted the notice and Act to the Texas
Commission on Environmental Quality.
(b) The Texas Commission on Environmental Quality has filed
its recommendations relating to this Act with the governor,
lieutenant governor, and speaker of the house of representatives
within the required time.
(c) All requirements of the constitution and laws of this
state and the rules and procedures of the legislature with respect
to the notice, introduction, and passage of this Act are fulfilled
and accomplished.
SECTION 31. EFFECTIVE DATES. 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, 2011.