By: Lucio III, Keffer, Hunter, H.B. No. 2031
Miller of Comal, Workman
A BILL TO BE ENTITLED
AN ACT
relating to the diversion, treatment, and use of marine seawater
and the discharge of treated marine seawater and waste resulting
from the desalination of marine seawater; adding provisions subject
to a criminal penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. (a) With this state facing an ongoing drought,
continuing population growth, and the need to remain economically
competitive, every effort must be made to secure and develop
plentiful and cost-effective water supplies to meet the
ever-increasing demand for water. The purpose of this Act is not to
hinder efforts to conserve or develop other surface water supplies
but rather to more fully explore and expedite the development of all
this state's water resources in order to balance this state's supply
and demand for water, which is one of the most precious resources of
this state.
(b) Currently, the projected long-term water needs of this
state far exceed the firm supplies that are available and that can
reasonably be made available from freshwater sources within this
state. The legislature recognizes the importance of providing for
this state's current and future water needs at all times,
including, consistent with reasonable drought contingency
measures, during severe droughts.
(c) In this state, marine seawater is a potential new source
of water for drinking and other beneficial uses. This state has
access to vast quantities of marine seawater from the Gulf of
Mexico. The purpose of this Act is to streamline the regulatory
process for and reduce the time required for and cost of marine
seawater desalination.
(d) The legislature finds that marine seawater desalination
facilities should be cost-effectively and timely developed,
concurrently with other water planning solutions, to help this
state meet its current and future water needs.
(e) The legislature finds that it is necessary and
appropriate to grant authority and provide for expedited and
streamlined authorization for marine seawater desalination
facilities, consistent with appropriate environmental and water
right protections, in order to avoid unnecessary costs, delays, and
uncertainty and thereby help justify the investment of significant
resources in the development of such facilities.
SECTION 2. Section 5.509(a), Water Code, is amended to read
as follows:
(a) The commission may issue an emergency or temporary order
relating to the discharge of waste or pollutants into or adjacent to
water in the state if:
(1) the order is necessary to enable action to be taken
more expeditiously than is otherwise provided by Chapter 18 or 26,
as applicable, to effectuate the policy and purposes of that
chapter; and
(2) the commission finds that:
(A) the discharge is unavoidable to:
(i) prevent loss of life, serious injury,
or severe property damage;
(ii) prevent severe economic loss or
ameliorate serious drought conditions, to the extent consistent
with the requirements for United States Environmental Protection
Agency authorization of a state permit program; or
(iii) make necessary and unforeseen repairs
to a facility;
(B) there is no feasible alternative to the
proposed discharge;
(C) the discharge will not cause significant
hazard to human life and health, unreasonable damage to the
property of persons other than the applicant, or unreasonable
economic loss to persons other than the applicant; and
(D) the discharge will not present a significant
hazard to the uses that will be made of the receiving water after
the discharge.
SECTION 3. Section 5.551, Water Code, is amended by adding
Subsection (a-1) to read as follows:
(a-1) Notwithstanding Section 18.002, this subchapter does
not apply to a permit issued under Section 18.005(c)(2) if the point
of discharge is not located within three miles of any point located
on the coast of this state.
SECTION 4. Section 7.302(a), Water Code, is amended to read
as follows:
(a) This section applies to a permit or exemption issued by
the commission under:
(1) Section 18.005 of this code;
(2) Chapter 26, 27, 28, or 31 of this code;
(3) [(2)] Subchapter C or R, Chapter 361, Health and
Safety Code;
(4) [(3)] Subchapter D, Chapter 366, Health and Safety
Code;
(5) [(4)] Chapter 382, Health and Safety Code; or
(6) [(5)] a rule adopted under any of those
provisions.
SECTION 5. Section 11.0237(b), Water Code, is amended to
read as follows:
(b) This section does not alter the commission's
obligations under Section 11.042(a-1), (b), or (c), 11.046(b),
11.085(k)(2)(F), 11.134(b)(3)(D), 11.147, 11.1471, 11.1491,
11.150, 11.152, 16.058, [or] 16.059, or 18.004.
SECTION 6. Section 11.082, Water Code, is amended by adding
Subsection (a-1) to read as follows:
(a-1) Notwithstanding Section 18.002, this section does not
apply to a violation of:
(1) Section 18.003 or a permit issued under that
section; or
(2) Section 18.004 or an authorization granted under
that section.
SECTION 7. Section 11.0842, Water Code, is amended by
adding Subsection (a-1) to read as follows:
(a-1) Notwithstanding Section 18.002, this section does not
apply to a violation of:
(1) Section 18.003 or a permit issued under that
section; or
(2) Section 18.004 or an authorization granted under
that section.
SECTION 8. Section 11.121, Water Code, is amended to read as
follows:
Sec. 11.121. PERMIT REQUIRED. Except as provided in
Sections 11.142, 11.1421, [and] 11.1422, and 18.003 [of this code],
no person may appropriate any state water or begin construction of
any work designed for the storage, taking, or diversion of water
without first obtaining a permit from the commission to make the
appropriation.
SECTION 9. Section 16.053(e), Water Code, is amended to
read as follows:
(e) Each regional water planning group shall submit to the
development board a regional water plan that:
(1) is consistent with the guidance principles for the
state water plan adopted by the development board under Section
16.051(d);
(2) provides information based on data provided or
approved by the development board in a format consistent with the
guidelines provided by the development board under Subsection (d);
(2-a) is consistent with the desired future conditions
adopted under Section 36.108 for the relevant aquifers located in
the regional water planning area as of the date the board most
recently adopted a state water plan under Section 16.051 or, at the
option of the regional water planning group, established subsequent
to the adoption of the most recent plan;
(3) identifies:
(A) each source of water supply in the regional
water planning area, including information supplied by the
executive administrator on the amount of modeled available
groundwater in accordance with the guidelines provided by the
development board under Subsections (d) and (f);
(B) factors specific to each source of water
supply to be considered in determining whether to initiate a
drought response;
(C) actions to be taken as part of the response;
and
(D) existing major water infrastructure
facilities that may be used for interconnections in the event of an
emergency shortage of water;
(4) has specific provisions for water management
strategies to be used during a drought of record;
(5) includes but is not limited to consideration of
the following:
(A) any existing water or drought planning
efforts addressing all or a portion of the region;
(B) approved groundwater conservation district
management plans and other plans submitted under Section 16.054;
(C) all potentially feasible water management
strategies, including but not limited to improved conservation,
reuse, and management of existing water supplies, conjunctive use,
acquisition of available existing water supplies, and development
of new water supplies;
(D) protection of existing water rights in the
region;
(E) opportunities for and the benefits of
developing regional water supply facilities or providing regional
management of water supply facilities;
(F) appropriate provision for environmental
water needs and for the effect of upstream development on the bays,
estuaries, and arms of the Gulf of Mexico and the effect of plans on
navigation;
(G) provisions in Section 11.085(k)(1) if
interbasin transfers are contemplated;
(H) voluntary transfer of water within the region
using, but not limited to, regional water banks, sales, leases,
options, subordination agreements, and financing agreements; [and]
(I) emergency transfer of water under Section
11.139, including information on the part of each permit, certified
filing, or certificate of adjudication for nonmunicipal use in the
region that may be transferred without causing unreasonable damage
to the property of the nonmunicipal water rights holder; and
(J) opportunities for and the benefits of
developing large-scale desalination facilities for marine seawater
that serve local or regional entities;
(6) identifies river and stream segments of unique
ecological value and sites of unique value for the construction of
reservoirs that the regional water planning group recommends for
protection under Section 16.051;
(7) assesses the impact of the plan on unique river and
stream segments identified in Subdivision (6) if the regional water
planning group or the legislature determines that a site of unique
ecological value exists;
(8) describes the impact of proposed water projects on
water quality; and
(9) includes information on:
(A) projected water use and conservation in the
regional water planning area; and
(B) the implementation of state and regional
water plan projects, including water conservation strategies,
necessary to meet the state's projected water demands.
SECTION 10. Subtitle C, Title 2, Water Code, is amended by
adding Chapter 18 to read as follows:
CHAPTER 18. MARINE SEAWATER DESALINATION PROJECTS
Sec. 18.001. DEFINITIONS. In this chapter:
(1) "Commission" means the Texas Commission on
Environmental Quality.
(2) "Marine seawater" means water that is derived from
the Gulf of Mexico.
(3) "Project" means:
(A) a marine seawater desalination project; or
(B) a facility for the storage, conveyance, and
delivery of desalinated marine seawater.
Sec. 18.002. RELATIONSHIP TO OTHER LAWS. (a) Except as
provided by Subsection (b) or as otherwise provided by law:
(1) Chapter 11 applies to a permit or authorization
under Section 18.003 or 18.004 in the same manner as that chapter
applies to a permit or authorization under that chapter; and
(2) Chapter 26 applies to a permit under Section
18.005 in the same manner as that chapter applies to a permit under
that chapter.
(b) In the event of a conflict between this chapter and
Chapter 11 or 26, this chapter controls.
(c) This chapter is intended to provide an alternative
procedure for obtaining an authorization to divert and use state
water that consists of marine seawater or to discharge treated
marine seawater or waste resulting from the desalination of treated
marine seawater under the circumstances provided by this chapter.
This chapter does not affect the authority of a person to:
(1) divert and use state water that consists of marine
seawater in accordance with the procedures provided by Chapter 11,
including the authority to divert marine seawater from a point of
diversion located in a bay or estuary; or
(2) discharge treated marine seawater or waste
resulting from the desalination of treated marine seawater in
accordance with the procedures provided by Chapter 26, including
the authority to discharge waste resulting from the desalination of
marine seawater into a bay or estuary.
Sec. 18.003. DIVERSIONS OF MARINE SEAWATER. (a) A person
must obtain a permit to divert and use state water that consists of
marine seawater if:
(1) the point of diversion is located less than three
miles seaward of any point located on the coast of this state; or
(2) the seawater contains a total dissolved solids
concentration based on a yearly average of samples taken monthly at
the water source of less than 20,000 milligrams per liter.
(b) A person may divert and use state water that consists of
marine seawater without obtaining a permit if Subsection (a) does
not apply.
(c) A person who diverts and uses state water that consists
of marine seawater under a permit required by Subsection (a) or as
authorized by Subsection (b) must determine the total dissolved
solids concentration of the seawater at the water source by monthly
sampling and analysis and provide the data collected to the
commission. A person may not begin construction of a facility for
the diversion of marine seawater without obtaining a permit until
the person has provided data to the commission based on the analysis
of samples taken at the water source over a period of at least one
year demonstrating that Subsection (a)(2) does not apply. A person
who has begun construction of a facility for the diversion of marine
seawater without obtaining a permit because the person has
demonstrated that Subsection (a)(2) does not apply is not required
to obtain a permit for the facility if the total dissolved solids
concentration of the seawater at the water source subsequently
changes so that Subsection (a)(2) applies.
(d) A person may use marine seawater diverted under a permit
required by Subsection (a) or as authorized by Subsection (b) for
any beneficial purpose, but only if the seawater is treated in
accordance with rules adopted by the commission before it is used.
Rules adopted under this subsection may impose different treatment
requirements based on the purpose for which the seawater is to be
used.
(e) The commission shall adopt rules providing an expedited
procedure for acting on an application for a permit required by
Subsection (a). The rules must provide for notice, an opportunity
for the submission of written comment, and an opportunity for a
contested case hearing regarding commission actions relating to an
application for a permit.
(f) A person may not divert marine seawater under a permit
required by Subsection (a) or as authorized by Subsection (b) from a
point of diversion located in a bay or estuary.
(g) An application for a permit required by Subsection (a)
must address the points from which, and the rate at which, the
facility the applicant proposes to construct will divert marine
seawater.
(h) The commission by rule shall prescribe reasonable
measures to minimize impingement and entrainment.
(i) The Parks and Wildlife Department and the General Land
Office jointly shall conduct a study to identify zones in the Gulf
of Mexico that are appropriate for the diversion of marine
seawater, taking into account the need to protect marine organisms.
Not later than September 1, 2018, the Parks and Wildlife Department
and the General Land Office shall submit a report on the results of
the study to the commission. The report must include recommended
diversion zones for designation by the commission and
recommendations for the number of points from which, and the rate at
which, a facility may divert marine seawater. Not later than
September 1, 2020, the commission by rule shall designate
appropriate diversion zones. A diversion zone may be contiguous
to, be the same as, or overlap a discharge zone. The point or points
from which a facility may divert marine seawater must be located in
a diversion zone designated by the commission under rules adopted
under this subsection if:
(1) the facility is authorized by a permit as required
by Subsection (a) issued after the rules are adopted; or
(2) the facility is exempt under Subsection (b) from
the requirement of a permit and construction of the facility begins
after the rules are adopted.
(j) Until the commission adopts rules under Subsection (i),
a person must consult the Parks and Wildlife Department and the
General Land Office regarding the point or points from which a
facility the person proposes to construct may divert marine
seawater before submitting an application for a permit for the
facility if Subsection (a) applies or before beginning construction
of the facility if Subsection (b) applies.
Sec. 18.004. BED AND BANKS AUTHORIZATION. (a) With prior
authorization granted under rules prescribed by the commission, a
person may use the bed and banks of any flowing natural stream in
this state or a lake, reservoir, or other impoundment in this state
to convey marine seawater that has been treated so as to meet
standards that are at least as stringent as the water quality
standards applicable to the receiving stream or impoundment adopted
by the commission.
(b) The commission shall provide for notice and an
opportunity for the submission of written comment but may not
provide an opportunity for a contested case hearing regarding
commission actions relating to an application for an authorization
under this section to use the bed and banks of a flowing natural
stream to convey treated marine seawater. The commission shall
provide for notice, an opportunity for the submission of written
comment, and an opportunity for a contested case hearing regarding
commission actions relating to an application for an authorization
under this section to use a lake, reservoir, or other impoundment to
convey treated marine seawater.
(c) A person may not discharge treated marine seawater into
a flowing natural stream in this state or a lake, reservoir, or
other impoundment in this state for the purpose of conveyance of the
water under an authorization granted under this section unless the
person holds a permit issued under Section 18.005 authorizing the
discharge.
(d) Treated marine seawater that is conveyed under an
authorization granted under this section may be used only by the
person to whom the authorization is granted.
(e) Section 11.042(c) applies to an authorization granted
under this section in the same manner as that subsection applies to
an authorization granted under Section 11.042.
(f) This section does not prohibit a person from conveying
treated marine seawater in any other manner authorized by law.
Sec. 18.005. DISCHARGE OF TREATED MARINE SEAWATER OR WASTE
RESULTING FROM DESALINATION OF MARINE SEAWATER. (a) In this
section, "permit," "person," "to discharge," "waste," and "water"
have the meanings assigned by Section 26.001.
(b) Section 26.011 applies to discharges governed by this
section in the same manner as that section applies to discharges
governed by Chapter 26.
(c) A person must obtain a permit to discharge:
(1) treated marine seawater into a natural stream in
this state or a lake, reservoir, or other impoundment in this state;
or
(2) waste resulting from the desalination of treated
marine seawater into the Gulf of Mexico.
(d) A person shall:
(1) treat marine seawater so as to meet standards that
are at least as stringent as the water quality standards adopted by
the commission applicable to the receiving stream or impoundment
before discharging the seawater under this section; and
(2) comply with all applicable state and federal
requirements when discharging waste resulting from the
desalination of marine seawater into the Gulf of Mexico.
(e) The commission by rule shall provide an expedited
procedure for acting on an application for a permit under this
section. The rules must provide for:
(1) notice, an opportunity for the submission of
written comment, and an opportunity to request a public meeting and
may authorize a contested case hearing regarding commission actions
relating to an application for a permit described by Subsection
(c)(1);
(2) notice, an opportunity for the submission of
written comment, an opportunity to request a public meeting, and an
opportunity for a contested case hearing regarding commission
actions relating to an application for a permit described by
Subsection (c)(2) if the point of discharge is located within three
miles of any point located on the coast of this state; and
(3) notice and an opportunity for the submission of
written comment regarding commission actions relating to an
application for a permit described by Subsection (c)(2) if
Subdivision (2) of this subsection does not apply.
(f) A person may not discharge waste resulting from the
desalination of marine seawater into a bay or estuary under a permit
issued under Subsection (c)(2).
(g) The Parks and Wildlife Department and the General Land
Office jointly shall conduct a study to identify zones in the Gulf
o
f Mexico that are appropriate for the discharge of waste resulting
from the desalination of marine seawater, taking into account the
need to protect marine organisms. Not later than September 1, 2018,
the Parks and Wildlife Department and the General Land Office shall
submit a report on the results of the study to the commission. The
report must include recommended discharge zones for designation by
the commission. Not later than September 1, 2020, the commission by
rule shall designate appropriate discharge zones. The point at
which a facility may discharge waste resulting from the
desalination of marine seawater must be located in a discharge zone
designated by the commission under rules adopted under this
subsection if the facility is authorized by a permit issued under
Subsection (c)(2) after the rules are adopted.
(h) Until the commission adopts rules under Subsection (g),
a person must consult the Parks and Wildlife Department and the
General Land Office regarding the point at which the facility the
person proposes to construct may discharge waste resulting from the
desalination of marine seawater before submitting an application
for a permit under Subsection (c)(2) for the facility.
SECTION 11. Section 26.0291(a), Water Code, is amended to
read as follows:
(a) An annual water quality fee is imposed on:
(1) each wastewater discharge permit holder,
including the holder of a permit issued under Section 18.005, for
each wastewater discharge permit held; and
(2) each user of water in proportion to the user's
water right, through permit or contract, as reflected in the
commission's records, provided that the commission by rule shall
ensure that no fee shall be assessed for the portion of a municipal
or industrial water right directly associated with a facility or
operation for which a fee is assessed under Subdivision (1) of this
subsection.
SECTION 12. Subchapter C, Chapter 341, Health and Safety
Code, is amended by adding Section 341.0316 to read as follows:
Sec. 341.0316. DESALINATION OF MARINE SEAWATER FOR DRINKING
WATER. (a) This section applies only to a desalination facility
that is intended to treat marine seawater for the purpose of
producing water for the public drinking water supply. This section
does not apply to a desalination facility used to produce
nonpotable water.
(b) The commission shall adopt rules to:
(1) allow water treated by a desalination facility to
be used as public drinking water; and
(2) ensure that water treated by a desalination
facility meets the requirements of Section 341.031 and rules
adopted under that section.
(c) A person may not begin construction of a desalination
facility that treats marine seawater for the purpose of removing
primary or secondary drinking water contaminants unless the
commission approves the construction of the facility.
SECTION 13. Section 16.060, Water Code, is repealed.
SECTION 14. 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, 2015.