By: Larson H.B. No. 836
A BILL TO BE ENTITLED
AN ACT
relating to the development of brackish groundwater.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The legislature finds that the state will
benefit from the encouragement of the use of brackish groundwater
resources to help supply the water demands of the state.
SECTION 2. Section 16.012(b), Water Code, is amended to
read as follows:
(b) The executive administrator shall:
(1) determine suitable locations for future water
facilities, including reservoir sites;
(2) determine suitable, cost-effective water supply
alternatives on a regional basis, including voluntary means of
encouraging aggressive water conservation;
(3) locate land best suited for irrigation;
(4) make estimates of the cost of proposed irrigation
works and the improvement of reservoir sites;
(5) examine and survey reservoir sites;
(6) monitor the effects of fresh water inflows upon
the bays and estuaries of Texas;
(7) monitor instream flows;
(8) lead a statewide effort, in coordination with
federal, state, and local governments, institutions of higher
education, and other interested parties, to develop a network for
collecting and disseminating water resource-related information
that is sufficient to support assessment of ambient water
conditions statewide;
(9) make recommendations for optimizing the
efficiency and effectiveness of water resource data collection and
dissemination as necessary to ensure that basic water resource data
are maintained and available for Texas; and
(10) study groundwater resources to identify areas
suitable for designation as brackish groundwater production zones;
and
(11) make basic data and summary information developed
under this subsection accessible to state agencies and other
interested persons.
SECTION 3. Section 16.012, Water Code, is amended by
amending Subsection (l) and adding Subsections (o) through (q) to
read as follows:
(l) The executive administrator shall obtain or develop
groundwater availability models for major and minor aquifers in
coordination with groundwater conservation districts and regional
water planning groups created under Section 16.053 that overlie the
aquifers. Modeling of major aquifers shall be completed not later
than October 1, 2004. On completing a groundwater availability
model for an aquifer, the executive administrator shall provide the
model to each groundwater conservation district and each regional
water planning group created under Section 16.053 overlying that
aquifer. If the executive administrator updates a groundwater
availability model, the executive administrator shall consider
expanding the groundwater availability model to adequately address
groundwater contained in designated brackish groundwater zones.
(o) The executive administrator shall obtain or develop a
series of regional maps and supporting documentation that
delineates areas of groundwater resources as follows:
(1) areas of groundwater resources with average total
dissolved solid levels greater than 3,000 milligrams per liter
that, if subjected to continuous appreciable pumping over a period
of 30 years, would not result in unreasonable negative impacts to
groundwater resources described by Section 36.501(b); and
(2) areas of groundwater resources with average total
dissolved solid levels between 1,000 and 3,000 milligrams per liter
that, if subjected to continuous appreciable pumping over a period
of 30 years, would not result in unreasonable negative impacts to
groundwater resources described by Section 36.501(b).
(p) The regional maps described under Subsection (o) shall
be developed in coordination with groundwater conservation
districts and regional water planning groups that overlie the
groundwater resources in the area. The regional maps shall be
completed not later than October 1, 2019. On completing a regional
map and its supporting documentation, the executive administrator
shall provide the map to each groundwater conservation district and
each regional water planning group in the area of the map.
(q) The executive administrator shall conduct a review and
submit findings to the 85th Texas Legislature in the board's
biennial report required by Section 6.156 regarding existing
groundwater availability models developed as required by Section
16.012(l) documenting the extent, if any, of brackish groundwater
resources included in current models and areas of significant
groundwater resources for which no groundwater availability model
currently exists.
SECTION 4. 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
designating local or regional brackish groundwater production
zones;
(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 5. Section 16.060, Water Code, is amended by
amending Subsections (a) and (b) and adding Subsection (d) to read
as follows:
(a) The board shall undertake or participate in research,
feasibility and facility planning studies, investigations, and
surveys as it considers necessary to further the development of
cost-effective water supplies from seawater or groundwater
desalination in the state.
(b) The board shall prepare a biennial progress report on
the implementation of seawater or groundwater desalination
activities in the state and shall submit it to the governor,
lieutenant governor, and speaker of the house of representatives
not later than December 1 of each even-numbered year. The report
shall include:
(1) results of the board's studies and activities
relative to seawater or groundwater desalination during the
preceding biennium;
(2) identification and evaluation of research,
regulatory, technical, and financial impediments to the
implementation of seawater or groundwater desalination projects;
(3) evaluation of the role the state should play in
furthering the development of large-scale seawater or groundwater
desalination projects in the state; and
(4) the anticipated appropriation from general
revenues necessary to continue investigating water desalination
activities in the state during the next biennium.
SECTION 6. Section 36.001, Water Code, is amended by adding
a new Subdivision (17) to read as follows:
(17) "Brackish groundwater production zone" means a
zone designated by a district or the Texas Water Development Board
in accordance with Subchapter O.
SECTION 7. Section 36.1071(a), Water Code, is amended to
read as follows:
Sec. 36.1071. MANAGEMENT PLAN. (a) Following notice and
hearing, the district shall, in coordination with surface water
management entities on a regional basis, develop a management plan
that 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
(8) promoting the development and use of groundwater
in brackish groundwater production zones; and
(9) addressing the desired future conditions adopted
by the district under Section 36.108.
SECTION 8. Section 36.108, Water Code, is amended by
amending Subsections (d), (d-1), and (d-3) to read as follows:
(d) Not later than September 1, 2010, and every five years
thereafter, the districts shall consider groundwater availability
models and other data or information for the management area and
shall propose for adoption desired future conditions for the
relevant aquifers within the management area. Before voting on the
proposed desired future conditions of the aquifers under Subsection
(d-2), the districts shall consider:
(1) aquifer uses or conditions within the management
area, including conditions that differ substantially from one
geographic area to another;
(2) the water supply needs and water management
strategies included in the state water plan;
(3) hydrological conditions, including for each
aquifer in the management area the total estimated recoverable
storage as provided by the executive administrator, and the average
annual recharge, inflows, and discharge;
(4) other environmental impacts, including impacts on
spring flow and other interactions between groundwater and surface
water;
(5) the impact on subsidence;
(6) socioeconomic impacts reasonably expected to
occur;
(7) the impact on the interests and rights in private
property, including ownership and the rights of management area
landowners and their lessees and assigns in groundwater as
recognized under Section 36.002;
(8) the impact on existing and potential brackish
groundwater production zones;
(9) the feasibility of achieving the desired future
condition; and
(10) any other information relevant to the specific
desired future conditions.
(d-1) The districts may establish different desired future
conditions for:
(1) each aquifer, subdivision of an aquifer, or
geologic strata located in whole or in part within the boundaries of
the management area; or
(2) each geographic area overlying an aquifer in whole
or in part or subdivision of an aquifer within the boundaries of the
management area; or
(3) brackish groundwater production zones.
(d-3) After the earlier of the date on which all the
districts have submitted their district summaries or the expiration
of the public comment period under Subsection (d-2), the district
representatives shall reconvene to review the reports, consider any
district's suggested revisions to the proposed desired future
conditions, and finally adopt the desired future conditions for the
management area. The desired future conditions must be adopted as a
resolution by a two-thirds vote of all the district
representatives. The district representatives shall produce a
desired future conditions explanatory report for the management
area and submit to the development board and each district in the
management area proof that notice was posted for the joint planning
meeting, a copy of the resolution, and a copy of the explanatory
report. The report must:
(1) identify each desired future condition;
(2) provide the policy and technical justifications
for each desired future condition;
(3) include documentation that the factors under
Subsection (d) were considered by the districts and a discussion of
how the adopted desired future conditions impact each factor;
(4) list other desired future condition options
considered, if any, and the reasons why those options were not
adopted; and
(5) discuss, if applicable, how the desired future
conditions promote the use of groundwater from brackish groundwater
production zones; and
(6) discuss reasons why recommendations made by
advisory committees and relevant public comments received by the
districts were or were not incorporated into the desired future
conditions.
SECTION 9. Section 36.1132(b), Water Code, is amended to
read as follows:
Sec. 36.1132. PERMITS BASED ON MODELED AVAILABLE
GROUNDWATER.
(b) In issuing permits, the district shall manage total
groundwater production on a long-term basis to achieve an
applicable desired future condition and consider:
(1) the modeled available groundwater determined by
the executive administrator;
(2) the executive administrator's estimate of the
current and projected amount of groundwater produced under
exemptions granted by district rules and Section 36.117;
(3) the amount of groundwater authorized under permits
previously issued by the district;
(4) a reasonable estimate of the amount of groundwater
that is actually produced under permits issued by the district; and
(5) yearly precipitation and production patterns; and
(6) the extent to which the total volume of water
authorized to be produced under permits issued by the district may
be increased because of the amount of groundwater production that
will occur from within brackish groundwater production zones while
still achieving an applicable desired future condition.
SECTION 10. Section 36.402, Water Code, is amended to read
as follows:
Sec. 36.402. APPLICABILITY. Except as provided by Section
36.416 and under Subchapter O, this subchapter applies to the
notice and hearing process used by a district for permit and permit
amendment applications.
SECTION 11. Chapter 36, Water Code, is amended to add
Subchapter O, as follows:
SUBCHAPTER O. BRACKISH GROUNDWATER PRODUCTION ZONES
Sec. 36.501. APPLICABILITY. (a) Except as provided in
subsection (b), a brackish groundwater production zone may be
designated in any groundwater reservoir or subdivision of a
groundwater reservoir in the state.
(b) No brackish groundwater production zone may be
designated in the following:
(1) any area of a groundwater reservoir or subdivision
of a groundwater reservoir with average total dissolved solids
levels of 1,000 milligrams per liter or less, at the time of
submission of an administratively complete petition under Section
36.502;
(2) any area of a groundwater reservoir or subdivision
of a groundwater reservoir with average total dissolved solids
levels of more than 1,000 milligrams per liter that is serving as a
significant source of water supply for municipal, domestic, or
agricultural purposes, other than production from another brackish
groundwater production zone, at the time of submission of an
administratively complete petition under Section 36.502;
(3) any area of the Edwards Aquifer subject to the
jurisdiction of the Edwards Aquifer Authority; or
(4) any area within the boundaries of the Barton
Springs-Edwards Aquifer Conservation District, the
Harris-Galveston Subsidence District, or the Fort Bend Subsidence
District.
(c) The average total dissolved solids levels provided in
Subsection (b)(1) and (2) shall be determined by:
(1) using the methodologies included in the guidance
documents developed by the Texas Water Development Board under
Section 36.503; or
(2) a process agreed to in writing by the petitioner
and the district in which the project is located.
Sec. 36.502. DESIGNATION OF ZONE BY PETITION. (a) A person
with a legally defined interest in the groundwater to be included
in a brackish groundwater production zone may petition the district
to designate a brackish groundwater production zone in a
groundwater reservoir or subdivision of a reservoir, or in a
specific area of a groundwater reservoir or subdivision of a
reservoir.
(b) The district shall designate a zone if the petitioner
demonstrates that:
(1) the production of groundwater proposed in the
petition will not cause unreasonable negative impacts:
(A) to the quality or quantity of groundwater
available for permitted and exempt production in any area of a
groundwater reservoir or subdivision of a groundwater reservoir
described under Section 36.501(b);
(B) to existing wells or well systems; or
(C) on the achievement of applicable existing
desired future conditions; and
(2) a monitoring plan described under Section
36.504(a)(4) is sufficient to monitor the impacts described under
Subdivision (1) of this subsection.
(c) Notwithstanding subsection (b), a district may
designate a brackish groundwater production zone if the petitioner
demonstrates that, while there are unreasonable negative impacts
described under Subsection (b)(1) or there are existing wells that
may be unreasonably negatively impacted by production from the
zone, the mitigation plan, if any, submitted under Section 36.504
as part of the petition will reasonably offset the impacts.
(d) A brackish groundwater production zone designation
created under this subsection shall be consistent with the rights
recognized under Section 36.002.
Section 36.503. TECHNICAL GUIDANCE DOCUMENTS DEVELOPED BY
BOARD. The Texas Water Development Board, with input from
districts and interested stakeholders, shall develop guidance
documents addressing the technical contents of petitions to
designate brackish groundwater production zones. The guidance
documents shall include a description of the technical
information, including hydrogeologic studies, modeling, or other
applicable geophysical and geochemical data regarding properties
of the groundwater reservoirs and subdivisions of groundwater
reservoirs in the area of a proposed zone, and monitoring and
reporting protocols that will be required as part of a petition to
make the demonstrations set forth under Section 36.502(b) and (c),
and guidance on how to determine average total dissolved solids
levels in an area of a groundwater reservoir or subdivision of a
groundwater reservoir. The guidance documents shall be used by
petitioners in developing petitions and by districts and the Texas
Water Development Board in reviewing petitions.
Sec. 36.504. CONTENTS OF A PETITION. A petition for the
designation of a brackish groundwater production zone shall include
the following:
(1) a description of:
(A) the location of the area overlying the zone
and a map that includes sufficient details to enable a property
owner to determine whether his property is located within the
associated surface acreage proposed to be included in the zone
based on:
(1) a metes and bounds survey certified by a
licensed state land surveyor or a registered professional land
surveyor;
(2) the Texas State Plane Coordinate
System; or
(3) verifiable landmarks, including a road,
creek, or railroad line;
(B) the groundwater reservoir or subdivision of a
groundwater reservoir in which the zone will be located; and
(C) the petitioner's rights to produce
groundwater in the zone;
(2) the approximate locations, production rates,
depths of well screens, total annual production, and total duration
of production of wells to be used for production of groundwater
from the zone;
(3) technical information consistent with the
guidance documents developed under Subsection (b) sufficient to
make the demonstrations set forth under Section 36.502(b),
including the scope and degree of impact, due to projected
production, on areas of groundwater reservoirs and subdivisions of
groundwater reservoirs locate inside and outside the zone described
under Section 36.501(b);
(4) a plan for monitoring and reporting on a periodic
basis the quality and quantity of groundwater in the proposed zone
and adjacent areas of groundwater reservoirs and subdivisions of
groundwater reservoirs described under Section 36.501(b);
(5) proposed mitigation plans to identify and mitigate
impacts to existing well owners, if any, caused by the petitioner's
production of groundwater from the zone; and
(6) if applicable, a description of the expected
project financing term and estimated duration of the project that
will be producing groundwater from the zone.
Sec. 36.505. PROCEDURE FOR DISTRICT REVIEW OF A PETITION.
(a) A petition to designate a brackish groundwater production zone
shall be filed with the district with jurisdiction over the
groundwater reservoir or subdivision of a groundwater reservoir
proposed to be designated as a brackish groundwater production
zone. A copy of the petition shall be filed with the Texas Water
Development Board. Within 45 days after receipt of a petition, the
district shall deem the petition administratively complete,
provide the petitioner with notice of the deficiencies in the
petition, or provide the petitioner with notice that the petition
shall be considered for direct referral to the Texas Water
Development Board.
(b) A district shall hold a hearing on a petition or on a
request to directly refer the petition to the Texas Water
Development Board. The notice and hearing shall be provided and
conducted in the same manner as a rulemaking hearing under Section
36.101, and the district shall require all hearing participants to
register as described under Section 36.101(g). The executive
administrator may, and at the request of the district or petitioner
shall, participate in the hearing and provide technical comments
for the benefit of the district, the petitioner, and the public
regarding the petition and the designation of the zone in
accordance with the provisions of this subchapter.
(c) The district board shall make a final ruling on a
petition within 150 days of receipt of an administratively complete
petition.
(d) A petition shall be deemed denied, without further
action by a district, if the district fails to directly refer the
petition to the Texas Water Development Board or make a final ruling
on the petition in accordance with Section 36.505(c), unless
otherwise agreed by the petitioner and district.
Sec. 36.506. DISTRICT ACTION ON PETITION; WHEN FINAL. (a) A
district board may grant, modify, deny or directly refer a petition
to the Texas Water Development Board by written order. Unless the
written order directly refers the petition to the Texas Water
Development Board, the order shall include the findings of the
district board relevant to the determinations set forth under
Section 36.502(b) and (c) and projected impacts of the proposed
groundwater production from within the zone, including any
projected impacts to the quality or quantity of groundwater in
areas described under Section 36.501(b). Unless the written order
directly refers the petition to the Texas Water Development Board,
the board's order shall describe how the zone designation is
consistent with the rights recognized in Section 36.002 or whether
the zone designation does not impact the rights recognized in
Section 36.002, and shall include the participant registration
information obtained under Section 36.505(b).
(b) A decision by a district on a petition is final and
appealable pursuant to Section 36.507 on the date of the district
board's written order approving, modifying, or denying the
petition. The district shall not require a motion for rehearing on
the board action as a prerequisite to filing an appeal under Section
36.507. A decision by a district on a petition that directly refers
the petition to the Texas Water Development Board is final on the
date of the district's written order, and the decision to directly
refer the petition is not appealable.
Sec. 36.507. APPEAL OR DIRECT REFERRAL TO TEXAS WATER
DEVELOPMENT BOARD. (a) Within 30 days after the date of a district
board's written order approving, modifying, denying or directly
referring a petition, or 30 days after the date a petition is deemed
denied under Section 36.505(d), the petitioner or any person with a
legally defined interest in groundwater in the district who
participated in the hearing may appeal the decision of the district
board by filing a notice of appeal along with a copy of the petition
as reviewed by the district board with the Texas Water Development
Board.
(b) If a district enters an order directly referring a
petition, the petitioner shall file the petition with the Texas
Water Development Board. The executive administrator shall
promptly review the petition and, within 30 days after receipt of a
petition, the executive administrator shall declare the petition
administratively complete, or provide the petitioner with notice of
the deficiencies in the petition.
(c) The person filing the appeal, or the petitioner, in the
case of direct referral, shall provide notice of the Texas Water
Development Board's review of the petition by appeal or direct
referral to the petitioner, if the district, and to each person that
participated in the hearing as identified in the district's order
under Section 36.506(a) or, if the petition was deemed denied and
there is no district order, to each person who participated and
registered at the hearing as required under Section 36.505(b).
(d) The Texas Water Development Board shall review the
petition de novo. On direct referral, or on an appeal by the
petitioner of the district board's modification or denial of the
petition, the petitioner shall bear the burden of demonstrating
that the petition meets the requirements of this subchapter for the
designation of a zone. If a person other than the petitioner appeals
the district board's denial of the petition and the petitioner does
not appeal, the person shall bear the burden of demonstrating that
the petition meets the requirements of this subchapter for the
designation of a zone. If a person other than the petitioner
appeals the district board's modification or approval of the
petition, the person shall bear the burden of demonstrating that
the petition as approved does not meet the requirements of this
subchapter for the designation of a zone.
(e) The Texas Water Development Board's review of a petition
under this section is considered a contested case under Chapter
2001, Government Code. The executive administrator shall refer an
appeal directly to the State Office of Administrative Hearings for
a determination of parties and a contested case hearing. The Texas
Water Development Board shall issue a final order granting,
modifying, or denying the petition and including the information
required of a written order under Section 36.506(a).
(f) Any party to a review under this section is entitled to
judicial review of the Texas Water Development Board's final order
under the substantial evidence rule.
Sec. 36.508. PETITION PROCESS FOR BRACKISH GROUNDWATER
PRODUCTION ZONE LOCATED IN TWO OR MORE DISTRICTS. (a) A petition to
designate a brackish groundwater production zone in an area that
includes more than one district shall be filed with each district
located over the proposed zone in the manner provided by Section
36.502.
(b) The districts described under Subsection (a) shall:
(1) hold a joint hearing on a petition within 90 days
of receipt of an administratively complete petition in the manner
provided by Section 36.505;
(2) agree in writing that one district shall hold the
hearing on the petition on behalf of all of the districts; or
(3) directly refer a petition to the Texas Water
Development Board if at least one district adopts a written order
directly referring the petition.
(c) A quorum of the board of directors of each district
located over the proposed zone is required for a joint hearing under
this section.
(d) The districts located over the proposed zone may enter
into a cost-sharing agreement to address any technical,
regulatory, legal, administrative or other issues associated with
the petition.
(e) Each district located over the proposed zone shall
provide notice of a hearing as provided by Section 36.505. If a
district is holding a district board meeting at which a district
board will consider a direct referral of a petition to the Texas
Water Development Board, the district shall provide written notice
of the district board meeting to all other districts located over
the proposed zone and the Texas Water Development Board.
(f) The board of directors of each district located over the
proposed zone shall make a final decision on the designation of the
zone within 75 days of the date of the hearing conducted under
Subsection (b), unless the petitioner and each participating
district agree in writing on another date. A single written order
that meets the requirements of Section 36.506 must be approved by
the board of directors of each district located over the zone in
order to designate a zone under this section. The failure of one or
more of the districts to approve a single order under this
subsection, or the approval and issuance of a single order by each
district to approve, modify, or deny a petition under this
subsection, may be appealed to the Texas Water Development Board in
the manner described by Section 36.507.
Sec. 36.509. PERMITTING OF WELLS IN A BRACKISH GROUNDWATER
PRODUCTION ZONE. (a) Except as specifically provided under this
subchapter or otherwise provided in the zone designation order, a
district may adopt rules regulating the drilling, equipping,
completion, and spacing of wells, production of groundwater, or
otherwise managing the groundwater resources located in a brackish
groundwater production zone in any manner authorized under this
chapter; provided, however, that such rules must not be in conflict
with the findings of the order designating the zone. However, any
rules related to well spacing for wells in the zone or limiting the
rates or amounts of groundwater production from the zone are:
(1) not applicable to a permit applicant that was the
petitioner for the designation of the zone unless the rules related
to well spacing or production were in effect at the time of the
designation of the zone; and
(2) not applicable to a permit applicant that was not
the petitioner for the designation of the zone unless the rules
related to well spacing or production were in effect at the time of
receipt of the administratively complete permit application by such
permit applicant.
(b) An application for a permit for a well in a brackish
groundwater production zone shall be consistent with the findings
in the written order designating the zone under Section 36.506 or
36.507, as applicable, and the rules of the district as described
under Subsection (a).
(c) The district may impose a reasonable fee under Section
36.205 for processing an application under this section.
(d) A district shall act on an application for a permit for
a well in a brackish groundwater production zone within 60 days of
receipt of the application, or as otherwise agreed by the district
and the petitioner. The application shall be processed as an
uncontested application under Subchapter M and shall not be subject
to a contested case hearing, or may be processed as an application
for which a hearing is not required under Section 36.114(b).
(e) Notwithstanding Section 36.113(d), a district shall
grant an application for a permit for a well in a brackish
groundwater production zone if the application is consistent with
the order designating the zone under Section 36.506 or 36.507, as
applicable, and the rules of the district as described under
Subsection (a).
(f) A permit issued under this section may be amended
pursuant to an application by the permittee if the permittee
demonstrates that the changes to the permit are consistent with the
written order designating the zone under Sections 36.506 or 36.507.
A permit may be amended by the district pursuant to Section 36.514.
Sec. 36.510. CONTENTS OF A PERMIT IN A BRACKISH GROUNDWATER
PRODUCTION ZONE. (a) Permits shall authorize the drilling and
production of water at locations, rates, and amounts that are
consistent with the written order designating the brackish
groundwater production zone, and the rules of the district as
described under Section 36.509(a).
(b) Permits in a brackish groundwater production zone shall
contain a permit term equal to the expected project financing term
or estimated duration of production for the project contained in
the zone designation, but no more than 30 years.
(c) Permits may require reasonable monitoring of the zone
and adjacent areas of groundwater reservoirs and subdivisions of
groundwater reservoirs consistent with the monitoring plan
contained in the zone designation.
(d) Permits may require the filing of drilling logs, and
periodic reports of withdrawals, aquifer levels, and other
information from the monitoring plan.
Sec. 36.511. NON-APPLICABILITY OF SECTION 36.122 TO
PRODUCTION; EXPORT FEES. (a) The production from a well in a
brackish groundwater production zone is not subject to Section
36.122.
(b) Notwithstanding subsection (a), a district may impose a
reasonable fee or surcharge under Section 36.122(e) for groundwater
produced from a brackish groundwater production zone for use
outside of a district's boundaries.
Sec. 36.512. RIGHTS OF LANDOWNER OVER BRACKISH GROUNDWATER
PRODUCTION ZONE TO PRODUCE GROUNDWATER. In implementing this
subchapter, a district's actions shall be consistent with the
rights recognized under Section 36.002.
Sec. 36.513. AMENDMENTS TO BRACKISH GROUNDWATER PRODUCTION
ZONES. (a) A brackish groundwater production zone designation
under this subchapter may only be amended as provided by this
section.
(b) A district may initiate an amendment to a brackish
groundwater production zone to increase or decrease the rates or
amounts of production of groundwater from the zone, to amend the
boundaries of the zone, or to change a monitoring or mitigation plan
applicable to the zone by providing notice and holding a hearing in
the manner set forth under Section 36.505. A district that
initiates an amendment to a zone shall bear the burden of proof in
making the demonstrations required under Section 36.502 and this
section. If the district amendment proposes to decrease the rates
or amounts of production of groundwater from the zone, the district
must demonstrate that the actual impacts to groundwater resources
from production within the zone exceed the projected impacts
included in the written order issued under Section 36.506 or
36.507, as applicable, that designated the zone, or that there is a
changed desired future condition that is impacted by production
from the zone.
(c) A person who holds a permit to produce groundwater from
within the zone or any person with a legally defined interest in
groundwater in the district may initiate an amendment to a zone to
increase or decrease the rates or amounts of production of
groundwater from the zone, to amend the boundaries of the zone, or
to change a monitoring or mitigation plan applicable to the zone by
filing a petition with the district in the manner prescribed for
the original designation of a zone under Section 36.502. The
petitioner shall bear the burden of proof in making the
demonstrations required under Section 36.502 and this section. If
the petition proposes to decrease the rates or amounts of
production of groundwater from the zone, the petitioner must
demonstrate that the actual impacts to groundwater resources from
production within the zone exceed the projected impacts included
in the written order issued under Section 36.506 or 36.507, as
applicable, that designated the zone, or that there is a changed
desired future condition that is impacted by production from the
zone.
(d) A person who holds a permit to produce groundwater from
within the zone or any person with a legally defined interest in
groundwater in the district may appeal the decision of the district
board to amend a zone under Subsections (b) or (c) to the Texas
Water Development Board in the manner prescribed under Section
36.507.
Sec. 36.514. EFFECT OF ZONE AMENDMENT ON EXISTING WELL
PERMITS IN A ZONE. (a) A district may amend a well permit in a
brackish groundwater production zone to change the amount or rate
of production, or change the monitoring or mitigation plan, only if
the designation of the zone is amended under Section 36.513 or by
written agreement between the district and the permit holder. Any
amendment to a permit must be consistent with the amendment to the
zone and may not reduce the rates or amounts of groundwater produced
under the permit to a level lower than necessary to be consistent
with the amended zone designation.
(b) A district may not amend an existing permit to produce
groundwater from a zone because of a change in a desired future
condition established under Section 36.108 that may be affected by
production from the zone, even if the zone is amended under Section
36.513. In such instances, the district may reduce production
through permit renewal after expiration of the original permit term
and only to an amount consistent with achievement of the desired
future condition and the applicable effective findings related to
the zone designation at the time the permit expires.
(c) A district may not amend an existing permit to produce
groundwater from a zone during the term of the permit because of an
amendment to increase or decrease the size of a zone, or to
undesignate a previously designated zone.
(d) During the pendency of an amendment to a brackish
groundwater production zone, an existing permit holder may continue
to produce groundwater under the terms of the existing permit until
the permit has been amended after a final decision on the amendment
to the zone has been issued by the district under Section 36.506,
or if the decision of the district is appealed, until a final
decision has been issued by the Texas Water Development Board under
Section 36.507.
(e) A district may not by rule or an amendment to a rule
reduce the amount or rate of groundwater that may be produced under
an existing permit to produce groundwater from a zone in a manner
that the district would not be authorized to reduce by permit
amendment under this section.
Sec. 36.515. MANANAGEMENT OF BRACKISH GROUNDWATER BY A
DISTRICT OR THROUGH JOINT PLANNING. (a) Nothing in this subchapter
shall be construed to prohibit:
(1) a district, on its own initiative, from managing
the groundwater resources as authorized by this chapter in a
groundwater reservoir, subdivision of a groundwater reservoir, or
area of a groundwater reservoir or subdivision of a groundwater
reservoir described by Section 36.501(b); or
(2) the establishment of a desired future condition
through the joint planning process described under Section 36.108
for a groundwater reservoir, subdivision of a groundwater
reservoir, or area of a groundwater reservoir or subdivision of a
groundwater reservoir described by Section 36.501(b).
(b) Notwithstanding Subsection (a), a person may petition a
district or districts for the designation of a brackish groundwater
production zone in the manner prescribed by this subchapter
regardless of whether:
(1) a district is already managing all or part of the
groundwater resources located in the proposed zone; or
(2) there is a desired future condition adopted for
all or part of the groundwater resources located within the
proposed zone.
Sec. 36.516. MANAGEMENT OF BRACKISH GROUNDWATER RESOURCES
TO PROMOTE USE; EXPLORATION OR PRODUCTION OF HYDROCARBONS. (a)
This subchapter does not affect the exemptions related to
hydrocarbon activities as set forth under Section 36.117.
(b) In order to promote the utilization of brackish
groundwater resources, a district may establish special rules that
are less restrictive administratively or with regard to the amount
of groundwater that can be produced from a groundwater reservoir,
subdivision of a groundwater reservoir, or area of a groundwater
reservoir or subdivision of a groundwater reservoir that contains
brackish groundwater than the district's rules are with respect to
the administration, management, and production of non-brackish
groundwater resources for any beneficial purpose of use, including
use related to activities associated with the drilling,
exploration, or production of hydrocarbons.
(c) A district may not adopt rules under this section that
are more restrictive on a person producing groundwater for
activities related to the drilling, exploration, or production of
hydrocarbons than on a person producing groundwater for other
purposes of use, but may adopt rules that are less restrictive.
Sec. 36.517. MANDAMUS. A district court in in a court of
competent jurisdiction in any county in which the district or any
part of the district is located may issue a writ of mandamus to
compel a district to perform the following:
(a) act on a petition for designation of a brackish
groundwater production zone within the times frames established in
Section 36.504; or
(b) issue a permit for a well located in a brackish
groundwater production zone pursuant to Section 36.508 based on an
application that is consistent with the designation of the
brackish groundwater production zone and the rules of the district
as described under Section 36.509(a).
Sec. 36.518. CONFLICTS WITH OTHER SUBCHAPTERS. If a
provision in this subchapter conflicts with a provision of another
subchapter under this chapter, the provision in this subchapter
prevails.
SECTION 12. No later than January 1, 2016, the Texas Water
Development Board shall adopt rules to implement the changes in law
to Chapters 16 and 36, Water Code, as amended by this Act.
SECTION 13. 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.