By: Fraser, Duncan S.B. No. 332
A BILL TO BE ENTITLED
AN ACT
relating to the vested ownership interest in groundwater beneath
the surface of land, the right to produce that groundwater, and the
management of groundwater in this state.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 36.001, Water Code, is amended by adding
Subdivision (6-a) to read as follows:
(6-a) "Landowner" means:
(A) an owner of a possessory interest in the
surface estate of real property;
(B) any lessee or other person to whom a person
described by Paragraph (A) has leased, granted, or conveyed either
an ownership interest in or a groundwater production right to the
groundwater below the surface of the real property, but only to the
extent of the lease, grant, or conveyance; or
(C) a successor in interest to a person described
by Paragraph (A) or (B).
SECTION 2. Subchapter A, Chapter 36, Water Code, is amended
by adding Section 36.0011 to read as follows:
Sec. 36.0011. FINDINGS. The legislature finds that the
conservation, preservation, use, and development of groundwater
resources in this state are compelling public interests vital to
public safety, welfare, and economic progress. In this chapter,
the legislature has recognized that the implementation of long-term
aquifer management strategies developed by local groundwater
conservation districts and subsidence districts to address the
diverse characteristics that distinguish the many groundwater
aquifers in this state is essential to implement Section 59,
Article XVI, Texas Constitution, and to protect the landowner's
ownership interest in the groundwater below the surface.
SECTION 3. Section 36.002, Water Code, is amended to read as
follows:
Sec. 36.002. OWNERSHIP OF GROUNDWATER. (a) The
legislature recognizes that a landowner has a vested ownership
interest in groundwater below the surface as an interest in the
landowner's real property.
(b) The vested ownership interest described by this
section:
(1) entitles the landowner to a fair chance to produce
the groundwater below the surface of real property, subject to
Subsection (d), without causing waste or malicious drainage of
other properties or negligently causing subsidence, but does not
entitle a landowner to the right to capture a specific amount of
groundwater below the surface; and
(2) does not affect the existence of common law
defenses or other defenses to liability under the rule of capture.
(c) Nothing [The ownership and rights of the owners of the
land and their lessees and assigns in groundwater are hereby
recognized, and nothing] in this code shall be construed as
depriving or divesting a landowner [the owners or their lessees and
assigns] of the ownership interest [or rights, except as those
rights may be limited or altered by rules promulgated by a
district].
(d) Nothing in this section shall be construed to:
(1) prohibit a district from promulgating a rule to
limit the exercise of the right of the landowner to produce
groundwater;
(2) prohibit a district from limiting or prohibiting
the drilling of a well by a landowner for failure or inability to
comply with minimum well spacing or tract size requirements adopted
by the district;
(3) affect the ability of a district to regulate
groundwater production as authorized under Section 36.113, 36.116,
or 36.122 or otherwise under this chapter or a special law governing
a district; or
(4) require that rules or regulations adopted by a
district must allocate to each landowner a proportionate share of
available groundwater for production from the aquifer based on the
number of acres owned by the landowner.
(e) A rule promulgated by a district may not discriminate
between owners of land that is irrigated for production and
landowners [owners of land or their lessees and assigns] whose land
that was irrigated for production is enrolled or participating in a
federal conservation program.
SECTION 4. Section 36.101, Water Code, is amended by
amending Subsection (a) and adding Subsection (a-1) to read as
follows:
(a) A district may make and enforce rules, including rules
limiting groundwater production based on tract size or the spacing
of wells, to provide for conserving, preserving, protecting, and
recharging of the groundwater or of a groundwater reservoir or its
subdivisions in order to control subsidence, prevent degradation of
water quality, or prevent waste of groundwater and to carry out the
powers and duties provided by this chapter. In adopting a rule
under this chapter, a district [During the rulemaking process the
board] shall:
(1) consider all groundwater uses and needs;
(2) [and shall] develop rules that [which] are fair
and impartial;
(3) consider the vested ownership interest described
by Section 36.002;
(4) consider the public interest in conservation,
preservation, protection, recharging, and prevention of waste of
groundwater, and of groundwater reservoirs or their subdivisions,
and in controlling subsidence caused by withdrawal of water from
those groundwater reservoirs or their subdivisions, consistent
with the objectives of Section 59, Article XVI, Texas Constitution;
(5) consider the goals developed as part of the
district's comprehensive management plan under Section 36.1071;
and
(6) [and that do] not discriminate between land that
is irrigated for production and land that was irrigated for
production and enrolled or participating in a federal conservation
program.
(a-1) Any rule of a district that discriminates between land
that is irrigated for production and land that was irrigated for
production and enrolled or participating in a federal conservation
program is void.
SECTION 5. Subsection (c), Section 36.108, Water Code, is
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;
(2) the effectiveness of the measures established by
each management plan for conserving and protecting groundwater,
[and] preventing waste, and considering the vested ownership
interest described by Section 36.002, 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.
SECTION 6. This Act takes effect September 1, 2011.