84R4581 JXC-F
By: Schaefer H.B. No. 3172
A BILL TO BE ENTITLED
AN ACT
relating to emergency orders concerning water rights issued by the
Texas Commission on Environmental Quality.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 11.053, Water Code, is amended to read as
follows:
Sec. 11.053. EMERGENCY ORDER CONCERNING WATER RIGHTS. (a)
For the purposes of this section:
(1) "Drought" means a period classified as a "severe
drought" or "D2" by the National Drought Mitigation Center in
accordance with the center's Drought Severity Classification
scheme.
(2) "Emergency shortage of water" means a condition
under which a senior water right holder is unable to obtain surface
water when there is:
(A) an emergency period that poses a hazard to
public health or safety; or
(B) a condition affecting hydraulic systems that
impairs or interferes with conveyance or delivery of water for
authorized users.
(b) During a period of drought or when there is an [other]
emergency shortage of water, [as defined by commission rule,] the
executive director by order may, in accordance with the priority of
water rights established by Section 11.027:
(1) temporarily suspend the right of any person who
holds a water right to use the water; and
(2) temporarily adjust the diversions of water by
water rights holders.
(c) During a period of drought, the executive director may
not issue an order under this section unless the commission has
determined that each county in the basin of the river that would be
subject to the order has been in a drought for at least 30
consecutive days before the date the order is issued. If the period
of suspension or adjustment in the order is longer than six months,
the commission shall review the determination made for the order at
least once every six months to determine whether the drought in the
river basin is still severe.
(d) When there is an emergency shortage of water, the
executive director may not issue an order under this section unless
each senior water right holder that would benefit from the order
demonstrates to the executive director that the holder:
(1) has used reasonable intelligence and reasonable
diligence to conserve water;
(2) requires surface water for a beneficial use; and
(3) is unable to obtain sufficient surface water for
the beneficial use using the right.
(e)[(b)] The executive director in ordering a suspension or
adjustment under this section shall ensure that an action taken:
(1) maximizes the beneficial use of water;
(2) minimizes the impact on water rights holders;
(3) prevents the waste of water;
(4) takes into consideration the efforts of the
affected water rights holders to develop and implement the water
conservation plans and drought contingency plans required by this
chapter;
(5) to the greatest extent practicable, conforms to
the order of preferences established by Section 11.024; and
(6) does not require the release of water that, at the
time the order is issued, is lawfully stored in a reservoir under
water rights associated with that reservoir.
(f) Except as provided by Subsection (i), the executive
director shall notify the water rights holders who may be affected
by an order proposed to be issued under this section of the proposed
order not later than the 30th day before the date the proposed order
takes effect.
(g) Not later than the 14th day after the date a person
receives the notice, the person may request that the commission
hold a hearing to affirm, modify, or set aside the proposed order.
(h) If the commission receives a request under Subsection
(g), the commission shall hold a hearing on the proposed order
before the date the proposed order takes effect. At or following the
hearing, but not later than the date the proposed order takes
effect, the commission shall affirm, modify, or set aside the
proposed order.
(i) The executive director may issue an order under this
section without first providing notice or a hearing if the order is
issued to respond to a sudden and unexpected emergency. The order
shall set a time and place for a hearing before the commission to
affirm, modify, or set aside the order. The date of the hearing must
be as soon as practicable after the date the order is issued, but
not later than the 45th day after the date the order is issued. The
executive director shall provide notice of the hearing to holders
of water rights suspended by the order not later than the 10th day
before the date of the hearing.
(j)[(c)] The commission shall adopt rules to implement this
section, including rules[:
[(1) defining a drought or other emergency shortage of
water for purposes of this section; and
[(2)] specifying the:
(1)[(A)] conditions under which the executive
director may issue an order under this section;
(2)[(B)] terms of an order issued under this section,
including the maximum duration of a temporary suspension or
adjustment under this section; and
(3)[(C)] procedures for notice of and[,] an
opportunity for a hearing on[, and the appeal to the commission of]
an order issued under this section.
(k) An order suspending a water right or adjusting a
diversion by a water right holder issued under this section does not
limit the commission's authority to:
(1) grant an emergency permit, order, or amendment to
an existing permit, certified filing, or certificate of
adjudication to a water right holder under Section 11.139; or
(2) suspend a permit condition or make water available
temporarily under Section 11.148.
SECTION 2. This Act takes effect September 1, 2015.